CODE OF FEDERAL REGULATIONS32
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
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The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.
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Title 17 through Title 27
Title 28 through Title 41
Title 42 through Title 50
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Title 32—
The current regulations issued by the Department of Defense appear in the volumes containing parts 1-190 and parts 191-399; those issued by the Department of the Army appear in the volumes containing parts 400-629 and parts 630-699; those issued by the Department of the Navy appear in the volume containing parts 700-799, and those issued by the Department of the Air Force, Defense Logistics Agency, Selective Service System, Central Intelligence Agency, Information Security Oversight Office, National Security Council, Office of Science and Technology Policy, Office for Micronesian Status Negotiations, Office of the Vice President of the United States, and Presidential Commission on the Assignment of Women in the Armed Forces appear in the volume containing part 800 to end.
For this volume, Gwendolyn J. Henderson was Chief Editor. The Code of Federal Regulations is published under the direction of Frances D. McDonald, assisted by Alomha S. Morris.
10 U.S.C. 2340 note.
Section 809 of Public Law 101-510, “National Defense Authorization Act for Fiscal Year 1991,” as amended by section 811 of Public Law 102-484, “National Defense Authorization Act for Fiscal Year 1993” and Public Law 103-160, “National Defense Authorization Act for Fiscal Year 1994,” authorizes the Secretary of Defense to conduct the Defense Acquisition Pilot Program. In accordance with section 809 of Public Law 101-510, the Secretary may designate defense acquisition programs for participation in the Defense Acquisition Pilot Program.
(a) The purpose of the pilot programs is to determine the potential for increasing the efficiency and effectiveness of the acquisition process. Pilot programs shall be conducted in accordance with the standard commercial, industrial practices. As used in this policy, the term “standard commercial, industrial practice” refers to any acquisition management practice, process, or procedure that is used by commercial companies to produce and sell goods and services in the commercial marketplace. This definition purposely implies a broad range of potential activities to adopt commercial practices, including regulatory and statutory streamlining, to eliminate unique Government requirements and practices such as government-unique contracting policies and practices, government-unique specifications and standards, and reliance on cost determination rather than price analysis.
(b) Standard commercial, industrial practices include, but are not limited to:
(1) Innovative contracting policies and practices;
(2) Performance and commercial specifications and standards;
(3) Innovative budget policies;
(4) Establishing fair and reasonable prices without cost data;
(5) Maintenance of long-term relationships with quality suppliers;
(6) Acquisition of commercial and non-developmental items (including components); and
(7) Other best commercial practices.
(a) Within the limitations prescribed, the applicability of any provision of law or any regulation prescribed to implement a statutory requirement may be waived for all programs participating in the Defense Acquisition Pilot Program, or separately for each participating program, if that waiver or limit is specifically authorized to be waived or limited in a law authorizing appropriations for a program designated by statute as a participant in the Defense Acquisition Pilot Program.
(b) Only those laws that prescribe procedures for the procurement of supplies or services; a preference or requirement for acquisition from any source or class of sources; any requirement related to contractor performance; any cost allowability, cost accounting, or auditing requirements; or any requirement for the management of, testing to be performed under, evaluation of, or reporting on a defense acquisition program may be waived.
(c) The requirements in section 809 of Public Law 101-510, as amended by section 811 of Public Law 102-484, the requirements in any law enacted on or after the enactment of Public Law 101-510 (except to the extent that a waiver or limitation is specifically authorized for such a defense acquisition program by statute), and any provision of law that ensures the financial integrity of
(a) A program participating in the Defense Acquisition Pilot Program will not be subject to any regulation, policy, directive, or administrative rule or guideline relating to the acquisition activities of the Department of Defense other than the Federal Acquisition Regulation (FAR)
(b) Provisions of the FAR and/or DFARS that do not implement statutory requirements may be waived by the Under Secretary of Defense for Acquisition and Technology using appropriate administrative procedures. Provisions of the FAR and DFARS that implement statutory requirements may be waived or limited in accordance with the procedures for statutory relief previously mentioned.
(c) Regulatory relief includes relief from use of government-unique specifications and standards. Since a major objective of the Defense Acquisition Pilot Program is to promote standard, commercial industrial practices, functional performance and commercial specifications and standards will be used to the maximum extent practical. Federal or military specifications and standards may be used only when no practical alternative exists that meet the user's needs. Defense acquisition officials (other than the Program Manager or Commodity Manager) may only require the use of military specifications and standards with advance approval from the Under Secretary of Defense for Acquisition and Technology, the Head of the DoD Component, or the DoD Component Acquisition Executive.
(a) Pilot programs may be nominated by a DoD Component Head or Component Acquisition Executive for participation in the Defense Acquisition Pilot Program. The Under Secretary of Defense for Acquisition and Technology shall determine which specific programs will participate in the pilot program and will transmit to the Congressional defense committees a written notification of each defense acquisition program proposed for participation in the pilot program. Programs proposed for participation must be specifically designated as participants in the Defense Acquisition Pilot Program in a law authorizing appropriations for such programs and provisions of law to be waived must be specifically authorized for waiver.
(b) Once included in the Defense Acquisition Pilot Program, decision and approval authority for the participating program shall be delegated to the lowest level allowed in the acquisition regulations consistent with the total cost of the program (e.g., under DoD Directive 5000.1,
(c) At the time of nomination approval, the Under Secretary of Defense for Acquisition and Technology will establish measures to judge the success of a specific program, and will also establish a means of reporting progress towards the measures.
(a) Candidate programs must have an approved requirement, full program funding assured prior to designation, and low risk. Nomination of a candidate program to participate in the Defense Acquisition Pilot Program should occur as early in the program's life-cycle as possible. Developmental programs will only be considered on an exception basis.
(b) Programs in which commercial or non-developmental items can satisfy the military requirement are preferred as candidate programs. A nominated program will address which standard commercial, industrial practices will be used in the pilot program and how those practices will be applied.
(c) Nomination of candidate programs must be accompanied by a list of waivers being requested to Statutes, FAR, DFARS, DoD Directives
(1) The provision of law proposed to be waived or limited.
(2) The effects of the provision of law on the acquisition, including specific examples.
(3) The actions taken to ensure that the waiver or limitation will not reduce the efficiency, integrity, and effectiveness of the acquisition process used for the defense acquisition program; and
(4) A discussion of the efficiencies or savings, if any, that will result from the waiver or limitation.
(d) No nominated program shall be accepted until the Under Secretary of Defense has determined that the candidate program is properly planned.
5 U.S.C. 301 and 10 U.S.C. 113.
The purposes of this part, which is one portion of the DoD Grant and Agreement Regulations (DoDGARs), are to:
(a) Provide general information about the DoDGARs.
(b) Set forth general policies and procedures related to DoD Components’ overall management of functions related to grants and cooperative agreements.
(a) DoD Directive 3210.6
(b) The purposes of the DoDGARs, in conjunction with other elements of the DGARS, are to provide uniform policies and procedures for grants and cooperative agreements awarded by DoD Components, in order to meet DoD needs for:
(1) Efficient program execution, effective program oversight, and proper stewardship of Federal funds.
(2) Compliance with relevant statutes; Executive orders; and applicable guidance, such as Office of Management and Budget (OMB) circulars.
(3) Collection from DoD Components, retention, and dissemination of management and fiscal data related to grants and agreements.
(c) The Director of Defense Research and Engineering, or his or her designee:
(1) Develops and implements DGARS policies and procedures.
(2) Issues and maintains the DoD Grant and Agreement Regulations and other DoD publications that comprise the DGARS.
(a)
(b)
(2) The following is a list of DoDGARs rules that apply not only to grants and cooperative agreements, but also to other types of nonprocurement instruments:
(i) Requirements for reporting to the Defense Assistance Award Data System, in subpart C of this part.
(ii) The rule on nonprocurement debarment and suspension in 32 CFR part 25, subparts A through E.
(iii) Drug-free workplace requirements in 32 CFR part 25, subpart F.
(iv) Restrictions on lobbying in 32 CFR part 28.
(v) Administrative requirements for grants, cooperative agreements, and other financial assistance to:
(A) Universities and other nonprofit organizations, in 32 CFR part 32.
(B) State and local governments, in 32 CFR part 33.
(3) Grants officers should be aware that each rule that applies to other types of nonprocurement instruments (i.e., other than grants and cooperative agreements) states its applicability to such instruments. However, grants officers must exercise caution when determining the applicability of some Governmentwide rules that are included in the DoDGARs, because a term may be defined differently in a Governmentwide rule than it is defined elsewhere in the DoDGARs. For example, the Governmentwide implementation of the Drug-Free Workplace Act of 1988 (32 CFR part 25, subpart F) states that it applies to grants, but defines “grants” to include cooperative agreements and other forms of financial assistance.
(c)
The Head of each DoD Component that awards or administers grants and cooperative agreements, or his or her designee:
(a) Is responsible for ensuring compliance with the DoDGARs within that DoD Component.
(b) May authorize the issuance of regulations, procedures, or instructions that are necessary to implement DGARS policies and procedures within the DoD Component, or to supplement the DoDGARs to satisfy needs that are specific to the DoD Component, as long as such regulations, procedures, or instructions do not impose additional costs or administrative burdens on recipients or potential recipients. Heads of DoD Components or their designees shall establish policies and procedures in areas where uniform policies and procedures throughout the DoD Component are required, such as for:
(1) Requesting class deviations from the DoDGARs (see § 21.125) or exemptions from the provisions of 31 U.S.C. 6301
(2) Designating one or more Grant Appeal Authorities to resolve claims, disputes, and appeals (see 32 CFR 22.815).
(3) Reporting data on assistance awards and programs, as required by 31 U.S.C. chapter 61 (see subpart C of this part).
(4) Prescribing requirements for use and disposition of real property acquired under awards, if the DoD Component makes any awards to institutions of higher education or to other nonprofit organizations under which real property is acquired in whole or in part with Federal funds (see 32 CFR 32.32).
(a) The DoDGARs are published as chapter I, subchapter B, title 32 of the Code of Federal Regulations (CFR) and in a separate loose-leaf edition. The loose-leaf edition is divided into parts, subparts, and sections, to parallel the CFR publication. Cross-references within the DoDGARs are stated as CFR citations (e.g., a reference to § 21.115 in part 21 would be to 32 CFR 21.115).
(b) Updates to the DoDGARs are published in the
(c) Revisions to the DoDGARs are recommended to the Director of Defense Research and Engineering (DDR&E) by a standing working group. The DDR&E, Director of Defense Procurement, and each Military Department shall be represented on the working group. Other DoD Components that use grants or cooperative agreements may also nominate representatives. The working group meets when necessary.
(a) The Head of the DoD Component or his or her designee may authorize individual deviations from the DoDGARs, which are deviations that affect only one grant or cooperative agreement, if such deviations are not prohibited by statute, executive order or regulation.
(b) Class deviations that affect more than one grant or cooperative agreement must be approved in advance by the Director, Defense Research and Engineering (DDR&E) or his or her designee. Note that OMB concurrence also is required for deviations from two parts of the DoDGARs, 32 CFR parts 32 and 33, in accordance with 32 CFR 32.4 and 33.6, respectively.
(c) Copies of justifications and agency approvals for individual deviations and written requests for class deviations shall be submitted to: Deputy Director, Defense Research and Engineering, ATTN: Research, 3080 Defense Pentagon, Washington DC 20301-3080.
(d) Copies of requests and approvals for individual and class deviations shall be maintained in award files.
(1) The principal purpose of which is to transfer a thing of value to the recipient to carry out a public purpose of support or stimulation authorized by a law of the United States, rather than to acquire property or services for the Department of Defense's direct benefit or use.
(2) In which substantial involvement is not expected between the Department of Defense and the recipient when carrying out the activity contemplated by the grant.
This subpart describes the sources and flow of authority to use grants and cooperative agreements, and assigns the broad responsibilities associated with DoD Components’ use of such instruments.
(a) In accordance with 31 U.S.C. 6301
(b) Unlike the use of a procurement contract (for which Federal agencies have inherent, Constitutional authority), use of a grant or cooperative agreement to carry out a program requires authorizing legislation, the intent of which supports the use of an assistance instrument (e.g., the intent of the legislation authorizing a program supports a judgment that the principal purpose of the program is assistance, rather than acquisition). DoD Components may award grants and cooperative agreements under a number of statutory authorities that fall into three categories:
(1)
(i) Authority under 10 U.S.C. 2391 to make grants or conclude cooperative agreements to assist State and local governments in planning and carrying out community adjustments and economic diversification required by changes in military installations or in DoD contracts or spending that may have a direct and significant adverse consequence on the affected community.
(ii) Authority under 10 U.S.C. 2413 to enter into cooperative agreements with entities that furnish procurement technical assistance to businesses.
(2)
(3)
(i) A federal statute authorizing a program that is consistent with an assistance relationship (i.e., the support or stimulation of a public purpose, rather than the acquisition of a good or service for the direct benefit of the Department of Defense). In accordance with 31 U.S.C. chapter 63, such a program would appropriately be carried out through the use of grants or cooperative agreements.
(ii) Exemptions requested by the Department of Defense and granted by the Office of Management and Budget under 31 U.S.C. 6307, as described in 32 CFR 22.220.
(a) The authority and responsibility for awarding grants and cooperative agreements is vested in the Head of each DoD Component that has such authority.
(b) The Head of each such DoD Component, or his or her designee, may delegate to the heads of contracting activities (HCAs) within that Component, authority to award grants or cooperative agreements, to appoint grants officers (see § 21.220(c)), and to broadly manage the DoD Component's functions related to grants and cooperative agreements. An HCA is the same official (or officials) designated as the head of the contracting activity for procurement contracts, as defined at 48 CFR 2.101—the intent is that overall management responsibilities for a DoD Component's functions related to nonprocurement instruments be assigned only to officials that have similar responsibilities for procurement contracts.
When designated by the Head of the DoD Component or his or her designee (see 32 CFR 21.210(b)), the HCA is responsible for the grants and cooperative agreements made by or assigned to that activity. He or she shall supervise and establish internal policies and procedures for that activity's assistance awards.
(a)
(b)
(1) Individual grants and cooperative agreements are used effectively in the execution of DoD programs, and are awarded and administered in accordance with applicable laws, Executive orders, regulations, and DoD policies.
(2) Sufficient funds are available for obligation.
(3) Recipients of grants and cooperative agreements receive impartial, fair, and equitable treatment.
(c)
(1)
(2)
(3)
This subpart prescribes policies and procedures for compiling and reporting data related to grants, cooperative agreements, and other nonprocurement instruments subject to information reporting requirements of 31 U.S.C. chapter 61.
(a)
(1) DoD inputs to meet statutory requirements for Federal Governmentwide reporting of data related to obligations of funds by grant, cooperative agreement, or other nonprocurement instrument.
(2) A basis for meeting Governmentwide requirements to report to the Federal Assistance Awards Data System maintained by the Department of Commerce and for preparing other recurring and special reports to the President, the Congress, the General Accounting Office, and the public.
(3) Information to support policy formulation and implementation and to meet management oversight requirements related to the use of grants, cooperative agreements, and other nonprocurement instruments.
(b)
(2) The Director for Information Operations and Reports, Washington Headquarters Services (DIOR, WHS) shall, consistent with guidance issued by the DDDR&E:
(i) Process DAADS information on a quarterly basis and prepare recurring and special reports using such information.
(ii) Prepare, update, and disseminate “Department of Defense Assistance Awards Data System,” an instruction manual for reporting information to DAADS. The manual, which shall be issued by the office of the DDR&E, shall specify procedures, formats, and editing processes to be used by DoD Components, including magnetic tape layout and error correction schedules.
(3) The following offices shall serve as central points for collecting DAADS information from contracting activities within the DoD Components:
(i) For the Army: As directed by the U.S. Army Contracting Support Agency.
(ii) For the Navy: As directed by the Office of Naval Research.
(iii) For the Air Force: As directed by SAF/AQCP.
(iv) For the Office of the Secretary of Defense, Defense Agencies, and DoD Field Activities: Each Defense Agency shall identify a central point for collecting and reporting DAADS information to the DIOR, WHS, at the address given in paragraph (c)(2) of this section. DIOR, WHS shall serve as the central point for offices and activities within the Office of the Secretary of Defense and for DoD Field Activities.
(4) The office that serves, in accordance with paragraph (b)(3) of this section, as the central point for collecting DAADS information from contracting activities within each DoD Component shall:
(i) Establish internal procedures to ensure reporting by contracting activities that use grants, cooperative agreements or other nonprocurement instruments subject to 31 U.S.C. chapter 61.
(ii) Collect information required by DD Form 2566, “DoD Assistance Award Action Report,” from those contracting activities, and report it to DIOR, WHS, in accordance with paragraph (d) of this section.
(iii) Submit to the DDDR&E, at the address given in § 21.125(c), any recommended changes to the DAADS or to the instruction manual described in paragraph (b)(2)(ii) of this section.
(c)
(1) Collected for each individual grant, cooperative agreement, or other nonprocurement action that is subject to 31 U.S.C. chapter 61 and involves the obligation or deobligation of Federal funds. Each action is reported as an obligation under a specific program listed in the Catalog of Federal Domestic Assistance (CFDA, see § 21.310). The program to be shown is the one that provided the funds being obligated (i.e., if a grants officer in one DoD Component obligates appropriations of a second DoD Component's program, the grants officer would show the CFDA program of the second DoD Component on the DD Form 2566).
(2) Reported on a quarterly basis to DIOR, WHS by the offices that are designated pursuant to paragraph (b)(3) of this section. For the first three quarters of the Federal fiscal year, the data are due by close-of-business (COB) on the 15th day after the end of the quarter (i.e., first-quarter data are due by COB on January 15th, second-quarter data by COB April 15th, and third-quarter data by COB July 15th). Fourth-quarter data are due by COB October 25th, the 25th day after the end of the quarter. If any due date falls on a weekend or holiday, the data are due on the next regular workday. The mailing address for DIOR, WHS is 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302.
(3) Reported on a computer tape, floppy diskette or by other means permitted by the instruction manual described in paragraph (b)(2)(ii) of this section. The data shall be reported in the format specified in the instruction manual.
(d)
(a)
(2) The CFDA covers all domestic assistance programs and activities, regardless of the number of awards made under the program, the total dollar value of assistance provided, or the duration. In addition to programs using grants and cooperative agreements, covered programs include those providing assistance in other forms, such as payments in lieu of taxes or indirect assistance resulting from Federal operations.
(b)
(i) Report to the Director for Information Operations and Reports, Washington Headquarters Services (DIOR, WHS) all new programs and changes as they occur, or as DIOR, WHS requests annual updates to existing CFDA information.
(ii) Identify to the DIOR, WHS a point-of-contact who will be responsible for reporting such program information and for responding to inquiries related to it.
(2) The DIOR, WHS shall act as the Department of Defense's single office for collecting, compiling and reporting
DoD Components shall assign identifying numbers to all nonprocurement instruments subject to this subpart, including grants and cooperative agreements. The numbering system parallels the procurement instrument identification (PII) numbering system specified in 48 CFR 204.70 (in the “Defense Federal Acquisition Regulation Supplement”), as follows:
(a) The first six alphanumeric characters of the assigned number shall be identical to those specified by 48 CFR 204.7003(a)(1) to identify the DoD Component and contracting activity.
(b) The seventh and eighth positions shall be the last two digits of the fiscal year in which the number is assigned to the grant, cooperative agreement, or other nonprocurement instrument.
(c) The 9th position shall be a number: “1” for grants; “2” for cooperative agreements; and “3” for other nonprocurement instruments.
(d) The 10th through 13th positions shall be the serial number of the instrument. DoD Components and contracting activities need not follow any specific pattern in assigning these numbers and may create multiple series of letters and numbers to meet internal needs for distinguishing between various sets of awards.
5 U.S.C. 301 and 10 U.S.C. 113.
(a) This part outlines grants officers’ and DoD Components’ responsibilities related to the award and administration of grants and cooperative agreements.
(b) In doing so, it also supplements other parts of the DoD Grant and Agreement Regulations (DoDGARs) that are either Governmentwide rules or DoD implementation of Governmentwide guidance in Office of Management and Budget (OMB) Circulars. Those other parts of the DoDGARs, which are referenced as appropriate in this part, are:
(1) Governmentwide rules on debarment, suspension and drug-free workplace requirements, in 32 CFR part 25.
(2) The Governmentwide rule on lobbying restrictions, in 32 CFR part 28.
(3) Administrative requirements for grants and agreements awarded to specific types of recipients:
(i) For State and local governmental organizations, in the Governmentwide rule at 32 CFR part 33.
(ii) For institutions of higher education and other nonprofit organizations, at 32 CFR part 32.
(iii) For for-profit organizations, at 32 CFR part 34.
(c) The organization of this part parallels the award and administration process, from pre-award through post-award matters. It therefore is organized in the same manner as the parts of the DoDGARs (32 CFR parts 32, 33, and 34) that prescribe administrative requirements for specific types of recipients.
Other than the terms defined in this section, terms used in this part are defined in 32 CFR 21.130.
(1) Research-related, science and engineering education, including graduate fellowships and research traineeships.
(2) Research instrumentation and other activities designed to enhance
(1) That the debtor fails to pay by the date specified in the initial written notice from the agency owed the debt, normally within 30 calendar days, unless the debtor makes satisfactory payment arrangements with the agency by that date; and
(2) With respect to which the debtor has elected not to exercise any available appeals or has exhausted all agency appeal processes.
This subpart provides the bases for determining the appropriate type of instrument in a given situation.
Before using a grant or cooperative agreement, the grants officer shall make a positive judgment that an assistance instrument, rather than a procurement contract, is the appropriate instrument, based on the following:
(a)
(i) When a statute specifically provides otherwise; or
(ii) When an exemption is granted, in accordance with § 22.220.
(2) For research and development, the appropriate use of grants and cooperative agreements therefore is almost exclusively limited to the performance of selected basic, applied, and advanced research projects. Development projects nearly always shall be performed by contract or other acquisition transaction because their principal purpose is the acquisition of specific deliverable items (e.g., prototypes or other hardware) for the benefit of the Department of Defense.
(b)
(1) Fee or profit is to be paid to the recipient of the instrument; or
(2) The instrument is to be used to carry out a program where fee or profit is necessary to achieving program objectives.
(a) Before a grant or cooperative agreement may be used, the grants officer must:
(1) Identify the program statute, the statute that authorizes the DoD Component to carry out the activity the principal purpose of which is assistance (see 32 CFR 21.205(b)).
(2) Review the program statute to determine if it contains requirements that affect the:
(i) Solicitation, selection, and award processes. For example, program statutes may authorize assistance to be provided only to certain types of recipients; may require that recipients meet certain other criteria to be eligible to receive assistance; or require that a specific process shall be used to review recipients’ proposals.
(ii) Terms and conditions of the award. For example, some program statutes require a specific level of cost sharing or matching.
(b) The grants officer shall ensure that the award of DoD appropriations through a grant or cooperative agreement for a research project meets the standards of 10 U.S.C. 2358, DoD's broad authority to carry out research, even if the research project is authorized under a statutory authority other than 10 U.S.C. 2358. The standards of 10 U.S.C. 2358 are that, in the opinion of the Head of the DoD Component or his or her designee, the projects must be:
(1) Necessary to the responsibilities of the DoD Component.
(2) Related to weapons systems and other military needs or of potential interest to the DoD Component.
(a) Once a grants officer judges, in accordance with §§ 22.205 and 22.210, that either a grant or cooperative agreement is the appropriate instrument, the grants officer shall distinguish between the two instruments as follows:
(1) Grants shall be used when the grants officer judges that substantial involvement is not expected between the Department of Defense and the recipient when carrying out the activity contemplated in the agreement.
(2) Cooperative agreements shall be used when the grants officer judges that substantial involvement is expected. The grants officer should document the nature of the substantial involvement that led to selection of a cooperative agreement. Under no circumstances are cooperative agreements to be used solely to obtain the stricter controls typical of a contract.
(b) In judging whether substantial involvement is expected, grants officers should recognize that “substantial involvement” is a relative, rather than an absolute, concept, and that it is primarily based on programmatic factors, rather than requirements for grant or cooperative agreement award or administration. For example, substantial involvement may include collaboration, participation, or intervention in the program or activity to be performed under the award.
Under 31 U.S.C. 6307, “the Director of the Office of Management and Budget may exempt an agency transaction or program” from the requirements of 31 U.S.C. chapter 63. Grants officers shall request such exemptions only in exceptional circumstances. Each request shall specify for which individual transaction or program the exemption is sought; the reasons for requesting an exemption; the anticipated consequences if the exemption is not granted; and the implications for other agency transactions and programs if the exemption is granted. The procedures for requesting exemptions shall be:
(a) In cases where 31 U.S.C. chapter 63 would require use of a contract and an exemption from that requirement is desired:
(1) The grants officer shall submit a request for exemption, through appropriate channels established by his or her DoD Component (see 32 CFR 21.115(b)(1)), to the Director of Defense Procurement (DDP).
(2) The DDP, after coordination with the Director of Defense Research and Engineering (DDR&E), shall transmit the request to OMB or notify the DoD Component that the request has been disapproved.
(b) In other cases, the DoD Component shall submit a request for the exemption through appropriate channels to the DDR&E. The DDR&E shall transmit the request to OMB or notify the DoD Component that the request has been disapproved.
(c) Where an exemption is granted, documentation of the approval shall be maintained in the award file.
This subpart establishes DoD policy and implements statutes related to the use of competitive procedures in the award of grants and cooperative agreements.
(a) It is DoD policy to maximize use of competition in the award of grants and cooperative agreements. This also conforms with:
(1) 31 U.S.C. 6301(3), which encourages the use of competition in awarding all grants and cooperative agreements.
(2) 10 U.S.C. 2374(a), which sets out Congressional policy that any new grant for research, development, test, or evaluation be awarded through merit-based selection procedures.
(b) Grants officers shall use merit-based, competitive procedures (as defined by § 22.315) to award grants and cooperative agreements:
(1) In every case where required by statute (e.g., 10 U.S.C. 2361, as implemented in § 22.310, for certain grants to institutions of higher education).
(2) To the maximum extent practicable in all cases where not required by statute.
(a)
(1)
(2)
(b)
(i) In the case of a new grant for research and development, there is a statute meeting the criteria in paragraph (c)(1) of this section;
(ii) In the case of a follow-on grant for research and development, or of a grant for the construction of research or other facilities, there is a statute meeting the criteria in paragraph (c)(2) of this section; and
(iii) The Secretary of Defense submits to Congress a written notice of intent to make the grant. The grant may not be awarded until 180 calendar days have elapsed after the date on which Congress received the notice of intent. Contracting activities must submit a draft notice of intent with supporting documentation through channels to the Deputy Director, Defense Research and Engineering.
(2) Because subsequently enacted statutes may, by their terms, impose different requirements than set out in paragraph (b)(1) of this section, grants officers shall consult legal counsel on a case-by-case basis, when grants for the performance of research and development or for the construction of research or other facilities are to be awarded to institutions of higher education by other than merit-based competitive procedures.
(c)
(1)
(i) Identifies the particular institution of higher education involved;
(ii) States that such provision of law modifies or supersedes the provisions of 10 U.S.C. 2361 (a requirement that applies only if the statute authorizing or requiring award by other than competitive procedures was enacted after September 30, 1989); and
(iii) States that the award to the institution of higher education involved is required by such provision of law to be made in contravention of the policy set forth in 10 U.S.C. 2374(a).
(2)
(i) Identifies the particular institution of higher education involved; and
(ii) States that such provision of law modifies or supersedes the provisions of 10 U.S.C. 2361 (a requirement that applies only if the statute authorizing or requiring award by other than competitive procedures was enacted after September 30, 1989).
(3)
(A) Identifies the particular entity involved;
(B) States that the award to that entity is required by such provision of law to be made in contravention of the policy set forth in 10 U.S.C. 2374(a).
(ii)
(A) Investigate, examine, or experiment upon any subject of science or art of significance to the Department of Defense or any Military Department; and
(B) Report on such matters to the Congress or any agency of the Federal Government.
Competitive procedures are methods that encourage participation in DoD programs by a broad base of the most highly qualified performers. These procedures are characterized by competition among as many eligible proposers as possible, with a published or widely disseminated notice. Competitive procedures include, as a minimum:
(a) Notice to prospective proposers. The notice may be a notice of funding availability or Broad Agency Announcement published in the
(1) Programmatic area(s) of interest, in which proposals or applications are sought.
(2) Eligibility criteria for potential recipients (see subpart D of this part).
(3) Criteria that will be used to select the applications or proposals that will be funded, and the method for conducting the evaluation.
(4) The type(s) of funding instruments (e.g., grants, cooperative agreements, other assistance instruments, or procurement contracts) that are anticipated to be awarded pursuant to the announcement.
(5) Instructions for preparation and submission of a proposal or application, including the time by which it must be submitted.
(b) At least two eligible, prospective proposers.
(c) Impartial review of the merits of applications or proposals received in response to the notice, using the evaluation method and selection criteria described in the notice. For research and development awards, in order to be considered as part of a competitive procedure, the two principal selection criteria, unless statute provides otherwise, must be the:
(1) Technical merits of the proposed research and development; and
(2) Potential relationship of the proposed research and development to Department of Defense missions.
Some programs may be competed for programmatic or policy reasons among specific classes of potential recipients. An example would be a program to enhance U.S. capabilities for academic research and research-coupled graduate education in defense-critical, science and engineering disciplines, a program that would be competed specifically among institutions of higher education. All such special competitions shall be consistent with program representations in the President's budget submission to Congress and with subsequent Congressional authorizations and appropriations for the programs.
Increasing the ability of HBCUs and MIs to participate in federally funded, university programs is an objective of Executive Order 12876 (3 CFR, 1993 Comp., p. 671) and 10 U.S.C. 2323. Grants officers shall include appropriate provisions in Broad Agency Announcements (BAAs) or other announcements for programs in which awards to institutions of higher education are anticipated, in order to promote participation of HBCUs and MIs in such programs. Also, whenever practicable, grants officers shall reserve appropriate programmatic areas for exclusive competition among HBCUs and MIs when preparing announcements for such programs.
The purpose of this subpart is to specify policies and procedures for grants officers’ determination of recipient qualifications prior to award.
(a)
(b)
The grants officer is responsible for determining a recipient's qualification prior to award. The grants officer's signature on the award document shall signify his or her determination that either:
(a) The potential recipient meets the standards in § 22.415 and is qualified to receive the grant or cooperative agreement; or
(b) An award is justified to a recipient that does not fully meet the standards, pursuant to § 22.405(b). In such cases, grants officers shall document in the award file the rationale for making an award to a recipient that does not fully meet the standards.
To be qualified, a potential recipient must:
(a) Have the management capability and adequate financial and technical resources, given those that would be made available through the grant or cooperative agreement, to execute the program of activities envisioned under the grant or cooperative agreement.
(b) Have a satisfactory record of executing such programs or activities (if a prior recipient of an award).
(c) Have a satisfactory record of integrity and business ethics.
(d) Be otherwise qualified and eligible to receive a grant or cooperative agreement under applicable laws and regulations (see § 22.420(c)).
(a) The appropriate method to be used and amount of effort to be expended in deciding the qualification of a potential recipient will vary. In deciding on the method and level of effort, the grants officer should consider factors such as:
(1) DoD's past experience with the recipient;
(2) Whether the recipient has previously received cost-type contracts, grants, or cooperative agreements from the Federal Government; and
(3) The amount of the prospective award and complexity of the project to be carried out under the award.
(b) There is no DoD-wide requirement to obtain a pre-award credit report, audit, or any other specific piece of information. On a case-by-case basis, the grants officer will decide whether there is a need to obtain any such information to assist in deciding whether the recipient meets the standards in § 22.415 (a), (b), and (c).
(1) Should the grants officer in a particular case decide that a pre-award credit report, audit, or survey is needed, he or she should consult first with the appropriate grants administration office (identified in § 22.710), and decide whether pre-existing surveys or audits of the recipient, such as those of the recipient's internal control systems under OMB Circular A-133
(2) If, after consulting with the grants administration office, the grants officer decides to obtain a credit report, audit, or other information, and the report or other information discloses that a potential recipient is delinquent on a debt to an agency of the United States Government, then:
(i) The grants officer shall take such information into account when determining whether the potential recipient is qualified with respect to the grant or cooperative agreement; and
(ii) If the grants officer decides to make the award to the recipient, unless there are compelling reasons to do otherwise, the grants officer shall delay the award of the grant or cooperative agreement until payment is made or satisfactory arrangements are made to repay the debt.
(c) In deciding whether a recipient is otherwise qualified and eligible in accordance with the standard in § 22.415(d), the grants officer shall ensure that the potential recipient:
(1) Is not identified on the Governmentwide “List of Parties Excluded from Federal Procurement and Nonprocurement Programs” as being debarred, suspended, or otherwise ineligible to receive the award. The grants officer shall check the list of such parties for:
(i) Potential recipients of prime awards, as described at 32 CFR 25.505(d);
(ii) A recipient's principals (e.g., officers, directors, or other key employees, as defined at 32 CFR 25.105); and
(iii) Potential recipients of subawards, where DoD Component approval of such principals or lower-tier recipients is required under the terms of the award (see 32 CFR 25.505(e)).
(2) Has provided all certifications and assurances required by Federal statute, Executive order, or codified regulation, unless they are to be addressed in award terms and conditions at the time of award (see § 22.510).
(3) Meets any eligibility criteria that may be specified in the statute authorizing the specific program under which the award is being made (see § 22.210(a)(2)).
(d) Grants officers shall obtain each recipient's Taxpayer Identification Number (TIN, which may be the Social Security Number for an individual and Employer Identification Number for a business or non-profit entity) and notify the recipient that the TIN is being obtained for purposes of collecting and reporting on any delinquent amounts that may arise out of the recipient's relationship with the Government. Obtaining the TIN and so notifying the recipient is a statutory requirement of 31 U.S.C. 7701, as amended by the Debt Collection Improvement Act of 1996 (section 31001(i)(1), Pub. L. 104-134).
The purpose of this subpart is to supplement other regulations that implement national policy requirements, to the extent that it is necessary to provide additional guidance to DoD grants officers. The other regulations that implement national policy requirements include:
(a) The other parts of the DoDGARs (32 CFR parts 32, 33, and 34) that implement the Governmentwide guidance in OMB Circulars A-102
(b) DoD regulations other than the DoDGARs.
(c) Other Federal agencies’ regulations.
(a)
(2)
(ii) Whenever possible, and to the extent consistent with statute and codified regulation, grants officers should identify the certifications that are required for the particular type of recipient and program, and consolidate them into a single certification provision that cites them by reference.
(A) Appendix A to this part lists the common certifications and cites their applicability. Because some certifications (e.g., the certification on lobbying in Appendix A to this part) are required by law to be submitted at the time of proposal, rather than at the time of award, Appendix A to this part includes language that may be used for incorporating common certifications by reference into a proposal.
(B) If a grants officer elects to have proposers incorporate certifications by reference into their proposals, he or she must do so in one of the two following ways. When required by statute or codified regulation, the solicitation must include the full text of the certifications that proposers are to provide by reference. In other cases, the grants officer may include language in the solicitation that informs the proposers where the full text may be found (e.g., in documents or computer network sites that are readily available to the public) and offers to provide it to proposers upon request.
(C) Grants officers may incorporate certifications by reference in award documents when doing so is consistent with statute and codified regulation. Note that a statute requires submission of the lobbying certification in Appendix A to this part at the time of proposal, and that 32 CFR 25.510(a) requires submission of certifications regarding debarment and suspension at the time of proposal. The provision that a grants officer would use to incorporate certifications in award documents, when consistent with statute and codified regulation, would be similar to the provision in Appendix A to this part, except that it would be modified to state that the recipient is providing the required certifications by signing the award document or by accepting funds under the award.
(b)
An annual appropriations act can include general provisions stating national policy requirements that apply to the use of funds (e.g., obligation
(a)
(b)
(1)
(2)
(c)
(d)
(2)
(3)
(e)
(1) Not award any grant or cooperative agreement to an institution of higher education that has been identified pursuant to the procedures of 32
(2) [Reserved].
(3) Not consent to any subaward of DoD funds to such an organization, under a grant or cooperative agreement to any recipient, if such subaward requires the grants officer's consent.
(4) Include the clause in paragraph (f) of this section in each grant or cooperative agreement with an institution of higher education. Note that this requirement does not flow down (i.e., recipients are not required to include the clause in subawards).
(5) If an institution of higher education refuses to accept the clause in paragraph (f) of this section:
(i) Determine that the institution is not qualified with respect to the award. The grants officer may award to an alternative recipient.
(ii) Transmit the name of the institution, through appropriate channels, to the Director for Accession Policy, Office of the Assistant Secretary of Defense for Force Management Policy, OASD(FMP), 4000 Defense Pentagon, Washington, DC 20301-4000. This will allow OASD(FMP) to decide whether to initiate an evaluation of the institution under 32 CFR part 216, to determine whether it is an institution that has a policy or practice described in paragraph (c) of this section.
(f)
Grants officers shall include appropriate award terms or conditions, if a recipient's activities under an award will be subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3500, et seq.):
(a) Generally, the Act only applies to Federal agencies—it requires agencies to obtain clearance from the Office of Management and Budget before collecting information using forms, schedules, questionnaires, or other methods calling either for answers to:
(1) Identical questions from ten or more persons other than agencies, instrumentalities, or employees of the United States.
(2) Questions from agencies, instrumentalities, or employees of the United States which are to be used for statistical compilations of general public interest.
(b) The Act applies to similar collections of information by recipients of grants or cooperative agreements only when:
(1) A recipient collects information at the specific request of the awarding Federal agency; or
(2) The terms and conditions of the award require specific approval by the agency of the information collection or the collection procedures.
(a)
(1) The metric system is the preferred measurement system for U.S. trade and commerce.
(2) The metric system of measurement will be used, to the extent economically feasible, in federal agencies’ procurements, grants, and other business-related activities.
(3) Metric implementation shall not be required to the extent that such use is likely to cause significant inefficiencies or loss of markets to United States firms.
(b)
This subpart sets forth grants officers’ responsibilities relating to the award document and other actions at the time of award.
At the time of award, the grants officer is responsible for ensuring that:
(a) The award instrument contains the appropriate terms and conditions, in accordance with § 22.610.
(b) Information about the award is provided to the office responsible for preparing reports for the Defense Assistance Award Data System (DAADS), to ensure timely and accurate reporting of data required by 31 U.S.C. 6101-6106 (see 32 CFR part 21, subpart C).
(c)(1) In addition to the copy of the award document provided to the recipient, a copy is forwarded to the office designated to administer the grant or cooperative agreement, and another copy is forwarded to the finance and accounting office designated to make the payments to the recipient.
(2) For any award subject to the electronic funds transfer (EFT) requirement described in § 22.810(b)(2), the grants officer shall include a prominent notification of that fact on the first page of the copies forwarded to the recipient, the administrative grants officer, and the finance and accounting office. On the first page of the copy forwarded to the recipient, the grants officer also shall include a prominent notification that the recipient, to be paid, must submit a Payment Information Form (Standard Form SF-3881
(a) Each award document shall include terms and conditions that:
(1) Address programmatic requirements (e.g., a statement of work or other appropriate terms or conditions that describe the specific goals and objectives of the project). The grants officer shall develop such terms and conditions in coordination with program officials.
(2) Provide for the recipient's compliance with:
(i) Pertinent Federal statutes or Executive orders that apply broadly to Federal or DoD assistance awards.
(ii) Any program-specific requirements that are prescribed in the program statute (see § 22.210(a)(2)), or appropriation-specific requirements that are stated in the pertinent Congressional appropriations (see § 22.515).
(iii) Pertinent portions of the DoDGARs or other Federal regulations, including those that implement the Federal statutes or Executive orders described in paragraphs (a)(2) (i) and (ii) of this section.
(3) Specify the grants officer's instructions for post-award administration, for any matter where the post-award administration provisions in 32 CFR part 32, 33, or 34 give the grants officer options for handling the matter. For example, under 32 CFR 32.24(b), the grants officers must choose among possible methods for the recipient's disposition of program income. It is essential that the grants officer identify the option selected in each case, to provide clear instructions to the recipient and the grants officer responsible for post-award administration of the grant or cooperative agreement.
(b) To assist grants officers:
(1) Appendix B to this part provides model clauses to implement certain Federal statutes, Executive orders, and regulations (see paragraph (a)(2)(i) of this section) that frequently apply to DoD grants and cooperative agreements. Grants officers may incorporate the model clauses into award terms and conditions, as appropriate. It should be noted that Appendix B to this part is an aid, and not an exhaustive list of all requirements that apply in all cases. Depending on the circumstances of a given award, other statutes, Executive orders, or codified regulations also may apply (e.g., Appendix B to this part does not list program-specific requirements described in paragraph (a)(2)(ii) of this section).
(2) Appendix C to this part is a list of administrative requirements that apply to awards to different types of recipients. It also identifies post-award administration issues that the grants officer must address in the award terms and conditions.
This subpart prescribes policies and procedures for administering grants and cooperative agreements. It does so in conjunction with 32 CFR parts 32, 33, and 34, which prescribe administrative requirements for particular types of recipients.
(a) DoD policy is to have each recipient deal with a single office, to the maximum extent practicable, for post-award administration of its grants and cooperative agreements. This reduces burdens on recipients that can result when multiple DoD offices separately administer grants and cooperative agreements they award to a given recipient. It also minimizes unnecessary duplication of field administration services.
(b) To further reduce burdens on recipients, the office responsible for performing field administration services for grants and cooperative agreements to a particular recipient shall be, to the maximum extent practicable, the same office that is assigned responsibility for performing field administration services for contracts awarded to that recipient.
(c) Contracting activities and grants officers therefore shall use cross-servicing arrangements whenever practicable and, to the maximum extent possible, delegate responsibility for post-award administration to the cognizant grants administration offices identified in § 22.710.
In accordance with the policy stated in § 22.705(b), the DoD offices (referred to in this part as “grants administration offices”) that are assigned responsibility for performing field administration services for grants and cooperative agreements are (see the “DoD Directory of Contract Administration Services Components,” DLAH 4105.4,
(a) Regional offices of the Office of Naval Research, for grants and cooperative agreements with:
(1) Institutions of higher education and laboratories affiliated with such institutions, to the extent that such organizations are subject to the university cost principles in OMB Circular A-21.
(2) Nonprofit organizations that are subject to the cost principles in OMB Circular A-122,
(b) Field offices of the Defense Contract Management Command, for grants and cooperative agreements with all other entities, including:
(1) For-profit organizations.
(2) Nonprofit organizations identified in Attachment C of OMB Circular A-122 that are subject to for-profit cost principles in 48 CFR part 31.
(3) Nonprofit organizations subject to the cost principles in OMB Circular A-122, if their principal business with the
(4) State and local governments.
The primary responsibility of cognizant grants administration offices shall be to advise and assist grants officers and recipients prior to and after award, and to help ensure that recipients fulfill all requirements in law, regulation, and award terms and conditions. Specific functions include:
(a) Conducting reviews and coordinating reviews, audits, and audit requests. This includes:
(1) Advising grants officers on the extent to which audits by independent auditors (i.e., public accountants or Federal auditors) have provided the information needed to carry out their responsibilities. If a recipient has had an independent audit in accordance with OMB Circular A-133, and the audit report disclosed no material weaknesses in the recipient's financial management and other management and control systems, additional preaward or closeout audits usually will not be needed (see §§ 22.420(b) and 22.825(b)).
(2) Performing pre-award surveys, when requested by a grants officer, after providing advice described in paragraph (a)(1) of this section.
(3) Reviewing recipients’ systems and compliance with Federal requirements, in coordination with any reviews and compliance audits performed by independent auditors under OMB Circular A-133, or in accordance with the terms and conditions of the award. This includes:
(i) Reviewing recipients’ financial management, property management, and purchasing systems, to determine the adequacy of such systems.
(ii) Determining that recipients have drug-free workplace programs, as required under 32 CFR part 25.
(4) Notifying the Office of the Assistant Inspector General for Policy and Oversight (OAIG(P&O)), 400 Army-Navy Drive, Arlington, VA 22202, if either of the following is not available within a reasonable period of time (e.g., six months) after the date on which a recipient of DoD grants and agreements was to have submitted its audit report under OMB Circular A-133 to the OAIG(P&O):
(i) The recipient's audit report under OMB Circular A-133.
(ii) The OAIG(P&O)'s desk review of the recipient's audit report, or a letter stating that the OAIG(P&O) has decided not to conduct a desk review.
(b) Performing property administration services for Government-owned property, and for any property acquired by a recipient, with respect to which the recipient has further obligations to the Government.
(c) Ensuring timely submission of required reports.
(d) Executing administrative closeout procedures.
(e) Establishing recipients’ indirect cost rates, where the Department of Defense is the cognizant or oversight Federal agency with the responsibility for doing so.
(f) Performing other administration functions (e.g., receiving recipients’ payment requests and transmitting approved payment authorizations to payment offices) as delegated by applicable cross-servicing agreements or letters of delegation.
This subpart sets forth grants officers’ and DoD Components’ responsibilities for post-award administration, by providing DoD-specific requirements on payments; debt collection; claims, disputes and appeals; and closeout audits.
Grants officers responsible for post-award administration of grants and cooperative agreements shall administer such awards in accordance with the following parts of the DoDGARs, as supplemented by this subpart:
(a)
(1) For awards to domestic institutions of higher education and other nonprofit organizations, requirements are specified in 32 CFR part 32, which is the DoD implementation of OMB Circular A-110.
(2) For awards to State and local governments, requirements are specified in 32 CFR part 33, which is the DoD codification of the Governmentwide common rule to implement OMB Circular A-102.
(3) For awards to domestic for-profit organizations, requirements are specified in 32 CFR part 34, which is modeled on the requirements in OMB Circular A-110.
(b)
(a)
(b)
(2) It also is a Governmentwide requirement to use electronic funds transfer (EFT) in the payment of any grant for which an application or proposal was submitted or renewed on or after July 26, 1996, unless the recipient has obtained a waiver by submitting to the head of the pertinent Federal agency a certification that it has neither an account with a financial institution nor an authorized payment agent. This requirement is in 31 U.S.C. 3332, as amended by the Debt Collection Improvement Act of 1996 (section 31001(x)(1)(A), Pub. L. 104-134), and as implemented by Department of Treasury regulations at 31 CFR part 208. As a matter of DoD policy, this requirement applies to cooperative agreements, as well as grants. Within the Department of Defense, the Defense Finance and Accounting Service implements this EFT requirement, and grants officers have collateral responsibilities at the time of award, as described in § 22.605(c), and in postaward administration, as described in § 22.810(c)(3)(iv).
(3) Expanding on these Governmentwide policies, DoD policy is for DoD Components to use electronic commerce, to the maximum extent practicable, in the portions of the payment process for grants and cooperative agreements for which grants officers are responsible. In cases where recipients submit each payment request to the grants officer, this includes using electronic methods to receive recipients’ requests for payment and to transmit authorizations for payment to the DoD payment office. Using electronic methods will improve timeliness and accuracy of payments and reduce administrative burdens associated with paper-based payments.
(c)
(1) Handling the recipient's requests for payments in accordance with DoD implementation of Governmentwide guidance (see 32 CFR 32.22, 33.21, or 34.12, as applicable).
(2) Reviewing each payment request to ensure that:
(i) The request complies with the award terms.
(ii) Available funds are adequate to pay the request.
(iii) The recipient will not have excess cash on hand, based on expenditure patterns.
(3) Maintaining a close working relationship with the personnel in the finance and accounting office responsible for making the payments. A good working relationship is necessary, to ensure timely and accurate handling of financial transactions for grants and cooperative agreements. Administrative grants officers:
(i) Should be generally familiar with policies and procedures for disbursing
\10\ Copies may be obtained, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. Authorized users may also obtain copies from the Defense Technical Information Center, 8725 John J. Kingman Rd., Suite 0944, Fort Belvoir, VA 22060-6218.
(ii) Shall forward authorizations to the designated payment office expeditiously, so that payments may be made in accordance with the timely payment guidelines in Chapter 19 of Volume 10 of the FMR. Unless alternative arrangements are made with the payment office, authorizations should be forwarded to the payment office at least 3 working days before the end of the period specified in the FMR. The period specified in the FMR is:
(A) No more than seven calendar days after receipt of the recipient's request by the administrative grants officer, whenever electronic commerce is used (i.e., EDI to request and authorize payments and electronic funds transfer (EFT) to make payments).
(B) No more than thirty calendar days after receipt of the recipient's request by the administrative grants officer, when it is not possible to use electronic commerce and paper transactions are used.
(C) No more than seven calendar days after each date specified, when payments are authorized in advance based on a predetermined payment schedule, provided that the payment schedule was received in the disbursing office at least 30 calendar days in advance of the date of the scheduled payment.
(iii) Shall ensure that the recipients’ Taxpayer Identification Number (TIN) is included with each payment authorization forwarded to the payment office. This is a statutory requirement of 31 U.S.C. 3325, as amended by the Debt Collection Improvement Act of 1996 (section 31001(y), Pub. L. 104-134).
(iv) For each award that is required to be paid by EFT (see § 22.605(c) and (§ 22.810(b)(2)), shall prominently indicate that fact in the payment authorization.
(a)
(1) Processing recipient claims and disputes.
(2) Deciding appeals of grants officers’ decisions.
(b)
(i) Be submitted in writing to the grants officer for decision;
(ii) Specify the nature and basis for the relief requested; and
(iii) Include all data that supports the claim.
(2)
(c)
(2)
(ii) If a grants officer and a recipient are not able to resolve an issue through unassisted negotiations, the grants officer shall encourage the recipient to enter into ADR procedures. ADR procedures may be used prior to submission of a recipient's claim or at any time prior to the Grant Appeal Authority's decision on a recipient's appeal (see paragraph (e)(3)(iii) of this section).
(d)
(i) Prepare a written decision, which shall include the reasons for the decision; shall identify all relevant data on which the decision is based; shall identify the cognizant Grant Appeal Authority and give his or her mailing address; and shall be included in the award file; or
(ii) Notify the recipient of a specific date when he or she will render a written decision, if more time is required to do so. The notice shall inform the recipient of the reason for delaying the decision (e.g., the complexity of the claim, a need for more time to complete ADR procedures, or a need for the recipient to provide additional information to support the claim).
(2) The decision of the grants officer shall be final, unless the recipient decides to appeal. If a recipient decides to appeal a grants officer's decision, the grants officer shall encourage the recipient to enter into ADR procedures, as described in paragraph (c) of this section.
(e)
(i) An individual at a grade level in the Senior Executive Service, if civilian, or at the rank of Flag or General Officer, if military; or
(ii) A board chaired by such an individual.
(2)
(3)
(ii)
(iii)
(f)
(g)
(a)
(b)
(c)
(1) Describes the debt, including the amount, the name and address of the official who determined the debt (e.g., the grants officer under § 22.815(d)), and a copy of that determination.
(2) Informs the recipient that:
(i) Within 30 calendar days of the grants officer's decision, the recipient shall either pay the amount owed to the grants officer (at the address that was provided pursuant to paragraph (c)(1) of this section) or inform the grants officer of the recipient's intention to appeal the decision.
(ii) If the recipient elects not to appeal, any amounts not paid within 30 calendar days of the grants officer's decision will be a delinquent debt.
(iii) If the recipient elects to appeal the grants officer's decision the recipient has 90 calendar days, or 150 calendar days if ADR procedures are used, after receipt of the grants officer's decision to file the appeal, in accordance with § 22.815(e)(3)(i).
(iv) The debt will bear interest, and may include penalties and other administrative costs, in accordance with the debt collection provisions in Chapters 29, 31, and 32 of Volume 5 and Chapters 18 and 19 of Volume 10 of the DoD Financial Management Regulation (DoD 7000.14-R). No interest will be charged if the recipient pays the amount owed within 30 calendar days of the grants officer's decision. Interest will be charged for the entire period from the date the decision was mailed, if the recipient pays the amount owed after 30 calendar days.
(d)
(1) If the recipient pays the amount owed within 30 calendar days to the grants officer, the grants officer shall forward the payment to the responsible payment office.
(2) If within 30 calendar days the recipient elects to appeal the grants officer's decision, further action to collect the debt is deferred, pending the outcome of the appeal. If the final result of the appeal is a determination that the recipient owes a debt to the Federal Government, the grants officer shall send a demand letter to the recipient and transfer responsibility for further debt collection to a payment office, as described in paragraph (d)(3) of this section.
(3) If within 30 calendar days the recipient has neither paid the amount due nor provided notice of intent to file an appeal of the grants officer's decision, the grants officer shall send a demand letter to the recipient, with a copy to the payment office that will be responsible for collecting the delinquent debt. The payment office will be responsible for any further debt collection activity, including issuance of additional demand letters (see Chapter 19 of volume 10 of the DoD Financial Management Regulation, DoD 7000.14-R). The grants officer's demand letter shall:
(i) Describe the debt, including the amount, the name and address of the official that determined the debt (e.g., the grants officer under § 22.815(d)), and a copy of that determination.
(ii) Notify the recipient that the debt is a delinquent debt that bears interest from the date of the grants officer's decision, and that penalties and other administrative costs may be assessed.
(iii) Identify the payment office that is responsible for the collection of the debt, and notify the recipient that it may submit a proposal to that payment office to defer collection, if immediate payment is not practicable.
(e)
(a)
(1) 32 CFR 32.71 and 32.72, for awards to institutions of higher education and other nonprofit organizations.
(2) 32 CFR 33.50 and 33.51, for awards to State and local governments.
(3) 32 CFR 34.61 and 34.62, for awards to for-profit entities.
(b)
(1) The amount of the award.
(2) DoD's past experience with the recipient, including the presence or lack of findings of material deficiencies in recent:
(i) Audits of individual awards; or
(ii) Systems-wide financial audits and audits of the compliance of the recipient's systems with Federal requirements, under OMB Circular A-133, where that Circular is applicable. (See § 22.715(a)(1)).
41 U.S.C. 701
See also Office of Management and Budget notice published at 55 FR 21697, May 25, 1990, and 60 FR 33036, June 26, 1995.
(a) Executive Order (E.O.) 12549 provides that, to the extent permitted by law, Executive departments and agencies shall participate in a governmentwide system for nonprocurement debarment and suspension. A person who is debarred or suspended shall be excluded from Federal financial and nonfinancial assistance and benefits under Federal programs and activities. Debarment or suspension of a participant in a program by one agency shall have governmentwide effect.
(b) These regulations implement section 3 of E.O. 12549 and the guidelines promulgated by the Office of Management and Budget under section 6 of the E.O. by:
(1) Prescribing the programs and activities that are covered by the governmentwide system;
(2) Prescribing the governmentwide criteria and governmentwide minimum due process procedures that each agency shall use;
(3) Providing for the listing of debarred and suspended participants, participants declared ineligible (see
(4) Setting forth the consequences of a debarment, suspension, determination of ineligibility, or voluntary exclusion; and
(5) Offering such other guidance as necessary for the effective implementation and administration of the governmentwide system.
(c) These regulations also implement Executive Order 12689 (3 CFR, 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec. 2455, 108 Stat. 3327) by—
(1) Providing for the inclusion in the
(2) Setting forth the consequences of a debarment, suspension, determination of ineligibility, or voluntary exclusion.
(d) Although these regulations cover the listing of ineligible participants and the effect of such listing, they do not prescribe policies and procedures governing declarations of ineligibility.
The following definitions apply to this part:
(a) The meaning of
(b) [Reserved]
(a) The agency head, or
(b) An official designated by the agency head.
(c) DoD Components’ debarring officials for nonprocurement transactions are the same officials identified in 48 CFR part 209, subpart 209.4, as debarring officials for procurement contracts.
(a) Principal investigators.
(b) Reserved.
(a) The agency head, or
(b) An official designated by the agency head.
(c) DoD Components’ suspending officials for nonprocurement transactions are the same officials identified in 48
(a) These regulations apply to all persons who have participated, are currently participating or may reasonably be expected to participate in transactions under Federal nonprocurement programs. For purposes of these regulations such transactions will be referred to as “covered transactions.”
(1)
(i)
(ii)
(A) Any transaction between a participant and a person other than a procurement contract for goods or services, regardless of type, under a primary covered transaction.
(B) Any procurement contract for goods or services between a participant and a person, regardless of type, expected to equal or exceed the Federal procurement small purchase threshold fixed at 10 U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary covered transaction.
(C) Any procurement contract for goods or services between a participant and a person under a covered transaction, regardless of amount, under which that person will have a critical influence on or substantive control over that covered transaction. Such persons are:
(
(
(2)
(i) Statutory entitlements or mandatory awards (but not subtier awards thereunder which are not themselves mandatory), including deposited funds insured by the Federal Government;
(ii) Direct awards to foreign governments or public international organizations, or transactions with foreign governments or foreign governmental entities, public international organizations, foreign government owned (in whole or in part) or controlled entities, entities consisting wholly or partially of foreign governments or foreign governmental entities;
(iii) Benefits to an individual as a personal entitlement without regard to the individual's present responsibility (but benefits received in an individual's business capacity are not excepted);
(iv) Federal employment;
(v) Transactions pursuant to national or agency-recognized emergencies or disasters;
(vi) Incidental benefits derived from ordinary governmental operations; and
(vii) Other transactions where the application of these regulations would be prohibited by law.
(b)
(c)
(a) In order to protect the public interest, it is the policy of the Federal Government to conduct business only with responsible persons. Debarment and suspension are discretionary actions that, taken in accordance with Executive Order 12549 and these regulations, are appropriate means to implement this policy.
(b) Debarment and suspension are serious actions which shall be used only in the public interest and for the Federal Government's protection and not for purposes of punishment. Agencies may impose debarment or suspension for the causes and in accordance with the procedures set forth in these regulations.
(c) When more than one agency has an interest in the proposed debarment or suspension of a person, consideration shall be given to designating one agency as the lead agency for making the decision. Agencies are encouraged to establish methods and procedures for coordinating their debarment or suspension actions.
(a)
(b)
(c)
(1) Statutory entitlements or mandatory awards (but not subtier awards thereunder which are not themselves mandatory), including deposited funds insured by the Federal Government;
(2) Direct awards to foreign governments or public international organizations, or transactions with foreign governments or foreign governmental entities, public international organizations, foreign government owned (in whole or in part) or controlled entities, and entities consisting wholly or partially of foreign governments or foreign governmental entities;
(3) Benefits to an individual as a personal entitlement without regard to the individual's present responsibility
(4) Federal employment;
(5) Transactions pursuant to national or agency-recognized emergencies or disasters;
(6) Incidental benefits derived from ordinary governmental operations; and
(7) Other transactions where the application of these regulations would be prohibited by law.
Persons who are ineligible, as defined in § 25.105(i), are excluded in accordance with the applicable statutory, executive order, or regulatory authority.
Persons who accept voluntary exclusions under § 25.315 are excluded in accordance with the terms of their settlements. Military Departments and Defense Agencies shall, and participants may, contact the original action agency to ascertain the extent of the exclusion.
Military Departments & Defense Agencies may grant an exception permitting a debarred, suspended, or voluntarily excluded person, or a person proposed for debarment under 48 CFR part 9, subpart 9.4, to participate in a particular covered transaction upon a written determination by the agency head or an authorized designee stating the reason(s) for deviating from the Presidential policy established by Executive Order 12549 and § 25.200. However, in accordance with the President's stated intention in the Executive Order, exceptions shall be granted only infrequently. Exceptions shall be reported in accordance with § 25.505(a).
(a) Notwithstanding the debarment, suspension, proposed debarment under 48 CFR part 9, subpart 9.4, determination of ineligibility, or voluntary exclusion of any person by an agency, agencies and participants may continue covered transactions in existence at the time the person was debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A decision as to the type of termination action, if any, to be taken should be made only after thorough review to ensure the propriety of the proposed action.
(b) Agencies and participants shall not renew or extend covered transactions (other than no-cost time extensions) with any person who is debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 9.4, ineligible or voluntary excluded, except as provided in § 25.215.
(a) Except as permitted under § 25.215 or § 25.220, a participant shall not knowingly do business under a covered transaction with a person who is—
(1) Debarred or suspended;
(2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or
(3) Ineligible for or voluntarily excluded from the covered transaction.
(b) Violation of the restriction under paragraph (a) of this section may result in disallowance of costs, annulment or termination of award, issuance of a stop work order, debarment or suspension, or other remedies as appropriate.
(c) A participant may rely upon the certification of a prospective participant in a lower tier covered transaction that it and its principals are not debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 9.4, ineligible, or voluntarily excluded from the covered transaction (See Appendix B of these regulations), unless it knows that the certification is erroneous. An agency has the burden of proof that a participant did knowingly
The debarring official may debar a person for any of the causes in § 25.305, using procedures established in §§ 25.310 through 25.314. The existence of a cause for debarment, however, does not necessarily require that the person be debarred; the seriousness of the person's acts or omissions and any mitigating factors shall be considered in making any debarment decision.
Debarment may be imposed in accordance with the provisions of §§ 25.300 through 25.314 for:
(a) Conviction of or civil judgment for:
(1) Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public or private agreement or transaction;
(2) Violation of Federal or State antitrust statutes, including those proscribing price fixing between competitors, allocation of customers between competitors, and bid rigging;
(3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, making false claims, or obstruction of justice; or
(4) Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a person.
(b) Violation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program, such as:
(1) A willful failure to perform in accordance with the terms of one or more public agreements or transactions;
(2) A history of failure to perform or of unsatisfactory performance of one or more public agreements or transactions; or
(3) A willful violation of a statutory or regulatory provision or requirement applicable to a public agreement or transaction.
(c) Any of the following causes:
(1) A nonprocurement debarment by any Federal agency taken before October 1, 1988, the effective date of these regulations, or a procurement debarment by any Federal agency taken pursuant to 48 CFR subpart 9.4;
(2) Knowingly doing business with a debarred, suspended, ineligible, or voluntarily excluded person, in connection with a covered transaction, except as permitted in § 25.215 or § 25.220;
(3) Failure to pay a single substantial debt, or a number of outstanding debts (including disallowed costs and overpayments, but not including sums owed the Federal Government under the Internal Revenue Code) owed to any Federal agency or instrumentality, provided the debt is uncontested by the debtor or, if contested, provided that the debtor's legal and administrative remedies have been exhausted;
(4) Violation of a material provision of a voluntary exclusion agreement entered into under § 25.315 or of any settlement of a debarment or suspension action; or
(5) Violation of any requirement of subpart F of this part, relating to providing a drug-free workplace, as set forth in § 25.615 of this part.
(d) Any other cause of so serious or compelling a nature that it affects the present responsibility of a person.
Military Departments and Defense Agencies shall process debarment actions as informally as practicable, consistent with the principles of fundamental fairness, using the procedures in §§ 25.311 through 25.314.
Information concerning the existence of a cause for debarment from any source shall be promptly reported, investigated, and referred, when appropriate, to the debarring official for consideration. After consideration, the debarring official may issue a notice of proposed debarment.
A debarment proceeding shall be initiated by notice to the respondent advising:
(a) That debarment is being considered;
(b) Of the reasons for the proposed debarment in terms sufficient to put the respondent on notice of the conduct or transaction(s) upon which it is based;
(c) Of the cause(s) relied upon under § 25.305 for proposing debarment;
(d) Of the provisions of §§ 25.311 through 25.314, and any other Military Departments and Defense Agencies procedures, if applicable, governing debarment decisionmaking; and
(e) Of the potential effect of a debarment.
(a)
(b)
(2) A transcribed record of any additional proceedings shall be made available at cost to the respondent, upon request, unless the respondent and the agency, by mutual agreement, waive the requirement for a transcript.
(a)
(b)
(2) The debarring official may refer disputed material facts to another official for findings of fact. The debarring official may reject any such findings, in whole or in part, only after specifically determining them to be arbitrary and capricious or clearly erroneous.
(3) The debarring official's decision shall be made after the conclusion of the proceedings with respect to disputed facts.
(c) (1)
(2)
(d)
(i) Referring to the notice of proposed debarment;
(ii) Specifying the reasons for debarment;
(iii) Stating the period of debarment, including effective dates; and
(iv) Advising that the debarment is effective for covered transactions throughout the executive branch of the Federal Government unless an agency head or an authorized designee makes the determination referred to in § 25.215.
(2) If the debarring official decides not to impose debarment, the respondent shall be given prompt notice of that decision. A decision not to impose debarment shall be without prejudice to a subsequent imposition of debarment by any other agency.
(a) When in the best interest of the Government, Military Departments and Defense Agencies may, at any time, settle a debarment or suspension action.
(b) If a participant and the agency agree to a voluntary exclusion of the participant, such voluntary exclusion shall be entered on the Nonprocurement List (see subpart E).
(a) Debarment shall be for a period commensurate with the seriousness of the cause(s). If a suspension precedes a debarment, the suspension period shall be considered in determining the debarment period.
(1) Debarment for causes other than those related to a violation of the requirements of subpart F of this part generally should not exceed three years. Where circumstances warrant, a longer period of debarment may be imposed.
(2) In the case of a debarment for a violation of the requirements of subpart F of this part (
(b) The debarring official may extend an existing debarment for an additional period, if that official determines that an extension is necessary to protect the public interest. However, a debarment may not be extended solely on the basis of the facts and circumstances upon which the initial debarment action was based. If debarment for an additional period is determined to be necessary, the procedures of §§ 25.311 through 25.314 shall be followed to extend the debarment.
(c) The respondent may request the debarring official to reverse the debarment decision or to reduce the period or scope of debarment. Such a request shall be in writing and supported by documentation. The debarring official may grant such a request for reasons including, but not limited to:
(1) Newly discovered material evidence;
(2) Reversal of the conviction or civil judgment upon which the debarment was based;
(3) Bona fide change in ownership or management;
(4) Elimination of other causes for which the debarment was imposed; or
(5) Other reasons the debarring official deems appropriate.
(a)
(2) The debarment action may include any affiliate of the participant that is specifically named and given notice of the proposed debarment and an opportunity to respond (see §§ 25.311 through 25.314).
(b)
(1)
(2)
(3)
(a) The suspending official may suspend a person for any of the causes in § 25.405 using procedures established in §§ 25.410 through 25.413.
(b) Suspension is a serious action to be imposed only when:
(1) There exists adequate evidence of one or more of the causes set out in § 25.405, and
(2) Immediate action is necessary to protect the public interest.
(c) In assessing the adequacy of the evidence, the agency should consider how much information is available, how credible it is given the circumstances, whether or not important allegations are corroborated, and what inferences can reasonably be drawn as a result. This assessment should include an examination of basic documents such as grants, cooperative agreements, loan authorizations, and contracts.
(a) Suspension may be imposed in accordance with the provisions of §§ 25.400 through 25.413 upon adequate evidence:
(1) To suspect the commission of an offense listed in § 25.305(a); or
(2) That a cause for debarment under § 25.305 may exist.
(b) Indictment shall constitute adequate evidence for purposes of suspension actions.
(a)
(b)
When a respondent is suspended, notice shall immediately be given:
(a) That suspension has been imposed;
(b) That the suspension is based on an indictment, conviction, or other adequate evidence that the respondent has committed irregularities seriously reflecting on the propriety of further
(c) Describing any such irregularities in terms sufficient to put the respondent on notice without disclosing the Federal Government's evidence;
(d) Of the cause(s) relied upon under § 25.405 for imposing suspension;
(e) That the suspension is for a temporary period pending the completion of an investigation or ensuing legal, debarment, or Program Fraud Civil Remedies Act proceedings;
(f) Of the provisions of §§ 25.411 through 25.413 and any other Military Departments and Defense Agencies procedures, if applicable, governing suspension decisionmaking; and
(g) Of the effect of the suspension.
(a)
(b)
(i) The action is based on an indictment, conviction or civil judgment, or
(ii) A determination is made, on the basis of Department of Justice advice, that the substantial interests of the Federal Government in pending or contemplated legal proceedings based on the same facts as the suspension would be prejudiced.
(2) A transcribed record of any additional proceedings shall be prepared and made available at cost to the respondent, upon request, unless the respondent and the agency, by mutual agreement, waive the requirement for a transcript.
The suspending official may modify or terminate the suspension (for example, see § 25.320(c) for reasons for reducing the period or scope of debarment) or may leave it in force. However, a decision to modify or terminate the suspension shall be without prejudice to the subsequent imposition of suspension by any other agency or debarment by any agency. The decision shall be rendered in accordance with the following provisions:
(a)
(b)
(2) The suspending official may refer matters involving disputed material facts to another official for findings of fact. The suspending official may reject any such findings, in whole or in part, only after specifically determining them to be arbitrary or capricious or clearly erroneous.
(c)
(a) Suspension shall be for a temporary period pending the completion of an investigation or ensuing legal, debarment, or Program Fraud Civil Remedies Act proceedings, unless terminated sooner by the suspending official or as provided in paragraph (b) of this section.
(b) If legal or administrative proceedings are not initiated within 12 months after the date of the suspension notice, the suspension shall be terminated unless an Assistant Attorney General or United States Attorney requests its extension in writing, in which case it may be extended for an additional six months. In no event may a suspension extend beyond 18 months, unless such proceedings have been initiated within that period.
(c) The suspending official shall notify the Department of Justice of an impending termination of a suspension, at least 30 days before the 12-month period expires, to give that Department an opportunity to request an extension.
The scope of a suspension is the same as the scope of a debarment (see § 25.325), except that the procedures of §§ 25.410 through 25.413 shall be used in imposing a suspension.
(a) In accordance with the OMB guidelines, GSA shall compile, maintain, and distribute a list of all persons who have been debarred, suspended, or voluntarily excluded by agencies under Executive Order 12549 and these regulations, and those who have been determined to be ineligible.
(b) At a minimum, this list shall indicate:
(1) The names and addresses of all debarred, suspended, ineligible, and voluntarily excluded persons, in alphabetical order, with cross-references when more than one name is involved in a single action;
(2) The type of action;
(3) The cause for the action;
(4) The scope of the action;
(5) Any termination date for each listing; and
(6) The agency and name and telephone number of the agency point of contact for the action.
(a) The agency shall provide GSA with current information concerning debarments, suspension, determinations of ineligibility, and voluntary exclusions it has taken. Until February 18, 1989, the agency shall also provide GSA and OMB with information concerning all transactions in which Military Departments and Defense Agencies has granted exceptions under § 25.215 permitting participation by debarred, suspended, or voluntarily excluded persons.
(b) Unless an alternative schedule is agreed to by GSA, the agency shall advise GSA of the information set forth in § 25.500(b) and of the exceptions granted under § 25.215 within five working days after taking such actions.
(c) The agency shall direct inquiries concerning listed persons to the agency that took the action.
(d) Agency officials shall check the Nonprocurement List before entering covered transactions to determine whether a participant in a primary transaction is debarred, suspended, ineligible, or voluntarily excluded (Tel. #).
(e) Agency officials shall check the Nonprocurement List before approving principals or lower tier participants where agency approval of the principal or lower tier participant is required under the terms of the transaction, to determine whether such principals or participants are debarred, suspended, ineligible, or voluntarily excluded.
(a)
(b)
(2) A participant may rely upon the certification of a prospective participant in a lower tier covered transaction that it and its principals are not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction by any Federal agency, unless it knows that the certification is erroneous. Participants may decide the method and frequency by which they determine the eligiblity of their principals. In addition, a participant may, but is not required to, check the Nonprocurement List for its principals and for participants (Tel. #).
(c)
(a) The purpose of this subpart is to carry out the Drug-Free Workplace Act of 1988 by requiring that—
(1) A grantee, other than an individual, shall certify to the agency that it will provide a drug-free workplace;
(2) A grantee who is an individual shall certify to the agency that, as a condition of the grant, he or she will not engage in the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance in conducting any activity with the grant.
(b) Requirements implementing the Drug-Free Workplace Act of 1988 for contractors with the agency are found at 48 CFR subparts 9.4, 23.5, and 52.2.
(a) Except as amended in this section, the definitions of § 25.105 apply to this subpart.
(b) For purposes of this subpart—
(1)
(2)
(3)
(4)
(5)
(i) All
(ii) All
(iii) Temporary personnel and consultants who are directly engaged in the performance of work under the grant and who are on the grantee's payroll.
(6)
(7)
(8)
(9)
(10)
(a) This subpart applies to any grantee of the agency.
(b) This subpart applies to any grant, except where application of this subpart would be inconsistent with the international obligations of the United States or the laws or regulations of a foreign government. A determination of such inconsistency may be made only by the agency head or his/her designee.
(1) Heads of Defense Agencies, Heads of DoD Field Activities, and their designees are authorized to make such determinations on behalf of the Secretary of Defense.
(2) [Reserved]
(c) The provisions of subparts A, B, C, D and E of this part apply to matters covered by this subpart, except where specifically modified by this subpart. In the event of any conflict between provisions of this subpart and other provisions of this part, the provisions of this subpart are deemed to control with respect to the implementation of drug-free workplace requirements concerning grants.
A grantee shall be deemed in violation of the requirements of this subpart if the agency head or his or her official designee determines, in writing, that—
(a) The grantee has made a false certification under § 25.630;
(b) With respect to a grantee other than an individual—
(1) The grantee has violated the certification by failing to carry out the requirements of paragraphs (A)(a)-(g) and/or (B) of the certification (Alternate I to Appendix C) or
(2) Such a number of employees of the grantee have been convicted of violations of criminal drug statutes for violations occurring in the workplace as to indicate that the grantee has failed to make a good faith effort to provide a drug-free workplace.
(c) With respect to a grantee who is an individual—
(1) The grantee has violated the certification by failing to carry out its requirements (Alternate II to Appendix C); or
(2) The grantee is convicted of a criminal drug offense resulting from a violation occurring during the conduct of any grant activity.
Heads of Defense Agencies, Heads of DoD Field Activities, and their designees are authorized to make determinations of grantee violations under § 25.615.
(a) In the event of a violation of this subpart as provided in § 25.615, and in accordance with applicable law, the grantee shall be subject to one or more of the following actions:
(1) Suspension of payments under the grant;
(2) Suspension or termination of the grant; and
(3) Suspension or debarment of the grantee under the provisions of this part.
(b) Upon issuance of any final decision under this part requiring debarment of a grantee, the debarred grantee shall be ineligible for award of any grant from any Federal agency for a period specified in the decision, not to exceed five years (
The agency head may waive with respect to a particular grant, in writing, a suspension of payments under a grant, suspension or termination of a grant, or suspension or debarment of a grantee if the agency head determines that such a waiver would be in the public interest. This exception authority cannot be delegated to any other official.
(a)(1) As a prior condition of being awarded a grant, each grantee shall make the appropriate certification to the Federal agency providing the grant, as provided in Appendix C to this part.
(2) Grantees are not required to make a certification in order to continue receiving funds under a grant awarded before March 18, 1989, or under a no-cost time extension of such a grant. However, the grantee shall make a one-time drug-free workplace certification for a non-automatic continuation of such a grant made on or after March 18, 1989.
(b) Except as provided in this section, all grantees shall make the required certification for each grant. For mandatory formula grants and entitlements that have no application process, grantees shall submit a one-time certification in order to continue receiving awards.
(c) A grantee that is a State may elect to make one certification in each Federal fiscal year. States that previously submitted an annual certification are not required to make a certification for Fiscal Year 1990 until
(d)(1) The Governor of a State may exclude certain State agencies from the statewide certification and authorize these agencies to submit their own certifications to Federal agencies. The statewide certification shall name any State agencies so excluded.
(2) A State agency to which the statewide certification does not apply, or a State agency in a State that does not have a statewide certification, may elect to make one certification in each Federal fiscal year. State agencies that previously submitted a State agency certification are not required to make a certification for Fiscal Year 1990 until June 30, 1990. The State agency shall retain the original of this State agency-wide certification in its central office and, prior to grant award, shall ensure that a copy is submitted individually with respect to each grant, unless the Federal agency designates a central location for submission.
(3) When the work of a grant is done by more than one State agency, the certification of the State agency directly receiving the grant shall be deemed to certify compliance for all workplaces, including those located in other State agencies.
(e)(1) For a grant of less than 30 days performance duration, grantees shall have this policy statement and program in place as soon as possible, but in any case by a date prior to the date on which performance is expected to be completed.
(2) For a grant of 30 days or more performance duration, grantees shall have this policy statement and program in place within 30 days after award.
(3) Where extraordinary circumstances warrant for a specific grant, the grant officer may determine a different date on which the policy statement and program shall be in place.
(a) When a grantee other than an individual is notified that an employee has been convicted for a violation of a criminal drug statute occurring in the workplace, it shall take the following actions:
(1) Within 10 calendar days of receiving notice of the conviction, the grantee shall provide written notice, including the convicted employee's position title, to every grant officer, or other designee on whose grant activity the convicted employee was working, unless a Federal agency has designated a central point for the receipt of such notifications. Notification shall include the identification number(s) for each of the Federal agency's affected grants.
(2) Within 30 calendar days of receiving notice of the conviction, the grantee shall do the following with respect to the employee who was convicted.
(i) Take appropriate personnel action against the employee, up to and including termination, consistent with requirements of the Rehabilitation Act of 1973, as amended; or
(ii) Require the employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency.
(b) A grantee who is an individual who is convicted for a violation of a criminal drug statute occurring during the conduct of any grant activity shall report the conviction, in writing, within 10 calendar days, to his or her Federal agency grant officer, or other designee, unless the Federal agency has designated a central point for the receipt of such notices. Notification shall include the identification number(s) for each of the Federal agency's affected grants.
1. By signing and submitting this proposal, the prospective primary participant is providing the certification set out below.
2. The inability of a person to provide the certification required below will not necessarily result in denial of participation in this covered transaction. The prospective participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective primary participant to furnish a certification or an explanation shall disqualify such person from participation in this transaction.
3. The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If it is later determined that the prospective primary participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.
4. The prospective primary participant shall provide immediate written notice to the department or agency to which this proposal is submitted if at any time the prospective primary participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
5. The terms
6. The prospective primary participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction.
7. The prospective primary participant further agrees by submitting this proposal that it will include the clause titled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction,” provided by the department or agency entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.
8. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.
9. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
10. Except for transactions authorized under paragraph 6 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.
(1) The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals:
(a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any Federal department or agency;
(b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of
(c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and
(d) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default.
(2) Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.
1. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below.
2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances.
4. The terms
5. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated.
6. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction,” without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from covered transactions, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.
8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
(1) The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.
(2) Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective
1. By signing and/or submitting this application or grant agreement, the grantee is providing the certification set out below.
2. The certification set out below is a material representation of fact upon which reliance is placed when the agency awards the grant. If it is later determined that the grantee knowingly rendered a false certification, or otherwise violates the requirements of the Drug-Free Workplace Act, the agency, in addition to any other remedies available to the Federal Government, may take action authorized under the Drug-Free Workplace Act.
3. For grantees other than individuals, Alternate I applies.
4. For grantees who are individuals, Alternate II applies.
5. Workplaces under grants, for grantees other than individuals, need not be identified on the certification. If known, they may be identified in the grant application. If the grantee does not identify the workplaces at the time of application, or upon award, if there is no application, the grantee must keep the identity of the workplace(s) on file in its office and make the information available for Federal inspection. Failure to identify all known workplaces constitutes a violation of the grantee's drug-free workplace requirements.
6. Workplace identifications must include the actual address of buildings (or parts of buildings) or other sites where work under the grant takes place. Categorical descriptions may be used (e.g., all vehicles of a mass transit authority or State highway department while in operation, State employees in each local unemployment office, performers in concert halls or radio studios).
7. If the workplace identified to the agency changes during the performance of the grant, the grantee shall inform the agency of the change(s), if it previously identified the workplaces in question (see paragraph five).
8. Definitions of terms in the Nonprocurement Suspension and Debarment common rule and Drug-Free Workplace common rule apply to this certification. Grantees’ attention is called, in particular, to the following definitions from these rules:
A. The grantee certifies that it will or will continue to provide a drug-free workplace by:
(a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition;
(b) Establishing an ongoing drug-free awareness program to inform employees about—
(1) The dangers of drug abuse in the workplace;
(2) The grantee's policy of maintaining a drug-free workplace;
(3) Any available drug counseling, rehabilitation, and employee assistance programs; and
(4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace;
(c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (a);
(d) Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will—
(1) Abide by the terms of the statement; and
(2) Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction;
(e) Notifying the agency in writing, within ten calendar days after receiving notice under paragraph (d)(2) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notice shall include the identification number(s) of each affected grant;
(f) Taking one of the following actions, within 30 calendar days of receiving notice under paragraph (d)(2), with respect to any employee who is so convicted—
(1) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or
(2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency;
(g) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (a), (b), (c), (d), (e) and (f).
B. The grantee may insert in the space provided below the site(s) for the performance of work done in connection with the specific grant:
(a) The grantee certifies that, as a condition of the grant, he or she will not engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance in conducting any activity with the grant;
(b) If convicted of a criminal drug offense resulting from a violation occurring during the conduct of any grant activity, he or she will report the conviction, in writing, within 10 calendar days of the conviction, to every grant officer or other designee, unless the Federal agency designates a central point for the receipt of such notices. When notice is made to such a central point, it shall include the identification number(s) of each affected grant.
Section 319, Public Law 102-121 (31 U.S.C. 1352); 5 U.S.C. section 301; 10 U.S.C. 113.
(a) No appropriated funds may be expended by the recipient of a Federal contract, grant, loan, or cooperative ageement to pay any person for influencing or attempting to influence an officer or employee of any agency, a
(b) Each person who requests or receives from an agency a Federal contract, grant, loan, or cooperative agreement shall file with that agency a certification, set forth in Appendix A, that the person has not made, and will not make, any payment prohibited by paragraph (a) of this section.
(c) Each person who requests or receives from an agency a Federal contract, grant, loan, or a cooperative agreement shall file with that agency a disclosure form, set forth in Appendix B, if such person has made or has agreed to make any payment using nonappropriated funds (to include profits from any covered Federal action), which would be prohibited under paragraph (a) of this section if paid for with appropriated funds.
(d) Each person who requests or receives from an agency a commitment providing for the United States to insure or guarantee a loan shall file with that agency a statement, set forth in appendix A, whether that person has made or has agreed to make any payment to influence or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment providing for the United States to insure or guarantee a loan shall file with that agency a disclosure form, set forth in Appendix B, if that person has made or has agreed to make any payment to influence or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with that loan insurance or guarantee.
For purposes of this part:
(a)
(b)
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(1) An individual who is appointed to a position in the Government under title 5, U.S. Code, including a position under a temporary appointment;
(2) A member of the uniformed services as defined in section 101(3), title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title 18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee, as defined by the Federal Advisory Committee Act, title 5, U.S. Code appendix 2.
(l)
(m)
(n)
(o)
(p)
(q)
(a) Each person shall file a certification, and a disclosure form, if required, with each submission that initiates agency consideration of such person for:
(1) Award of a Federal contract, grant, or cooperative agreement exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form, if required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding $100,000; or
(2) A Federal loan or a commitment providing for the United States to insure or guarantee a loan exceeding $150,000,
(c) Each person shall file a disclosure form at the end of each calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of the information contained in any disclosure form previously filed by such person under paragraphs (a) or (b) of this section. An event that materially affects the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or expected to be paid for influencing or attempting to influence a covered Federal action; or
(2) A change in the person(s) or individual(s) influencing or attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in paragraphs (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a Federal cooperative agreement,
(e) All disclosure forms, but not certifications, shall be forwarded from tier to tier until received by the person referred to in paragraphs (a) or (b) of this section. That person shall forward all disclosure forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e) of this section shall be treated as a material representation of fact upon which all receiving tiers shall rely. All liability arising from an erroneous representation shall be borne solely by the tier filing that representation and shall not be shared by any tier to which the erroneous representation is forwarded. Submitting an erroneous certification or disclosure constitutes a failure to file the required certification or disclosure, respectively. If a person fails to file a required certification or disclosure, the United States may pursue all available remedies, including those authorized by section 1352, title 31, U.S. Code.
(g) For awards and commitments in process prior to December 23, 1989, but not made before that date, certifications shall be required at award or commitment, covering activities occurring between December 23, 1989, and the date of award or commitment. However, for awards and commitments in process prior to the December 23, 1989 effective date of these provisions, but not made before December 23, 1989, disclosure forms shall not be required at time of award or commitment but shall be filed within 30 days.
(h) No reporting is required for an activity paid for with appropriated funds if that activity is allowable under either subpart B or C.
(a) The prohibition on the use of appropriated funds, in § 28.100 (a), does not apply in the case of a payment of reasonable compensation made to an officer or employee of a person requesting or receiving a Federal contract, grant, loan, or cooperative agreement
(b) For purposes of paragraph (a) of this section, providing any information specifically requested by an agency or Congress is allowable at any time.
(c) For purposes of paragraph (a) of this section, the following agency and legislative liaison activities are allowable at any time only where they are not related to a specific solicitation for any covered Federal action:
(1) Discussing with an agency (including individual demonstrations) the qualities and characteristics of the person's products or services, conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the application or adaptation of the person's products or services for an agency's use.
(d) For purposes of paragraph (a) of this section, the following agencies and legislative liaison activities are allowable only where they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but necessary for an agency to make an informed decision about initiation of a covered Federal action;
(2) Technical discussions regarding the preparation of an unsolicited proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an agency pursuant to the provisions of the Small Business Act, as amended by Public Law 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are allowable under this section.
(a) The prohibition on the use of appropriated funds, in § 28.100 (a), does not apply in the case of a payment of reasonable compensation made to an officer or employee of a person requesting or receiving a Federal contract, grant, loan, or cooperative agreement or an extension, continuation, renewal, amendment, or modification of a Federal contract, grant, loan, or cooperative agreement if payment is for professional or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal contract, grant, loan, or cooperative agreement or for meeting requirements imposed by or pursuant to law as a condition for receiving that Federal contract, grant, loan, or cooperative agreement.
(b) For purposes of paragraph (a) of this section, “professional and technical services” shall be limited to advice and analysis directly applying any professional or technical discipline. For example, drafting of a legal document accompanying a bid or proposal by a lawyer is allowable. Similarly, technical advice provided by an engineer on the performance or operational capability of a piece of equipment rendered directly in the negotiation of a contract is allowable. However, communications with the intent to influence made by a professional (such as a licensed lawyer) or a technical person (such as a licensed accountant) are not allowable under this section unless they provide advice and analysis directly applying their professional or technical expertise and unless the advice or analysis is rendered directly and solely in the preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence made by a lawyer that do not provide legal advice or analysis directly and solely related to the legal aspects of his or her client's proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services. Similarly, communications with the intent to influence made by an engineer providing an engineering analysis prior to the preparation or submission of a bid or proposal are not allowable under this section since the engineer is providing technical services but not directly in the preparation, submission or negotiation of a covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for receiving a covered Federal award include those required by law or regulation, or reasonably expected to be required by law or regulation, and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are allowable under this section.
No reporting is required with respect to payments of reasonable compensation made to regularly employed officers or employees of a person.
(a) The prohibition on the use of appropriated funds, in § 28.100 (a), does not apply in the case of any reasonable payment to a person, other than an officer or employee of a person requesting or receiving a covered Federal action, if the payment is for professional or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal contract, grant, loan, or cooperative agreement or for meeting requirements imposed by or pursuant to law as a condition for receiving that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirments in § 28.110 (a) and (b) regarding filing a disclosure form by each person, if required, shall not apply with respect to professional or technical services rendered directly in the preparation, submission, or negotiation of any commitment providing for the United States to insure or guarantee a loan.
(c) For purposes of paragraph (a) of this section, “professional and technical services” shall be limited to advice and analysis directly applying any professional or technical discipline. For example, drafting of a legal document accompanying a bid or proposal by a lawyer is allowable. Similarly, technical advice provided by an engineer on the performance or operational capability of a piece of equipment rendered directly in the negotiation of a contract is allowable. However, communications with the intent to influence made by a professional (such as a licensed lawyer) or a technical person (such as a licensed accountant) are not allowable under this section unless they provide advice and analysis directly applying their professional or technical expertise and unless the advice or analysis is rendered directly and solely in the preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence made by a lawyer that do not provide legal advice or analysis directly and solely related to the legal aspects of his or her client's proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services. Similarly, communications with the intent to influence made by an engineer providing an engineering analysis prior to the preparation or submission of a bid or proposal are not allowable under this section since the engineer is providing technical services but not directly in the preparation, submission or negotiation of a covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for receiving a covered Federal award include those required by law or regulation, or reasonably expected to be required by law or regulation, and any other requirements in the actual award documents.
(e) Persons other than officers or employees of a person requesting or receiving a covered Federal action include consultants and trade associations.
(f) Only those services expressly authorized by this section are allowable under this section.
(a) Any person who makes an expenditure prohibited herein shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see Appendix B) to be filed or amended if required herein, shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
(c) A filing or amended filing on or after the date on which an administrative action for the imposition of a civil penalty is commenced does not prevent the imposition of such civil penalty for a failure occurring before that date. An administrative action is commenced with respect to a failure when an investigating official determines in writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount of any such penalty, by reason of a violation by any person, the agency shall consider the nature, circumstances, extent, and gravity of the violation, the effect on the ability of such person to continue in business, any prior violations by such person, the degree of culpability of such person, the ability of the person to pay the penalty, and such other matters as may be appropriate.
(e) First offenders under paragraphs (a) or (b) of this section shall be subject to a civil penalty of $10,000, absent aggravating circumstances. Second and subsequent offenses by persons shall be subject to an appropriate civil penalty between $10,000 and $100,000, as determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not prevent the United States from seeking any other remedy that may apply to the same conduct that is the basis for the imposition of such civil penalty.
Agencies shall impose and collect civil penalties pursuant to the provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar as these provisions are not inconsistent with the requirements herein.
The head of each agency shall take such actions as are necessary to ensure that the provisions herein are vigorously implemented and enforced in that agency.
(a)
(b)
(c)
(1) A grants officer wishing to request an exemption for a grant, cooperative agreement, or loan shall transmit such request through appropriate channels to: Director for Research, ODDR&E(R), 3080 Defense Pentagon, Washington, DC. 20301-3080.
(2) Each such request shall explain why an exemption is in the national interest, a justification that must be transmitted to Congress for each exemption that is approved.
(a) The head of each agency shall collect and compile the disclosure reports (see appendix B) and, on May 31 and November 30 of each year, submit to
(b) The report, including the compilation, shall be available for public inspection 30 days after receipt of the report by the Secretary and the Clerk.
(c) Information that involves intelligence matters shall be reported only to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, and the Committees on Appropriations of the Senate and the House of Representatives in accordance with procedures agreed to by such committees. Such information shall not be available for public inspection.
(d) Information that is classified under Executive Order 12356 or any successor order shall be reported only to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives or the Committees on Armed Services of the Senate and the House of Representatives (whichever such committees have jurisdiction of matters involving such information) and to the Committees on Appropriations of the Senate and the House of Representatives in accordance with procedures agreed to by such committees. Such information shall not be available for public inspection.
(e) The first semi-annual compilation shall be submitted on May 31, 1990, and shall contain a compilation of the disclosure reports received from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and Budget (OMB), are required to provide machine-readable compilations to the Secretary of the Senate and the Clerk of the House of Representatives no later than with the compilations due on May 31, 1991. OMB shall provide detailed specifications in a memorandum to these agencies.
(g) Non-major agencies are requested to provide machine-readable compilations to the Secretary of the Senate and the Clerk of the House of Representatives.
(h) Agencies shall keep the originals of all disclosure reports in the official files of the agency.
(a) The Inspector General, or other official as specified in paragraph (b) of this section, of each agency shall prepare and submit to Congress each year, commencing with submission of the President's Budget in 1991, an evaluation of the compliance of that agency with, and the effectiveness of, the requirements herein. The evaluation may include any recommended changes that may be necessary to strengthen or improve the requirements.
(b) In the case of an agency that does not have an Inspector General, the agency official comparable to an Inspector General shall prepare and submit the annual report, or, if there is no such comparable official, the head of the agency shall prepare and submit the annual report.
(c) The annual report shall be submitted at the same time the agency submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged violations relating to the agency's covered Federal actions during the year covered by the report, the actions taken by the head of the agency in the year covered by the report with respect to those alleged violations and alleged violations in previous years, and the amounts of civil penalties imposed by the agency in the year covered by the report.
The undersigned certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
The undersigned states, to the best of his or her knowledge and belief, that:
If any funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this commitment providing for the United States to insure or guarantee a loan, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
Submission of this statement is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required statement shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
5 U.S.C. 301 and 10 U.S.C. 113.
(a)
(b)
(c)
(d)
The following are definitions of terms used in this part. Grants officers are cautioned that terms may be defined differently in this part than they are in other parts of the DoD Grant and Agreement Regulations, because this part implements OMB Circular A-110 and uses definitions as stated in that Circular. In such cases, the definition given in this section applies to the term as it is used in this part, and the definition given in other parts applies to the term as it is used in those parts. For example,
(1) Goods and other tangible property received;
(2) Services performed by employees, contractors, subrecipients, and other payees; and
(3) Other amounts becoming owed under programs for which no current services or performance is required.
(1) Earnings during a given period from:
(i) Services performed by the recipient; and
(ii) Goods and other tangible property delivered to purchasers.
(2) Amounts becoming owed to the recipient for which no current services or performance is required by the recipient.
(1) That have not been paid, if financial reports are prepared on a cash basis.
(2) For which an outlay has not been recorded, if reports are prepared on an accrued expenditure basis.
For awards subject to this part, all administrative requirements of codified program regulations, program manuals, handbooks and other nonregulatory materials which are inconsistent with the requirements of this part shall be superseded, except to the extent they are required by statute, or authorized in accordance with the deviations provision in § 32.4.
(a)
(b)
(c)
(i) With the written concurrence of the Office of the Management and Budget (OMB). The DDR&E, or his or her designee, shall provide written notification to OMB of the Department of Defense's intention to grant a class deviation; and
(ii) When exceptions are not prohibited by statute.
(2) DoD Components shall request approval for such deviations in accordance with 32 CFR 21.125(b) and (c). However, in the interest of maximum uniformity, exceptions from the requirements of this part shall be permitted only in unusual circumstances.
Unless sections of this part specifically exclude subrecipients from coverage, the provisions of this part shall be applied to subrecipients performing
Sections 32.11 through 32.17 prescribe application forms and instructions and other pre-award matters.
(a)
(i) In each instance, the Federal awarding agency shall decide on the appropriate award instrument (i.e., grant, cooperative agreement, or contract).
(ii) The Federal Grant and Cooperative Agreement Act (31 U.S.C. 6301-6308) governs the use of grants, cooperative agreements, and contracts. Under that Act:
(A) A grant or cooperative agreement shall be used only when the principal purpose of a transaction is to accomplish a public purpose of support or stimulation authorized by Federal statute.
(B) Contracts shall be used when the principal purpose is acquisition of property or services for the direct benefit or use of the Federal Government.
(C) The statutory criterion for choosing between grants and cooperative agreements is that for the latter, “substantial involvement is expected between the executive agency and the State, local government, or other recipient when carrying out the activity contemplated in the agreement.”
(2) In selecting the appropriate award instruments, DoD Components’ grants officers shall comply with the DoD implementation of the Federal Grant and Cooperative Agreement Act at 32 CFR 21.205(a) and 32 CFR part 22, subpart B.
(b)
(a) DoD Components shall comply with the applicable report clearance requirements of 5 CFR part 1320, “Controlling Paperwork Burdens on the Public,” with regard to all forms used in place of or as a supplement to the Standard Form 424
(b) Applicants shall use the SF-424 series or those forms and instructions prescribed by DoD Components.
(c) For Federal programs covered by E.O. 12372 (3 CFR, 1982 Comp., p. 197), “Intergovernmental Review of Federal Programs,” the applicant shall complete the appropriate sections of the SF-424 (Application for Federal Assistance) indicating whether the application was subject to review by the State Single Point of Contact (SPOC). The name and address of the SPOC for a particular State can be obtained from the DoD Component or the Catalog of Federal Domestic Assistance. The SPOC shall advise the applicant whether the program for which application is made has been selected by that State for review.
(d) DoD Components that do not use the SF-424 form should indicate whether the application is subject to review by the State under E.O. 12372.
DoD Components and recipients shall comply with the nonprocurement debarment and suspension common rule at 32 CFR part 25. This common rule
(a) DoD Components may impose additional requirements as needed, over and above those provided in this part, if an applicant or recipient:
(1) Has a history of poor performance;
(2) Is not financially stable;
(3) Has a management system that does not meet the standards prescribed in this part;
(4) Has not conformed to the terms and conditions of a previous award; or
(5) Is not otherwise responsible.
(b) Before imposing additional requirements, DoD Components shall notify the applicant or recipient in writing as to:
(1) The nature of the additional requirements;
(2) The reason why the additional requirements are being imposed;
(3) The nature of the corrective action needed;
(4) The time allowed for completing the corrective actions; and
(5) The method for requesting reconsideration of the additional requirements imposed.
(c) Any special conditions shall be promptly removed once the conditions that prompted them have been corrected.
(d) Grants officers:
(1) Should coordinate the imposition and removal of special award conditions with the cognizant grants administration office identified in 32 CFR 22.710.
(2) Shall include in the award file the written notification to the recipient, described in paragraph (b) of this section, and the documentation required by 32 CFR 22.410(b).
The Metric Conversion Act, as amended by the Omnibus Trade and Competitiveness Act (15 U.S.C. 205) declares that the metric system is the preferred measurement system for U.S. trade and commerce, and for Federal agencies’ procurements, grants, and other business-related activities. DoD grants officers shall comply with requirements concerning the use of the metric system at 32 CFR 22.530.
Recipients’ procurements shall comply with applicable requirements of the Resource Conservation and Recovery Act (RCRA), as described at § 32.49.
(a) OMB Circular A-110 authorizes and encourages each Federal agency, unless prohibited by statute or codified regulation, to allow recipients to submit certifications and representations required by statute, executive order, or regulation on an annual basis, if the recipients have ongoing and continuing relationships with the agency. The Circular further states that annual certifications and representations, when used, shall be signed by responsible officials with the authority to ensure recipients’ compliance with the pertinent requirements.
(b) DoD grants officers shall comply with the provisions concerning certifications and representations at 32 CFR 22.510. Those provisions ease burdens on recipients to the extent possible, given current statutory and regulatory impediments to obtaining all certifications on an annual basis. The provisions thereby also comply with the intent of OMB Circular A-110, to use less burdensome methods for obtaining certifications and representations, as such methods become feasible.
Sections 32.21 through 32.28 prescribe standards for financial management systems, methods for making payments and rules for: satisfying cost sharing and matching requirements, accounting for program income, budget revision approvals, making audits, determining allowability of cost, and establishing fund availability.
(a) DoD Components shall require recipients to relate financial data to performance data and develop unit cost information whenever practical. For awards that support research, it should be noted that it is generally not appropriate to develop unit cost information.
(b) Recipients’ financial management systems shall provide for the following.
(1) Accurate, current and complete disclosure of the financial results of each federally-sponsored project or program in accordance with the reporting requirements set forth in § 32.52. If a DoD Component requires reporting on an accrual basis from a recipient that maintains its records on other than an accrual basis, the recipient shall not be required to establish an accrual accounting system. These recipients may develop such accrual data for its reports on the basis of an analysis of the documentation on hand.
(2) Records that identify adequately the source and application of funds for federally-sponsored activities. These records shall contain information pertaining to Federal awards, authorizations, obligations, unobligated balances, assets, outlays, income and interest.
(3) Effective control over and accountability for all funds, property and other assets. Recipients shall adequately safeguard all such assets and assure they are used solely for authorized purposes.
(4) Comparison of outlays with budget amounts for each award. Whenever appropriate, financial information should be related to performance and unit cost data. As discussed in paragraph (a) of this section, unit cost data is generally not appropriate for awards that support research.
(5) Written procedures to minimize the time elapsing between the transfer of funds to the recipient from the U.S. Treasury and the issuance or redemption of checks, warrants or payments by other means for program purposes by the recipient. To the extent that the provisions of the Cash Management Improvement Act (CMIA) (Pub. L. 101-453) govern, payment methods of State agencies, instrumentalities, and fiscal agents should be consistent with CMIA Treasury-State Agreements or the CMIA default procedures codified at 31 CFR part 205, “Withdrawal of Cash from the Treasury for Advances under Federal Grant and Other Programs.”
(6) Written procedures for determining the reasonableness, allocability and allowability of costs in accordance with the provisions of the applicable Federal cost principles (see § 32.27) and the terms and conditions of the award.
(7) Accounting records including cost accounting records that are supported by source documentation.
(c) Where the Federal Government guarantees or insures the repayment of money borrowed by the recipient, the DoD Component, at its discretion, may require adequate bonding and insurance if the bonding and insurance requirements of the recipient are not deemed adequate to protect the interest of the Federal Government.
(d) The DoD Component may require adequate fidelity bond coverage where the recipient lacks sufficient coverage to protect the Federal Government's interest.
(e) Where bonds are required in the situations described above, the bonds shall be obtained from companies holding certificates of authority as acceptable sureties, as prescribed in 31 CFR part 223, “Surety Companies Doing Business with the United States.”
(a) Payment methods shall minimize the time elapsing between the transfer of funds from the United States Treasury and the issuance or redemption of checks, warrants, or payment by other means by the recipients. Payment methods of State agencies or instrumentalities shall be consistent with Treasury-State agreements under the Cash Management Improvement Act (CMIA) (31 U.S.C. 3335 and 6503) or default procedures in 31 CFR part 205.
(b) Recipients are to be paid in advance, provided they maintain or demonstrate the willingness to maintain:
(1) Written procedures that minimize the time elapsing between the transfer of funds and disbursement by the recipient; and
(2) Financial management systems that meet the standards for fund control and accountability as established in § 32.21. Cash advances to a recipient organization shall be limited to the minimum amounts needed and be timed to be in accordance with the actual, immediate cash requirements of the recipient organization in carrying out the purpose of the approved program or project. The timing and amount of cash advances shall be as close as is administratively feasible to the actual disbursements by the recipient organization for direct program or project costs and the proportionate share of any allowable indirect costs.
(c) Whenever possible, advances shall be consolidated to cover anticipated cash needs for all awards made by the DoD Component to the recipient.
(1) Advance payment mechanisms include, but are not limited to, Treasury check and electronic funds transfer.
(2) Advance payment mechanisms are subject to 31 CFR part 205.
(3) Recipients shall be authorized to submit requests for advances and reimbursements at least monthly when electronic fund transfers are not used.
(d) Requests for Treasury check advance payment shall be submitted on SF-270,
(e) Reimbursement is the preferred method when the requirements in paragraph (b) of this section cannot be met. DoD Components may also use this method on any construction agreement, or if the major portion of the construction project is accomplished through private market financing or Federal loans, and the Federal assistance constitutes a minor portion of the project.
(1) When the reimbursement method is used, the responsible DoD payment office generally makes payment within 30 calendar days after receipt of the billing by the office designated to receive the billing, unless the billing is improper (for further information about timeframes for payments, see 32 CFR 22.810(c)(3)(ii)).
(2) Recipients shall be authorized to submit requests for reimbursement at least monthly when electronic funds transfers are not used.
(f) If a recipient cannot meet the criteria for advance payments and the grants officer, in consultation with the program manager, has determined that reimbursement is not feasible because the recipient lacks sufficient working capital, the award may provide for cash on a working capital advance basis. Under this procedure, the award shall provide for advancing cash to the recipient to cover its estimated disbursement needs for an initial period generally geared to the awardee's disbursing cycle. Thereafter, the award shall provide for reimbursing the recipient for its actual cash disbursements. The working capital advance method of payment shall not be used for recipients unwilling or unable to provide timely advances to their subrecipient to meet the subrecipient's actual cash disbursements.
(g) To the extent available, recipients shall disburse funds available from repayments to and interest earned on a revolving fund, program income, rebates, refunds, contract settlements, audit recoveries and interest earned on such funds before requesting additional cash payments.
(h) Unless otherwise required by statute, grants officers shall not withhold payments for proper charges made by recipients at any time during the project period unless:
(1) A recipient has failed to comply with the project objectives, the terms and conditions of the award, or Federal reporting requirements; or
(2) The recipient or subrecipient is delinquent in a debt to the United States under OMB Circular A-129, “Managing Federal Credit Programs” (see definitions of “debt” and “delinquent debt,” at 32 CFR 22.105). Under such conditions, the grants officer may, upon reasonable notice, inform the recipient that payments shall not be made for obligations incurred after a specified date until the conditions are corrected or the indebtedness to
(i) Standards governing the use of banks and other institutions as depositories of funds advanced under awards are as follows:
(1) Except for situations described in paragraph (i)(2) of this section, DoD Components shall not require separate depository accounts for funds provided to a recipient or establish any eligibility requirements for depositories for funds provided to a recipient. However, recipients must be able to account for the receipt, obligation and expenditure of funds.
(2) Advances of Federal funds shall be deposited and maintained in insured accounts whenever possible.
(j) Consistent with the national goal of expanding the opportunities for women-owned and minority-owned business enterprises, recipients shall be encouraged to use women-owned and minority-owned banks (a bank which is owned at least 50 percent by women or minority group members).
(k) Recipients shall maintain advances of Federal funds in interest bearing accounts, unless:
(1) The recipient receives less than $120,000 in Federal awards per year;
(2) The best reasonably available interest bearing account would not be expected to earn interest in excess of $250 per year on Federal cash balances; or
(3) The depository would require an average or minimum balance so high that it would not be feasible within the expected Federal and non-Federal cash resources.
(l)(1) Interest earned on Federal advances deposited in interest bearing accounts shall be remitted annually to Department of Health and Human Services, Payment Management System, PO Box 6021, Rockville, MD 20852.
(2) In keeping with Electronic Funds Transfer rules (31 CFR part 206), interest should be remitted to the HHS Payment Management System through an electronic medium such as the FEDWIR Deposit System. Electronic remittances should be in the format and should include any data that are specified by the grants officer as being necessary to facilitate direct deposit in HHS’ account at the Department of the Treasury.
(3) Recipients that do not have electronic remittance capability should use a check.
(4) Interest amounts up to $250 per year may be retained by the recipient for administrative expense.
(m) Except as noted elsewhere in this part, only the following forms shall be authorized for the recipients in requesting advances and reimbursements. DoD Components shall not require more than an original and two copies of these forms.
(1) SF-270, Request for Advance or Reimbursement. Each DoD Component shall adopt the SF-270 as a standard form for all nonconstruction programs when electronic funds transfer or predetermined advance methods are not used. DoD Components, however, have the option of using this form for construction programs in lieu of the SF-271,
(2) SF-271, Outlay Report and Request for Reimbursement for Construction Programs. Each DoD Component shall adopt the SF-271 as the standard form to be used for requesting reimbursement for construction programs. However, a DoD Component may substitute the SF-270 when the DoD Component determines that it provides adequate information to meet Federal needs.
(a) All contributions, including cash and third party in-kind, shall be accepted as part of the recipient's cost sharing or matching when such contributions meet all of the following criteria:
(1) Are verifiable from the recipient's records.
(2) Are not included as contributions for any other federally-assisted project or program.
(3) Are necessary and reasonable for proper and efficient accomplishment of project or program objectives.
(4) Are allowable under the applicable cost principles.
(5) Are not paid by the Federal Government under another award, except
(6) Are provided for in the approved budget when required by the DoD Component.
(7) Conform to other provisions of this part, as applicable.
(b) Unrecovered indirect costs (see definition in § 32.2) may be included as part of cost sharing or matching.
(c) Values for recipient contributions of services and property shall be established in accordance with the applicable cost principles. If a DoD Component authorizes recipients to donate buildings or land for construction/facilities acquisition projects or long-term use, the value of the donated property for cost sharing or matching shall be the lesser of:
(1) The certified value of the remaining life of the property recorded in the recipient's accounting records at the time of donation; or
(2) The current fair market value. However, when there is sufficient justification, the DoD Component may approve the use of the current fair market value of the donated property, even if it exceeds the certified value at the time of donation to the project. The DoD Component may accept the use of any reasonable basis for determining the fair market value of the property.
(d) Volunteer services furnished by professional and technical personnel, consultants, and other skilled and unskilled labor may be counted as cost sharing or matching if the service is an integral and necessary part of an approved project or program. Rates for volunteer services shall be consistent with those paid for similar work in the recipient's organization. In those instances in which the required skills are not found in the recipient organization, rates shall be consistent with those paid for similar work in the labor market in which the recipient competes for the kind of services involved. In either case, paid fringe benefits that are reasonable, allowable, and allocable may be included in the valuation.
(e) When an employer other than the recipient furnishes the services of an employee, these services shall be valued at the employee's regular rate of pay (plus an amount of fringe benefits that are reasonable, allowable, and allocable, but exclusive of overhead costs), provided these services are in the same skill for which the employee is normally paid.
(f) Donated supplies may include such items as office supplies, laboratory supplies or workshop and classroom supplies. Value assessed to donated supplies included in the cost sharing or matching share shall be reasonable and shall not exceed the fair market value of the property at the time of the donation.
(g) The method used for determining cost sharing or matching for donated equipment, buildings and land for which title passes to the recipient may differ according to the purpose of the award, if the purpose of the award is to:
(1) Assist the recipient in the acquisition of equipment, buildings or land, the total value of the donated property may be claimed as cost sharing or matching; or
(2) Support activities that require the use of equipment, buildings or land, normally only depreciation or use charges for equipment and buildings may be made. However, the full value of equipment or other capital assets and fair rental charges for land may be allowed, provided that the DoD Component has approved the charges.
(h) The value of donated property shall be determined in accordance with the usual accounting policies of the recipient, with the following qualifications.
(1) The value of donated land and buildings shall not exceed its fair market value at the time of donation to the recipient as established by an independent appraiser (e.g., certified real property appraiser or General Services Administration representative) and certified by a responsible official of the recipient.
(2) The value of donated equipment shall not exceed the fair market value of equipment of the same age and condition at the time of donation.
(3) The value of donated space shall not exceed the fair rental value of comparable space as established by an independent appraisal of comparable space and facilities in a privately-owned building in the same locality.
(4) The value of loaned equipment shall not exceed its fair rental value.
(i) The following requirements pertain to the recipient's supporting records for in-kind contributions from third parties:
(1) Volunteer services shall be documented and, to the extent feasible, supported by the same methods used by the recipient for its own employees.
(2) The basis for determining the valuation for personal service and property shall be documented.
(a) DoD Components shall apply the standards set forth in this section in requiring recipient organizations to account for program income related to projects financed in whole or in part with Federal funds.
(b) Except as provided in paragraph (h) of this section, program income earned during the project period shall be retained by the recipient and, in accordance with the terms and conditions of the award, shall be used in one or more of the following ways:
(1) Added to funds committed to the project by the DoD Component and recipient and used to further eligible project or program objectives.
(2) Used to finance the non-Federal share of the project or program.
(3) Deducted from the total project or program allowable cost in determining the net allowable costs on which the Federal share of costs is based.
(c) When a program regulation or award authorizes the disposition of program income as described in paragraphs (b)(1) or (b)(2) of this section, program income in excess of any limits stipulated shall be used in accordance with paragraph (b)(3) of this section.
(d) In the event that program regulations or the terms and conditions of the award do not specify how program income is to be used, paragraph (b)(3) of this section shall apply automatically to all projects or programs except research. For awards that support research, paragraph (b)(1) of this section shall apply automatically unless the terms and conditions specify another alternative or the recipient is subject to special award conditions, as indicated in § 32.14.
(e) Unless program regulations or the terms and conditions of the award provide otherwise, recipients shall have no obligation to the Federal Government regarding program income earned after the end of the project period.
(f) If authorized by program regulations or the terms and conditions of the award, costs incident to the generation of program income may be deducted from gross income to determine program income, provided these costs have not been charged to the award.
(g) Proceeds from the sale of property shall be handled in accordance with the requirements of the Property Standards (see §§ 32.30 through 32.37).
(h) Unless program regulations or the terms and condition of the award provide otherwise, recipients shall have no obligation to the Federal Government with respect to program income earned from license fees and royalties for copyrighted material, patents, patent applications, trademarks, and inventions produced under an award. Note that the Patent and Trademark Amendments (35 U.S.C. chapter 18) apply to inventions made under an experimental, developmental, or research award.
(a) The budget plan is the financial expression of the project or program as approved during the award process. It may include either the sum of the Federal and non-Federal shares, or only the Federal share, depending upon DoD Component requirements. It shall be related to performance for program evaluation purposes whenever appropriate.
(b) Recipients are required to report deviations from budget and program plans, and request prior approvals for budget and program plan revisions, in accordance with this section.
(c) For nonconstruction awards, recipients shall request prior approvals from the cognizant grants officer for one or more of the following program or budget related reasons.
(1) Change in the scope or the objective of the project or program (even if there is no associated budget revision requiring prior written approval).
(2) Change in a key person specified in the application or award document.
(3) The absence for more than three months, or a 25 percent reduction in time devoted to the project, by the approved project director or principal investigator.
(4) The need for additional Federal funding.
(5) The transfer of amounts budgeted for indirect costs to absorb increases in direct costs, or vice versa, if approval is required by the DoD Component. DoD Components should require this prior approval only in exceptional circumstances. The requirement in each such case must be stated in the award document.
(6) The inclusion, unless waived by the DoD Component, of costs that require prior approval in accordance with OMB Circular A-21,
(7) The transfer of funds allotted for training allowances (direct payment to trainees) to other categories of expense.
(8) Unless described in the application and funded in the approved awards, the subaward, transfer or contracting out of any work under an award. This provision does not apply to the purchase of supplies, material, equipment or general support services.
(9) If required by the DoD Component, the transfer of funds among direct cost categories that is described in paragraph (e) of this section.
(d) (1) Except for requirements listed in paragraphs (c)(1) and (c)(4) of this section, OMB Circular A-110 authorizes DoD Components, at their option, to waive cost-related and administrative prior written approvals required by this part and OMB Circulars A-21 and A-122 (but see cautionary note at end of paragraph (c)(5) of this section).
(2) The two prior approvals listed in paragraphs (d)(2)(i) and (ii) of this section are automatically waived unless the award document states otherwise. DoD Components should override this automatic waiver and require the prior approvals, especially for research awards, only in exceptional circumstances. Absent an override in the award terms and conditions, recipients need not obtain prior approvals before:
(i) Incurring pre-award costs 90 calendar days prior to award (incurring pre-award costs more than 90 calendar days prior to award would still require the prior approval of the DoD Component). All pre-award costs are incurred at the recipient's risk (i.e., the DoD Component is under no obligation to reimburse such costs if for any reason the recipient does not receive an award or if the award is less than anticipated and inadequate to cover such costs).
(ii) Carrying forward unobligated balances to subsequent funding periods.
(3) Under certain conditions, a DoD Component may authorize a recipient to initiate, without prior approval, a one-time, no-cost extension (i.e., an extension in the expiration date of an award that does not require additional Federal funds) for a period of up to twelve months, as long as the no-cost extension does not involve a change in the approved objectives or scope of the project. The conditions for waiving this prior approval requirement are that the DoD Component must:
(i) Judge that the recipient's subsequently initiating a one-time, no-cost extension would not cause the DoD Component to fail to comply with DoD funding policies (for further information on the location of DoD funding policies, grants officers may refer to Appendix C to 32 CFR part 22).
(ii) Require a recipient that wishes to initiate a one-time, no-cost extension to so notify the office that made the award at least 10 calendar days before the original expiration date of the award.
(e) The DoD Component may, at its option, restrict the transfer of funds among direct cost categories, functions and activities for awards in which the Federal share of the project exceeds $100,000 and the cumulative amount of such transfers exceeds or is expected to exceed 10 percent of the total budget as last approved by the DoD Component. As a matter of DoD policy, requiring prior approvals for such transfers generally is not appropriate for grants to support research. No DoD Component shall permit a transfer that would cause any Federal appropriation or part thereof to be used for purposes other than those consistent with the original intent of the appropriation.
(f) For construction awards, recipients shall request prior written approval promptly from grants officers for budget revisions whenever:
(1) The revision results from changes in the scope or the objective of the project or program;
(2) The need arises for additional Federal funds to complete the project; or
(3) A revision is desired which involves specific costs for which prior written approval requirements may be imposed consistent with applicable OMB cost principles listed in § 32.27.
(g) When a DoD Component makes an award that provides support for both construction and nonconstruction work, the DoD Component may require the recipient to request prior approval from the grants officer before making any fund or budget transfers between the two types of work supported.
(h) No other prior approval requirements for specific items may be imposed unless a deviation has been approved, in accordance with the deviation procedures in § 32.4(c).
(i) For both construction and nonconstruction awards, DoD Components shall require recipients to notify the grants officer in writing promptly whenever the amount of Federal authorized funds is expected to exceed the needs of the recipient for the project period by more than $5000 or five percent of the Federal award, whichever is greater. This notification shall not be required if an application for additional funding is submitted for a continuation award.
(j) When requesting approval for budget revisions, recipients shall use the budget forms that were used in the application unless the grants officer indicates a letter of request suffices.
(k) Within 30 calendar days from the date of receipt of the request for budget revisions, the grants officer shall review the request and notify the recipient whether the budget revisions have been approved. If the revision is still under consideration at the end of 30 calendar days, the grants officer shall inform the recipient in writing of the date when the recipient may expect the decision.
(a) Recipients and subrecipients that are institutions of higher education or other non-profit organizations (including hospitals) shall be subject to the audit requirements contained in the Single Audit Act Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133,
(b) State and local governments that are subrecipients shall be subject to the audit requirements contained in the Single Audit Act Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, “Audits of States, Local Governments, and Non-Profit Organizations.”
(c) Hospitals that are subrecipients and are not covered by the audit provisions of revised OMB Circular A-133 shall be subject to the audit requirements specified in award terms and conditions.
(d) For-profit organizations that are subrecipients shall be subject to the audit requirements specified in 32 CFR 34.16.
(a)
(b)
(c)
(d)
(e)
(f)
Where a funding period is specified, a recipient may charge to the award only allowable costs resulting from obligations incurred during the funding period and any pre-award costs (see § 32.25(d)(2)(i)) authorized by the DoD Component.
Sections 32.31 through 32.37 set forth uniform standards governing management and disposition of property furnished by the Federal Government and property whose cost was charged to a project supported by a Federal award. DoD Components shall require recipients to observe these standards under awards and shall not impose additional requirements, unless specifically required by Federal statute. The recipient may use its own property management standards and procedures provided it observes the provisions of §§ 32.31 through 32.37.
Recipients shall, at a minimum, provide the equivalent insurance coverage for real property and equipment acquired with Federal funds as provided to property owned by the recipient. Federally-owned property need not be insured unless required by the terms and conditions of the award.
Each DoD Component that makes awards under which real property is acquired in whole or in part with Federal funds shall prescribe requirements for recipients concerning the use and disposition of such property. Unless otherwise provided by statute, such requirements, at a minimum, shall contain the following:
(a) Title to real property shall vest in the recipient subject to the condition that the recipient shall use the real property for the authorized purpose of the project as long as it is needed and shall not encumber the property without approval of the DoD Component.
(b) The recipient shall obtain written approval by the grants officer for the use of real property in other federally sponsored projects when the recipient determines that the property is no longer needed for the purpose of the original project. Use in other projects
(c) When the real property is no longer needed as provided in paragraphs (a) and (b) of this section, the recipient shall request disposition instructions from the DoD Component or its successor Federal agency. The responsible Federal agency shall observe one or more of the following disposition instructions:
(1) The recipient may be permitted to retain title without further obligation to the Federal Government after it compensates the Federal Government for that percentage of the current fair market value of the property attributable to the Federal participation in the project.
(2) The recipient may be directed to sell the property under guidelines provided by the DoD Component and pay the Federal Government for that percentage of the current fair market value of the property attributable to the Federal participation in the project (after deducting actual and reasonable selling and fix-up expenses, if any, from the sales proceeds). When the recipient is authorized or required to sell the property, proper sales procedures shall be established that provide for competition to the extent practicable and result in the highest possible return.
(3) The recipient may be directed to transfer title to the property to the Federal Government or to an eligible third party provided that, in such cases, the recipient shall be entitled to compensation for its attributable percentage of the current fair market value of the property.
(a)
(2) If the DoD Component that made the award has no further need for the property, it shall be declared excess and either:
(i) Reported to the General Services Administration, in accordance with the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 483(b)(2)), as implemented by General Services Administration regulations at 41 CFR 101-47.202; or
(ii) Disposed of by alternative methods pursuant to other specific statutory authority. For example, DoD Components are authorized by the Federal Technology Transfer Act (15 U.S.C. 3710(i)), to donate research equipment to educational and non-profit organizations for the conduct of technical and scientific education and research activities—donations under this Act shall be in accordance with the DoD implementation of E.O. 12999 (3 CFR, 1996 Comp., p. 180), “Educational Technology: Ensuring Opportunity for All Children in the Next Century,” as applicable. Appropriate instructions shall be issued to the recipient by the DoD Component.
(b)
(2) As a matter of policy, DoD Components shall make maximum use of the authority of 31 U.S.C. 6306 to vest title to exempt property in institutions of higher education, without further obligation to the Government, to enhance the university infrastructure for future performance of defense research and related, science and engineering education.
(3) DoD Components may establish conditions, in regulation or in award terms and conditions, for vesting title to exempt property. Should a DoD Component not establish conditions, title to exempt property upon acquisition shall vest in the recipient without further obligation to the Federal Government.
(a) Title to equipment acquired by a recipient with Federal funds shall vest in the recipient, subject to conditions of this section.
(b) The recipient shall not use equipment acquired with Federal funds to provide services to non-Federal outside organizations for a fee that is less than private companies charge for equivalent services, unless specifically authorized by Federal statute, for as long as the Federal Government retains an interest in the equipment.
(c) The recipient shall use the equipment in the project or program for which it was acquired as long as needed, whether or not the project or program continues to be supported by Federal funds and shall not encumber the property without approval of the DoD Component that made the award. When no longer needed for the original project or program, the recipient shall use the equipment in connection with its other federally-sponsored activities, in the following order of priority:
(1) First, activities sponsored by the DoD Component that funded the original project.
(2) Second, activities sponsored by other DoD Components.
(3) Then, activities sponsored by other Federal agencies.
(d) During the time that equipment is used on the project or program for which it was acquired, the recipient shall make it available for use on other projects or programs if such other use will not interfere with the work on the project or program for which the equipment was originally acquired. First preference for such other use shall be given to other projects or programs sponsored by the DoD Component that financed the equipment; second preference shall be given to projects or programs sponsored by other DoD Components; and third preference shall be given to projects or programs sponsored by other Federal agencies. If the property is owned by the Federal Government, use on other activities not sponsored by the Federal Government shall be permissible if authorized by the DoD Component that financed the property. User charges shall be treated as program income.
(e) When acquiring replacement equipment, the recipient may use the equipment to be replaced as trade-in or sell the equipment and use the proceeds to offset the costs of the replacement equipment subject to the approval of the DoD Component that financed the equipment.
(f) The recipient's property management standards for equipment acquired with Federal funds and federally-owned property shall include all of the following:
(1) Records for equipment and federally-owned property shall be maintained accurately and shall include the following information:
(i) A description of the equipment or federally-owned property.
(ii) Manufacturer's serial number, model number, Federal stock number, national stock number, or other identification number.
(iii) Source of the equipment or federally-owned property, including the award number.
(iv) Whether title vests in the recipient or the Federal Government.
(v) Acquisition date (or date received, if the property was furnished by the Federal Government) and cost.
(vi) Information from which one can calculate the percentage of Federal participation in the cost of the equipment (not applicable to property furnished by the Federal Government).
(vii) Location and condition of the equipment or federally-owned property and the date the information was reported.
(viii) Unit acquisition cost.
(ix) Ultimate disposition data, including date of disposal and sales price or the method used to determine current fair market value where a recipient compensates the DoD Component that made the award for its share.
(2) Property owned by the Federal Government shall be identified to indicate Federal ownership.
(3) A physical inventory of equipment and federally-owned property shall be taken and the results reconciled with the equipment records at least once every two years. Any differences between quantities determined by the physical inspection and those shown in the accounting records shall be investigated to determine the causes of the difference. The recipient shall, in connection with the inventory, verify the existence, current utilization, and continued need for the equipment or federally-owned property.
(4) A control system shall be in effect to insure adequate safeguards to prevent loss, damage, or theft of the equipment or federally-owned property. Any loss, damage, or theft of equipment or federally-owned property shall be investigated and fully documented; if the property was owned by the Federal Government, the recipient shall promptly notify the DoD Component.
(5) Adequate maintenance procedures shall be implemented to keep the equipment or federally-owned property in good condition.
(6) Where the recipient is authorized or required to sell the equipment, proper sales procedures shall be established which provide for competition to the extent practicable and result in the highest possible return.
(g) When the recipient no longer needs the equipment, the equipment may be used for other activities in accordance with the following standards.
(1) For equipment with a current per unit fair market value of $5,000 or more, the recipient may retain the equipment for other uses provided that compensation is made to the DoD Component that originally made the award or its successor. The amount of compensation shall be computed by applying the percentage of Federal participation in the cost of the original project or program to the current fair market value of the equipment.
(2) If the recipient has no need for the equipment, the recipient shall request disposition instructions from the DoD Component. The DoD Component shall issue instructions to the recipient no later than 120 calendar days after the recipient's request and the following procedures shall govern:
(i) The grants officer, in consultation with the program manager, shall judge whether the age and nature of the equipment warrant a screening procedure to determine whether the equipment is useful to a DoD Component or other Federal agency. If a screening procedure is warranted:
(A) The DoD Component shall determine whether the equipment can be used to meet DoD requirements.
(B) If no DoD requirement exists, the availability of the equipment shall be reported to the General Services Administration by the DoD Component to determine whether a requirement for the equipment exists in other Federal agencies.
(ii) If so instructed or if disposition instructions are not issued within 120 calendar days after the recipient's request, the recipient shall sell the equipment and reimburse the DoD Component that made the award an amount computed by applying to the sales proceeds the percentage of Federal participation in the cost of the original project or program. However, the recipient shall be permitted to deduct and retain from the Federal share $500 or ten percent of the proceeds, whichever is less, for the recipient's selling and handling expenses.
(iii) If the recipient is instructed to ship the equipment elsewhere, the recipient shall be reimbursed by the Federal Government by an amount which is computed by applying the percentage of the recipient's participation in the cost of the original project or program to the current fair market value of the equipment, plus any reasonable shipping or interim storage costs incurred.
(iv) If the recipient is instructed to otherwise dispose of the equipment, the recipient shall be reimbursed by the DoD Component that made the award for such costs incurred in its disposition.
(h) The DoD Component may reserve the right to transfer the title to the Federal Government or to a third party named by the Federal Government when such third party is otherwise eligible under existing statutes. Such transfer shall be subject to the following standards.
(1) The equipment shall be appropriately identified in the award or otherwise made known to the recipient in writing. For exempt property, in accordance with § 32.33(b)(3), note that this identification must occur by the time of award, or title to the property vests in the recipient without further obligation to the Government.
(2) The DoD Component shall issue disposition instructions within 120 calendar days after receipt of a final inventory. The final inventory shall list all equipment acquired with award funds and federally-owned property. If the DoD Component fails to issue disposition instructions for equipment within the 120 calendar day period, the recipient shall apply the standards of paragraph (g) of this section.
(3) When the DoD Component exercises its right to take title, the equipment shall be subject to the provisions for federally-owned property.
(a) Title to supplies shall vest in the recipient upon acquisition. If there is a residual inventory of unused supplies exceeding $5,000 in total aggregate value upon termination or completion of the project or program and the supplies are not needed for any other federally-sponsored project or program, the recipient shall retain the supplies for use on non-Federal sponsored activities or sell them, but shall, in either case, compensate the Federal Government for its share. The amount of compensation shall be computed in the same manner as for equipment.
(b) The recipient shall not use supplies acquired with Federal funds to provide services to non-Federal outside organizations for a fee that is less than private companies charge for equivalent services, unless specifically authorized by Federal statute as long as the Federal Government retains an interest in the supplies.
(a) The recipient may copyright any work that is subject to copyright and was developed, or for which ownership was purchased, under an award. DoD Components reserve a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so.
(b) Recipients are subject to applicable regulations governing patents and inventions, including Governmentwide regulations issued by the Department of Commerce at 37 CFR part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements.”
(c) Unless waived by the DoD Component making the award, the Federal Government has the right to:
(1) Obtain, reproduce, publish or otherwise use the data first produced under an award.
(2) Authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes.
(d) Title to intangible property and debt instruments acquired under an award or subaward (rather than developed or produced under the award or subaward) vests upon acquisition in the recipient. The recipient shall use that property for the originally-authorized purpose, and the recipient shall not encumber the property without approval of the DoD Component that made the award. When no longer needed for the originally authorized purpose, disposition of the intangible property shall occur in accordance with the provisions of § 32.34(g).
Real property, equipment, intangible property and debt instruments that are acquired or improved with Federal funds shall be held in trust by the recipient as trustee for the beneficiaries of the project or program under which the property was acquired or improved. DoD Components may require recipients to record liens or other appropriate notices of record to indicate that personal or real property has been acquired or improved with Federal funds and that use and disposition conditions apply to the property.
Sections 32.41 through 32.48 set forth standards for use by recipients in establishing procedures for the procurement of supplies and other expendable property, equipment, real property and other services with Federal funds. These standards are furnished to ensure that such materials and services are obtained in an effective manner and in compliance with the provisions of applicable Federal statutes and executive orders.
The standards contained in this section do not relieve the recipient of the contractual responsibilities arising under its contract(s). The recipient is the responsible authority, without recourse to the DoD Component that made the award, regarding the settlement and satisfaction of all contractual and administrative issues arising out of procurements entered into in support of an award or other agreement. This includes disputes, claims, protests of award, source evaluation or other matters of a contractual nature. Matters concerning violation of statute are to be referred to such Federal, State or local authority as may have proper jurisdiction.
The recipient shall maintain written standards of conduct governing the performance of its employees engaged in the award and administration of contracts. No employee, officer, or agent shall participate in the selection, award, or administration of a contract supported by Federal funds if a real or apparent conflict of interest would be involved. Such a conflict would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in the firm selected for an award. The officers, employees, and agents of the recipient shall neither solicit nor accept gratuities, favors, or anything of monetary value from contractors, or parties to subagreements. However, recipients may set standards for situations in which the financial interest is not substantial or the gift is an unsolicited item of nominal value. The standards of conduct shall provide for disciplinary actions to be applied for violations of such standards by officers, employees, or agents of the recipient.
All procurement transactions shall be conducted in a manner to provide, to the maximum extent practical, open and free competition. The recipient shall be alert to organizational conflicts of interest as well as noncompetitive practices among contractors that may restrict or eliminate competition or otherwise restrain trade. In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, invitations for bids and/or requests for proposals shall be excluded from competing for such procurements. Awards shall be made to the bidder or offeror whose bid or offer is responsive to the solicitation and is most advantageous to the recipient, price, quality and other factors considered. Solicitations shall clearly set forth all requirements that the bidder or offeror shall fulfill in order for the bid or offer to be evaluated by the recipient. Any and all bids or offers may be rejected when it is in the recipient's interest to do so.
(a) All recipients shall establish written procurement procedures. These procedures shall provide, at a minimum, that:
(1) Recipients avoid purchasing unnecessary items;
(2) Where appropriate, an analysis is made of lease and purchase alternatives to determine which would be the most economical and practical procurement; and
(3) Solicitations for goods and services provide for all of the following:
(i) A clear and accurate description of the technical requirements for the material, product or service to be procured. In competitive procurements,
(ii) Requirements which the bidder/offeror must fulfill and all other factors to be used in evaluating bids or proposals.
(iii) A description, whenever practicable, of technical requirements in terms of functions to be performed or performance required, including the range of acceptable characteristics or minimum acceptable standards.
(iv) The specific features of “brand name or equal” descriptions that bidders are required to meet when such items are included in the solicitation.
(v) The acceptance, to the extent practicable and economically feasible, of products and services dimensioned in the metric system of measurement.
(vi) Preference, to the extent practicable and economically feasible, for products and services that conserve natural resources and protect the environment and are energy efficient.
(b) Positive efforts shall be made by recipients to utilize small businesses, minority-owned firms, and women's business enterprises, whenever possible. Recipients of Federal awards shall take all of the following steps to further this goal:
(1) Ensure that small businesses, minority-owned firms, and women's business enterprises are used to the fullest extent practicable.
(2) Make information on forthcoming opportunities available and arrange time frames for purchases and contracts to encourage and facilitate participation by small businesses, minority-owned firms, and women's business enterprises.
(3) Consider in the contract process whether firms competing for larger contracts intend to subcontract with small businesses, minority-owned firms, and women's business enterprises.
(4) Encourage contracting with consortiums of small businesses, minority-owned firms and women's business enterprises when a contract is too large for one of these firms to handle individually.
(5) Use the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Department of Commerce's Minority Business Development Agency in the solicitation and utilization of small businesses, minority-owned firms and women's business enterprises.
(c) The type of procuring instruments used (e.g., fixed price contracts, cost reimbursable contracts, purchase orders, and incentive contracts) shall be determined by the recipient but shall be appropriate for the particular procurement and for promoting the best interest of the program or project involved. The “cost-plus-a-percentage-of-cost” or “percentage of construction cost” methods of contracting shall not be used.
(d) Contracts shall be made only with responsible contractors who possess the potential ability to perform successfully under the terms and conditions of the proposed procurement. Consideration shall be given to such matters as contractor integrity, record of past performance, financial and technical resources or accessibility to other necessary resources. In certain circumstances, contracts with certain parties are restricted by the DoD implementation, in 32 CFR part 25, of E.O.s 12549 (3 CFR, 1986 Comp., p. 189) and 12689 (3 CFR, 1989 Comp., p. 235), “Debarment and Suspension.”
(e) Recipients shall, on request, make available for the DoD Component's pre-award review, procurement documents such as request for proposals or invitations for bids, independent cost estimates, etc., when any of the following conditions apply:
(1) A recipient's procurement procedures or operation fails to comply with the procurement standards in this part.
(2) The procurement is expected to exceed the simplified acquisition threshold fixed at 41 U.S.C. 403 (11) (currently $100,000) and is to be awarded without competition or only one bid or offer is received in response to a solicitation.
(3) The procurement, which is expected to exceed the simplified acquisition threshold, specifies a “brand name” product.
(4) The proposed award over the simplified acquisition threshold is to be awarded to other than the apparent low bidder under a sealed bid procurement.
(5) A proposed contract modification changes the scope of a contract or increases the contract amount by more than the amount of the simplified acquisition threshold.
Some form of cost or price analysis shall be made and documented in the procurement files in connection with every procurement action. Price analysis may be accomplished in various ways, including the comparison of price quotations submitted, market prices and similar indicia, together with discounts. Cost analysis is the review and evaluation of each element of cost to determine reasonableness, allocability and allowability.
Procurement records and files for purchases in excess of the simplified acquisition threshold shall include the following at a minimum:
(a) Basis for contractor selection;
(b) Justification for lack of competition when competitive bids or offers are not obtained; and
(c) Basis for award cost or price.
A system for contract administration shall be maintained to ensure contractor conformance with the terms, conditions and specifications of the contract and to ensure adequate and timely follow up of all purchases. Recipients shall evaluate contractor performance and document, as appropriate, whether contractors have met the terms, conditions and specifications of the contract.
The recipient shall include, in addition to provisions to define a sound and complete agreement, the following provisions in all contracts. The following provisions shall also be applied to subcontracts:
(a) Contracts in excess of the simplified acquisition threshold shall contain contractual provisions or conditions that allow for administrative, contractual, or legal remedies in instances in which a contractor violates or breaches the contract terms, and provide for such remedial actions as may be appropriate.
(b) All contracts in excess of the simplified acquisition threshold shall contain suitable provisions for termination by the recipient, including the manner by which termination shall be effected and the basis for settlement. In addition, such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor.
(c) Except as otherwise required by statute, an award that requires the contracting (or subcontracting) for construction or facility improvements shall provide for the recipient to follow its own requirements relating to bid guarantees, performance bonds, and payment bonds unless the construction contract or subcontract exceeds $100,000. For those contracts or subcontracts exceeding $100,000, the DoD Component may accept the bonding policy and requirements of the recipient, provided the grants officer has made a determination that the Federal Government's interest is adequately protected. If such a determination has not been made, the minimum requirements shall be as follows:
(1) A bid guarantee from each bidder equivalent to five percent of the bid price. The “bid guarantee” shall consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that the bidder shall, upon acceptance of his bid, execute such contractual documents as may be required within the time specified.
(2) A performance bond on the part of the contractor for 100 percent of the contract price. A “performance bond” is one executed in connection with a contract to secure fulfillment of all the contractor's obligations under such contract.
(3) A payment bond on the part of the contractor for 100 percent of the contract price. A “payment bond” is one executed in connection with a contract to assure payment as required by statute of all persons supplying labor and material in the execution of the work provided for in the contract.
(4) Where bonds are required in the situations described in §§ 32.40 through 32.49, the bonds shall be obtained from companies holding certificates of authority as acceptable sureties pursuant to 31 CFR part 223, “Surety Companies Doing Business with the United States.”
(d) All negotiated contracts (except those for less than the simplified acquisition threshold) awarded by recipients shall include a provision to the effect that the recipient, the Department of Defense, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers and records of the contractor which are directly pertinent to a specific program for the purpose of making audits, examinations, excerpts and transcriptions.
(e) All contracts, including those for amounts less than the simplified acquisition threshold, by recipients and their contractors shall contain the procurement provisions of Appendix A to this part, as applicable.
Under the Resource Conservation and Recovery Act (RCRA) (section 6002, Pub. L. 94-580, 42 U.S.C. 6962), any State agency or agency of a political subdivision of a State which is using appropriated Federal funds must comply with section 6002. Section 6002 requires that preference be given in procurement programs to the purchase of specific products containing recycled materials identified in guidelines developed by the Environmental Protection Agency (EPA) (40 CFR parts 247-254). Accordingly, State and local institutions of higher education, hospitals, and non-profit organizations that receive direct Federal awards or other Federal funds shall give preference in their procurement programs funded with Federal funds to the purchase of recycled products pursuant to the EPA guidelines.
Sections 32.51 through 32.53 set forth the procedures for monitoring and reporting on the recipient's financial and program performance and the necessary standard reporting forms. They also set forth record retention requirements.
(a) Recipients are responsible for managing and monitoring each project, program, subaward, function or activity supported by the award. Recipients shall monitor subawards to ensure subrecipients have met the audit requirements as delineated in § 32.26.
(b) The award terms and conditions shall prescribe the frequency with which the performance reports shall be submitted. Except as provided in paragraph (f) of this section, performance reports shall not be required more frequently than quarterly or less frequently than annually. Annual reports shall be due 90 calendar days after the award year; quarterly or semi-annual reports shall be due 30 calendar days after the reporting period. DoD Components may require annual reports before the anniversary dates of multiple year awards in lieu of these requirements. The final performance reports are due 90 calendar days after the expiration or termination of the award.
(c) If inappropriate, a final technical or performance report shall not be required after completion of the project.
(d) When required, performance reports shall generally contain, for each award, brief information on each of the following:
(1) A comparison of actual accomplishments with the goals and objectives established for the period, the findings of the investigator, or both. Whenever appropriate and the output of programs or projects can be readily quantified, such quantitative data should be related to cost data for computation of unit costs. However, unit costs are generally inappropriate for research (see § 32.21 (a) and (b)(4)).
(2) Reasons why established goals were not met, if appropriate.
(3) Other pertinent information including, when appropriate, analysis and explanation of cost overruns or high unit costs.
(e) Recipients shall not be required to submit more than the original and two copies of performance reports.
(f) Recipients shall immediately notify the grants officer of developments that have a significant impact on the award-supported activities. Also, notification shall be given in the case of problems, delays, or adverse conditions which materially impair the ability to meet the objectives of the award. This notification shall include a statement of the action taken or contemplated, and any assistance needed to resolve the situation.
(g) DoD Components’ representatives may make site visits, as needed.
(h) DoD Components shall comply with applicable clearance requirements of 5 CFR part 1320 when requesting performance data from recipients.
(a) The following forms or such other forms as may be approved by OMB are authorized for obtaining financial information from recipients:
(1)
(ii) The DoD Component shall prescribe whether the report shall be on a cash or accrual basis. If the award requires accrual information and the recipient's accounting records are not normally kept on the accrual basis, the recipient shall not be required to convert its accounting system, but shall develop such accrual information through best estimates based on an analysis of the documentation on hand.
(iii) The DoD Component shall determine the frequency of the Financial Status Report for each project or program, considering the size and complexity of the particular project or program. However, the report shall not be required more frequently than quarterly or less frequently than annually. A final report shall be required at the completion of the award.
(iv) The DoD Component shall require recipients to submit the SF-269 or SF-269A (an original and no more than two copies) no later than 30 calendar days after the end of each specified reporting period for quarterly and semi-annual reports, and 90 calendar days for annual and final reports. Extensions of reporting due dates may be approved by the grants officer upon request of the recipient.
(2)
(ii) DoD Components may require forecasts of Federal cash requirements in the “Remarks” section of the report.
(iii) When practical and deemed necessary, DoD Components may require recipients to report in the “Remarks” section the amount of cash advances received in excess of three working days. Recipients shall provide short narrative explanations of actions taken to reduce the excess balances.
(iv) Recipients shall be required to submit not more than the original and two copies of the SF-272 15 calendar days following the end of each quarter. DoD Components may require a monthly report from those recipients receiving advances totaling $1 million or more per year.
(v) DoD Components may waive the requirement for submission of the SF-272 for any one of the following reasons:
(A) When monthly advances do not exceed $25,000 per recipient, provided that such advances are monitored through other forms contained in this section;
(B) If, in the grants officer's opinion, the recipient's accounting controls are adequate to minimize excessive Federal advances; or
(C) When electronic payment mechanisms or SF-270 forms provide adequate data.
(b) When the DoD Component needs additional information or more frequent reports, the following shall be observed:
(1) When additional information is needed to comply with legislative requirements, grants officers shall issue instructions to require recipients to submit such information under the “Remarks” section of the reports.
(2) When a grants officer, after consultation with the Federal agency assigned cognizance for a recipient's audit and audit resolution, determines that the recipient's accounting system does not meet the standards in § 32.21, additional pertinent information to further monitor awards may be obtained upon written notice to the recipient until such time as the system is brought up to standard. The grants officer, in obtaining this information, shall comply with applicable report clearance requirements of 5 CFR part 1320.
(3) Grants officers are encouraged to shade out any line item on any report if not necessary.
(4) DoD Components are encouraged to accept the identical information from the recipients in machine readable format or computer printouts or electronic outputs in lieu of prescribed formats.
(5) DoD Components may provide computer or electronic outputs to recipients when it expedites or contributes to the accuracy of reporting.
(a) This section sets forth requirements for record retention and access to records for awards to recipients. DoD Components shall not impose any other record retention or access requirements upon recipients.
(b) Financial records, supporting documents, statistical records, and all other records pertinent to an award shall be retained for a period of three years from the date of submission of the final expenditure report. The only exceptions are the following:
(1) If any litigation, claim, or audit is started before the expiration of the 3-year period, the records shall be retained until all litigation, claims or audit findings involving the records have been resolved and final action taken.
(2) Records for real property and equipment acquired with Federal funds shall be retained for 3 years after final disposition.
(3) When records are transferred to or maintained by the DoD Component that made the award, the 3-year retention requirement is not applicable to the recipient.
(4) Indirect cost rate proposals, cost allocations plans, and related records, for which retention requirements are specified in paragraph (g) of this section.
(c) Copies of original records may be substituted for the original records if authorized by the grants officer.
(d) The grants officer shall request that recipients transfer certain records to DoD Component custody when he or she determines that the records possess long term retention value. However, in order to avoid duplicate recordkeeping, a grants officer may make arrangements for recipients to retain any records that are continuously needed for joint use.
(e) DoD Components, the Inspector General, Comptroller General of the United States, or any of their duly authorized representatives, have the right of timely and unrestricted access to any books, documents, papers, or other records of recipients that are pertinent to the awards, in order to make audits, examinations, excerpts, transcripts and copies of such documents. This right also includes timely and reasonable access to a recipient's personnel for the purpose of interview and discussion related to such documents. The rights of access in this paragraph are not limited to the required retention period, but shall last as long as records are retained.
(f) Unless required by statute, no DoD Component shall place restrictions on recipients that limit public access to the records of recipients that are pertinent to an award, except when the DoD Component can demonstrate that such records shall be kept confidential and would have been exempted from disclosure pursuant to the Freedom of Information Act (5 U.S.C. 552) if the records had belonged to the DoD Component making the award.
(g) Indirect cost rate proposals, cost allocations plans, etc. Paragraphs (g)(1) and (g)(2) of this section apply to the following types of documents, and their supporting records: indirect cost rate computations or proposals, cost allocation plans, and any similar accounting computations of the rate at which a particular group of costs is chargeable (such as computer usage chargeback rates or composite fringe benefit rates).
(1)
(2)
(h) If the information described in this section is maintained on a computer, recipients shall retain the computer data on a reliable medium for the time periods prescribed. Recipients may transfer computer data in machine readable form from one reliable computer medium to another. Recipients’ computer data retention and transfer procedures shall maintain the integrity, reliability, and security of the original computer data. Recipients shall also maintain an audit trail describing the data transfer. For the record retention time periods prescribed in this section, recipients shall not destroy, discard, delete, or write over such computer data.
Sections 32.61 and 32.62 set forth uniform suspension, termination and enforcement procedures.
(a) Awards may be terminated in whole or in part only as follows:
(1) By the grants officer, if a recipient materially fails to comply with the terms and conditions of an award;
(2) By the grants officer with the consent of the recipient, in which case the two parties shall agree upon the termination conditions, including the effective date and, in the case of partial termination, the portion to be terminated; or
(3) By the recipient upon sending to the grants officer written notification setting forth the reasons for such termination, the effective date, and, in the case of partial termination, the portion to be terminated. The recipient must provide such notice at least 30 calendar days prior to the effective date of the termination. However, if the grants officer determines in the case of partial termination that the reduced or modified portion of the award will not accomplish the purposes for which the award was made, he or she may terminate the award in its entirety.
(b) If costs are allowed under an award, the responsibilities of the recipient referred to in § 32.71, including those for property management as applicable, shall be considered in the termination of the award, and provision shall be made for continuing responsibilities of the recipient after termination, as appropriate.
(a)
(1) Temporarily withhold cash payments pending correction of the deficiency by the recipient or more severe enforcement action by the grants officer and DoD Component.
(2) Disallow (that is, deny both use of funds and any applicable matching credit for) all or part of the cost of the activity or action not in compliance.
(3) Wholly or partly suspend or terminate the current award.
(4) Withhold further awards for the project or program.
(5) Take other remedies that may be legally available.
(b)
(c)
(1) Result from obligations which were properly incurred by the recipient before the effective date of suspension or termination, are not in anticipation of it, and in the case of a termination, are noncancellable; and
(2) Would be allowable if the award were not suspended or expired normally at the end of the funding period in which the termination takes effect.
(d)
Sections 32.71 through 32.73 contain closeout procedures and other procedures for subsequent disallowances and adjustments.
(a) Recipients shall submit, within 90 calendar days after the date of completion of the award, all financial, performance, and other reports required by the terms and conditions of the award. The grants officer may approve extensions when requested by the recipient.
(b) Unless the grants officer authorizes an extension, a recipient shall liquidate all obligations incurred under the award not later than 90 calendar days after the funding period or the date of completion as specified in the terms and conditions of the award or in agency implementing instructions.
(c) The responsible grants officer and payment office shall expedite completion of steps needed to close out awards and make prompt, final payments to a recipient for allowable reimbursable costs under the award being closed out.
(d) The recipient shall promptly refund any balances of unobligated cash that the DoD Component has advanced or paid and that is not authorized to be retained by the recipient for use in other projects. OMB Circular A-129\13\
(e) When authorized by the terms and conditions of the award, the grants officer shall make a settlement for any upward or downward adjustments to the Federal share of costs after closeout reports are received.
(f) The recipient shall account for any real and personal property acquired with Federal funds or received from the Federal Government in accordance with §§ 32.31 through 32.37.
(g) In the event a final audit has not been performed prior to the closeout of an award, the DoD Component shall retain the right to recover an appropriate amount after fully considering the recommendations on disallowed costs resulting from the final audit.
(a) The closeout of an award does not affect any of the following:
(1) The right of the Department of Defense to disallow costs and recover funds on the basis of a later audit or other review.
(2) The obligation of the recipient to return any funds due as a result of later refunds, corrections, or other transactions.
(3) Audit requirements in § 32.26.
(4) Property management requirements in §§ 32.31 through 32.37.
(5) Records retention as required in § 32.53.
(b) After closeout of an award, a relationship created under an award may be modified or ended in whole or in part with the consent of the grants officer and the recipient, provided the responsibilities of the recipient referred to in § 32.73(a), including those for property management as applicable, are considered and provisions made for continuing responsibilities of the recipient, as appropriate.
(a) Any funds paid to a recipient in excess of the amount to which the recipient is finally determined to be entitled under the terms and conditions of the award constitute a debt to the Federal Government.
(b) OMB Circular A-110 informs each Federal agency that:
(1) If a debt is not paid within a reasonable period after the demand for payment, the Federal agency may reduce the debt by:
(i) Making administrative offset against other requests for reimbursement.
(ii) Withholding advance payments otherwise due to the recipient.
(iii) Taking other action permitted by statute.
(2) Except as otherwise provided by law, the Federal awarding agency shall charge interest on an overdue debt in accordance with 4 CFR Chapter II, “Federal Claims Collection Standards.”
(c) DoD grants officers shall follow the procedures in 32 CFR 22.820 for issuing demands for payment and transferring debts to DoD payment offices for collection. Recipients will be informed about pertinent procedures and timeframes through the written notices of grants officers’ decisions and demands for payment.
All contracts awarded by a recipient, including those for amounts less than the simplified acquisition threshold, shall contain the following provisions as applicable:
1.
2.
3.
4.
5.
6.
7.
8.
5 U.S.C. 301; 10 U.S.C. 113.
This part establishes uniform administrative rules for Federal grants and cooperative agreements and subawards to State, local and Indian tribal governments.
This subpart contains general rules pertaining to this part and procedures for control of exceptions from this part.
As used in this part:
(1) Goods and other tangible property received;
(2) Services performed by employees, contractors, subgrantees, subcontractors, and other payees; and
(3) Other amounts becoming owed under programs for which no current services or performance is required, such as annuities, insurance claims, and other benefit payments.
(1) Earnings during a given period from services performed by the grantee and goods and other tangible property delivered to purchasers, and
(2) Amounts becoming owed to the grantee for which no current services or performance is required by the grantee.
(1) With respect to a grant, the Federal agency, and
(2) With respect to a subgrant, the party that awarded the subgrant.
(1) For nonconstruction grants, the SF-269 “Financial Status Report” (or other equivalent report);
(2) For construction grants, the SF-271 “Outlay Report and Request for Reimbursement” (or other equivalent report).
(1) Temporary withdrawal of the authority to obligate grant funds pending corrective action by the grantee or subgrantee or a decision to terminate the grant, or
(2) An action taken by a suspending official in accordance with agency regulations implementing E.O. 12549 to immediately exclude a person from participating in grant transactions for a period, pending completion of an investigation and such legal or debarment proceedings as may ensue.
(1) Withdrawal of funds awarded on the basis of the grantee's underestimate of the unobligated balance in a prior period;
(2) Withdrawal of the unobligated balance as of the expiration of a grant;
(3) Refusal to extend a grant or award additional funds, to make a competing or noncompeting continuation, renewal, extension, or supplemental award; or
(4) Voiding of a grant upon determination that the award was obtained fraudulently, or was otherwise illegal or invalid from inception.
(a)
(1) Grants and subgrants to State and local institutions of higher education or State and local hospitals.
(2) The block grants authorized by the Omnibus Budget Reconciliation Act of 1981 (Community Services; Preventive Health and Health Services; Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child Health Services; Social Services; Low-Income Home Energy Assistance; States’ Program of Community Development Block Grants for Small Cities; and Elementary and Secondary Education other than programs administered by the Secretary of Education under title V, subtitle D, chapter 2, section 583—the Secretary's discretionary grant program) and titles I-III of the Job Training Partnership Act of 1982 and under the Public Health Services Act (section 1921), Alcohol and Drug Abuse Treatment and Rehabilitation Block Grant and part C of title V, Mental Health Service for the Homeless Block Grant).
(3) Entitlement grants to carry out the following programs of the Social Security Act:
(i) Aid to Needy Families with Dependent Children (title IV-A of the Act, not including the Work Incentive Program (WIN) authorized by section 402(a)19(G); HHS grants for WIN are subject to this part);
(ii) Child Support Enforcement and Establishment of Paternity (title IV-D of the Act);
(iii) Foster Care and Adoption Assistance (title IV-E of the Act);
(iv) Aid to the Aged, Blind, and Disabled (titles I, X, XIV, and XVI-AABD of the Act); and
(v) Medical Assistance (Medicaid) (title XIX of the Act) not including the State Medicaid Fraud Control program authorized by section 1903(a)(6)(B).
(4) Entitlement grants under the following programs of The National School Lunch Act:
(i) School Lunch (section 4 of the Act),
(ii) Commodity Assistance (section 6 of the Act),
(iii) Special Meal Assistance (section 11 of the Act),
(iv) Summer Food Service for Children (section 13 of the Act), and
(v) Child Care Food Program (section 17 of the Act).
(5) Entitlement grants under the following programs of The Child Nutrition Act of 1966:
(i) Special Milk (section 3 of the Act), and
(ii) School Breakfast (section 4 of the Act).
(6) Entitlement grants for State Administrative expenses under The Food Stamp Act of 1977 (section 16 of the Act).
(7) A grant for an experimental, pilot, or demonstration project that is also supported by a grant listed in paragraph (a)(3) of this section;
(8) Grant funds awarded under subsection 412(e) of the Immigration and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat. 1809), for cash assistance, medical assistance, and supplemental security income benefits to refugees and entrants and the administrative costs of providing the assistance and benefits;
(9) Grants to local education agencies under 20 U.S.C. 236 through 241-1(a), and 242 through 244 (portions of the Impact Aid program), except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for Handicapped Children); and
(10) Payments under the Veterans Administration's State Home Per Diem Program (38 U.S.C. 641(a)).
(b)
All other grants administration provisions of codified program regulations, program manuals, handbooks and other nonregulatory materials which are inconsistent with this part are superseded, except to the extent they are required by statute, or authorized in accordance with the exception provision in § 33.6.
(a) For classes of grants and grantees subject to this part, Federal agencies may not impose additional administrative requirements except in codified regulations published in the
(b) Exceptions for classes of grants or grantees may be authorized only by OMB.
(c) Exceptions on a case-by-case basis and for subgrantees may be authorized by the affected Federal agencies.
(a)
(2) This section applies only to applications to Federal agencies for grants, and is not required to be applied by grantees in dealing with applicants for subgrants. However, grantees are encouraged to avoid more detailed or burdensome application requirements for subgrants.
(b)
(2) Applicants are not required to submit more than the original and two copies of preapplications or applications.
(3) Applicants must follow all applicable instructions that bear OMB clearance numbers. Federal agencies may specify and describe the programs, functions, or activities that will be used to plan, budget, and evaluate the work under a grant. Other supplementary instructions may be issued only with the approval of OMB to the extent required under the Paperwork Reduction Act of 1980. For any standard form, except the SF-424 facesheet, Federal agencies may shade out or instruct the applicant to disregard any line item that is not needed.
(4) When a grantee applies for additional funding (such as a continuation or supplemental award) or amends a previously submitted application, only the affected pages need be submitted. Previously submitted pages with information that is still current need not be resubmitted.
(a)
(b)
(c)
(1) Cite by number the statutory or regulatory provisions requiring the assurances and affirm that it gives the assurances required by those provisions,
(2) Repeat the assurance language in the statutes or regulations, or
(3) Develop its own language to the extent permitted by law.
(d)
(a) A grantee or subgrantee may be considered “high risk” if an awarding agency determines that a grantee or subgrantee:
(1) Has a history of unsatisfactory performance, or
(2) Is not financially stable, or
(3) Has a management system which does not meet the management standards set forth in this part, or
(4) Has not conformed to terms and conditions of previous awards, or
(5) Is otherwise not responsible; and if the awarding agency determines that an award will be made, special conditions and/or restrictions shall correspond to the high risk condition and shall be included in the award.
(b) Special conditions or restrictions may include:
(1) Payment on a reimbursement basis;
(2) Withholding authority to proceed to the next phase until receipt of evidence of acceptable performance within a given funding period;
(3) Requiring additional, more detailed financial reports;
(4) Additional project monitoring;
(5) Requiring the grantee or subgrantee to obtain technical or management assistance; or
(6) Establishing additional prior approvals.
(c) If an awarding agency decides to impose such conditions, the awarding official will notify the grantee or subgrantee as early as possible, in writing, of:
(1) The nature of the special conditions/restrictions;
(2) The reason(s) for imposing them;
(3) The corrective actions which must be taken before they will be removed and the time allowed for completing the corrective actions and
(4) The method of requesting reconsideration of the conditions/restrictions imposed.
(a) A State must expand and account for grant funds in accordance with State laws and procedures for expending and accounting for its own funds. Fiscal control and accounting procedures of the State, as well as its subgrantees and cost-type contractors, must be sufficient to—
(1) Permit preparation of reports required by this part and the statutes authorizing the grant, and
(2) Permit the tracing of funds to a level of expenditures adequate to establish that such funds have not been used in violation of the restrictions and prohibitions of applicable statutes.
(b) The financial management systems of other grantees and subgrantees must meet the following standards:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(c) An awarding agency may review the adequacy of the financial management system of any applicant for financial assistance as part of a preaward review or at any time subsequent to award.
(a)
(b)
(c)
(d)
(e)
(f)
(2) Except as provided in paragraph (f)(1) of this section, grantees and subgrantees shall disburse program income, rebates, refunds, contract settlements, audit recoveries and interest earned on such funds before requesting additional cash payments.
(g)
(i) The grantee or subgrantee has failed to comply with grant award conditions or
(ii) The grantee or subgrantee is indebted to the United States.
(2) Cash withheld for failure to comply with grant award condition, but without suspension of the grant, shall be released to the grantee upon subsequent compliance. When a grant is suspended, payment adjustments will be made in accordance with § 33.43(c).
(3) A Federal agency shall not make payment to grantees for amounts that are withheld by grantees or subgrantees from payment to contractors to assure satisfactory completion of work. Payments shall be made by the Federal agency when the grantees or subgrantees actually disburse the withheld funds to the contractors or to escrow accounts established to assure satisfactory completion of work.
(h)
(2) A grantee or subgrantee shall maintain a separate bank account only when required by Federal-State agreement.
(i)
(a)
(1) The allowable costs of the grantees, subgrantees and cost-type contractors, including allowable costs in the form of payments to fixed-price contractors; and
(2) Reasonable fees or profit to cost-type contractors but not any fee or profit (or other increment above allowable costs) to the grantee or subgrantee.
(b)
(a)
(b)
(a)
(1) Allowable costs incurred by the grantee, subgrantee or a cost-type contractor under the assistance agreement. This includes allowable costs borne by non-Federal grants or by others cash donations from non-Federal third parties.
(2) The value of third party in-kind contributions applicable to the period to which the cost sharing or matching requirements applies.
(b)
(2)
(3)
(4)
(5)
(6)
(7)
(ii) Some third party in-kind contributions are goods and services that, if the grantee, subgrantee, or contractor receiving the contribution had to pay for them, the payments would have been an indirect costs. Costs sharing or matching credit for such contributions shall be given only if the grantee, subgrantee, or contractor has established, along with its regular indirect cost rate, a special rate for allocating to individual projects or programs the value of the contributions.
(iii) A third party in-kind contribution to a fixed-price contract may count towards satisfying a cost sharing or matching requirement only if it results in:
(A) An increase in the services or property provided under the contract (without additional cost to the grantee or subgrantee) or
(B) A cost savings to the grantee or subgrantee.
(iv) The values placed on third party in-kind contributions for cost sharing or matching purposes will conform to the rules in the succeeding sections of this part. If a third party in-kind contribution is a type not treated in those sections, the value placed upon it shall be fair and reasonable.
(c)
(2)
(d)
(2) If a third party donates the use of equipment or space in a building but retains title, the contribution will be valued at the fair rental rate of the equipment or space.
(e)
(1)
(2)
(i) If approval is obtained from the awarding agency, the market value at the time of donation of the donated equipment or buildings and the fair rental rate of the donated land may be counted as cost sharing or matching. In the case of a subgrant, the terms of the grant agreement may require that the approval be obtained from the Federal agency as well as the grantee. In all cases, the approval may be given only if a purchase of the equipment or rental of the land would be approved as an allowable direct cost. If any part of the donated property was acquired with Federal funds, only the non-Federal share of the property may be counted as cost-sharing or matching.
(ii) If approval is not obtained under paragraph (e)(2)(i) of this section, no amount may be counted for donated land, and only depreciation or use allowances may be counted for donated equipment and buildings. The depreciation or use allowances for this property are not treated as third party in-kind
(f)
(g)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(1)
(2)
(3)
(h)
(a)
(b)
(1) Determine whether State or local subgrantees have met the audit requirements of the Act and whether subgrantees covered by OMB Circular A-110, “Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations,” have met the audit requirements of the Act. Commercial contractors (private for-profit and private and governmental organizations) providing goods and services to State and local governments are not required to have a single audit performed. State and local governments should use their own procedures to ensure that the contractor has complied with laws and regulations affecting the expenditure of Federal funds;
(2) Determine whether the subgrantee spent Federal assistance funds provided in accordance with applicable laws and regulations. This may be accomplished by reviewing an audit of the subgrantee made in accordance with the Act, Circular A-110, or through other means (e.g., program reviews) if the subgrantee has not had such an audit;
(3) Ensure that appropriate corrective action is taken within six months after receipt of the audit report in instance of noncompliance with Federal laws and regulations;
(4) Consider whether subgrantee audits necessitate adjustment of the grantee's own records; and
(5) Require each subgrantee to permit independent auditors to have access to the records and financial statements.
(c)
(a)
(b)
(c)
(i) Any revision which would result in the need for additional funding.
(ii) Unless waived by the awarding agency, cumulative transfers among direct cost categories, or, if applicable, among separately budgeted programs, projects, functions, or activities which exceed or are expected to exceed ten percent of the current total approved budget, whenever the awarding agency's share exceeds $100,000.
(iii) Transfer of funds allotted for training allowances (i.e., from direct payments to trainees to other expense categories).
(2)
(3)
(d)
(1) Any revision of the scope or objectives of the project (regardless of whether there is an associated budget revision requiring prior approval).
(2) Need to extend the period of availability of funds.
(3) Changes in key persons in cases where specified in an application or a grant award. In research projects, a change in the project director or principal investigator shall always require approval unless waived by the awarding agency.
(4) Under nonconstruction projects, contracting out, subgranting (if authorized by law) or otherwise obtaining the services of a third party to perform activities which are central to the purposes of the award. This approval requirement is in addition to the approval requirements of § 33.36 but does not apply to the procurement of equipment, supplies, and general support services.
(e)
(f)
(2) A request for a prior approval under the applicable Federal cost principles (see § 33.22) may be made by letter.
(3) A request by a subgrantee for prior approval will be addressed in writing to the grantee. The grantee will promptly review such request and shall approve or disapprove the request in writing. A grantee will not approve any budget or project revision which is inconsistent with the purpose or terms and conditions of the Federal grant to the grantee. If the revision, requested by the subgrantee would result in a change to the grantee's approved project which requires Federal prior approval, the grantee will obtain the Federal agency's approval before approving the subgrantee's request.
(a)
(b)
(c)
(1)
(2)
(3)
(a)
(b)
(c)
(2) The grantee or subgrantee shall also make equipment available for use on other projects or programs currently or previously supported by the Federal Government, providing such use will not interfere with the work on the projects or program for which it was originally acquired. First preference for other use shall be given to other programs or projects supported by the awarding agency. User fees should be considered if appropriate.
(3) Notwithstanding the encouragement in § 33.25(a) to earn program income, the grantee or subgrantee must not use equipment acquired with grant funds to provide services for a fee to compete unfairly with private companies that provide equivalent services, unless specifically permitted or contemplated by Federal statute.
(4) When acquiring replacement equipment, the grantee or subgrantee may use the equipment to be replaced as a trade-in or sell the property and use the proceeds to offset the cost of the replacement property, subject to the approval of the awarding agency.
(d)
(1) Property records must be maintained that include a description of the property, a serial number or other identification number, the source of property, who holds title, the acquisition date, and cost of the property, percentage of Federal participation in the cost of the property, the location, use and condition of the property, and any ultimate disposition data including the date of disposal and sale price of the property.
(2) A physical inventory of the property must be taken and the results reconciled with the property records at least once every two years.
(3) A control system must be developed to ensure adequate safeguards to prevent loss, damage, or theft of the property. Any loss, damage, or theft shall be investigated.
(4) Adequate maintenance procedures must be developed to keep the property in good condition.
(5) If the grantee or subgrantee is authorized or required to sell the property, proper sales procedures must be established to ensure the highest possible return.
(e)
(1) Items of equipment with a current per-unit fair market value of less than $5,000 may be retained, sold or otherwise disposed of with no further obligation to the awarding agency.
(2) Items of equipment with a current per unit fair market value in excess of $5,000 may be retained or sold and the awarding agency shall have a right to an amount calculated by multiplying the current market value or proceeds from sale by the awarding agency's share of the equipment.
(3) In cases where a grantee or subgrantee fails to take appropriate disposition actions, the awarding agency may direct the grantee or subgrantee to take excess and disposition actions.
(f)
(1) Title will remain vested in the Federal Government.
(2) Grantees or subgrantees will manage the equipment in accordance with Federal agency rules and procedures, and submit an annual inventory listing.
(3) When the equipment is no longer needed, the grantee or subgrantee will request disposition instructions from the Federal agency.
(g)
(1) The property shall be identified in the grant or otherwise made known to the grantee in writing.
(2) The Federal awarding agency shall issue disposition instruction within 120 calendar days after the end of the Federal support of the project for which it was acquired. If the Federal awarding agency fails to issue disposition instructions within the 120 calendar-day period the grantee shall follow § 33.32(e).
(3) When title to equipment is transferred, the grantee shall be paid an amount calculated by applying the percentage of participation in the purchase to the current fair market value of the property.
(a)
(b)
The Federal awarding agency reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for Federal Government purposes:
(a) The copyright in any work developed under a grant, subgrant, or contract under a grant or subgrant; and
(b) Any rights of copyright to which a grantee, subgrantee or a contractor purchases ownership with grant support.
Grantees and subgrantees must not make any award or permit any award (subgrant or contract) at any tier to any party which is debarred or suspended or is otherwise excluded from or ineligible for participation in Federal assistance programs under Executive Order 12549, “Debarment and Suspension.”
(a)
(b)
(2) Grantees and subgrantees will maintain a contract administration system which ensures that contractors perform in accordance with the terms, conditions, and specifications of their contracts or purchase orders.
(3) Grantees and subgrantees will maintain a written code of standards of conduct governing the performance of their employees engaged in the award and administration of contracts. No employee, officer or agent of the grantee or subgrantee shall participate in selection, or in the award or administration of a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when:
(i) The employee, officer or agent,
(ii) Any member of his immediate family,
(iii) His or her partner, or
(iv) An organization which employs, or is about to employ, any of the above, has a financial or other interest in the firm selected for award. The grantee's or subgrantee's officers, employees or agents will neither solicit nor accept gratuities, favors or anything of monetary value from contractors, potential contractors, or parties to subagreements. Grantee and subgrantees may set minimum rules where the financial interest is not substantial or the gift is an unsolicited item of nominal intrinsic value. To the extent permitted by State or local law or regulations, such standards or conduct will provide for penalties, sanctions, or other disciplinary actions for violations of such standards by the grantee's and subgrantee's officers, employees, or agents, or by contractors or their agents. The awarding agency may in regulation provide additional prohibitions relative to real, apparent, or potential conflicts of interest.
(4) Grantee and subgrantee procedures will provide for a review of proposed procurements to avoid purchase of unnecessary or duplicative items. Consideration should be given to consolidating or breaking out procurements to obtain a more economical purchase. Where appropriate, an analysis will be made of lease versus purchase alternatives, and any other appropriate analysis to determine the most economical approach.
(5) To foster greater economy and efficiency, grantees and subgrantees are encouraged to enter into State and local intergovernmental agreements for procurement or use of common goods and services.
(6) Grantees and subgrantees are encouraged to use Federal excess and surplus property in lieu of purchasing new equipment and property whenever such
(7) Grantees and subgrantees are encouraged to use value engineering clauses in contracts for construction projects of sufficient size to offer reasonable opportunities for cost reductions. Value engineering is a systematic and creative anaylsis of each contract item or task to ensure that its essential function is provided at the overall lower cost.
(8) Grantees and subgrantees will make awards only to responsible contractors possessing the ability to perform successfully under the terms and conditions of a proposed procurement. Consideration will be given to such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources.
(9) Grantees and subgrantees will maintain records sufficient to detail the significant history of a procurement. These records will include, but are not necessarily limited to the following: rationale for the method of procurement, selection of contract type, contractor selection or rejection, and the basis for the contract price.
(10) Grantees and subgrantees will use time and material type contracts only—
(i) After a determination that no other contract is suitable, and
(ii) If the contract includes a ceiling price that the contractor exceeds at its own risk.
(11) Grantees and subgrantees alone will be responsible, in accordance with good administrative practice and sound business judgment, for the settlement of all contractual and administrative issues arising out of procurements. These issues include, but are not limited to source evaluation, protests, disputes, and claims. These standards do not relieve the grantee or subgrantee of any contractual responsibilities under its contracts. Federal agencies will not substitute their judgment for that of the grantee or subgrantee unless the matter is primarily a Federal concern. Violations of law will be referred to the local, State, or Federal authority having proper jurisdiction.
(12) Grantees and subgrantees will have protest procedures to handle and resolve disputes relating to their procurements and shall in all instances disclose information regarding the protest to the awarding agency. A protestor must exhaust all administrative remedies with the grantee and subgrantee before pursuing a protest with the Federal agency. Reviews of protests by the Federal agency will be limited to:
(i) Violations of Federal law or regulations and the standards of this section (violations of State or local law will be under the jurisdiction of State or local authorities) and
(ii) Violations of the grantee's or subgrantee's protest procedures for failure to review a complaint or protest. Protests received by the Federal agency other than those specified above will be referred to the grantee or subgrantee.
(c)
(i) Placing unreasonable requirements on firms in order for them to qualify to do business,
(ii) Requiring unnecessary experience and excessive bonding,
(iii) Noncompetitive pricing practices between firms or between affiliated companies,
(iv) Noncompetitive awards to consultants that are on retainer contracts,
(v) Organizational conflicts of interest,
(vi) Specifying only a “brand name” product instead of allowing “an equal” product to be offered and describing the performance of other relevant requirements of the procurement, and
(vii) Any arbitrary action in the procurement process.
(2) Grantees and subgrantees will conduct procurements in a manner that prohibits the use of statutorily or administratively imposed in-State or local geographical preferences in the evaluation of bids or proposals, except in those cases where applicable Federal statutes expressly mandate or encourage geographic preference. Nothing in this section preempts State licensing laws. When contracting for architectural and engineering (A/E) services,
(3) Grantees will have written selection procedures for procurement transactions. These procedures will ensure that all solicitations:
(i) Incorporate a clear and accurate description of the technical requirements for the material, product, or service to be procured. Such description shall not, in competitive procurements, contain features which unduly restrict competition. The description may include a statement of the qualitative nature of the material, product or service to be procured, and when necessary, shall set forth those minimum essential characteristics and standards to which it must conform if it is to satisfy its intended use. Detailed product specifications should be avoided if at all possible. When it is impractical or uneconomical to make a clear and accurate description of the technical requirements, a “brand name or equal” description may be used as a means to define the performance or other salient requirements of a procurement. The specific features of the named brand which must be met by offerors shall be clearly stated; and
(ii) Identify all requirements which the offerors must fulfill and all other factors to be used in evaluating bids or proposals.
(4) Grantees and subgrantees will ensure that all prequalified lists of persons, firms, or products which are used in acquiring goods and services are current and include enough qualified sources to ensure maximum open and free competition. Also, grantees and subgrantees will not preclude potential bidders from qualifying during the solicitation period.
(d)
(2) Procurement by
(i) In order for sealed bidding to be feasible, the following conditions should be present:
(A) A complete, adequate, and realistic specification or purchase description is available;
(B) Two or more responsible bidders are willing and able to compete effectively and for the business; and
(C) The procurement lends itself to a firm fixed price contract and the selection of the successful bidder can be made principally on the basis of price.
(ii) If sealed bids are used, the following requirements apply:
(A) The invitation for bids will be publicly advertised and bids shall be solicited from an adequate number of known suppliers, providing them sufficient time prior to the date set for opening the bids;
(B) The invitation for bids, which will include any specifications and pertinent attachments, shall define the items or services in order for the bidder to properly respond;
(C) All bids will be publicly opened at the time and place prescribed in the invitation for bids;
(D) A firm fixed-price contract award will be made in writing to the lowest responsive and responsible bidder. Where specified in bidding documents, factors such as discounts, transportation cost, and life cycle costs shall be considered in determining which bid is lowest. Payment discounts will only be used to determine the low bid when prior experience indicates that such discounts are usually taken advantage of; and
(E) Any or all bids may be rejected if there is a sound documented reason.
(3) Procurement by
(i) Requests for proposals will be publicized and identify all evaluation factors and their relative importance. Any response to publicized requests for proposals shall be honored to the maximum extent practical;
(ii) Proposals will be solicited from an adequate number of qualified sources;
(iii) Grantees and subgrantees will have a method for conducting technical evaluations of the proposals received and for selecting awardees;
(iv) Awards will be made to the responsible firm whose proposal is most advantageous to the program, with price and other factors considered; and
(v) Grantees and subgrantees may use competitive proposal procedures for qualifications-based procurement of architectural/engineering (A/E) professional services whereby competitors’ qualifications are evaluated and the most qualified competitor is selected, subject to negotiation of fair and reasonable compensation. The method, where price is not used as a selection factor, can only be used in procurement of A/E professional services. It cannot be used to purchase other types of services though A/E firms are a potential source to perform the proposed effort.
(4) Procurement by
(i) Procurement by noncompetitive proposals may be used only when the award of a contract is infeasible under small purchase procedures, sealed bids or competitive proposals and one of the following circumstances applies:
(A) The item is available only from a single source;
(B) The public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation;
(C) The awarding agency authorizes noncompetitive proposals; or
(D) After solicitation of a number of sources, competition is determined inadequate.
(ii) Cost analysis, i.e., verifying the proposed cost data, the projections of the data, and the evaluation of the specific elements of costs and profits, is required.
(iii) Grantees and subgrantees may be required to submit the proposed procurement to the awarding agency for pre-award review in accordance with paragraph (g) of this section.
(e)
(2) Affirmative steps shall include:
(i) Placing qualified small and minority businesses and women's business enterprises on solicitation lists;
(ii) Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources;
(iii) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business enterprises;
(iv) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises;
(v) Using the services and assistance of the Small Business Administration, and the Minority Business Development Agency of the Department of Commerce; and
(vi) Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs (e)(2) (i) through (v) of this section.
(f)
(2) Grantees and subgrantees will negotiate profit as a separate element of the price for each contract in which there is no price competition and in all cases where cost analysis is performed. To establish a fair and reasonable profit, consideration will be given to the complexity of the work to be performed, the risk borne by the contractor, the contractor's investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work.
(3) Costs or prices based on estimated costs for contracts under grants will be allowable only to the extent that costs incurred or cost estimates included in negotiated prices are consistent with Federal cost principles (see § 33.22). Grantees may reference their own cost principles that comply with the applicable Federal cost principles.
(4) The cost plus a percentage of cost and percentage of construction cost methods of contracting shall not be used.
(g)
(2) Grantees and subgrantees must on request make available for awarding agency pre-award review procurement documents, such as requests for proposals or invitations for bids, independent cost estimates, etc. when:
(i) A grantee's or subgrantee's procurement procedures or operation fails to comply with the procurement standards in this section; or
(ii) The procurement is expected to exceed the simplified acquisition threshold and is to be awarded without competition or only one bid or offer is received in response to a solicitation; or
(iii) The procurement, which is expected to exceed the simplified acquisition threshold, specifies a “brand name” product; or
(iv) The proposed award is more than the simplified acquisition threshold and is to be awarded to other than the apparent low bidder under a sealed bid procurement; or
(v) A proposed contract modification changes the scope of a contract or increases the contract amount by more than the simplified acquisition threshold.
(3) A grantee or subgrantee will be exempt from the pre-award review in paragraph (g)(2) of this section if the awarding agency determines that its procurement systems comply with the standards of this section.
(i) A grantee or subgrantee may request that its procurement system be reviewed by the awarding agency to determine whether its system meets these standards in order for its system to be certified. Generally, these reviews shall occur where there is a continuous high-dollar funding, and third-party contracts are awarded on a regular basis.
(ii) A grantee or subgrantee may self-certify its procurement system. Such self-certification shall not limit the awarding agency's right to survey the
(h)
(1)
(2)
(3)
(i)
(1) Administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as may be appropriate. (Contracts more than the simplified acquisition threshold)
(2) Termination for cause and for convenience by the grantee or subgrantee including the manner by which it will be effected and the basis for settlement. (All contracts in excess of $10,000)
(3) Compliance with Executive Order 11246 of September 24, 1965, entitled “Equal Employment Opportunity,” as amended by Executive Order 11375 of October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR chapter 60). (All construction contracts awarded in excess of $10,000 by grantees and their contractors or subgrantees)
(4) Compliance with the Copeland “Anti-Kickback” Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3). (All contracts and subgrants for construction or repair)
(5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction contracts in excess of $2000 awarded by grantees and subgrantees when required by Federal grant program legislation)
(6) Compliance with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-330) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction contracts awarded by grantees and subgrantees in excess of $2000, and in excess of $2500 for other contracts which involve the employment of mechanics or laborers)
(7) Notice of awarding agency requirements and regulations pertaining to reporting.
(8) Notice of awarding agency requirements and regulations pertaining to patent rights with respect to any discovery or invention which arises or is developed in the course of or under such contract.
(9) Awarding agency requirements and regulations pertaining to copyrights and rights in data.
(10) Access by the grantee, the subgrantee, the Federal grantor agency,
(11) Retention of all required records for three years after grantees or subgrantees make final payments and all other pending matters are closed.
(12) Compliance with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in excess of $100,000)
(13) Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 89 Stat. 871).
(a)
(1) Ensure that every subgrant includes any clauses required by Federal statute and executive orders and their implementing regulations;
(2) Ensure that subgrantees are aware of requirements imposed upon them by Federal statute and regulation;
(3) Ensure that a provision for compliance with § 33.42 is placed in every cost reimbursement subgrant; and
(4) Conform any advances of grant funds to subgrantees substantially to the same standards of timing and amount that apply to cash advances by Federal agencies.
(b)
(1) Ensure that every subgrant includes a provision for compliance with this part;
(2) Ensure that every subgrant includes any clauses required by Federal statute and executive orders and their implementing regulations; and
(3) Ensure that subgrantees are aware of requirements imposed upon them by Federal statutes and regulations.
(c)
(1) Section 33.10;
(2) Section 33.11;
(3) The letter-of-credit procedures specified in Treasury Regulations at 31 CFR part 205, cited in § 33.21; and
(4) Section 33.50.
(a)
(b)
(1) Grantees shall submit annual performance reports unless the awarding agency requires quarterly or semi-annual reports. However, performance reports will not be required more frequently than quarterly. Annual reports shall be due 90 days after the grant year, quarterly or semi-annual reports shall be due 30 days after the reporting period. The final performance report will be due 90 days after the expiration or termination of grant support. If a justified request is submitted by a grantee, the Federal agency may extend the due date for any performance report. Additionally, requirements for unnecessary performance reports may be waived by the Federal agency.
(2) Performance reports will contain, for each grant, brief information on the following:
(i) A comparison of actual accomplishments to the objectives established for the period. Where the output of the project can be quantified, a computation of the cost per unit of output may be required if that information will be useful.
(ii) The reasons for slippage if established objectives were not met.
(iii) Additional pertinent information including, when appropriate, analysis and explanation of cost overruns or high unit costs.
(3) Grantees will not be required to submit more than the original and two copies of performance reports.
(4) Grantees will adhere to the standards in this section in prescribing performance reporting requirements for subgrantees.
(c)
(d)
(1) Problems, delays, or adverse conditions which will materially impair the ability to meet the objective of the award. This disclosure must include a statement of the action taken, or contemplated, and any assistance needed to resolve the situation.
(2) Favorable developments which enable meeting time schedules and objectives sooner or at less cost than anticipated or producing more beneficial results than originally planned.
(e) Federal agencies may make site visits as warranted by program needs.
(f)
(2) The grantee may waive any performance report from a subgrantee when not needed. The grantee may extend the due date for any performance report from a subgrantee if the grantee will still be able to meet its performance reporting obligations to the Federal agency.
(a)
(i) Submitting financial reports to Federal agencies, or
(ii) Requesting advances or reimbursements when letters of credit are not used.
(2) Grantees need not apply the forms prescribed in this section in dealing with their subgrantees. However, grantees shall not impose more burdensome requirements on subgrantees.
(3) Grantees shall follow all applicable standard and supplemental Federal agency instructions approved by OMB to the extend required under the Paperwork Reduction Act of 1980 for use in connection with forms specified in paragraphs (b) through (e) of this section. Federal agencies may issue substantive supplementary instructions only with the approval of OMB. Federal agencies may shade out or instruct the
(4) Grantees will not be required to submit more than the original and two copies of forms required under this part.
(5) Federal agencies may provide computer outputs to grantees to expedite or contribute to the accuracy of reporting. Federal agencies may accept the required information from grantees in machine usable format or computer printouts instead of prescribed forms.
(6) Federal agencies may waive any report required by this section if not needed.
(7) Federal agencies may extend the due date of any financial report upon receiving a justified request from a grantee.
(b)
(2)
(3)
(4)
(c)
(ii) These reports will be used by the Federal agency to monitor cash advanced to grantees and to obtain disbursement or outlay information for each grant from grantees. The format of the report may be adapted as appropriate when reporting is to be accomplished with the assistance of automatic data processing equipment provided that the information to be submitted is not changed in substance.
(2)
(3)
(4)
(d)
(2)
(3) The frequency for submitting payment requests is treated in § 33.41(b)(3).
(e)
(ii) The frequency for submitting reimbursement requests is treated in § 33.41(b)(3).
(2)
(ii) When a construction grant is paid by Treasury check advances based on periodic requests from the grantee, the advances will be requested on the form specified in § 33.41(d).
(iii) The Federal agency may substitute the Financial Status Report specified in § 33.41(b) for the Outlay Report and Request for Reimbursement for Construction Programs.
(3)
(a)
(i) Required to be maintained by the terms of this part, program regulations or the grant agreement, or
(ii) Otherwise reasonably considered as pertinent to program regulations or the grant agreement.
(2) This section does not apply to records maintained by contractors or subcontractors. For a requirement to place a provision concerning records in certain kinds of contracts, see § 33.36(i)(10).
(b)
(2) If any litigation, claim, negotiation, audit or other action involving the records has been started before the expiration of the 3-year period, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular 3-year period, whichever is later.
(3) To avoid duplicate recordkeeping, awarding agencies may make special arrangements with grantees and subgrantees to retain any records which are continuously needed for joint use. The awarding agency will request transfer of records to its custody when it determines that the records possess long-term retention value. When the records are transferred to or maintained by the Federal agency, the 3-year retention requirement is not applicable to the grantee or subgrantee.
(c)
(2)
(3)
(4)
(i)
(ii)
(d)
(e)
(2)
(f)
(a)
(1) Temporarily withhold cash payments pending correction of the deficiency by the grantee or subgrantee or more severe enforcement action by the awarding agency,
(2) Disallow (that is, deny both use of funds and matching credit for) all or part of the cost of the activity or action not in compliance,
(3) Wholly or partly suspend or terminate the current award for the grantee's or subgrantee's program,
(4) Withhold further awards for the program, or
(5) Take other remedies that may be legally available.
(b)
(c)
(1) The costs result from obligations which were properly incurred by the grantee or subgrantee before the effective date of suspension or termination, are not in anticipation of it, and, in the case of a termination, are noncancellable, and,
(2) The costs would be allowable if the award were not suspended or expired normally at the end of the funding period in which the termination takes effect.
(d)
Except as provided in § 33.43 awards may be terminated in whole or in part only as follows:
(a) By the awarding agency with the consent of the grantee or subgrantee in which case the two parties shall agree upon the termination conditions, including the effective date and in the case of partial termination, the portion to be terminated, or
(b) By the grantee or subgrantee upon written notification to the awarding agency, setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated. However, if, in the case of a partial termination, the awarding agency determines that the remaining portion of the award will not accomplish the purposes for which the award was made, the awarding agency may terminate the award in its entirety under either § 33.43 or paragraph (a) of this section.
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(c)
(d)
(2) The grantee must immediately refund to the Federal agency any balance of unobligated (unencumbered) cash
The closeout of a grant does not affect:
(a) The Federal agency's right to disallow costs and recover funds on the basis of a later audit or other review;
(b) The grantee's obligation to return any funds due as a result of later refunds, corrections, or other transactions;
(c) Records retention as required in § 33.42;
(d) Property management requirements in §§ 33.31 and 33.32; and
(e) Audit requirements in § 33.26.
(a) Any funds paid to a grantee in excess of the amount to which the grantee is finally determined to be entitled under the terms of the award constitute a debt to the Federal Government. If not paid within a reasonable period after demand, the Federal agency may reduce the debt by:
(1) Making an adminstrative offset against other requests for reimbursements,
(2) Withholding advance payments otherwise due to the grantee, or
(3) Other action permitted by law.
(b) Except where otherwise provided by statutes or regulations, the Federal agency will charge interest on an overdue debt in accordance with the Federal Claims Collection Standards (4 CFR Ch. II). The date from which interest is computed is not extended by litigation or the filing of any form of appeal.
5 U.S.C. 301 and 10 U.S.C. 113.
(a) This part prescribes administrative requirements for awards to for-profit organizations.
(b) Applicability to prime awards and subawards is as follows:
(1)
(i) In accordance with the deviation procedures or special award conditions in § 34.3 or § 34.4, respectively; or
(ii) As required by Federal statute, Executive order, or Federal regulation implementing a statute or Executive order.
(2)
(ii) For-profit organizations that receive prime awards covered by this part shall apply to each subaward the administrative requirements that are applicable to the particular type of subrecipient (e.g., 32 CFR part 33 specifies requirements for subrecipients that are States or local governments, and 32 CFR part 32 contains requirements for universities or other nonprofit organizations).
The following are definitions of terms as used in this part. Grants officers are cautioned that terms may be defined differently in this part than they are in other parts of the DoD Grant and Agreement Regulations (DoDGARs).
(1) A procurement contract made by a recipient under a DoD Component's award or by a subrecipient under a subaward; or
(2) A procurement subcontract under a contract awarded by a recipient or subrecipient.
(1) Tangible, having physical existence (i.e., equipment and supplies); or
(2) Intangible, having no physical existence, such as patents, copyrights, data and software.
(1) The date on which all work under an award is completed; or
(2) The date on which Federal sponsorship ends, as given on the award document or any supplement or amendment thereto.
(a)
(b)
(c)
(a) Grants officers may impose additional requirements as needed, over and above those provided in this part, if an applicant or recipient:
(1) Has a history of poor performance;
(2) Is not financially stable;
(3) Has a management system that does not meet the standards prescribed in this part;
(4) Has not conformed to the terms and conditions of a previous award; or
(5) Is not otherwise responsible.
(b) Before imposing additional requirements, DoD Components shall notify the applicant or recipient in writing as to:
(1) The nature of the additional requirements;
(2) The reason why the additional requirements are being imposed;
(3) The nature of the corrective action needed;
(4) The time allowed for completing the corrective actions; and
(5) The method for requesting reconsideration of the additional requirements imposed.
(c) Any special conditions shall be promptly removed once the conditions that prompted them have been corrected.
(d) Grants officers:
(1) Should coordinate the imposition and removal of special award conditions with the cognizant grants administration office identified in 32 CFR 22.710.
(2) Shall include in the award file the written notification to the recipient, described in paragraph (b) of this section, and the documentation required by 32 CFR 22.410(b).
Sections 34.11 through 34.17 prescribe standards for financial management systems; methods for making payments; and rules for cost sharing and matching, program income, revisions to budgets and program plans, audits, allowable costs, and fee and profit.
(a) Recipients shall be allowed and encouraged to use existing financial management systems established for doing business in the commercial marketplace, to the extent that the systems comply with Generally Accepted Accounting Principles (GAAP) and the minimum standards in this section. As a minimum, a recipient's financial management system shall provide:
(1) Effective control of all funds. Control systems must be adequate to ensure that costs charged to Federal funds and those counted as the recipient's cost share or match are consistent with requirements for cost reasonableness, allowability, and allocability in the applicable cost principles (see § 34.17) and in the terms and conditions of the award.
(2) Accurate, current and complete records that document for each project funded wholly or in part with Federal funds the source and application of the Federal funds and the recipient's required cost share or match. These records shall:
(i) Contain information about receipts, authorizations, assets, expenditures, program income, and interest.
(ii) Be adequate to make comparisons of outlays with budgeted amounts for each award (as required for programmatic and financial reporting under § 34.41. Where appropriate, financial information should be related to performance and unit cost data. Note that unit cost data are generally not appropriate for awards that support research.
(3) To the extent that advance payments are authorized under § 34.12, procedures that minimize the time elapsing between the transfer of funds to the recipient from the Government and the recipient's disbursement of the funds for program purposes.
(4) The recipient shall have a system to support charges to Federal awards for salaries and wages, whether treated as direct or indirect costs. Where employees work on multiple activities or cost objectives, a distribution of their salaries and wages will be supported by personnel activity reports which must:
(i) Reflect an after the fact distribution of the actual activity of each employee.
(ii) Account for the total activity for which each employee is compensated.
(iii) Be prepared at least monthly, and coincide with one or more pay periods.
(b) Where the Federal Government guarantees or insures the repayment of money borrowed by the recipient, the DoD Component, at its discretion, may
(c) The DoD Component may require adequate fidelity bond coverage where the recipient lacks sufficient coverage to protect the Federal Government's interest.
(d) Where bonds are required in the situations described above, the bonds shall be obtained from companies holding certificates of authority as acceptable sureties, as prescribed in 31 CFR part 223, “Surety Companies Doing Business with the United States.”
(a)
(1)
(2)
(b)
(2) Advance payments, as described in paragraph (a)(2) of this section, may be used in exceptional circumstances, subject to the following conditions:
(i) The grants officer, in consultation with the program official, must judge that advance payments are necessary or will materially contribute to the probability of success of the project contemplated under the award (e.g., as startup funds for a project performed by a newly formed company). The rationale for the judgment shall be documented in the award file.
(ii) Cash advances shall be limited to the minimum amounts needed to carry out the program.
(iii) Recipients and the DoD Component shall maintain procedures to ensure that the timing of cash advances is as close as is administratively feasible to the recipients’ disbursements of the funds for program purposes, including direct program or project costs and the proportionate share of any allowable indirect costs.
(iv) Recipients shall maintain advance payments of Federal funds in interest-bearing accounts, and remit annually the interest earned to the administrative grants officer responsible for post-award administration (the grants officer shall forward the payment to the responsible payment office, for return to the Department of Treasury's miscellaneous receipts account), unless one of the following applies:
(A) The recipient receives less than $120,000 in Federal awards per year.
(B) The best reasonably available interest bearing account would not be expected to earn interest in excess of $250 per year on Federal cash balances.
(C) The depository would require an average or minimum balance so high that it would not be feasible within the expected Federal and non-Federal cash resources.
(c)
(d)
(e)
(f)
(g)
(1) A recipient has failed to comply with project objectives, the terms and conditions of the award, or Federal reporting requirements, in which case the grants officer may suspend payments in accordance with § 34.52.
(2) The recipient is delinquent on a debt to the United States (see definitions of “debt” and “delinquent debt” in 32 CFR 22.105). In that case, the grants officer may, upon reasonable notice, withhold payments for obligations incurred after a specified date, until the debt is resolved.
(a)
(1) They are verifiable from the recipient's records.
(2) They are not included as contributions for any other federally-assisted project or program.
(3) They are necessary and reasonable for proper and efficient accomplishment of project or program objectives.
(4) They are allowable under § 34.17.
(5) They are not paid by the Federal Government under another award, except:
(i) Costs that are authorized by Federal statute to be used for cost sharing or matching; or
(ii) Independent research and development (IR&D) costs. In accordance with the for-profit cost principle in 48 CFR 31.205-18(e), use of IR&D as cost sharing is permitted, whether or not the Government decides at a later date to reimburse any of the IR&D as allowable indirect costs. In such cases, the IR&D must meet all of the criteria in paragraphs (a) (1) through (4) and (a) (6) through (8) of this section.
(6) They are provided for in the approved budget, when approval of the budget is required by the DoD Component.
(7) If they are real property or equipment, whether purchased with recipient's funds or donated by third parties, they must have the grants officer's prior approval if the contributions’ value is to exceed depreciation or use charges during the project period (paragraphs (b)(1) and (b)(4)(ii) of this section discuss the limited circumstances under which a grants officer may approve higher values). If a DoD Component requires approval of a
(8) They conform to other provisions of this part, as applicable.
(b)
(i) The certified value of the remaining life of the property recorded in the recipient's accounting records at the time of donation; or
(ii) The current fair market value. However, when there is sufficient justification, the grants officer may approve the use of the current fair market value of the donated property, even if it exceeds the certified value at the time of donation to the project. The grants officer may accept the use of any reasonable basis for determining the fair market value of the property.
(2)
(3)
(4)
(ii) Normally only depreciation or use charges for equipment and buildings may be applied. However, the fair rental charges for land and the full value of equipment or other capital assets may be allowed, when they will be consumed in the performance of the award or fully depreciated by the end of the award, provided that the grants officer has approved the charges. When use charges are applied, values shall be determined in accordance with the usual accounting policies of the recipient, with the following qualifications:
(A) The value of donated space shall not exceed the fair rental value of comparable space as established by an independent appraisal of comparable space and facilities in a privately-owned building in the same locality.
(B) The value of loaned equipment shall not exceed its fair rental value.
(5)
(i) Volunteer services shall be documented and, to the extent feasible, supported by the same methods used by the recipient for its own employees.
(ii) The basis for determining the valuation for personal services and property shall be documented.
(a) DoD Components shall apply the standards in this section to the disposition of program income from projects financed in whole or in part with Federal funds.
(b) Recipients shall have no obligation to the Government, unless the terms and conditions of the award provide otherwise, for program income earned:
(1) From license fees and royalties for copyrighted material, patents, patent applications, trademarks, and inventions produced under an award. Note, however, that the Patent and Trademark Amendments (35 U.S.C. Chapter 18), as implemented in § 34.25, apply to inventions made under a research award.
(2) After the end of the project period. If a grants officer anticipates that an award is likely to generate program income after the end of the project period, the grants officer should indicate in the award document whether the recipient will have any obligation to the Federal Government with respect to such income.
(c) If authorized by the terms and conditions of the award, costs incident to the generation of program income may be deducted from gross income to determine program income, provided these costs have not been charged to the award.
(d) Other than any program income excluded pursuant to paragraphs (b) and (c) of this section, program income earned during the project period shall be retained by the recipient and used in one or more of the following ways, as specified in program regulations or the terms and conditions of the award:
(1) Added to funds committed to the project by the DoD Component and recipient and used to further eligible project or program objectives.
(2) Used to finance the non-Federal share of the project or program.
(3) Deducted from the total project or program allowable cost in determining the net allowable costs on which the Federal share of costs is based.
(e) If the terms and conditions of an award authorize the disposition of program income as described in paragraph (d)(1) or (d)(2) of this section, and stipulate a limit on the amounts that may be used in those ways, program income in excess of the stipulated limits shall be used in accordance with paragraph (d)(3) of this section.
(f) In the event that the terms and conditions of the award do not specify how program income is to be used, paragraph (d)(3) of this section shall apply automatically to all projects or programs except research. For awards that support research, paragraph (d)(1) of this section shall apply automatically unless the terms and conditions specify another alternative or the recipient is subject to special award conditions, as indicated in § 34.4.
(g) Proceeds from the sale of property that is acquired, rather than fabricated, under an award are not program income and shall be handled in accordance with the requirements of the Property Standards (see §§ 34.20 through 34.25).
(a) The budget plan is the financial expression of the project or program as approved during the award process. It may include either the sum of the Federal and non-Federal shares, or only the Federal share, depending upon DoD Component requirements. It shall be related to performance for program evaluation purposes whenever appropriate.
(b) Recipients are required to report deviations from budget and program plans, and request prior approvals for budget and program plan revisions, in accordance with this section.
(c) Recipients shall immediately request, in writing, prior approval from the cognizant grants officer when there is reason to believe that within the next seven calendar days a programmatic or budgetary revision will be necessary for certain reasons, as follows:
(1) The recipient always must obtain the grants officer's prior approval when a revision is necessary for either of the following two reasons (i.e., these two requirements for prior approval may never be waived):
(i) A change in the scope or the objective of the project or program (even if there is no associated budget revision requiring prior written approval).
(ii) A need for additional Federal funding.
(2) The recipient must obtain the grants officer's prior approval when a revision is necessary for any of the following six reasons, unless the requirement for prior approval is waived in the terms and conditions of the award (i.e., if the award document is silent, these prior approvals are required):
(i) A change in a key person specified in the application or award document.
(ii) The absence for more than three months, or a 25 percent reduction in time devoted to the project, by the approved project director or principal investigator.
(iii) The inclusion of any additional costs that require prior approval in accordance with applicable cost principles for Federal funds and recipients’ cost share or match, in § 34.17 and § 34.13, respectively.
(iv) The inclusion of pre-award costs. All such costs are incurred at the recipient's risk (i.e., the DoD Component is under no obligation to reimburse such costs if for any reason the recipient does not receive an award, or if the award is less than anticipated and inadequate to cover such costs).
(v) A “no-cost” extension of the project period that does not require additional Federal funds and does not change the approved objectives or scope of the project.
(vi) Any subaward, transfer or contracting out of substantive program performance under an award, unless described in the application and funded in the approved awards. This provision does not apply to the purchase of supplies, material, or general support services, except that procurement of equipment or other capital items of property always is subject to the grants officer's prior approval under § 34.21(a), if it is to be purchased with Federal funds, or § 34.13(a)(7), if it is to be used as cost sharing or matching.
(3) The recipient also must obtain the grants officer's prior approval when a revision is necessary for either of the following reasons, if specifically required in the terms and conditions of the award document (i.e., if the award document is silent, these prior approvals are not required):
(i) The transfer of funds among direct cost categories, functions and activities for awards in which the Federal share of the project exceeds $100,000 and the cumulative amount of such transfers exceeds or is expected to exceed 10 percent of the total budget as last approved by the DoD Component. No DoD Component shall permit a transfer that would cause any Federal appropriation or part thereof to be used for purposes other than those consistent with the original intent of the appropriation.
(ii) For awards that provide support for both construction and nonconstruction work, any fund or budget transfers between the two types of work supported.
(d) Within 30 calendar days from the date of receipt of the recipient's request for budget revisions, the grants officer shall review the request and notify the recipient whether the budget revisions have been approved. If the revision is still under consideration at the end of 30 calendar days, the grants officer shall inform the recipient in writing of the date when the recipient may expect the decision.
(a) Any recipient that expends $300,000 or more in a year under Federal awards shall have an audit made for that year by an independent auditor, in accordance with paragraph (b) of this section. The audit generally should be made a part of the regularly scheduled, annual audit of the recipient's financial statements. However, it may be more economical in some cases to have the Federal awards separately audited, and a recipient may elect to do so, unless that option is precluded by award terms and conditions, or by Federal laws or regulations applicable to the program(s) under which the awards were made.
(b) The auditor shall determine and report on whether:
(1) The recipient has an internal control structure that provides reasonable assurance that it is managing Federal awards in compliance with Federal laws and regulations, and with the terms and conditions of the awards.
(2) Based on a sampling of Federal award expenditures, the recipient has
(c) The recipient shall make the auditor's report available to DoD Components whose awards are affected.
(d) The requirement for an annual independent audit is intended to ascertain the adequacy of the recipient's internal financial management systems and to curtail the unnecessary duplication and overlap that usually results when Federal agencies request audits of individual awards on a routine basis. Therefore, a grants officer:
(1) Shall consider whether the independent audit satisfies his or her requirements, before requesting any additional audits; and
(2) When requesting an additional audit, shall:
(i) Limit the scope of such additional audit to areas not adequately addressed by the independent audit.
(ii) Coordinate the audit request with the Federal agency with the predominant fiscal interest in the recipient, as the agency responsible for the scheduling and distribution of audits. If DoD has the predominant fiscal interest in the recipient, the Defense Contract Management Command (DCMC) is responsible for monitoring audits, ensuring resolution of audit findings, and distributing audit reports. When an additional audit is requested and DoD has the predominant fiscal interest in the recipient, DCMC shall, to the extent practicable, ensure that the additional audit builds upon the independent audit or other audits performed in accordance with this section.
(e) There may be instances in which Federal auditors have recently performed audits, are performing audits, or are planning to perform audits, of a recipient. In these cases, the recipient and its Federal cognizant agency should seek to have the non-Federal, independent auditors work with the Federal auditors to develop a coordinated audit approach, to minimize duplication of audit work.
(f) Audit costs (including a reasonable allocation of the costs of the audit of the recipient's financial statement, based on the relative benefit to the Government and the recipient) are allowable costs of DoD awards.
Allowability of costs shall be determined in accordance with the cost principles applicable to the type of entity incurring the costs, as follows:
(a)
(1) The for-profit cost principles in 48 CFR parts 31 and 231 (in the Federal Acquisition Regulation, or FAR, and the Defense Federal Acquisition Regulation Supplement, or DFARS, respectively).
(2) The supplemental information on allowability of audit costs, in § 34.16(f).
(b)
(1)
(2)
(3)
(4)
In accordance with 32 CFR 22.205(b), grants and cooperative agreements shall not:
(a) Provide for the payment of fee or profit to the recipient.
(b) Be used to carry out programs where fee or profit is necessary to achieving program objectives.
Sections 34.21 through 34.25 set forth uniform standards for management, use, and disposition of property. DoD Components shall encourage recipients to use existing property-management systems, to the extent that the systems meet these minimum requirements.
(a)
(b)
(1) Use the real property or equipment for the authorized purposes of the project until funding for the project ceases, or until the property is no longer needed for the purposes of the project.
(2) Not encumber the property without approval of the grants officer.
(3) Use and dispose of the property in accordance with paragraphs (d) and (e) of this section.
(c)
(d)
(1) During the time that the real property or equipment is used on the project or program for which it was acquired, the recipient shall make it available for use on other projects or programs, if such other use will not interfere with the work on the project or program for which the real property or equipment was originally acquired. Use of the real property or equipment on other projects will be in the following order of priority:
(i) Activities sponsored by DoD Components’ grants, cooperative agreements, or other assistance awards;
(ii) Activities sponsored by other Federal agencies’ grants, cooperative agreements, or other assistance awards;
(iii) Activities under Federal procurement contracts, or activities not sponsored by any Federal agency. If so used, use charges shall be assessed to those activities. For real property or equipment, the use charges shall be at rates equivalent to those for which comparable real property or equipment may be leased. The use charges shall be treated as program income.
(2) After Federal funding for the project ceases, or when the real property or equipment is no longer needed for the purposes of the project, the recipient may use the real property or
(i) There are Federally sponsored projects for which the real property or equipment may be used. If the only use for the real property or equipment is for projects that have no Federal sponsorship, the recipient shall proceed with disposition of the real property or equipment, in accordance with paragraph (e) of this section.
(ii) The recipient obtains written approval from the grants officer to do so. The grants officer shall ensure that there is a formal change of accountability for the real property or equipment to a currently funded, Federal award.
(iii) The recipient's use of the real property or equipment for other projects is in the same order of priority as described in paragraph (d)(1) of this section.
(e)
(i) If the property that is no longer needed is equipment (rather than real property), the recipient may wish to replace it with an item that is needed currently for the project. In that case, the recipient may use the original equipment as trade-in or sell it and use the proceeds to offset the costs of the replacement equipment, subject to the approval of the responsible agency (i.e., the DoD Component or the Federal agency to which the DoD Component delegated responsibility for administering the equipment).
(ii) The recipient may elect to retain title, without further obligation to the Federal Government, by compensating the Federal Government for that percentage of the current fair market value of the real property or equipment that is attributable to the Federal participation in the project.
(iii) If the recipient does not elect to retain title to real property or equipment (see paragraph (e)(1)(ii) of this section), or request approval to use equipment as trade-in or offset for replacement equipment (see paragraph (e)(1)(i) of this section), the recipient shall request disposition instructions from the responsible agency.
(2) If a recipient requests disposition instructions, in accordance with paragraph (e)(1)(iii) of this section, the responsible grants officer shall:
(i) For equipment (but not real property), consult with the Federal program manager and judge whether the age and nature of the equipment warrant a screening procedure, to determine whether the equipment is useful to a DoD Component or other Federal agency. If a screening procedure is warranted, the responsible agency shall determine whether the equipment can be used to meet a DoD Component's requirement. If no DoD requirement is found, the responsible agency shall report the availability of the equipment to the General Services Administration, to determine whether a requirement for the equipment exists in other Federal agencies.
(ii) For either real property or equipment, issue instructions to the recipient for disposition of the property no later than 120 calendar days after the recipient's request. The grants officer's options for disposition are to direct the recipient to:
(A) Transfer title to the real property or equipment to the Federal Government or to an eligible third party provided that, in such cases, the recipient shall be entitled to compensation for its attributable percentage of the current fair market value of the real property or equipment, plus any reasonable shipping or interim storage costs incurred. If title is transferred to the Federal Government, it shall be subject thereafter to provisions for Federally owned property in § 34.22.
(B) Sell the real property or equipment and pay the Federal Government for that percentage of the current fair market value of the property that is attributable to the Federal participation in the project (after deducting actual and reasonable selling and fix-up expenses, if any, from the sale proceeds). When the recipient is authorized or required to sell the real property or equipment, proper sales procedures shall be established that provide for competition to the extent practicable and result in the highest possible return.
(3) If the responsible agency fails to issue disposition instructions within
(a)
(b)
(2) Use on other activities will be in the following order of priority:
(i) Activities sponsored by DoD Components’ grants, cooperative agreements, or other assistance awards;
(ii) Activities sponsored by other Federal agencies’ grants, cooperative agreements, or other assistance awards;
(iii) Activities under Federal procurement contracts, or activities not sponsored by any Federal agency. If so used, use charges shall be assessed to those activities. For real property or equipment, the use charges shall be at rates equivalent to those for which comparable real property or equipment may be leased. The use charges shall be treated as program income.
(c)
(1) Use the property to meet another Federal Government need (e.g, by transferring accountability for the property to another Federal award to the same recipient, or by directing the recipient to transfer the property to a Federal agency that needs the property, or to another recipient with a currently funded award).
(2) Declare the property to be excess property and either:
(i) Report the property to the General Services Administration, in accordance with the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 483(b)(2)), as implemented by General Services Administration regulations at 41 CFR 101-47.202; or
(ii) Dispose of the property by alternative methods, if there is statutory authority to do so (e.g., DoD Components are authorized by 15 U.S.C. 3710(i), the Federal Technology Transfer Act, to donate research equipment to educational and nonprofit organizations for the conduct of technical and scientific education and research activities. Such donations shall be in accordance with the DoD implementation of E.O. 12999 (3 CFR, 1996 Comp., p. 180), “Educational Technology: Ensuring Opportunity for All Children in the Next Century,” as applicable.) Appropriate instructions shall be issued to the recipient by the responsible agency.
The recipient's property management system shall include the following, for property that is Federally owned, and for equipment that is acquired in whole or in part with Federal funds, or that is used as matching share:
(a) Property records shall be maintained, to include the following information:
(1) A description of the property.
(2) Manufacturer's serial number, model number, Federal stock number, national stock number, or any other identification number.
(3) Source of the property, including the award number.
(4) Whether title vests in the recipient or the Federal Government.
(5) Acquisition date (or date received, if the property was furnished by the Federal Government) and cost.
(6) Information from which one can calculate the percentage of Federal participation in the cost of the property (not applicable to property furnished by the Federal Government).
(7) The location and condition of the property and the date the information was reported.
(8) Ultimate disposition data, including date of disposal and sales price or the method used to determine current
(b) Federally owned equipment shall be marked, to indicate Federal ownership.
(c) A physical inventory shall be taken and the results reconciled with the property records at least once every two years. Any differences between quantities determined by the physical inspection and those shown in the accounting records shall be investigated to determine the causes of the difference. The recipient shall, in connection with the inventory, verify the existence, current utilization, and continued need for the property.
(d) A control system shall be in effect to insure adequate safeguards to prevent loss, damage, or theft of the property. Any loss, damage, or theft of property shall be investigated and fully documented; if the property was owned by the Federal Government, the recipient shall promptly notify the Federal agency responsible for administering the property.
(e) Adequate maintenance procedures shall be implemented to keep the property in good condition.
(a) Title shall vest in the recipient upon acquisition for supplies acquired with Federal funds under an award.
(b) Upon termination or completion of the project or program, the recipient shall retain any unused supplies. If the inventory of unused supplies exceeds $5,000 in total aggregate value and the items are not needed for any other Federally sponsored project or program, the recipient shall retain the items for use on non-Federal sponsored activities or sell them, but shall, in either case, compensate the Federal Government for its share.
(a)
(1) Small business concerns shall comply with 35 U.S.C. Chapter 18, as implemented by 37 CFR part 401, which applies to inventions made under grants and cooperative agreements with small business concerns for research and development. 37 CFR 401.14 provides a standard clause that is required in such grants and cooperative agreements in most cases, 37 CFR 401.3 specifies when the clause shall be included, and 37 CFR 401.5 specifies how the clause may be modified and tailored.
(2) For-profit organizations other than small business concerns shall comply with 35 U.S.C. 210(c) and Executive Order 12591 (3 CFR, 1987 Comp., p. 220) (which codifies a Presidential Memorandum on Government Patent Policy, dated February 18, 1983).
(i) The Executive order states that, as a matter of policy, grants and cooperative agreements should grant to all for-profit organizations, regardless of size, title to patents made in whole or in part with Federal funds, in exchange for royalty-free use by or on behalf of the Government (i.e., it extends the applicability of 35 U.S.C. Chapter 18, to the extent permitted by law, to for-profit organizations other than small business concerns).
(ii) 35 U.S.C. 210(c) states that 35 U.S.C. Chapter 18 is not intended to limit agencies’ authority to agree to the disposition of rights in inventions in accordance with the Presidential memorandum codified by the Executive order. It also states that such grants and cooperative agreements shall provide for Government license rights required by 35 U.S.C. 202(c)(4) and march-in rights required by 35 U.S.C. 203.
(b)
(1) The recipient may copyright any work that is subject to copyright and was developed under an award. DoD Components reserve a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so.
(2) Unless waived by the DoD Component making the award, the Federal Government has the right to:
(i) Obtain, reproduce, publish or otherwise use for Federal Government purposes the data first produced under an award.
(ii) Authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes.
Section 34.31 sets forth requirements necessary to ensure:
(a) Compliance of recipients’ procurements that use Federal funds with applicable Federal statutes and executive orders.
(b) Proper stewardship of Federal funds used in recipients’ procurements.
The following requirements pertain to recipients’ procurements funded in whole or in part with Federal funds or with recipients’ cost-share or match:
(a)
(b)
(c)
(2) All contracts in excess of the simplified acquisition threshold shall contain suitable provisions for termination for default by the recipient or for termination due to circumstances beyond the control of the contractor.
(3) All negotiated contracts in excess of the simplified acquisition threshold shall include a provision permitting access of the Department of Defense, the Comptroller General of the United States, or any of their duly authorized representatives, to any books, documents, papers, and records of the contractor that are directly pertinent to a specific program, for the purpose of making audits, examinations, excerpts, and transcriptions.
(4) All contracts, including those for amounts less than the simplified acquisition threshold, awarded by recipients and their contractors shall contain the procurement provisions of Appendix A to this part, as applicable.
Sections 34.41 and 34.42 prescribe requirements for monitoring and reporting financial and program performance and for records retention.
Grants officers may use the provisions of 32 CFR 32.51 and 32.52 for awards to for-profit organizations, or may include equivalent technical and financial reporting requirements that ensure reasonable oversight of the expenditure of appropriated funds. As a minimum, equivalent requirements must include:
(a) Periodic reports (at least annually, and no more frequently than quarterly) addressing both program status and business status, as follows:
(1) The program portions of the reports must address progress toward achieving program performance goals, including current issues, problems, or developments.
(2) The business portions of the reports shall provide summarized details on the status of resources (federal funds and non-federal cost sharing or matching), including an accounting of expenditures for the period covered by the report. The report should compare the resource status with any payment and expenditure schedules or plans provided in the original award; explain
(3) When grants officers previously authorized advance payments, pursuant to § 34.12(a)(2), they should consult with the program official and consider whether program progress reported in the periodic report, in relation to reported expenditures, is sufficient to justify continued authorization of advance payments.
(b) Unless inappropriate, a final performance report that addresses all major accomplishments under the award.
(a) This section sets forth requirements for records retention and access to records for awards to recipients.
(b) Financial records, supporting documents, statistical records, and all other records pertinent to an award shall be retained for a period of three years from the date of submission of the final expenditure report. The only exceptions are the following:
(1) If any litigation, claim, or audit is started before the expiration of the 3-year period, the records shall be retained until all litigation, claims or audit findings involving the records have been resolved and final action taken.
(2) Records for real property and equipment acquired with Federal funds shall be retained for 3 years after final disposition.
(3) When records are transferred to or maintained by the DoD Component that made the award, the 3-year retention requirement is not applicable to the recipient.
(4) Indirect cost rate proposals, cost allocations plans, and related records, for which retention requirements are specified in § 34.42(g).
(c) Copies of original records may be substituted for the original records if authorized by the grants officer.
(d) The grants officer shall request that recipients transfer certain records to DoD Component custody when he or she determines that the records possess long term retention value. However, in order to avoid duplicate recordkeeping, a grants officer may make arrangements for recipients to retain any records that are continuously needed for joint use.
(e) DoD Components, the Inspector General, Comptroller General of the United States, or any of their duly authorized representatives, have the right of timely and unrestricted access to any books, documents, papers, or other records of recipients that are pertinent to the awards, in order to make audits, examinations, excerpts, transcripts and copies of such documents. This right also includes timely and reasonable access to a recipient's personnel for the purpose of interview and discussion related to such documents. The rights of access in this paragraph are not limited to the required retention period, but shall last as long as records are retained.
(f) Unless required by statute, no DoD Component shall place restrictions on recipients that limit public access to the records of recipients that are pertinent to an award, except when the DoD Component can demonstrate that such records shall be kept confidential and would have been exempted from disclosure pursuant to the Freedom of Information Act (5 U.S.C. 552) if the records had belonged to the DoD Component making the award.
(g) Indirect cost proposals, cost allocation plans, and other cost accounting documents (such as documents related to computer usage chargeback rates), along with their supporting records, shall be retained for a 3-year period, as follows:
(1) If a recipient is required to submit an indirect-cost proposal, cost allocation plan, or other computation to the cognizant Federal agency, for purposes of negotiating an indirect cost rate or other rates, the 3-year retention period starts on the date of the submission. This retention requirement also applies to subrecipients submitting similar documents for negotiation to the recipient.
(2) If the recipient or the subrecipient is not required to submit the documents or supporting records for negotiating an indirect cost rate or other rates, the 3-year retention period for the documents and records starts at
(h) If the information described in this section is maintained on a computer, recipients shall retain the computer data on a reliable medium for the time periods prescribed. Recipients may transfer computer data in machine readable form from one reliable computer medium to another. Recipients’ computer data retention and transfer procedures shall maintain the integrity, reliability, and security of the original computer data. Recipients shall also maintain an audit trail describing the data transfer. For the record retention time periods prescribed in this section, recipients shall not destroy, discard, delete, or write over such computer data.
Sections 34.51 through 34.53 set forth uniform procedures for suspension, termination, enforcement, and disputes.
(a) Awards may be terminated in whole or in part only in accordance with one of the following:
(1) By the grants officer, if a recipient materially fails to comply with the terms and conditions of an award.
(2) By the grants officer with the consent of the recipient, in which case the two parties shall agree upon the termination conditions, including the effective date and, in the case of partial termination, the portion to be terminated.
(3) By the recipient upon sending to the grants officer written notification setting forth the reasons for such termination, the effective date, and, in the case of partial termination, the portion to be terminated. The recipient must provide such notice at least 30 calendar days prior to the effective date of the termination. However, if the grants officer determines in the case of partial termination that the reduced or modified portion of the award will not accomplish the purposes for which the award was made, he or she may terminate the award in its entirety.
(b) If costs are allowed under an award, the responsibilities of the recipient referred to in § 34.61(b), including those for property management as applicable, shall be considered in the termination of the award, and provision shall be made for continuing responsibilities of the recipient after termination, as appropriate.
(a)
(1) Temporarily withhold cash payments pending correction of the deficiency by the recipient or more severe enforcement action by the grants officer and DoD Component.
(2) Disallow (that is, deny both use of funds and any applicable matching credit for) all or part of the cost of the activity or action not in compliance.
(3) Wholly or partly suspend or terminate the current award. In the case of termination, the recipient will be reimbursed for allowable costs incurred prior to termination, with the possible exception of those for activities and actions described in paragraph (a)(2) of this section.
(4) Withhold further awards for the project or program.
(5) Take other remedies that may be legally available.
(b)
(c)
(1) Result from obligations which were properly incurred by the recipient before the effective date of suspension or termination, are not in anticipation of it, and in the case of a termination, are noncancellable; and
(2) Would be allowable if the award were not suspended or expired normally at the end of the funding period in which the termination takes effect.
(d)
Recipients have the right to appeal certain decisions by grants officers. In resolving such issues, DoD policy is to use Alternative Dispute Resolution (ADR) techniques, to the maximum practicable extent. See 32 CFR 22.815 for standards for DoD Components’ dispute resolution and formal, administrative appeal procedures.
Sections 34.61 through 34.63 contain procedures for closeout and for subsequent disallowances and adjustments.
(a) The cognizant grants officer shall, at least six months prior to the expiration date of the award, contact the recipient to establish:
(1) All steps needed to close out the award, including submission of financial and performance reports, liquidation of obligations, and decisions on property disposition.
(2) A schedule for completing those steps.
(b) The following provisions shall apply to the closeout:
(1) The responsible grants officer and payment office shall expedite completion of steps needed to close out awards and make prompt, final payments to a recipient for allowable reimbursable costs under the award being closed out.
(2) The recipient shall promptly refund any unobligated balances of cash that the DoD Component has advanced or paid and that is not authorized to be retained by the recipient for use in other projects. For unreturned amounts that become delinquent debts, see 32 CFR 22.820.
(3) When authorized by the terms and conditions of the award, the grants officer shall make a settlement for any upward or downward adjustments to the Federal share of costs after closeout reports are received.
(4) The recipient shall account for any real property and personal property acquired with Federal funds or received from the Federal Government in accordance with §§ 34.21 through 34.25.
(5) If a final audit is required and has not been performed prior to the closeout of an award, the DoD Component shall retain the right to recover an appropriate amount after fully considering the recommendations on disallowed costs resulting from the final audit.
(a) The closeout of an award does not affect any of the following:
(1) The right of the Department of Defense to disallow costs and recover funds on the basis of a later audit or other review.
(2) The obligation of the recipient to return any funds due as a result of later refunds, corrections, or other transactions.
(3) Audit requirements in § 34.16.
(4) Property management requirements in §§ 34.21 through 34.25.
(5) Records retention as required in § 34.42.
(b) After closeout of an award, a relationship created under an award may be modified or ended in whole or in part with the consent of the grants officer and the recipient, provided the responsibilities of the recipient referred to in § 34.61(a), including those for property management as applicable, are considered and provisions made for
Any funds paid to a recipient in excess of the amount to which the recipient is finally determined to be entitled under the terms and conditions of the award constitute a debt to the Federal Government. Procedures for issuing the demand for payment and pursuing administrative offset and other remedies are described in 32 CFR 22.820.
All contracts awarded by a recipient, including those for amounts less than the simplified acquisition threshold, shall contain the following provisions as applicable:
1.
2.
3.
4.
5.
6.
7.
For a revision of Standards for a Merit System of Personnel Administration, see 5 CFR part 900.
5 U.S.C. 7301.
Under 18 U.S.C. 208(b) categories of financial interests may be made non-disqualifying for purposes of 18 U.S.C. 208(a) by a general regulation published in the
DoD employees should refer to the Office of Government Ethics (OGE) regulation, Standards of Ethical Conduct for Employees of the Executive Branch, 5 CFR part 2635, and the Department of Defense (DoD) regulation that supplements the OGE regulation, 5 CFR 3601.101, for standards of conduct provisions, including standards for gifts from outside sources, gifts between employees, conflicting financial interests, impartiality in performing official duties, seeking other employment, misuse of position, and outside activities.
DoD employees should refer to the OGE regulation, Financial Disclosure, Qualified Trusts, and Certificates of Divestiture for Executive Branch Employees, 5 CFR part 2634, for financial disclosure provisions.
DoD employees should refer to the OGE regulation, Limitations on Outside Employment and Prohibition of Honoraria; Confidential Reporting of Payments to Charities in Lieu of Honoraria, 5 CFR part 2636, for provisions on outside employment and honoraria.
DoD employees and former DoD employees should refer to the OGE regulation, Regulations Concerning Post-Employment Conflict of Interest, 5 CFR part 2637, for provisions on post-employment applicable to those who left DoD employment prior to January 1, 1991.
DoD employees should refer to the OGE regulation, Office of Government Ethics and Executive Agency Ethics Program Responsibilities, 5 CFR part 2638, for provisions establishing executive branch ethics programs, including ethics training programs.
DoD employees and former DoD employees should refer the to OGE regulation, Post-Employment Conflict of Interest Restrictions, 5 CFR part 2641, for provisions on post-employment applicable to those who left DoD employment on or after January 1, 1991.
10 U.S.C. 1162, 1163, 1169, 1170, 1172, and 1173.
This part establishes policies, standards, and procedures governing the administrative separation of enlisted members from the Military Services.
The provisions of this part apply to Office of the Secretary of Defense and the Military Departments (including their reserve components). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force and Marine Corps.
(a) It is the policy of the Department of Defense to promote the readiness of the Military Services by maintaining high standards of conduct and performance. Separation policy promotes the readiness of the Military Services by providing an orderly means to:
(1) Ensure that the Military Services are served by individuals capable of meeting required standards of duty performance and discipline;
(2) Maintain standards of performance and conduct through characterization of service in a system that emphasizes the importance of honorable service;
(3) Achieve authorized force levels and grade distributions; and
(4) Provide for the orderly administrative separation of enlisted personnel in a variety of circumstances.
(b) DoD separation policy is designed to strengthen the concept that military service is a calling different from any civilian occupation.
(1) The acquisition of military status, whether through enlistment or induction, involves a commitment to the United States, the service, and one's fellow citizens and servicemembers to complete successfully a period of obligated service. Early separation for failure to meet required standards of performance or discipline represents a failure to fulfill that commitment.
(2) Millions of Americans from diverse backgrounds and with a wide variety of aptitudes and attitudes upon entering military service have served successfully in the armed forces. It is the policy of the Department of Defense to provide servicemembers with the training, motivation, and professional leadership that inspires the dedicated enlisted member to emulate his or her predecessors and peers in meeting required standards of performance and discipline.
(3) The Military Services make a substantial investment in training, time, equipment, and related expenses when persons are enlisted or inducted into military service. Separation prior to completion of an obligated period of service is wasteful because it results in loss of this investment and generates a requirement for increased accession. Consequently, attrition is an issue of significant concern at all levels of responsibility within the armed forces. Reasonable efforts should be made to identify enlisted members who exhibit a likelihood for early separation, and to improve their chances for retention through counseling, retraining, and rehabilitation prior to initiation of separation proceedings. Enlisted members who do not demonstrate potential for further military service should be separated in order to avoid the high costs in terms of pay, administrative efforts, degradation of morale, and substandard
(c) Standards and procedures for implementation of these policies are set forth in appendix A to this part.
(a) The
(1)
(2)
(3)
(b) The
(a) This part applies only to administrative separation proceedings initiated on or after October 1, 1982.
(b) Part 41, effective December 29, 1976 shall continue to be used for administrative separation proceedings initiated on or before September 30, 1982.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
A.
a. The member is serving outside the continental United States (CONUS); or
b. The member is a resident of a State, territory, or possession outside CONUS and is serving outside the member's State, territory, or possession of residence.
2.
a. An Entry Level Separation is required under subsection C.3. of part 2;
b. Characterization of service as General (under honorable conditions) is warranted under section C. of part 2 on the basis of numerical scores accumulated in a formal, Service-wide rating system that evaluates conduct and performance on a regular basis; or
c. Another characterization is warranted upon discharge from the IRR under section E. of part 3.
B.
a. General demobilization or reduction in authorized strength.
b. Early separation of personnel under a program established by the Secretary concerned. A copy of the document authorizing such program shall be forwarded to the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics (ASD(MRA&L)) on or before the date of implementation.
c. Acceptance of an active duty commission or appointment, or acceptance into a program leading to such a commission or appointment in any branch of the Military Services.
d. Immediate enlistment or reenlistment.
e. Interservice transfer of inactive reserves in accordance with DoD Directive 1205.5.
2.
a. An Entry Level Separation is required under section C. of part 2;
b. Characterization of service as General (under honorable conditions) is warranted under section C. of part 2 on the basis of numerical scores accumulated in a formal, service-wide rating system that evaluates conduct and performance on a regular basis; or
c. Another characterization is warranted upon discharge from the IRR under section E. of part 3.
C.
2.
a. An Entry Level Separation is required under section C. of part 2; or
b. Characterization of service as General (under honorable conditions) is warranted under section C. of part 2.
3.
4.
b.
c.
(a) The hardship or dependency is not temporary;
(b) Conditions have arisen or have been aggravated to an excessive degree since entry into the Service, and the member has made every reasonable effort to remedy the situation;
(c) The administrative separation will eliminate or materially alleviate the condition; and
(d) There are no other means of alleviation reasonably available.
(2) Undue hardship does not necessarily exist solely because of altered present or expected income, family separation, or other inconveniences normally incident to Military Service.
d.
e.
f.
g.
h.
(2) Separation processing may not be initiated until the member has been counseled formally concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records.
(3) Separation on the basis of personality disorder is authorized only if a diagnosis by a psychiatrist or psychologist, completed in accordance with procedures established by the Military Department concerned, concludes, that the disorder is so severe that the member's ability to function effectively in the military environment is significantly impaired.
(4) Separation for personality disorder is not appropriate when separation is warranted under sections A. through N. or section P. of this part. For example, if separation is warranted on the basis of unsatisfactory performance (section G.) or misconduct (section K.), the member should not be separated under this section regardless of the existence of a personality disorder.
(5) Nothing in this provision precludes separation of a member who has such a condition under any other basis set forth under this section (Convenience of the Government) or for any other reason authorized by this part.
(6) Prior to involuntary separation under this provision, the Notification Procedure (section B. of part 3) shall be used.
(7) The reasons designated by the Secretary concerned shall be separately reported.
i.
D.
2.
a. An Entry Level Separation is required under section C. of part 2; or
b. Characterization of service as General (under honorable conditions) is warranted under section C. of part 2.
3.
E.
(2)
(a) There is evidence satisfactory to the Secretary concerned that the member is under 18 years of age;
(b) The member enlisted without the written consent of the member's parent or guardian; and
(c) An application for the member's separation is submitted to the Secretary concerned by the parent or guardian within 90 days of the member's enlistment.
b.
c.
2.
(1) It would not have occurred had the relevant facts been known by the government or had appropriate directives been followed;
(2) It was not the result of fraudulent conduct on the part of the member; and
(3) The defect is unchanged in material respects.
b.
c.
(a) The defect is no longer present; or
(b) The defect is waivable and a waiver is obtained from appropriate authority.
(2) If separation processing is initiated, the Notification Procedure (section B. of part 3) shall be used.
3.
(1) As a result of a material misrepresentation by recruiting personnel, upon which the member reasonably relied, the member was induced to enlist with a commitment for which the member was not qualified;
(2) The member received a written enlistment commitment from recruiting personnel for which the member was qualified, but which cannot be fulfilled by the Military Service; or
(3) The enlistment was involuntary.
b.
c.
(1) The member did not knowingly participate in creation of the defective enlistment;
(2) The member brings the defect to the attention of appropriate authorities within 30 days after the defect is discovered or reasonably should have been discovered by the member;
(3) The member requests separation instead of other authorized corrective action; and
(4) The request otherwise meets such criteria as may be established by the Secretary concerned.
4.
b.
c.
(1) Characterization of service Under Other Than Honorable Conditions may not be issued unless the Administrative Board Procedure (section C. of part 3) is used.
(2) When the sole reason for separation is fraudulent entry, suspension of separation (section B. of part 2) is not authorized. When there are approved reasons for separation in addition to fraudulent entry, suspension of separation is authorized only in the following circumstances:
(a) A waiver of the fraudulent entry is approved; and
(b) The suspension pertains to reasons for separation other than the fraudulent entry.
(3) If the command recommends that the member be retained in military service, the initiation of separation processing is unnecessary in the following circumstances:
(a) The defect is no longer present; or
(b) The defect is waivable and a waiver is obtained from appropriate authority.
(4) If the material misrepresentation includes preservice homosexuality (subsection H.1.), the standards of paragraph H.1.c. and procedures of subsection H.3. shall be applied in processing a separation under this section. In such a case the characterization or description of the separation shall be determined under paragraph E.4.b., above.
F.
b. When separation of a member in entry level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both), the member normally should be separated under this section. Nothing in this provision precludes separation under another provision of this Directive when such separation is authorized and warranted by the circumstances of the case.
2.
3.
4.
G.
2.
3.
4.
H.
b. As used in this section:
(1) Homosexual means a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual acts;
(2) Bisexual means a person who engages in, desires to engage in, or intends to engage in homosexual and heterosexual acts; and
(3) A homosexual act means bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires.
c. The basis for separation may include preservice, prior service, or current service conduct or statements. A member shall be separated under this section if one or more of the following approved findings is made:
(1) The member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are approved further findings that:
(a) Such conduct is a departure from the member's usual and customary behavior;
(b) Such conduct under all the circumstances is unlikely to recur;
(c) Such conduct was not accomplished by use of force, coercion, or intimidation by the member during a period of military service;
(d) Under the particular circumstances of the case, the member's continued presence in the Service is consistent with the interest of the Service in proper discipline, good order, and morale; and
(e) The member does not desire to engage in or intend to engage in homosexual acts.
(2) The member has stated that he or she is a homosexual or bisexual unless there is a further finding that the member is not a homosexual or bisexual.
(3) The member has married or attempted to marry a person known to be of the same biological sex (as evidenced by the external anatomy of the persons involved) unless there are further findings that the member is not a homosexual or bisexual and that the purpose of the marriage or attempt was the avoidance or termination of military service.
2.
a. By using force, coercion, or intimidation;
b. With a person under 16 years of age;
c. With a subordinate in circumstances that violate customary military superior-subordinate relationships;
d. Openly in public view;
e. For compensation;
f. Aboard a military vessel or aircraft; or
g. In another location subject to military control under aggravating circumstances noted in the finding that have an adverse impact on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft.
3.
a. Separation processing shall be initiated if there is probable cause to believe separation is warranted under paragraph H.1.c., above.
b. The Administrative Board shall follow the procedures set forth in subsection C.5. of part 3, except with respect to the following matters:
(1) If the Board finds that one or more of the circumstances authorizing separation under paragraph H.1.c., above, is supported by the evidence, the Board shall recommend separation unless the Board finds that retention is warranted under the limited circumstances described in that paragraph.
(2) If the Board does not find that there is sufficient evidence that one or more of the circumstances authorizing separation under paragraph H.1.c. has occurred, the Board shall recommend retention unless the case involves another basis for separation of which the member has been duly notified.
c. In any case in which characterization of service Under Other Than Honorable Conditions is not authorized, the Separation Authority may be exercised by an officer designated under paragraph B.4.a. of part 3.
d. The Separation Authority shall dispose of the case according to the following provisions:
(1) If the Board recommends retention, the Separation Authority shall take one of the following actions:
(a) Approve the finding and direct retention; or
(b) Forward the case to the Secretary concerned with a recommendation that the Secretary separate the member under the Secretary's Authority (section O. of this part 1).
(2) If the Board recommends separation, the Separation Authority shall take one of the following actions:
(a) Approve the finding and direct separation; or
(b) Disapprove the finding on the basis of the following considerations:
(3) If there has been a waiver of Board proceedings, the Separation Authority shall dispose of the case in accordance with the following provisions:
(a) If the Separation Authority determines that there is not sufficient evidence to support separation under paragraph H.1.c., the Separation Authority shall direct retention unless there is another basis for separation of which the member has been duly notified.
(b) If the Separation Authority determines that one or more of the circumstances authorizing separation under paragraph H.1.c. has occurred, the member shall be separated unless retention is warranted under the limited circumstances described in that paragraph.
e. The burden of proving that retention is warranted under the limited circumstances described in paragraph H.1.c. rests with the member, except in cases where the member's conduct was solely the result of a desire to avoid or terminate military service.
f. Findings regarding the existence of the limited circumstances warranting a member's retention under paragraph H.1.c. are required only if:
(1) The member clearly and specifically raises such limited circumstances; or
(2) The Board or Separation Authority relies upon such circumstances to justify the member's retention.
g. Nothing in these procedures:
(1) Limits the authority of the Secretary concerned to take appropriate action in a case to ensure that there has been compliance with the provisions of this part;
(2) Precludes retention of a member for a limited period of time in the interests of national security as authorized by the Secretary concerned;
(3) Authorizes a member to seek Secretarial review unless authorized in procedures promulgated by the Secretary concerned;
(4) Precludes separation in appropriate circumstances for another reason set forth in this part; or
(5) Precludes trial by court-martial in appropriate cases.
I.
(1) There is a lack of potential for continued military service; or
(2) Long-term rehabilitation is determined necessary and the member is transferred to a civilian medical facility for rehabilitation.
b. Nothing in this provision precludes separation of a member who has been referred to such a program under any other provision of this part in appropriate cases.
c. Drug abuse rehabilitation failures shall be reported separately from alcohol abuse rehabilitation failures. If separation is based on both, the primary basis shall be used for reporting requirements.
2.
3.
J.
(1) There is a lack of potential for continued military service; or
(2) Long-term rehabilitation is determined necessary and the member is transferred to a civilian medical facility for rehabilitation.
b. Nothing in this provision precludes separation of a member who has been referred to such a program under any other provision of this part in appropriate cases.
c. Alcohol abuse rehabilitation failures shall be reported separately from drug abuse rehabilitation failures. If separation is based on both, the primary basis shall be used for reporting purposes.
2.
3.
K.
(1)
(2)
(3)
(a) The specific circumstances of the offense warrant separation; and
(b) A punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial, 1969 (Revised Edition), as amended.
(4)
(b) Separation processing may be initiated whether or not a member has filed an appeal of a civilian conviction or has stated an intention to do so. Execution of an approved separation should be withheld pending outcome of the appeal or until the time for appeal has passed, but the member may be separated prior to final action on the appeal upon request of the member or upon direction of the Secretary concerned.
b.
c.
2.
3.
4.
L.
2.
3.
b. The member shall be afforded opportunity to consult with counsel qualified under Article 27(b)(1) of the UCMJ. If the member refuses to do so, counsel shall prepare a statement to this effect, which shall be attached to the file, and the member shall state that he or she has waived the right to consult with counsel.
c. Except when the member has waived the right to counsel, the request shall be signed by counsel.
d. In the written request, the member shall state that he or she understands the following:
(1) The elements of the offense or offenses charged;
(2) That characterization of service Under Other Than Honorable Conditions is authorized; and
(3) The adverse nature of such a characterization and possible consequences thereof.
e. The Secretary concerned shall also require that one or both of the following matters be included in the request:
(1) An acknowledgment of guilt of one or more of the offenses or any lesser included offenses for which a punitive discharge is authorized; or
(2) A summary of the evidence or list of documents (or copies thereof) provided to the member pertaining to the offenses for which a punitive discharge is authorized.
f. The Separation Authority shall be a commander exercising general court-martial jurisdiction or higher authority as specified by the Secretary concerned.
g. Statements by the member or the member's counsel submitted in connection with a request under this subsection are not admissible against the member in a court-martial except as authorized under Military Rule of Evidence 410, Manual for Courts-Martial.
M.
2.
N.
2.
3.
O.
1.
2.
3.
P.
2.
3.
4.
A.
2.
b. Unless separation is mandatory, the potential for rehabilitation and further useful military service shall be considered by the Separation Authority and, where applicable, the Administrative Board. If separation is warranted despite the potential for rehabilitation, consideration should be given to suspension of the separation, if authorized.
c. Counseling and rehabilitation efforts are a prerequisite to initiation of separation proceedings only insofar as expressly set forth under specific requirements for separation in part 1. An alleged or established inadequacy in previous rehabilitative efforts does not provide a legal bar to separation.
d. The following factors may be considered on the issue of retention or separation, depending on the circumstances of the case:
(1) The seriousness of the circumstances forming the basis for initiation of separation proceedings, and the effect of the member's continued retention on military discipline, good order, and morale.
(2) The likelihood of continuation or recurrence of the circumstances forming the basis for initiation of separation proceedings.
(3) The likelihood that the member will be a disruptive or undesirable influence in present or future duty assignments.
(4) The ability of the member to perform duties effectively in the present and in the future, including potential for advancement or leadership.
(5) The member's rehabilitative potential.
(6) The member's entire military record. (a) This may include:
(b) The following guidance applies to consideration of matter under subparagraph A.2.d.(6)(a):
3.
a. Conduct that has been the subject of judicial proceedings resulting in an acquittal or action having the effect thereof except in the following circumstances:
(1) When such action is based upon a judicial determination not going to the guilt or innocence of the respondent; or
(2) When the judicial proceeding was conducted in a State or foreign court and the separation is approved by the Secretary concerned.
b. Conduct that has been the subject of a prior Administrative Board in which the Board entered an approved finding that the evidence did not sustain the factual allegations concerning the conduct except when the conduct is the subject of a rehearing ordered on the basis of fraud or collusion; or
c. Conduct that has been the subject of an administrative separation proceeding resulting in a final determination by a Separation Authority that the member should be retained, except in the following circumstances:
(1) When there is subsequent conduct or performance forming the basis, in whole or in part, for a new proceeding;
(2) When there is new or newly discovered evidence that was not reasonably available at the time of the prior proceeding; or
(3) When the conduct is the subject of a rehearing ordered on the basis of fraud or collusion.
B.
b. During the period of suspension, the member shall be afforded an opportunity to meet appropriate standards of conduct and duty performance.
c. Unless sooner vacated or remitted, execution of the approved separation shall be remitted upon completion of the probationary period, upon termination of the member's enlistment or period of obligated service, or upon decision of the Separation Authority that the goal of rehabilitation has been achieved.
2.
(1) Disciplinary action;
(2) New administrative action; or
(3) Vacation of the suspension accompanied by execution of the separation if the member engages in conduct similar to that for which separation was approved (but suspended) or otherwise fails to meet appropriate standards of conduct and duty performance.
b. Prior to vacation of a suspension, the member shall be notified in writing of the basis for the action and shall be afforded the opportunity to consult with counsel (as provided in paragraph B.1.f. of part 3) and to submit a statement in writing to the Separation Authority. The respondent shall be provided a reasonable period of time, but not less than 2 working days, to act on the notice. If the respondent identifies specific legal issues for consideration by the Separation Authority, the matter shall be reviewed by a judge advocate or civilian lawyer employed by the government prior to final action by the Separation Authority.
C.
(1) Separation with characterization of service as Honorable, General (under honorable conditions), or Under Other Than Honorable Conditions.
(2) Entry Level Separation.
(3) Order of release from the custody and control of the Military Services by reason of void enlistment or induction.
(4) Separation by being dropped from the rolls of the Service.
b. Any of the types of separation listed in this section may be used in appropriate circumstances unless a limitation set forth in this section or in part 1 (Reasons for Separation).
2.
(2) The quality of service of a member on active duty or active duty for training is affected adversely by conduct that is of a nature to bring discredit on the Military Services or is prejudicial to good order and discipline, regardless of whether the conduct is subject to UCMJ jurisdiction. Characterization may be based on conduct in the civilian community, and the burden is on the respondent to demonstrate that such conduct did not adversely affect the respondent's service.
(3) The reasons for separation, including the specific circumstances that form the basis for the separation, shall be considered on the issue of characterization. As a general matter, characterization will be based upon a pattern of behavior rather than an isolated incident. There are circumstances, however, in which the conduct or performance of duty reflected by a single incident provides the basis for characterization.
(4) Due consideration shall be given to the member's age, length of service, grade, aptitude, physical and mental condition, and the standards of acceptable conduct and performance of duty.
b.
(2)
(3)
(b) This characterization is authorized only if the member has been afforded the opportunity to request an Administrative Board, except as provided in section L. of part 1 (Separation in Lieu of Trial by Courts-Martial).
c.
(1) Prior service activities, including records of conviction by courts-martial, records of absence without leave, or commission of other offenses for which punishment was not imposed shall not be considered on the issue of characterization. To the extent that such matters are considered on the issue of retention or separation (subsection A.2. of this part 2), the record of proceedings may reflect express direction that such information shall not be considered on the issue of characterization.
(2) Preservice activities may not be considered on the issue of characterization except as follows: in a proceeding concerning fraudulent entry into military service (subsection E.4. of part 1), evidence of preservice misrepresentations about matters that would have precluded, postponed, or otherwise affected the member's eligibility for enlistment or induction may be considered on the issue of characterization.
(3) The limitations in subsection A.3., above, as to matters that may be considered on the issue of separation are applicable to matters that may be considered on the issue of characterization.
(4) When the sole basis for separation is a serious offense which resulted in a conviction by a court-martial that did not impose a punitive discharge, the member's service may not be characterized Under Other Than Honorable Conditions unless such characterization is approved by the Secretary concerned.
(5) Conduct in the civilian community of a member of a reserve component who is not on active duty or active duty for training may form the basis for characterization Under Other Than Honorable Conditions only if such conduct affects directly the performance of military duties. Such conduct may form the basis of characterization as General (under honorable conditions) only if such conduct has an adverse impact on the overall effectiveness of the service, including military morale and efficiency.
(6) A member's voluntary submission to a DoD treatment and rehabilitation program (for personal use of drugs) and evidence provided voluntarily by the member concerning personal use of drugs as part of initial entry into such a program may not be used against the member on the issue of characterization. This limitation does not preclude the following actions:
(a) The introduction of evidence for impeachment or rebuttal purposes in any proceeding in which the evidence of drug abuse (or lack thereof) has been first introduced by the member; and
(b) Taking action based on independently derived evidence, including evidence of drug abuse after initial entry into the treatment and rehabilitation program.
(7) The results of mandatory urinalysis may be used on the issue of characterization except as provided in the Deputy Secretary of Defense Memorandum, “Alcohol and Drug Abuse,” December 28, 1981, and rules promulgated thereunder.
3.
(a) When characterization Under Other Than Honorable Conditions is authorized under the reason for separation (part 1) and is warranted by the circumstances of the case; or
(b) The Secretary concerned, on a case-by-case basis, determines that characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of military duty. This characterization is authorized when the member is separated under part 1 by reason of selected changes in service obligation (section B.), Convenience
(2) In time of mobilization or in other appropriate circumstances, the ASD (MRA&L) may authorize the Secretary concerned to delegate the authority in subparagraph (1)(b), above, (concerning the Honorable characterization) to a general court-martial convening authority with respect to members serving in operational units.
(3) With respect to administrative matters outside this part that require a characterization as Honorable or General, an Entry Level Separation shall be treated as the required characterization. This provision does not apply to administrative matters that expressly require different treatment of an Entry Level Separation except as provided in subparagraph (4), below.
(4) In accordance with 10 U.S.C. 1163, an Entry Level Separation for a member of a Reserve Component separated from the Delayed Entry Program is “under honorable conditions.”
b.
(1) An enlistment is void in the following circumstances:
(a) If it was effected without the voluntary consent of a person who has the capacity to understand the significance of enlisting in the Military Services, including enlistment of a person who is intoxicated or insane at the time of enlistment. 10 U.S.C. 504; Article 2(b), UCMJ.
(b) If the person is under 17 years of age. 10 U.S.C. 505.
(c) If the person is a deserter from another Military Service. 10 U.S.C. 504.
(2) Although an enlistment may be void at its inception, a constructive enlistment shall arise in the case of a person serving with a Military Service who:
(a) Submitted voluntarily to military authority;
(b) Met the mental competency and minimum 10 U.S.C. age qualifications of sections 504 and 505 of, at the time of voluntary submission to military authority;
(c) Received military pay or allowances; and
(d) Performed military duties.
(3) If an enlistment that is void at its inception is followed by a constructive enlistment within the same term of service, characterization of service or description of separation shall be in accordance with subsection C.2. or paragraph C.3.a. of this part 2, as appropriate; however, if the enlistment was void by reason of desertion from another Military Service, the member shall be separated by an order of release from the custody and control of the Service regardless of any subsequent constructive enlistment. The occurrence of such a constructive enlistment does not preclude the Military Departments, in appropriate cases, from either retaining the member or separating the member under section E. of part 1 on the basis of the circumstances that occasioned the original void enlistment or upon any other basis for separation provided in this part.
c.
A.
2. When a member is processed on the basis of multiple reasons for separation, the following guidelines apply to procedural requirements (including procedural limitations on characterization of service or description of separation):
a. The requirements for each reason will be applied to the extent practicable.
b. If a reason for separation set forth in the notice of proposed action requires processing under the Administrative Board Procedure (section C., below), the entire matter shall be processed under section C.
c. If more than one reason for separation is approved, the guidance on characterization that provides the greatest latitude may be applied.
d. When there is any other clear conflict between a specific requirement applicable to one reason and a general requirement applicable to another reason, the specific requirement shall be applied.
e. If a conflict in procedures cannot be resolved on the basis of the foregoing principles, the procedure most favorable to the respondent shall be used.
B.
a. The basis of the proposed separation, including the circumstances upon which the action is based and a reference to the applicable provisions of the Military Department's implementing regulation.
b. Whether the proposed separation could result in discharge, release from active duty to a reserve component, transfer from the Selected Reserve to the IRR, release from custody or control of the Military Services, or other form of separation.
c. The least favorable characterization of service or description of separation authorized for the proposed separation.
d. The right to obtain copies of documents that will be forwarded to the Separation Authority supporting the basis of the proposed separation. Classified documents may be summarized.
e. The respondent's right to submit statements.
f. The respondent's right to consult with counsel qualified under Article 27(b)(1) of the UCMJ. Nonlawyer counsel may be appointed when the respondent is deployed aboard a vessel or in similar circumstances of separation from sufficient judge advocate resources as determined under standards and procedures specified by the Secretary concerned. The respondent also may consult with civilian counsel retained at the member's own expense.
g. If the respondent has 6 or more years of total active and reserve military service, the right to request an Administrative Board (section C.).
h. The right to waive paragraphs d., e., f. or g., above, after being afforded a reasonable opportunity to consult with counsel, and that failure to respond shall constitute a waiver of the right.
2.
b. If the respondent is in civil confinement, absent without leave, or in a reserve component not on active duty or upon transfer to the IRR, the relevant notification procedures in sections D., E., or F. of this part 3 apply.
c. Additional notification requirements are set forth in part 1, sections C. and D., when characterization of service as General (under honorable conditions) is authorized and the member is processed for separation by reason of Convenience of the Government or Disability.
3.
a. If notice by mail is authorized under sections D., E., or F. of this part 3 and the respondent fails to acknowledge receipt or submit a timely reply, that fact shall constitute a waiver of rights and an appropriate notation shall be recorded on a retained copy of the appropriate form.
b. If the respondent declines to respond as to the selection of rights, such declination shall constitute a waiver of rights and an appropriate notation will be made on the form provided for respondent's reply. If the respondent indicates that one or more of the rights will be exercised, but declines to sign the appropriate form, the selection of rights will be noted and an appropriate notation as to the failure to sign will be made.
4.
b. The action of the Separation Authority shall be recorded.
c. The Separation Authority shall determine whether there is sufficient evidence to verify the allegations set forth in the notification of the basis for separation. If an allegation is not supported by a preponderance of the evidence, it may not be used as a basis for separation.
d. If there is a sufficient factual basis for separation, the Separation Authority shall determine whether separation is warranted under the guidance in sections A. and B. of part 2. On the basis of that guidance, the Separation Authority shall direct one of the following actions:
(1) Retention;
(2) Separation for a specific reason under part 1; or
(3) Suspended separation in accordance with the guidance in section B. part 2.
e. If the Separation Authority directs separation or suspended separation on the basis of more than one reason under part 1, the Separation Authority shall designate the most appropriate basis as the primary reason for reporting purposes.
f. If separation or a suspended separation is directed, the Separation Authority shall assign a characterization or description in accordance with section C. of part 2.
g. Except when characterization Under Other Than Honorable Conditions is directed or the member is separated on the basis of homosexuality or a void enlistment or induction, the Secretary concerned may authorize
C.
a. The basis of the proposed separation, including the circumstances upon which the action is based and reference to the applicable provisions of the Military Department's implementing regulation.
b. Whether the proposed separation could result in discharge, release from active duty to a reserve component, transfer from the Selected Reserve to the IRR, release from the custody or control of the Military Services, or other form of separation.
c. The least favorable characterization of service or description of separation authorized for the proposed separation.
d. The respondent's right to consult with counsel as prescribed in paragraph B.1.f. of this part 3. However, nonlawyer counsel may not represent a respondent before an Administrative Board unless (1) the respondent expressly declines appointment of counsel qualified under Article 27(b) (1) of the UCMJ (10 U.S.C.) and requests a specific nonlawyer counsel; or (2) the Separation Authority assigns nonlawyer counsel as assistant counsel.
e. The right to obtain copies of documents that will be forwarded to the Separation Authority supporting the basis of the proposed separation. Classified documents may be summarized.
f. The respondent's right to request a hearing before an Administrative Board.
g. The respondent's right to present written statements instead of board proceedings.
h. The respondent's right to representation at the Administrative Board either by military counsel appointed by the Convening Authority or by military counsel of the respondent's own choice (if counsel of choice is determined to be reasonably available under regulations of the Secretary concerned) but not both.
i. The right to representation at the Administrative Board by civilian counsel at the respondent's own expense.
j. The right to waive the rights in paragraphs d. through i., above.
k. That failure to respond after being afforded a reasonable opportunity to consult with counsel constitutes a waiver of the rights in paragraphs d. through i., above.
l. Failure to appear without good cause at a hearing constitutes waiver of the right to be present at the hearing.
2.
b. If the respondent is in civil confinement, absent without leave, or in a reserve component not on active duty or upon transfer to the IRR, the relevant notification procedures in sections D., E., or F. of this part 3 apply.
c. Additional notification requirements are set forth in sections C. and D., part 1, when characterization of service as General (under honorable conditions) is authorized and the member is processed for separation by reason of Convenience of the Government or Disability.
3.
a. If notice by mail is authorized under sections D., E., or F. of this part 3 and the respondent fails to acknowledge receipt or submit a timely reply, that fact shall constitute a waiver of rights and an appropriate notation shall be recorded on a retained copy of the appropriate form.
b. If the respondent declines to respond as to the selection of rights, such declination shall constitute a waiver of rights and an appropriate notation will be made on the form provided for respondent's reply. If the respondent indicates that one or more of the rights will be exercised, but declines to sign the appropriate form, the selection of rights will be noted and an appropriate notation as to the failure to sign will be made.
4.
b. When authorized by the Secretary concerned, a respondent entitled to an Administrative Board may exercise a conditional waiver after a reasonable opportunity to consult with counsel under paragraph C.1.d. A conditional waiver is a statement initiated by a respondent waiving the right to a board proceeding contingent upon receiving a characterization of service or description of separation higher than the least favorable characterization or description authorized for the basis of separation set forth in the notice to the respondent.
5.
a.
(2) If the respondent is an enlisted member of a reserve component or holds an appointment as a reserve commissioned or warrant officer, the Board shall include at least one Reserve officer as a voting member. Voting members shall be senior to the respondent's reserve grade.
(3) The Convening Authority shall insure that the opportunity to serve on Administrative Boards is given to women and minorities. The mere appointment or failure to appoint a member of such a group to the Board, however, does not provide a basis for challenging the proceeding.
(4) The respondent may challenge a voting member of the Board or the legal advisor, if any, for cause only.
b.
c.
(2) In accordance with such instructions, the respondent may submit a written request for TDY or invitational travel orders for witnesses. Such a request shall contain the following matter:
(a) A synoposis of the testimony that the witness is expected to give.
(b) An explanation of the relevance of such testimony to the issues of separation or characterization.
(c) An explanation as to why written or recorded testimony would not be sufficient to provide for a fair determination.
(3) The Convening Authority may authorize expenditure of funds for production of witnesses only if the presiding officer (after consultation with a judge advocate) or the legal advisor (if appointed) determines that:
(a) The testimony of a witness is not cumulative;
(b) The personal appearance of the witness is essential to a fair determination on the issues of separation or characterization;
(c) Written or recorded testimony will not accomplish adequately the same objective;
(d) The need for live testimony is substantial, material, and necessary for a proper disposition of the case; and
(e) The significance of the personal appearance of the witness, when balanced against the practical difficulties in producing the witness, favors production of the witness. Factors to be considered in relation to the balancing test include, but are not limited to, the cost of producing the witness, the timing of the request for production of the witness, the potential delay in the proceeding that may be caused by producing the witness, or the likelihood of significant interference with military operational deployment, mission accomplishment, or essential training.
(4) If the Convening Authority determines that the personal testimony of a witness is required, the hearing will be postponed or continued if necessary to permit the attendance of the witness.
(5) The hearing shall be continued or postponed to provide the respondent with a reasonable opportunity to obtain a written statement from the witness if a witness requested by the respondent is unavailable in the following circumstances:
(a) When the presiding officer determines that the personal testimony of the witness is not required;
(b) When the commanding officer of a military witness determines that military necessity precludes the witness’ attendance at the hearing; or
(c) When a civilian witness declines to attend the hearing.
(6) Paragraph (5)(c), above, does not authorize a Federal employee to decline to appear as a witness if directed to do so in accordance with applicable procedures of the employing agency.
d.
e.
f.
(2) At any time during the proceedings, the respondent or counsel may submit written or recorded matter for consideration by the Board.
(3) The respondent or counsel may call witnesses in his or her behalf.
(4) The respondent or counsel may question any witness who appears before the Board.
(5) The respondent or counsel may present argument prior to when the Board closes the case for deliberation on findings and recommendations.
g.
(2) The Board shall determine whether each allegation set forth in the notice of proposed separation is supported by a preponderance of the evidence.
(3) The Board shall then determine under the guidance in section A. of part 2 whether the findings warrant separation with respect to the reason for separation set forth in the Notice. If more than one reason was contained in the Notice, there shall be a separate determination for each reason.
(4) The Board shall make recommendations on the following:
(a)
(b)
(c)
(d)
6.
b. In every case in which characterization of sevice Under Other Than Honorable Conditions is recommended, the record of the Board's proceedings will be reviewed by a judge advocate or civilian attorney employed by the Military Department prior to action by the Separation Authority. Such review is not required when another characterization is recommended unless the respondent identifies specific legal issues for consideration by the Separation Authority.
c. The respondent will be provided with a copy of the Board's statement of facts and recommendations.
d. The Separation Authority shall take action in accordance with this subparagraph, the requirements of part 1 with respect to the reason for separation, and the guidance in part 2 on separation and characterization.
(1) If the Separation Authority approves the recommendations of the Board on the issue of separation or characterization (or both) this constitutes approval of the Board's findings and recommendations under paragraph C.5.g. unless the Separation Authority expressly modifies such findings or recommendations.
(2) If the Board recommends retention, the Separation Authority may take one of the following actions:
(a) Approve the recommendation.
(b) Forward the matter to the Secretary concerned with a recommendation for separation based upon the circumstances of the case. In such a case, the Secretary may direct retention or separation. If the Secretary approves separation, the characterization of service or description of separation will be Honorable, General (under honorable conditions) or an Entry Level Separation under the guidance in section C. of part 2.
(3) If the Board recommends separation, the Separation Authority may:
(a) Approve the Board's recommendation;
(b) Approve the Board's recommendation, but modify the recommendations by one or more of the following actions when appropriate:
(c) Disapprove the Board's recommendation and retain the respondent.
(4) If the Separation Authority approves the Board's findings and recommendations in whole or in part with respect to more than one reason under part 1, the Separation Authority shall designate the most appropriate basis as the primary reason for reporting purposes.
(5) If the Separation Authority finds legal prejudice to a substantial right of the respondent or determines that the findings of the Board have been obtained by fraud or collusion, the case may be referred to a new board. No member of the new board shall have served on a prior board that considered the case. The Separation Authority may not approve findings and recommendations less favorable to the respondent than those rendered by the previous board unless the Separation Authority finds that fraud or collusion in the previous board is attributable to the respondent or an individual acting on the respondent's behalf.
D.
2. The following requirements apply:
a. The notice shall contain the matter set forth in subsection B.1. of this part or subsection C.1. (Notice in the Administrative Board Procedure), as appropriate. The notice shall be delivered personally to the respondent or sent by registered mail or certified mail, return receipt requested (or by an equivalent form of notice if such service is not available for delivery by U.S. mail at an address outside the United States). If the member refuses to acknowledge receipt of notice, the individual who mails the notification shall prepare a Sworn Affidavit of Service by Mail (see 32 CFR part 100) [DoD Directive 1215.13], which will be inserted in the member's personnel file together with PS Form 3800.
b. If delivered personally, receipt shall be acknowledged in writing by the respondent. If the respondent does not acknowledge receipt, the notice shall be sent by mail as provided in paragraph 2.a., above.
c. The notice shall state that the action has been suspended until a specific date (not less than 30 days from the date of delivery) in order to give the respondent the opportunity to exercise the rights set forth in the notice. If respondent does not reply by such date, the separation authority shall take appropriate action under subsection B.4. of this part 3.
d. The name and address of the military counsel for appointed consultation shall be specified in the notice.
e. If the case involves entitlement to an Administrative Board, the respondent shall be notified that the board will proceed in the respondent's absence and that the case may be presented on respondent's behalf by counsel for the respondent.
E.
(1) At the request of the member;
(2) If the member does not respond to the notice of proceedings on or before the suspense date provided therein; or
(3) If the member fails to appear at a hearing as provided in paragraph C.1.1.
b. The notice shall contain the matter set forth in subsections B.1. or C.1. of this part 3, as appropriate.
c. If the action involves a transfer to the IRR under circumstances in which the procedures in this Appendix A are applicable, the member will be notified that the character of service upon transfer to the IRR also will constitute the character of service upon discharge at the completion of the military service obligation unless specified conditions established by the Secretary concerned are met.
2.
a. The character of service upon transfer from active duty or the Selected Reserve to the IRR, and that the character of service upon completion of the military service obligation will be the same unless specified conditions established by the Secretary concerned are met.
b. The date upon which the military service obligation will expire.
c. The date by which the member must submit evidence of satisfactory completion of the specified conditions.
3. If the member submits evidence of completion of the specified conditions but the Military Department proposes to issue a discharge other than an Honorable Discharge, the Notification Procedure shall be used. An Administrative Board is not required at this
4. If the member does not submit such information on or before the date specified in the notice, no further proceedings are required. The character of discharge at the completion of the military service obligation shall be the same as the character of service upon transfer from the Selected Reserve to the IRR.
5. The following requirements apply to the notices required by subsections E.1. and E.2. of this part 3.
a. Reasonable effort should be made to furnish copies of the notice to the member through personal contact by a representative of the command. In such a case, a written acknowledgment of the notice shall be obtained.
b. If the member cannot be contacted or refuses to acknowledge receipt of the notice, the notice shall be sent by registered or certified mail, return receipt requested (or by an equivalent form of notice if such service by U.S. Mail is not available for delivery at an address outside the United States) to the most recent address furnished by the member as an address for receipt or forwarding of official mail. The individual who mails the notification shall prepare a Sworn Affidavit of Service by Mail (see 32 CFR part 100 (DoD Directive 1215.13)), which will be inserted in the member's personnel file together with PS Form 3800.
F.
a. Absence without authority after receiving notice of initiation of separation processing.
b. When prosecution of a member who is absent without authority appears to be barred by the statute of limitations, Article 43, UCMJ.
c. When a member who is an alien is absent without leave and appears to have gone to a foreign country where the United States has no authority to apprehend the member under a treaty or other agreement.
2.
3.
5 U.S.C. 301.
This part reissues part 42 to update established policies, procedures, and restrictions governing interception of wire and oral communications and the use of pen registers and related devices for law enforcement purposes, both in the United States and abroad, in accordance with 47 U.S.C. 605 and 18 U.S.C. 2510-2520.
(a) The provisions of this part apply to the Office of the Secretary of Defense, the military departments, the Organization of the Joint Chiefs of Staff, the defense agencies, and the unified and specified commands (hereafter referred to collectively as “DoD components”).
(b) This part does not affect status of forces or other specific agreements
(a) The interception of wire and oral communications for law enforcement purposes is prohibited unless conducted in accordance with this part and applicable law.
(b) The only DoD components authorized to intercept wire and oral communications and conducts pen register operations under this part are the Departments of the Army, Navy, and Air Force. Within these components, authority to use this technique shall be limited to those offices specifically designated in writing by the head of the component.
(c) Interception of wire and oral communications is a special technique which shall not be considered as a substitute for normal investigative procedures and shall be authorized only in those circumstances where it is demonstrated that the information is necessary for a criminal investigation and cannot reasonably be obtained in some other, less intrusive manner.
(d) Nonconsensual interception of wire and oral communications is prohibited unless there exists probable cause to believe that:
(1) In the case of interceptions within the United States, a criminal offense listed in 18 U.S.C. 2516(1) has been, is being, or is about to be committed;
(2) In the case of interceptions abroad conducted pursuant to an order issued by a military judge under § 42.7(a)(1)(ii)(A), one of the following violations of the Uniform Code of Military Justice has been, is being, or is about to be committed by a person subject to the Uniform code of Military Justice under article 2, 10 U.S.C. 802:
(i) The offense of murder, kidnapping, gambling, robbery, bribery, extortion, espionage, sabotage, treason, fraud against the Government, or dealing in narcotic drugs, marihuana, or other dangerous drugs; or
(ii) Any other offense dangerous to life, limb, or property, and punishable by death or confinement for 1 year or more; or
(iii) Any conspiracy to commit any of the foregoing offenses.
(3) In the case of other interceptions abroad, one of the following offenses has been, is being, or is about to be committed:
(i) An offense listed in 18 U.S.C. 2516(1); or
(ii) Fraud against the Government or any other offense dangerous to life, limb, or property and punishable under title 18 of the U.S. Code by death or confinement for more than 1 year; or
(iii) Any conspiracy to commit any of the foregoing offenses.
(e) Consensual interceptions of wire and oral communications shall be undertaken only when at least one of the parties to the conversation has consented to the interception and when the investigation involves:
(1) A criminal offense punishable, under the United States Code or Uniform Code of Military Justice, by death or confinement for 1 year or more; or
(2) A telephone call involving obscenity, harassment, extortion, bribery, bomb threat, or threat of bodily harm that has been made to a person authorized to use the telephone of a subscriber-user on an installation, building, or portion thereof, under Department of Defense jurisdiction or control, and when the subscriber-user has also consented to the interception.
(f) The prohibitions and restrictions of this part apply regardless of the official use or dissemination of the intercepted information. Any questions as to whether the use of a particular device may involve prohibited wire or oral interception shall be submitted with supporting facts through channels to the general counsel of the Department of Defense for resolution.
(g) No otherwise privileged wire or oral communication intercepted in accordance with this part shall lose its privileged character.
Waivers of the requirements enunciated in this part will be authorized on a case-by-case basis only when directed in writing by the Secretary of Defense. Waivers will be authorized only under the most limited circumstances and when consistent with applicable law.
(a) The Department of Defense General counsel or a single designee, shall:
(1) Determine whether to approve or deny requests for authorization to conduct nonconsensual interceptions under this part (§ 42.7(a)(1) (i) and (ii)).
(2) Determine whether to seek Attorney General authorization for emergency nonconsensual interceptions (§ 42.7(a)(1)(iii)).
(3) In the absence of the Secretary of the military department concerned, or a designee, determine whether to approve or deny requests to conduct consensual interceptions (§ 42.7(a)(2)(i)).
(4) Provide overall policy guidance for the implementation of this part.
(b) The Assistant Secretary of Defense (Comptroller) (ASD(C)), or a designee, shall:
(1) In consultation with the DoD General Counsel, act for the Secretary of Defense to insure compliance with the provisions of this part.
(2) Receive, process, and transmit to the DoD General Counsel all requests from the heads of the DoD components, or their designees, for authority to conduct nonconsensual interception of wire and oral communications.
(3) Furnish to the Attorney General those reports required by § 42.7(f)(1) and provide a copy of such reports to the DoD General Counsel.
(4) Receive those reports required by § 42.7(f)(1) and provide a copy of such reports to the DoD General Counsel.
(c) The head of each DoD component or a designee shall insure compliance with the policies and procedures set forth or referenced in this part.
(d) The secretary of each military department, or a designee, shall:
(1) Determine whether to approve or deny requests to conduct consensual interceptions (§ 42.7(a)(2)(i)). This approval authority shall not be delegated to an official below the level of assistant secretary or assistant to the secretary of the military department.
(2) Review requests for nonconsensual interception of wire or oral communications (§ 42.7(a)(1)).
(3) Designate a control point of contact and so advise the DoD General Counsel and the ASD(C) for:
(i) Interception activities and related applications covered by this part.
(ii) Compilation of reports and forwarding other submissions to the ASD(C) as required by the provisions of this part.
(iii) Maintaining a file of information regarding all interceptions of wire and oral communications by any element of the Department.
(4) Furnish to the ASD(C) the reports required by § 42.7(f)(2).
(e) The judge advocate general of each military department shall assign military judges, certified in accordance with the provisions of article 26(b) of the Uniform Code of Military Justice, 10 U.S.C. 826(b):
(1) To receive applications for intercept authorization orders and to determine whether to issue such orders in accordance with § 42.7(a)(1)(ii)(A). The authorization of such military judges to issue intercept authorization orders shall be limited to interceptions occurring abroad and targeted against persons subject to the Uniform Code of Military Justice.
(2) To receive applications to conduct pen register operations and to issue orders authorizing such operations in accordance with § 42.7(b)(1). The authority of such military judges to issue orders authorizing pen register operations shall be limited to operations conducted on a military installation and targeted against persons subject to the Uniform Code of Military Justice.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(a)
(A) The requesting component shall prepare and forward through channels a “request for authorization” to the Assistant Secretary of Defense (Comptroller), or an official designated by the ASD(C). This application shall be transmitted by expeditious means and protected to preclude unauthorized access or any danger to the officials or other persons cooperating in the case. Each request for authorization will contain the following information:
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(B) The ASD(C), or an official designated by the ASD(C), will recommend to the DoD General Counsel that the request be approved or disapproved. Approval or disapproval of all requests for authorization will be made in writing by the DoD General Counsel, or a single designee.
(C) If the request is approved by the DoD General Counsel, the official making the request will coordinate directly with an attorney from the Department of Justice or from a U.S. Attorney's office for preparation of documents necessary to obtain a court order in accordance with 18 U.S.C. 2518. These documents will be forwarded by the Department of Justice attorney to the Attorney General, or to the designated Assistant Attorney General, for approval in accordance with 18 U.S.C. 2516.
(D) Upon approval by the Attorney General, or the designated Assistant Attorney General, formal application for a court order will be made by the appropriate attorney from the Department of Justice, assisted by the appropriate military lawyer.
(ii)
(A) When the target of the interception is a person subject to the Uniform Code of Military Justice under Article 2, U.S.C. 802.
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(B) When the target of an interception conducted abroad is a person who is not subject to the Uniform Code of Military Justice:
(
(
(iii)
(iv)
(2)
(A) When one of the parties to the conversation consents to an intended interception of a communication, the DoD investigative or law enforcement official shall prepare a request containing the following information:
(
(
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(B) An application for a court interception order is not necessary in this
(C) The Secretaries of the military departments shall designate an official to act upon telephonic requests when emergency needs preclude advance written approval. A written record of such requests shall be made.
(ii) The following restrictions are applicable to all consensual interceptions of oral or wire communications:
(A) Within the United States, approval shall be granted for a period of no more than 30 days. Abroad, approval may be granted for 60 days. Renewal requests for specified periods of not more than 30 days each (60 days for interception outside the United States) may be submitted to the approving authority for consideration. The interception in all instances shall be terminated as soon as the desired information is obtained, or when the interception proves to be nonproductive.
(B) The authorization for consensual interception of communications shall define clearly the manner in which the interception is to be accomplished. A “consensual interception” shall not involve the installation of equipment in violation of the constitutionally protected rights of any nonconsenting person whose communications will be intercepted.
(b)
(1)
(i) The application for a court order authorizing the operation shall be made in writing upon oath or affirmation and shall be submitted to a military judge assigned by the Judge Advocates General, pursuant to paragraph (f)(5) of this section, to receive such applications. An application shall include the following information:
(A) The identity of the DoD investigative or law enforcement officer making the application;
(B) A complete statement of the facts and circumstances relied upon by the application to justify the applicant's belief that there exists probable cause to believe that the operation will produce evidence of a crime, including a description of the particular offense involved, a description of the nature and location of the facilities from which the intercepted information originates, and the identity of the person, if known, who has committed, is about to commit, or is committing the offense and who is the target of the operation;
(C) A statement of the period of time for which the operation is required to be maintained.
(ii) Subject to the limitations of paragraph (a)(1)(ii)(C) (
(A) Identity of the person, if known, who is the target of the operation;
(B) Location of the facilities from which the intercepted information originates and of the facilities on which the operation will take place;
(C) Period of time during which such operation is authorized.
(iii) When the application is for an operation conducted abroad, the military judge may not authorize the operation if it would violate the relevant Status of Forces Agreement or the applicable domestic law of the host nation.
(2)
(A) The application for authority to conduct a pen register operation shall include the information in paragraph (b)(1)(i) of this section and shall be forwarded to the DoD General Counsel.
(B) The DoD General Counsel shall determine whether to approve the request and what further approval is required by law to conduct the pen register operation.
(ii) Except as provided in paragraph (b)(3) of this section, all other pen register and similar operations in the United States shall be conducted pursuant to a search warrant (or other judicial order authorizing the operation) issued by a judge of competent jurisdiction.
(3)
(c)
(d)
(ii) Interception equipment shall be safeguarded to prevent unauthorized access or use, with appropriate inventory records to account for all equipment at all times. Storage shall be centralized to the maximum extent possible consistent with operational requirements. When equipment is withdrawn from storage a record shall be made as to the times of withdrawal and of its return to storage. Equipment should be returned to storage when not in actual use, except to the extent that returning the equipment would interfere with its proper utilization. The individual to whom the equipment is assigned shall account fully, in a written report, for the use made of the equipment during the time it was removed from storage. Copies of the completed inventories of equipment, the times of withdrawal and return and the written reports of the agents specifying the uses made of the equipment shall be retained for at least 10 years.
(2)
(ii) If there is any question as to what purpose an item of equipment is primarily useful for, then the officials
(e)
(2)
(A) Names, citizenship, and other available identifying data for each reasonably identifiable person intercepted (intentionally or otherwise), whether a case subject or not. If available, the social security account number and the date and place of birth of the individuals intercepted and identified;
(B) The telephone numbers of radio telephone call signs involved in the interception;
(C) The case number or other identifier for the interception;
(D) The address of the location of the interception;
(E) The inclusive dates of the interception.
(ii)
(A) Names and other available identifying data for each reasonably identifiable target of the interception applied for;
(B) The telephone numbers or radio telephone call signs involved in the application;
(C) The address of the location of the interception applied for;
(D) The case number or other identifier for the application; and
(E) A statement of the other facts concerning the application and the reason that the application was refused.
(3)
(ii) In all cases, access to information obtained by interception activities conducted under the provisions of this part shall be restricted to those individuals having a defined need-to-know clearly related to the performance of their duties.
(iii) The information may be disseminated outside the Department of Defense only when:
(A) Required for the purposes described in 18 U.S.C. 2517;
(B) Required by law (including the Privacy Act of 1974, as amended, and the Freedom of Information Act of 1967, as amended, or order of a Federal court;
(C) Requested by a committee of the Congress and approved for release by the DoD General Counsel; or
(D) Required by the provisions of Status of Forces or other international agreements.
(iv) Secretaries of the military departments shall promulgate regulations, policies and procedural controls and designate responsible officials for both internal and external dissemination of the information described above. Procedures shall include sufficient records reflecting dissemination of this information. Copies of all
(4)
(f)
(i)
(ii)
(B) By July 31, an inventory of all DoD electronic or mechanical equipment primarily useful for interception of wire or oral communications.
(2)
(i)
(ii)
(a)
(2) Indicate whether the report is a wire or oral interception operation and whether the interception included the use of a pen register. (If more than one operation is authorized, a separate entry should be made for each.)
(3) Purpose or objective of operation. Specify offense being investigated and included a brief synopsis of the case.
(4) Investigative case number or identifier for the operation.
(5) Location of the operation.
(6) Type of equipment used and method of installation.
(7) Identity of the performing organizational unit. (Indicate if the interception was conducted for a DoD component other than the component making the report or for a non-DoD activity.)
(8) Identity of DoD investigative or law enforcement officer who requested or applied for the interception.
(9) Approval authority and date of approval.
(10) Length and dates for which operation was approved.
(11) Actual date operation was initiated, and date terminated.
(12) If operation was extended, state name of authority approving extension and dates to which extended.
(13) State where tapes, transcripts, and notes are stored.
(14) Evaluation of results of operations, including the use made of the information in subsequent investigation or prosecution.
(15) The names and positions of persons authorized to approve consensual interceptions, including those persons authorized to approve emergency, telephonic requests.
(16) Indicate whether the interception took place in the United States or abroad.
(b)
(1) Identity of court and judge who issued the intercept authorization order and date of order.
(2) Nature and frequency of incriminating communications intercepted (specify dates and approximate duration of each communication).
(3) Nature and frequency of other communications intercepted.
(4) Number of persons whose communications were intercepted. Indicate number of U.S. persons known to have been intercepted and whether such persons were targets or incidentals.
(c)
(1) Number of persons located in the United States whose communications were intercepted.
(2) In the report for the last quarter of each calendar year, include:
(i) The number of arrests and trials resulting from each interception conducted during the year. Indicate the offense for each interception.
(ii) The number of convictions resulting from the interceptions conducted during the year and the offenses for which convictions were obtained.
(d)
(e)
(2) Investigative case number or identifier for the application.
(3) Identity of applying DoD investigative or law enforcement officer.
(4) Approval authority and date of approval of DoD request.
(5) Identity of judge who denied the application and date of denial.
(6) Offense specified in the application.
(7) Whether the application was for a wire or oral interception order, and whether the application was for an interception in the United States or abroad.
(8) Purpose or object of the interception applied for. Include a brief synopsis of the case.
(9) If the application was for an extension, indicate the dates, duration, and results of the previous interception.
(10) Specific location of the interception applied for.
(11) Number of U.S. persons named as targets in the application.
(12) Reason why the application was denied.
5 U.S.C. 301.
This part:
(a) Consolidates into a single document parts 43 and 276 of this title and update DoD policies and procedures
(b) Continues the established annual DoD accreditation requirements for life insurance companies operating in overseas areas where neither Federal nor State consumer protection regulations apply.
(a) This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Organization of the Joint Chiefs of Staff (OJCS), the Unified Commands, and the Defense Agencies (hereafter referred to collectively as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, Marine Corps, and Coast Guard.
(b) The provisions of this part do not apply to services furnished by commercial companies, such as deliveries of milk, laundry, and related residence services when such services are authorized by the DoD installation commander.
(c) Nothing in this part should be construed to preclude private, non-profit, tax-exempt organizations composed of active and retired members of the Military Services from holding membership meetings which do not involve commercial solicitation on DoD installations. Attendance at these meetings shall be voluntary and the time and place of such meetings are subject to the discretion of the installation commander or his or her designee.
It is the policy of the Department of Defense to safeguard and promote the welfare of DoD personnel as consumers by setting forth a uniform approach to
(a) The
(b) The
(a)
(i) The solicitor is duly licensed under applicable Federal, State, or municipal laws and has complied with installation regulations in accordance with paragraph (c) of this section.
(ii) Personal commercial solicitation is permitted by the local installation commander.
(iii) A specific appointment has been made with the individual concerned and conducted in family quarters or in other areas designated by the installation commander.
(2) Those seeking to transact personal commercial solicitation on overseas installations shall be required to observe, in addition to the above, the applicable laws of the host country and, upon demand, present documentary evidence to the installation commander, or designee, that the company they represent, and its agents, meet the licensing requirements of the host country.
(3) Organizations involved in sales are permitted to display literature on DoD installations in locations selected by the commander.
(b)
(2) Insurers and their agents are authorized to solicit on DoD installations provided they are licensed under the insurance laws of the State in which the installation is located. In overseas areas, DoD Components shall limit this authorization to those insurers accredited under the provisions of Appendix B.
(3) The conduct of all insurance business on DoD installations shall be by specific appointment. When establishing the appointment, insurance agents must identify themselves to the prospective purchaser as an agent for a specific company.
(4) Installation commanders shall designate areas where interviews by appointment may be conducted. Invitations to conduct interviews shall be extended to all agents on an equitable basis. Where space and other considerations limit the number of agents using the interviewing area, the installation commander may develop and publish local policy consistent with this concept.
(5) Installation commanders shall make disinterested third-party counseling available to DoD personnel desiring counseling.
(6) In addition to the solicitation prohibitions contained in paragraph (d) of this section, DoD Components shall prohibit:
(i) DoD personnel from representing any insurer, or dealing directly or indirectly with any insurer or any recognized representative of any insurer on the installation, as an agent or in any official or business capacity with or without compensation.
(ii) The use of an agent as a participant in any Military Services-sponsored insurance education or orientation program.
(iii) The designation of any agent or the use by any agent of titles such as “Battalion Insurance Counselor,” “Unit Insurance Advisor,” “Servicemen's Group Life Insurance Conversion Consultant,” etc.
(iv) The assignment of desk space for interviews for other than a specific prearranged appointment. During such appointment, the agent shall not be permitted to display desk or other signs announcing his or her name or company affiliation.
(v) The use of the “Daily Bulletin” or any other notice, official or unofficial, announcing the presence of an agent and his or her availability.
(c)
(2) When practicable, as determined by the installation commander, a copy of the applicable installation regulations shall be given to those conducting on-base commercial activities with the warning that any infractions of the regulations will result in the withdrawal of solicitation privileges.
(d)
(1) Solicitation of recruits, trainees, and transient personnel in a “mass” or “captive” audience.
(2) Making appointments with or soliciting military personnel who are in an “on-duty” status.
(3) Soliciting without appointment in areas utilized for the housing or processing of transient personnel, in barracks areas used as quarters, in unit areas, in family quarters areas, and in areas provided by installation commanders for interviews by appointment.
(4) Use of official identification cards by retired or reserve members of the Military Services to gain access to DoD installations for the purpose of soliciting.
(5) Procuring, or attempting to procure, or supplying roster listings of DoD personnel for purposes of commercial solicitation, except for releases granted in accordance with DoD Directive 5400.7.
(6) Offering unfair, improper, and deceptive inducements to purchase or trade.
(7) Using rebates to facilitate transactions or to eliminate competition.
(8) Using manipulative, deceptive, or fraudulent devices, schemes, or artifices, including misleading advertising and sales literature.
(9) Using oral or written representations to suggest or give the appearance that the Department of Defense sponsors or endorses any particular company, its agents, or the goods, services, and commodities it sells.
(10) Full-time DoD personnel making personal commercial solicitations or sales to DoD personnel who are junior in rank or grade as provided in DoD Directive 5500.7
(11) Entering into any unauthorized or restricted area.
(12) Using any portion of installation facilities, including quarters, as a showroom or store for the sale of goods or services, except as specifically authorized by DoD Directives 1330.9
(13) Soliciting door to door.
(14) Advertising addresses or telephone numbers of commercial sales activities conducted on the installation, except for authorized activities conducted by members of military families residing in family housing.
(e)
(i) Failure to meet the licensing and other regulatory requirements prescribed in paragraphs (a) and (b) of this section.
(ii) Commission of any of the practices prohibited in paragraphs (b)(6) and (d) of this section.
(iii) Substantiated complaints or adverse reports regarding quality of goods, services, and commodities and the manner in which they are offered for sale.
(iv) Knowing and willful violations of Pub. L. 90-321.
(v) Personal misconduct by a company's agent or representative while on the installation.
(vi) The possession of or any attempt to obtain supplies of allotment forms used by the Military Departments, or possession or use of facsimiles thereof.
(vii) Failure to incorporate and abide by the Standards of Fairness policies contained in DoD Directive 1344.9.
(2) In withdrawing solicitation privileges, the commander shall determine whether to limit it to the agent alone or extend it to the company the agent represents. This decision shall be communicated to the agent and to the company the agent represents and shall be based on the circumstances of the particular case, including, among others, the nature of the violations, frequency of violations, the extent to which other agents of the company have engaged in such practices, and any other matters tending to show the company's culpability.
(i) Upon withdrawing solicitation privileges, the commander shall promptly inform the agent and the company the agent represents orally or in writing.
(ii) If the grounds for the action involve the eligibility of the agent or company to hold a State license or to meet other regulatory requirements, the appropriate authorities will be notified.
(iii) The commander shall afford the individual or company an opportunity to show cause why the action should not be taken. To “show cause” means an opportunity must be given for the grieved party to present facts on his or her behalf on an informal basis for the consideration of the installation commander.
(iv) If warranted, the commander shall recommend to the Military Department concerned that the action taken be extended to other DoD installations. If so approved, and when appropriate, the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)), following consultation with the Military Department concerned, shall order the action extended to other Military Departments.
(v) All denials or withdrawals of privileges will be for a set period of time, at the end of which the individual may reapply for permission to solicit through the Military Department originally imposing the restriction. Denial or withdrawal of soliciting privileges may or may not be continued, as warranted.
(vi) When such denials or withdrawals are lifted, the Office of the ASD(FM&P) shall be notified for parallel action if the same denial or withdrawal has been extended to other Military Departments.
(vii) The commanding officer may, if circumstances dictate, make immediate suspensions of solicitation privileges for a period of 30 days while an investigation is conducted. Exceptions to this amount of time must be approved by the Military Department concerned.
(3) Upon receipt of the information outlined above, the Secretaries of the Military Departments may direct the Armed Forces Disciplinary Control Boards in all geographical areas in which the grounds for action have occurred to consider the charges and take appropriate action.
(f)
(2) The advertising of credit terms shall conform to the provisions of Pub. L. 90-321 as implemented by Regulation Z.
(g)
(2) The Military Departments shall also make qualified personnel and facilities available for individual counseling on loans and consumer credit transactions in order to encourage thrift and financial responsibility and promote a better understanding of the wise use of credit, as prescribed in DoD Directive 1344.9.
(3) Military members shall be encouraged to seek advice from a legal assistance officer or their own lawyer before making a substantial loan or credit commitment.
(4) Each Military Department shall provide advice and guidance to military personnel who have a complaint under Pub. L. 90-321 or who allege a criminal violation of its provisions, including referral to the appropriate regulatory agency for processing of the complaint.
1. Insurance products, other than certificates or other evidence of insurance issued by a self-insured association, offered and sold worldwide to personnel on DoD installations, must:
a. Comply with the insurance laws of the State or country in which the installation is located and the procedural requirements of this Directive.
b. Contain no restrictions by reason of military service or military occupational specialty of the insured, unless such restrictions are clearly indicated on the face of the contract.
c. Plainly indicate any extra premium charges imposed by reason of military service or military occupational specialty.
d. Contain no variation in the amount of death benefit or premium based upon the length of time the contract has been in force, unless all such variations are clearly described therein.
2. To comply with paragraphs A.1.b., c., and d., above, an appropriate reference stamped on the face of the contract shall draw the attention of the policyholder to any extra premium charges and any variations in the amount of death benefit or premium based upon the length of time the contract has been in force.
3. Variable life insurance products may be offered provided they meet the criteria of the appropriate insurance regulatory agency and the Securities and Exchange Commission.
4. Premiums shall reflect only the actual premiums payable for the life insurance product.
1. All securities must be registered with the Securities and Exchange Commission.
2. All sales of securities must comply with existing and appropriate Securities and Exchange Commission regulations.
3. All securities representatives must apply directly to the commander of the installation on which they desire to solicit the sale of securities.
4. Where the accredited insurer's policy permits, an overseas accredited life insurance agent—if duly qualified to engage in security activities either as a registered representative of the National Association of Securities Dealers or as an associate of a broker or dealer registered with the Securities and Exchange Commission—may offer life insurance and securities for sale simultaneously. In cases of commingled sales, the allotment of pay for the purchase of securities cannot be made to the insurer.
1. Allotments of military pay for life insurance products shall be made in accordance with DoD Directive 7330.1.
2. For personnel in pay grades E-1, E-2, and E-3, at least seven days shall elapse for counseling between the signing of a life insurance application and the certification of an allotment. The purchaser's commanding officer may grant a waiver of this requirement for good cause, such as the purchaser's imminent permanent change of station.
The recent growth and general acceptability of quasimilitary associations offering
1.
a. Insurers must demonstrate continuous successful operation in the life insurance business for a period of not less than five years on December 31 of the year preceding the date of filing the application.
b. Insurers must be listed in Best's Life-Health Insurance Reports and be assigned a rating of B+ (Very Good) or better for the business year preceding the Government's fiscal year for which accreditation is sought.
2.
a. Insurers must demonstrate continuous successful operation in the life insurance business, as described in subsection A.1.a., above.
b. Insurers must retain a Best's rating of B+ or better, as described in paragraph A.1.b., above.
c. Insurers must establish an agency sales force in one of the overseas commands within two years of initial accreditation.
3.
Waivers of the initial accreditation and reaccreditation provisions will be considered for those insurers demonstrating substantial compliance with the aforementioned criteria.
1.
2.
a. The overseas commands (e.g., European, Pacific, Atlantic , Southern) where the company is presently soliciting, or planning to solicit on U.S. military installations.
b. A statement that the company has complied with, or will comply with, the applicable laws of the country or countries wherein it proposes to solicit. “Laws of the country” means all natural, provincial, city, or county laws or ordinances of any country, as applicable.
c. A statement that the products to be offered for sale conform to the standards prescribed in Appendix A and contain only the standard provisions such as those prescribed by the laws of the State where the company's headquarters are located.
d. A statement that the company shall assume full responsibility for the acts of its agents with respect to solicitation. Sales personnel will be limited in numbers to one general agent and no more than 50 sales personnel for each overseas area. If warranted, the number of agents may be further limited by the overseas command concerned.
e. A statement that the company will not utilize agents who have not been accredited by the appropriate overseas command to sell to DoD personnel on or off its DoD installations.
f. Any explanatory or supplemental comments that will assist in evaluating the application.
g. If the Department of Defense requires facts or statistics beyond those normally involved in accreditation, the company shall make separate arrangements to provide them.
h. A statement that the company's general agent and other accredited agents are appointed in accordance with the prerequisites established in section C., below.
3. If a company is a life insurance company subsidiary, it must be accredited separately on its own merits.
Unified commanders shall apply the following principles:
1. An agent must possess a current State license. The overseas commander may waive this requirement for an accredited agent continuously residing and successfully selling life insurance in foreign areas, who, through no fault of his or her own, due to State law (or regulation) governing domicile requirements, or requiring that the agent's company be licensed to do business in that State, forfeits eligibility for a State license. The request for a waiver shall contain the name of the State or jurisdiction which would not renew the agent's license.
2. General agents and agents shall represent only one accredited commercial insurance company. This requirement may be
3. An agent must have at least one year of successful life insurance underwriting in the United States or its territories, generally within the five years preceding the date of application, in order to be designated as accredited and employed for overseas solicitation.
4. Appropriate overseas commanders shall exercise further agent control procedures as deemed necessary.
5. An agent, once accredited in an overseas area, may not change affiliation from the staff of one general agent to another and retain accreditation, unless the previous employer certifies in writing that the release is without justifiable prejudice. Unified commanders will have final authority to determine justifiable prejudice. Indebtedness of an agent to a previous employer is an example of justifiable prejudice.
1. Accreditation by the Department of defense upon annual applications of insurers shall be announced as soon as practicable by a notice to each applicant and by a listing released annually in September to the appropriate overseas commander. This approval does not constitute DoD endorsement of the insurer. Any advertising by insurers which suggests such endorsement is prohibited.
2. In the event accreditation is denied, specific reasons for such findings shall be submitted to the applicant.
a. Upon receipt of notification of an unfavorable finding, the insurer shall have 30 days from the receipt of such notification (forwarded certified mail, return recipt requested) in which to request reconsideration of the original decision. This request must be accompanied by substantiating data or information in rebuttal of the specific reasons upon which the adverse findings are based.
b. Action by the Assistant Secretary of Defense (Force Management and Personnel) on appeal is final.
c. If the applicant is presently accredited as an insurer, up to 90 days from final action on an unfavorable finding shall be granted in which to close out operations.
3. Upon receiving the annual letter of accreditation, each company shall send to the applicable unified commander a verified list of agents currently accredited for overseas solicitation. Where applicable, the company shall also include the names of new agents for whom original accreditation and permission to solicit on base is requested. Insurers initially accredited will be furnished instructions by the Department of Defense for agent accreditation procedures in overseas areas.
4. Material changes affecting the corporate status and financial conditions of the company which may occur during the fiscal year of accreditation must be reported as they occur.
a. The Department of Defense reserves the right to terminate accreditation if such material changes appear to substantially affect the financial and operational criteria described in section A., above, on which accreditation was based.
b. Failure to report such material changes can result in termination of accreditation regardless of how it affects the criteria.
5. If an analysis of information furnished by the company indicates that unfavorable trends are developing which may possibly adversely affect its future operations, the Department of Defense may, at its option, bring such matters to the attention of the company and request a statement as to what action, if any, is contemplated to deal with such unfavorable trends.
Title 10 U.S.C. 269, 271, 272, 652, 672, 673, 674, 685, and 1005 and E.O. 11190.
This part updates and clarifies DoD policy, procedures, and responsibilities governing the screening of Ready Reservists, consistent with title 10 U.S.C. 269, 271, 272, 652, 672, 673, 674, 685, and 1005 and E.O. 11190.
This part applies to the Office of the Secretary of Defense and the Military Departments (including their reserve components). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, the Marine Corps, and the Coast Guard (by agreement with the Department of
(a)
(b)
(c)
(d)
(e)
(1) The Vice President of the United States or any official specified in the order of presidential succession as set forth in 3 U.S.C. 19.
(2) Members of Congress, heads of Federal agencies appointed by the President with the consent of the Senate, and the Federal judiciary (District, Circuit, and Supreme Court judges and justices only; all other positions within the Federal judiciary shall be considered under the provisions of paragraph (e)(3) of this section). For the purposes of the definition contained in this paragraph, the terms “heads of Federal agencies” does not include any person appointed by the President with the consent of the Senate to a Federal agency as a member of a multimember board or commission. Positions occupied by such persons may be designated as key positions only by the application of the criteria set forth in § 44.5(b)(2) of this part.
(3) Other Federal positions determined by Federal agency heads, or their designees, to be key positions in accordance with the guidelines specified in § 44.5(b)(2) of this part.
(f)
(g)
(h)
It is DoD policy that members of the Selected Reserve and other Ready Reservists who are not on active duty shall be screened at least annually to provide a Ready Reserve force composed of members who:
(a) Meet Military Service wartime standards of mental, moral, professional, and physical fitness.
(b) Possess the military qualifications required in the various ranks, grades, ratings, and specialties.
(c) Are available immediately for active duty during a mobilization (or during a war or national emergency or in response to a presidential order to augment the active forces for an operational mission).
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(i)
(ii)
(iii)
(9)
(10)
(b)
(1)
(2)
(i)
(ii)
(A) Can the position be filled in a reasonable time after mobilization?
(B) Does the position require technical or managerial skills that are possessed uniquely by the incumbent imployee?
(C) Is the position associated directly with defense mobilization?
(D) Does the position include a mobilization or relocation assignment in an agency having emergency functions as designated by E.O. 11490?
(E) Is the position directly associated with industrial or manpower mobilization as designated in E.O. 11490 and E.O. 10480?
(F) Are there other factors related to national defense, health, or safety that would make the incumbent of the position unavailable for mobilization?
(c)
(d)
(e)
(2) All Ready Reservists shall inform their employers of their Reserve military obligation.
(a)
(b) The
(1) Screen, at least annually, all Ready Reservists under their jurisdiction to ensure their immediate availability for active duty.
(2) Ensure that personnel records systems incorporate information on any factors that limit the mobilization availability of a Ready Reservist.
(3) Ensure that all Ready Reservists have a favorably completed National Agency Check (NAC) or Entrance National Agency Check (ENTNAC) on file.
(4) Ensure that Ready Reservists not on active duty are examined as to physical fitness in accordance with DoD Directive 1205.9.
(5) Process members of the Ready Reserve who do not participate satisfactorily in accordance with parts 100, 101, and 115 of this title.
(6) Transfer Ready Reservists identified as occupying key positions to the Standby Reserve or the Retired Reserve or discharge them, as appropriate.
(7) After making a removal determination in response to a petition for such action, promptly transmit the results of that determination to the Ready Reservist concerned and his or her employer.
The ASD(RA) shall provide:
(a) Federal agencies with a listing of all Federal employees who are also Ready Reservists to assist them in conducting employer screening activities required in FPC-9. Responses from Federal agencies shall be reported under Interagency Report Control Number 0912-DoD-AN. Standard data elements shall be used in the report in accordance with DoD Directive 5000.11.
(b) The House Appropriations Committee with an annual report on the status of Ready Reservists employed by the Federal government.
This is to certify that the employee identified below is vital to the nation's defense efforts in (his or her) civilian job and can't be mobilized with the Military Services in an emergency for the following reasons:
Therefore, I request that (he or she) be removed from the Ready Reserve and that you advise me accordingly when this action has been completed.
The employee is:
Submit requests to the adjutant general of the appropriate State, commonwealth, or territory (including the District of Columbia).
10 U.S.C. 1168 and 972.
(a) This document revises 32 CFR part 45.
(b) Prescribes procedures concerning the preparation and distribution of revised DD Form 214 to comport with the requirements of 10 U.S.C. 1168, 972, and 32 CFR part 41 and the control and publication of separation program designators (SPDs).
(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Services, the Joint Staff, and the Defense Agencies (hereafter referred to as “DoD Components”). The term “Military Services,” as used here, refers to the Army, Navy, the Air Force, the Marine Corps and, by agreement with the Department of Transportation, to the Coast Guard.
(b) Its provisions include procedures on the preparation and distribution of DD Forms 214, 214WS, 215 (Appendices A, B, and C) which record and report the transfer or separation of military personnel from a period of active duty. (NOTE: Computer-generated formats are acceptable substitutes provided Assistant Secretary of Defense (Force Management and Personnel) approval is obtained.) DD Forms 214 and 215 (or their substitutes) will provide:
(1)
(2)
(3)
(c) Its provisions include procedures on the control and distribution of all lists of SPDs.
(a) Administrative issuance or reissuance of DD Forms 214 and 215.
(1) The DD Form 214 will normally be issued by the command from which the member was separated. In those instances where a DD Form 214 was not issued, the Services concerned may establish procedures for administrative issuance.
(2) The DD Form 214, once issued, will not be reissued except:
(i) When directed by appropriate appellate authority, Executive Order, or by the Secretary concerned.
(ii) When it is determined by the Service concerned that the original DD Form 214 cannot be properly corrected by issuance of a DD Form 215 or if the correction would require issuance of more than two DD Forms 215.
(iii) When two DD Forms 215 have been issued and an additional correction is required.
(3) Whenever a DD Form 214 is administratively issued or reissued, an appropriate entry stating that fact and the date of such action will be made in Block 18, Remarks, of the DD Form 214 unless the appellate authority, Executive Order, or Secretarial directive specifies otherwise.
(b) The Military Services will ensure that every member (except as limited in paragraph (b)(2) of this section and excluding those listed in paragraph (c) of this section being separated from the Military Services is given a completed DD Form 214 describing relevant data regarding the member's service, and the circumstances of termination. DD Form 214 may also be issued under other circumstances prescribed by the Military Service concerned. A continuation sheet, if required, will be bond paper, and will reference: The DD Form 214 being continued; information from blocks 1 through 4; the appropriate block(s) being continued; the member's signature, date; and the authorizing official's signature. DD Forms 214 are not intended to have any legal effect on termination of the member's service.
(1)
(A) Copy No. 4, containing the statutory or regulatory authority, reentry code, SPD code, and narrative reason for separation also will be physically delivered to the separatee prior to departure, if he/she so requested by initiating Block 30, Member Requests Copy 4.
(B) Remaining copies of DD Form 214 will be distributed on the day following the effective date of separation.
(ii) When separation is effected under emergency conditions which preclude physical delivery, or when the recipient departs in advance of normal departure time (e.g., on leave in conjunction with retirement; or at home awaiting separation for disability), the original DD Form 214 will be mailed to the recipient on the effective date of separation.
(iii) If the separation activity is unable to complete all items on the DD Form 214, the form will be prepared as completely as possible and delivered to the separatee. The separatee will be advised that a DD Form 215 will be issued by the Military Service concerned when the missing information becomes available; and that it will not be necessary for the separatee to request a DD Form 215 for such information.
(iv) If an optical character recognition format is utilized by a Military Service, the first carbon copy of the document will be physically delivered or mailed to the separatee as prescribed in paragraphs (b) (i) through (iii) of this section.
(2)
(3)
(i) Discharge for immediate enlistment or reenlistment (optional—at the discretion of the Military Services). However, Military Services not providing the DD Form 214 will furnish the member a DD Form 256, “Honorable Discharge Certificate,” and will issue instructions requiring those military offices which maintain a member's records to provide necessary Service data to the member for application to appropriate civilian individuals, groups, and governmental agencies. Such data will include Service component, entry data and grades.
(ii) Termination of enlisted status to accept an appointment to warrant or commissioned officer grade.
(iii) Termination of a temporary appointment to accept a permanent warrant or commission in the Regular or Reserve components of the Armed Forces.
(iv) Termination of an officer appointment in one of the Military Services to accept appointment in another Service.
(c)
(2) Personnel whose active duty, active duty for training, full-time training duty or active duty for special work is terminated by death.
(3) Personnel being removed from the Temporary Disability Retired List.
(4) Enlisted personnel receiving temporary appointments to warrant or commissioned officer grades.
(5) Personnel whose temporary warrant or commissioned officer status is terminated and who remain on active duty to complete an enlistment.
(6) Personnel who terminate their Reserve component status to integrate into a Regular component.
(7) Personnel separated or discharged who have been furnished a prior edition of this form, unless that form is in need of reissuance for some other reason.
(d)
(1) DD Form 214 is an important record of service which must be prepared accurately and completely. Any unavoidable corrections and changes made in the unshaded areas of the form during preparation shall be neat, legible and initialed on all copies by the authenticating official. The recipient will be informed that making any unauthorized change or alteration of the form will render it void.
(2) Since DD Form 214 is often used by civilian personnel, abbreviations should be avoided.
(3) Copies of DD Form 214 transmitted to various governmental agencies shall be legible, especially those provided to the Veterans Administration (Department of Veterans Affairs, effective March 15, 1989, in accordance with section 18(a), Public Law 100-527 and the Department of Labor).
(4) The authority for a member's transfer or discharge will be cited by reference to the appropriate Military Service regulation, instruction, or manual, followed by the appropriate separation program designator on copies 2, 4, 7, and 8 only. A narrative description to identify the reason for transfer or separation will not be used on copy 1.
(5) To assist the former Service member in employment placement and job counseling, formal inservice training courses successfully completed during the period covered by the form will be listed in Block 14, Military Education; e.g., medical, dental, electronics, supply, administration, personnel or heavy equipment operations. Training courses for combat skills will not be listed. See 1978 Guide to the Evaluation of Educational Experiences in the Armed Services for commonly accepted course titles and abbreviations.
(6) For the purpose of reemployment rights (DoD Directive 1205.12)
(7) When one or more of the data items on the DD Form 214 are not available and the document is issued to the separatee, the applicable block(s) will be annotated “See Remarks.” In such cases, Block 18 will contain the entry “DD Form 215 will be issued to provide missing information.” When appropriate, Block 18 will also reflect the amount of disability pay, and the inclusive dates of any nonpay/excess leave days.
(8) The authorizing official (E-7, GS-7 or above) will sign the original in ink ensuring that the signature is legible on all carbon copies. If not, a second
(9) The following are the only authorized entries in Block 24, Character of Service, as appropriate: “Honorable,” “Under Honorable Conditions (General),” “Under Other Than Honorable Conditions,” “Bad Conduct,” “Dishonorable,” or “Uncharacterized.” When a discharge has been upgraded, the DD Form 214 will be annotated on copies 2 through 8 in Block 18 to indicate the character of service has been upgraded; the date the application for upgrade was made; and the effective date of the corrective action.
(10) The date entered in Block 12.a. shall be the date of enlistment for the earliest period of continuous active service for which a DD Form 214 was not previously issued. For members who have previously reenlisted without being issued a DD Form 214, and who are being separated with any discharge characterization except “Honorable,” the following statement shall appear as the first entry in Block 18., “Remarks,” on the DD Form 214: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM (applicable date) UNTIL (applicable date).” The “from” date shall be the date of initial entry into active duty, or the first day of service for which a DD Form 214 was not previously issued, as applicable; the “until” date shall be the date before commencement of the current enlistment.
(11) For Service members retiring from active duty enter in Block 18., “Subject to active duty recall by Service Secretary.”
(12) For Service members being transferred to the Individual Ready Reserve, enter in Block 18., “Subject to active duty recall and/or annual screening.”
(e)
(1)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(2)
(3)
(4)
(i) In those cases where the member has supplied an authorization to provide a copy of the DD Form 214 to another individual or group, the copy furnished will not contain the Special Additional Information section or, in the case of DD forms issued prior to July 1, 1979, those items listed in paragraph (e)(4) of this section.
(ii) A copy will be provided to authorized personnel for official purposes only.
(f)
(g)
(a) The DD Forms 214 and 215 are a source of significant and authoritative information used by civilian and governmental agencies to validate veteran eligibility for benefits. As such, they are valuable forms and, therefore, vulnerable to fraudulent use. Since they are sensitive, the forms must be safeguarded at all times. They will be transmitted, stored, and destroyed in a manner which will prevent unauthorized use. The Military Services will issue instructions consistent with the following:
(1) All DD Forms 214 will be surprinted with a reproducible screen tint using appropriate security ink on Blocks 1, 3, 4.a, 4.b, 12, and 18 through 30. In addition Blocks 1, 3, 5, and 7 of the DD Form 215 will be similarly surprinted to make alterations readily discernible. No corrections will be permitted in the screened areas.
(2) All forms will be secured after duty hours.
(3) All obsolete forms will be destroyed.
(4) All forms to be discarded, including those which are blank or partially completed, and reproduced copies of DD Form 214, will be destroyed. No forms will be discarded intact.
(5) Blank forms given to personnel for educational or instructional purposes, and forms maintained for such use, are to be clearly voided in an unalterable manner.
(6) The commander or commanding officer of each unit or activity authorized to issue DD Form 214 will appoint, in writing, a commissioned officer, warrant officer, enlisted member
(7) The Military Services will monitor the use of DD Form 214 and review periodically its issuance to insure compliance with procedures for safeguarding.
(b) The DD Form 214-ws will contain the word “WORKSHEET” on the body of the form (see Appendix B). This DD Form 214-ws will be treated in the same manner as the DD Form 214.
(c) The Military Services will issue appropriate instructions to separation activities stressing the importance of the DD Forms 214 and 215 in obtaining veterans benefits, reemployment rights, and unemployment insurance.
(d) Standard separation program designator (SPD) codes for officer and enlisted personnel developed under the provisions of DoD Instruction 5000.12
(1) Requests to add, change, or delete an SPD code shall be forwarded by the DoD Component concerned with appropriate justification to the Assigned Responsible Agency accountable for evaluating, recommending approval of, and maintaining such codes: Department of the Navy, Office of The Chief of Naval Operations, (Attention: OP-161), room 1514, Arlington Annex, Washington, DC 20350-2000.
(2) Requests to add, change, or delete an SPD code will be submitted in accordance with section V., DoD Instruction 5000.12 with prior written approval by the ASD (FM&P), or his/her designee.
(e) All lists of SPD codes, including supplemental lists, published by the DoD Components will be stamped “For Official Use Only” and will not be furnished to any agency or individual outside the Department of Defense.
(1) Appropriate provisions of the Freedom of Information Act will be used to deny the release of the lists to the public. An individual being separated or discharged is entitled access only to his/her SPD code. It is not intended that these codes stigmatize an individual in any manner. They are intended for internal use by the Department of Defense in collecting data to analyze statistical reporting trends that may, in turn, influence changes in separation policy.
(2) Agencies or individuals who come into the possession of these lists are cautioned on their use because a particular list may be outdated and not reveal correctly the full circumstances relating to an individual's separation or discharge.
Pub. L. 296, 84th Congress and 10 U.S.C. 133.
This rule reissues this part dated September 25, 1963, and implements the Provisions of Executive Order 10646, November 23, 1955, wherein the Secretary of Defense was designated the Federal Coordinator for assigning responsibility and prescribing procedures to implement the absentee voting program authorized by the Federal Voting Assistance Act of 1955 (FVAA) and the Overseas Citizens Voting Rights Act of 1975 (OCVRA). This part assigns responsibility and delegates authority to the Deputy Assistant Secretary of Defense (Administration) to carry out this program on behalf of the Secretary of Defense.
(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, and the Defense Agencies (hereafter referred to as the “DoD Components”).
(b) Other executive departments and agencies shall provide assistance to this program, upon request, as provided by sections 1973cc-11 and 1973cc-13 of FVAA and 1973dd-2b of OCVRA. (Participating departments and agencies shall adopt regulations and procedures that conform to this part to the extent practicable, consistent with their organization missions.)
For the purpose of administering the Federal Voting Assistance Program, the following definitions apply:
(a)
(b)
(c)
(d)
(e)
(f)
(1) Members of the Uniformed Services or Merchant Marine in active service and their spouses and dependents, wherever stationed.
(2) U.S. citizens temporarily residing outside the United States.
(3) Other U.S. citizens residing outside the United States not covered by any other category mentioned above and whose intent to return to their State of last residence may be uncertain.
(g)
(a) To implement and administer the FVAA and OCVRA, as amended/DoD Components and other participating Federal departments and agencies concerned with the voting program shall encourage their eligible voters to participate in the voting process of the Federal, State, and local governments.
(b) The voting program shall be administered in such a manner as to ensure that voters are provided all necessary voting information, including voting age requirements, election dates, officers to be elected, constitutional amendments, other ballot proposals, and absentee registration and voting procedures.
(c) When practicable and compatible with operational conditions, every voter shall be afforded an opportunity to register and vote in any election for which the State of his or her voting residence has established enabling laws and procedures.
(d) Voting in person or by absentee process shall be offered when local conditions allow voters to prepare, send, and receive personal material. However, a determination by those administering the voting program that voting assistance cannot be rendered because it is impractical and incompatible with military or Federal operations shall be conclusive, if this determination is made in good faith. (See section 1973cc-24, FVAA.)
(e) Absentee voting procedures shall be prescribed in such a manner as to safeguard the integrity and secrecy of the ballot. In addition, all necessary steps shall be taken to prevent fraud and to protect voters against coercion of any sort.
(1) No member of the Uniformed Services shall attempt to influence any other member to vote or not to vote for any particular candidate, or to require any member to march to any polling place or place of voting. (See section 1973cc-25 of FVAA.)
(2) However, nothing in § 46.4(e), above, shall be considered to prohibit free discussion regarding political issues or candidates for public office. (See enclosure 2 of DoD Directive 1344.10,
(3) No person in the Uniformed Services of the United States shall poll any other member to attempt to influence his or her vote before or after he or she votes. (See enclosure 2 of DoD Directive 1344.10.)
(4) The provision in § 46.4(c) above, shall not preclude making surveys for statistical compilations to measure the extent of voting participation of persons covered by the FVAA and OCVRA, as amended.
In accordance with E.O. 10646, authority and responsibility are hereby delegated to the Deputy Assistant Secretary of Defense (Administration) to carry out this program on behalf of the presidential designee, the Secretary of Defense. The Deputy Assistant Secretary of Defense (Administration) is authorized to act for the presidential designee and to coordinate and facilitate such actions as may be required to discharge Federal responsibilities assigned in E.O. 10646, FVAA, and OCVRA.
(a) The
(2) Establish and maintain liaison with officials of the State legislatures, and with State and local election law officials.
(3) Be the sole DoD representative for obtaining from each State current voting information and disseminating it to other executive departments, agencies, and DoD Components. In this regard, DoD Components and participating departments and agencies may not contact State voting officials about voting matters.
(4) Encourage and assist States and other U.S. jurisdictions to adopt the
(5) Establish a DoD Voting Assistance Program to cover all eligible voters of the Department of Defense (military and civilian) and their eligible spouses and dependents, to assist these personnel to vote either in person or by absentee process.
(6) Publicize the right of citizens to register and vote absentee under the FVAA and OCVRA.
(7) Review and coordinate the informational and educational effort directed toward all persons covered by the FVAA and OCVRA.
(8) Provide an ombudsman-type service for all persons covered by the FVAA and OCVRA and for State and local election officials.
(9) Designate a week or day in September of each even-numbered year for the purpose of encouraging military personnel and their dependents to exercise their right to vote.
(10) Conduct a survey of U.S. citizens (military and civilian) covered by the FVAA and OCVRA to gather necessary statistical information to prepare the biennial report to the President and Congress required by FVAA.
(b)
(i) In overseas areas, arrangements shall be made to provide absentee voting information and assistance to voters described in § 46.5(f)(1) and (2).
(ii) To the extent practical, information and assistance shall also be made available to voters described in § 46.5(f)(3).
(2) Ensure command support at all levels for the Voting Assistance Program.
(3) Designate a senior officer of general or flag rank in each Military Service as the Senior Military Voting Representative to manage Military Service voting programs.
(4) Designate voting officers or counselors at every level of command who are trained to carry out their assigned responsibilities. Voting officers or counselers should be readily available and equipped to give personal assistance to voters for Federal, State and local elections. In addition, any person who appears to need assistance in reading or understanding any English language material relating to voting or voter registration should receive immediate assistance in the appropriate language.
(5) Ensure that voting information and related materials, such as the
(6) Ensure the in-hand delivery of FPCAs by August 15 to Uniformed Services personnel, their spouses and eligible dependents, and civilian employees of the Uniformed Services, their spouses and eligible dependents, who are serving outside the territorial limits of the United States.
(7) Ensure in-hand delivery of FPCAs by September 15 to Uniformed Services personnel and their spouses and eligible dependents within the United States, in accordance with FVAA.
(8) Require Inspectors General to include the Federal Voting Program as an item for specific review at every level of command to ensure that persons are informed and provided an opportunity to exercise their right to vote, and that the command has adequately provided for voting officers or counselers.
(9) Provide for continuing evaluation of command voting programs.
(10) Establish and publicize the availability of a special telephone service, the “Voting Action Line,” to link unit voting officers or counselors with their respective Uniformed Service Senior Military Voting Representative or Voting Action Officer at the departmental level. Emphasis shall be placed on providing rapid, accurate responses and solutions to voting-oriented problems.
(11) During Federal election years, ensure that all Armed Forces personnel receive at least one briefing, training
(12) Ensure that telephone operators at every military installation are provided with the names and office telephone numbers of unit or installation voting officers or counselors.
(13) File an After-Action Report in the form specified by the Director, Federal Voting Assistance Program.
(14) Conduct a Ballot Transmission Survey in the manner specified by the Director, Federal Voting Assistance Program.
38 U.S.C. 106 note.
This document:
(a) Revises 32 CFR part 47 and implements Public Law 95-202.
(b) Directs the Secretary of the Air Force to determine if an established group of civilian employees or contract workers provided service to the U.S. Armed Forces in a manner considered active military service for Department of Veterans Affairs (VA) benefits.
(c) Establishes the DoD Civilian/Military Service Review Board and the Advisory Panel.
(d) Establishes policy, assigns responsibilities, prescribes application procedures for groups and individuals, and clarifies the factors used to determine active duty (AD) service.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the Military Departments, and by agreement with the Department of Transportation (DoT), the U.S. Coast Guard.
(b) Applies to any group application considered under Public Law 95-202 after September 11, 1989 and to any individual who applies for discharge documents as a member of a group recognized by the Secretary of the Air Force.
(a) Examples of armed conflict are World Wars I and II, and the Korean and Vietnam Conflicts.
(b) Examples of military actions that are not armed conflicts are as follows:
(1) The incursion into Lebanon in 1958, and the peacekeeping force there in 1983 and 1984.
(2) The incursions into the Dominican Republic in 1965 and into Libya in 1986.
(3) The intervention into Grenada in 1983.
(a)
(1) Have been similarly situated to the Women's Air Forces Service Pilots of World War II.
(2) Have rendered service to the United States in what was considered civilian employment with the U.S. Armed Forces either through formal Civil Service hiring or less formal hiring if the engagement was created under the exigencies of war, or as the result of a contract with the U.S. Government to provide direct support to the U.S. Armed Forces.
(3) Have rendered that service during a period of armed conflict.
(4) Consist of living persons to whom VA benefits can accrue.
(5) Not have already received benefits from the Federal Government for the service in question.
(b) A determination of AD service that is considered to be equivalent to active military service is made on the extent to which the group was under the control of the U.S. Armed Forces in support of a military operation or mission during an armed conflict. The extent of control exerted over the group must be similar to that exerted over military personnel and shall be determined by, but not necessarily limited to, the following:
(1)
(A) The group was created or organized by U.S. Government authorities to fill a wartime need or, if a group was not created specifically for a wartime need, but existed before that time, then its wartime mission was of a nature to substantially alter the organization's prewar character.
(B) If the application is based on service in a combat zone, the mission of the group in a combat zone must have been substantially different from the mission of similar groups not in a combat zone.
(ii)
(iii)
(A) Examples include the following:
(
(
(
(
(B) A group fully integrated into the military would give the impression that the members of the group were military, except that they were paid and accounted for as civilians.
(C) Integration into the military may lead to an expectation by members of the group that the service of the group
(iv)
(A) Examples include the following:
(
(
(
(
(
(B) Consequences for noncompliance might include a loss of some privilege, dismissal from the group, or trial under military law. Such military discipline acts in favor of recognition.
(v)
(vi)
(vii)
(2)
(A) Armed by the U.S. military for defensive purposes.
(B) Routed by the U.S. military to avoid the enemy.
(C) Instructed by the U.S. military for the defense of the group when attacked by, or in danger of attack by, the enemy.
(D) Otherwise submitted themselves to the U.S. military for sustenance and protection.
(ii)
(iii)
(3)
(c)
(d)
(a) The Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) shall:
(1) Appoint a primary and an alternate member in the grade of O-6 or GM-15 or higher to the DoD Civilian/Military Service Review Board.
(2) Exercise oversight over the Military Departments and the U.S. Coast Guard for compliance with this Directive and in the issuance of discharge documents and casualty reports to members of recognized groups.
(b) The Secretary of the Air Force, as the designated Executive Agent of the Secretary of Defense for the administration of Public Law 95-202 shall:
(1) Establish the DoD Civilian/Military Service Review Board and the Advisory Panel.
(2) Appoint as board president a member or employee of the Air Force in grade O-6 or GM-15 or higher.
(3) Request the Secretary of Transportation to appoint an additional voting member from the U.S. Coast Guard when the board is considering the application of a group claiming active Coast Guard service.
(4) Provide a recorder and an assistant to maintain the records of the board and administer the functions of this part.
(5) Provide nonvoting legal advisors and historians.
(6) Publish notices of group applications and other Public Law 95-202 announcements in the
(7) Consider the rationale and recommendations of the DoD Civilian/Military Service Review Board.
(8) Determine whether the service rendered by a civilian or contractual group shall be considered AD service to the U.S. Armed Forces for all laws administered by the VA. The decision of the Secretary of the Air Force is final. There is no appeal.
(9) Notify the following persons in writing when a group determination is made (if the Secretary of the Air Force disagrees with the rationale or recommendations of the board, the Secretary of the Air Force shall provide the decision and reasons for it in writing to these persons):
(i) The applicant(s) for the group.
(ii) The Secretary of the Department of Veterans Affairs.
(iii) The Secretary of the Army.
(iv) The Secretary of the Navy.
(v) The ASD (FM&P).
(vi) The Secretary of Transportation (when a group claims active Coast Guard service).
(c) The Secretary of the Army, Secretary of the Navy, Secretary of the Air Force, and Commandant of the Coast Guard shall:
(1) Appoint to the board a primary and an alternate member in the grades of O-6 or GM-15 or higher from their respective Military Services.
(2) Process applications for discharge documents from individuals claiming membership in a recognized group in accordance with applicable laws, Directives, the Secretary of the Air Force rationale and instrument effecting a group determination, and any other instructions of the board.
(3) Determine whether the applicant was a member of a recognized group after considering the individual's evidence of membership and verifying the service against available Government records.
(4) Issue a DD Form 214, “Certificate of Release or Discharge from Active Duty,” and a DD Form 256, “Honorable Discharge Certificate,” or a DD Form 257, “General Discharge Certificate,” as appropriate, consistent with DoD Instruction 1336.1
(5) Issue a DD Form 1300, “Report of Casualty,” in accordance with DoD Instruction 1300.9
(6) Ensure that each DD Form 214, “Certificate of Release or Discharge from Active Duty,” and each DD Form 1300, “Report of Casualty,” have the
This document, issued under Public Law 95-202 (38 U.S.C. 106 Note), administratively establishes active duty service for the purposes of Department of Veterans Affairs benefits.
(7) Determine the equivalent military pay grade, when required by the Department of Veterans Affairs. For VA benefits, a pay grade is needed only in cases when an individual was killed or received service-connected injuries or disease during the recognized period of AD service. A DD Form 1300 shall be issued with the equivalent pay grade annotated for a member who died during the recognized period of service. A DD Form 214 shall not include pay grade, unless the Department of Veterans Affairs requests that a grade determination be given. Determinations of equivalent grade shall be based on the following criteria in order of importance:
(i) Officially recognized organizational grade or equivalent rank.
(ii) The corresponding rank for civilian pay grade.
(iii) If neither of the criteria in paragraphs (c)(7) (i) and (ii) of this section, and applies, only one of three grades may be issued; i.e., O-1, E-4, or E-1. Selection depends on the nature of the job performed, the level of supervision exercised, and the military privileges to which the individual was entitled.
(8) Adjudicate applicant challenges to the period of AD service, characterization of service, or other administrative aspects of the discharge documents issued.
(a)
(b)
(2) The recorder shall send the application to the appropriate advisory panel for historical review and analysis.
(3) When received, the recorder shall send the advisory panel's report to the applicant for comment. The applicant's comments shall be referred to the advisory panel if significant disagreement requires resolution. Additional comments from the historians also shall be referred to the applicant for comment.
(4) The DoD Civilian/Military Service Board shall consider the group application, as established, in paragraph (a) and paragraphs (b) (1) through (3) of this section.
(5) After the Secretary of the Air Force makes a decision, the recorder shall notify the applicant of the decision and announce it in the “
(c)
2. Show the relationship that the group had with the U.S. Armed Forces, the manner in which members of the group were employed, and the services the members of the group provided to the Armed Forces.
3. Address each of the factors in § 47.4.
4. Substantiate and document the application. (The burden of proof rests with the applicant.)
1. The board shall consist of a president selected from the Department of the Air Force and one representative each from the OSD, the Department of the Army, the Department of the Navy, the Department of the Air Force, and the U.S. Coast Guard (when the group claims active Coast Guard service). Each member shall have one vote except that the president shall vote only to break a tie. The board's decision is determined by majority vote. The president and two voting members shall constitute a quorum.
2. The advisory panel shall act as a nonvoting adjunct to the board. It shall consist of historians selected by the Secretaries of the Military Departments and, if required, by the Secretary of Transportation. The respective Military Departments and the DOT shall ensure that the advisory panel is provided with administrative and legal support.
1. The board shall meet in executive session at the call of the president, and shall limit its reviews to the following:
a. Written submissions by an applicant on behalf of a civilian or contractual group. Presentations to the board are not allowed.
b. Written report(s) prepared by the advisory panel.
c. Any other relevant written information available.
d. Factors established in this part for determining AD service.
2. The board shall return to the applicant any application that does not meet the eligibility criteria established in § 47.4(a). The board only needs to state the reasons why the group is ineligible for consideration under this part.
3. If the board determines that an application is eligible for consideration under § 47.4(a), the board shall provide, to the Secretary of the Air Force, a recommendation on the AD service determination for the group and the rationale for that recommendation that shall include, but not be limited to, a discussion of the factors listed in § 47.4.
a. No factors shall be established that require automatic recognition. Neither the board nor the Secretary of the Air Force shall be bound by any method in reaching a decision.
b. Prior group determinations made under Public Law 95-202 do not bind the board or the Secretary of the Air Force. The board and the Secretary of the Air Force fully and impartially shall consider each group on its own merit in relation to the factors listed in section D. of this Directive.
Sec. 1444, 70A Stat. 111; 10 U.S.C. 1444.
The purpose of the Retired Serviceman's Family Protection Plan is to permit each member of the uniformed services to elect to receive a reduced amount of any retired pay which may be awarded him as a result of service in his uniformed service in order to provide an annuity payable after his death (while entitled to retired pay) to his widow, child, or children, subject to certain limitations specified in the law and elaborated in the regulations in this part.
(a) The terms
(b) The term
(c) The term
(d) The term
(e) The term
(1) A legitimate child under 18 years of age and unmarried.
(2) A stepchild, under 18 years of age and unmarried, who is in fact dependent on the member for support (see paragraphs (f) and (g) of this section).
(3) A legally adopted child, under 18 years of age and unmarried.
(4) A child, as defined above, who is 18 or more years of age and unmarried, and who is incapable of self-support because of being mentally defective or physically incapacitated if that condition existed prior to reaching age 18.
(5) A child as defined above, who is at least 18, but under 23 years of age and unmarried, who is pursuing a full-time course of study or training in a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institution. (Applicable only in the case of members who retired on or after Nov. 1, 1968).
(6) A child loses his eligibility for an annuity under this part if he is adopted by a third person before the parent-member's death. His eligibility is not affected if he is adopted by a third person after the parent-member's death (36 Comp. Gen. 325).
(f) The term
(g) The term
(h) The term
(i) The term
(j) The term
(k) The term
(l) The term
(m) The term
(n) The term
(o) The term
(p) The term
(q) The term
(r) A recognized educational institution is defined as a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institution which meets one or more of the following criteria:
(1) It is operated or directly supported by the United States, or a State, or local governmental agency.
(2) It is accredited by a nationally recognized or State recognized accrediting agency.
(3) It is approved as an educational institution by a State or local governmental agency.
(4) Its credits are accepted for transfer (or for admission) by three or more accredited schools on the same basis as credits from an accredited school.
As provided in § 48.203, a member may elect one or more of the following annuities. The amount must be specified at time of election, and may not be for more than 50 per centum nor less than 12
(a) Option 1 is an annuity payable to or on behalf of his widow, the annuity to terminate upon her death or remarriage.
(b) Option 2 is an annuity payable to or on behalf of his surviving child or children as defined in § 48.102, the annuity to terminate when there ceases to be at least one such surviving child eligible to receive the annuity. Each payment under such annuity shall be paid in equal shares to or on behalf of the surviving children remaining eligible at the time the payment is due. A member who had this option in effect on the date of retirement, and who retired on or after November 1, 1968, may apply to the Secretary concerned to have a child (other than a child described in § 48.102(e)(4)) who is at least 18 but less than 23 years of age considered not to be an eligible beneficiary under this paragraph (b) or § 48.202. Normally such applications will be approved.
(c) Option 3 is an annuity to or on behalf of his widow and surviving child or children. Such annuity shall be paid to the widow until death or remarriage, and thereafter each payment under such annuity shall be paid in equal shares to or on behalf of the surviving children remaining eligible at the time the payment is due. A member may provide for allocating, during the period of the surviving spouse's eligibility, a part of the annuity under this subpart B for payment to those of his surviving children who are not children of that spouse. The sum allotted will not exceed the equitable share for which such children would be eligible after the death of the widow.
(d) When no eligible beneficiary remains to benefit from the option elected, the member's retired pay will be restored (except as provided in § 48.604, for certain members retired before Aug. 13, 1968). All elections on file on
When a member desires to provide both the annuity provided by Option 1 and Option 2, he may elect amounts that, in total, meet the limitations specified in § 48.201. The cost of each annuity, and the amount of each annuity shall be determined separately. A member may not elect the combination of Options 1 and 3 or Options 2 and 3 in any case. The combined amount of the annuities may not be more than 50 per centum nor less than 12
(a) A member who has completed less than 19 years of service as defined in § 48.102(o) may elect to receive a reduced amount of retired pay in order to provide one or more of the annuities as specified in §§ 48.201 and 48.202, payable after his death while entitled to retired pay to or on behalf of his surviving widow, child, or children. To be effective, the election by such a member must be dated, signed, witnessed, and delivered to appropriate service officials, or postmarked not later than midnight on the day in which he completes 19 years of service. Such an election will become effective immediately upon subsequent retirement. The latest election, change, or revocation made in accordance with this subsection will, if otherwise valid, be the effective election, unless superseded by a change as provided in paragraph (b) of this section.
(b) Except as provided in paragraph (c) of this section, a member who fails or declines to make an election before completion of 19 years of service may make an election after that time. However, unless the election is made at least 2 years prior to the date the member becomes entitled to receive retired pay, it will not be effective. The same applies to subsequent changes or revocations made prior to retirement.
(c) If an election, revocation, or change was made prior to August 13, 1968, the 19-year and 2-year provisions are automatically in effect on August 13, 1968, for members who were not entitled to retired pay on such date, unless the member applies under § 48.604(d) to remain under the provisions of the law prior to August 13, 1968. In this case the “18 years of service” and “3 years prior to receipt of retired pay” rules will apply.
(d) A member retired for physical disability on or after November 1, 1968 who is awarded retired pay prior to completion of 19 years of service may make an election which is subject to the restrictions set forth in § 48.507. The election by such member shall be made before the first day for which he is entitled to retired pay. Elections made under this paragraph prior to November 1, 1968, must be made by the member retiring for physical disability prior to completing 18 years.
(e) If, because of military operations, a member is assigned to an isolated station, or is missing, interned in a neutral country, captured by a hostile force, or beleaguered or besieged, and for that reason is unable to make an election before completing 19 years of service, he may make the election within 1 year after he ceases to be assigned to that station or returns to the jurisdiction of his service as the case may be, and such election shall become effective immediately upon subsequent retirement.
(f) A member to whom retired pay is granted retroactively, and who is otherwise eligible to make an election, may make the election within 90 days after receiving notice that such pay has been granted him.
(g) Whenever a member is determined to be mentally incompetent by medical officers of the uniformed services or of the Veterans Administration, or is adjudged mentally incompetent by a court of competent jurisdiction and because of such mental incompetency is incapable of making any election within the time limitations prescribed by the Plan, the Secretary of the Department concerned may make the appropriate election on behalf of such member upon request of the spouse, or if there be no spouse, by or on behalf of the child or children of such member. If such member is subsequently determined to be mentally competent by the Veterans Administration or a court of competent jurisdiction, he may, within 180 days after such determination or judgment, change or revoke the election made on his behalf. In such a case, the change or revocation will be effective on the date of the member's request for such change or revocation. Deductions previously made shall not be refunded.
(h) All elections on file on August 13, 1968, for members not entitled to receive retired pay shall be subject to the provisions of this section unless the member makes the application specified in § 48.604(d).
(i) A person who was a former member of the armed forces on November 1, 1953, and who is granted retired pay after that date, may, at the time he is granted that pay, make an election as provided in § 48.201.
(a) A change of election is a change in the amount of the annuity or annuities under any option, or a change in any option or options selected. A revocation is a cancellation of a previous election and constitutes a withdrawal from coverage under the Plan.
(b) A member may change or revoke his election as often as he desires prior to the completion of 19 years of service. Such a change or revocation must be dated, signed, witnessed, and delivered to appropriate service officials, or postmarked not later than midnight on the day in which the member completes 19 years of service. The latest election, change, or revocation which is submitted in accordance with this subsection will be effective at retirement.
(c) A member who desires to make an election or change or revoke his election after he has completed 19 years of service may do so prior to his retirement. However, such an election, change or revocation will be effective only if at least 2 years elapse between the date of the election, change, or revocation and the date of eligibility to receive retired pay.
(d) A revocation will not prohibit the filing of a new election at a later date which will become valid under applicable validation provisions.
(e) A member may, on or after November 1, 1968, at any time prior to his retirement, change or revoke his election (provided the change does not increase the amount of the annuity elected) to reflect a change in the marital or dependency status of the member of his family caused by death, divorce, annulment, remarriage, or acquisition of a child, if such change or revocation is made within 2 years of such change in status.
(f) Notification of a change in family status is not a change of election.
(g) All changes and revocations on file on August 13, 1968, for members not entitled to retired pay shall be subject to the provisions of this section unless the member makes the application specified in § 48.604(d).
The form for making election after October 31, 1968, is prescribed as Election of Options, Retired Serviceman's Family Protection Plan, DD Form 1688.
(a) All members of the Reserve component who will have accumulated sufficient service to be eligible for retired
(b) It is the responsibility of the department concerned to provide election forms and to promulgate information concerning the benefits of the Plan to all members so as to allow a timely election.
(c) Members retiring for physical disability prior to the completion of 19 years of service will, prior to retirement, be counseled and furnished information concerning the operation of the Plan.
(a) All legal beneficiaries described in § 48.102 must be named at the date of retirement pursuant to the option elected. Although a member without dependents may make an election, it will not be effective unless he has eligible dependents at the time of his retirement.
(b) When a change in family status occurs prior to retirement which would effect a change as provided in § 48.204(e), new DD Form 1688,
At the time of submitting the election, or prior to retirement, the member must indicate his wife's and youngest child birth date as applicable to the option elected. At or before the time of his retirement, he must submit proof of final dissolution of prior marriages, if any, both for himself and his spouse. The age of the dependents must be substantiated by a birth certificate or other competent evidence. The birth date of a member must be verified by his service record. All required substantiating evidence must be at the disbursing office which would normally pay the member retired pay or retainer pay immediately following retirement so as to permit the establishment of accurate pay accounts and to prevent the creation of indebtedness or overpayments.
A member may have a different lawful spouse at the time of retirement from the lawful spouse he had at the time of election. The lawful spouse at the time of retirement is the spouse eligible for an annuity at the time of member's death. Divorce of the member will remove the former spouse as a prospective annuitant.
(a) The reduction to be made in the retired pay of a member who has made an election shall be computed by the uniformed service concerned in each individual case, based upon tables of factors prepared by the Board of Actuaries. The computation shall be based upon the applicable table in effect on the date of retirement.
(b) An adjustment may be made in the reduction of retired pay upon the finding of an administrative error or a mistake of fact (see § 48.603).
(c) If a member elects to be covered by option 3, and on the date he is awarded retired pay has no children eligible to receive the annuity, or has only a child or children aged 18-22 (other than a child described in § 48.102(e)(4) and elects, at retirement, that such child or children shall not be considered to be eligible beneficiaries, he shall have his costs computed as though he had elected option 1. If he elects option 3, and on the date he is awarded retired pay has no wife eligible for the annuity, he shall have his costs computed as though he had elected option 2.
(d) If a member elects option 3, and after he becomes entitled to retired pay, there is no eligible spouse because
(e) The amount of reduction in retired pay and the annuity payable established for each individual at the time of his retirement shall remain unaltered except as provided in § 48.203(g), paragraphs (b) and (d) of this section, and § 48.406, regardless of future pay increases or decreases.
The effective date of reduction in retired pay will be the effective date of retirement with pay. The reduction in retired pay will be terminated on the date the member ceases to be entitled to retired pay or on the first day of the month following that in which there is no eligible beneficiary (for exception to this rule see § 48.604).
(a) A member of a uniformed service who is entitled to retired pay and has made an election shall, during any period in which he is not receiving retired pay (including periods of active duty), deposit the amount which would have been withheld from his retired pay had he been receiving that pay.
(b) Such deposit will be payable to Treasurer of the United States and shall be forwarded monthly to the disbursing office which would normally pay the member his retired pay.
(c) The disbursing office will in all cases inform the member of the amount to be deposited and when such deposits are to be made.
(d) In the event deposits are not made within 30 days of the due date, the disbursing office will inform the member concerned that he is delinquent from such due date and thereafter his designated beneficiaries will not be eligible for the annuity provided under the Plan until the arrears have been paid. The notification of delinquency will advise the member that 15 additional days have been granted to him in which to remit his deposit, and that if the arrears are not deposited within that period, the member will be charged interest to include the first day of delinquency. In no case will the expiration date of the 15 days exceed a date later than 45 days from the date the deposit was due. The interest will be computed monthly and the rate will be that used in computing the cost tables in effect on the date of the member's retirement. If such member later becomes in receipt of retired pay, any arrears with compound interest will be withheld.
Ages to be used for calculating reductions of retired pay will be the ages of the member and his eligible dependents on their nearest birth dates as of the date of the member's retirement.
(a) Any member on the temporary disability retired list established pursuant to title 10, United States Code, chapter 61, who has elected to receive reduced retired pay in order to provide one or more of the annuities specified in the Plan, and who is subsequently removed from the list due to any reason other than permanent retirement, shall have refunded to him a sum which represents the difference between the amount by which his retired pay has been reduced and the cost of an amount of term insurance which is equal to the protection provided his dependents during the period he was on the temporary disability retired list.
(b) If the member concerned is returned to active duty, his election as previously made will continue or he may change or revoke the election as provided in § 48.204.
(c) Time creditable for the purpose of the two year interval required to make a change, revocation or new election valid includes service before, during, and after temporary disability retirement. (See §§ 48.203 and 48.204 and Comptroller Decision B-144158, Dec. 23, 1960.) Active duty after removal from a
A retired member who is participating in the Plan may revoke his election and withdraw from participation, or he may reduce the amount of the survivor annuity; however, an approved withdrawal or reduction will not be effective earlier than the first day of the seventh month beginning after the date his application is received by the Finance Center controlling his pay record. (For special rules covering participating members retired before Aug. 13, 1968, without option 4, see § 48.604.) No application for reduction will be approved which requests a change in options. A request to reduce an annuity or to withdraw from the Plan is irrevocable, and a retired member who withdraws may never again participate in the Plan. Approval of a request for a reduction will not be made when such reduction results in an annuity of less than 12
Except as provided in § 48.506(a), no annuity payable under the Plan shall be assignable, or subject to execution, levy, attachment, garnishment, or other legal process. Annuities payable under this Plan shall be in addition to any pensions or other payments to which the beneficiaries may now or hereafter be entitled under other provisions of law (except as provided in § 48.507), and may not be considered as income under any law administered by the Veterans Administration, except for the purpose of title 38 U.S. Code, section 415(g) and chapter 15.
All annuities payable under this Plan except those payable to beneficiaries described in § 48.102(e)(5) shall accrue from the first day of the month in which the retired member dies and shall be due and payable not later than the 15th day of each month following that month and in equal monthly installments thereafter, except that no annuity shall accrue or be paid for the month in which entitlement to that annuity terminates.
Upon official notification of the death of a retired member who has elected under the Plan, the department concerned shall forward to the eligible surviving beneficiaries the necessary information and forms (DD Form 768. Application for Annuity Under Retired Serviceman's Family Protection Plan) for making application for annuity payments. Such information shall include the place to which the application should be forwarded and to which questions regarding annuity payments should be addressed.
(a) Annuities for a child or children will be paid to the child's guardian, or if there is no guardian, to the person(s) who has care, custody, and control of the child or children.
(b) Annuities payable to or on behalf of an eligible child as defined in § 48.102(e)(5) accrue as of the first day of the month in which—
(1) The member (upon whose retired pay the annuity is based) dies if the eligible child's 18th birthday occurs in the same or a preceding month, or
(2) The 18th birthday of an eligible child occurs if the member (upon whose retired pay the annuity is based) died in a preceding month, or
(3) A child first becomes (or again becomes) eligible, if that eligible child's 18th birthday and the death of the member (upon whose retired pay the annuity is based) both occurred in a preceding month or months. An eligible child under this paragraph might become ineligible at age 18 and again become eligible by furnishing proof of pursuit of a full time course of study or training as enumerated in § 48.102(e)(5).
(a) Eligibility for the annuity will be established by such evidence as may be required by the department concerned.
(b) If a child as defined in § 48.102(e)(4) is a designated annuitant, the department concerned shall require proof that the incapacity for self-support existed prior to the child's reaching age 18. Proof that continued incapacitation exists will be required every 2 years after the child passes the age of 18 years, except in a case where medical prognosis indicates recovery is impossible.
(c) If a child as defined in § 48.102(e)(5) is a designated annuitant, as specified in § 48.504(b), the department concerned shall require proof from the institution at least semiannually that the child is pursuing a full-time course of training as prescribed. For the purpose of proving eligibility, a child is considered to be pursuing a full-time course of study or training during an interval between school periods that does not exceed 150 days if he has demonstrated to the satisfaction of the department concerned that he has a bona fide intention of commencing, resuming, or continuing to pursue a full-time course of study or training in a recognized educational institution immediately after that interval.
(a) The Secretary of the Department concerned is empowered to use any means provided by law to recover amounts of annuities erroneously paid to any individual under the Plan. He may authorize such recovery by adjustment in subsequent payments to which the individual is entitled.
(b) There need be no recovery when in the judgment of the Secretary of the Department concerned and the Comptroller General of the United States, the individual to whom the erroneous payment was made is without fault and recovery would be contrary to the purpose of the Plan or would be against equity and good conscience.
(a) If a person who has made an election under the Plan retires with a physical disability before the completion of 19 years of service and then dies in retirement, his widow and eligible children can receive monthly survivor annuities only if they are not eligible for Dependency and Indemnity Compensation payments from the Veterans Administration. If either the widow or children are eligible for dependency and indemnity compensation payments, then payment of annuities under the Plan may not be made to any member of the family. If the retired member's death was not service connected and his widow or children are not eligible for payments from the Veterans Administration, they may receive the provided annuity payments under the Plan.
(b) If the beneficiaries on whose behalf the election was made are restricted as in paragraph (a) of this section, from receiving annuities, the amounts withheld from the elector's retired pay as a result of the election will be refunded to the beneficiaries, less the amount of any annuity paid, and without interest.
(c) Upon notification of the death of the member in such a case, the department concerned will take the following actions:
(1) Notify the Central Office of the Veterans Administration of the death of the member and request that the department concerned be advised if an award is made under chapter 11 or 13, title 38 U.S. Code.
(2) Request the Central Office of the Veterans Administration to forward to the eligible widow and/or children an application form for survivor benefits under chapter 11 or 13, title 38 U.S. Code, with instructions for completion and submission.
An election filed on or after August 13, 1968 is not effective if the member dies within 30 days following retirement from a disability of 100 per centum (under the standard schedule of rating disabilities in use by the Veterans Administration) for which he was retired under chapter 61, title 10 U.S. Code, unless—
(a) Such disability was the result of injury or disease received in line of
(b) His widow or children are not entitled to dependency and indemnity compensation under chapter 13, title 38 U.S. Code.
Information and data for the preparation of the annual report of the Board of Actuaries will be compiled by the Office of the Secretary of Defense after promulgation of appropriate instructions to each of the uniformed services. These instructions will be in consonance with Executive Order 10499 directing the Secretary of Defense to administer the provisions of the law.
(a) The Joint Board for the Retired Serviceman's Family Protection Plan shall consist of a principal and alternate member for each of the uniformed services appointed by the Department Secretary concerned. Alternate members will be authorized to act in the absence of the principal. The Board shall meet on call of the Chairman. A quorum shall consist of representatives of at least four of the participating services.
(b) The Board shall establish procedures for the orderly conduct of business to be approved by the Assistant Secretary of Defense (Manpower and Reserve Affairs).
(c) The duties of the Board will include but not be limited to the following:
(1) Making recommendations to the Secretary of Defense for:
(i) Changes to the Executive order delegating to him functions conferred on the President by law,
(ii) Changes to these regulations,
(iii) Changes to the law, and
(iv) Measures to insure uniform operating policies.
(2) Promulgating tables of annuity costs as prescribed by the Board of Actuaries.
(3) Promulgating cost of term insurance as required in § 48.405.
(d) The Chairmanship of the Joint Board will be designated by the Assistant Secretary of Defense (Manpower and Reserve Affairs).
(a) The Secretary of the Department concerned may correct any election or any change or revocation of an election when he considers it necessary to correct an administrative error. Information on such corrections shall be compiled by each department for inclusion in the report prescribed by § 48.601.
(b) Except when procured by fraud, a correction under the section is final and conclusive on all officers of the United States.
(c) Information on all corrections to elections under this Plan which are made under title 10, section 1552, United States Code, shall be compiled and this information forwarded to the Board of Actuaries for an actuarial analysis.
(a) A retired member who is participating in the Plan without inclusion of former option 4, which provided for restoration of retired pay when no eligible beneficiary remained in his election, may before September 1, 1969, elect to have that option included in his election. The election to include such option 4 becomes effective on the first day of the month following the month in which that election was made. The retired member must on or before the effective date agree to pay to the Treasury both the total additional amount to cover the option had it been effective when he retired, and the interest which would have accrued on the additional amount up to the effective date of the new option 4. No such additional amount (except interest) shall accrue for months after the first month for which the individual had no eligible beneficiary. However, if undue hardship or financial burden would result, payments may be made in from 2 to 12 monthly installments when the monthly amount involved is $25 or less, or in from 2 to 36 installments when the monthly amounts involved exceed $25. No amounts by which a member's retired pay was reduced may be refunded to, or credited on behalf of, the retired
(b) Members who have elected and are not yet retired will automatically participate under the provisions of § 48.201.
(c) Elections in effect on August 13, 1968, will remain under the cost tables applicable on the date of the member's retirement.
(d) Any member who has filed an election, modification, or revocation prior to August 13, 1968, may before September 1, 1969, submit a written application to the Secretary concerned requesting that such election, modification, or revocation remain under the time-of-election provisions of the law applicable on the date it was filed.
Pub. L. 92-261, sec. 301, 80 Stat. 379 (5 U.S.C. 301, 10 U.S.C. 133).
This part:
(a) Regulates the Department of Defense Military Equal Opportunity (EO) Program and assigns responsibilities for ensuring DoD-wide compliance with the broad program objectives outlined in DoD Human Goals Charter, March 21, 1988.
(b) Provides for education and training in EO and human relations.
(c) Prescribes the functions of the Defense Equal Opportunity Council (DEOC), the Defense Equal Opportunity Management Institute (DEOMI), and the Board of Visitors (BOV) to DEOMI.
This part:
(a) Applies to all military members of the Office of the Secretary of Defense (OSD), the Military Departments (including their National Guard and Reserve components), the Joint Staff, the Unified and Specified Commands, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
(b) Applies to DoD contracted organizations that provide services to military personnel and their families.
(c) Does not apply to civilian personnel, except as noted in paragraph (b) of this section.
(a) Common geographic origin;
(b) Race;
(c) Language or dialect;
(d) Religious faith or faiths;
(e) Shared traditions, values, or symbols;
(f) Literature, folklore, or music;
(g) An internal sense of distinctiveness; and/or
(h) An external perception of distinctiveness.
(a)
(b)
(c)
(d)
(e)
(a) Submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of a person's job, pay, or career, or
(b) Submission to or rejection of such conduct by a person is used as a basis for career or employment decisions affecting that person, or
(c) Such conduct interferes with an individual's performance or creates an intimidating, hostile, or offensive environment.
Any person in a supervisory or command position who uses or condones implicit or explicit sexual behavior to control, influence, or affect the career, pay, or job of a military member or civilian employee is engaging in sexual harassment. Similarly, any military member or civilian employee who makes deliberate or repeated unwelcomed verbal comments, gestures, or physical contact of a sexual nature is also engaging in sexual harassment.
It is DoD policy to:
(a) Support the military EO program as an integral element in total force readiness, as defined in the Secretary of Defense Memorandum and enforce at all levels of activity the EO provisions of this part in developing operating EO policies and programs.
(b) Use the chain of command to promote, support, and enforce the military EO program. The chain of command is the primary and preferred channel for correcting discriminatory practices and for ensuring that human relations and EO matters are enacted.
(c) Ensure the Military Services (to include the Reserve components) maintain military EO and affirmative action programs. Discrimination that adversely affects persons or groups based on race, color, religion, gender, age, or
(d) Provide education and training in EO and human relations at installation and fleet unit commands, Military Service accession points, and throughout the professional military education (PME) system, as part of the overall effort to achieve equal opportunity.
(e) Provide for an environment that is free from sexual harassment by eliminating this form of discrimination in the Department of Defense.
(f) Ensure that all on-base activities and, to the extent of the ability of DoD, any off-base activities available to military personnel are open to all military personnel and their authorized family members regardless of race, color, religion, age, physical or mental handicap, gender, or national origin, as called for by the DoD Human Goals Charter.
(1) Organizations or activities that do not meet this requirement shall be denied the use of military facilities and resources in accordance with 32 CFR part 237. This policy applies equally to those organizations that may discriminate based on the content of their constitutions, bylaws, rules or regulations, as well as to those which, in the judgment of the responsible commander(s), are engaging in de facto discrimination regardless of the content of their constitutions, bylaws, rules or regulations.
(2) Organizations that use on-base facilities, whether on a reimbursable basis or otherwise, must satisfy the responsible area or activity commander that they do not discriminate through their actual membership practices or in any of their activities.
(g) Oppose discrimination in off-base housing directed against military personnel and their authorized family members. Each commander shall take actions to overcome such discrimination and to impose off-limits sanctions in housing cases, as required by 32 CFR part 301.
(h) Impose, as required, the off-limits sanction according to the Armed Forces Disciplinary Control Board as stated in the Joint Regulation, in cases of discrimination involving places of public accommodations outside military installations.
(a) The
(1) Represent and advise the Secretary of Defense in military EO matters consistent with 32 CFR part 384.
(2) Chair the Defense Equal Opportunity Council.
(3) Provide guidance on developing all DoD programs to ensure equal opportunity for military personnel in the total force.
(4) Develop, execute, and monitor the effectiveness of military EO policies in support of national security objectives.
(5) Ensure that DoD Components fulfill the requirements of this part.
(6) Provide policy direction to DEOMI and select the Commandant of DEOMI from Military Service nominations.
(7) Establish categories and monitor specific goals to be included in the affirmative action programs and annual military EO assessments of each DoD Component.
(8) Review and act on (or refer to appropriate Military Service) all complaints of discrimination arising under this part (to include sexual harassment) referred to the Secretary of Defense.
(9) Ensure fair, impartial and timely investigation, resolution, and follow-up of all complaints of discrimination arising under this part.
(10) Establish a program to recognize individuals and organizations for outstanding achievement in one or more of the major EO areas covered by this part.
(b) The
(1) Ensure that all DoD EO policies and programs are understood and executed at all levels of military command.
(2) Establish affirmative action programs that identify and resolve EO
(3) Forward a fiscal year report to the ASD(FM&P) outlining the progress being made to achieve the established military EO objectives of the AAP. This report shall be due each year on February 1, and is described further in DoD Instruction 1350.2.
(4) Establish policies that include specific actions to be taken against any individual who commits an act of discrimination, as defined in § 51.3.
(5) Rewrite documents and change practices that discriminate against military personnel based on race, religion, color, gender, or national origin. This requirement does not apply to those Military Service documents that implement statutes or DoD/Service policy requiring different treatment of military personnel based on age or gender.
(6) Establish policies and procedures to prevent sexual harassment and to ensure that appropriate action is taken against individuals who commit sexual harassment offenses, in accordance with the Secretary of Defense Memorandums.
(7) Ensure that all military personnel, including command-selectees and flag and general officers, receive training in equal opportunity, human relations, and prevention of sexual harassment on a recurring basis, and at all levels of PME.
(8) Establish and fill sufficient full-time staff positions and allocate sufficient resources to conduct all EO programs. Equal opportunity staff personnel shall be placed at a level that enables them to communicate effectively the goals and objectives of the program and obtain the understanding, support, and commitment of the organization's leaders.
(9) Ensure that all discrimination complaints are investigated in a fair, impartial, and prompt manner.
(10) Ensure that consideration of EO program support is included in the instructions that guide rating officials in preparing efficiency reports and/or evaluations on their subordinates.
(11) Develop management information and reporting systems to determine the progress for each AAP goal consistent with DoD Instruction 1350.3.
(12) Establish EO awards programs to recognize individuals and organizational units for outstanding achievement in any of the EO areas covered by this part or Military Service-unique programs.
An annual report is required and is assigned Report Control Symbol DD-FM&P(A)1760. Reporting requirements are contained in appendix A to this part and further amplified in DoD Instruction 1350.3.
Each DoD Component shall submit an annual Military Equal Opportunity Assessment (MEOA) for the period ending September 30 to the ASD(FM&P) no later than February 1 of the following year. The report shall include the following information:
A. An executive summary, providing an overall assessment of each DoD Component's AAPs and EO Programs.
B. An assessment of each affirmative action in the following 10 categories shall be made an enclosure to the report. The assessment in each category should include quantitative data in the basic race/ethnic classifications for officers and enlisted personnel broken down by gender.
C. Requirements are further explained in DoD Instruction 1350.3.
1.
a. Coordinate policy and review the military and civilian EO programs.
b. Monitor progress of program elements.
c. Advise the Secretary of Defense on policies for EO matters.
d. Assist in developing policy guidance for education and training in EO and human relations for DoD personnel.
2.
3.
a. The mission of DEOMI is to enhance combat and/or operational readiness through improved leadership by functioning as the DoD center of excellence in all facets of military EO and human relations education and training to include the following:
(1) Providing primary training for all DoD military and civilian personnel assigned to military EO billets (to include the U.S. Coast Guard), and staff officers who directly manage EO and human relations programs.
(2) Performing EO and human relations research in conjunction with the Military Services and acting as a clearing house to monitor and disseminate research findings on EO and human relations.
(3) Providing assistance or consultation services in DoD organizations in developing specific curricula and training for EO and human relations education, and particular training for the PME systems within the Military Services; and serving in an advisory capacity to other Agencies in education, industry, and the private sector, as determined by the Commandant.
(4) Disseminating educational training materials to assist EO advisors and human relations instructors in remaining current in the EO subject area and in otherwise developing professionally.
(5) Performing special research-related projects in support of the DEOC.
(6) Operating and administering the Defense EO Electronic Bulletin Board to support EO advisors and specialists throughout the Military Services.
(7) Serving as a focal point and depository for data and research on the EO climate and sexual harassment in the Military Services.
b. The following applies to appointments to DEOMI:
(1) The Commandant shall be appointed by the ASD(FM&P). This position shall rotate among representatives nominated by the Departments of the Army, Navy, and Air Force.
(2) The ASD(FM&P) shall establish criteria for assigning officers and enlisted personnel from the Military Departments, including the Coast Guard, National Guard, and Reserves to faculty and staff positions at DEOMI.
4. The
5 U.S.C. 301, 10 U.S.C. 772.
This part prescribes limitations on wearing of the uniform by members of the Armed Forces, and establishes policy with respect to wearing of the uniform by former members of the Armed Forces.
(a)
(1) At any meeting or demonstration which is a function of, or sponsored by an organization, association, movement, group, or combination of persons which the Attorney General of the United States has designated, pursuant to E.O. 10450 as amended, as totalitarian, fascist, communist, or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others their rights under The Constitution of the United States, or as seeking
(2) During or in connection with the furtherance of political activities, private employment or commercial interests, when an inference of official sponsorship for the activity or interest could be drawn.
(3) Except when authorized by competent Service authority, when participating in activities such as public speeches, interviews, picket lines, marches, rallies or any public demonstrations (including those pertaining to civil rights), which may imply Service Sanction of the cause for which the demonstration or activity is conducted.
(4) When wearing of the uniform would tend to bring discredit upon the Armed Forces.
(5) When specifically prohibited by regulations of the department concerned.
(b)
(i) Military funerals, memorial services, weddings, and inaugurals.
(ii) Parades on national or State holidays; or other parades or ceremonies of a patriotic character in which any active or reserve U.S. military unit is taking part.
(2) Wearing of the uniform or any part thereof at any other time or for any other purpose is prohibited.
(c)
15 U.S.C. 1673, 37 U.S.C. 101, 42 U.S.C. 665.
Under section 65 of title 42, United States Code, this part provides policy on statutorily required child or child and spousal support allotments, assigns responsibilities, and prescribes procedures.
(a) This part applies to the Office of the Secretary of Defense (OSD) and the Military Departments. The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
(b) Its provisions cover members of the Military Services on extended active duty. This does not include a member under a call or order to active duty for a period of less than 30 days.
(a)
(b)
(c)
(d)
(e)
(f)
The Department of Defense is obligated by 42 U.S.C. 665 to require child, or child and spousal, support allotments from the pay and allowances of a member who has failed to make periodic payments under a support order in a total amount equal to the support payable for 2 months or longer. The member's allotment shall be established by the Secretary of the Military Department concerned, or the Secretary's designee, provided all requirements of this part have been met.
(a) The Assistant Secretary of Defense (Comptroller) (ASD(C)) shall provide guidance, monitor compliance with this part, and have the authority to change or modify the procedures in § 54.6.
(b) The Secretaries of the Military Departments shall comply with this part.
(a)
(i) A statement that delinquent support payments equal or exceed the amount of support payable for 2 months under a support order, and a request that an allotment be initiated pursuant to 42 U.S.C. 665.
(ii) A certified copy of the support order.
(iii) The amount of the monthly support payment. Such amount may include arrearages, if a support order specifies the payment of such arrearages. The notice shall indicate how much of the amount payable shall be applied toward liquidation of the arrearages.
(iv) A statement that delinquent support payments are more than 12 weeks in arrears, if appropriate.
(v) Sufficient information identifying the member to enable processing by the designated official. The following information is requested:
(A) Full name;
(B) Social Security Number;
(C) Military Service (Army, Navy, Air Force, or Marine Corps).
(vi) The full name and address of the allottee. The allottee shall be an authorized person, the authorized person's designee, or the recipient named in the support order.
(vii) Any limitations on the duration of the support allotment.
(viii) A certificate that the official sending the notice is an authorized person.
(2) The notice shall be sent by mail or delivered in person to the appropriate designated official of the Military Service. The designated official
(3) The notice is effective when it is received in the office of the designated official.
(4) When the notice does not sufficiently identify the member, it shall be returned directly to the authorized person with an explanation of the deficiency. However, before the notice is returned, if there is sufficient time, an attempt shall be made to inform the authorized person who sent the notice that it will not be honored unless adequate information is supplied.
(5) Upon receipt of effective notice of delinquent support payments, together with all required supplementary documents and information, the designated official shall identify the member from whom moneys are due and payable. Under § 54.6(d), the allotment shall be established in the amount necessary to comply with the support order and to liquidate arrearages if provided by a support order when the maximum amount to be allotted under this provision, together with any other moneys withheld for support from the member, does not exceed:
(i) Fifty percent of the member's disposable earnings for any month in which the member asserts by affidavit or other acceptable evidence that he or she is supporting a spouse, dependent child, or both, other than a party in the support order. When the member submits evidence, copies shall be sent to the authorized person, together with notification that the member's support claim shall be honored. If the support claim is contested by the authorized person, that authorized person may refer this matter to the appropriate court or other authority for resolution.
(ii) Sixty percent of the member's disposable earnings for any month in which the member fails to assert by affidavit or other acceptable evidence that he or she is supporting a spouse, dependent child, or both.
(iii) Regardless of the limitations above, an additional 5 percent of the member's disposable earnings shall be withheld when the notice states that the total amount of the member's support payments is 12 or more weeks in arrears.
(b)
(i) Basic pay (including Military Service academy cadet and midshipman pay).
(ii) Basic allowance for quarters for members with dependents, and for members without dependents in grade E-7 or higher.
(iii) Basic allowance for subsistence for commissioned and warrant officers.
(iv) Special pay for physicians, dentists, optometrists, and veterinarians.
(v) Submarine pay.
(vi) Flying pay (all crew members).
(vii) Diving pay.
(viii) Proficiency pay or special duty assignment pay.
(ix) Career sea pay.
(2) To determine disposable earnings for a member assigned outside of the contiguous United States, the following shall supplement the payments listed in paragraph (b)(1) of this section:
(i) Foreign duty pay.
(ii) Special pay for duty subject to hostile fire (applies only to members permanently assigned in a designated area).
(iii) Family separation allowances (only under certain type-II conditions).
(iv) Special pay for overseas extensions
(c) Calculations of disposable earnings shall exclude:
(1) Amounts owed by the member to the United States.
(2) Amounts mandatorily withheld for the U.S. Soldiers’ and Airmen's Home.
(3) Fines and forfeitures ordered by a court-martial or by a commanding officer.
(4) Federal and State employment and income taxes withheld to the extent that the amount deducted is consistent with the member's tax liability.
(5) Deductions for the Servicemen's Group Life Insurance coverage.
(6) Advances of pay received by the member before receipt of notice (see paragraph (c)(1) of this section) that may be due and payable by the member
(7) Other amounts required by law to be deducted.
(d) Notice to member and member's Commanding Officer.
(1) As soon as possible, but not later than 15 calendar days after the date of receipt of notice, the designated official shall send to the member, at his or her duty station, written notice:
(i) That notice has been received from an authorized person, including a copy of the documents submitted.
(ii) Of the maximum limitations provided in 15 U.S.C. 1673, with a request that the member submit supporting affidavits or other documentation necessary for determining the applicable percentage limitation.
(iii) That the member may submit supporting affidavits or other documentation as evidence that the information contained in the notice is in error.
(iv) That by submitting supporting affidavits or other necessary documentation, the member consents to the disclosure of such information to the party requesting the support allotment.
(v) Of the amount or percentage that will be deducted if the member fails to submit the documentation necessary to enable the designated official to respond to the notice within the prescribed time limits.
(vi) That a consultation with a judge advocate or legal officer will be provided by the Military Service, if possible, and that the member should immediately contact the nearest legal services office.
(vii) Of the date that the allotment is scheduled to begin.
(2) The designated official shall notify the member's commanding officer, or designee, of the need for consultation between the member and a judge advocate or legal officer. The designated official shall provide the member's commanding officer, or designee, with a copy of the notice and other legal documentation served on the designated official.
(3) The Military Services shall provide the member with the following:
(i) When possible, an in-person consultation with a judge advocate or legal officer of the Military Service concerned, to discuss the legal and other factors, involved in the member's support obligation and failure to make payment.
(ii) Copies any other documents submitted with the notice.
(4) The member's commanding officer, or designee, shall confirm in writing to the designated official within 30 days of notice that the member received a consultation concerning the member's support obligation and the consequences of failure to make payments, or when appropriate, of the inability to arrange such consultation and the status of continuing efforts to fulfill the consultation requirement.
(5) If, within 30 days of the date of the notice, the member has furnished the designated official affidavits or other documentation showing the information in the notice to be in error, the designated official shall consider the member's response. The designated official may return to the authorized person, without action, the notice for a statutorily required support allotment together with the member's affidavit and other documentation, if the member submits substantial proof of error, such as:
(i) The support payments are not delinquent.
(ii) The underlying support order in the notice has been amended, superseded, or set aside.
(e)
(2) If several notices are sent with respect to the same member, payments
(3) When the member identified in the notice is found not to be entitled to money due from or payable by the Military Service, the designated official shall return the notice to the authorized person and shall advise him or her that no money is due from or payable by the Military Service to the named individual. When it appears that amounts are exhausted temporarily or otherwise unavailable, the authorized person shall be told why, and for how long, any money is unavailable, if known. If the member separates from active duty, the authorized person shall be informed that the allotment is discontinued.
(4) Payment of statutorily required allotments shall be enforced over other voluntary deductions and allotments when the gross amount of pay and allowances is not sufficient to permit all authorized deductions and collections.
(5) The authorized person or allottee shall notify the designated official promptly if the operative court order upon which the allotment is based is vacated, modified, or set aside. The designated official shall also be notified of any events affecting the allottee's eligibility to receive the allotment, such as the former spouse's remarriage, if a part of the payment is for spousal support, and notice of a change in eligibility for child support payments under circumstances of death, emancipation, adoption, or attainment of majority of a child whose support is provided through the allotment.
(6) An allotment established under this Directive shall be adjusted or discontinued upon notice from the authorized person.
(7) Neither the Department of Defense, nor any officer or employee thereof, shall be liable for any payment made from moneys due from, or payable by, the Department of Defense to any individual pursuant to notice regular on its face, if such payment is made in accordance with this part. If a designated official receives notices based on a support order which, on its face, appears to conform to the laws of the jurisdiction from which it was issued, the designated official shall not be required to ascertain whether the authority that issued the order had obtained personal jurisdiction over the member.
(f)
Army—Commander, U.S. Army Finance and Accounting Center, ATTN: FINCL-G, Indianapolis, IN 46249-0160, (317) 542-2155.
Navy—Director, Navy Family Allowance Activity, Anthony J. Celebrezze Federal Building, Cleveland, OH 44199, (216) 522-5301.
Air Force—Commander, Air Force Accounting and Finance Center, ATTN: JA, Denver, CO 80279, (303) 370-7524.
Marine Corps—Commanding Officer, Marine Corps Finance Center (Code AA), Kansas City, MO 64197, (816) 926-7103.
10 U.S.C. 1004(a).
To establish a uniform policy relating to physical examinations and certificates of physical condition for reservists (other than retired reservists) when not on active duty.
This part applies to all Military Departments in the administration of members of reserve components.
(a) Each member of the Ready Reserve who is not on active duty shall be examined as to his physical fitness at least once every four years, or more often as the Secretary concerned considers necessary, and shall execute and submit annually a certificate of physical condition.
(b) Each member of the Standby Reserve in an active status, or on an inactive status list, shall execute and submit annually a certificate of physical condition.
(c) Members of the Standby Reserve may be examined as to their physical
(d) Physical examinations will be reported on Standard Form 88, “Report of Physical Examination” and Standard Form 89, “Report of Medical History.” To accomplish physical examinations, the Military Departments are authorized to use jointly all available medical facilities and to award points creditable toward retirement to medical reservists not on active duty for administering physical examinations or to use civilian physicians on a reimbursable basis where governmental medical facilities are not available.
(e) The following action may be taken in regard to those reservists failing to submit such information as may be requested by the appropriate Secretary after every reasonable effort has been made to obtain such information:
(1) Reservists having obligation under the Universal Military Training and Service Act, as amended, may be ordered to active duty or active duty for training, as deemed appropriate under the provisions of section 672(b), title 10, U.S. Code, for the purpose of securing the necessary information.
(2) All other reservists may be considered for discharge pursuant to section 1162(a) of title 10 U.S. Code.
Pub. L. 93-112, sec. 504 29 U.S.C. 794, as amended by Pub. L. 95-602, 92 Stat. 2982; Pub. L. 93-112, sec. 7, 29 U.S.C. 706, as amended by Pub. L. 93-516, 88 Stat. 1619; Executive Order 12250; Executive Order 12291; Executive Order 12067.
This part implements section 504 of Public Law 93-112, “Rehabilitation Act of 1973,” September 26, 1973 (29 U.S.C. 794) (1976); section 111 of Pub. L. 93-516, “Rehabilitation Act Amendments of 1974,” December 7, 1974 (29 U.S.C. 706, 780, 790) (1976); section 119 of Pub. L. 95-602, “Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978,” November 6, 1978 (29 U.S.C. 794) (supp. III 1979); and Department of Justice Regulation, “Implementation of Executive Order 12250, Nondiscrimination on the Basis of Handicap in Federally Assisted Programs,” August 11, 1981 (28 CFR part 41) to prohibit discrimination based on handicap in programs and activities receiving Federal financial assistance disbursed by the Department of Defense and in programs and activities conducted by the Department of Defense.
(a) This part applies to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the National Guard Bureau, and the Defense Agencies (hereafter referred to as “DoD Components”) insofar as they:
(1) Extend Federal financial assistance to programs and activities that affect handicapped persons in the United States and that are covered by this part (see § 56.7(b)).
(2) Conduct programs and activities that affect handicapped persons in the United States and that are covered by this part (see § 56.7(c)).
(b) This part also applies to each recipient of Federal financial assistance disbursed by the Department of Defense and to each program and activity that receives or benefits from such assistance, insofar as such recipient, program, or activity affects a handicapped person in the United States.
(a)
(b)
(1) Funds.
(2) Services performed by Federal personnel, including technical assistance, counseling, training, and provision of statistical or expert information.
(3) Real and personal property or any interest in or use of such property, including:
(i) Transfers or leases of such property for less than fair market value or for reduced consideration.
(ii) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal government.
(c)
(1)
(2)
(3)
(4)
(ii) A physical or a mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(iii) None of the impairments defined above, but is treated by a recipient or DoD Component as having such an impairment.
(d)
(e)
(f)
(1) With respect to employment, can perform the essential functions of the job in question with reasonable accommodation.
(2) With respect to services, meets the essential eligibility requirements for receiving the services in question.
(g)
(h)
It is DoD policy that no qualified handicapped person shall be subjected to discrimination on the basis of handicap under any program or activity that receives or benefits from Federal financial assistance disbursed by a DoD Component or under any Federal program or activity that is conducted by a DoD Component. Guidelines for determining actions that discriminate against handicapped persons are prescribed in § 56.8.
(a) The
(1) Coordinate efforts of DoD Components to enforce this part.
(2) Assist in the development of standards and procedures promulgated pursuant to § 56.9.
(3) Perform the responsibilities assigned to the ASD(MRA&L) in § 56.8, 9, and 10.
(4) Otherwise assist DoD Components in implementing this part.
(b) The
(1) Designate a policy-level official to ensure compliance with this part receive and investigate complaints filed under this part and otherwise manage DoD Component responsibilities under this part.
(2) Notify the ASD(MRA&L), or designee, of the name, position, location, and telephone number of persons selected by them to be policy-level officials within 15 calendar days of such a selection.
(3) Issue guidelines pursuant to § 56.9.
(4) Cooperate fully with the ASD(MRA&L), or designee, in that official's performance of the responsibilities assigned herein, including furnishing to the ASD(MRA&L), or designee, in a timely fashion any requested reports and information.
(5) Assign sufficient personnel to implement and to ensure effective enforcement of this part.
(a) Each DoD Component shall maintain a log of all complaints that are filed with it or its recipients under this part. The log shall contain the complainant's name (last name, first, and middle initial) and address (street address, city, State, and zip code), the recipient's name (if this refers to a person, last name, first, and middle initial) and address (street address, city, State, and zip code), the nature of the complaint, and the current status of the complaint investigation or resolution. Each DoD Component shall submit a narrative summary report on complaints by memorandum to the ASD(MRA&L), or designee, before July 15 and January 15 of each year. This reporting requirement has been assigned Report Control Symbol DD-M(SA)1596.
(b) Each DoD Component shall submit a narrative report by memorandum to the ASD(MRA&L), or designee, whenever, pursuant to enclosure 4 of this directive, the DoD Component notifies an applicant or recipient that noncompliance with this part is indicated. The report shall include the recipient's name (if this refers to a person, last name, first, and middle initial) and address (street address, city, State, and zip code), the date (YYMMDD) and nature of the finding, and the name of the applicable federally assisted program or activity. This reporting requirement has been assigned Report Control Symbol DD-M(AR)1597.
(c) The recordkeeping requirements contained in § 56.9(c)(2), have been approved by the Office of Management and Budget (OMB) under 44 U.S.C. chapter 35 and have been assigned OMB No. 0704-0102.
(a) This part applies to all DoD Components and recipients of Federal financial assistance disbursed by a DoD Component insofar as the programs and activities of the DoD Components and recipients affect handicapped persons in the United States. Existing programs and activities that are assisted or conducted by a DoD Component and that are subject to this part but do not appear in paragraph (b) or (c) of this section, are covered even though not listed. DoD Components must report new programs and activities that are subject to this part to the ASD (MRA&L), or designee, within 15 calendar days of their creation or funding.
(b) Federal financial assistance programs subject to this part include: (1) title 32, United States Code, sections 101-716 (1976 and supp. III 1979): the Army and Air National Guard.
(2) Title 40, U.S. Code, sections 483, 484, and 512 (1976); title 49, U.S. Code, sections 1101 and 1107 (1976); and title 10, U.S. Code, sections 2541, 2544, 2571, 2576, 2662, 7308, 7541, 7542, 7545, 7546, and 7547 (1976 and supp. IV 1980): Various programs involving the loan or other disposition of surplus, obsolete, or unclaimed property.
(3) Title 10 U.S. Code, sections 4307-4311 (1976), and the annual Department of Defense Appropriations Act: National Program for the Promotion of Rifle Practice.
(4) Secretary of the Navy Instruction 5720.19E, “Navy Science Cruiser Program,” February 24, 1977.
(5) Title 10 U.S. Code, section 9441 (1976 and supp. IV 1980): Civil Air Patrol.
(6) Title 41 U.S. Code, sections 501-509 (supp. III 1979): Federal grants and cooperative agreements.
(7) Title 33 U.S. Code, section 426 (1976 and supp. III 1979): Army Corps of Engineers participation in cooperative investigations and studies concerning the erosion of shores of coastal and lake waters.
(8) Title 33 U.S. Code, sections 426e-426h (1976): Army Corps of Engineers assistance in the construction of works for the restoration and protection of shores.
(9) Title 16 U.S. Code, section 460d (1976): Construction and operation of public park and recreational facilities in water resource development projects under the administrative jurisdiction of the Department of the Army.
(10) Title 33 U.S. Code, section 701c-3 (1976): Payment to States of lease receipts from lands acquired by the United States for flood control, navigation, and allied purposes.
(11) Title 33 U.S. Code, sections 558c and 702d-1 (1976); title 10, U.S. Code, sections 2668 and 2669 (1976); title 43, U.S. Code, section 961 (1976); and title 40, U.S. Code, section 319 (1976): Grants of easements without consideration, or at a nominal or reduced consideration, on land under the control of the Department of the Army at water resource development projects.
(12) Title 33 U.S. Code, sections 540 and 577 (1976): Army Corps of Engineers assistance in the construction of small boat harbor projects.
(13) Title 33 U.S. Code, section 701s (1976): Emergency bank protection works constructed by the Army Corps of Engineers for protection of highways, bridge approaches, and public works.
(14) Title 33 U.S. Code, section 633 (1976): Army Corps of Engineers contracts for the protection, alteration, reconstruction, relocation, or replacement of structures and facilities.
(15) Title 50 U.S. Code, section 453 (1976): Defense Logistics Agency loans of industrial equipment to educational institutions (Tools for Schools).
(16) Title 33 U.S. Code, section 610 (1976): Provision of specialized services or technical information by the Army Corps of Engineers to State and local governments for the control of aquatic plant growths in rivers, harbors, and allied waters.
(17) Title 42 U.S. Code, section 1962d-16 (1976): Provision of specialized services by the Army Corps of Engineers to any State for the preparation of comprehensive plans for drainage basins located within the boundaries of said State.
(18) Title 33 U.S. Code, section 603a (1976): Provision of specialized services by the Army Corps of Engineers to improve channels for navigation.
(19) Title 33 U.S. Code, section 701g (1976): Provision of specialized services by the Army Corps of Engineers to reduce flood damage.
(20) Title 24 U.S. Code, sections 44c and 47 (1976): United States Soldiers’ and Airmen's Home.
(21) Title 10 U.S. Code, chapter 55, as implemented by DoD 6010.8-R, “Civilian Health and Medical Program of the Uniformed Services (CHAMPUS),” January 10, 1977.
(c) All programs and activities conducted by the Department of Defense that affect handicapped persons in the United States are subject to this part. They include:
(1) Promulgation of rules and regulations for public comment in a manner that grants handicapped persons a reasonable opportunity for such comment (such as by making cassette recordings of proposed rules).
(2) Public meetings, conferences, or seminars sponsored or conducted by a DoD Component but held in nongov-ernmental buildings.
(3) Public meetings, conferences, or seminars sponsored or conducted by a DoD Component or by a non-DoD organization but held in a DoD building.
(4) Open houses, memorial services, tours, or other ceremonies held on or in DoD property.
(5) Military museums.
(6) Historic vessels.
(7) Historic buildings and properties maintained by a DoD Component and properties designated as historic under a statute of the appropriate State or local governmental body.
(8) Schools operated by the Department of Defense within the United States pursuant to section 6 of Public Law 81-874, title 20, U.S. Code, section 241 (1976).
(a)
(2) A recipient or DoD Component may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap:
(i) Provide different or separate aid, benefits, or services to handicapped persons than is provided to others unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are equal to those provided to others;
(ii) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(iii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iv) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective as that afforded to others; or
(v) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity granted to others receiving the aid, benefit, or service.
(3) A recipient or DoD Component may not deny a qualified handicapped person the opportunity to participate in programs or activities that are not separate or different from regular programs or activities, even if such separate or different programs and activities are permissible under paragraph (a)(2)(i) of this section.
(4) A recipient or DoD Component may not provide assistance to an agency, organization, or person that discriminates on the basis of handicap in providing any aid, benefit, or service to beneficiaries of the recipient's program or activity.
(5) A recipient of DoD Component may not deny, on the basis of handicap, a qualified handicapped person the opportunity to participate as a member of planning or advisory boards.
(6) A recipient or DoD Component may not use, directly or through contractual or other arrangements, criteria or methods of administration that:
(i) Subject qualified handicapped persons to discrimination on the basis of handicap;
(ii) Defeat or substantially impair accomplishment of the objectives of the recipient's or DoD Component's program or activity with respect to handicapped persons; or
(iii) Perpetuate discrimination by another recipient if both recipients are subject to common administrative control or are agencies of the same State.
(7) In determining the site or location of a facility, a recipient or DoD Component may not make selections that:
(i) Exclude handicapped persons from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity that receives or benefits from Federal financial assistance; or
(ii) Defeat or substantially impair, with respect to handicapped persons, the accomplishment of the objectives of the program or activity.
(8) Recipients and DoD Components shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.
(9) Recipients and DoD Components shall take appropriate steps to make communications with their applicants, employees, and beneficiaries available to persons with impaired vision and hearing.
(10) This section may not be interpreted to prohibit the exclusion of:
(i) Persons who are not handicapped from benefits, programs, and activities limited by Federal statute or Executive order to handicapped persons; or
(ii) One class of handicapped persons from a program or activity limited by Federal statute or Executive order to a different class of handicapped persons.
(11) Recipients and DoD Components shall take appropriate steps to ensure that no handicapped individual is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination under any program or activity receiving or benefiting from Federal financial assistance disbursed by the Department of Defense or under any program or activity conducted by the Department of Defense because of the absence of auxiliary aids, such as certified sign-language interpreters, telecommunication devises (TDDs), or other telephonic devices for individuals with impaired sensory, manual, or speaking skills.
(b)
(2) The prohibition against discrimination in employment applies to the following:
(i) Recruitment, advertising, and processing of applications for employment.
(ii) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring.
(iii) Rates of pay or any other form of compensation and changes in compensation.
(iv) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists.
(v) Leaves of absence, sick leave, or any other leave.
(vi) Fringe benefits available by virtue of employment, whether or not administered by the recipient.
(vii) Selection and financial support for training, including apprenticeship, professional meetings, conferences and other related activities, and selection for leaves of absence for training.
(viii) Programs and activities sponsored by the employer, including social and recreational programs.
(ix) Any other term, condition, or privilege of employment.
(3) A recipient may not participate in a contractual or other relationship that subjects qualified handicapped applicants or employees to discrimination prohibited by this section, including relationships with employment and referral agencies, labor unions, organizations providing or administering fringe benefits to employees of the recipient, and organizations providing training and apprenticeship programs.
(4) A recipient shall make reasonable accommodation to the known physical
(5) A recipient may not use employment tests or criteria that discriminate against handicapped persons, and shall ensure that employment tests are adapted for use by persons who have handicaps that impair sensory, manual, or speaking skills.
(6) A recipient may not conduct a preemployment medical examination or make a preemployment inquiry about whether an applicant is a handicapped person or about the nature or severity of a handicap. A recipient may make, however, a preemployment inquiry into an applicant's ability to perform job-related functions.
(7) When a recipient is taking remedial action to correct the effects of past discrimination or is taking voluntary action to overcome the effects of conditions that have resulted in limited participation by handicapped persons in its federally assisted program or activity, the recipient may invite applicants for employment to indicate whether and to what extent they are handicapped if:
(i) The recipient makes clear to the applicants that the information is intended for use solely in connection with its remedial action obligations or its voluntary affirmative action efforts.
(ii) The recipient makes clear to the applicants that the information is being requested on a voluntary basis, that it will be kept confidential as provided in paragraph (b)(9) in this section, that refusal to provide it will not subject the applicants to any adverse treatment, and that it will be used only in accordance with this part.
(8) Nothing in this section shall prohibit a recipient from conditioning an offer of employment on the results of a medical examination conducted prior to the employee's entrance on duty if:
(i) All entering employees are subjected to such an examination, regardless of handicap.
(ii) The results of such an examination are used only in accordance with this part which prohibits discrimination against a qualified handicapped person on the basis of handicap.
(9) Information obtained under this section concerning the medical condition or history of applicants shall be collected and maintained on separate forms that shall be accorded confidentiality as medical records, except that:
(i) Supervisors and managers may be informed about restrictions on the work or duties of handicapped persons and about necessary accommodations.
(ii) First aid and safety personnel may be informed, when appropriate, if a handicapping condition might require emergency treatment.
(iii) Government officials investigating compliance with section 504, Pub. L. 93-112, and this part shall be provided relevant information upon request.
(c)
(2)
(ii) When structural changes are necessary to make programs or activities in existing facilities accessible to the exent required by paragraph (c)(1) of this section.
(A) Such changes shall be made as soon as practicable, but not later than 3 years after the effective date of this part however, if the program or activity is a particular mode of transportation (such as a subway station) that can be made accessible only through extraordinarily expensive structural changes to, or replacement of, existing facilities and if other accessible modes of transportation are available, the DoD Component concerned may extend this period of time. This extension shall be for a reasonable and definite period, which shall be determined after consultation with the ASD(MRA&L), or designee.
(B) The recipient or DoD Component shall develop, with the assistance of interested persons or organizations and within a period to be established in each DoD Component's guidelines, a transition plan setting forth the steps necessary to complete such changes.
(C) The recipient or DoD Component shall make a copy of the transition plan available for public inspection. At a minimum, the plan shall:
(
(
(
(
(iii) A recipient or DoD Component may comply with paragraphs (c)(2)(i) and (c)(2)(ii) of this section, through such means as the acquisition or redesign of equipment, such as telecommunication or other telephonic devices; relocation of classes or other services to accessible buildings; assignment of aides to beneficiaries, such as readers or certified sign-language interpreters; home visits; delivery of health, welfare, or other services at accessible alternate sites; alteration of existing facilities and construction of new facilities in conformance with paragraph (c)(3) in this section; or any other method that results in making the program or activity of the recipient or DoD Component accessible to handicapped persons.
(iv) A recipient or DoD Component is not required to make structural changes in existing facilities when other methods are effective in achieving compliance with this section.
(v) In choosing among available methods for meeting the requirements of this section, a recipient or DoD Component shall give priority to those methods that offer programs and activities to handicapped persons in the most integrated setting appropriate with nonhandicapped persons.
(3)
(4)
(ii) Methods of achieving program accessibility include:
(A) Making physical alterations that give handicapped persons access to otherwise inaccessible areas or features of historic properties.
(B) Using audiovisual materials and devices to depict otherwise inaccessible areas or features of historic properties.
(C) Assigning individuals to guide handicapped persons into or through otherwise inaccessible portions of historic properties.
(D) Adopting other innovative methods.
(iii) When program accessibility cannot be achieved without causing a substantial impairment of significant historic features, the DoD Component or recipient may seek a modification or waiver of access standards from the ASD (MRA&L), or designee.
(A) A decision to grant a modification or waiver shall be based on consideration of the following:
(
(
(
(
(B) The ASD(MRA&L), or designee, shall review periodically any waiver granted under this paragraph and may withdraw it if technological advances or other changes warrant.
(iv) The decision by the ASD(MRA&L), or designee, to grant a modification or waiver of access standards is subject to section 106 of the National Historic Preservation Act, as amended, and shall be made in accordance with the Advisory Council on Historic Preservation regulation on “Protection of Historic and Cultural Properties” (36 CFR part 800). When the property is federally owned or when Federal funds may be used for alterations, the ASD(MRA&L), or designee, shall obtain the comments of the Advisory Council on Historic Preservation when required by section 106 of the National Historic Preservation Act and the Advisory Council on Historic Preservation regulation on “Protection of Historic and Cultural Properties” (36 CFR part 800) prior to effectuation of structural alterations.
(v) DoD Component guidelines prepared in accordance with § 56.10 shall include a listing of all historic properties, including historic ships, subject to this part and a plan for compliance with paragraph (c)(4) of this section.
(5)
(A) Museum programs may be made accessible to deaf and hearing-impaired persons by means such as training museum staff, such as docents, in sign language; providing qualified sign-language interpreters to accompany deaf or hearing-impaired visitors; ensuring that clear, concise language is used on all museum signs and display labels; providing amplification devices; or providing printed scripts for films, videotapes, lectures, or tours. DoD Components are encouraged to use “Museums and Handicapped Students: Guidelines for Educators,” published by the National Air and Space Museum, Smithsonian Institution, Washington, DC 20560.
(B) Museum programs may be made accessible to blind and visually-impaired persons by means such as providing museum catalogues in a large-print edition printed over braille; providing cassette tapes, records, or discs for museum tours or exhibits; providing readers to accompany blind or vis-ually impaired visitors; using large-print and braille display cards at exhibits; providing raised-line maps of the museum building; using raised-line drawings, reproductions, or models of large exhibits to facilitate tactile experiences when touching exhibits is prohibited; placing large-print and braille signs to identify galleries, elevators, restrooms, and other service areas; and permitting guide dogs in all museum facilities.
(C) Museum programs may be made accessible to other physically impaired persons by means such as lowering display cases; spacing exhibits to facilitate movement; using ramps in galleries; increasing lighting in exhibit areas to facilitate viewing from a distance; providing places to sit in exhibit areas; making restrooms accessible; using large-print exhibit display cards to facilitate reading from a distance; and sensitizing museum staff to consider the needs of handicapped visitors when organizing exhibits.
(ii) DoD Component guidelines developed in accordance with paragraph (c)(5) of this section shall identify military museums subject to paragraph (c) of this section and shall contain a plan for making museum programs accessible to handicapped persons. Technical assistance in the preparation and content of these plans may be obtained from the National Access Center, 1419 27th Street, NW., Washington, DC 20007 ((202) 333-1712 or TTY (202) 333-1339). In addition, community organizations that serve handicapped persons and handicapped persons themselves shall be consulted in the preparation of these plans.
(d)
(2) Reasonable accommodation includes the following:
(i) Making facilities used by employees readily accessible to and usable by handicapped persons.
(ii) Job restructuring; part-time or modified work schedules; acquisition or modification of equipment or devices, such as telecommunication or other telephonic instruments; the provision of readers or certified sign-language interpreters; and similar actions.
(3) In determining whether an accommodation would impose an undue hardship on the operation of a recipient's or DoD Component's program, the ASD(MRA&L), or designee, shall consider the following factors, at a minimum:
(i) The overall size of the recipient's or DoD Component's program or activity, such as the number of employees, number and type of facilities, and size of budget.
(ii) The size of the recipient's or DoD Component's operations, including the composition and structure of the recipient's or DoD Component's workforce.
(iii) The nature and cost of the accommodation needed.
(4) A recipient or DoD Component may not deny any employment opportunity to a qualified handicapped employee or applicant for employment if the basis for the denial is the need to make reasonable accommodation to the physical or mental limitations of the employee or applicant.
(a)
(2) The ASD(MRA&L), or designee, and DoD Components shall ensure that
(i) A description of the types of programs and activities covered.
(ii) Examples of prohibited practices likely to arise with respect to those types of programs and activities.
(iii) A list of the data collection and reporting requirements of the recipients.
(iv) Procedures for processing and investigating complaints.
(v) Procedures for hearings to determine compliance by recipients with this part.
(vi) Requirements or suggestions for affirmative action on behalf of qualified handicapped persons.
(vii) Requirements for the dissemination of program and complaint information to the public.
(viii) A description of the form of the assurances that must be executed pursuant to paragraph (b) of this section, and sample assurances.
(ix) Requirements concerning the frequency and nature of postapproval reviews conducted pursuant to paragraph (h) of this section.
(x) A period of time, provided for by § 56.8(c)(2)(ii)(B), for the development of a transition plan that sets out the steps necessary to complete structural changes that might be required by § 56.8(c).
(xi) The maximum period of time that may be allowed for extensions that might be granted pursuant to § 56.8(c)(2)(ii).
(xii) An appendix that contains a list of identified programs and activities of the type covered by the supplementary guidelines, including the names of the programs and activities and the authorizing statute, regulation, or directive for each program and activity.
(xiii) Requirements for the recipient to designate a responsible official to coordinate the implementation of supplementary guidelines.
(xiv) Requirements for any other actions or procedures necessary to implement this part.
(3) When the head of a DoD Component determines that it would not be appropriate to include on or more of the provisions described in paragraph (a)(2) of this section, in the supplementary guidelines of that DoD Component or that it is not necessary to issue such guidelines at all, the reasons for such determination shall be stated in writing and submitted to the ASD(MRA&L), or designee, for review and approval. Once that determination is approved, the DoD Component shall make it available to the public upon request.
(4) The heads of DoD Components, or designees, shall be responsible for keeping the supplementary guidelines current and accurate. When a DoD Component determines that a program or activity should be added to or deleted from the guidelines, the DoD Component shall notify the ASD(MRA&L), or designee, in writing.
(b)
(2) DoD Components shall advise each recipient of the required elements of the assurance and, with respect to each program or activity, of the extent to which those receiving assistance from recipients shall be required to execute similar assurances.
(3) DoD Component shall ensure that each assurance:
(i) Obligates the recipient to advise the DoD Component of any complaints received that allege discrimination against handicapped persons.
(ii) Obligates the recipient to collect and provide the items of information that the DoD Component lists in its supplementary guidelines pursuant to paragraph (a)(2)(iii) of this section.
(iii) Is made applicable to any Federal financial assistance that might be
(iv) Obligates the recipient, when the financial assistance is in the form of proprerty, for the period during which the property is used under a financial assistance agreement or is possessed by the recipient.
(v) Includes a provision recognizing that the U.S. Government has the right to seek judicial enforcement of section 504 and this part.
(c)
(i) Evaluate the effects of its policies and practices with respect to its compliance with this part and the applicable DoD Component's supplementary guidelines.
(ii) Modify any policies that do not meet such requirements.
(iii) Take appropriate remedial steps to eliminate the discriminatory effects of any such policies or practices.
(2) For at least 3 years following the completion of a self-evaluation required under paragraph (c)(1) of this section, a recipient shall maintain on file, make available for public inspection, and provide to the ASD(MRA&L), or designee, upon request:
(i) A list of the interested persons (last names, first names, and middle initials) consulted.
(ii) A description of areas examined and problems identified, if any, with respect to those areas.
(iii) A description of any modification made and remedial steps taken.
(d)
(2) If a recipient publishes or uses and makes available to participants, beneficiaries, applicants for employment, or employees recruitment materials or publications containing general information about the recipient's programs and activities, it shall include in those materials or publications a statement of the policy described in paragraph (d)(1) of this section. This may be accomplished by including appropriate inserts in existing materials and publications or by revising and reprinting the materials and publications.
(3) Understandable materials developed in accordance with this section shall be provided to ensure that all beneficiaries and employees of the recipient understand the information. In addition, recipients shall disseminate appropriate and comprehensive information about formal and informal complaint and appeal procedures, including directions on how and where to file complaints and to appeal DoD Component decisions.
(e)
(f)
(g)
(h)
(2)
(3)
(A) When appropriate, if a desk audit application review reveals that the recipient's compliance posture is questionable because of a history of discrimination complaints, current discrimination complaints, a noncompliance determination by another government agency or DoD Component, or other indications of possible noncompliance; or
(B) If Federal financial assistance is requested for construction, except under extraordinary circumstances, to determine whether the location and design of the project would provide service on a nondiscriminatory basis, in conformity with § 56.8(c).
(ii) Preapproval onsite reviews shall be conducted under DoD Component supplementary guidelines and in accordance with the provisions of paragraph (h)(4) of this section, concerning postapproval reviews.
(4)
(ii) Conduct such reviews of each recipient, the frequency and the nature of which shall be prescribed in the DoD Component supplemetary guidelines implementing this part.
(iii) Require recipients periodically to submit compliance reports to them.
(iv) Record the results of the reviews, including findings of fact and recommendations.
(5) A DoD Component shall complete a review within 180 calendar days of initiating it unless an extension of time is granted by the ASD(MRA&L), or designee, for good cause shown, and shall either:
(i) Find the recipient to be in compliance and notify the recipient of that finding; or
(ii) Notify the recipient and the ASD(MRA&L), or designee, of a finding of probable noncompliance, pursuant to paragraph (o) of this section.
(i)
(2) A DoD Component shall consider all complaints that: (i) Are filed with it within 180 days of the alleged discrimination or within a longer period of time if an extension is granted for good cause by the DoD Component with the approval of the ASD(MRA&L), or designee.
(ii) Include the name, address, and telephone number, if any, of the complainant; the name and address of the recipient committing the alleged discrimination; a description of the acts or omissions considered to be discriminatory; and other pertinent information.
(iii) Are signed by the complainant or the complainant's authorized representative (legal counsel or a person with power of attorney granted by the complainant).
(3) DoD Components shall transmit a copy of each complaint filed with them to the ASD(MRA&L), or designee, within 10 calendar days after its receipt.
(4) If the information in a complaint is incomplete, the DoD Component shall request the complainant to provide the additional information required. If the DoD Component does not receive this requested information within 30 calendar days of the date of the request, the case may be closed and the complainant so notified in writing.
(5) If a complaint concerning a program or activity is filed with a DoD Component that does not have jurisdiction over it, the DoD Component shall refer the complaint to the ASD(MRA&L), or designee, and advise the complainant in writing of such referral. The ASD(MRA&L), or designee, then shall refer the complaint to the appropriate DoD Component and so notify the complainant in writing.
(j)
(2) If an investigation of a complaint is conducted, the DoD Component concerned shall maintain a case record that contains:
(i) The name (last name, first, and middle initial), address (street address, city, State, and zip code), and telephone number of each person interviewed.
(ii) Copies, transcripts, or summaries of pertinent documents.
(iii) A reference to at least one program or activity conducted by the recipient and receiving Federal financial assistance disbursed by a DoD Component, and a description of the amount and nature of the assistance.
(iv) A narrative report of the results of the investigation that contains references to relevant exhibits and other evidence that relates to the alleged violations.
(k)
(i) Ensure that the recipient investigates the complaints in accordance with the standards, procedures, and requirements prescribed in paragraph (j) of this section.
(ii) Require the recipient to submit a written report of each complaint and investigation to the DoD Component.
(iii) Retain a review responsibility over the investigation and disposition of each complaint.
(iv) Ensure that each complaint investigation is completed within 180 calendar days of the receipt of the complaint by the proper DoD Component, unless an extension of time is granted for good cause by the ASD(MRA&L), or designee.
(v) Require the recipient to maintain a log of all complaints filed against it, as described in § 56.6(a)(1).
(2) DoD Components that require or permit complaint investigations to be conducted by recipients shall review recipient complaint investigations pursuant to paragraphs (k) and (l) of this section.
(l)
(i) Of the disposition of the complaint to the complainant and, as the case may be, to the recipient or DoD Component.
(ii) To the complainant that within 30 calendar days of receipt of the written notification, the complainant may request that the ASD(MRA&L), or designee, review the findings in the notification pursuant to paragraph (m) of this section.
(2) If the complaint investigation results in a determination by the DoD Component that a recipient is not complying with this part the DoD Component shall proceed as prescribed in paragraph (n) through (v) of this section. If the DoD Component determines that the recipient is in compliance, the DoD Component shall submit the complete case file to the ASD(MRA&L), or designee, within 15 calendar days after the notification of the disposition of the investigation to the complainant.
(m)
(2) The ASD(MRA&L), or designee, shall review the results of any investigation of a complaint if the complainant requests such a review pursuant to paragraph (l)(1)(ii) of this section.
(3) After reviewing the results of an investigation, the ASD(MRA&L), or designee, may:
(i) Find that no further investigation is necessary and approve the results of the investigation;
(ii) Request further investigation by the DoD Component; or
(iii) Require the DoD Component to take appropriate corrective action.
(n)
(2) The DoD Component may require, when necessary to overcome the effects of discrimination in violation of this part, a recipient to take remedial action:
(i) With respect to handicapped persons who are no longer participants in the recipient's program or activity but who were participants in the program or activity when such discrimination occurred.
(ii) With respect to handicapped persons who would have been participants in the recipient's program or activity had the discrimination not occurred.
(iii) With respect to handicapped persons presently in the recipient's program or activity, but not receiving full benefits or equal and integrated treatment within the program or activity.
(o)
(1) Describes the apparent violation and the corrective actions necessary to achieve compliance.
(2) Extends an offer to meet informally with the recipient.
(3) Informs the recipient that failure to respond to the notice within 15 calendar days of its receipt shall result in
(p)
(2) If a recipient agrees to take remedial steps to achieve compliance, the DoD Component shall require that the agreement be in writing and:
(i) Be signed by the head of the DoD Component concerned, or designee, and by the principal official of the recipient.
(ii) Specify the action necessary to achieve compliance.
(iii) Be made available to the public upon request.
(iv) Be subject to the approval of the ASD(MRA&L), or designee.
(3) If satisfactory adjustment or a written agreement has not been achieved within 60 calendar days of the recipient's receipt of the notice issued pursuant to paragraph (o) of this section, the DoD Component shall notify the ASD(MRA&L), or designee, and state the reasons therefor.
(4) The DoD Component shall initiate the enforcement actions prescribed in paragraphs (r) through (v) of this section if:
(i) The recipient does not respond to a notice pursuant to paragraph (o) of this section, within 15 calendar days of its receipt and satisfactory adjustments are not made within 45 calendar days of the date of the recipient's response; or
(ii) The DoD Component or the ASD (MRA&L) determines at any time within 90 days after the recipient receives a notice pursuant to paragraph (o) of this section, that, despite reasonable efforts, it is not likely that the recipient will comply promptly and voluntarily.
(5) If, pursuant to paragraph (p)(4) of this section, the DoD Component initiates enforcement action, it also shall continue its attempts to persuade the recipient to comply voluntarily.
(q)
(i) Terminate, suspend, or refuse to grant or continue assistance to such recipient.
(ii) Refer the case to the Department of Justice for the initation of enforcement proceedings at a Federal, State, or local level.
(iii) Pursue any remedies under State or local law.
(iv) Impose other sanctions upon consultation with the ASD (MRASL), or designee.
(2)
(i) Such action has been approved by the Secretary of Defense.
(ii) The DoD Component has given the recipient an opportunity for a hearing pursuant to the procedures set out in paragraph (r) of this section, and a finding of noncompliance has resulted.
(iii) Thirty calendar days have elapsed since the Secretary of Defense has filed a written report describing the violation and action to be taken with the committees of the House of Representatives and Senate that have jurisdiction over the program or activity in which the violation of this part exists.
(iv) Such action is limited to affect only the particular activity or program, or portion thereof, of the recipient where the violation exists.
(3)
(i) The DoD Component has given the recipient an opportunity for a hearing pursuant to paragraph (r) of this section, and a finding of noncompliance has resulted.
(ii) The action has been approved by the Secretary of Defense.
(iii) Ten calendar days have elapsed since the mailing of a notice informing the recipient of its continuing failure to comply with this part the action necessary to achieve compliance, and the sanction to be imposed.
(iv) During those 10 calendar days the DoD Component has made additional efforts to persuade the recipient to comply.
(r)
(2)
(i) The DoD Component shall ensure that the notice:
(A) Describes the proposed sanctions to be imposed.
(B) Cites the section of this part under which the proposed action is to be taken.
(C) States the name and office of the DoD Component official who is responsible for conducting the hearing (hereafter referred to as the “responsible DoD official”).
(D) Outlines the issues to be decided at the hearing.
(E) Advises the recipient either of a date, not less than 20 calendar days after the date that the notice is received, by which the recipient may request that the matter be scheduled for a hearing, or of a reasonable time and place of a hearing that is subject to change for good cause shown.
(ii) When a time and place for a hearing are set, the DoD Component shall give the recipient and the complainant, if any, reasonable notice of such time and place.
(3)
(i) A recipient waives its right to a hearing if it fails to request a hearing on or before a date stated pursuant to paragraph (r)(2)(i)(E) of this section, or fails to appear at a hearing that has been scheduled pursuant to that paragraph.
(ii) If a recipient waives its right to a hearing under this section, the responsible DoD official shall decide the issues and render a final decision that is based on the information available and that conforms to the requirements of paragraph (s)(4) of this section.
(4)
(5)
(6)
(ii) Formal rules of evidence will not apply. The DoD Component concerned and the recipient shall be entitled to introduce all relevant evidence on the issues stated in the notice of hearing issued pursuant to paragraph (r)(2) of this section, and those designated by the responsible DoD official or the hearing examiner at the outset of or during the hearing. The responsible DoD official or hearing examiner, however, may exclude irrelevant, immaterial, or repetitious evidence.
(iii) All witnesses may be examined or cross-examined, as the case may be, by each party.
(iv) All parties shall have the opportunity to examine all evidence offered or admitted for the record.
(v) A transcript of the proceedings shall be maintained in either electronic or typewritten form and made available to all parties.
(s)
(i) Make an initial decision, if so authorized, that conforms to the requirements of paragraph (s)(4) of this section; or
(ii) Certify the entire record and submit to the responsible DoD official recommended findings and a proposed decision.
(2)
(i) A recipient may file exceptions to an initial decision within 30 calendar days of receiving notice of such initial decision. Reasons shall be stated for each exception.
(ii) If the recipient does not file exceptions pursuant to paragraph (s)(2)(i) of this section, the responsible DoD official may notify the recipient within 45 calendar days of the initial decision that the responsible DoD official will review the decisions.
(iii) If exceptions are filed pursuant to paragraph (s)(2)(i) of this section, or a notice of review is issued pursuant to paragraph (s)(2)(ii) of this section, the responsible DoD official shall review the initial decision and, after giving the recipient reasonable opportunity to file a brief or other written statement of its contentions, issue a final decision that addresses each finding and conclusion in the initial decision and each exception, if any.
(iv) If the exceptions described in paragraph (s)(2)(i) of this section are not filed and the responsible DoD official does not issue the notice of review described in paragraph (s)(2)(ii) of this section, the initial decision of the hearing examiner shall constitute the final decision of the responsible DoD official.
(3)
(4)
(5)
(6)
(i) Approve the decision;
(ii) Vacate the decision; or
(iii) Remit or mitigate any sanction imposed.
(t)
(2) If the responsible DoD official determines that the information supplied by the recipient demonstrates that it has satisfied the terms and conditions of the order entered pursuant to paragraph (s) of this section, and that is complying with and has provided reasonable assurance that it will continue to comply with this part the responsible DoD official shall restore such eligibility immediately.
(3) If the responsible DoD official denies a request for restoration of eligibility, the recipient may submit a written request for a hearing that states
(u)
(i) A description of the programs and activities involved.
(ii) A statement of the amount of money expended on the programs and activities in the previous and current fiscal year by the DoD Component and the agency.
(iii) A list of the known primary recipients.
(2) The ASD(MRA&L), or designee, shall attempt to negotiate with the Federal agency a written delegation agreement that designates the agency or the DoD Component as the primary agency for purposes of ensuring compliance with section 504 of Public Law 93-112, as amended, and this part depending upon which of them administers a larger financial assistance program with the common recipients and other relevant factors. If necessary, the agreement shall establish procedures to ensure the enforcement of section 504 of Public Law 93-112, as amended, and this part. The ASD(MRA&L), or designee, shall provide written notification to recipients of an agreement reached under this subsection.
(3) When several recipients are receiving assistance for the same or similar purposes from two or more DoD Components, the DoD Components may negotiate a proposed written delegation agreement that:
(i) Assigns responsibility for ensuring that the recipient complies with this part to one of the DoD Components.
(ii) Provides for the notification to recipients and the responsible program officials of the DoD Components involved of the assignment of enforcement responsibility.
(4) No delegation agreement reached in accordance with paragraph (u)(3) to this section shall be effective until it is approved by the ASD(MRA&L), or designee.
(5) When possible, existing delegation agreements relating to title VI of the Civil Rights Act of 1964 shall be amended to provide for the enforcement of this part.
(6) Any DoD Component conducting a compliance review or investigating a complaint of an alleged violation by a recipient shall notify any other affected agency or DoD Component through the ASD(MRA&L), or designee, upon discovery that the agency or DoD Component has jurisdiction over the program or activity in question and shall subsequently inform it of the finding made. Such reviews or investigations may be conducted on a joint basis.
(7) When a compliance review or complaint investigation under this part reveals a possible violation of Executive Order 11246, titles VI or VII of the Civil Rights Act of 1964, or any other Federal law, the DoD Component shall notify the appropriate agency, through the ASD(MRA&L), or designee.
(v)
(2) DoD Components may advise recipients to consult directly with the Architectural and Transportation Barriers Compliance Board in developing accessibility criteria.
(3) DoD Components shall coordinate enforcement actions relating to the accessibility of facilities with the Architectural and Transportation Barriers Compliance Board and shall notify the ASD(MRA&L), or designee, of such coordination.
(4) If a recipient is also a Federal contractor subject to section 503 of the Rehabilitation Act of 1973, as amended, and the regulations thereunder (41 CFR part 60-741) and if a DoD Component has reason to believe that the recipient is in violation thereof, the DoD Component shall coordinate enforcement actions with the Department of Labor, Office of Federal Contract Compliance Programs. The DoD Component shall notify the ASD(MRA&L), or designee, of such coordination.
(a)
(2) The heads of DoD Components, or designees, shall be responsible for keeping the supplementary guidelines described in this section current and accurate. When a DoD Component head determines that a program or activity should be added to or deleted from the guidelines, that official shall notify the ASD(MRA&L), or designee, in writing.
(b)
(c)
(2) DoD Components shall develop procedures, such as posters or other devices, to notify participants in the programs and activities listed in § 56.7(c) of their right to be free of discrimination because of handicap in those programs and activities and of their right to file complaints of discrimination with the ASD(MRA&L), or designee.
(d)
(2) A case record of each investigation shall be compiled in accordance with § 56.9(j)(2).
(e)
(f)
(g)
(h)
20 U.S.C. 921 and 1400.
This part:
(a) Implement policy and update responsibilities and procedures under 20 U.S.C. 921-932, 20 U.S.C. 1400
(1) A free appropriate public education (FAPE) for children with disabilities who are eligible to enroll in the Department of Defense Dependent Schools (DoDDS).
(2) Early intervention services for infants and toddlers birth through age 2 years who, but for their age, would be eligible to enroll in the DoDDS under DoD Directive 1342.13.
(3) A comprehensive and multidisciplinary program for early intervention services for infants and toddlers with disabilities and their families.
(b) Establishes a National Advisory Panel (NAP) on Education for Children with Disabilities, ages 3 to 21, inclusive, and a DoD Inter-Component Council (ICC) on Early Intervention, in accordance with DoD Directive 5105.4
(c) Establishes a DoD Coordinating Committee (DoD-CC) on Early Intervention, Special Education, and Medically Related Services (MRS).
(d) Authorizes implementing instructions consistent with DoD 5025.1-M
This part:
(a) Applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Unified Combatant Commands, the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”).
(b) Does not apply to schools operated by the Department of defense in the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Marianna Islands, and the possessions of the United States (excluding the Trust Territory of the Pacific Islands and Midway Islands).
(c) Applies to infants, toddlers, and children receiving or entitled to receive early intervention services or special educational instruction and related services from the Department of Defense, and their parents.
(1) The evaluation of the needs of an individual with a disability, including a functional evaluation in the individual's customary environment.
(2) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by individuals with disabilities.
(3) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices.
(4) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing educational and rehabilitative plans and programs.
(5) Training or technical assistance for an individual with disabilities, or, the family of an individual with disabilities.
(6) Training or technical assistance for professionals (including individuals providing educational rehabilitative services), employers, or other individuals who provide services to employ, or are otherwise substantially involved in the major life functions of an individual with a disability.
(1) Identification of children with auditory impairments.
(2) Determination of the range, nature, and degree of hearing loss, and communication functions including referral for medical or other professional attention for the habilitation of hearing.
(3) Provision of habilitative activities, such as language habilitation, auditory training, speech-reading (lip-reading), hearing evaluation, and speech conservation.
(4) Creation and administration of programs for the prevention of hearing loss.
(5) Counseling and guidance of pupils for the prevention of hearing loss.
(6) Determination of the child's need for group and individual amplification, selecting and fitting an aid, and evaluating the effectiveness of amplification.
(i) Oversee screening and referral of children who may require special education.
(ii) Oversee the multidisciplinary evaluation of such children.
(iii) Determine the eligibility of the student for special education and related services.
(iv) Formulate an individualized education curriculum reflected in an Individualized Education Program (IEP), in accordance with this part.
(v) Monitor the development, review, and revision of IEPs.
(2) In addition to the required members of the CSC, other membership will vary depending on the purpose of the meeting. An area CSC, appointed by the DoDDS Area Superintendent, acts in the absence of a school CSC. Members of an area CSC may be assigned to augment a school CSC. The area CSC must have at least two members besides the parent. One of the DoDDS members must have the authority to commit DoDDS resources; one shall be qualified to provide, or supervise the provision of special education. Other members may be selected from the following groups:
(i) DoDDS regular education personnel.
(ii) DoDDS special education personnel.
(iii) MRS personnel.
(1) The parent is fully informed of all information about the activity for which consent is sought in the native language or in another mode of communication, if necessary.
(2) The parent understands and agrees in writing to the implementation of the activity for which permission is sought. That consent describes the activity, lists the child's records (if any) to be released outside the Department of Defense, and specifies to whom the records shall be sent. The signed consent acknowledges the parent's understanding that the parental consent is voluntary and may be revoked at any time.
(1) A significant discrepancy in the actual functioning of an infant, toddler, or child, birth through age 5, when compared with the functioning of a nondisabled infant, toddler, or child of the same chronological age in any of the following areas: physical, cognitive, communication, social or emotional, and adaptive developmental as measured using standardized evaluation instruments and confirmed by clinical observation and judgment.
(2)
(i) Are provided under the supervision of a Military medical Department.
(ii) Are provided using Military Health Services System resources at no cost to the parents. Parents may be charged in those instances where Federal law provides for a system of payments by families including a schedule of sliding fees, if any, (and incidental fees identified in Service guidance) that are normally charged to infants, toddlers, and children without disabilities or to their parents.
(iii) Are designed to meet the developmental needs of an infant or toddler with a disability in any one or more of the following areas:
(A) Physical.
(B) Cognitive.
(C) Communication.
(D) Social or emotional.
(E) Adaptive development.
(iv) Meet the standards developed or adopted by the Department of Defense.
(v) Are provided by qualified personnel including early childhood special
(vi) Maximally, are provided in natural environments including the home and community settings where infants and toddlers without disabilities participate.
(vii) Are provided in conformity with an Individualized Family Service Plan (IFSP).
(2) Developmental services include, but are not limited to, the following services: family training, counseling, and home visits; special instruction; speech pathology and audiology; occupational therapy; physical therapy; psychological services; service coordination services; medical services only for diagnostic or evaluation purposes; early identification, screening and assessment services; vision services; and social work services. Also included are assistive technology devices and assistive technology services; health services necessary to enable the infant or toddler to benefit from the above early intervention services; and transportation and related costs necessary to enable an infant or toddler and the family to receive early intervention services.
(1) Are provided at no cost to parents of a child with a disability, and are under the general supervision and direction of the DoDDS.
(2) Are provided in the least restrictive environment at a preschool, elementary, or secondary school.
(3) Are provided in conformity with an IEP.
(4) Meet the requirements of this part.
(1) Services such as clean intermittent catheterization, tracheotomy care, tube feeding, changing of dressings or colostomy collection bags, and other health services.
(2) Consultation by physicians with other service providers about the special healthcare needs of infants and toddlers with disabilities that shall need to be addressed in the course of providing other early intervention services.
(3) That term does not include the following:
(i) Services that are surgical or solely medical.
(ii) Devices necessary to control or treat a medical condition.
(iii) Medical or health services routinely recommended for all infants or toddlers.
(1) Are experiencing a developmental delay; or,
(2) Have a diagnosed physical or mental condition that has high probability of resulting in a developmental delay.
(2) Direct or indirect services under the development or implementation of an IEP necessary for the student to benefit from the educational curriculum. Those services may include medical services for diagnostic or evaluative purpose, social work, community health nursing, dietary, occupational therapy, physical therapy, audiology, ophthalmology, and psychological testing and therapy.
(1) Conducting individual assessments in nutritional history and dietary intake; anthropometric, biochemical, and clinical variables; feeding skills and feeding problems; and food habits and food preferences.
(2) Developing and monitoring plans to address the nutritional needs of infants and toddlers eligible for early intervention services.
(3) Making referrals to community resources to carry out nutrition goals.
(1) Identification, assessment, and intervention.
(2) Adaption of the environment and selection, design, and fabrication of assistive and orthotic devices to help development and promote the acquisition of functional skills.
(3) Prevention or minimization of the impact of initial or future impairment, delay in development, or loss of functional ability.
(1) Screening, evaluation, and assessment to identify movement dysfunction.
(2) Obtaining, interpreting, and integrating information to appropriate program planning to prevent, alleviate, or compensate for movement dysfunction and related functional problems.
(3) Providing individual and group services or treatment to prevent, alleviate, or compensate for movement dysfunction and related functional problems.
(1) Administering psychological and educational tests and other assessment procedures.
(2) Interpreting test and assessment results.
(3) Obtaining, integrating, and interpreting information about a child's behavior and conditions to learning.
(4) Consulting with other staff members, including service providers, to plan programs to meet the special needs of children, as indicated by psychological tests, interviews, and behavioral evaluations.
(5) Planning and managing a program of psychological services, including psychological counseling for children and parents, family counseling, consultation on child development, parent training, and education programs.
(1) Assessment of leisure activities.
(2) Therapeutic recreational activities.
(3) Recreational programs in schools and community agencies.
(4) Leisure education.
(1) Inability to learn that cannot be explained by intellectual, sensory, or health factors.
(2) Inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(3) Inappropriate types of behavior under normal circumstances.
(4) A tendency to develop physical symptoms or fears associated with personal or school problems.
(5) A general pervasive mood of unhappiness or depression. Includes children who are schizophrenic, but does not include children who are socially maladjusted unless it is determined they are seriously emotionally disturbed.
(1) Coordinating the performance of evaluation and assessments.
(2) Assisting families to identify their resources, concerns, and priorities.
(3) Facilitating and participating in the development, review, and evaluation of IFSPs.
(4) Assisting in identifying available service providers.
(5) Coordinating and monitoring the delivery of available services.
(6) Informing the family of support or advocacy services.
(7) Coordinating with medical and health providers.
(8) Facilitating the development of a transition plan to preschool services.
(1) Preparing a social or developmental history on a child with a disability.
(2) Counseling a child and the family on a group or individual basis.
(3) Working with those problems in a child's home, school, or community that adversely affect adjustment in school.
(4) Using school and community resources to enable a child to receive maximum benefit from the educational program.
(1) Special education is specially designed instruction, including physical education, which is provided at no cost to the parent or guardians to meet the unique needs of a child with a disability, including instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings.
(2) That term includes speech therapy or any other related service if the service consists of specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.
(3) That term also includes vocational education if it consists of specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.
(4)
(5)
(i) Physical and motor fitness.
(ii) Fundamental motor skills and patterns.
(iii) Skills in aquatics, dance, and individual and group games and sports, including intramural and lifetime sports.
(iv) A program that includes special physical education, adapted physical education, movement education, and motor development.
(6)
(1) The design of learning environments and activities to promote acquisition of skills in a variety of developmental areas, including cognitive processes and social interaction.
(2) Curriculum planning, including the planned interaction of personnel, materials, time, and space, that leads to achieving the outcomes in an IEP or an IFSP.
(3) Providing families with information, skills, and support to enhance skill development.
(4) Working with a child to enhance development and cognitive processes.
(1) Identification of children with communicative or oropharyngeal disorders and delays in development of communication skills.
(2) Diagnosis and appraisal of specific speech or language impairments.
(3) Referral for medical or other professional attention to correct or habilitate speech or language impairments.
(4) Provision of speech and language services for the correction, habilitation, and prevention of communicative impairments.
(5) Counseling and guidance of children, parents, and teachers for speech and language impairments.
(1) A coordinated set of activities for a student that may be required to promote movement from early intervention, preschool, and other educational programs into different educational settings or programs.
(2) For students 14 years of age and older, transition services are designed in an outcome-oriented process which promotes movement from school to postschool activities; including, post-secondary education, vocational training, integrated employment; and including supported employment, continuing and adult education, adult services, independent living, or community participation. The coordinated set of activities shall be based on the individual student's needs, considering the student's preferences and interests, and shall include instruction, community experiences, the development of employment and other postschool adult living objectives, and acquisition of daily living skills and functional vocational evaluation.
(1) Services rendered under the IEP of a child with a disability:
(i) Travel to and from school and between schools, including travel necessary to permit participation in educational and recreational activities and related services.
(ii) Travel in and around school buildings.
(iii) Specialized equipment, including special or adapted buses, lifts, and ramps, if required to provide transportation for a child with a disability.
(2) Transportation and related costs for early intervention services include the cost of travel (e.g., mileage or travel by taxi, common carrier, or other means) and other costs (e.g., tolls and parking expenses) that are necessary to enable an eligible child and the family to receive early intervention services.
It is DoD policy that:
(a) Eligible infants and toddlers with disabilities and their families shall be entitled to receive early intervention services consistent with Appendix A to this part.
(b) Eligible children with disabilities, ages 3 to 21, inclusive, shall be provided a FAPE in the least restrictive environment, consistent with Appendix B to this part.
(c) Parents of eligible infants, toddlers, and children with disabilities from birth to age 21, inclusive, shall be full participants in early intervention and special education services.
(a) The Under Secretary of Defense for Personnel and Readiness shall:
(1) Establish a NAP consistent with Appendix C to this part.
(2) Establish and chair, or designate a “Chair,” of the DoD-CC on Early Intervention, Special Education, and MRS consistent with Appendix D to this part.
(3) Establish and chair, or designate a “Chair,” of the DoD Inter-Component Coordinating Council (ICC) on Early Intervention consistent with Appendix E to this part.
(4) Ensure compliance with this part in the provision of early intervention services, special education, and related services through the DoD-CC, in accordance with DoD Instruction 1342.14
(5) In consultation with the General Counsel of the Department of Defense (GC, DoD) and the Secretaries of the Military Departments, do the following:
(i) Ensure that eligible infants and toddlers with disabilities and their families are provided early intervention services under 20 U.S.C. 921
(ii) Ensure the coordination of early intervention, special education, and related services.
(iii) Ensure the development of a DoD-wide comprehensive child-find system to identify eligible infants, toddlers, and children ages birth to age 21, inclusive, under 20 U.S.C 921
(iv) Ensure that DoD personnel are trained to provide the mediation services specified in Appendix F to this part.
(v) Ensure that transition services are available to promote movement from early intervention, preschool, and other educational programs into different educational settings and postsecondary environments.
(vi) Ensure that DoD personnel who provide services (e.g., child care, medical care, and recreation) to infants and toddlers and their families are participants in a comprehensive inter-Component system for early intervention services.
(vii) Assign functions and geographic regions of responsibility to the Military Departments for providing MRS and early intervention services.
(viii) Ensure that the Military Departments deliver the following:
(A) A comprehensive, coordinated and multidisciplinary program of early intervention services for eligible infants and toddlers with disabilities.
(B) MRS for eligible children with disabilities, ages 3 to 21, inclusive.
(ix) Ensure that qualified personnel participate in providing transition services for eligible infants, toddlers, and children with disabilities from birth to age 21, inclusive.
(x) Ensure the development and implementation of a comprehensive system of personnel development for the DoDDS and the Military Departments. That system shall include professionals, paraprofessionals, and primary referral source personnel in the areas of early intervention, special education, and MRS. That system may include the following:
(A) Implementing innovative strategies and activities for the recruitment and retention of providers of early intervention services, special education, and MRS.
(B) Ensuring that personnel requirements are established consistent with recognized certification, licensing, registration, or other comparable requirements for personnel providing early intervention services, special education, or MRS.
(C) Ensuring that training is provided in and across disciplines.
(D) Training providers of early intervention services, special education, and MRS to work overseas.
(xi) Develop procedures to compile data on the numbers of eligible infants and toddlers with disabilities and their families in need of early intervention services, in accordance
(A) The number of infants and toddlers and their families served.
(B) The types of services provided.
(C) Other information required to evaluate the implementation of early intervention programs (EIPs).
(xii) Resolve disputes in the DoD Components arising under Appendix A to this part.
(b) The Secretaries of the Military Departments shall:
(1) Provide MRS for eligible children with disabilities, ages 3 to 21, inclusive.
(2) Plan, develop, and implement a comprehensive, coordinated, intra-Component, and community-based system of early intervention services for eligible infants and toddlers with disabilities and their families.
(3) Design and implement activities to ensure compliance through technical assistance and program evaluation for early intervention and MRS.
(c) The Director, Department of Defense Education Activity, shall ensure that the Director, DoDDS, does the following:
(1) Ensures that eligible children with disabilities, ages 3 to 21, inclusive, are provided a FAPE.
(2) Ensures that the educational needs of children with and without disabilities are met comparably, consistent with Appendix B to this part.
(3) Ensures that educational facilities and services operated by the DoDDS for children with and without disabilities are comparable.
(4) Maintains records on special education and related services provided to eligible children with disabilities, ages 3 to 21, inclusive, consistent with DoD Directive 5400.11.
(5) Provides any or all special education and related services required by a child with a disability, ages 3 to 21, inclusive, other than those furnished by the Secretaries of the Military Departments. The Director, DoDDS, may act through inter-Agency, intra-Agency, and inter-Service arrangements, or through contracts with private parties when funds are authorized and appropriated.
(6) Participates in the development and implementation of a comprehensive system of personnel development.
(7) Undertakes activities to ensure compliance by the DoDDS with this part through monitoring, technical assistance, and program evaluation of special education and those related services provided by the DoDDS.
(d) The
(a) The procedures for early intervention services for infants and toddlers with disabilities and their families are prescribed in Appendix A to this part.
(b) The procedures for educational programs and services for children with disabilities, ages 3 to 21, inclusive, are prescribed in Appendix B to this part.
(c) The procedures for conducting hearings are prescribed in Appendix F to this part.
1. All eligible infants and toddlers with disabilities from birth through age 2 and their families shall receive early intervention services, as follows:
a. In school years 1991 through 1994, the Department of Defense planned and continues to develop a comprehensive, coordinated, multidisciplinary program of early intervention services for infants and toddlers with disabilities among DoD entities involved in providing such services.
b. In school year 1994 through 1995, the Department of Defense implemented and shall continue to implement the following program components described in paragraph A.1.a. of this Appendix:
(1) Multidisciplinary assessments.
(2) IFSPs.
(3) Service coordination.
c. In school year 1995 through 1996, the Department of Defense shall implement the program described in paragraph A.1.a. of this Appendix.
2. Early intervention services shall be provided in the natural environment.
3. Parents of infants and toddlers with disabilities are to be full and meaningful participants in the EIP.
Each Military Department shall develop and implement in its assigned geographic area a system to provide for the following:
1. A comprehensive child find procedure coordinated with the DoDDS child find system and primary referral sources such as the child development center and the pediatric clinic.
2. Administration and supervision of EIPs and services.
3. Identification of available resources and coordination with those resource providers, including the DoD Components, who routinely provide services to infants and toddlers without disabilities and their families.
4. Procedures to provide timely services for infants and toddlers with disabilities and their families.
5. Procedures to resolve inter-Component disputes about the delivery of early intervention services.
6. Procedures to collect and report data reflecting the number of infants and toddlers and their families served, the types of services provided, and other information required by the USD(P&R) implementation of early intervention services.
7. Multidisciplinary, comprehensive, and functional assessment of the unique strengths and needs of infants or toddlers and the identification of services to meet those needs.
8. Procedures for a family-directed assessment to determine resources, priorities, and concerns of a family and to identify services necessary to enhance a family's capacity to meet the child's needs.
9. An IFSP that details the early intervention services and the coordination of those services.
10. A public awareness program focusing on early identification of infants and toddlers with disabilities.
11. A central directory that includes a description of the early intervention services and other relevant resources available in each military community overseas.
12. Information to parents about their EIP procedural safeguards.
13. Establishment of ICCs at appropriate levels. Memberships shall include parents and the DoD Components who are involved in the delivery of early intervention services.
14. Policies and procedures for the establishment and maintenance of standards to ensure that personnel necessary to carry out the EIP are prepared and trained.
Infants and toddlers with disabilities from birth through age 2 are eligible for early intervention services because they meet one of the following criteria:
1. The child is experiencing a developmental delay as measured by diagnostic instruments and procedures of 2 standard deviations below the mean in at least one area, or by a 25 percent delay in at least one area on assessment instruments that yield scores in months, or a developmental delay of 1.5 standard deviations below the mean in two or more areas, or by a 20 percent delay on assessment instruments that yield scores in months in two or more of the following areas of development: Cognitive, physical, communication, social or emotional, or adaptive.
2. The child has a diagnosed physical or mental condition which has a high probability of resulting in developmental delay; e.g., chromosomal disorders or genetic syndromes.
1. Each military medical department shall develop and implement procedures to ensure that an IFSP is developed by a multidisciplinary team including the parents of each infant or toddler with a disability who meets the eligibility criteria in section C.1. of this appendix.
2. Meetings to develop and review the IFSP must include the following participants:
a. The parent or parents of the child.
b. Other family members, as requested by the parent, if possible.
c. An advocate outside of the family, if the parent requests that person's participation.
d. The EIP services coordinator who has worked with the family since the initial referral of the child or who has been designated as “responsible for the implementation of the IFSP.”
e. The person(s) directly involved in conducting the evaluations and assessments.
f. As appropriate, persons who shall provide services to the child or family.
3. If a person listed in section D.2. of this appendix is unable to attend a meeting, arrangements must be made for the person's involvement through other means, including the following:
a. Participating in a telephone conference call.
b. Having a knowledgeable representative attend the meeting.
c. Making pertinent records available at the meeting.
4. The IFSP shall be written in a reasonable time after assessment and shall contain the following:
a. A statement of the child's current developmental levels including physical, cognitive, communication, social or emotional, and adaptive behaviors based on acceptable objective criteria.
b. A statement of the family's resources, priorities, and concerns on enhancing the child's development.
c. A statement of the major outcomes expected to be achieved for the child and the family. Additionally, the statement shall contain the criteria, procedures, and timeliness used to determine the degree to which progress toward achieving the outcomes is being made and whether modification or revision of the outcomes and services are necessary.
d. A statement of the specific early intervention services necessary to meet the unique needs of the child and the family including the frequency, intensity, and method of delivering services.
e. A statement of the natural environments in which early intervention services shall be provided.
f. The projected dates for initiation of services and the anticipated duration of those services.
g. The name of the EIP service coordinator.
h. The steps to be taken supporting the transition of the toddler with a disability to preschool or other services.
5. The IFSP shall be evaluated at least once a year and the family shall be provided an opportunity to review the plan at 6-month intervals (or more frequently, based on the child and family needs).
6. The contents of the IFSP shall be explained to the parents and an informed, written consent from the parents shall be obtained before providing early intervention services described in that plan.
7. With the parent's consent, early intervention services may begin before the completion of the evaluation and assessment when it has been determined by a multidisciplinary team that a service is needed immediately by the child and/or the child's family. Although all assessments have not been completed, an IFSP must be developed before the start of services. The remaining assessments must then be completed in a timely manner.
8. If a parent does not provide consent for participation in all early intervention services, the services shall still be provided for those interventions to which a parent does give consent.
1. Parents of infants and toddlers with disabilities are afforded the following procedural safeguards to ensure that their children receive appropriate early intervention services:
a. The timely administrative resolution of parental complaints, including hearing procedures in appendix F to this part.
b. The right to confidentiality of personally identifiable information under DoD Directive 5400.11.
c. The right to written notice and consent to the release of relevant information outside the Department of Defense.
d. The right to determine whether they, their child, or other family members shall accept or decline any early intervention services without jeopardizing other early intervention services.
e. The opportunity to examine records on assessment, screening, eligibility determinations, and the development and implementation of the IFSP.
f. The right to prior written notice when the EIP multidisciplinary team proposes, or refuses, to initiate or change the identification, evaluation, placement, or provision of early intervention services to the infant or toddler with a disability.
g. The right to prior written notice in their native language, unless it clearly is not possible to do so, which informs them of all procedural safeguards.
h. During the pendency of any proceeding or action involving a complaint, unless the EIP and the parents otherwise agree, the child shall continue to receive the appropriate early intervention services currently being provided, or, if applying for initial services, shall receive the services not in dispute.
2. Parents shall be advised of their rights to due process, as defined in appendix F to this part.
It is the responsibility of school officials of the DoDDS to locate, identify, and with the consent of a child's parent, evaluate all children who are eligible to enroll in the DoDDS under DoD Directive 1342.13
1.
a. Screen educational records.
b. Screen students using system-wide or other basic skill tests in the areas of reading, math, and language arts.
c. Screen school health data such as reports of hearing, vision, speech, or language tests and reports from healthcare personnel about the health status of a child.
d. Analyze school records to obtain pertinent information about the basis for suspensions, exclusions, withdrawals, and disciplinary actions.
e. In cooperation with the Military Departments, conduct on-going child-finding activities and publish, periodically, any information, guidelines, and direction on child-find activities for eligible children with disabilities, ages 3 to 21, inclusive.
f. Coordinate the transition of children from early intervention to preschool with the Military Services.
2.
Any eligible child who is referred to a CSC shall receive a full and comprehensive diagnostic evaluation of educational needs. An evaluation shall be conducted before an IEP is developed or placement is made in a special education program.
1.
a. Assessment of visual and auditory acuity.
b. A plan to assess the type and extent of the disability. A child shall be assessed in all areas related to the suspected disability. When necessary, the assessment plan shall include the following:
(1) Assessment of the level of functioning academically, intellectually, emotionally, socially, and in the family.
(2) Observation in an educational environment.
(3) Assessment of physical status including perceptual and motor abilities.
(4) Assessment of the need for transition services for students 14 years and older, the acquisition of daily living skills, and functional vocational assessment.
c. The involvement of parents, under this part.
d. The use of all locally available community, medical, and school resources to accomplish the assessment. At least one specialist with knowledge in the area of the suspected disability shall be a member of the multidisciplinary assessment team.
e. The requirement that each assessor prepare an individual assessment report that describes the instruments and techniques used, the results of the testing, and the relationship of those findings to educational functioning.
f. The inclusion of a description of the problem area constituting the basis for an MRS referral.
2.
a. Selected and administered so as not to be racially or culturally discriminatory.
b. Administered in the native language or mode of communication of the child unless it clearly is not possible to do so.
c. Validated for the specific purpose for which they are used or intended to be used.
d. Administered by trained personnel in compliance with the instructions of the testing instrument.
e. Administered such that no single procedure is the sole criterion for determining an appropriate educational program for a child with a disability.
f. Selected to assess specific areas of educational needs and strengths and not merely to provide a single general intelligence quotient.
g. Administered to a child with impaired sensor, motor, or communication skills so that the results reflect a child's actual ability or level of achievement, and simply not the impaired skill itself.
3.
a. Ensure that the full comprehensive evaluation of a child is accomplished by a multidisciplinary team. The team shall be comprised of teachers or other specialists with knowledge in the area of the suspected disability.
b. Meet as soon as possible after a child has been assessed to determine the eligibility of the child for services.
c. Afford the child's parents the opportunity to participate in the CSC eligibility meeting.
d. Issue a written eligibility report that contains the following:
(1) A description of the nature of the child's disabling condition.
(2) A synthesis of the formal and informal findings of the multidisciplinary assessment team of the child's academic progress.
(3) A summary of information from the parents, the child, or other persons having significant previous contact with the child.
(4) A determination of eligibility statement.
(5) A list of the educational areas affected by a child's disability and a description of a child's educational needs.
4.
The DoDDS officials shall ensure that the CSC develops and implements an IEP for each child with a disability who is enrolled in the DoDDS or is placed in another institution by the DoDDS.
1.
a. A principal or school representative other than the child's teacher who is qualified to provide or supervise the provision of special education.
b. The child's teacher.
c. A special education teacher.
d. One or both of the child's parents.
e. The child, if appropriate.
f. For a child with a disability who has been evaluated for the first time, a representative of the evaluation team who is knowledgeable about the evaluation procedures used and is familiar with the results of the evaluation.
g. Other individuals invited at the discretion of the parent or school.
2.
a. A statement of the child's present levels of educational performance.
b. A statement of annual goals including short-term instructional objectives.
c. Objective criteria for determining, at least annually, whether the educational objectives are being achieved.
d. A statement of the physical education program provided in one of the following settings:
(1) In the regular education program.
(2) In the regular education program with adaptations, modifications, or the use of assistive technology.
(3) Through specially designed instruction based on the goals and objectives included in the IEP.
e. A statement of the transition services beginning at age 14 and annually, thereafter. When appropriate, include a statement of the inter-Agency responsibilities or linkages (or both) before the student leaves the school setting. If a specially designed instructional program is required, include the goals and objectives in the IEP.
f. A statement of special transportation requirement.
g. A statement of the amount of time a week that each special education and related service shall be provided to the child.
h. The extent to which the child shall participate in regular educational programs, including the following:
(1) The projected date for the initiation and the anticipated length of IEP activities and services.
(2) Any statements requiring an adjusted school day or an extended school year program.
i. A statement of the vocational education program for secondary students. If a specially designed instructional program is required, the necessary goals and objectives in the IEP shall be included.
3.
a. Obtain parental agreement and signature before implementation of the IEP.
b. Provide a copy of the child's IEP to the parents.
c. Ensure that the IEP is in effect before a child receives special education and related services.
d. Review and revise the IEP for each child at least annually in a CSC meeting.
e. Accept a child's current IEP when he or she transfers to the DoDDS if the CSC of the gaining school or the area CSC does the following:
(1) Notifies and obtains consent of the parents to use the current IEP and all elements contained in it.
(2) Involves the local DoD Component responsible for the delivery of the MRS of the medical requirements in the IEP.
(3) Initiates a CSC meeting to revise the current IEP.
(4) If necessary, initiates an evaluation of the child.
f. Afford the child's parents the opportunity to participate in every CSC meeting to determine their child's initial or continuing eligibility for special education and related services, or to prepare or change the child's IEP or to determine or change the child's placement.
g. Ensure that at least one parent understands the special education procedures including the due process procedures described in appendix F of this part and the importance of the parent's participation in those processes. School officials shall use devices or hire interpreters or other intermediaries who might be necessary to foster effective communications between the school and the parent about the child.
h. Provide special education and related services, in accordance with the IEP. The Department of Defense and its constituent elements and personnel are not accountable if a child does not achieve the growth projected in the IEP.
i. Ensure that all provisions developed for any child entitled to an education by the DoDDS are fully implemented in schools or in non-DoDDS schools or facilities including those requiring special facilities, other adaptations, or assistive devices.
1. A child shall not be placed by the DoDDS in any special education program unless the CSC has developed an IEP. If a child with a disability is applying for initial admission to a school, the child shall enter on the same basis as a child without a disability. A child with a disability and with the consent of a parent and school officials may receive an initial placement in a special education program under procedures listed in paragraph C.3.e. of this appendix.
2. A placement decision requires the following:
a. A parent consent to the placement before actual placement of the child, except as otherwise provided in section F.2. of this appendix.
b. Delivery of educational instruction and related services in the least restrictive environment. To the maximum extent, a child with a disability should be placed with children who are not disabled. Special classes, separate schooling, or other removal of a child with a disability from the regular education environment shall occur only when the type or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
c. The CSC to base placements on the IEP and to review the IEP at least annually.
d. A child shall participate, to the maximum extent, in school activities including meals, assemblies, recess periods, and field trips with children who are not disabled.
e. Consideration of factors affecting the child's well-being including the effects of separation from parents.
f. A child shall attend a DoDDS school that is located as close as possible to the residence of the parent who is sponsoring the child's attendance. Unless otherwise required by the IEP, the school should be the same school that the child would have attended had he or she not been disabled.
Children with disabilities who are eligible to receive a DoDDS education, but are placed in a non-DoDDS school or facility by the DoDDS, shall have all the rights of children with disabilities who are enrolled in a DoDDS school. A child with a disability may be placed in a non-DoDDS school or facility only if required by the IEP.
a. Placement in a non-DoDDS school or facility shall be made under the host-nation requirements.
b. Placement in a non-DoDDS school or facility is subject to all treaties, Executive agreements, and status of forces agreements between the United States and the host nations, and all DoD and DoDDS regulations.
c. If the DoDDS places a child with a disability in a non-DoDDS school or facility as a means of providing special education and related services, the program of that institution including nonmedical care and room and board, as in the child's IEP, must be provided at no cost to the child or the child's parents. The DoDDS or the responsible DoD Component shall pay the costs in accordance with DoD 1010.13-R
d. Local school officials shall initiate and conduct a meeting to develop an IEP for the child before placement. A representative of the non-DoDDS school or facility should attend the meeting. If the representative cannot attend, the DoDDS officials shall communicate in other ways to ensure participation including individual or conference telephone calls. The IEP must meet the following standards:
(1) Be signed by an authorized DoDDS official before it becomes valid.
(2) Include a determination that the DoDDS does not currently have or cannot reasonably create an educational program appropriate to meet the needs of the child with a disability.
(3) Include a determination that the non-DoDDS school or facility and its educational program and related services conform to the requirements of this part.
2.
Parents of children with disabilities are afforded procedural safeguards to ensure that their children receive a free public education consistent with appendix F to this part.
a. Parents shall be provided a written notice in a reasonable time before one of the following:
(1) Receiving a proposal to initiate or change the identification, evaluation, or educational placement of the child or the provision of free public education to the child.
(2) Receiving refusal from the DoDDS to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free public education.
b. The notice shall inform the parent of the following:
(1) Parental procedural rights detailed in appendix F to this part.
(2) A description of the action proposed or refused by the DoDDS with a brief explanation for the decision.
c. The notice shall be provided so as to ensure the parent's understanding. That may
a. The consent of a parent of a child with a disability or suspected of having a disability shall be obtained before any of the following:
(1) Initiation of formal evaluation procedures.
(2) Initial educational placement.
(3) Change in educational placement.
b. If the parent refuses consent to any formal evaluation or initial placement in a special education program, the DoDDs or the parent may do the following:
(1) Request a conference between the school and parents.
(2) Request mediation.
(3) Initiate an impartial due process hearing under appendix F to this part, to show cause as to why an evaluation or placement in a special education program should or should not occur without such consent. If the hearing officer sustains the DoDDS position in the impartial due process hearing, the DoDDS may evaluate or provide special education and related services to the child without the consent of a parent, subject to the further exercise of due process rights.
a. A parent is entitled to an independent evaluation at the expense of the DoDDS if the parent disagrees with the DoDDS evaluation of the child and successfully challenges the evaluation in an impartial due process hearing. An independent evaluation provided at the DoDDS expense must do the following:
(1) Conform to the requirements of this part.
(2) Be conducted, when possible, in the area where the child resides.
(3) Meet DoD standards governing persons qualified to conduct an educational evaluation including an evaluation for MRS.
b. If the final decision rendered in an impartial due process hearing sustains the DoDDS evaluation, the parent has the right to an independent evaluation, but not at the DoDDS expense.
c. The DoDDS, the CSC, and a hearing officer appointed under this part shall consider any evaluation report presented by a parent.
4.
a. The parent of a child with a disability or the DoDDS has the opportunity to file a written petition for an impartial due process hearing at the DoDDS expense under appendix F to this part. The dispute may concern issues effecting a partial child's identification, evaluation, or placement, or the provision of a free and appropriate public education.
b. While an impartial due process hearing or judicial proceeding is pending, unless the DoDDS and a parent of the child agree otherwise, the child shall remain in the present educational setting, subject to the disciplinary procedures prescribed in section H. of this appendix.
6.
The DoDDS officials shall maintain all student records, in accordance with DoD Directive 5400.11.
All regular disciplinary rules and procedures applicable to children receiving educational instruction in the DoDDS shall apply to children with disabilities who violate school rules and regulations or disrupt regular classroom activities, subject to the following provisions:
1. Before suspending or expelling a child with a disability, the CSC or, a child with a disability in a non-DoDDS school, authorized DoDDS officials, shall determine the following:
a. Whether the behavioral conduct is the result of the child's disability.
b. If any change in the educational placement is needed.
2. If it is determined that the child's conduct results in whole or part from the disability, the child may not be subject to any regular disciplinary rules and procedures and the following procedures must be followed:
a. The child's parents shall be notified of the right to have an IEP meeting before any change in the child's educational placement.
b. The CSC or authorized DoDDS officials shall ensure that a meeting is held to determine the appropriate educational placement for the child in consideration of the child's conduct.
c. The child may not be suspended for more than 10 days during a school year.
3. A child with a disability may be suspended on an emergency basis when it reasonably appears that the child's behavior may endanger the health, welfare, or safety of self or any other child, teacher, or school personnel. The following conditions apply:
a. The child's parents shall be notified immediately of that suspension and of the time, purpose, and location of the CSC meeting and of their right to attend the meeting.
b. That suspension remains in effect only for the duration of the emergency.
4. If it is determined that the child requires a change in educational placement, the CSC or, in the case of a child with a disability in a non-DoDDS school, authorized DoDDS officials shall ensure that a meeting is held to determine the appropriate educational placement for the child in consideration of the child's conduct.
The NAP shall meet as needed in publicly announced, accessible meetings open to the general public and shall comply with DoD Directive 5105.4
1. Persons with disabilities
2. The DoDDS special education teachers
3. The DoDDS regular education teachers.
4. Parents of children, ages 3 to 21, inclusive, who are receiving special education from the DoDDS.
5. The staff personnel of the DoDDS Headquarters.
6. Special education program managers from the DoDDS field activities.
7. Representatives of the Military Departments and overseas commands, including providers of related services.
8. Providers of the DoD early intervention services.
9. Other appropriate persons.
1. The NAP shall perform the following activities:
a. Review information about improvements in service provided to children with disabilities, ages 3 to 21, inclusive in the Department of Defense.
b. Receive and consider comments from parents, students, professional groups, and individuals with disabilities.
c. When necessary establish committees for short-term purposes comprised of representatives from parent, student, professional groups, and individuals with disabilities.
d. Review the findings of fact and decisions of each impartial due process hearing conducted under appendix F of this part.
e. Assist in developing and reporting such information and evaluations as may assist the Department of Defense.
f. Make recommendations based on program and operational information for changes in policy and procedures and in the budget, organization, and general management of the special education program.
g. Comment publicly on rules or standards about the education of children with disabilities, ages 3 to 21, inclusive.
h. Perform such other tasks as may be requested by the USD(P&R) or the Director, DoDDS.
2. The NAP members shall serve under appointments that shall be for a term not to exceed 3 years.
Submit an annual report of the NAP's activities and suggestions to the USD(P&R) and the Director, DoDDS, by July 31 of each year. That report is exempt from formal review and licensing under section E. of DoD Instruction 7750.7.
The committee shall meet at least twice yearly to facilitate collaboration in early intervention, special education, and Medically Related Services (MRS) in the Department of Defense. The committee shall consist of the following members:
1. A representative of the USD(P&R) or designee, who shall serve as the Chair.
2. Representatives of the Secretaries of the Military Departments.
3. Representatives of the Assistant Secretary of Defense (Health Affairs) (ASD(HA)).
4. Representatives from the DoD school systems (domestic and overseas).
5. Representatives from the GC, DoD.
1. Advise and assist the USD(P&R) in the performance of his or her responsibilities.
2. At the direction of the USD(P&R), advise and assist the Military Departments, and the DoD school systems (overseas and domestic) in the coordination of services among providers of early intervention, special education, and MRS.
3. Ensure compliance in the provision of early intervention services for infants and toddlers and special education and related services for children ages 3 to 21, inclusive.
4. Oversee the coordination of early intervention, special education, and related services.
5. Review the recommendations of the NAP and the Early Intervention ICC to identify common concerns, ensure coordination of effort, and forward issues requiring resolution to the USD(P&R).
6. Promote the coordination of services and information sharing among the providers of early intervention, special education, and MRS.
7. Assist in the coordination of assignments of sponsors who have children with disabilities who are or who may be eligible for special education and MRS in the DoDDS or the EIP through the Military Departments.
The USD(P&R) shall appoint members to the ICC. The Council shall meet at least yearly in publicly announced, open meetings that are accessible to the general public and shall comply with DoD Directive 5105.4.
1.
2. Representatives of the Surgeons General of the Military Departments.
3. Representatives of the family support programs of the Military Departments.
4. Representatives from the ASD(HA).
5. Representative(s) from the DoDDS.
6. A representative from the GC, DoD.
1. Advise and assist the Military medical Departments in the performance of their responsibilities, particularly the identification of appropriate resources and Agencies for providing early intervention services and the promoting of inter-Component agreements.
2. Advise and assist the DoDDS on the transition of toddlers with disabilities to preschool services.
3. Identify strategies to address areas of conflict, overlap, duplication, or omission of early intervention services.
4. Review policy memoranda on effective inter-Department and inter-Component collaboration.
5. Review reports of technical assistance and monitoring activities and make recommendations to improve the policies, procedures, programs, and delivery of early intervention services.
6. Make recommendations based on program and operational information for changes in the policy, procedures, budget, organization, and general management of the EIPs.
7. Provide advice and technical assistance in the establishment, membership, and operation of installation or command level ICCs.
8. When necessary, establish committees for short-term purposes comprised of parents of children with disabilities, service providers, and representatives of professional groups.
9. Submit an annual report of its activities and suggestions to the USD(P&R) by July 31 of each year. That report is exempt from formal review and licensing under section E. of DoD Instruction 7750.7.
1. The USD(P&R) shall nominate and select all members to the ICC to include those listed in section A.1. of this appendix.
2. Appointments shall be for a term not to exceed 3 years except for DoD personnel who are not representing the parent category of membership.
3. The USD(P&R), or designee, shall call and conduct the meeting of the Council.
This appendix establishes requirements for the resolution of conflicts through mediation and impartial due process hearings. Parents of infants, toddlers, and children who are covered by this Instruction and, as the case may be, the cognizant Military Department
1. Mediation may be initiated by either a parent or the Military Department concerned, or the DoDDS to resolve informally a disagreement on the early intervention services for an infant or toddler or the identification, evaluation, educational placement of, or the FAPE provided to, a child age 3 to 21, inclusive. The cognizant Military Department, rather than the DoDDS, shall participate in mediation involving early intervention services. Mediation shall consist of, but not be limited to, an informal discussion of the differences between the parties in an effort to resolve those differences. The parents and the school or Military Department officials may attend mediation sessions.
2. Mediation must be conducted, attempted, or refused in writing by a parent of the infant, toddler, or child whose early intervention or special education services (including related services) are at issue before a request for, or initiation of, a formal due process hearing authorized by this appendix. Any request by the DoDDS or the Military Department for a hearing under this appendix shall state how that requirement has been satisfied. No stigma may be attached to the refusal of a parent to mediate or to an unsuccessful attempt to mediate.
1. The Defense Office of Hearings and Appeals (DOHA) shall have administrative responsibility for the proceedings authorized by sections D. through G. of this appendix.
2. This appendix shall be administered to ensure that the findings, judgments, and determinations made are prompt, fair, and impartial.
3. Impartial hearing officers who shall be DOHA Administrative Judges, shall be appointed by the Director, DOHA, and shall be attorneys in good standing of the bar of any State, the District of Columbia, or a territory or possession of the United States who are independent of the DoDDS or the Military Department concerned in proceedings conducted under this appendix. A parent shall have the right to be represented in such proceedings, at no cost to the Government, by counsel, and by persons with special knowledge or training with respect to the problems of individuals with disabilities. The DOHA Department counsel normally shall appear and represent the DoDDS in proceedings conducted under this appendix, when such proceedings involve a child age 3 to 21, inclusive. When an infant or toddler is involved, the Military Department responsible under this Instruction for delivering early intervention services shall either provide its own counsel or request counsel from DOHA.
a. Should mediation be refused or otherwise fail to resolve the issues on the provision of early intervention services to an infant or toddler or the identification or evaluation of such an individual, the parent may request and shall receive a hearing before a hearing officer to resolve the matter. The parents of an infant or toddler and the Military Department concerned shall be the only parties to a hearing conducted under this appendix.
b. Should mediation be refused or otherwise fail to resolve the issues on the provision of a FAPE to a child with a disability, age 3 to 21, inclusive, or the identification, evaluation, or educational placement of such an individual, the parent or the school principal, for the DoDDS, may request and shall receive a hearing before a hearing officer to resolve the matter. The parents of a child age 3 to 21, inclusive, and the DoDDS shall be the only parties to a hearing conducted under this appendix.
c. The party seeking the hearing shall submit a written request, in the form of a petition, setting forth the facts, issues, and proposed relief, to the Director, DOHA. The petitioner shall deliver a copy of the petition to the opposing party (i.e., the parent or the school principal, for the DoDDS, or the military MTF commander, for the Military Department), either in person or by first-class mail, postage prepaid. Delivery is complete on mailing. When the DoDDS or the Military Department petitions for a hearing, it shall inform the other parties of the deadline for filing an answer under paragraph D.1.c. of this appendix, and shall provide the other parties with a copy of this part.
d. An opposing party shall submit an answer to the petition to the Director, DOHA, with a copy to the petitioner, within 15 calendar days of receipt of the petition. The answer shall be as full and complete as possible, addressing the issues, facts, and proposed relief. The submission of the answer is complete on mailing.
e. In 10 calendar days after receiving the petition, the Director, DOHA, shall assign a hearing officer, who then shall have jurisdiction over the resulting proceedings. The Director, DOHA, shall forward all pleadings to the hearing officer.
f. The questions for adjudication shall be based on the petition and the answer, if a
g. The Director, DOHA, shall arrange for the time and place of the hearing, and shall provide administrative support. Such arrangements shall be reasonably convenient to the parties.
h. The purpose of a hearing is to establish the relevant facts necessary for the hearing officer to reach a fair and impartial determination of the case. Oral and documentary evidence that is relevant and material may be received. The technical rules of evidence shall be relaxed to permit the development of a full evidentiary record, with the “Federal Rules of Evidence” (Rules 1-1102) of 28 U.S.C., serving as a guide.
i. The hearing officer shall be the presiding officer, with judicial powers to manage the proceeding and conduct the hearing. Those powers shall include the authority to order an independent evaluation of the child at the expense of the DoDDS or the Military Department concerned and to call and question witnesses.
j. Those normally authorized to attend a hearing shall be the parents of the individual with disabilities, the counsel and personal representative of the parents, the counsel and professional employees of the DoDDS or the Military Department concerned, the hearing officer, and a person qualified to transcribe or record the proceedings. The hearing officer may permit other persons to attend the hearing, consistent with the privacy interests of the parents and the individual with disabilities, if the parents have the right to an open hearing on waiving in writing their privacy rights and those of the individual with disabilities.
k. A verbatim transcription of the hearing shall be made in written or electronic form and shall become a permanent part of the record. A copy of the written transcript or electronic record of the hearing shall be made available to a parent on request and without cost. The hearing officer may allow corrections to the written transcript or electronic recording for conforming it to actual testimony after adequate notice of such changes is given to all parties.
l. The hearing officer's decision of the case shall be based on the record, which shall include the petition, the answer, the written transcript or the electronic recording of the hearing, exhibits admitted into evidence, pleadings or correspondence properly filed and served on all parties, and such other matters as the hearing officer may include in the record, if such matter is made available to all parties before the record is closed under paragraph D.1.m. of this appendix.
m. The hearing officer shall make a full and complete record of a case presented for adjudication.
n. The hearing officer shall decide when the record in a case is closed.
o. The hearing officer shall issue findings of fact and render a decision in a case not later than 50 calendar days after being assigned to the case, unless a discovery request under section D.2. of this appendix, is pending.
a. Full and complete discovery shall be available to parties to the proceeding, with the “Federal Rules of Civil Procedure,” Rules 26-37, codified at 28 U.S.C. serving as a guide.
b. If voluntary discovery cannot be accomplished, a party seeking discovery may file a motion with the hearing officer to accomplish discovery, provided such motion is founded on the relevance and materiality of the proposed discovery to the issues. An order granting discovery shall be enforceable as is an order compelling testimony or the production of evidence.
c. A copy of the written or electronic transcription of a deposition taken by the DoDDS or the Military Department concerned shall be made available free of charge to a parent.
a. All witnesses testifying at the hearing shall be advised that it is a criminal offense knowingly and willfully to make a false statement or representation to a Department or Agency of the U.S. Government as to any matter in the jurisdiction of that Department or Agency. All witnesses shall be subject to cross-examination by the parties.
b. A party calling a witness shall bear the witness’ travel and incidental expenses associated with testifying at the hearing. The DoDDS or the Military Department concerned shall pay such expenses when a witness is called by the hearing officer.
c. The hearing officer may issue an order compelling the attendance of witnesses or the production of evidence on the hearing officer's own motion or, if good cause be shown, on motion of a party.
d. When the hearing officer determines that a person has failed to obey an order to testify or to produce evidence, and such failure is in knowing and willful disregard of the order, the hearing officer shall so certify.
e. The party or the hearing officer seeking to compel testimony or the production of evidence may, on the certification provided for in paragraph D.3.d. of this appendix, file an appropriate action in a court of competent jurisdiction to compel compliance with the hearing officer's order.
a. The hearing officer shall make written findings of fact and shall issue a decision setting forth the questions presented, the resolution of those questions, and the rationale for the resolution. The hearing officer shall file the findings of fact and decision with the Director, DOHA, with a copy to the parties.
b. The Director, DOHA, shall forward to the Director, DoDDS, or to the Military Department concerned, and to the NAP or the ICC, as appropriate, copies with all personally identifiable information deleted, of the hearing officer's findings of fact and decision or, in cases that are administratively appealed, of the final decision of the DOHA Appeal Board.
c. The hearing officer shall have the authority to impose financial responsibility for early intervention services, educational placements, evaluations, and related services under his or her findings of fact and decision.
d. The findings of fact and decision of the hearing officer shall become final unless a notice of appeal is filed under section F.1. The DoDDS or the Military Department concerned shall implement a decision as soon as practicable after it becomes final.
1. At the request of a parent of an infant, toddler, or child age 3 to 21, inclusive, when early intervention or special educational (including related) services are at issue, the requirement for a hearing may be waived, and the case may be submitted to the hearing officer on written documents filed by the parties. The hearing officer shall make findings of fact and issue a decision in the period fixed by paragraph D.1.o. of this appendix.
2. The DoDDS or the Military Department concerned may oppose a request to waive that hearing. In that event, the hearing officer shall rule on that request.
3. Documents submitted to the hearing officer in a case determined without a hearing shall comply with paragraph D.1.h. of this appendix. A party submitting such documents shall provide copies to all other parties.
1. A party may appeal the hearing officer's findings of fact and decision by filing a written notice of appeal with the Director, DOHA, within 5 calendar days of receipt of the findings of fact and decision. The notice of appeal must contain the appellant's certification that a copy of the notice of appeal has been provided to all other parties. Filing is complete on mailing.
2. Within 10 calendar days of filing the notice of appeal, the appellant shall submit a written statement of issues and arguments to the Director, DOHA, with a copy to the other parties. The other parties shall submit a reply or replies to the Director, DOHA, within 15 calendar days of receiving the statement, and shall deliver a copy of each reply to the appellant. Submission is complete on mailing.
3. The Director, DOHA, shall refer the matter on appeal to the DOHA Appeal Board. It shall determine the matter, including the making of interlocutory rulings, within 60 calendar days of receiving timely submitted replies under section F.2. of this appendix. The DOHA Appeal Board may require oral argument at a time and place reasonably convenient to the parties.
4. The determination of the DOHA Appeal Board shall be a final administrative decision and shall be in written form. It shall address the issues presented and set forth a rationale for the decision reached. A determination denying the appeal of a parent in whole or in part shall state that the parent has the right under 20 U.S.C. 921
5. No provision of this Instruction or other DoD guidance may be construed as conferring a further right of administrative review. A party must exhaust all administrative remedies afforded by this appendix before seeking judicial review of a determination made under this appendix.
The Director, DOHA, shall ensure that final decisions in cases arising under this appendix are published and indexed to protect the privacy rights of the parents who are parties in those cases and the children of such parents, in accordance with DoD Directive 5400.11
10 U.S.C. 113.
This part supersedes Deputy Secretary of Defense Memorandum, “Policy on Identification, Surveillance, and Administration of Personnel Infected with Human Immunodeficiency Virus (HIV),” August 4, 1988, Deputy Secretary of Defense Memorandum, “Recommendations for Revision of DoD Human Immunodeficiency Virus (HIV) Policies,” March 8, 1988, Assistant Secretary of Defense (Health Affairs) Memorandum, “Policy on Clinical Evaluation, Staging and Disease Coding of Military Personnel Infected with Human Immunodeficiency Virus (HIV),” September 11, 1987, Assistant Secretary of Defense (Health Affairs) Memorandum, “The DoD HTLV-III Testing Program,” December 5, 1985, Assistant Secretary of Defense (Health Affairs) Memorandum, “Military Implementation of Public Health Service Provisional Recommendations Concerning Testing Blood and Plasma for Antibodies to HTLV-III,” July 17, 1985, to update policy, responsibilities, and procedures on identification, surveillance, and administration of civilian and military personnel infected with HIV-1.
This part applies to the Office of the Secretary of Defense, the Military Departments (including their Reserve components), the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to collectively as “the DoD Components”). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, and the Marine Corps.
(a)
(b)
(c)
(d)
(e)
(f)
It is DoD policy to:
(a) Deny eligibility for appointment or enlistment for Military Service to individuals with serologic evidence of HIV-1 infection.
(b) Screen active duty (AD) and Reserve component military personnel periodically for serologic evidence of HIV-1 infection.
(c) Refer AD personnel with serologic evidence of HIV-1 infection for a medical evaluation of fitness for continued service in the same manner as personnel with other progressive illnesses, as
(d) Deny eligibility for extended AD (duty for a period of more than 30 days) to those Reserve component members with serologic evidence of HIV-1 infection (except under conditions of mobilization and on the decision of the Secretary of the Military Department concerned). Reserve component members who are not on extended AD or who are not on extended full-time National Guard duty, and who show serologic evidence of HIV-1 infection, shall be transferred involuntarily to the Standby Reserve only if they cannot be utilized in the Selected Reserve.
(e) Retire or separate AD or Reserve Service members infected with HIV-1 who are determined to be unfit for further duty, as implemented in DoD Directive 1332.18.
(f) Ensure the safety of the blood supply through policies of the Head of the Armed Services Blood Program Office, the FDA guidelines, and the accreditation requirements of the Head of the American Association of Blood Banks.
(g) Comply with applicable statutory limitations on the use of the information obtained from a Service member during, or as a result of, an epidemiologic assessment interview and the results obtained from laboratory tests for HIV-1, as provided in this part.
(h) Control transmission of HIV-1 through an aggressive disease surveillance and health education program.
(i) Provide education and voluntary HIV-1 serologic screening for DoD healthcare beneficiaries (other than Service members).
(j) Comply with host-nation requirements for HIV-1 screening of DoD civilian employees, as described in appendix B to this part.
(a) The Assistant Secretary of Defense (Health Affairs), in coordination with the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)), the General Counsel of the Department of Defense (GC, DoD), and the Assistant Secretary of Defense (Reserve Affairs), is responsible for establishing policies, procedures, and standards for the identification, surveillance, and administration of personnel infected with HIV-1. The Assistant Secretary of Defense (Health Affairs) (ASD(HA)) shall provide overall policy guidance and approval for the HIV-1 and/or AIDS education and information efforts and shall establish the HIV-1 and/or AIDS Information and Education Coordinating Committee.
(b) The Secretaries of the Military Departments shall establish Service policies, procedures, and standards for the identification, surveillance, education, and administration of personnel infected with HIV-1, based on and consistent with all sections of this part.
(c) The Assistant Secretary of Defense (Force Management and Personnel) shall establish and revise policies governing HIV-1 screening of DoD civilian employees assigned to, performing official travel in, or deployed on ships with ports of call at host nations, in coordination with the ASD(HA), the Assistant Secretary of Defense (International Security Affairs), and the GC, DoD.
(d) The Assistant Secretary of Defense (International Security Affairs) shall identify or confirm host-nation HIV-1 screening requirements for DoD civilians, transmit this information to the ASD(FM&P), and coordinate requests for screening with the Secretary of State.
(e) The Heads of the DoD Components shall implement HIV-1 screening policies and procedures for DoD civilian employees identified in § 58.5(c) and shall take the following actions:
(1) Report newly established host-nation HIV-1 screening requirements to the ASD(FM&P) and provide sufficient background information to support a decision. This reporting requirement is exempt from licensing, in accordance with DoD 7750.5-M,
(2) Develop and distribute policy implementing instructions.
(3) Establish procedures to notify individuals who are evaluated as HIV-1 seropositive and provide initial counseling to them.
(a) Applicants for Military Service and, periodically, AD and Reserve component military personnel shall be screened for serologic evidence of HIV-1 infection. Testing and interpretation of results shall be in accordance with the procedures in HIV-1 Testing and Interpretation of Results.
(b) Applicants for enlisted service shall be screened at the Military Entrance Processing Stations or the initial point of entry to Military Service. Applicants who enlist under a delayed enlistment program, but before entry on AD and who exhibit serologic evidence of HIV-1 infection, may be discharged due to erroneous enlistment.
(c) Officer candidates shall be screened during their preappointment and/or precontracting physical examination. The disposition of officer applicants who are ineligible for appointment due to serologic evidence of HIV-1 infection shall be in accordance with the procedures in appendix A of this part.
(d) Applicants for Reserve components shall be screened during the normal entry physical examinations or in the preappointment programs established for officers. Those individuals with serologic evidence of HIV-1 infection who are required to meet accession medical fitness standards to enlist, or be appointed, are not eligible for Military Service with the Reserve components.
(e) Initial testing and periodic retesting of AD and Reserve component personnel shall be accomplished in the priority listed in Disease Surveillance and Health Education.
(f) AD personnel (including Active Guard and/or Reserve) who exhibit serologic evidence of HIV-1 infection shall receive a medical evaluation. Guard and Reserve personnel, not on extended AD, must obtain a medical evaluation from a civilian physician.
(g) The Head of each Military Service shall appoint an HIV-1 and/or AIDS education program coordinator to serve as the focal point for all HIV-1 and/or AIDS education program issues and to integrate the educational activities of the medical and personnel departments.
(h) An HIV-1 and/or AIDS Information and Education Coordinating Committee shall be established to enhance communication among the Heads of the Military Services, recommend joint education policy and program actions, review education program implementation, and recommend methodologies and procedures for program evaluation. That committee shall be chaired by a representative of the ASD(HA). Members shall include two representatives from the Office of the ASD(FM&P) (OASD(FM&P)), and the HIV-1 and/or AIDS education program coordinator from each Military Service. Additional members shall represent the Armed Services Blood Program Office and, on an ad hoc basis, the Office of the ASD(HA). Policy and program proposals shall be coordinated with the Secretaries of the Military Departments.
(i) The Head of each Military Service shall prepare a plan for the implementation of a comprehensive HIV-1 and/or AIDS education program that includes specific objectives with measurable action steps. The plan shall address information, education, and behavior-change strategies, as described in Disease Surveillance and Health Education.
(j) Civilians may not be mandatorily tested for serologic evidence of HIV-1 infection except as necessary to comply with valid host-nation requirements for screening of DoD employees.
(k) The medical assessment of each exposure to, and/or case of, HIV-1 infection seen at a military medical treatment facility (MTF) shall include an epidemiological assessment of the potential transmission of HIV-1 to other persons at risk of infection, including sexual and other intimate contacts and family of the patient, and transfusion history. The occurrence of HIV-1 infection or serologic evidence of HIV-1 infection may not be used as a basis for any disciplinary action against an individual, except as described in Limitations on the Use of Information.
(l) Each Head of a military medical service shall ensure conduction of an ongoing clinical evaluation of each AD Service member with serological evidence of HIV-1 infection at least annually. CD4 lymphocyte percentages or counts shall be monitored at least every 6 months. Appropriate preventive medicine counseling shall also be provided to all individual patients, and public health education materials shall be made available to that medical services’ beneficiary population. Each Head of a military medical service shall ensure conduction of longitudinal clinical evaluations of AD Service members with serologic evidence of HIV-1 infection and shall ensure preparation of internal reports to facilitate timely review and reassessment of current policy guidelines.
(m) All Heads of the military MTFs shall notify promptly the cognizant military health authority, when there is clinical or laboratory evidence indicative of infection with HIV-1, in accordance with appendix C of this part.
(n) The Secretary of each Military Department shall ensure that a mechanism is established to gather data on the epidemiology of HIV-1 infection of its members. Such epidemiological research shall be accomplished to ensure appropriate protection of information given by the Service member on the means of transmission.
(o) The Secretary of the Army, as the Head of the lead Agency for infectious disease research within the Department of Defense, shall budget for and fund tri-Military Department DoD HIV-1 research efforts, in accordance with guidance provided by the ASD(HA). The research program shall focus on the epidemiology and natural history of HIV-1 infections in military and military associated populations; on improving the methods for rapid diagnosis and patient evaluation; and on studies of the immune response to HIV-1 infection, including the potential for increased risk in the military operational environment.
(p) Service members with serologic evidence of HIV-1 infection shall be assigned within the United States, including Alaska, Hawaii, and Puerto Rico, due to the high priority assigned to the continued medical evaluation of military personnel. The Secretaries of the Military Departments may restrict such individuals to nondeployable units or positions for purposes of force readiness. To protect the health and safety of Service members with serologic evidence of HIV-1 infection and of other Service members (and for no other reason), the Secretaries of the Military Departments may, on a case-by-case basis, limit assignment of HIV-1-infected individuals on the nature and location of the duties performed in accordance with operational requirements.
(q) AD and Reserve component personnel with serologic evidence of HIV-1 infection shall be retained or separated in accordance with Retention and Separation.
(r) The ASD(HA), in coordination with the Heads of the Military Services, shall revise Standard Clinical Protocol, HIV-1 Testing and Interpretation of Results, Disease Surveillance and Health Education, Procedure for Evaluating T-Helper Cell Count, as appropriate. The ASD(FM&P) shall revise appendix B to this part, as appropriate, through publication in the
Administration of officer applicants who are ineligible for appointment, due to serologic evidence of HIV-1 infection, shall be in accordance with the following provisions:
A. Enlisted members who are candidates for appointment through Officer Candidate School (OCS) or Officer Training School (OTS) programs shall be disenrolled immediately from the program. If OCS and/or OTS is the individual's initial entry training, the individual shall be discharged. If the sole basis for discharge is serologic evidence of HIV-1 infection, an honorable or entry-level discharge, as appropriate, shall be issued. A candidate who has completed initial entry training during the current period of service before entry into candidate status shall be administered in accordance with Service regulations for enlisted personnel.
B. Individuals in preappointment programs, such as Reserve Officer Training Corps (ROTC) and Health Professions Scholarship Program participants, shall be disenrolled from the program. However, the Head of the Military Service concerned, or the designated representative, may delay disenrollment to the end of the academic term (i.e., semester, quarter, or similar period) in which serologic evidence of HIV-1 infection is confirmed. Disenrolled participants shall be permitted to retain any financial support through the end of the academic term in which the disenrollment is effected. Financial assistance received in these programs is not subject to recoupment, if the sole basis for disenrollment is serologic evidence of HIV-1 infection.
C. Service academy cadets, midshipmen, and personnel attending the Uniformed Services University of the Health Sciences (USUHS) shall be separated from the respective Service academy or USUHS and discharged. The Head of the Military Service concerned, or the designated representative, may delay separation to the end of the current academic year. A cadet or midshipman granted such a delay in the final academic year, who is otherwise qualified, may be graduated without commission and, thereafter, discharged. If the sole basis for discharge is serologic evidence of HIV-1 infection, an honorable discharge shall be issued.
D. Commissioned officers in DoD-sponsored professional education programs leading to appointment in a professional military specialty (including, but not limited to, medical, dental, chaplain, and legal and/or judge advocate) shall be disenrolled from the program at the end of the academic term in which serologic evidence of HIV-1 infection is confirmed. Disenrolled officers shall be administered in accordance with Service regulations. Except as specifically prohibited by statute, any additional Service obligation incurred by participation in such programs shall be waived, and financial assistance received in these programs shall not be subject to recoupment. Periods spent by such officers in these programs shall be applied fully toward satisfaction of any preexisting Service obligation.
E. All personnel disenrolled from officer programs who are to be separated shall be given appropriate counseling, to include preventive medicine counseling and advice to seek treatment from a civilian physician.
A. Requests for authority to screen DoD civilian employees for HIV-1 shall be directed to the ASD(FM&P). Only requests that are based on a host-nation HIV-1 screening requirement shall be accepted. Requests based on other concerns, such as sensitive foreign policy or medical healthcare issues, shall not be considered under this part. Approvals shall be provided in writing by the ASD(FM&P). Approvals shall apply to all of the Heads of the DoD Components that may have activities located in the host nation.
B. Specific HIV-1 screening requirements may apply to DoD civilian employees currently assigned to positions in the host nation, and to prospective employees. When applied to prospective employees, HIV-1 screening shall be considered as a requirement imposed by another nation that must be met before the final decision to select the individual for a position or before approving temporary duty or detail to the host nation. The Secretary of Defense has made no official commitment, for positions located in host nations with HIV-1 screening requirements, to those individuals who refuse to cooperate with the screening requirement or to those who cooperate and are diagnosed as HIV-1 seropositive.
C. DoD civilian employees who refuse to cooperate with the screening requirement shall be treated, as follows:
1. Those who volunteered for the assignment, whether permanent or temporary, shall be retained in their official position without further action and without prejudice to employee benefits, career progression opportunities, or other personnel actions to which those employees are entitled under applicable law or regulation.
2. Those who are obligated to accept asssignment to the host nation under the terms of an employment agreement, regularly scheduled tour of duty, or similar and/or prior obligation may be subjected to an appropriate adverse personnel action under the specific terms of the employment agreement or other authorities that may apply.
3. Host-nation screening requirements, which apply to DoD civilian employees currently located in that county, also must be
D. Individuals who are not employed in the host nation, who accept the screening, and who are evaluated as HIV-1 seropositive shall be denied the assignment on the basis that evidence of seronegativity is required by the host nation. If denied the assignment, such DoD employees shall be retained in their current positions without prejudice. Appropriate personnel actions may be taken, without prejudice to employee rights and privileges, on DoD civilian employees currently located in the host nation. In all cases, employees shall be given proper counseling and shall retain all the rights and benefits to which they are entitled, including accommodations for the handicapped as in the ASD(FM&P) Memorandum
E. Some host nations may not bar entry to HIV-1-seropositive DoD civilian employees, but may require reporting of such individuals to host-nation authorities. In such cases, DoD civilian employees who are evaluated as HIV-1 seropositive shall be informed of the reporting requirements. They shall be counseled and given the option of declining the assignment and retaining their official positions without prejudice or notification to the host nation. If assignment is accepted, the requesting authority shall release the HIV-1 seropositive result, as required. Employees currently located in the host nation may also decline to have seropositive results released. In such cases, they may request and shall be granted early return at Government expense or other appropriate personnel action without prejudice to employee rights and privileges.
F. A positive confirmatory test by WB must be accomplished on an individual if the screening test (ELISA) is positive. A civilian employee may not be identified as HIV-1 antibody positive, unless the confirmatory test (WB) is positive. The clinical standards in this Directive shall be observed during initial and confirmatory testing.
G. Procedures shall be established by the Heads of the DoD Components to protect the confidentiality of test results for all individuals, consistent with the ASD(FM&P) Memorandum and DoD Directive 5400.11.
H. Tests shall be provided by the Heads of the DoD Components at no cost to the DoD civilian employees, including applicants.
I. DoD civilian employees infected with HIV-1 shall be counseled appropriately.
1. On notification by a medical health authority of an individual with serologic or other laboratory or clinical evidence of HIV-1 infection, the cognizant military health authority shall undertake preventive medicine intervention, including counseling of the individual and others at risk of infection, such as his or her sexual contacts (who are military healthcare beneficiaries), on transmission of the virus. The cognizant military health authority shall coordinate with the Heads of the military and civilian blood bank organizations and preventive medicine authorities to trace back possible exposure through blood transfusion or donation of infected blood (ASD(HA)) Memorandum and refer appropriate case-contact information to the appropriate military or civilian health authority.
2. All individuals with serologic evidence of HIV-1 infection who are military healthcare beneficiaries shall be counseled by a physician or a designated healthcare provider on the significance of a positive antibody test. They shall be advised as to the mode of transmission of that virus, the appropriate precautions and personal hygiene measures required to minimize transmission through sexual activities and/or intimate contact with blood or blood products, and of the need to advise any past sexual partners of their infection. Women shall be advised of the risk of perinatal transmission during past, current, and future pregnancies. The infected individuals shall be informed that they are ineligible to donate blood and shall be placed on a permanent donor deferral list.
3. Service members identified to be at risk shall be counseled and tested for serologic evidence of HIV-1 infection. Other DoD beneficiaries, such as retirees and family members, identified to be at risk shall be informed of their risk and offered serologic testing, clinical evaluation, and counseling. The names of individuals identified to be at risk who are not eligible for military healthcare shall be provided to civilian health authorities in the local area where the index case is identified, unless prohibited by the appropriate State or host-nation civilian health authority. Such notification shall comply with the Privacy Act (5 U.S.C. 552a). Anonymity of the HIV-1 index case
4. Blood donors who demonstrate repeatedly reactive ELISA tests for HIV-1, but for whom WB or other confirmatory test is negative or indeterminate, and who cannot be reentered into the blood donor pool shall be appropriately counseled.
1. Epidemiological investigation shall attempt to determine potential contacts of patients who have serologic or other laboratory or clinical evidence of HIV-1 infection. The patient shall be informed of the importance of case-contact notification to interrupt disease transmission and shall be informed that contacts shall be advised or their potential exposure to HIV-1. Individuals at risk of infection include sexual contacts (male and female); children born to infected mothers; recipients of blood, blood products, organs, tissues, or sperm; and users of contaminated intravenous drug paraphernalia. Those individuals determined to be at risk who are identified and who are eligible for healthcare in the military medical system shall be notified. Additionally, the Secretaries of the Military Departments shall provide for the notification, either through local public health authorities or by DoD healthcare professionals, of the spouses of Reserve component members found to be HIV-1-infected. Such notifications shall comply with the Privacy Act (5 U.S.C. 552a). The Secretaries of the Military Departments shall designate all spouses (regardless of the Service affiliation of the HIV-1-infected Reservist) who are notified under this provision to receive serologic testing and counseling on a voluntary basis from MTFs under the Secretaries’ of the Military Departments jurisdiction.
2. Communicable disease reporting procedures of civil authorities shall be followed to the extent consistent with this Directive through liaison between the military public health authorities and the appropriate local, State, territorial, Federal, or host-nation health jurisdiction.
37 U.S.C. chapter 13.
This part updates the policies that implement title 37 U.S. Code, chapter 13 and govern voluntary allotments of pay and allowances for active and retired members.
This part applies to the Office of the Secretary of Defense and the Military Departments. The term “Military Service,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
(a)
(2) All existing approved registered allotments of military pay and allowances for active duty and retired members that were authorized previously by this part at the time registered may be continued as approved allotments. However, if any such allotments are discontinued, they may not be reestablished except as a new allotment in accordance with the requirements of this part. Any change in the allotment that is initiated by the service member is considered a discontinuance, except those that are beyond the control of the service member.
(3) Changes beyond the control of the service member are changes that are of an administrative nature dictated by events incidental to the purpose of the allotment. Examples of administrative changes that are beyond the control of the service member are: name and address changes by the payee or amount changes due to contractual obligation existing at the time the allotment was executed, such as a mortgage payment change because of a variable rate mortgage or changing escrow requirements. Although the changes given above do not constitute a discontinuance, such administrative changes that adjust the
(4) A change in allotment initiated by an organizational allottee may be accepted when the change is documented properly, is of an administrative nature, and does not increase the amount allotted.
(b)
(1) The purchase of U.S. savings bonds.
(2) The payment of premiums for insurance on the life of the allotter, including U.S. Government Life Insurance, National Service Life Insurance, Veterans Group Life Insurance, Navy Mutual Aid Insurance, Army Mutual Aid Insurance, and commercial life insurance.
(i) Allotments for insurance on the lives of a spouse or children.
(ii) Allotments for health, accident, or hospitalization insurance or other contracts that, as a secondary or incidental feature, include insurance on the life of the service member are not authorized.
(iii) Requests to initiate commercial life insurance allotments shall be processed only after compliance with requirements of 32 CFR part 276.
(3) The repayment of loans to the Navy Relief Society, Army Emergency Relief, Air Force Aid Society, and American Red Cross.
(4) Allotments to a spouse, former spouses, other dependents, and relatives who are not designated legally as dependents. The payment of such an allotment to a financial institution or association shall not deprive a service member of the use of the allotments authorized by paragraph (b)(6) of this section.
(5) The voluntary liquidation of indebtedness to the United States.
(i) This includes indebtedness incurred by reason of defaulted notes insured by the Federal Housing Administration or guaranteed by the Veterans Administration (VA); payment of amounts due under the Retired Serviceman's Family Protection Plan, in the case of retired service members serving on active duty; payment of delinquent Federal income taxes; and other indebtedness to any department or agency of the U.S. Government, except to the department paying the service member.
(ii) This includes repayment of debts owed to an organization for funds administered on behalf of the U.S. Government and any such debts assigned to a collection agency.
(6) The payment to a financial organization for credit to an account of the service member. A financial organization is any bank, savings bank, savings and loan association or similar institution, or Federal or State chartered credit union. Monies thus credited to the service member's account may then be used for any purpose in accordance with the desires and direction of the service member. No more than two such allotments under this paragraph shall be allowed any service member at any one time.
(7) Repayment of loans obtained for the purchase of a home, including a mobile home or house trailer used as a residence by the service member. This does not authorize repayment of loans for business purposes or for additions or improvements to homes, mobile homes, or house trailers. Allotments authorized herein are in addition to those authorized under paragraph (b)(6) of this section. Only one such allotment shall be allowed any service member at any one time.
(8) Charitable contributions to the following:
(i) A Combined Federal Campaign, in accordance with DOD Directive 5035.1, “Fund-Raising Within the Department of Defense,” April 7, 1978, and DOD Instruction 5035.5, “DoD Combined Federal Campaign-Overseas Areas (CFC-OA),” August 23, 1978.
(ii) Army Emergency Relief, Navy Relief Society, or affiliates of the Air Force Assistance Fund.
(9) Deposits to the account of a service member participating in the Uniformed Services Savings Deposit Program under 10 U.S.C. 1035. This program is limited to service members in a missing status as a result of the Vietnam conflict.
(10) Allotments to the VA for deposit to the Post-Vietnam Era Veterans Education Account within the periodic and cumulative depository limitations specified in DOD Directive 1322.8, “Voluntary Educational Programs for Military Personnel,” July 23, 1987. Once authorized by the service member, the allotments must run a minimum of 12 consecutive months, unless the service member suspends participation or disenrolls from the program because of personal hardship
(11) Payment of delinquent State or local income or employment taxes.
(12) Dental and health insurance allotments for the benefit of the families of service members.
(c)
(i) Purchase of U.S. savings bonds.
(ii) Payment of premiums for insurance on the life of the service member including U.S. Government Life Insurance, National Service Life Insurance, Veterans Group Life Insurance, Navy Mutual Aid Insurance, Army Mutual Aid Insurance, and commercial life insurance, subject to the limitations prescribed in paragraph (b)(2) (i) and (ii) of this section.
(iii) Voluntary liquidation of indebtedness to the United States, subject to the limitations prescribed in paragraph (b)(5) of this section—
(iv) Allotments to a spouse, former spouse, and/or children of the retired service member having a permanent residence other than that of the retired service member.
(v) Charitable contributions to the Army Emergency Relief, Navy Relief Society, or affiliates of the Air Force Assistance Fund.
(vi) The repayment of loans to the Army Emergency Relief, Navy Relief Society, Air Force Aid Society, or American Red Cross.
(2) To assist personnel in the transition from active duty to retired status, all allotments authorized for active duty service members may be continued, except those allotments in paragraph (b) (8)(i), (9) and (10) of this section. However, if an allotment continued from active duty, but not authorized by paragraph (c)(1) of this section is discontinued by the retiree, such an allotment may not be reestablished.
(d)
(2) The total amount that may be allotted shall comply with the restrictions in the DOD Military Pay and Allowances Entitlements Manual and DOD 1340.12-M, “DOD Military Retired Pay Manual.”
(e)
(2) Active duty enlisted service members shall sign the allotment authorization form in the presence of the service member's commanding officer, personnel or disbursing officer, or one of their representative who shall witness the signature. The Military Departments may waive this requirement for senior enlisted service members and loan repayment allotments payable to the Army Emergency Relief, Navy Relief Society, the Air Force Aid Society, and American Red Cross.
(3) Charitable contribution allotment requests by enlisted members may be accepted without a witnessing official, when submitted on contribution forms in accordance with DOD Directive 5035.1 and DOD Instruction 5035.5.
(4) Retired military personnel need not submit allotment requests on the prescribed forms. A signed personal letter may be used to support an allotment request, change, or cancellation by retired military members as long as all required information is provided.
(a) The Assistant Secretary of Defense (Comptroller) shall exercise primary management responsibility for the voluntary military pay allotment program and provide assistance to the Military Departments in the form of instructions, requirements, reviews, and other guidance.
(b) The Secretaries of the Military Departments shall ensure that this part is implemented by the Military Services concerned.
Pub. L. 94-464, sec. 1(a), 90 Stat. 1985, 10 U.S.C. 1089(f), 2733 and 5 U.S.C. 301.
This Directive: (a) Delegates authority, with the power to redelegate, to the Secretaries of the Military Departments to provide relief to health care personnel of the Department of Defense from personal tort liability in connection with their authorized activities, and (b) establishes procedures to be followed in providing such relief.
The provisions of this Directive apply to the Office of the Secretary of Defense, the Military Departments, and all other Department of Defense Components.
(a) The authority vested in the Secretary of Defense by title 10 U.S.C. section 1089(f) hold harmless or provide liability insurance for Department of Defense health care personnel is hereby delegated to:
(1) The Secretary of each Military Department for military members and civilian employees of his Department, and
(2) The Secretary of the Army for civilian employees of the Office of the Secretary of Defense and Department of Defense Components other than the Military Departments (see DoD Directive 5515.9).
(b) The authority delegated above may be redelegated as appropriate and necessary to carry out the provisions of title 10, U.S.C., section 1089(f).
(a) In all cases under title 10 U.S.C. section 1089, medical personnel shall be required to:
(1) Promptly forward all process served upon them or attested true copies thereof to the appropriate official designated by the Secretary of the Military Department concerned;
(2) Furnish such other information and documents as the Attorney General may request; and
(3) Comply with the directions of the Attorney General relative to the final disposition of a claim for damages.
(b) The procedures set forth in title 10 U.S.C. section 2733 and regulations issued pursuant thereto shall be utilized in determining costs, settlements, or judgments under title 10 U.S.C. section 1089(f).
5 U.S.C. 301, Pub. L. 92-255, 91-616, 92-129, and 91-513.
(a) This part states the DoD alcohol and drug abuse prevention policy, and implements the standards contained in
(b) In addition, this part establishes policy concerning drug abuse paraphernalia.
The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies. The term “Military Services” includes the Army, Navy, Air Force, and Marine Corps.
The following definitions are for operational use within the Department of Defense. They do not change definitions in statutory provisions and those regulations and directives that are concerned with determination of misconduct and criminal or civil responsibilities for persons’ acts or omissions.
(a)
(b)
(c)
(1)
(2)
(d)
(a) It is the goal of the Department of Defense to be free of the effects of alcohol and drug abuse; of the possession of and trafficking in illicit drugs by military and civilian members of the Department of Defense; and of the possession, use, sale, or promotion of drug abuse paraphernalia. Alcohol and drug abuse is incompatible with the maintenance of high standards of performance, military discipline, and readiness. Therefore, it is the policy of the Department of Defense to:
(1) Assess the alcohol and drug abuse and drug trafficking situation in or influencing the Department of Defense.
(2) Not induct persons into the Military Services who are alcohol or drug dependent and not hire persons who are alcohol or drug dependent if that dependency impairs job performance.
(3) Deter and detect alcohol and drug abuse within the Armed Forces and defense community and drug trafficking on installations and facilities under the control of the Department of Defense.
(4) Provide continuing education and training to commanders, supervisors, program personnel, and other military members and civilian employees and their families concerning this policy and effective measures to alleviate problems associated with alcohol and drug abuse.
(5) Treat or counsel alcohol and drug abusers and rehabilitate the maximum feasible number of them.
(6) Discipline and/or discharge drug traffickers and those alcohol and drug
(7) Work in concert with national alcohol and drug abuse prevention programs, maintaining appropriate relationships with governmental and nongovernmental agencies.
(8) Prohibit members of the Armed Forces, and DoD civilians while on the job, to possess, sell, or use drug abuse paraphernalia.
(9) Prohibit the possession or sale of drug abuse paraphernalia by DoD resale outlets to include military exchanges, open messes, and commissaries, and by private organizations and concessions located on DoD installations.
(b) The Department of Defense encourages DoD Components to use, as guidance and as a legal background in addressing paraphernalia issues, the Model Drug Paraphernalia Act prepared by the Drug Enforcement Administration, at the request of the President (Model Drug Paraphernalia Act, Drug Enforcement, March 1980, Volume 7, No. 1).
(c) Programs and standards of care promulgated in execution of this policy for military personnel shall be in compliance with Pub. L. 92-129.
(d) Programs and standards of care promulgated in execution of this policy for civilian employees shall be in compliance with Pub. L. 92-255, Pub. L. 91-616, and FPM Supplement 792-2.
(a) The
(1) In coordination with the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) (ASD(MRA&L)), develop and promulgate policies designed to ensure that the DoD alcohol and drug abuse prevention programs reach military members, their families, DoD civilian employees and, to the extent feasible, their families. Programs and standards of care for family members shall be consistent with those for the military and civilian components, with accepted practice in the alcohol and drug abuse area, and with applicable laws and jurisdictional limitations.
(2) In coordination with the ASD(MRA&L), issue DoD instructions to implement the DoD alcohol and drug abuse prevention program, with specific attention to the functional areas of assessment, deterrence and detection, treatment and rehabilitation, and education and training.
(3) Act as focal point for the Department of Defense for interagency and nongovernmental coordination of national alcohol and drug abuse prevention programs.
(4) Evaluate and report upon the effectiveness and efficiency of the DoD alcohol and drug abuse prevention program.
(5) Establish a DoD Alcohol and Drug Abuse Advisory Committee to advise on policy and program matters. The Committee shall include representatives of each Military Service, designated by the Military Department concerned, and such other advisors as the ASD(HA), or designated representative, considers appropriate. The Committee charter shall be approved by the ASD(HA).
(b) The
(c) In addition, the
10 U.S.C. 131.
This part:
(a) Establishes DoD policy regarding drunk and drugged driving by DoD personnel (hereafter referred to as “intoxicated driving”).
(b) Assigns responsibility for and explains DoD policy and procedures on the establishment and operation of the DoD Intoxicated Driving Prevention Program, which is designed to address the problem of and increase the awareness and attention given to intoxicated driving by DoD personnel.
(c) Establishes the DoD Intoxicated Driving Prevention Task Force (DIDPTF).
This part applies to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to collectively as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
(a) Intoxicated driving is incompatible with the maintenance of high standards of performance, military discipline, DoD personnel reliability, and readiness of military units and supporting activities. It is DoD policy to reduce significantly the incidence of intoxicated driving within the Department of Defense through a coordinated program of education, indentification, law enforcement, and treatment. Specifically, the goal of the DoD Intoxicated Driving Prevention Program is to reduce the number of fatalities and injuries suffered by DoD personnel and the amount of property damage that result from intoxicated driving. Persons who engage in intoxicated driving, regardless of the geographic location of the incident, have demonstrated a serious disregard for the safety of themselves and others. It is appropriate for military commanders, in the exercise of their inherent authority, to protect the mission of an installation and the safety of persons and property therein to restrict driving privileges of persons who engage in such actions.
(b) The Department of Defense shall participate in the national effort to prevent intoxicated driving by maintaining appropriate relationships with other governmental agencies and private organizations and shall cooperate with responsible civil authorities consistent with statutory and regulatory constraints in detecting, identifying, apprehending, prosecuting, educating, and counseling intoxicated drivers and in reporting cases as required by State laws and applicable Status of Forces Agreements.
(a)
(2) Other DoD Components shall provide similar instruction in conjunction with the training and education requirements of part 62a of this title.
(3) DoD Components shall cooperate, to the extent feasible and permitted by law and regulation, with community leaders and existing grassroots organizations that are working to combat intoxicated driving, in planning and implementing local education efforts.
(b)
(1) Military personnel and their family members, retired members of the Military Services, DoD civilian personnel, and others with installation driving privileges may have those driving privileges suspended, regardless of the geographic location of an intoxicated driving incident.
(i) Suspension is authorized for non-DoD civilians only with respect to incidents occurring on the military installation or in areas subject to military traffic supervision.
(ii) With respect to DoD civilian personnel covered by a negotiated agreement, a suspension under this paragraph may be reviewed only to the extent required by the negotiated agreement applicable to the affected employee. Such matters mandatorily are excluded from DoD Component administrative grievance procedures. A grievance under such a procedure will not delay imposition of a preliminary or 1-year suspension of driving privileges.
(iii) A notice of suspension will not become effective until 24 hours after the incident for which a suspension is imposed. However, this provision does not preclude appropriate action to prevent an intoxicated person from operating a motor vehicle, nor does it affect the validity of an earlier suspension imposed on the same individual.
(iv) A hearing authorized under paragraph (b) (2), (3), or (5) of this section, shall be conducted by the installation commander. The power to conduct a hearing and make a decision may be delegated only to an official whose primary duties are not in the field of law enforcement. At a hearing under this paragraph, the individual shall have the right to present evidence and witnesses at his or her own expense. The individual may be represented by counsel at his or her own expense. DoD civilian personnel may have a personal representative present in accordance with applicable laws and regulations.
(2)
(ii) The individual shall be notified in writing of the preliminary suspension. The notice shall include the arrest report or other documentation and shall inform the individual that a 1-year suspension can be imposed upon conviction, imposition of nonjudicial punishment, or action by civilian authorities leading to suspension or revocation of the individual's driver's license. The notice shall inform the individual that he or she has the right to submit a request within 5 working days to vacate the preliminary suspension and that failure to request such a hearing will result in continuation of the preliminary suspension.
(iii) If a hearing has not been requested within 5 working days, the preliminary suspension shall be continued until there has been a criminal, nonjudicial, or administrative disposition.
(iv) If the individual requests a hearing to vacate the preliminary suspension, it shall be held within 10 working days of the request. If the official conducting the hearing determines that the apprehension was based upon probable cause, the preliminary suspension shall be continued; if not, it shall be vacated. Such determinations are solely for purposes of acting on the preliminary suspension and are without prejudice to the rights of any party in a subsequent criminal or administrative proceeding involving the same or a related incident.
(v) If the individual is acquitted, the charges are dismissed, or there is an
(vi) If there is a conviction, nonjudicial punishment, or civil suspension or revocation of driving privileges, the suspension shall be continued for 1 year from the date of the original preliminary suspension. Such action shall be taken only on the basis of an official report.
(3)
(ii) The individual shall be notified of the preliminary suspension in writing. The notice shall include the arrest report or other documentation and shall inform the individual that a 1-year suspension can be imposed after a hearing under paragraph (b)(3)(iv) of this section. The notice also shall inform the individual that he or she has the right within 5 working days to submit a request for a hearing to validate the preliminary suspension and that the suspension will be for 1 year if a hearing is not requested.
(iii) If a hearing is not requested within 5 working days, the suspension shall be for 1 year.
(iv) If the individual requests a hearing to vacate the preliminary suspension, it shall be held within 10 working days of the request. The hearing shall consider the arrest report or other official documentation, information presented by the individual, and such other information as the hearing officer may deem appropriate. The official conducting the hearing shall consider the following issues: (A) Did the official have reasonable grounds to believe that the person had been operating or was in actual physical control of, a motor vehicle while intoxicated? (B) Was the person lawfully cited or apprehended for an intoxicated driving offense? (C) Was the individual lawfully requested to submit to a BAC test? (D) Did the person refuse to submit to or fail to complete a BAC test required by the law of the jurisdiction in which the test was requested? If, in view of these issues, the test was lawfully requested, the suspension shall be for 1 year, irrespective of the ultimate disposition of the underlying intoxicated driving offense. If not, the preliminary suspension shall be vacated. Such determinations are solely for purposes of acting on the preliminary suspension and are without prejudice to the rights of any party in a subsequent criminal or administrative proceeding involving the same or a related incident.
(4)
(ii) Such action shall be taken only on the basis of an official report.
(iii) The individual shall be notified in writing of the suspension and shall be notified that an exception may be granted only under paragraph (b)(6) of this section.
(iv) The suspension shall be issued by the installation commander. This authority may be delegated only to an official whose primary responsibilities are not in the field of law enforcement.
(5)
(A) The individual shall be notified in writing of the preliminary increase in suspension. The notice shall include the arrest report or other documentation of the violation as well as documentation of the original suspension and shall inform the individual that his or her original suspension can be increased by 2 years after a hearing under paragraph (b)(5)(i)(C) of this section. The notice shall inform the individual that he or she has the right within 5 working days to submit a request for a hearing to vacate the preliminary increase in suspension and
(B) If a hearing has not been requested within 5 working days, the original suspension shall be increased by 2 years.
(C) If the individual requests a hearing to vacate the preliminary suspension, it shall be held within 10 working days of the request. The hearing shall consider the arrest report or other official documentation, information presented by the individual, documentation of the original suspension, and such other information as the hearing officer may deem appropriate. If the official conducting the hearing determines that the allegation of driving in violation of a suspension is supported by a preponderance of the evidence, the original suspension shall be increased by 2 years. If not, the preliminary increase in suspension shall be vacated. Such determinations are without prejudice to the rights of any party in a subsequent criminal or administrative proceeding involving the same or a related incident.
(D) If in a subsequent judicial, nonjudicial, or administrative proceeding, it is determined that the individual did not violate a suspension, the preliminary increase in suspensions shall be vacated.
(ii) For each subsequent determination within a 5-year period that a 1-year suspension is authorized under paragraph (b) (2) through (4) of this section, driving privileges shall be suspended for 2-years. Such period shall be in addition to any suspension perviously imposed. Military personnel shall be prohibited from obtaining or using a U.S. Government Motor Vehicle Operator's Indentification Card, Standard Form (SF) 46, for 6 months for each such incident. A determination whether DoD civilian personnel should be prohibited from obtaining or using an SE 46 shall be made under Federal Personnel Manual chapter 930 and other laws and regulations applicable to civilian personnel. Nothing in this paragraph precludes an installation commander from imposing a prohibition upon obtaining or using an SF 46 for a first offense or for such other reasons as may be authorized under applicable laws and regulations.
(6)
(A) Mission requirements;
(B) Unusual personal or family hardship; or
(C) In the case of a preliminary suspension following lawful apprehension, delays exceeding 90 days in the formal disposition of the allegations insofar as such delays are not attributable to the individual.
(ii) With respect to a person who has no reasonably available alternate means of transportation to officially assigned duties, a limited exception shall be granted for the sole purpose of driving directly to and from such duties. This does not authorize a person to drive on a military installation if the person's driver's license is under suspension or revocation by a State, Federal, or host country civil court or administrative agency. Maximum reliance shall be placed on carpools, public transportation, and reasonably available parking facilities adjacent to the installation before such a limited exception is granted. Nothing in this provision precludes appropriate or other administrative action on the basis of an intoxicated driving incident or driving in violation of a previously imposed suspension.
(iii) Exceptions granted under this paragraph shall be reported in writing to the next official in the chain of command.
(7) Overseas commanders with authority to issue driver's licenses shall establish procedures for suspension of such licenses for intoxicated driving. Such procedures, insofar as the commanders deem practicable, shall be similar to the procedures for suspension of installation driving privileges prescribed in paragraph (b) (1) through (6) of this section.
(8) Persons whose installation driving privileges are suspended for 1 year or more under § 62b.4(b) (2), (3), or (4), above, shall complete an alcohol or
(c)
(d)
(e) The Military Services shall include the intoxicated driving prevention program as an inspection item of special interest for Inspector General or administrative inspections.
(f) The Military Services shall direct installation commanders to assess the availability of drug and alcohol in the vicinity of military installations through their Armed Forces Disciplinary Control Boards or Control Boards of other appropriate Federal agencies. Whenever the availability of alcohol or drugs, or both, at an establishment off-base presents a threat to the discipline, health, and welfare of DoD personnel, such establishments shall be dealt with as prescribed in the “Armed Forces Disciplinary Control Board and Off-Installation Military Enforcement Guidance” (Army Regulation No. 190-24, Marine Corps Order No. 162.2A, BUPERS Inst. 1620.4A, Air Force Regulation No. 125.11, Commandant Instruction No. 1620.13).
(g)
(2) Trial counsel are encouraged to make reasonable efforts to ensure that the victim or the victim's family is provided information about the progress and disposition of cases processed under the UCMJ.
(h) DoD Components with field installations shall establish an awards and recognition program to recognize successful local installation intoxicated driving prevention programs.
(i) Each DoD Component or its supporting agency is encouraged to use, as guidance, “Report on a National Study of Preliminary Breath Test (PBT) and Illegal Per Se Laws” and “Interim Report to the Nation by the Presidential Commission on Drunk Driving.”
(a) The
(1) Develop a coordinated approach to the reduction of intoxicated driving, consistent with this part, recognizing that intoxicated driving prevention programs shall be designed to meet local needs.
(2) Appoint the chair of the DIDPTF.
(3) Monitor Military Service and DoD Component regulations that implement the DoD Intoxicated Driving Prevention Program.
(4) Act as focal point for the Department of Defense for interagency and nongovernmental coordination of national intoxicated driving prevention programs.
(5) Evaluate and report biennially to the Secretary of Defense on the effectiveness and efficiency of the DoD Intoxicated Driving Prevention Program.
(b) The
(1) Ensure the DoD Department Schools system and section VI schools include specific material in the curriculum (grades 7 through 12) on the effects that alcohol and drugs have on the impairment of driving skills.
(2) Ensure that intoxicated driving, accident, mishap, and injury data include:
(i) BAC of drivers in three categories—.01-.04, .05-.09, and .10 and above.
(ii) Time of day and day of the week the mishap or injury occurred.
(iii) Type of vehicle (include MOPEDs with motorcycle data).
(iv) Death and injury data on DoD personnel killed or injured as a result of intoxicated driving, include those who were not intoxicated themselves but were involved in a mishap as a result of intoxicated driving by another party.
(v) Government property damage cost.
(vi) Cost of treatment of injured DoD personnel.
(vii) Pertinent data on military personnel separated or retired as a result of injury or other action taken because of:
(A) Intoxicated driving by the person being separated or retired; or
(B) Intoxicated driving by another person.
(viii) Other chemical substances causing intoxicated driving that contributed to an accident.
(3) Provide an annual report to the Secretary of Defense that assesses the impact of intoxicated driving on the Department of Defense. The report shall include intoxicated driving arrest, apprehension, and conviction data as well as the number of exceptions granted to the mandatory suspension of driving privileges under paragraph (b)(6) of this section.
(4) Establish procedures (when feasible) under which DoD personnel convicted for driving while intoxicated will pay administrative restitution to the government for property damage or medical expenses to the extent permitted by applicable law.
(5) Amend appropriate DoD issuances to include the use of a preliminary or prearrest breath test (PBT) to be used by law enforcement personnel to indicate impairment when the arresting officer has reason to believe the operator of a motor vehicle may be intoxicated. (See “Report on a National Study of Preliminary Breath Test (PBT) and Illegal Per Se Laws”).
(c) The
(a)
(2) The DIDPTF shall consist of representatives of the Military Services’ drug and alcohol programs and law enforcement communities and a representative of the Deputy Assistant Secretary of Defense (Equal Opportunity and Safety Policy), Office of the ASD(MRA&L).
(3) Meetings generally shall be held bimonthly; however, special sessions may be required by the chair.
(b)
(1) Monitor Military Service and DoD Component policy as it applies to the prevention of intoxicated driving.
(2) Review programs and policy developed by other Federal and State agencies and make recommendations of suitable adaptation within the Department of Defense.
(3) Make recommendations to the ASD(HA) and the ASD(MRA&L) on matters pertaining to intoxicated driving.
(a)
(b)
(c)
(d)
(2)
(e)
(f)
(1) Operating a motor vehicle under any intoxication caused by alcohol or drugs in violation of Article 111 of the UCMJ (see paragraphs 190 and 191 of the “Manual for Courts-Martial” or a similar law of the jurisdiction in which the vehicle is being operated.
(2) Operating a motor vehicle with a BAC of .10 or higher on a military installation or in an area where traffic operations are under military supervision.
(3) Operating a motor vehicle with a BAC of .10 or higher in violation of the law of the jurisdiction in which the vehicle is being operated.
(4) Operating a motor vehicle with a BAC of .05 but less than .10 in violation of the law of the jurisdiction in which the vehicle is being operated if the jurisdiction imposes a suspension or revocation solely on the basis of the BAC level.
(g)
This letter is your notification that on
10 U.S.C. 1408.
Under 10 U.S.C. 1408, this part establishes policy and authorizes direct payments to a former spouse of a member from retired pay in response to court-ordered alimony, child support, or division of property.
(a) This part applies to the Office of the Secretary of Defense, the Military Departments, the Coast Guard (under agreement with the Department of Transportation), the Public Health Service (PHS) (under agreement with the Department of Health and Human Services); and the National Oceanic and Atmospheric Administration (NOAA) (under agreement with the Department of Commerce). The term “Uniformed Services,” as used herein, refers to the Army, Navy, Air Force, Marine Corps, Coast Guard, commissioned corps of the PHS, and the commissioned corps of the NOAA.
(b) This part covers members retired from the active and reserve components of the Uniformed Services who are subject to court orders awarding alimony, child support, or division of property.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
It is the policy of the Uniformed Services to honor a former spouse's request for direct payment from a given member's retired pay in enforcement of a court order that provides for a alimony, child support, or division of property, when the terms, conditions, and requirements in this part are satisfied.
(a) The Assistant Secretary of Defense (Comptroller) shall establish policy and procedures, provide guidance, coordinate changes with the Uniformed Services, and monitor the implementation of this part within the Department of Defense.
(b) The Secretaries of the Military Departments and Heads of the other Uniformed Services shall implement this part.
(a)
(2) For establishing eligibility for direct payment under a court order that provides for a division of retired pay as property, a former spouse must have been married to the member for 10 years or more, during which the member performed 10 years or more of creditable service. There is no 10-year marriage requirement for payment of child support, alimony, or both.
(b)
(i) Notice to make direct payment to the former spouse from the member's retired pay.
(ii) A copy of the court order and other accompanying documents certified by an official of the issuing court that provides for payment of child support, alimony, or division of property.
(iii) A statement that the court order has not been amended, superseded, or set aside.
(iv) Sufficient identifying information about the member to enable processing of the application. The identification should give the member's full name, social security number, and Uniformed Service.
(v) The full name, address, and social security number of the former spouse.
(vi) Before payment, the former spouse shall agree personally that any future overpayments are recoverable and subject to involuntary collection from the former spouse or his or her estate.
(vii) As a condition precedent to payment, the former spouse shall agree personally to notify the designated agent promptly if the operative court order upon which payment is based is vacated, modified, or set aside. This shall include notice of the former spouse's remarriage if all or a part of the payment is for alimony or notice of a change in eligibility for child support payments under circumstances of the death, emancipation, adoption, or attainment of majority of a child whose support is provided through direct payment to a former spouse from retired pay.
(2) If the court order is for a division of retired pay as property and it does not state that the former spouse satisfied the eligibility criteria found in paragraph (a)(2) of this section, the former spouse shall furnish sufficient evidence for the designated agent to verify that the requirement was met.
(3) The notification of the designated agent shall be accomplished by certified or registered mail, return receipt requested, or by personal service. Effective service is not accomplished until a complete application providing all information required by this part is received in the office of the designated agent, who shall note the date and time of receipt on the notification document.
(4) Not later than 90 days after effective service, the designated agent shall respond to the former spouse as follows: (i) If the court order will be honored, the former spouse shall be informed of the date that payments tentatively begin; the amount of each payment; the amount of gross retired pay, total deductions, and disposable retired pay (except in cases where full payment of a court-ordered fixed amount will be made); and other relevant information if applicable: or (ii) If the court order will not be honored, the designated agent shall explain in writing
(5) The designated agent for each Uniformed Service is:
(i) Army: Commander, Army Finance and Accounting Center, Attn: FINCL-G, Indianapolis, IN 46249-0160, (317) 542-2155.
(ii) Navy: Director, Navy Family Allowance Activity, Anthony J. Celebrezze Federal Building, Cleveland, OH 44199-2087, (216) 522-5301.
(iii) Air Force: Commander, Air Force Accounting and Finance Center, ATTN: JAL, Denver, CO 80279-5000, (303) 370-7524.
(iv) Marine Corps: Commanding Officer, Marine Corps Finance Center (Code AA), Kansas City, MO 64197-0001, (816) 926-7103.
(v) U.S. Coast Guard, Commanding Officer (L), Pay and Personnel Center, 444 Quincy Street, Topeka, Kansas 66683-3591; (913) 295-2516.
(vi) Office of General Counsel, Department of Health and Human Services, room 5362, 330 Independence Avenue SW., Washington, DC 20201, (202) 475-0153.
(vii) U.S. Coast Guard, Commanding Officer (L), Pay and Personnel Center, 444 Quincy Street, Topeka, Kansas 66683-3591; (913) 295-2516.
(6) U.S. Attorneys are not designated agents authorized to receive court orders or garnishments under this part.
(c)
(2) The court order must be legal in form and must include nothing on its face that provides reasonable notice that it is issued without authority of law. It is required that the court order be authenticated or certified within 90 days immediately preceding its service on the designated agent.
(3) The court order must be a final decree.
(4) If the court order was issued while the member was on active duty and the member was not represented in court, the court order or other court documents must certify that the rights of the member under the “Soldiers’ and Sailors’ Civil Relief Act of 1940” (50 U.S.C. Appendix 501-591) were complied with.
(5) Sufficient information must be contained in the court order to identify the member.
(6) For court orders that provide for the division of retired pay as property, the following conditions apply:
(i) The court must have jurisdiction over the member by reason of (A) the member's residence, other than because of military assignment in the territorial jurisdiction of the court; (B) the member's domicle in the territorial jurisdiction of the court; or (C) the member's consent to the jurisdiction of the court.
(ii) The treatment of retired pay as property solely of the member or as property of the member and the former spouse of that member must be in accordance with the law of the jurisdiction of such court.
(iii) The court order or other accompanying documents served with the court order must show the former spouse was married to the member 10 years or more, during which the member performed at least 10 years of creditable service.
(7) Court orders awarding a division of retired pay as property that were issued before June 26, 1981, shall be honored if they otherwise satisfy the requirements and conditions specified in this part. A modification on or after June 26, 1981, of a court order that originally awarded a division of retired pay as property before June 26, 1981, may be honored for subsequent court-ordered changes made for clarification, such as the interpretation of a computation formula in the original court order. For court orders issued before June 26, 1981, subsequent amendments after that date to provide for a division of retired pay as property are unenforceable under this part. If the court order awarding a division of retired pay as property is issued on or after June 26, 1981, subsequent modifications of that court order shall be honored if they otherwise satisfy the requirements and conditions specified in this part.
(8) In the case of a division of property, the court order must provide specifically for payment of a fixed amount expressed in U.S. dollars or payment as
(d)
(2) The designated agents authorized to receive service of process of garnishment orders under this part shall be those listed in § 63.6(b)(5) of this part.
(3) Garnishment orders under this part for enforcement of a division of property other than retired pay shall be processed in accordance with 5 CFR part 581 to the extent that the procedures are consistent with this part.
(e)
(i) 50 percent of the disposable retired pay for all court orders and garnishment actions paid under this part.
(ii) 65 percent of the disposable retired pay for all court orders and garnishments paid under this part and garnishments under 42 U.S.C. 659.
(2) Disposable retired pay is the gross pay entitlement, including renounced pay, less authorized deductions. Disposable retired pay does not include annuitant payments under 10 U.S.C. chapter 73. For court orders issued on or before November 14, 1986 (or amendments thereto), disposable retired does not include retired pay of a member retired for disability under 10 U.S.C. chapter 61. The authorized deductions are:
(i) Amounts owed to the United States.
(ii) Fines and forfeitures ordered by a court-martial.
(iii) Amounts waived in order to receive compensation under title 5 or 38 of the U.S. Code.
(iv) Federal employment taxes and income taxes withheld to the extent that the amount deducted is consistent with the member's tax liability, including amounts for supplemental withholding under 26 U.S.C. 3402(i), when the member presents evidence to the satisfaction of the designated agent that supports such withholding. State employment taxes and income taxes when the member makes a voluntary request for such withholding from retired pay and the Uniformed Services have entered into an agreement with the State concerned for withholding from retired pay.
(v) Premiums paid as a result of a election under 10 U.S.C. chapter 73 to provide an annuity to a spouse or former spouse to whom payment of a portion of such member's retired pay is being made pursuant to a court order under this part.
(vi) The amount of retired pay of the member under 10 U.S.C. chapter 61 computed using the percentage of the member's disability on the date, when the member was retired (or the date on which the member's name was placed on the temporary disability retirement list), for court orders issued after November 14, 1986.
(vii) Other amounts required by law to be deducted.
(f)
(2) This notice shall include:
(i) A copy of the court order and accompanying documentation.
(ii) An explanation of the limitations placed on the direct payment to a former spouse from a member's retired pay.
(iii) A request that the member submit notification to the designated agent if the court order has been
(iv) The amount or percentage that will be deducted if the member fails to respond to the notification as prescribed by this part.
(v) The effective date that direct payments to the former spouse tentatively will begin.
(vi) Notice that the member's failure to respond within 30 days from the date that the notice is mailed may result in the payment of retired pay as provided in the notification.
(vii) That if the member submits information in response to this notification, the member thereby consents to the disclosure of such information to the former spouse or the former spouse's agent.
(3) If the member responds to the notification, the designated agent shall consider the response and will not honor the court order whenever it is shown that the court order is defective, or the court order is modified, superseded, or set aside.
(g)
(2) An officer or employee of the United States, who under this part has the duty to respond to interrogatories, will not be subject under any law to any disciplinary action or civil or criminal liability or penalty for, or because of, any disclosure of information made by him or her in carrying out any of the duties that directly or indirectly pertain to answering such interrogatories.
(3) If a court order on its face appears to conform to the laws of the jurisdiction from which it was issued, the designated agent will not be required to ascertain whether the court has obtained personal jurisdiction over the member.
(4) Whenever a designated agent is effectively served with interrogatories concerning implementation of this part, the designated agent shall respond to such interrogatories within 30 calendar days of receipt or within such longer period as may be prescribed by applicable State law.
(h)
(2) Payments shall conform with the normal pay and disbursement cycle for retired pay. Payments may be expressed as fixed in amount or as a percentage or fraction of disposable retired pay. With regard to payments based on a percentage or fraction of disposable retired pay, the amount will change in direct proportion and at the effective date of future cost-of-living adjustments that are authorized, unless the court order directs otherwise.
(3) Payments terminate on the date of the death of the member, death of the former spouse, or as stated in the applicable court order, whichever occurs first. Payments shall be terminated or shall be reduced upon the occurrence of a condition that requires termination or reduction under applicable State law.
(4) When several court orders are served with regard to a member's retired pay, payment shall be satisfied on a first-come, first-served basis within the amount limitations prescribed in paragraph (e) of this section.
(5) If conflicting court orders are served on the designated agent that direct that different amounts be paid during a month to the same former spouse from a given member's retired pay, the designated agent shall authorize payment on the court order directing payment of the least amount. The difference in amounts on conflicting court orders shall be retained by the designated agent pending resolution by the court that has jurisdiction or by agreement of the parties. The amount retained shall be paid as provided in a subsequent court order or agreement. The total of all payments plus all moneys retained under this paragraph shall
(6) The designated agent shall comply with a stay of execution issued by a court of competent jurisdiction and shall suspend payment of disputed amounts pending resolution of the issue.
(7) When service is made and the identified member is found not to be currently entitled to payments the designated agent shall advise the former spouse that no payments are due from or payable by the Uniformed Service to the named individual. If the member is on active duty when service is accomplished, the designated agent shall retain the application until the member's retirement. In such case, payments to the former spouse, if otherwise proper, shall begin not later than 90 days from the date the member first becomes entitled to receive retired pay. If the member becomes entitled to receive retired pay more than 90 days after first being notified under paragraph (f) of this section, the notification procedures prescribed by that section shall be repeated by the designated agent.
(8) In moneys are only temporarily exhausted or otherwise unavailable, the former spouse shall be fully advised of the reason or reasons why and for how long the moneys will be unavailable. Service shall be retained by the designated agent and payments to the former spouse, if otherwise proper, shall begin not later than 90 days from the date the member becomes entitled to receive retired pay. If the member becomes entitled to receive retired pay more than 90 days after first being notified under paragraph (f) of this section, the notification procedures prescribed by that section shall be repeated by the designated agent.
(9) The order of precedence for disbursement of retired pay when the gross amount is not sufficient to permit all authorized deductions and collections shall follow volume I, part 3, section 7040, “Order of Payment,” in the Treasury Fiscal Requirements Manual for Guidance of Departments and Agencies. Court-ordered payments to a former spouse from retired pay shall be enforced over voluntary deductions and allotments.
(10) Payments made shall be prospective in terms of the amount stated in the court order. Arrearages will not be considered in determining the amount payable from retired pay.
(11) No right, title, or interest that can be sold, assigned, transferred, or otherwise disposed of, including by inheritance, is created under this part.
(12) At the request of the designated agent, the former spouse may be required to provide a certification of eligibility that attests in writing to the former spouse's continued eligibility and that includes a notice of change in status or circumstances that affect eligibility. After notice to the former spouse, payments to the former spouse may be suspended, or terminated, when the former spouse fails to comply, or refuses to comply, with the certification requirement.
(i)
10 U.S.C. 672(a), 675, 688, and 973.
This part implements sections 672(a), 675, 688, and 973 of title 10, United States Code, by prescribing uniform policy and procedures governing the peacetime management of retired military personnel, both Regular and Reserve, in preparation for their use during a mobilization.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD); the Military Departments (including their National Guard and Reserve components); the Chairman, Joint Chiefs of Staff (Joint Staff); the Coast Guard and its Reserve component (by agreement with the Department of Transportation (DoT)); and the Defense Agencies (hereafter referred to collectively as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, Marine Corps, and Coast Guard (by agreement with the DoT).
(b) By agreement with non-DoD organizations that have DoD-related missions, includes organizations with Defense-related missions, such as the Federal Emergency Management Agency (FEMA), the Selective Service System (SSS), and the organizations with North Atlantic Treaty Organization (NATO)-related missions.
(a)
(b)
(c)
(2)
(3)
(d)
(2) Reserve officers and enlisted members eligible for retirement under one of the provisions of law in definition (d)(1) who have not reached age 60 and who have not elected discharge or are not members of the Ready Reserve or Standby Reserve (including members of the Inactive Standby Reserve).
(3) Members of the Fleet Reserve and Fleet Marine Corps Reserve under 10 U.S.C. 6330.
It is DoD policy that military retirees shall be ordered to active duty (as needed) to fill personnel shortfalls due to mobilization or other emergencies, as described in 10 U.S.C. 672 and 688. DoD Components and the Coast Guard shall plan to use as many retirees, as necessary, to meet national security needs. Military retirees may be used as follows:
(a) To fill shortages in, or to augment, deployed or deploying units.
(b) To fill shortages in, or to augment, supporting units and activities in the Continental United States (CONUS), Alaska, and Hawaii.
(c) To release other military members for deployment overseas.
(d) Subject to the limitations of 10 U.S.C. 973, to fill Federal civilian workforce shortages within the Department of Defense, the Coast Guard, or other Government entities.
(e) To meet national security needs in organizations outside the Department of Defense with Defense-related missions.
(a) The
(1) Validate positions identified by Defense and non-Defense Agencies as suitable for fill by military retirees.
(2) Establish priorities for fill once all requirements are identified.
(3) Provide redistribution guidance.
(b) The
(c) The
(d) The
(1) Prepare plans and establish procedures for mobilization of military retirees in conformance with this part.
(2) Determine the extent of military retiree mobilization requirements based on existing inventories and inventory projections for mobilization of qualified Reservists in an active status in the Ready Reserve, the Inactive National Guard, or the Standby Reserve.
(3) Develop procedures for identifying categories I and II retirees and conduct screening of retirees using this part for guidance.
(4) Maintain personnel records and other necessary records for military retirees, including date of birth, date of retirement, current address, and documentation of military qualifications. Maintain records for categories I and II military retirees, including retirees who are key employees and their availability for mobilization, civilian employment, and physical condition. Data shall be maintained on retired Reserve members in accordance with 32 CFR part 114.
(5) Advise military retirees of their duty to provide the Military Services with accurate mailing addresses and any changes in civilian employment, military qualifications, availability for service, and physical condition.
(6) Preassign retired members, when determined appropriate and as necessary.
(7) Determine refresher training requirements in accordance with the criteria established in § 64.6(a)(8).
(a)
(2)
(3)
(i) Use by their own Service.
(ii) Use by another Service or a Defense Agency.
(iii) Use by a civilian Federal Department or Agency.
(iv) Any other approved use.
(4)
(5)
(6)
(7)
(8)
(9)
(ii)
(iii)
(iv)
(v)
(A) Can the position be filled in a reasonable time after mobilization?
(B) Does the position require technical or managerial skills that are possessed uniquely by the incumbent employee?
(C) Is the position associated directly with Defense mobilization?
(D) Does the position include a mobilization or relocation assignment in an Agency having emergency functions, as designated by E.O. 12656?
(E) Is the position directly associated with industrial or manpower mobilization, as designated in E.O. 10480?
(F) Are there other factors related to national defense, health, or safety that would make the incumbent of the position unavailable for mobilization?
(vi)
(b)
(2)
(ii)
(A) War or national emergency has been declared by Congress.
(B) The Secretary of the Military Department concerned, with the approval of the Secretary of Defense, determines there are not enough qualified Reserves in an Active status or in the Inactive National Guard, under 10 U.S.C. 672(a).
(3)
(c)
(2)
(ii)
(3)
This is to certify that the employee identified below is essential to the nation's defense efforts in (his or her) civilian job and cannot be mobilized with the Military Services in an emergency for the following reasons:
Therefore, I request that (he or she) be exempted from recall to active duty in a mobilization or national emergency and that you advise me accordingly when that action has been completed.
10 U.S.C. 532, 591, and EO 9397, 3 CFR, 1943-1948 Comp., p. 283.
This part: (a) Revises 32 CFR part 65 to update policy, procedures, and responsibilities.
(b) Establishes the educational and ecclesiastical requirements for appointment of military chaplains.
(c) Establishes criteria and procedures under which faith groups may become ecclesiastical endorsing agents.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments (including their National Guard and Reserve components), and the Joint Staff (hereafter referred to collectively as “DOD Components”). The term“Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
It is DOD policy that professionally qualified chaplains shall be appointed to provide for the free exercise of religion for all members of the Military
(a) The
(b) The
(a)
(1) To be considered for appointment and to serve as a chaplain, clergy shall be certified by a DOD-recognized ecclesiastical endorsing agent. The ecclesiastical certification shall attest that the applicant:
(i) Is a fully qualified member of the clergy of a religious faith group represented by the certifying Agency.
(ii) Is qualified to provide directly or indirectly for the free exercise of religion by all members of the Military Services, their dependents, and other authorized persons.
(2) The required ecclesiastical certification shall be made on DD Form 2088, “Ecclesiastical Endorsing Agent Certification.” If the applicant has completed a number of years of active professional experience after the completion of educational requirements for the chaplaincy, the certifying agent shall so state on DD Form 2088.
(3) Chaplains who fail to maintain their ecclesiastical certification shall be processed in accordance with DOD Directive 1332.31.
(b)
(i) Be organized exclusively or substantially to provide religious services to a lay constituency.
(ii) Be able to exercise ecclesiastical authority to grant or withdraw ecclesiastical certification.
(iii) Be able to provide continuing validation of ecclesiastical certification.
(iv) Be able to certify clergy who are qualified to provide directly or indirectly for the free exercise of religion by all members of the Military Services, their dependents, and other authorized persons.
(v) Abide by the applicable DOD regulations and policies.
(2) Through the action of the AFCB, the Department of Defense may revoke its recognition of an ecclesiastical endorsing agent that fails to continue to meet the criteria of paragraphs (b)(1) (i) through (v) of this section. The AFCB, before revoking the recognition of an ecclesiastical endorsing agent, shall provide written notice to the Agency concerned stating the reasons for the proposed revocation and providing a reasonable opportunity for the Agency to reply in writing to the AFCB.
(3) Religious faith groups recognized by the Department of Defense as ecclesiastical endorsing agents may authorize third parties to act on their behalf for accomplishing the administrative procedures in accession of chaplains for the Military Services, and of maintaining liaison with chaplains of the recognized faith group. Each such authorization shall be made in writing by an official authorized by the faith group to
(c)
(i) Possess a baccalaureate degree of not less than 120 semester hours from a college that is listed in the “Education Directory, Colleges and Universities”
(ii) Have completed 3 resident years of graduate professional study in theology or related subjects (normally validated by the possession of a Master of Divinity degree, an equivalent degree, or 90 semester hours) that lead to ecclesiastical certification as a member of the clergy fully qualified to perform the ministering functions of a chaplain.
(2) The applicant shall complete the graduate professional study referred to in § 65.5(c)(1)(ii), at a graduate school listed in the Education Directory, Colleges and Universities; an accredited school listed in the “Directory, ATS Bulletin, Part 4”;
(d)
10 U.S.C. 12205.
This part provides guidance for implementing policy, assigns responsibilities, and prescribes under 10 U.S.C. 12205 for identifying criteria for determining educational institutions that award baccalaureate degrees which satisfy the educational requirement for appointment of officers to a grade above First Lieutenant in the Army Reserve, Air Force Reserve, and Marine Corps Reserve, or Lieutenant (Junior Grade) in the Naval Reserve, or for officers to be federally recognized in a grade level above First Lieutenant as a member of the Army National Guard or Air National Guard.
This part applies to the Office of the Secretary of Defense, and the Military Departments; the Chairman of the Joint Chiefs or Staff; and the Defense Agencies referred to collectively in this part as the “DoD Components”). The term “Military Departments,” as used in this part, refers to the Departments of the Army, the Navy, and the Air Force. The term “Secretary concerned” refers to the Secretaries of the Military Departments. The term “Military Services” refers to the Army, the Navy, the Air Force, the Marine Corps. The term “Reserve components” refers to the Army Reserve, Army National Guard of the United States, Air Force Reserve, Air National Guard of the United States, Naval Reserve, Marine Corps Reserve.
(a) It is DoD policy under 10 U.S.C. 12205 to require Reserve component officers to have at least a baccalaureate degree from a qualifying educational institution before appointment to a grade above First Lieutenant in the Army Reserve, Air Force Reserve or Marine Corps Reserve, or Lieutenant (Junior Grade) in the Naval Reserve, or for officers to be federally recognized in a grade above First Lieutenant as a member of the Army National Guard or Air National Guard.
(b) Exempt from this policy is any officer who was:
(1) Appointed to or recognized in a higher grade for service in a health profession for which a baccalaureate degree is not a condition of original appointment or assignment.
(2) Appointed in the Naval Reserve or Marine Corps Reserve as a limited duty officer.
(3) Appointed in the Naval Reserve for service under the Naval Aviation Cadet (NAVCAD) program or the Seaman to Admiral program.
(4) Appointed to or recognized in a higher grade if appointed to, or federally recognized in, the grade of captain or, in the case of the Navy, lieutenant before October 1, 1995.
(5) Recognized in the grade of captain or major in the Alaska Army National Guard, who resides permanently at a location in Alaska that is more than 50 miles from each of the cities of Anchorage, Fairbanks, and Juneau, Alaska, by paved road, and who is serving in a Scout unit or a Scout support unit.
(c) The Department of Defense will designate an unaccredited educational
(a) The Assistant Secretary of Defense for Reserve Affairs, under the Under Secretary of Defense for Personnel and Readiness, shall:
(1) Establish procedures by which an unaccredited educational institution can apply for DoD designation as a qualifying educational institution.
(2) Publish in the
(3) Annually, provide to the Secretaries of the Military Departments a list of those unaccredited educational institutions that have been approved by the Department of Defense as a qualifying educational institution. This list shall include the year or years for which unaccredited educational institutions are designed as qualifying educational institutions.
(b) The Secretaries of the Military Departments shall establish procedures to ensure that after September 30, 1995, those Reserve component officers selected for appointment to a grade above First Lieutenant in the Army Reserve, Air Force Reserve, or Marine Corps Reserve, or Lieutenant (Junior Grade) in the Naval Reserve, or for officers to be federally recognized in a grade above First Lieutenant as a member of the Army National Guard or Air National Guard, who are required to hold a baccalaureate degree, were awarded a baccalaureate degree from a qualifying educational institution before appointment to the next higher grade. For a degree from an unaccredited educational institution that has been recognized as qualifying educational institution by the Department of Defense to satisfy the educational requirements of 10 U.S.C. 12205, the degree must not have been awarded more than 8 years before the date the officer is to be appointed, or federally recognized, in the grade of Captain in the Army Reserve, Army National Guard, Air Force Reserve, Air National Guard, or Marine Corps Reserve, or in the grade of Lieutenant in the Naval Reserve.
(a) An unaccredited educational institution may obtain designation as a qualifying educational institution for a specific Reserve component officer who graduated from that educational institution by providing certification from registrars at three accredited educational institutions that maintain ROTC programs that their educational institutions would accept at least 90 percent of the credit hours earned by that officer at the unaccredited educational institution, as of the year of graduation.
(b) For an unaccredited educational institution to be designated as a qualifying educational institution for a specific year, that educational institution must provide the Office of the Assistant Secretary of Defense for Reserve Affairs certification from the registrars at three different accredited educational institutions that maintain ROTC programs listing the major field(s) of study in which that educational institution would accept at least 90 percent of the credit hours earned by a student who was awarded a baccalaureate degree in that major field of study at the unaccredited educational institution.
(c) For an unaccredited educational institution to be considered for designation as a qualifying educational institution, the unaccredited educational institution must submit the required documentation no later than January 1 of the year for which the unaccredited educational institution seeks to be designated a qualifying educational institution.
(d) The required documentation must be sent to the following address: Office of the Assistant Secretary of Defense for Reserve Affairs, Attn: DASD (M&P), 1500 Defense Pentagon, Washington, DC 20301-1500.
(e) Applications containing the required documentation may also be submitted at any time from unaccredited educational institutions requesting designation as a qualifying educational institution for prior school years.
20 U.S.C. 241.
(a) Public Law 97-35, “Omnibus Budget Reconciliation Act of 1981,” section 505(c), August 13, 1981 (20 U.S.C. 241 note).
(b) Public Law 81-874 dated September 30, 1950, section 6, as amended (20 U.S.C. 241).
(c) Public Law 95-561, “Defense Dependents’ Education Act of 1978,” sections 1009 and 1031(a), November 1, 1978 (20 U.S.C. 241).
(d) Memorandum of Understanding Between The Department of Defense and The Department of Education, August 16, 1982.
(e)
(f) Assistant Secretary of Defense (Force Management & Personnel) Memorandum, “Education of Handicapped Students in Section 6 Schools Operated by the Department of Defense,” December 10, 1986.
(g) Public Law 94-142, “Education for All Handicapped Children Act of 1975,” as amended (20 U.S.C. 1401
(h) DoD Directive 1020.1, “Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of Defense,” March 31, 1982.
(i) DoD 7220.9-M, “Department of Defense Accounting Manual,” October 1983, authorized by DoD Instruction 7220.9, October 22, 1981.
(j) DoD Directive 7600.6, “Audit of Nonappropriated Funds and Related Activities,” January 4, 1974.
(k) DoD Directive 5500.7, “Standards of Conduct,” January 15, 1977.
This part:
(a) Establishes policies and prescribes procedures for the Department of Defense (DoD) to make arrangements (as defined in § 68.5) for the provision of free public education to eligible dependent children as authorized by § 68.1 (a), (b), and (c).
(b) Implements § 68.1 (a), (b), (d), and (e).
This part applies to:
(a) The Office of the Secretary of Defense (OSD), the Military Departments, and the Defense Agencies.
(b) The schools operated by DoD within the Continental United States (CONUS), Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa, the Northern Mariana lslands, and the Virgin Islands.
(a) In conformity with § 68.1 (a), (b), and (c), it is DoD policy that dependent children of U.S. military personnel and federally employed civilian personnel residing on Federal property be educated, whenever suitable, in schools operated and controlled by local public school systems.
(b) When it is not suitable for the children of U.S. military personnel and federally employed civilian personnel to0attend a locally operated public school, the Secretary of Defense, or designee, shall make arrangements for the free public education of such children. These arrangements may include the establishment of schools within the United States and specified possessions.
(c) The arrangements for such free public education shall be made by the Secretary of Defense, or designee, either with a local educational agency, or with the Head of a Federal Department or Agency, whichever in the judgment of the Secretary, or designee, appears to be more applicable. If such an arrangement is made with the Head of a Federal Department or Agency, either it must administer the property on which the children to be educated
(d) Section 6 School Arrangements are required, to the maximum extent practicable, to provide educational programs comparable to those being provided by local public educational agencies in comparable communities in the State where the Section 6 School Arrangement is located. If the Section 6 School Arrangement is outside of CONUS, Alaska, or Hawaii, it shall provide, to the maximum extent practicable, educational programs that are comparable to the free public education provided by the District of Columbia.
(e) Section 6 School Arrangements operated by DoD under 68.1 (a)l (b), and (d) shall comply, except as provided in this paragraph, with § 68.1(g). lf the State or other jurisdiction on which a Section 6 School Arrangement's educational comparability is based has adopted a “State plan” for the implementation of § 68.1(g) that Section 6 School Arrangement shall provide its handicapped students a free appropriate public education, as defined in § 68.1(g). That education, except as follows in this paragraph, is consistent with such State plan. To satisfy this responsibility, Section 6 School Arrangements shall conform to the substantive and procedural provisions of § 68.1(g), except for those relating to impartial due process hearings in section 1415 of § 68.1(g). The procedures of such Section 6 School Arrangements for the identification, assessment, and programming of handicapped students in special education and related services must conform to the comparable State's regulatory guidelines. Complaints with respect to the identification, evaluation or educational placement of, or the free appropriate public education provided to, students in such a Section 6 School Arrangement who are or may be handicapped shall be investigated under enclosure 5 to DoD Directive 1020.1
(f) After consultation with the Military Departments, funds shall be made available for the operation and maintenance of Section 6 School Arrangements, on either a direct or reimbursable basis, to the comptroller at the respective military installation. These funds shall remain separate and distinct from the funds of the individual Military Services.
(g) Attendance in Section 6 School and Special Arrangements within CONUS, Alaska, and Hawaii is limited to eligible dependent children under § 68.1(b). Guidance, consistent with § 68.1 (b) and (c) for student eligibility for Section 6 School Arrangements located outside of CONUS, Alaska, and Hawaii shall be established by the Military Department concerned after coordination and approval by the General Counsel of the Department of Defense, or designee, and the Assistant Secretary of Defense (Force Management and Personnel), or designee.
(h) Where a member of the Armed Forces is transferred or retires and the member's family moves after the start of the school year from on-base (post) housing, the member's children shall be permitted to continue in attendance at the Section 6 School Arrangement for the remainder of the school year during which the transfer or retirement occurred, if the child is residing with a parent or legal guardian or another person acting in loco parentis.
(i) Where a member of the Armed Forces is assigned to an installation on which there is a Section 6 School Arrangement and is assigned on-base (post) family housing that is expected to be available for occupancy and to be occupied within 90 school days from
(a)
(b)
(a) The
(1) Ensure the development of policies and procedures for the operation, management, budgeting (in accordance with guidance provided by the Assistant Secretary of Defense (Comptroller) (ASD(C)), construction, and financing of Section 6 Schools and for Section 6 Special Arrangements.
(2) Ensure that arrangements shall be made for the free public education of eligible dependent children in CONUS, Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa, the Northern Mariana Islands, and the Virgin Islands, under § 68.1 (a), (b), and (c).
(3) Ensure the establishment of elected school boards in Section 6 School Arrangements operating under § 68.1 (a) and (b).
(4) Ensure that the free public education being provided is, to the maximum extent practicable, of the kind and quality as that being provided by comparable public school districts in the State in which the Section 6 School Arrangement or Section 6 Special Arrangement is located or, if outside of CONUS, Alaska, and Hawaii, as that being provided by the District of Columbia public schools.
(5) Ensure the establishment of audit procedures for reviewing funding of Section 6 School Arrangements and Section 6 Special Arrangements under § 68.1 (a), (b), and (c).
(6) Ensure timely and accurate preparation of budget execution reports and full compliance with accounting requirements in accordance with DoD 7220.9-M
(7) Approve guidance for student eligibility established by a Military Department for Section 6 School Arrangements located outside of CONUS, Alaska, and Hawaii.
(b) The
(1) Approve guidance established by a Military Department for student eligibility for Section 6 School Arrangements located outside of CONUS, Alaska, and Hawaii.
(2) Provide legal advice for the implementation of this part.
(c) The
(1) Comply with this Directive, including policies and procedures promulgated under § 68.6(a)(1), and ensure that Section 6 School Arrangements on their respective installations or under their jurisdiction are maintained and operated under this part.
(2) Submit budgets to the ASD(FM&P) for operation and maintenance, procurement, and military construction for each Section 6 School Arrangement and each Section 6 Special Arrangement under OSD guidelines.
(3) Ensure that there is an elected school board at each Section 6 School Arrangement.
(4) Ensure the establishment of a means for employing personnel and, as required, for programming manpower spaces for such employees, all subject to applicable laws and regulations.
(5) Ensure that each Section 6 School Arrangement has current operating guidelines.
(6) Ensure that nonappropriated funds and related activities of Section 6 School Arrangements are reviewed under DoD Directive 7600.6
(7) Establish guidance, consistent with § 68.1 (b) and (c), for student eligibility to attend Section 6 School Arrangements located outside of CONUS, Alaska, and Hawaii and operated by the Military Department concerned. Gain the approval of the ASD(FM&P), or designee, and the GC, DoD, or designee, before implementation.
(d) The
(1) Provide resource and logistics support at each Section 6 School Arrangement located on the installation.
(2) Ensure the establishment and operation of an elected school board at the Section 6 School Arrangement.
(3) Ensure the implementation of DoD Directive 5500.7
(4) Provide installation staff personnel to advise the school board in budget, civil engineering, law, personnel, procurement, and transportation matters, when applicable.
(5) Disapprove actions of the school board that conflict with applicable statutes or regulations. Disapprovals must be in writing to the school board and shall note the specific reasons for the disapprovals. A copy of this action shall be forwarded through channels of the Military Department concerned to the ASD(FM&P), or designee.
(6) Ensure the safety of students traveling to and from the on-base (post) school(s).
(7) Ensure that comptrollers and other support elements comply with the authorized execution of funds for Section 6 School Arrangements in accordance with the budget approved by the ASD(FM&P), or designee.
(e) The
(1) Review and monitor school expenditures and operations, subject to audit procedures established under this part and consistent with § 68.1 (a) and (b).
(2) Conduct meetings, approve agendas, prepare minutes, and conduct other activities incident to and associated with Section 6 School Arrangements.
(3) Recruit and select a Superintendent for the Section 6 School Arrangement under the school board's jurisdiction.
(4) Provide the Superintendent with regular constructive written and oral evaluations of his or her performance. Evaluations should be linked to goals established by the school board with the assistance of the Superintendent.
(5) Provide the Superintendent the benefit of the school board's counsel in matters on individual school board member's expertise.
(6) Ensure the attendance of the Superintendent, or designee, at all school board meetings.
(7) Review and approve school budgets prior to submission to the ASD(FM&P), or designee, through channels of the Military Department concerned.
(8) Establish policies and procedures for the operation and administration of the Section 6 School Arrangement(s).
(9) Provide guidance and assistance to the Superintendent in the execution and implementation of school board policies, rules, and regulations.
(10) Consult with the Superintendent on pertinent school matters, as they arise, which concern the school and on which the school board may take action.
(11) Channel communications with school employees that require action through the Superintendent, and refer all applications, complaints, and other communications, oral or written, to the Superintendent in order to ensure the proper processing of such communications.
(12) Establish policies and procedures for the effective processing of, and response to, complaints.
(f) The
(1) Serve as the chief executive officer to the school board to ensure the implementation of the school board's policies, rules, and regulations.
(2) Attend all school board meetings, or send a designee when unable to attend, sitting with the school board as a non-voting member.
(3) Provide advice and recommendations to the school board and the Installation Commander or Area Coordinator on all matters and policies for the operation and administration of the school system.
(4) Recruit, select, and assign all professional and support personnel required for the school system. Teachers and school administrators shall hold, at a minimum, a current and applicable teaching or supervisory certificate, respectively, from any of the 50 States, Puerto Rico, the District of Columbia, or the DoD Dependents’ Schools system. Additional certification may be necessary to comply with respective
(5) Determine retention or termination of employment of all school personnel under applicable Federal regulations.
(6) Organize, administer, and supervise all school personnel to ensure that the curriculum standards, specialized programs, and level of instruction are comparable to accepted educational practices of the State or the District of Columbia, as applicable.
(7) Be responsible for the fiscal management and operation of the school system to include execution of the budget as approved by ASD(FM&P), or designee, and in accordance with school board guidance.
(8) Ensure the evaluation of all school employees on a regular basis.
(9) Ensure the maintenance of all school buildings, grounds, and property accounting records.
(10) Ensure the procurement of necessary school supplies, equipment, and services.
(11) Ensure the preparation of the annual Section 6 School Arrangement budget as approved by the school board, and as required by the ASD(FM&P), or designee, and the Military Department concerned, in accordance with guidance provided by the ASD(C), or designee, under DoD 7220.9-M.
(12) Ensure the maintenance of a professional relationship with local and State school officials.
(13) Ensure, wherever practicable, the maintenance of accreditation of the Section 6 School Arrangement by the State and/or applicable regional accreditation agencies.
(14) Operate the school consistent with applicable Federal statutes and regulations, and with State statutes and regulations that are made applicable to the Section 6 School Arrangement by this part.
(15) Ensure the submission of an annual statement to the Military Department concerned demonstrating comparability of the free public education provided in the Section 6 School Arrangement(s).
(16) Ensure the implementation of the local State plan or regulatory guidelines for compliance with § 68.1(g). If the State on which a Section 6 School Arrangement's comparability is based has not adopted a State plan, the responsible Section 6 School System Superintendent shall choose the State plan of an adjacent State to follow. If no adjacent State has adopted a State plan, the Superintendent shall select the State plan of another State that is similar to the State in which the Section 6 School Arrangement is located.
(g)
(1) Ensure that the school board is composed of a minimum of three members elected only by parents or legal guardians (military or civilian) of students attending the school at the time of the election. The terms for school board members are to be established as between one and three years.
(2) Ensure the following procedures for a school board election are observed:
(i) Parents shall have adequate notice of the time and place of the election.
(ii) Election shall be conducted by secret ballot. The candidate(s) receiving the greatest number of votes shall be elected as school board member(s).
(iii) Personnel employed in the school system shall not be school board members, except for the Superintendent, who serves as a non-voting member.
(iv) Nominations shall be by petition of parents of students attending the school at the time of the election. Votes may be cast at the time of election for write-in candidates who have not filed a nomination petition if the write-in candidates otherwise are qualified to serve in the positions sought.
(v) The election process shall provide for the continuity of school board operations.
(vi) Vacancies that occur among members of the elected school board may be filled to complete unexpired
(vii) The responsibility for developing the plans for and conducting the school board election rests with the Superintendent and the school board.
This part is effective October 16, 1987. The Secretary of each Military Department shall forward two copies of the Military Department's implementing documents to the ASD(FM&P) within 120 days.
10 U.S.C. 2164.
This part prescribes policies and procedures for the establishment and operation of elected School Boards for schools operated by the Department of Defense (DoD) under 10 U.S.C. 2164, 32 CFR part 345, and Public Law 92-463.
This part applies to:
(a) The Office of the Secretary of Defense (OSD), the Military Departments, the Coast Guard when operating as a service of the Department of the Navy or by agreement between DoD and the Department of Transportation, the Chairman of the Joint Chiefs of Staff, the Unified and Specified Combatant Commands, the Inspector General of the Department of Defense, the Uniformed Services University of the Health Sciences, the Defense Agencies, and the DoD Field Activities.
(b) The schools (prekindergarten through grade 12) operated by the DoD under 10 U.S.C. 2164 and 32 CFR part 345 within the continental United States, Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa, the Northern Mariana Islands, and the Virgin Islands, known as DoD DDESS Arrangements.
(c) This part does not apply to elected school boards established under state or local law for DoD DDESS special arrangements.
(a)
(1)
(2)
(b)
(a) Each DoD DDESS arrangement shall have an elected school board, established and operated in accordance with this part and other pertinent guidance.
(b) Because members of DoD DDESS elected school boards are not officers or employees of the United States appointed under the Appointments Clause of the United States Constitution (Art. II, Sec. 2, Cl. 2), they may not exercise discretionary governmental authority, such as the taking of personnel actions or the establishment of governmental policies. This part clarifies the role of school boards in the development and oversight of fiscal, personnel, and educational policies, procedures, and programs for DoD DDESS arrangements, subject to these constitutional limitations.
(c) The DoD DDESS chain of command for matters relating to school arrangements operated under 10 U.S.C. 2164 and 32 CFR part 345 shall be from the Director, DoD DDESS, to the Superintendent of each school arrangement. The Superintendent will inform the school board of all matters affecting the operation of the local school arrangement. Direct liaison among the school board, the Director, and the Superintendent is authorized for all matters pertaining to the local school arrangement.
The Assistant Secretary of Defense for Force Management Policy (ASD (FMP)), under the Under Secretary of Defense for Personnel and Readiness, shall:
(a) Make the final decision on all formal appeals to directives and other guidance submitted by the school board or Superintendent.
(b) Ensure the Director, DoD DDESS shall:
(1) Ensure the establishment of elected school boards in DoD DDESS arrangements.
(2) Monitor compliance by the Superintendent and school boards with applicable statutory and regulatory requirements, and this part. In the event of suspected noncompliance, the Director, DoD DDESS, shall take appropriate action, which will include notification of the Superintendent and the school board president of the affected DoD DDESS arrangement.
(3) Determine when the actions of a school board conflict with an applicable statute, regulation, or other guidance or when there is a conflict in the views of the school board and the Superintendent. When such conflicts occur, the Director, DoD DDESS, shall assist the Superintendent and the school board in resolving them or direct that such actions be discontinued. Such disapprovals must be in writing to the school board and the Superintendent concerned and shall state the specific supporting reason or reasons.
(c) Ensure the school board for DoD DDESS arrangements shall:
(1) Participate in the development and oversight of fiscal, personnel, and educational policies, procedures, and programs for the DoD DDESS arrangement concerned, consistent with this part.
(2) Approve agendas and prepare minutes for school board meetings. A copy of the approved minutes of school board meetings shall be forwarded to the Director, DoD DDESS, within 10 working days after the date the minutes are approved.
(3) Provide to the Director, DoD DDESS, names of applicants for a vacancy in the Superintendent's position after a recruitment has been accomplished. The school board shall submit to the Director, DoD DDESS, a list of all applicants based on its review of the applications and interviews (either in person or telephonically) of the applicants. The list of applicants will be accompanied by the recommended choice of the school board. The Director will select the Superintendent and will submit written notice with justification to the school board if the recommendation of the school board is not followed.
(4) Prepare an annual written on-site review of the Superintendent's performance for consideration by the Director, DoD DDESS. The written review shall be based on critical elements recommended by the school board and Superintendent and approved by the Director, DoD DDESS. The school board's review will be an official attachment to the Superintendent's appraisal.
(5) Participate in the development of the school system's budget for submission to the Director, DoD DDESS, for his or her approval as endorsed by the school board; and participate in the oversight of the approved budget, in conjunction with the Superintendent, as appropriate for operation of the school arrangement.
(6) Invite the Superintendent or designee to attend all school board meetings.
(7) Provide counsel to the Superintendent on the operation of the school and the implementation of the approved budget.
(8) Channel communications with school employees to the DoD DDESS Superintendent. Refer all applications, complaints, and other communications, oral or written, to the DoD DDESS Arrangement Superintendents.
(9) Participate in the development of school policies, rules, and regulations, in conjunction with the Superintendent, and recommend which policies shall be reflected in the School Policy Manual. At a minimum, the Policy Manual, which shall be issued by the Superintendent, shall include following:
(i) A statement of the school philosophy.
(ii) The role and responsibilities of school administrative and educational personnel.
(iii) Provisions for promulgation of an annual school calendar.
(iv) Provisions on instructional services, including policies for development and adoption of curriculum and textbooks.
(v) Regulations affecting students, including attendance, grading, promotion, retention, and graduation criteria, and the student code of rights, responsibilities, and conduct.
(vi) School policy on community relations and noninstructional services, including maintenance and custodial services, food services, and student transportation.
(vii) School policy and legal limits on financial operations, including accounting, disbursing, contracting, and procurement; personnel operations, including conditions of employment, and labor management regulations; and the processing of, and response to, complaints.
(viii) Procedures providing for new school board member orientation.
(ix) Any other matters determined by the school board and the superintendent to be necessary.
(10) Under 10 U.S.C. 2164(b)(4)(B), prepare and submit formal appeals to directives and other guidance that in the view of the school board adversely impact the operation of the school system either through the operation and management of DoD DDESS or a specific DoD DDESS arrangement. Written formal appeals with justification and supporting documentation shall be submitted by the school board or Superintendent to ASD(FMP). The ASD(FMP) shall make the final decision on all formal appeals. The Director, Dod DDESS, will provide the appealing body written review of the findings relating to the merits of the appeal. Formal appeals will be handled expeditiously by all parties to minimize any adverse impact on the operation of the DoD DDESS system.
(d) Ensure school board operating procedures are as follows:
(1) The school board shall operate from a written agenda at all meetings. Matters not placed on the agenda before the start of the meeting, but approved by a majority of the school board present, may be considered at the ongoing meeting and added to the agenda at that time.
(2) A majority of the total number of school board members authorized shall constitute a quorum.
(3) School board meetings shall be conducted a minimum of 9 times a year. The school board President or designee will provide school board members timely notice of all meetings. All regularly scheduled school board meetings will be open to the public. Executive session meetings may be closed under 10 U.S.C. 2164(d)(6).
(4) The school board shall not be bound in any way by any action or statement of an individual member or group of members of the board except when such action or statement is approved by a majority of the school board members during a school board meeting.
(5) School board members are eligible for reimbursement for official travel in accordance with the DoD Joint Travel Regulations and guidance issued by the Director, DoD DDESS.
(6) School board members may be removed by the ASD (FMP) for dereliction of duty, malfeasance, or other grounds for cause shown. The school board concerned may recommend such removal with a two-thirds majority vote. Before a member may be removed, the member shall be afforded due process, to include written notification of the basis for the action, review of the evidence or documentation considered by the school board, and an opportunity to respond to the allegations.
(a)
(2) The DoD DDESS Arrangement Superintendent, or designee, shall serve as a non-voting observer to all school board meetings. The Installation Commander, or designee, shall convey command concerns to the school board and the Superintendent and keep the school board and the Superintendent informed of changes and other matters within the host installation that affect school expenditures or operations.
(3) School board members may not receive compensation for their service on the school board.
(4) Members of the school board may not have any financial interest in any company or organization doing business with the school system. Waivers to this restriction may be granted on a case-by-case basis by the Director, DoD DDESS, in coordination with the Office of General Counsel of the Department of Defense.
(b)
(c)
(2) The board shall determine the term of office for elected members, not to exceed 3 years, and the limit on the number of terms, if any. If the board fails to set these terms by the first day of the first full month of the school year, the terms will be set at 3 years, with a maximum of 2 consecutive terms.
(3) When there is a sufficient number of school board vacancies that result in not having a quorum, which is defined as a majority of seats authorized, a special election shall be called by the DoD DDESS Arrangement Superintendent or designee. A special election is an election that is held between the regularly scheduled annual school board election. The nomination and election procedures for a special election shall be the same as those of regularly scheduled school board elections. Individuals elected by special election shall serve until the next regularly scheduled school board election. Vacancies may occur due to the resignation, death, removal for cause, transfer, or disenrollment of a school board
(4) The board shall determine a schedule for regular elections. Parents shall have adequate notice of the time and place of the election. The election shall be by secret ballot. All votes must be cast in person at the time and place of the election. The candidate(s) receiving the greatest number of votes shall be elected as school board member(s).
(5) Each candidate for school board membership must be nominated in writing by at least one member of the electorate to be represented by the candidate. Votes may be cast at the time of election for write-in candidates who have not filed a nomination petition if the write-in candidates otherwise are qualified to serve in the positions sought.
(6) The election process shall provide staggered terms for board members; e.g., on the last day of the last month of each year, the term for some board members will expire.
(7) The DoD DDESS Superintendent, in consultation with the school board, shall be responsible for developing the plans for nominating school board members and conducting the school board election and the special election process. The DoD DDESS Superintendent shall announce election results within 7 working days of the election.
10 U.S.C. 1553 and 38 U.S.C. 101 and 3103, as amended.
This part is reissued and:
(a) Establishes uniform policies, procedures, and standards for the review of discharges or dismissals under 10 U.S.C. 1553.
(b) Provides guidelines for discharge review by application or on motion of a DRB, and the conduct of discharge reviews and standards to be applied in such reviews which are designed to ensure historically consistent uniformity in execution of this function, as required under Pub. L. 95-126.
(c) Assigns responsibility for administering the program.
(d) Makes provisions for public inspection, copying, and distribution of DRB documents through the Armed Forces Discharge Review/Correction Board Reading Room.
(e) Establishes procedures for the preparation of decisional documents and index entries.
(f) Provides guidance for processing complaints concerning decisional documents and index entries.
The provisions of this part 70 apply to the Office of the Secretary of Defense (OSD) and the Military Departments. The terms, “Military Services,” and “Armed Forces,” as used herein, refer to the Army, Navy, Air Force and Marine Corps.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(a) The
(b) The
(1) Resolve all issues concerning DRBs that cannot be resolved among the Military Departments.
(2) Ensure uniformity among the Military Departments in the rights afforded applicants in discharge reviews.
(3) Modify or supplement the enclosures to this part.
(4) Maintain the index of decisions and provide for timely modification of index categories to reflect changes in discharge review policies, procedures, and standards issued by the OSD and the Military Departments.
(c) The
(1) Effect necessary coordination with other governmental agencies regarding continuing applicability of this part and resolve administrative procedures relating thereto.
(2) Review suggested modifications to this part, including implementing documents; monitor the implementing documents of the Military Departments; resolve differences, when practicable; recommend specific changes; provide supporting rationale to the ASD(MRA&L) for decision; and include appropriate documentation through the Office of the ASD(MRA&L) and the OSD Federal Register liaison officer to effect publication in the
(3) Maintain the DD Form 293, “Application for Review of Discharge or Separation from the Armed Forces of the United States,” and republish as necessary with appropriate coordination of the other Military Departments and the Office of Management and Budget.
(4) Respond to all inquiries from private individuals, organizations, or public officials with regard to DRB matters. When the specific Military Service can be identified, refer such correspondence to the appropriate DRB for response or designate an appropriate activity to perform this task.
(5) Provide overall guidance and supervision to the Armed Forces Discharge Review/Correction Board Reading Room with staff augmentation, as required, by the Departments of the Navy and Air Force.
(6) Ensure that notice of the location, hours of operation, and similar types of information regarding the Reading Room is published in the
(a) Discharge review procedures are prescribed in § 70.8.
(b) Discharge Review Standards are prescribed in § 70.9 and constitute the basic guidelines for the determination whether to grant or deny relief in a discharge review.
(c) Complaint Procedures about decisional documents are prescribed in § 70.10.
(a)
(2) All reports must be consistent with DoD Directive 5000.11, “Data Elements and Data Codes Standardization Program,” December 7, 1964.
(b)
This part is effective immediately for the purpose of preparing implementing documents. DoD Directive 1332.28, March 29, 1978, is officially canceled, effective November 27, 1982. This part applies to all discharge review proceedings conducted on or after November 27, 1982. § 70.10 applies to all complaint proceedings conducted on or after September 28, 1982. Final action on complaints shall not be taken until September 28, 1982, unless earlier corrective action is requested expressly by the applicant (or the applicant's counsel) whose case is the subject of the decisional document. If earlier corrective action is requested, it shall be taken in accordance with § 70.10.
(a)
(2)
(3)
(i)
(ii)
(iii) The applicant must ensure that issues submitted to the DRB are consistent with the request for change in discharge set forth in block 7 of the DD Form 293. If an ambiguity is created by a difference between an applicant's issue and the request in block 7, the DRB shall respond to the issue in the context of the action requested in block 7. In the case of a hearing, the DRB shall attempt to resolve the ambiguity under paragraph (a)(5) of this section.
(4)
(i)
(A)
(B)
(C)
(
(
(
(
(
(D)
(E)
(ii)
(iii)
(A)
(B)
(C)
(iv)
(A) The issue must be set forth or expressly incorporated in the “Applicant's Issue” portion of DD Form 293.
(B) If an applicant's issue cites a prior decision (of the DRB, another Board, an agency, or a court), the applicant shall describe the specific principles and facts that are contained in the prior decision and explain the relevance of cited matter to the applicant's case.
(C) To ensure timely consideration of principles cited from unpublished opinions (including decisions maintained by the Armed Forces Discharge Review Board/Corrective Board Reading Room), applicants must provide the DRB with copies of such decisions or of the relevant portion of the treatise, manual, or similar source in which the principles were discussed. At the applicant's request, such materials will be returned.
(D) If the applicant fails to comply with the requirements in paragraphs (a)(4)(iv) (A), (B), and (C), the decisional document shall note the defect, and shall respond to the issue without regard to the citation.
(5)
(i)
(ii)
(A) Limits the DRB's authority to question an applicant as to the meaning of such matter;
(B) Precludes the DRB from developing decisional issues based upon such questions;
(C) Prevents the applicant from amending or withdrawing such matter any time before the DRB closes the review process for deliberation; or
(D) Prevents the DRB from presenting an applicant with a list of proposed decisional issues and written information concerning the right of the applicant to add to, amend, or withdraw the applicant's submission. The written information will state that the applicant's decision to take such action (or decline to do so) will not be used against the applicant in the consideration of the case.
(iii)
(6)
(i) Such absence must have been included as part of the basis for the applicant's discharge under other than honorable conditions.
(ii) Such absence is computed without regard to the applicant's normal or adjusted expiration of term of service.
(b)
(2)
(3)
(i)
(ii)
(4)
(5)
(6)
(A) When the applicant has been sent a letter containing the month and location of a proposed hearing and fails to make a timely response; or
(B) When the applicant, after being notified by letter of the time and place of the hearing, fails to appear at the appointed time, either in person or by representative, without having made a prior, timely request for a continuation, postponement, or withdrawal.
(ii) In such cases, the applicant shall be deemed to have waived the right to a hearing, and the DRB shall complete its review of the discharge. Further request for a hearing shall not be granted unless the applicant can demonstrate that the failure to appear or respond was due to circumstances beyond the applicant's control.
(7)
(ii) Postponements of scheduled reviews normally shall not be permitted other than for demonstrated good and sufficient reason set forth by the applicant in a timely manner, or for the convenience of the government.
(8)
(i) When the only previous consideration of the case was on the motion of the DRB;
(ii) When the original discharge review did not involve a hearing and a hearing is now desired, and the provisions of paragraph (b)(6) of this section do not apply;
(iii) When changes in discharge policy are announced after an earlier review of an applicant's discharge, and the new policy is made expressly retroactive;
(iv) When the DRB determines that policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a Service-wide basis to discharges of the type under consideration, provided that such changes in policies or procedures represent a substantial enhancement of the rights afforded a respondent in such proceedings;
(v) When an individual is to be represented by a counsel or representative, and was not so represented in any previous consideration of the case by the DRB;
(vi) When the case was not previously considered under uniform standards published pursuant to Pub. L. 95-126 and such application is made within 15 years after the date of discharge; or
(vii) On the basis of presentation of new, substantial, relevant evidence not available to the applicant at the time of the original review. The decision
(9)
(ii) If the DRB is not authorized to provide copies of documents that are under the cognizance of another government department, office, or activity, applications for such information must be made by the applicant to the cognizant authority. The DRB shall advise the applicant of the mailing address of the government department, office, or activity to which the request should be submitted.
(iii) If the official records relevant to the discharge review are not available at the agency having custody of the records, the applicant shall be so notified and requested to provide such information and documents as may be desired in support of the request for discharge review. A period of not less than 30 days shall be allowed for such documents to be submitted. At the expiration of this period, the review may be conducted with information available to the DRB.
(iv) A DRB may take steps to obtain additional evidence that is relevant to the discharge under consideration beyond that found in the official military records or submitted by the applicant, if a review of available evidence suggests that it would be incomplete without the additional information, or when the applicant presents testimony or documents that require additional information to evaluate properly. Such information shall be made available to the applicant, upon request, with appropriate modifications regarding classified material.
(A) In any case heard on request of an applicant, the DRB shall provide the applicant and counsel or representative, if any, at a reasonable time before initiating the decision process, a notice of the availability of all regulations and documents to be considered in the discharge review, except for documents in the official personnel or medical records and any documents submitted by the applicant. The DRB shall also notify the applicant or counsel or representative:
(
(
(
(B) When necessary to acquaint the applicant with the substance of a classified document, the classifying authority, on the request of the DRB, shall prepare a summary of or an extract from the document, deleting all references to sources of information and other matters, the disclosure of which, in the opinion of the classifying authority, would be detrimental to the national security interests of the United States. Should preparation of such summary be deemed impracticable by the classifying authority, information from the classified sources shall not be considered by the DRB in its review of the case.
(v) Regulations of a Military Department may be obtained at many installations under the jurisdiction of the Military Department concerned or by writing to the following address: DA Military Review Boards Agency, Attention: SFBA (Reading Room), room 1E520, Washington, DC 20310.
(10)
(11)
(12)
(ii) Formal rules of evidence shall not be applied in DRB proceedings. The presiding officer shall rule on matters of procedure and shall ensure that reasonable bounds of relevancy and materiality are maintained in the taking of evidence and presentation of witnesses.
(iii) Applicants undergoing hearings shall be permitted to make sworn or unsworn statements, if they so desire, or to introduce witnesses, documents, or other information on their behalf, at no expense to the Department of Defense.
(iv) Applicants may also make oral or written arguments personally or through counsel or representatives.
(v) Applicants who present sworn or unsworn statements and witnesses may be questioned by the DRB. All testimony shall be taken under oath or affirmation unless the applicant specifically requests to make an unsworn statement.
(vi) There is a presumption of regularity in the conduct of governmental affairs. This presumption can be applied in any review unless there is substantial credible evidence to rebut the presumption.
(c)
(2) The presiding officer is responsible for the conduct of the discharge review. The presiding officer shall convene, recess, and adjourn the DRB panel as appropriate and shall maintain an atmosphere of dignity and decorum at all times.
(3) Each DRB member shall act under oath or affirmation requiring careful, objective consideration of the application. DRB members are responsible for eliciting all facts necessary for a full and fair hearing. They shall consider all information presented to them by the applicant. In addition, they shall consider available Military Service and health records, together with other records that may be in the files of the Military Department concerned and relevant to the issues before the DRB, and any other evidence obtained in accordance with this part.
(4) The DRB shall identify and address issues after a review of the following material obtained and presented in accordance with this part and the implementing instructions of the DRB: Available official records, documentary
(5) If an applicant who has requested a hearing does not respond to a notification letter or does not appear for a scheduled hearing, the DRB may complete the review on the basis of material previously submitted.
(6)
(ii) When the DRB determines that an applicant's discharge was inequitable (see § 70.9(c)), any change will be based on the evaluation of the applicant's overall record of service and relevant regulations of the Military Service of which the applicant was a member.
(7) Voting shall be conducted in closed session, a majority of the five members’ votes constituting the DRB decision. Voting procedures shall be prescribed by the Secretary of the Military Department concerned.
(8) Details of closed session deliberations of a DRB are privileged information and shall not be divulged.
(9) There is no requirement for a statement of minority views in the event of a split vote. The minority, however, may submit a brief statement of its views under procedures established by the Secretary concerned.
(10) DRBs may request advisory opinions from staff officers of their Military Departments. These opinions are advisory in nature and are not binding on the DRB in its decision-making process.
(11) The preliminary determinations required by 38 U.S.C. 3103(e) shall be made upon majority vote of the DRB concerned on an expedited basis. Such determination shall be based upon the standards set forth in § 70.9 of this part.
(12)
(ii) Address decisional issues under paragraph (e) of this section; and
(iii) Prepare a decisional document in accordance with paragraph (h) of this section.
(d)
(ii) If an applicant uses a “building block” approach (that is, setting forth a series of conclusions on issues that lead to a single conclusion purportedly warranting a change in the applicant's discharge), normally there should be a separate response to each issue.
(iii) Nothing in this paragraph precludes the DRB from making a single response to multiple issues when such action would enhance the clarity of the decisional document, but such response must reflect an adequate response to each separate issue.
(2)
(i) When the DRB decides that a change in discharge should be granted, and the DRB bases its decision in whole or in part on the applicant's issue; or
(ii) When the DRB does not provide the applicant with the full change in discharge requested, and the decision is based in whole or in part on the DRB's disagreement on the merits with an issue submitted by the applicant.
(3)
(ii) If the applicant does not receive the full change in discharge requested with respect to either the character of or reason for discharge (or both), the DRB shall address the items submitted by the applicant under paragraph (e) of this section (decisional issues) unless one of the following responses is applicable:
(A)
(B)
(C)
(D)
(e)
(i)
(ii)
(iii)
(B) If an applicant identifies an issue as pertaining to the propriety of the discharge (for example, by citing a propriety standard or otherwise claiming that a change in discharge is required as a matter of law), the DRB shall consider the issue solely as a matter of propriety. Except as provided in paragraph (e)(1)(iii)(D) of this section, the DRB is not required to consider such an issue under the equity standards.
(C) If the applicant's issue contends that the DRB is required as a matter of law to follow a prior decision by setting forth an issue of propriety from the prior decision and describing its relationship to the applicant's case, the
(D) If the applicant's issue sets forth principles of equity contained in a prior DRB decision, describes the relationship to the applicant's case, and contends that the DRB is required as a matter of law to follow the prior case, the decisional document shall note that the DRB is not bound by its discretionary decisions in prior cases under the standards in § 70.9. However, the principles cited by the applicant, and the description of the relationship of the principles to the applicant's case, shall be considered under the equity standards and addressed under paragraph (e)(5) or (e)(6) of this section.
(E) If the applicant's issue cannot be identified as a matter of propriety or equity, the DRB shall address it as an issue of equity.
(2)
(3)
(ii) The decisional document shall list reasons for its conclusion on each issue of propriety under the following guidance:
(A) If a reason is based in whole or in part upon a regulation, statute, constitutional provision, judicial determination, or other source of law, the DRB shall cite the pertinent source of law and the facts in the record that demonstrate the relevance of the source of law to the particular circumstances in the case.
(B) If a reason is based in whole or in part on a determination as to the occurrence or nonoccurrence of an event or circumstance, including a factor required by applicable Service regulations to be considered for determination of the character of and reason for the applicant's discharge, the DRB shall make a finding of fact for each such event or circumstance.
(
(
(C) If the DRB disagrees with the position of the applicant on an issue of propriety, the following guidance applies in addition to the guidance in paragraphs (e)(3)(ii) (A) and (B) of this section:
(
(
(
(
(
(
(4)
(5)
(6)
(ii) The DRB shall list reasons for its conclusion on each issue of equity under the following guidance:
(A) If a reason is based in whole or in part upon a regulation, statute, constitutional provision, judicial determination, or other source of law, the DRB shall cite the pertinent source of law and the facts in the record that demonstrate the relevance of the source of law to the exercise of discretion on the issue of equity in the applicant's case.
(B) If a reason is based in whole or in part on a determination as to the occurrence or nonoccurrence of an event or circumstance, including a factor required by applicable Service regulations to be considered for determination of the character of and reason for the applicant's discharge, the DRB shall make a finding of fact for each such event or circumstance.
(
(
(C) If the DRB disagrees with the position of the applicant on an issue of equity, the following guidance applies in addition to the guidance in paragraphs (e)(6)(ii) (A) and (B) of this section:
(
(
(
(
(
(D) When the DRB concludes that aggravating factors outweigh mitigating factors, the DRB must set forth reasons such as the seriousness of the offense, specific circumstances surrounding the offense, number of offenses, lack of mitigating circumstances, or similar factors. The DRB is not required, however, to explain why it relied on any such factors unless the applicability or weight of such a factor is expressly raised as an issue by the applicant.
(E) If the applicant has not submitted any issues and the DRB has not otherwise relied upon an issue of equity for a change in discharge, the decisional document shall contain a statement to that effect, and shall note that the major factors upon which the discharge was based are set forth in the
(f)
(2)
(i)
(ii)
(iii)
(A) The issues on which the president's recommendation is based. Each such decisional issue shall be addressed by the president under paragraph (e) of this section,
(B) The president's response to items submitted as issues by the applicant under paragraph (d) of this section.
(C) Reasons for rejecting the conclusions of the majority with respect to decisional issues which, if resolved in the applicant's favor, would have resulted in greater relief for the applicant than that afforded by the president's recommendation. Suh issues shall be addressed under the principles in paragraph (e) of this section.
(g)
(i) The SRA may review the following types of cases before issuance of the final notification of a decision:
(A) Any specific case in which the SRA has an interest.
(B) Any specific case that the president of the DRB believes is of significant interest to the SRA.
(ii) Cases reviewed by the SRA shall be considered under the standards set forth in § 70.9.
(2)
(ii) The following guidance applies to cases that have been forwarded to the SRA except for cases reviewed on the DRB's own motion without the participation of the applicant or the applicant's counsel:
(A) The applicant and counsel or representative, if any, shall be provided with a copy of the proposed decisional document, including the DRB president's recommendation to the SRA, if any. Classified information shall be summarized.
(B) The applicant shall be provided with a reasonable period of time, but not less than 25 days, to submit to the SRA a rebuttal. An issue in rebuttal consists of a clear and specific statement by the applicant in support of or in opposition to the statements of the DRB or DRB president on decisional issues and other clear and specific issues that were submitted by the applicant in accordance with paragraph (a)(4)(i) of this section. The rebuttal shall be based solely on matters in the record before when the DRB closed the case for deliberation or in the president's recommendation.
(3)
(4)
(i)
(ii)
(A)
(B)
(C)
(D)
(
(
(iii)
(B) If the SRA does not grant the full change in discharge requested by the applicant (or a more favorable change), the addendum shall list each issue in rebuttal submitted by an applicant in accordance with this section, and shall set forth the response of the SRA under the following guidance:
(
(
(
(iv)
(h)
(1) The circumstances and character of the applicant's service as extracted from available service records, including health records, and information provided by other Government authorities or the applicant, such as, but not limited to:
(i) Information concerning the discharge at issue in the review, including:
(A) Date (YYMMDD) of discharge.
(B) Character of discharge.
(C) Reason for discharge.
(D) The specific regulatory authority under which the discharge was issued.
(ii) Date (YYMMDD) of enlistment.
(iii) Period of enlistment.
(iv) Age at enlistment.
(v) Length of service.
(vi) Periods of unauthorized absence.
(vii) Conduct and efficiency ratings (numerical or narrative).
(viii) Highest rank received.
(ix) Awards and decorations.
(x) Educational level.
(xi) Aptitude test scores.
(xii) Incidents of punishment pursuant to Article 15, Uniform Code of Military Justice (including nature and date (YYMMDD) of offense or punishment).
(xiii) Convictions by court-martial.
(xiv) Prior military service and type of discharge received.
(2) A list of the type of documents submitted by or on behalf of the applicant (including a written brief, letters of recommendation, affidavits concerning the circumstances of the discharge, or other documentary evidence), if any.
(3) A statement whether the applicant testified, and a list of the type of witnesses, if any, who testified on behalf of the applicant.
(4) A notation whether the application pertained to the character of discharge, the reason for discharge, or both.
(5) The DRB's conclusions on the following:
(i) Whether the character of or reason for discharge should be changed.
(ii) The specific changes to be made, if any.
(6) A list of the items submitted as issues on DD Form 293 or expressly incorporated therein and such other items submitted as issues by the applicant that are identified as inadvertently omitted under paragraph (a)(4)(i)(D) of this section. If the issues are listed verbatim on DD Form 293, a copy of the relevant portion of the Form may be attached. Issues that have been withdrawn or modified with the consent of the applicant need not be listed.
(7) The response to the items submitted as issues by the applicant under the guidance in paragraph (d) of this section.
(8) A list of decisional issues and a discussion of such issues under the guidance in paragraph (e) of this section.
(9) Minority views, if any, when authorized under rules of the Military Department concerned.
(10) The recommendation of the DRB president when required by paragraph (f) of this section.
(11) The addendum of the SRA when required by paragraph (g) of this section.
(12) Advisory opinions, including those containing factual information, when such opinions have been relied upon for final decision or have been accepted as a basis for rejecting any of the applicant's issues. Such advisory opinions or relevant portions thereof that are not fully set forth in the discussion of decisional issues or otherwise in response to items submitted as issues by the application shall be incorporated by reference. A copy of opinions incorporated by reference shall be appended to the decision and included in the record of proceedings.
(13) A record of the voting, including:
(i) The number of votes for the DRB's decision and the number of votes in the minority, if any.
(ii) The DRB member's names (last name, first name, M.I.) and votes. The copy provided to the applicant may substitute a statement that the names and votes will be made available to the applicant at the applicant's request.
(14) Index entries for each decisional issue under appropriate categories listed in the index of decisions.
(15) An authentication of the document by an appropriate official.
(i)
(1) Notification to applicants, with copies to counsel or representatives, shall normally be made through the U.S. Postal Service. Such notification shall consist of a notification of decision, together with a copy of the decisional document.
(2) Notification to the Military Services shall be for the purpose of appropriate action and inclusion of review matter in personnel records. Such notification shall bear appropriate certification of completeness and accuracy.
(3) Actions on review by superior authority, when occurring, shall be provided to the applicant and counsel or representative in the same manner as the notification of the review decision.
(j)
(2) At a minimum, the record will include the following:
(i) The application for review;
(ii) A record of the testimony in verbatim, summarized, or recorded form at the option of the DRB concerned;
(iii) Documentary evidence or copies thereof, considered by the DRB other than the Military Service record;
(iv) Briefs and arguments submitted by or on behalf of the applicant;
(v) Advisory opinions considered by the DRB, if any;
(vi) The findings, conclusions, and reasons developed by the DRB;
(vii) Notification of the DRB's decision to the cognizant custodian of the applicant's records, or reference to the notification document;
(viii) Minority reports, if any;
(ix) A copy of the decisional document.
(k)
(l)
(2) To prevent a clearly unwarranted invasion of personal privacy, identifying details of the applicant and other persons will be deleted from documents made available for public inspection and copying.
(i) Names, addresses, social security numbers, and Military Service numbers must be deleted. Written justification shall be made for all other deletions and shall be available for public inspection.
(ii) Each DRB shall ensure that there is a means for relating a decisional document number to the name of the applicant to permit retrieval of the applicant's records when required in processing a complaint under § 70.10.
(3) Any other privileged or classified material contained in or appended to any documents required by this part to be furnished the applicant and counsel or representative or made available for public inspection and copying may be deleted therefrom only if a written statement of the basis for the deletions is provided the applicant and counsel or representative and made available for public inspection. It is not intended that the statement be so detailed as to reveal the nature of the withheld material.
(4) DRB documents made available for public inspection and copying shall be located in the Armed Forces Discharge Review/Correction Board Reading Room. The documents shall be indexed in a usable and concise form so as to enable the public, and those who represent applicants before the DRBs, to isolate from all these decisions that are indexed, those cases that may be similar to an applicant's case and that indicate the circumstances under or reasons for (or both) which the DRB or the Secretary concerned granted or denied relief.
(i) The reading file index shall include, in addition to any other items determined by the DRB, the case number, the date, character of, reason and authority for the discharge. It shall also include the decisions of the DRB and reviewing authority, if any, and the issues addressed in the statement of findings, conclusions, and reasons.
(ii) The index shall be maintained at selected permanent locations throughout the United States. This ensures reasonable availability to applicants at least 30 days before a traveling panel review. A list of these locations shall be published in the
(iii) The Armed Forces Discharge Review/Correction Board Reading Room shall publish indexes quarterly for all DRBs. All DRBs shall be responsible for timely submission to the Reading Room of individual case information required for update of the indexes. In addition, all DRBs shall be responsible for submission of new index categories based upon published changes in policy, procedures, or standards. These indexes shall be available for public inspection or purchase (or both) at the Reading Room. When the DRB has accepted an application, information concerning the availability of the index shall be provided in the DRB's response to the application.
(iv) Copies of decisional documents will be provided to individuals or organizations outside the NCR in response to written requests for such documents. Although the Reading Room shall try to make timely responses to such requests, certain factors such as the length of a request, the volume of other pending requests, and the impact of other responsibilities of the staff assigned to such duties may cause some delays. A fee may be charged for such documents under appropriate DoD and Department of the Army directives and regulations. The manual that accompanies the index of decisions shall notify the public that if an applicant indicates that a review is scheduled for a specific date, an effort will be made to provide requested decisional documents before that date. The individual or organization will be advised if that cannot be accomplished.
(v) Correspondence relating to matters under the cognizance of the Reading Room (including requests for purchase of indexes) shall be addressed to: DA Military Review Boards Agency, Attention: SFBA (Reading Room), Room 1E520, The Pentagon, Washington, DC 20310.
(m)
(n)
(a)
(b)
(i) There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made); or
(ii) A change in policy by the Military Service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.
(2) When a record associated with the discharge at the time of issuance involves a matter in which the primary responsibility for corrective action rests with another organization (for example, another Board, agency, or court), the DRB will recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.
(3) The primary function of the DRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis. Prior decisions in which the DRB exercised its discretion to change a discharge based on issues of equity (including the factors cited in such decisions or the weight given to factors in such decisions) do not bind the DRB in its review of subsequent cases because no two cases present the same issues of equity.
(4) The following applies to applicants who received less than fully Honorable administrative discharges because of their civilian misconduct while in an inactive reserve component and who were discharged or had their discharge reviewed on or after April 20, 1971: the DRB shall either recharacterize the discharge to Honorable without any additional proceedings or additional proceedings shall be conducted in accordance with the Court's Order of December 3, 1981, in
(i) An Other than Honorable (formerly undesirable) Discharge for an inactive reservist can only be based upon civilian misconduct found to have affected directly the performance of military duties;
(ii) A General Discharge for an inactive reservist can only be based upon civilian misconduct found to have had an adverse impact on the overall effectiveness of the military, including military morale and efficiency.
(c)
(1) In the course of a discharge review, it is determined that the policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a Service-wide basis to discharges of the type under consideration provided that:
(i) Current policies or procedures represent a substantial enhancement of the rights afforded a respondent in such proceedings; and
(ii) There is substantial doubt that the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration.
(2) At the time of issuance, the discharge was inconsistent with standards of discipline in the Military Service of which the applicant was a member.
(3) In the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the DRB viewed
(i) Quality of service, as evidenced by factors such as:
(A) Service history, including date of enlistment, period of enlistment, highest rank achieved, conduct or efficiency ratings (numerical or narrative);
(B) Awards and decorations;
(C) Letters of commendation or reprimand;
(D) Combat service;
(E) Wounds received in action;
(F) Records of promotions and demotions;
(G) Level of responsibility at which the applicant served;
(H) Other acts of merit that may not have resulted in a formal recognition through an award or commendation;
(I) Length of service during the service period which is the subject of the discharge review;
(J) Prior military service and type of discharge received or outstanding postservice conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review;
(K) Convictions by court-martial;
(L) Records of nonjudicial punishment;
(M) Convictions by civil authorities while a member of the Service, reflected in the discharge proceedings or otherwise noted in military service records;
(N) Records of periods of unauthorized absence;
(O) Records relating to a discharge instead of court-martial.
(ii) Capability to serve, as evidenced by factors such as:
(A)
(B)
(C)
(D)
(a)
(2) This section may be modified or supplemented by the DASD(MP&FM).
(3) The following persons may submit complaints:
(i) A former member of the Armed Forces (or the former member's counsel) with respect to the decisional document issued in the former member's own case; and
(ii) A former member of the Armed Forces (or the former member's counsel) who states that correction of the decisional document will assist the former member in preparing for an administrative or judicial proceeding in which the former member's own discharge will be at issue.
(4) The Department of Defense is committed to processing of complaints within the priorities and processing goals set forth in paragraph (d)(1)(iii) of this section. This commitment, however, is conditioned upon reasonable use of the complaint process under the following considerations. The DRBs were established for the benefit of former members of the Armed Forces. The complaint process can aid such persons most effectively if it is used by
(5) The DASD(MP&FM) is the final authority with respect to action on such correspondence.
(b)
(c)
(2)
(3)
(i)
(ii)
(d)
(i)
(A)
(B)
(ii)
(iii)
(iv)
(A) When the complaint is submitted by the applicant, and the record of the hearing is ambiguous on the question whether there was a meeting of minds between the applicant and the DRB as to modification or omission of the issue, the ambiguity will be resolved in favor of the applicant.
(B) When the complaint is submitted by a person other than the applicant, it must set forth facts (other than the mere omission or modification of an issue) demonstrating a reasonable likelihood that the issue was omitted or modified without the applicant's consent.
(C) When the complaint is rejected on the basis of the presumption of regularity, the response to the complaint must be set forth the reasons why the evidence submitted by the complainant was not sufficient to overcome the presumption.
(D) With respect to decisional documents issued on or after the effective date of the amendments to § 70.8, any change in wording of an applicant's issue which is effected in violation of the principles set forth in § 70.8(a)(5)(iii) constitutes an error requiring corrective action. With respect to a decisional document issued before that date, corrective action will be taken only when there has been a complaint by the applicant or counsel with respect to the applicant's own decisional document and it is determined that the wording was changed or the issue was omitted without the applicant's consent.
(E) If there are references in the decisional document to matters not raised by the applicant and not otherwise relied upon in the decision, there is no requirement under the
(v)
(A) The Stipulation of Dismissal requires only that those facts that are essential to the decision be listed in the decisional document. The requirement for listing specified facts from the military record was not established until March 29, 1978, in 32 CFR part 70 Decisional documents issued prior to that date are sufficient if they meet the requirements of the Stipulation.
(B) When an applicant submits a brief that contains material in support of a proposed conclusion on an issue, the DRB is not required to address each aspect of the supporting material in the brief. However, the decisional document should permit the applicant to understand the DRB's position on the issue and provide reviewing authorities with an explanation that is sufficient to permit review of the DRB's decision. When an applicant submits specific issues and later makes a statement before the DRB that contains matter in support of that issue, it is not necessary to list such supporting matter as a separate issue.
(C) For all decisional documents issued before November 27, 1982, failure to respond to an issue raised by an applicant constitutes error unless it reasonably may be inferred from the record that the DRB response relied on one of the exceptions listed in
(D) When a case is reviewed upon request of an applicant, and the DRB upgrades the discharge to “General,” the DRB must provide reasons why it did not upgrade to “Honorable” unless the applicant expressly requests lesser relief. This requirement applies to all requests for corrective action submitted by an applicant with respect to his or her decisional document. In all other cases, this requirement applies to decisional documents issued on or after November 9, 1978. When the DRB upgrades to General, its explanation for not upgrading to Honorable may consist of reference to adverse matter from the applicant's military record. When a discharge is upgraded to General in a review on the DRB's own motion, there is no requirement to explain why the discharge was not upgraded to Honorable.
(E) There is no requirement under the Stipulation of Dismissal to provide reasons for uncontested findings. The foregoing applies to decisional documents issued before November 27, 1982. With respect to decisional documents issued on or after that date, the following guidance applies with respect to an uncontested issue of fact that forms the basis for a grant or denial of a change in discharge: the decisional document shall list the specific source of information relied upon in reaching the conclusion, except when the information is listed in the portion of the decisional document that summarizes the service record.
(F) The requirements of § 70.8(e)(3) (ii)(B)(
(G) When the DRB balances mitigrating factors against aggravating factors as the reason for a conclusion, the Stipulation of Dismissal does not require the statement of reasons to set forth the specific factors that were balanced if such factors are otherwise apparent on the fact of the decisional document. The foregoing applies to decisional documents prepared before November 27, 1982. With respect to decisional documents prepared after that date, the statements addressing decisional issues in such a case will list or refer to the factors supporting the conclusion in accordance with § 70.8(e)(6)(ii).
(vi)
(A) If the complaint concerns a decisional document that was the subject of a prior complaint in which action was completed, the complainant will be informed of the substance and disposition of the prior complaint, and will be further informed that no additional action will be taken unless the complainant within 30 days demonstrates that the prior disposition did not produce a decisional document that comports with the requirements of paragraph (d)(1)(i)(A) of this section.
(B) If the complaint concerns a decisional document that is the subject of a pending complaint, the complainant will be informed that he or she will be provided with the results of the pending complaint.
(C) These limitations do not apply to the initial complaint submitted on or after the effective date of the amendments to this section by an applicant with respect to his or her own decisional document.
(2)
(i) Acknowledge receipt of the complaint;
(ii) Assign a docket number and note the date of receipt; and
(iii) Forward the complaint to the Military Department concerned, except that the case may be forwarded directly to the DASD (MP&FM) when the administrative director makes an initial determination that corrective action is not required.
(3)
(i) Complaints normally shall be processed on a first-in/first-out basis, subject to the availability of records, pending discharge review actions, and the following priorities:
(A) The first priority category consists of cases in which (
(B) The second priority category consists of requests for correction of the decisional document in the complainant's own discharge review case.
(C) The third priority category consists of complaints submitted by former members of the Armed Forces (or their counsel) who state that the complaint is submitted to assist the former member's submission of an application for review.
(D) The fourth priority category consists of other complaints in which the complainant demonstrates that correction of the decisional document will substantially enhance the ability of applicants to present a significant issue to the DRBs.
(E) The fifth priority category consists of all other cases.
(ii) Complainants who request consideration in a priority category shall set forth in the complaint the facts that give rise to the claim of placement in the requested category. If the complaint is relevent to a pending discharge review in which the complainant is applicant or counsel, the scheduled date of the review should be specified.
(iii) The administrative director is responsible for monitoring compliance with the following processing goals:
(A) The administrative director normally shall forward correspondence to the Military Department concerned within 3 days after the date of receipt specified in the docket number. Correspondence forwarded directly to the DASD(MP&FM) under paragraph (d)(2)(iii) of this section, normally shall be transmitted within 7 days after the date of receipt.
(B) The Military Department normally shall request the necessary records within 5 working days after the date of receipt from the administrative director. The Military Department normally shall complete action under paragraph (d)(4) of this section within 45 days after receipt of all necessary records. If action by the Military Department is required under paragraph (d)(9) of this section, normally it shall be completed within 45 days after action is taken by the DASD(MP&FM).
(C) The JSRA normally shall complete action under paragraph (d)(7) of this section at the first monthly meeting held during any period commencing 10 days after the administrative director receives the action of the Military Department under paragraph (d)(5) of this section.
(D) The DASD(MP&FM) normally shall complete action under paragraph (d)(8) of this section within 30 days after action is taken by the JSRA under paragraph (d)(7) of this section or by the administrative director under paragraph (d)(2)(iii) of this section.
(E) If action is not completed within the overall processing goals specified in this paragraph, the complainant shall be notified of the reason for the delay by the administrative director and shall be provided with an approximate date for completion of the action.
(iv) If the complaints are submitted in any 30 day period with respect to more than 50 decisional documents, the administrative director shall adjust the processing goals in light of the number of complaints and discharge review applications pending before the DRBs.
(v) At the end of each month, the administrative director shall send each
(4)
(i)
(ii)
(iii)
(iv)
(v)
(A) If a complaint concerns the decisional document in the complainant's own discharge review case, appropriate corrective action consists of amending the decisional document or providing the complainant with an opportunity for a new discharge review. An amended decisional document will be provided if the applicant requests that form of corrective action.
(B) If a complaint concerns a decisional document involving an initial record review under the Special Discharge Review Program or the Pub. L. 95-126 rereview program, appropriate corrective action consists of (
(C) When corrective action is taken with respect to a decisional document in cases prepared under Pub. L. 95-126 the DRB must address issues previously raised by the DRB or the applicant during review of the same case during the SDRP only insofar as required by the following guidance:
(
(
(
(D) Except for cases falling under paragraph (d)(4)(v)(B) of this section, if a complaint concerns a decisional document in which the applicant received
(E) In all other cases, appropriate corrective action consists of amending the decisional document or providing the applicant with the opportunity for a new review, except that an amended decisional document will be provided when the complainant expressly requests that form of corrective action.
(vi)
(A) The action of the amending authority does not necessarily reflect substantive agreement with the decision of the original DRB panel (or SRA) on the merits of the case.
(B) A corrected decisional document created by amending a decisional document in response to a complaint will be based upon the complete record before the DRB (or the SRA) at the time of the original defective statement was issued, including, if available, a transcript, tape recording, videotape or other record of a hearing, if any. The new decisional document will be indexed under categories relevant to the new statements.
(C) When an amended decisional document is required under paragraphs (d)(4)(v)(A) and (d)(4)(v)(D) of this section and the necessary records cannot be located, a notation to that effect will be made on the decisional document, and the applicant and counsel, if any, will be afforded an opportunity for a new review, and the complainant will be informed of the action.
(D) When an amended decisional document is requested under paragraph (d)(4)(v)(C) and the necessary records cannot be located, a notation to that effect will be made on the decisional document, and the complainant will be informed that the situation precludes further action.
(vii)
(viii)
(ix)
(5)
(i) The “Review of Complaint.”
(ii) A copy of the amendment to the decisional document and the accompanying transmittal letter or letters to the applicant and counsel, if any, and to the complainant, if other than the applicant or counsel.
(iii) A copy of the notification to the applicant and counsel, if any, of the opportunity to request a new review, and a copy of the notification to the complainant, if other than the applicant or
(6)
(i) If the Military Department determined that any of the allegations contained in the complaint are not specific or have no merit, the JSRA shall review the complaint and accompanying documents. The JSRA shall address the allegations using the format at attachment 2 (Review of and Recommended Action on Complaint) and shall note any other defects in the decisional document or index entries not previously noted by the Military Department. This does not establish a requirement for the JSRA to review such complaints for any purpose other than to address the allegations contained in the complaint; rather, it simply provides a format for the JSRA to address other defects noted in the course of processing the complaint.
(ii) If the Military Department determined that all of the allegations contained in the complaint have merit and its DRB amended the decisional document, the amended decisional document shall be subject to review by the JSRA on a sample basis each quarter using the format at attachment 3 (Review of any Recommendation on Amended Decisional Document).
(iii) If the Military Department determined that all of the allegations contained in the complaint have merit and its DRB notified the applicant and counsel, if any, of the opportunity to request a new review, review of such corrective action is not required.
(7)
(8)
(i) The DASD(MP&FM) shall review complaints using the format at Attachment 4 (Review of and Action on Complaint). The DASD(MP&FM) is the final authority in determining whether the allegations contained in a complaint are specific and have merit. If the DASD(MP&FM) determines that no further action by the Military Department is warranted, the complainant and the Military Department shall be so informed. If the DASD(MP&FM) determines that further action by the Military Department is required, the Military Department shall be directed to ensure that appropriate corrective action is taken by its DRB and the complainant shall be provided an appropriate interim response.
(ii) The DASD(MP&FM) shall review amended decisional documents using the format at attachment 5 (Review of and Action on Amended Decisional Document). The DASD(MP&FM) is the final authority in determining whether an amended decisional document complies with applicable requirements of the
(iii) It is noted that any violation of applicable requirements of the
(9)
(ii) The Military Department shall provide the administrative director with the following documents when relevant to corrective action taken in accordance with paragraph (d)(4) of this section:
(A) A copy of the amendment to the decisional document and the accompanying transmittal letter or letters to the applicant and counsel, if any, and to the complainant, if other than the applicant or counsel.
(B) A copy of the notification to the applicant and counsel, if any, of the opportunity to request a new review, and a copy of the notification to the complainant, if other than the applicant or counsel, that the applicant has been authorized a new review.
(iii) The administrative director shall review the documents relevant to corrective action taken in accordance with paragraph (d)(4) of this section, and ensure the following:
(A) If the DRB amended the decisional document, the amended decisional document shall be subject to review by the JSRA on a sample basis each quarter using the format at attachment 3 (Review of and Recommended Action on Amended Decisional Document).
(B) If the DRB notified the applicant and counsel, if any, of the opportunity to request a new review, review of such corrective action is not required.
(10)
(e)
(1) The administrative director shall assign a docket number to the inquiry.
(2) The administrative director shall forward the inquiry to the Military Department concerned.
(3) The Military Department shall prepare a response to the inquiry and provide the administrative director with a copy of the response.
(4) The Military Department's response shall include the following or similar wording: “This is in response to your inquiry to the Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) dated
(f)
(g)
(h)
(i)
(j)
(1) Any further action on the correspondence shall be taken in accordance with the amendments; and
(2) No revision of any action taken prior to the effective date of such amendments is required.
1. Specific allegation(s) noted:
2. With respect in support of the conclusion, enter the following information:
a. Conclusion whether corrective action is required.
b. Reasons in support of the conclusion, including findings of fact upon which the conclusion is based.
3. Other defects noted in the decisional document or index entries:
1. The Military Department's “Review of Complaint” is attached as enclosure 1.
2. Specific Allegations: See part 1 of Military Department's “Review of Complaint” (enclosure 1).
3. Specific allegation(s) not noted by the Military Department:
4. With respect to each allegation, enter the following information:
a. Conclusion as to whether corrective action is required.
b. Reasons in support of the conclusion, including findings of fact upon which conclusion is based.
If JSRA agrees with the Military Departments, the JSRA may respond by entering a statement of adoption.
5. Other defects in the decisional document or index entries not noted by the Military Departments:
6.
[] The complainant and the Military Department should be informed that no further action on the complaint is warranted.
[] The Military Department should be directed to take corrective action consistent with the above comments.
[] The amended decisional document complies with the requirements of the Stipulation of Dismissal and, when applicable, DoD Directive 1332.28. The Military Department should be informed that no further corrective action is warranted.
[] The amended decisional document does not comply with the Stipulation of Dismissal or DoD Directive 1332.28 as noted herein. The Military Department should be directed to ensure that corrective action consistent with the defects noted is taken by its Discharge Review Board.
1. Each allegation is addressed as follows:
a. Allegation.
b. Conclusion whether corrective action is required.
c. Reasons in support of the conclusion, including findngs of fact upon which the conclusion is based.
If the DASD(MP&FM) agrees with the JSRA, he may respond by entering a statement of adoption.
2. Other defects noted in the decisional document or index entries:
3.
[] No further action on the complaint is warranted.
[] Corrective action consistent with the above comments is required.
[] The amended decisional document complies with the requirements of the Stipulation of Dismissal and, when applicable, DoD Directive 1332.28. No further corrective action is warranted.
[] The amended decisional document does not comply with the Stipulation of Dismissal or DoD Directive 1332.28 as noted herein. Further corrective action is required consistent with the defects noted in the attachment.
It has been determined that the decisional document issued in your case by the (Army) (Navy) (Air Force) Discharge Review Board during the (Special Discharge Review Program) (rereview program under Pub. L. No. 95-126) should be reissued to improve the clarity of the statement of findings, conclusions, and reasons for the decision in your case.
In order to obtain a new decisional document you may elect one of the following options to receive a new review under the (Special Discharge Review Program) (rereview program mandated by Pub. L. No. 95-126):
1. You may request a new review, including a personal appearance hearing if you so desire, by responding on or before the suspense date noted at the top of this letter. Taking this action will provide you with a priority review before all other classes of cases.
2. You may request correction of the original decisional document issued to you by responding on or before the suspense date noted at the top of this letter. After you receive a corrected decisional document, you will be entitled to request a new review, including a personal appearance hearing if you so desire. If you request correction of the original decisional document, you will not receive priority processing in terms of correcting your decisional document or providing you with a new review; instead, your case will be handled in accordance with standard processing procedures, which may mean a delay of several months or more.
If you do not respond by the suspense date noted at the top of this letter, no action will be taken. If you subsequently submit a complaint about this decisional document, it will be processed in accordance with standard procedures.
To ensure prompt and accurate processing of your request, please fill out the form below, cut it off at the dotted line, and return it to the Discharge Review Board of the Military Department in which you served at the address listed at the top of this letter.
[] I request a new review of my case on a priority basis. I am requesting this priority review rather than requesting correction of the decisional document previously issued to me. I have enclosed DD Form 293 as an application for my new review.
[] I request correction of the decisional document previously issued to me. I understand that this does not entitle me to priority action in correcting my decisional document. I also understand that I will be able to obtain a further review of my case upon my
(a) Semiannual reports will be submitted by the 20th of April and October for the preceding 6-month reporting period (October 1 through March 31 and April 1 through September 30).
(b) The reporting period will be inclusive from the first through the last days of each reporting period.
(c) The report will contain four parts:
(1)
(2)
(3)
(4)
10 U.S.C. 921-932 (Supp. IV 1980).
This part replaces DoD Instruction 1342.10 and DoD Instruction 1342.4, and implements 20 U.S.C. 921-932, to:
(a) Update the policy and eligibility requirements for education of DoD dependent students in overseas areas.
(b) Authorize the enrollment of other minor dependents in DoD dependents schools conditioned upon available space and payment of tuition.
This part applies to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to collectively as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
The terms used in this part are defined below.
(a)
(b)
(c)
(d)
(e)
(f)
(1) Is the child, stepchild, adopted child, ward, or spouse of a DoD sponsor, or who is a resident in the household of a DoD sponsor who stands in loco parentis to such individual and who receives one-half or more of his or her support from such sponsor; and
(2) Has not completed secondary school and who will reach his or her 5th but not 21st birthday by December 31 of the current school year; or
(3) Is handicapped, and is between 3 and 5 years of age by December 31 of the current school year, provided that the Director, DoDDS, or designee, in his or her sole discretion, determines that adequate staff and facilities are available to serve such a handicapped child.
(g)
(h)
(i)
(j)
(k)
(l)
(a) It is the policy of the Department of Defense:
(1) That, while overseas, DoD dependent students may be enrolled in DoD dependents schools or approved non-DoD dependents schools, or may take correspondence courses at U.S. Government expenses, under the conditions prescribed in § 71.5.
(2) To allow the enrollment of other minor dependents in DoD dependents schools, provided that space is available and that tuition is paid.
(b) Section 57 of this title provides guidance concerning the education of handicapped children.
Students may be enrolled in the DoD dependents schools pursuant to paragraphs (a) through (d) of this section, and in that priority, and pursuant to paragraph (e) of this section.
(a)
(2) If, as determined by the Director, DoD Dependents Schools (DoDDS), or designee, no DoD dependents school is available within the commuting area, command-sponsored DoD dependent students are eligible for education in approved non-DoD dependents schools at U.S. Government expense, usually in that same foreign country, or in DoD dependents schools with dormitories, or through correspondence courses at U.S. Government expense.
(3) DoD dependent students may be provided education in approved non-DoD dependents schools or may receive correspondence courses at U.S. Government expense only at locations where DoD dependents schools are not available or are operating at maximum capacity. Only those non-DoD dependents schools with programs considered satisfactory by the Director, DoDDS, or designee, shall be approved to provide education at U.S. Government expense to DoD dependent students. In all cases, the payment of tuition in approved non-DoD dependents schools by the U.S. Government is limited to those DoD dependent students who are authorized transportation at U.S. Government expense to or from an overseas area, if their DoD sponsor is military, and to those DoD dependent students whose DoD sponsor, if civilian, is eligible for a living quarters allowance, as authorized by the Department of State Standardized Regulations and DoD 1400.25-M.
(4) If adequate housing is available within the commuting area of a DoD dependents school and an appropriate educational program is available at that school, tuition will not be authorized for the attendance of DoD dependent students in an approved non-DoD dependents school in that same locality, except as authorized in paragraph (a)(3) of this section. DoD dependent students who currently are enrolled in an approved non-DoD dependents school and who would be adversely affected by this limitation may, at the discretion of the Director, DoDDS, or designee, be authorized to continue in attendance in that approved non-DoD dependents school through the 1984-85 school year, or until the rotation of the DoD sponsor out of the command, whichever is earlier.
(5) Approved non-DoD dependents schools that are available free of charge and that offer instructional programs in English should be used, if feasible, before contracting for education in approved non-DoD dependents schools that charge tuition.
(6) If no DoD dependents school within the commuting area of a handicapped DoD dependent student is able to provide an appropriate education to that student, DoDDS may place the student in another DoD dependents school. If no appropriate DoD dependents school is reasonably available, DoDDS then may place the student at U.S. Government expense in an approved non-DoD dependents school overseas. DoDDS may place a handicapped DoD dependent student in an approved non-DoD dependents school in the United States only if no appropriate school is reasonably available overseas. DoDDS may not place a non-DoD dependent student in a non-DoD dependents school at U.S. Government expense.
(7) DoD dependent students who are the dependents of a DoD sponsor who is detained by a foreign power or is declared missing in action or otherwise unlawfully detained may remain in a DoD dependents school, or in an approved non-DoD dependents school, at U.S. Government expense for as long as the detention or missing status exists, subject to the approval of the Director, DoDDS, or designee.
(8) DoD dependent students who are authorized attendance in a DoD dependents school or an approved non-DoD dependents school may complete
(9) If DoD dependent students are authorized to accompany their DoD sponsor to the country of the sponsor's assignment, such dependent students ordinarily will not be entitled to space-required, tuition-free education in a DoD dependents school in a different overseas country or to education in a non-DoD dependents school at U.S. Government expense in that different country. Any exceptions to this policy must be approved by the Director, DoDDS, or designee.
(b)
(1) Minor dependents of other U.S. Government agency employees stationed overseas.
(2) Minor dependents of U.S. citizens who have executed contracts or who are employed by parent organizations that have executed contracts or other agreements with the Department of Defense when the applicable contract or agreement authorizes dependent education on a tuition basis in the DoD dependents schools. A copy of the document authorizing attendance shall be presented to the appropriate DoD dependents school official at the time of enrollment. Examples of individuals whose minor dependents are covered by this paragraph include:
(i) Nonappropriated fund instrumentalities (universal annual) employees.
(ii) Defense contractor personnel.
(iii) United Services Organizations, Inc., personnel.
(iv) American Red Cross personnel.
(3) Minor dependents of host-nation or third-country national military or civilian personnel accompanying or serving with the Military Services overseas, when recommended by the major overseas commander and when approved by the Director, DoDDS, or designee.
(4) Minor dependents of other sponsors who are serving the national defense interest, as determined by the Director, DoDDS, or designee.
(c)
(1) Minor dependents of military DoD sponsors who are stationed in overseas areas to which their dependents are not authorized transportation at U.S. Government expense or minor dependents of civilian DoD sponsors who are not entitled to a living quarters allowance as authorized by the Department of State Standardized Regulations and DoD 1400.25-M, when the sponsors elect to transport these dependents at their own expense to overseas areas in which the sponsors are stationed (noncommand-sponsored dependents). If at any time during a DoD sponsor's overseas assignment that sponsor's minor noncommand-sponsored dependents become command-sponsored or the sponsor acquires minor, command-sponsored dependents, those dependents shall be authorized “space-required, tuition-free” status.
(2) DoD dependent students who are dependents of DoD sponsors who die while intitled to compensation or active duty pay at the time of the sponsor's death, provided that the surviving spouse either was residing in an overseas area when the sponsor died or has been a citizen of a foreign country and
(3) Noncommand-sponsored DoD dependents who are enrolled in a DoD dependents school may remain in a DoD dependents school if their sponsor is declared missing in action or otherwise unlawfully detained for as long as the detention or missing status exists, subject to the approval of the Director, DoDDS, or designee.
(d)
(1) Dependents of U.S. citizens residing in overseas areas, including dependents of retired personnel, or of deceased personnel not covered in paragraph (c)(2) of this section.
(2) Dependents of foreign nationals, when there is no objection from the host nation and when such inclusion does not displace or prevent inclusion of U.S. citizen-sponsored minor dependents seeking admission on the same basis at the same time.
(e)
(a) The
(b) The
(c) The
(1) Authorize the attendance of DoD dependent students in DoD dependents schools or approved non-DoD dependents schools, or provide correspondence courses at U.S. Government expense, in accordance with this part.
(2) Authorize the enrollment of other minor dependents in DoD dependents schools, in accordance with this part, and establish priorities among those dependents within an eligibility category.
(3) Provide information and guidance to DoD sponsor regarding enrollment in DoD dependents schools, residence in DoD dependents school dormitories or approved non-DoD dependents schools dormitories, enrollment in approved non-DoD dependents schools, and receipt of correspondence courses.
(4) Establish, in coordination with the supporting installation or community commander, commuting areas around DoD dependents schools for the purpose of determining eligibility for transportation of DoD dependent students. (See DoD 4500.36-R.)
(5) Periodically review the educational programs in approved non-DoD dependents schools that are used to educate DoD dependent students to ensure that these programs are satisfactory.
(d)
(1) Advise incoming and newly assigned personnel about the DoD dependent schools’ commuting areas and the extent of pupil transportation service supporting the local DoD dependents schools.
(2) Assist incoming and newly assigned personnel in obtaining housing within the commuting area of the local DoD dependents school, if feasible.
(3) Advise incoming and newly assigned personnel that, if adequate housing is available within the commuting area of a DoD dependents school and if the DoD sponsor's place of employment is also reasonably accessible from that commuting area, tuition assistance will not be available to provide education in approved non-DoD dependents schools for minor dependents of DoD sponsors who elect to reside beyond the commuting area of a DoD dependents school. (see DoD 4500.36)
(4) Inform incoming and newly assigned personnel that they will not be reimbursed for unauthorized enrollments in non-DoD dependents schools.
(a) The “Panama Canal Act of 1979” authorizes the extension of primary, secondary, and postsecondary educational services to DoD dependent students and other categories of dependents. Basic eligibility policy is described in § 71.5 of this part. Exceptional eligibility requirements for education for dependents in the Republic of Panama are addressed below.
(b) Minor dependents may be enrolled in DoD dependents schools or approved non-DoD dependents schools in the Republic of Panama or may receive correspondence courses at U.S. Government expense under the conditions and in the priority indicated below.
(1)
(i) Minor dependents of host-nation or third-country citizens employed by the Department of Defense and paid from appropriated funds, provided that such dependents were enrolled on a tuition-free basis in schools operated by the former Canal Zone Government on September 30, 1979, as then authorized for residents of the former Canal Zone. This provision applies only for uninterrupted enrollments.
(ii) Minor dependents of host-nation or third-country citizen employees transferred to the Department of Defense on October 1, 1979, and paid from appropriated funds may attend approved non-DoD dependents schools in the Republic of Panama at U.S. Government expense when such dependents were enrolled in a non-DoD dependents school under the authority and at the expense of the former Canal Zone Government/Panama Canal Company on September 30, 1979. This provision applies only for uninterrupted enrollments.
(2)
(c) Persons may be enrolled in the Panama Canal College under the conditions and in the priority listed below:
(1)
(i) Military DoD sponsors who are on active duty and stationed in the Republic of Panama.
(ii) Civilian DoD sponsors stationed in the Republic of Panama who are paid from appropriated funds and who have been lawfully accorded the privilege of residing permanently in the United States as immigrants in accordance with the United States immigration laws (8 U.S.C. “Aliens and Nationality”).
(iii) Members of the Military Services who are detained by a foreign power or declared missing in action or otherwise unlawfully detained for as long as the detention or missing status continues to exist. Under these circumstances, authorization for the dependents to remain in the College with DoD tuition assistance must be obtained from DoDDS officials and the local military commander.
(iv) If a sponsor discussed in paragraph (c)(1) (i), (ii), or (iii) of this section, is transferred, retires, or dies during the college semester, the sponsor's dependents may complete the current semester, but subsequently shall lose their eligibility to attend the Panama Canal College.
(2)
(i) Active duty members of the Military Services who are stationed in Panama and family members living with them (unless authorized DoD-sponsored education under paragraph (c)(1) of this section.
(ii) U.S.-citizens employees of the Department of Defense and other U.S. Government agencies, including the Panama Canal Commission, and family members living with them (unless authorized DoD-sponsored education under paragraph (c)(1) of this section).
(iii) Host-nation or third-country citizen employees of the Panama Canal Commission or other U.S. Government agency, district dentists, religious workers, and family members living with them, when such persons were enrolled in a Canal Zone school on a tuition-free basis or under the sponsorship of the former Canal Zone Government/Panama Canal Company on September 30, 1979, as was then authorized for residents of the former Canal Zone.
(iv) Minor dependents of Canal Zone Government/Panama Canal Company host-nation or third-country citizen employees separated through reduction in force action and not reemployed by another U.S. Government agency, when such dependents were enrolled in the former Canal Zone school system on September 30, 1979.
(v) U.S. citizens not specifically addressed above who reside in the Republic of Panama.
(vi) Host-nation and third-country citizens not specifically addressed above who reside in the Republic of Panama when there is no objection from the government of Panama and when such inclusion does not displace or prevent inclusion of U.S. citizens seeking admission on the same basis at the same time.
Pub. L. 99-145, section 1212.
This part:
(a) Prescribes uniform procedures and assigns responsibilities for the Military Services to avoid the unnecessary duplication of postsecondary education offerings in overseas areas under Pub. L. 99-145, section 1212 and DoD Directive 1322.8.
(b) Under Pub. L. 145, section 1212:
(1) Reflects the statutory requirement, subject to the exceptions in § 72.1(b)(2) that no solicitation, contract, or agreement for off-duty postsecondary education services for military members, DoD civilian employees, or the dependents of such military members or employees, other than for services at the graduate or postgraduate level, may limit the offering of such services or any group, category, or level of courses to a single academic institution.
(2) Prescribes criteria for avoiding the unnecessary duplication of educational services by exercising the authority in Pub. L. 99-145 to grant exceptions, when required, to § 72.1(b)(1).
This part:
(a) Applies to the Office of the Secretary of Defense (OSD) and the Military Departments.
(b) Shall be extended to all persons seeking or receiving off-duty postsecondary education services, as described in § 72.1(b)(1).
(a)
(1) When necessary to avoid unnecessary duplication of offerings of postsecondary education services, authorize the issuance of solicitations and the execution of contracts and agreements that limit the provision of such offerings at one or more installations to one institution or a prescribed maximum number of institutions.
(2) Delegate the authority in § 72.3(a)(1) but not below the level of a general or flag officer, or a civilian equivalent.
(a) Under this part, “unnecessary duplication” means the provision of education services by two or more potential offerers which, because of such duplication, is determined to have an adverse effect on the provision of the education services provided in the theater concerned, consistent with ensuring the maximum availability of alternative offerers of such services.
(b) One or more of the following criteria must be satisfied to limit the number of providers of postsecondary education services:
(1) The demographic distribution of the potential student population prevents the effective delivery of postsecondary education services by multiple offerers.
(2) Adequate classroom and administrative space to meet education program needs is not available to multiple providers.
(3) DoD educational staff needed to manage education programs at the installation level are not available.
(4) The theater commander cannot provide reasonable logistic support to installations and persons employed in providing education programs if there are multiple providers. Logistic support includes supplies, services, facilities, transportation, privileges and other benefits provided to nongovernmental entities or individuals.
(c) Where necessary, the enrollments generated at large installations may be used to balance the enrollments at small or remote locations to provide for economies of scale and to ensure availability of the widest range of education services possible at reasonable tuition rates, consistent with § 72.4(a) of this part.
This part is effective May 9, 1988. Forward one copy of implementing documents to the Assistant Secretary of Defense (Force Management and Personnel) within 120 days.
5 U.S.C. 301 and 10 U.S.C. 133.
This part: (a) Establishes training simulator and device development, acquisition, and utilization policy implementing Assistant Secretary of Defense memorandum dated October 5, 1984 in accordance with DoD Directive 5000.1,
(b) Provides guidance for establishing Service policy for training simulators and devices.
(c) Authorizes the Department of Defense to use training simulators and devices to make training systems more effective and to help maintain military readiness. Emphasizes the relationship between the system(s) supported and the training system and supports the requirements for coincident development and concurrency between the system(s) supported and the training system. A systematically developed training system with appropriate training simulators, devices, and embedded training capability cost-effectively provides training for any given weapon or support system. Properly used, such training simulators and devices facilitate: training that might be impractical or unsafe if done with actual systems or equipment; concentrated practice in selected normal and emergency actions; the training of operators and maintainers to diagnose and address possible equipment faults; enhanced
(d) Emphasizes that training simulators and devices are integral parts of an overall training system. Those training systems without training simulators or devices specifically are excluded from this part.
(a) This part applies to the Office of the Secretary of Defense (OSD) and the Military Departments, including their National Guard and Reserve components. The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, Marine Corps, and the National Guard and Reserve components.
(b) This part shall not be construed to usurp management prerogatives or responsibilities of the Military Departments or their Guard or Reserve Components.
(c) For reporting purposes supporting acquisition review for training simulators or devices supporting a major system or comprising nonsystem training equipment, the dollar thresholds shall be those established in DoD 7110.1-M, part II.
(d) When the Secretary of Defense designates any training simulator or device as being of significant interest based on criteria other than cost, the Military Service concerned shall provide the documentation required by this part.
(e) The policies of this part shall be followed regardless of the cost of the training simulators or devices.
(f) In accordance with the responsibilities in E.O. 12344, the Department of Energy (DoE) has cognizance over the development of training systems and devices used in the training of naval nuclear propulsion plant operators. Such systems and devices are not covered by this Directive, but are coordinated separately with DoE.
(a)
(2) All training devices supporting and unique to a major system acquisition should be documented and reviewed with the parent major system. Major system training devices shall be identified in the acquisition process in the Integrated Program Summary
(3) These policies do not imply that a training system, simulator, or device must be procured from the prime contractor for the defense system being supported.
(4) The acquisition of a training system that supports a new defense system or equipment shall be assigned the same priority as that of the parent system or equipment.
(5) Those training devices dedicated to defense systems or equipment should be available in time for the fielding of the parent system.
(6) These policies and the guidelines to implement them apply to acquisition funds from advanced development through procurement.
(7) Joint-Services acquisition of common training devices should be fully considered in
(b)
(2) The DP, which documents the Military Service's training requirement, must integrate the proposed, specific training device hardware or software system being developed and acquired with the training system for which it is intended.
(3) The DP shall address the following items as data become available:
(i) Assessment of Training need and expected benefit from the training device(s).
(ii) Description of the training device(s).
(iii) Acquisition and modification schedule.
(iv) Ability of the training devices to maintain or improve safety.
(v) Course and training estimates including projected student flows and loads, requirements for instructors and other staff, location of training facilities, and other training requirements.
(c)
(i) Life-cycle use versus costs.
(ii) Trade-off with requirements for munitions, if applicable.
(iii) Capability of the training device(s) to accommodate changes made to the parent defense systems based on data on minimum and maximum changes made over the life cycle of similar defense systems.
(iv) Student load and curriculum changes or field application training changes anticipated during the life cycle.
(2) When military specification equipment is not required to meet performance needs, commercial practices and equipment should be used to contain initial procurement and follow-on support costs. Commercially available training programs also deserve serious consideration.
(3) Specifications should cover training functions, performance levels, and required proficiency.
(d)
(a) The
(1) Monitor the Military Services’ compliance with this part.
(2) Designate action officers for training devices associated with major system acquisitions’ constituting major systems in themselves, and non-system training devices meeting the documentation threshold. These action officers shall:
(i) Monitor the status of training devices, as assigned.
(ii) Review Military Service-provided DPs.
(iii) Obtain such reports and information as may be necessary in performing assigned functions, in accordance with DoD Directive 5000.19.
(3) Review the Military Service's Regulations, Manuals, or Instructions implementing this part.
(4) Review the Military Service's acquisition documentation to identify areas of potential joint applicability.
(5) Respond to Congressional inquiries on implementation of this part and results achieved.
(6) Administer a continuing review of policy on training devices, updating this part as necessary.
(b) The
(1) Ensure development of the Military Service's documents implementing this part.
(2) Ensure that the Military Service's charters for program managers of all major defense system acquisitions adequately address their training device responsibilities, and that program managers are supported by training system managers.
(a) OSD oversight for training devices that support a major system or constitute major systems in themselves, shall be accomplished during the system acquisition review process. Military Service-approved DPs, which will evolve as data from detailed training analyses become available, shall be forwarded to OSD not later than the Program Objectives Memorandum (POM) submission in which budget year funds are requested for manufacture of the initial or prototype device(s), but in no case before the milestone listed in paragraph (1) or (2) of this section. Service charges to the DP shall be submitted to OSD as changes occur.
(1) DPs for training devices integral to a major system acquisition shall be submitted to support the Decision Coordinating Paper/Integrated Program summary of the parent defense system by Milestone II.
(2) For training devices designated major systems acquisitions, DPs shall be submitted with, or incorporated into, the System Concept Paper prepared for Milestone I.
(3) For non-system training devices, DPs, shall be submitted not later than the POM submission in which budget year funds are requested for manufacture of the prototype or the first device.
(b)
(2) The TEEP should document the planned evaluation of the training functions, performance levels, and proficiency requirements incorporated in the specifications. The TEEP should be approved by the sponsoring Service at least 6 months before the planned commencement of training effectiveness evaluation.
(3) For training devices not meeting thresholds described in § 73.2 of this part, the Military Servcies are encouraged to prepare, approve, and support a TEEP at least 6 months before the planned commencement of training effectiveness evaluation.
This part is effective August 22, 1986. Forward one copy of each implementing document to the Assistant Secretary of Defense (Force Management and Personnel). Management reports and information specified herein shall be submitted for training devices reaching the stated milestones beginning with FY 87 as required by the ASD memorandum. Requirements shall be waived on a case-by-case basis for
10 U.S.C. 3294, 5574, 8294.
The purpose of this part is to implement the provisions of Pub. L. 763, 84th Congress (70 Stat. 608), relating to the appointment of doctors of osteopathy as medical officers.
In the interest of obtaining maximum uniformity, the following criteria are established for the appointment of doctors of osteopathy as medical officers:
(a) To be eligible for appointment as Medical Corps officers in the Army and Navy or designated as medical officers in the Air Force, a doctor of osteopathy must:
(1) Be a citizen of the United States;
(2) Be a graduate of a college of osteopathy whose graduates are eligible for licensure to practice medicine or surgery in a majority of the States, and be licensed to practice medicine, surgery, or osteopathy in one of the States or Territories of the United States or in the District of Columbia;
(3) Possess such qualifications as the Secretary concerned may prescribe for his service, after considering the recommendations for such appointment by the Surgeon General of the Army or the Air Force or the Chief of the Bureau of Medicine and Surgery of the Navy;
(4) Have completed a minimum of three years college work prior to entrance into a college of osteopathy;
(5) Have completed a four-year course with a degree of Doctor of Osteopathy from a school of osteopathy approved by the American Osteopathic Association; and
(6) Have had subsequent to graduation from an approved school of osteopathy 12 months or more of intern or residency training approved by the American Osteopathic Association.
(b) [Reserved]
Sec. 552 of title 5, United States Code.
This part updates uniform Department of Defense procedures governing conscientious objectors and processing requests for discharge based on conscientious objection.
The provisions of this part apply to the military departments and govern the personnel of the Army, Navy, Air Force, and Marine Corps and all Reserve components thereof.
(a)
(1)
(2)
(b)
(c)
(2) Service in the medical department of any of the Armed Forces, wherever performed.
(3) Any other assignment the primary function of which does not require the use of arms in combat provided that such other assignment is acceptable to the individual concerned and does not require him to bear arms or to be trained in their use.
(4) Service aboard an armed ship or aircraft or in a combat zone shall not be considered to be combatant duty unless the individual concerned is personally and directly involved in the operation of weapons.
(d)
(a) Administrative discharge prior to the completion of an obligated term of service is discretionary with the military service concerned, based on a judgment of the facts and circumstances in the case. However, insofar as may be consistent with the effectiveness and efficiency of the military services, a request for classification as a conscientious objector and relief from or restriction of military duties in consequence thereof will be approved to the extent practicable and equitable within the following limitations:
(1) Except as provided in paragraph (a)(2) of this section, no member of the Armed Forces who possessed conscientious objection beliefs before entering military service is eligible for classification as a conscientious objector if
(i) (
(ii) (
(2) Nothing contained in this part renders ineligible for classification as a conscientious objector a member of the Armed Forces who possessed conscientious objector beliefs before entering military service if (i) such beliefs crystalized after receipt of an induction notice; and (ii) he could not request classification as a conscientious objector by the Selective Service System because of Selective Service System regulations prohibiting the submission of such requests after receipt of induction notice.
(b) Because of the personal and subjective nature of conscientious objection, the existence, honesty, and sincerity of asserted conscientious objection beliefs cannot be routinely ascertained by applying inflexible objective standards and measurements on an “across-the-board” basis. Requests for discharge or assignment to noncombatant training or service based on conscientious objection will, therefore, be handled on an individual basis with final determination made at the headquarters of the military service concerned in accordance with the facts and circumstances in the particular case and the policy and procedures set forth herein.
(a) Consistent with the national policy to recognize the claims of bona fide conscientious objectors in the military service, an application for classification as a conscientious objector may be approved (subject to the limitations of § 75.4(a)) for any individual:
(1) Who is conscientiously opposed to participation in war in any form;
(2) Whose opposition is founded on religious training and beliefs; and
(3) Whose position is sincere and deeply held.
(b) War in any form: The clause “war in any form” should be interpreted in the following manner:
(1) An individual who desires to choose the war in which he will participate is not a conscientious objector under the law. His objection must be to all wars rather than a specific war;
(2) A belief in a theocratic or spiritual war between the powers of good and evil does not constitute a willingness to participate in “war” within the meaning of this part.
(c) Religious training and belief: (1) In order to find that an applicant's moral and ethical beliefs are against participation in war in any form and are held with the strength of traditional religious convictions, the applicant must show that these moral and ethical convictions, once acquired, have directed his life in the way traditional religious convictions of equal strength, depth and duration have directed the lives of those whose beliefs are clearly found in traditional religious convictions. In other words, the belief upon which conscientious objection is based must be the primary controlling force in the applicant's life.
(2) A primary factor to be considered is the sincerity with which the belief is held. Great care must be exercised in seeking to determine whether asserted beliefs are honestly and genuinely held. Sincerity is determined by an impartial evaluation of the applicant's thinking and living in its totality, past and present. Care must be exercised in determining the integrity of belief and the consistency of application. Information presented by the claimant should be sufficient to convince that the claimant's personal history reveals views and actions strong enough to demonstrate that expediency or avoidance of military service is not the basis of his claim.
(i) Therefore, in evaluating applications the conduct of applicants, in particular their outward manifestation of the beliefs asserted, will be carefully examined and given substantial weight.
(ii) Relevant factors that should be considered in determining an applicant's claim of conscientious objection include: Training in the home and church; general demeanor and pattern of conduct; participation in religious activities; whether ethical or moral convictions were gained through training, study, contemplation, or other activity comparable in rigor and dedication to the processes by which traditional religious convictions are formulated; credibility of the applicant; and credibility of persons supporting the claim.
(iii) Particular care must be exercised not to deny the existence of bona fide beliefs simply because those beliefs are incompatible with one's own.
(
(
(
(
(
(d) The burden of establishing a claim of conscientious objection as a ground for separation or assignment to noncombatant training and service is on the applicant. To this end, he must establish by clear and convincing evidence: (1) That the nature or basis of his claim comes within the definition of and criteria prescribed herein for conscientious objection, and (2) that his belief in connection therewith is honest, sincere and deeply held. The claimant has the burden of determining and setting forth the exact nature of his request, i.e., whether for separation based on conscientious objection (1-O) or for assignment to noncombatant training and service based on conscientious objection (1-A-O).
(e) An applicant claiming 1-O status shall not be granted 1-A-O status as a compromise.
(f) Persons who were classified 1-A-O by Selective Service prior to induction shall upon induction be transferred to a training center, or station, for recruit training, and shall be subject to noncombatant service or training. They will be required to sign and date a statement as set forth in the form in § 75.11. Thereafter, upon completion of recruit training, they shall be assigned to noncombatant duty. They may be transferred to the medical corps, or a medical department or unit for further training, provided they meet the requirements therefor. Such persons when assigned to medical units will not be allowed to avoid the important or hazardous duties which are part of the responsibility of all members of the medical organization. Any person who does not meet the requirements for this training, who fails to complete the prescribed course of instruction, or who otherwise cannot be assigned to this duty will be assigned to other noncombat-ant duties.
(g) Commanders at levels directed by the service headquarters are authorized to return to an applicant, without action, any second or subsequent application that is based upon essentially the same grounds, or supported by essentially the same evidence, as a previous application disapproved by the military service concerned.
(h) The provisions of this part will not be used to effect the administrative separation of individuals who do not qualify as conscientious objectors, or in lieu of administrative separation procedures such as those provided for unsuitability or unfitness or as otherwise set forth in part 41 of this title. Individuals determined not qualified for conscientious objector status, but the separation of whom would otherwise appear to be in the best interest of the Armed Forces, should be considered for administrative separation under the provisions of part 41 of this title. Under no circumstances will administrative separation of these individuals be effected pursuant to this part.
(i) Nothing in this part prevents the administrative elimination, pursuant to law and regulations of the military
(a) A member of the Armed Forces who seeks either separation or assignment to noncombatant duties by reason of conscientious objection will submit an application therefor. The applicant will indicate whether he is seeking a discharge or assignment to noncombatant duties and will include the following terms:
(1) The personal information required by § 75.9.
(2) Any other items which the applicant desires to submit in support of his case.
(b) Prior to processing the application of the individual, he will be (1) advised of the specific provisions of section 3103 of title 38, United States Code
(c) The applicant shall be personally interviewed by a chaplain who shall submit a written opinion as to the nature and basis of the applicant's claim, and as to the applicant's sincerity and depth of conviction. The chaplain's report shall include the reasons for his conclusions. In addition, the applicant will be interviewed by a psychiatrist (or by a medical officer if a psychiatrist is not reasonably available) who shall submit a written report of psychiatric evaluation indicating the presence or absence of any psychiatric disorder which would warrant treatment or disposition through medical channels, or such character or personality disorder as to warrant recommendation for appropriate administrative action. This opinion and report will become part of the case file. If the applicant refuses to participate or is uncooperative or unresponsive in the course of the interview, this fact will be included in the statement and report filed by the chaplain and psychiatrist or medical officer.
(d) Commanders at levels directed by the Service Headquarters will appoint an officer in the grade of O-3 or higher to investigate the applicant's claim. The officer so appointed will not be an individual in the chain of command of the applicant. If the applicant is a commissioned officer, the investigating officer must be senior in both temporary and permanent grades to the applicant.
(1) Upon appointment, the investigating officer will review the applicable service regulations which implement this part. During the course of his investigation, the investigating officer will obtain all necessary legal advice from the local Staff Judge Advocate or legal officer.
(2) The investigating officer will conduct a hearing on the application. The purpose of the hearing is: To afford the applicant an opportunity to present evidence he desires in support of his application; to enable the investigating officer to ascertain and assemble all relevant facts; to create a comprehensive record; and to facilitate an informed recommendation by the investigating officer and an informed decision on the merits by higher authority. In this regard, any failure or refusal of the applicant to submit to questioning under oath or affirmation before the investigating officer may be considered by the officer making his recommendation and evaluation of the applicant's claim. If the applicant fails to appear at the hearing without good cause, the investigating officer may proceed in his absence and the applicant will be deemed to have waived his appearance.
(i) If the applicant desires, he shall be entitled to be represented by counsel,
(ii) The hearing will be informal in character and will not be governed by the rules of evidence employed by courts-martial except that all oral testimony presented shall be under oath or affirmation. Any relevant evidence may be received. Statements obtained from persons not present at the hearing need not be made under oath or affirmation. The hearing is not an adversary proceeding.
(iii) The applicant may submit any additional evidence that he desires (including sworn or unsworn statements) and present any witnesses in his own behalf, but he shall be responsible for securing their attendance. The installation or local commander will render all reasonable assistance in making available military members of his command requested by the applicant as witnesses. Further, the applicant will be permitted to question any other witnesses who appear and to examine all items in the file.
(iv) A verbatim record of the hearing is not required. If the applicant desires such a record and agrees to provide it at his own expense, he may do so. If he elects to provide such a record, he shall make a copy thereof available to the investigating officer, at no expense to the Government, at the conclusion of the hearing. In the absence of a verbatim record, the investigating officer will summarize the testimony of witnesses and permit the applicant or his counsel to examine the summaries and note for the record their differences with the investigating officer's summary. Copies of statements and other documents received in evidence will be made a part of the hearing record.
(3) At the conclusion of the investigation, the investigating officer will prepare a written report which will contain the following:
(i) A statement as to whether the applicant appeared, whether he was accompanied by counsel, and, if so, the latter's identity, and whether the nature and purpose of the hearing were explained to the applicant and understood by him.
(ii) Any documents, statements and other material received during the investigation.
(iii) Summaries of the testimony of the witnesses presented (or a verbatim record of the testimony if such record was made).
(iv) A statement of the investigating officer's conclusions as to the underlying basis of the applicant's conscientious objection and the sincerity of the applicant's beliefs, including his reasons for such conclusions.
(v) Subject to § 75.5(e), the investigating officer's recommendations for disposition of the case, including his reasons therefor. The actions recommended will be limited to the following:
(
(
(
(vi) The investigating officer's report, along with the individual's application, all interviews with chaplains or doctors, evidence received as a result of the investigating officer's hearing, and any other items submitted by the applicant in support of his case will constitute the record. The investigating officer's conclusions and recommended disposition will be based on the entire record and not merely on the evidence produced at the hearings. A copy of the record will be furnished to the applicant at the time it is forwarded to the commander who appointed the investigating officer, and the applicant will be informed that he has the right to submit a rebuttal to the report within the time prescribed by the military service concerned.
(e) The record of the case will be forwarded to the headquarters of the officer who appointed the investigating officer where it shall be reviewed for completeness and legal sufficiency. If necessary, the case may be returned to the investigating office for further investigation. When the record is complete, the authority who appointed the investigating officer shall forward it with his personal recommendation for disposition, and the reasons therefor,
(f) The headquarters of the military service concerned will make a final decision based on the entire record. Any additional information other than the official service record of the applicant considered by the headquarters of the military service concerned which is adverse to the applicant, and which the applicant has not had an opportunity to comment upon or refute, will be made a part of the record and the applicant shall be given an opportunity to comment upon or refute the material before a final decision is made. The reasons for an adverse decision will be made a part of the record and will be provided to the individual.
(g) Processing of applications need not be abated by the unauthorized absence of the applicant subsequent to the initiation of the application, or by the institution of disciplinary action or administrative separation proceedings against him. However, an applicant whose request for classification as a conscientious objector has been approved will not be discharged until all disciplinary action has been resolved.
(h) To the extent practicable under the circumstances, during the period applications are being processed and until a decision is made by the headquarters of the service concerned, every effort will be made to assign applicants to duties within the command to which they are assigned which will conflict as little as possible with their asserted beliefs. However, members desiring to file application who are on orders for reassignment may be required by the military service concerned to submit applications at their next permanent duty station. During the period applications are being processed, applicants will be expected to conform to the normal requirements of military service and to perform satisfactorily such duties to which they are assigned. Applicants may be disciplined for violations of the Uniform Code of Military Justice while awaiting action on their applications.
(a) Applicants requesting discharge who are determined to be 1-O conscientious objectors by the headquarters of the service concerned will be discharged for the convenience of the Government with entry in personnel records and discharge papers that the reason for separation is conscientious objection. The type of discharge issued will be governed by the applicant's general military record and the pertinent provisions of part 41 of this title. The Director of the Selective Service System will be promptly notified of the discharge of those who have served less than one hundred and eighty (180) days in the Armed Forces. Pending separation, the applicant will continue to be assigned duties providing the minimum practicable conflict with his professed beliefs and will be expected to conform to the normal requirements of military service and to perform satisfactorily such duties to which he is assigned. Applicants may be disciplined for violations under the Uniform Code of Military Justice while awaiting discharge.
(b) Applicants requesting assignment to noncombatant duties who are determined to be class 1-A-O conscientious objectors by the military department shall be (1) assigned to noncombatant duty as defined in § 75.3, or (2) discharged from military service or released from active duty, at the discretion of the military department. Each applicant will be required to execute the statement in § 75.11.
(c) Persons who are assigned to noncombatant duties, and persons who are assigned to normal military duties by reason of disapproval of their applications, will be expected to conform to the normal requirements of military service and to perform satisfactorily such duties to which they are assigned. Violations of the Uniform Code of Military Justice by these members will be treated as in any other situation.
(a) This section applies to any individual who claims that he is a conscientious objector and was either erroneously inducted, or erroneously assigned to combatant training or duty, for any of the following reasons:
(1) Although determined to be a conscientious objector by a local board or
(2) He was denied a significant procedural right in the classification process by the Selective Service System.
(3) Despite actual classification as a conscientious objector properly reflected in his records, he was nevertheless erroneously inducted, or assigned to combatant training or duty.
(b) Claims covered by paragraph (a) of this section will be referred to the Selective Service System without delay for investigation and ascertainment of the facts. Communication will be transmitted to the National Headquarters, Selective Service System, Washington, DC 20435.
(1) If the Selective Service System advises that induction was in fact erroneous under paragraph (a)(1) or (a)(3) of this section, the claimant will be separated or assigned to noncombatant duties depending upon whether he was classified 1-O or 1-A-O.
(2) If the Selective Service System advises that there was in fact a denial of a right or a significant procedural error in the evaluation of a claim under paragraph (a)(2) of this section, the induction will be considered erroneous and the individual discharged.
(3) If the Selective Service System advises that any claim under paragraph (a) of this section is unfounded or makes a final determination adverse to any claim, the claimant will be so informed and returned to general duty.
(c) Pending investigation and resolution of all claims covered by this section, a claimant will be assigned to duties which conflict as little as practicable with his asserted beliefs, insofar as is consistent with the effectiveness and efficiency of the military forces.
Each person seeking release from active service from the Armed Forces, or assignment to noncombatant duties, as a conscientious objector, will provide the information indicated below as the minimum required for consideration of his request. This in no way bars the military departments from requiring such additional information as they desire. The individual may submit such other information as desired.
(a)
(2) Military serial number; and social security account number.
(3) Selective service number.
(4) Service address.
(5) Permanent home address.
(6) Name and address of each school and college attended (after age 16) together with the dates of attendance, and the type of school (public, church, military, commercial, etc.).
(7) A chronological list of all occupations, positions, jobs, or types of work, other than as a student in school or college (after age 16) whether for monetary compensation or not. Include the type of work, name of employer, address of employer and the from/to date for each position or job held.
(8) All former addresses (after age 16) and dates of residence at those addresses.
(9) Parents’ names and addresses. Indicate whether they are living or deceased.
(10) The religious denomination or sect of both parents.
(11) Was application made to the Selective Service System (local board) for classification as a conscientious objector prior to entry into the Armed Forces? To which local board? What decision was made by the Board, if known?
(12) When the applicant has served less than one hundred and eighty (180) days in the military service, a statement by him as to whether he is willing to perform work under the selective service civilian work program for conscientious objectors, if discharged as a conscientious objector. Also, a statement of the applicant as to whether he consents to the issuance of an order for such work by his local Selective Service Board.
(b)
(2) An explanation as to how his beliefs changed or developed, to include an explanation as to what factors (how, when and from whom or from what source training received and belief acquired) caused the change in or development of conscientious objection beliefs.
(3) An explanation as to when these beliefs became incompatible with military service, and why.
(4) An explanation as to the circumstances, if any, under which the applicant believes in the use of force, and to what extent, under any foreseeable circumstances.
(5) An explanation as to how the applicant's daily lifestyle has changed as a result of his beliefs and what future actions he plans to continue to support his beliefs.
(6) An explanation as to what in applicant's opinion most conspicuously demonstrates the consistency and depth of his beliefs which gave rise to his claim.
(c)
(2) A statement as to whether applicant is a member of a religious sect or organization. If so, the statement will show the following:
(i) The name of the sect, and the name and location of its governing body or head, if known.
(ii) When, where, and how the applicant became a member of said sect or organization.
(iii) The name and location of any church, congregation or meeting which the applicant customarily attends, and the extent of the applicant's active participation therein.
(iv) The name, title, and present address of the pastor or leader of such church, congregation or meeting.
(v) A description of the creed or official statements, if any, and if they are known to him, of said religious sect or organization in relation to participation in war.
(3) A description of applicant's relationships with and activities in all organizations with which he is or has been affiliated, other than military, political, or labor organizations.
(d)
I have been advised of the provisions of 38 U.S.C. 3103 concerning possible nonentitlement to benefits administered by the Veterans Administration due to discharge from the military service as a conscientious objector under certain conditions. I understand that a discharge as a conscientious objector, who refused to perform military duty or otherwise to comply with lawful orders of competent military authority, shall bar all rights, based upon the period of service from which discharged, under any laws administered by the Veterans Administration except my legal entitlement (if any) to any war risks, government (converted) or National Service Life Insurance.
I have been counseled concerning designation as a conscientious objector. Based on my religious training and belief, I consider myself to be a conscientious objector within the meaning of the statute and regulations governing conscientious objectors and am conscientiously opposed to participation in combatant training and service. I request assignment to noncombatant duties for the remainder of my term of service. I fully understand that on expiration of my current term of service I am not eligible for voluntary enlistment, reenlistment, or active service in the Armed Forces.
Sec. 280, 70A Stat. 14; 10 U.S.C. 280.
This part reissues 32 CFR part 76 and establishes DoD policy for planning and procedures for executing mobilization of the Ready Reserve, in compliance with DoD Master Mobilization Plan (MMP), June 26, 1982.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD); the Military Departments and the Coast Guard (by agreement with the Department of Transportation) including the National Guard and Reserve Components; the Organization of the Joint Chiefs of Staff (OJCS); and the Defense Agencies.
(b) Applies to all mobilization of the Ready Reserve. The Ready Reserve comprises units and individuals liable for involuntary order to active duty under sections 672 and 673.
(c) Does not cover the ordering or calling of National Guard units or individuals to duty while under control of State Governments.
(d) Does not cover the involuntary ordering of Coast Guard Reserve units or individuals to active duty in response to domestic emergencies while under the Secretary of Transportation.
(1)
(2)
(3)
(4)
(1)
(2)
(1)
(2)
(3)
Title 10 U.S. Code 672 and 673 provide authority for mobilization of the Ready Reserve. Specific authorities are vested in the President, Congress, the Secretary of Defense, the Secretary of Transportation, and the Secretaries of the Military Departments. Appropriate authority must be obtained from the President, Congress, or Secretary concerned before mobilization actions may be started.
DoD policy directs an increasing reliance on the Ready Reserve to meet
(a)
(1) Achieve and maintain a pretrained manpower pool adequate to staff all shortfalls in active and Reserve Component units to wartime levels of programmed manning within the time specified in mobilization and deployment plans.
(2) Have members of the Individual Ready Reserve (IRR) affiliated or preassigned with units of the active or reserve forces, when practicable, insofar as it would enhance refresher training, rapid deployment, and effective utilization in a war or national emergency.
(3) Achieve an annual aggregate operating strength population in the Reserve Components that possesses skill, grade, and experience qualifications represented in the programmed manning requirements.
(4) Program resources for maximizing the effectiveness and for improving the management of the pretrained manpower pool, including the IRR and the Inactive National Guard (ING).
(b)
(1) Ensure that early deploying Reserve Component units are trained fully in their wartime taskings and are capable of attaining requisite readiness status before the deployment time specified by contingency plans.
(2) Ensure that Reserve Component individuals and units are trained appropriately for augmenting active forces on mobilization.
(3) Determine IRR skill proficiency degradation and conduct skill refresher training.
(4) Ensure that Ready Reserve training and evaluating procedures are consistent with standards established for the active force.
(5) Ensure that training cadres are equipped and prepared for mobilization training base programs supporting the total force after M-Day.
(c)
(1) Procuring and distributing new and/or combat serviceable equipment is consistent with DoD policy guidance in DoD Directive 1225.6.
(2) Equipment interoperability among reserve and active units serving together on the battlefield when interoperability of the respective equipment is essential for effective military operations.
(3) Equipment on hand is adequate for enabling reserve units to conduct effective training before mobilization.
(4) Plans are developed to redistribute those assets left in the Continental United States (CONUS) by units deploying to prepositioned stocks on mobilization, to procure and distribute sufficient assets for not-fully-equipped units before the deployment time specified in contingency plans.
(a)
(1) Provide for fully developed plans of Ready Reserve mobilization including each reserve category in the Ready Reserve; i.e., Selected Reserve, IRR, and ING.
(2) Enhance the readiness of Ready Reserve units and individuals so they may respond rapidly and effectively.
(3) Encompass all actions necessary for warning, alerting, and mobilizing Ready Reserve units and individuals and for bringing them rapidly to full combat capability.
(4) Specify authorizations, responsibilities, and coordination of decisions required for alerting, mobilizing, deploying, and employing Ready Reserve units and individuals.
(5) Provide sufficient flexibility in the mobilization decision and execution process for accommodating rapid changes.
(6) Include appropriate provisions for using National Guard and Ready Reserve members on a voluntary basis during the early stages of increasing tensions.
(7) Include appropriate provisions to facilitate employing mobilized National Guard and other Reserve Component force in support of civil protection where authorized by Federal Statute and directed by the National Command Authority.
(b)
(c)
(d)
(e)
(1)
(2)
(f)
(1)
(2)
(3)
(g)
(h)
(2) Section 671a of title 10 U.S. Code provides that the period of active service of a Service member is extended for the duration of any war in which the United States is engaged and for 6 months thereafter.
(3) Section 671b of title 10 U.S. Code allows the President to authorize the Secretary of Defense to extend maximally for 6 months the enlistments, appointments, and periods of active duty, periods of active duty for training, periods of obligated service or other Military Service when Congress is not is session, with a provision for Congressional review when reconvening.
(4) Section 673c of title 10 U.S. Code empowers the President to suspend any law on promoting, retiring, or separating any member of the Armed Force, whom the President finds to be essential to U.S. security.
(a) The
(b) The
(c) The
(d) The
(e) The
(f)
(g) The
(h) The
(1) Ensure that the Joint Deployment Agency (JDA), Military Transportation Management Command, and other Agencies responsible for ensuring that logistics, transportation, and other requirements for Ready Reserve mobilization may be met promptly.
(2) Ensure that JCS-sponsored mobilization exercises include realistic scenarios that facilitate Military Service testing and assessing of management and mobilization of the Ready Reserve.
(i) The
(1) Prepare mobilization plans in accordance with this part and with supplementary guidance issued by OJCS.
(2) Ensure that mobilization plans and procedures provide for all exigencies so that Ready Reserve units and members execute their responsibilities effectively and the active DoD Components support and effectively assimilate mobilized reserve units and individuals.
(3) Conduct comprehensive assessments for ensuring that a balanced capability exists to mobilize reserve forces. The following areas should be in this assessment:
(i) Intra-CONUS transportation requirements.
(ii) Training base equipment, manpower, and facilities requirements.
(iii) Units training, equipping, and manning requirements.
(iv) Deficiencies in any of these areas should be identified and both short term and long term solutions developed.
(4) Conduct periodic mobilization and readiness tests of Selected Reserve units.
(5) Order IRR members to active duty at least 1 day each year for annual screening.
(6) Order IRR members to active duty, as necessary, for refresher skill proficiency training.
(j) The
10 U.S.C. 1143 (c).
This part implements Pub. L. 102-484, Section 4462 and Pub. L. 103-160, Section 561 by establishing policy, assigning responsibilities, and prescribing procedures to:
(a) Encourage and assist separating Service members, Service members retiring with 20 or more years of service, DoD civilian personnel leaving the Government, and spouses to enter public and community service employment.
(b) Encourage and assist Service members requesting retirement with fewer than 20 years of service to register for public and community service employment.
This part applies to:
(a) The Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Unified Combatant Commands, and the Defense Agencies (hereafter referred to collectively as “the DoD Components”). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, and the Marine Corps.
(b) All active duty Service members and former members under Pub. L. 102-484, Section 4462 and Pub. L. 103-160, Section 561, and DoD civilian personnel leaving the Government, and their spouses.
(a)
(b)
(c)
(d)
(1) Elementary, secondary, or post secondary school teaching or administration.
(2) Support of teachers or school administrators.
(3) Law enforcement.
(4) Public health care.
(5) Social services.
(6) Public safety.
(7) Emergency relief.
(8) Public housing.
(9) Conservation.
(10) Environment.
(11) Job training.
(12) Other public and community service not listed previously, but consistent with or related to services described in paragraphs(d)(1) through (11) of this section.
(e)
(f)
(g)
It is DoD policy that:
(a) All separating Service members and former members shall be encouraged to enter public or community service employment.
(b) Service members determined to be eligible by the Secretary of their Military Department for, and who do request retirement with fewer than 20 years of service, are required by Pub. L. 102-484, Section 4403 to register for public and community service employment.
(1) This registration normally shall take place not earlier than 90 days before retirement or terminal/transition leave.
(2) In order to have their military retired pay and Survivor Benefit Plan base amount (if applicable) recomputed in accordance with DoD Instruction 1340.19
(c) DoD civilian personnel leaving the Government, their spouses, and spouses of Service members who are seeking employment shall be encouraged to register for public and community service employment.
(a) The Under Secretary of Defense for Personnel and Readiness shall:
(1) Monitor compliance with this rule.
(2) Establish policy and provide guidance related to public and community service employment.
(3) Provide program information to the public on the Department of Defense's public and community service employment program.
(4) Ensure that the Director, Defense Manpower Data Center (DMDC):
(i) Maintains the Public and Community Service Organizational Registry.
(ii) Maintains the Public and Community Service Personnel Registry.
(5) Decide the status of requests for reconsideration from employers resubmitting their request to be included on the Public and Community Service Organizational Registry, but whose first request was disapproved.
(b) The Secretaries of the Military Departments shall:
(1) Ensure compliance with this rule.
(2) Encourage public and community service employment for separating Service members, their spouses, DoD civilian personnel leaving the Government, and their spouses.
(3) Coordinate with the Under Secretary of Defense for Personnel and Readiness before promulgating public and community service employment policies and regulations.
(a) Military personnel offices shall advise Service members desiring to apply for early retirement that they shall register, normally, within 90 days of their retirement date, for public and community service (PACS) employment, and refer them to a Transition Assistance Program Counselor for registration.
(b) Personnel offices shall advise separating Service members, DoD civilian personnel leaving the Government, and their spouses to contact a Transition Assistance Program Counselor about PACS employment and registration.
(c) Transition Assistance Program Counselors shall counsel separating Service members (during preseparation counseling established by DoD Instruction 1332.36
(1) Registering for PACS employment is a requirement for consummation of their early retirement under Pub. L. 102-484, Section 4403 or Pub. L. 103-160, Section 561.
(2) Early retirees must provide a copy of their confirmation DORS mini-resume to their servicing military personnel office for filing in their Service record before their final retirement processing.
(3) Subsequent PACS employment is encouraged but not required.
(4) Working in a DoD-approved Federal public service organization may subject him or her to dual compensation restrictions of 5 U.S.C. 5532.
(5) DoD-approved PACS employment qualifies the Service member who is retired under Pub. L. 102-484, Section 4403 or Pub. L. 103-160, Section 561 for increased retired pay effective on the first day of the first month beginning after the date on which the member or former member attains 62 years of age. The former Service member must have worked in DoD-approved PACS employment between the date of early retirement and the date in which he or she would have attained 20 years of creditable service for computing retired pay, and have retired on or after October 23, 1992 and before October 1, 1999.
(6) It is the early retiree's responsibility to ensure that the DMDC is advised when the early retiree's PACS employment starts, and of any subsequent changes.
(d) Military personnel offices shall ensure a copy of the confirmation DORS mini-resume is filed in the permanent document section of the Service record of Service members who retire early.
(e) DMDC shall maintain the PACS Personnel Registry, which includes information on the particular job skills, qualifications, and experience of registered personnel.
(f) DMDC shall maintain the PACS Organizational Registry, which includes information regarding each organization, including its location, size, types of public or community service positions in the organization, points of contact, procedures for applying for such positions, and a description of each position that is likely to be available.
(g) PACS Organizations shall use DD Form 2581 (Appendix B to this part) and DD Form 2581-1 (Appendix C to this part) to request registration on the PACS Organizational Registry. Instructions on how to complete the forms and where to send them are on the forms.
(h) DMDC shall register those organizations meeting the definition of a PACS organization and include them on the PACS Organizational Registry. For organizations that do not appear to meet the criteria, DMDC shall refer the request to the Transition Support and Services Directorate, Office of the Assistant Secretary of Defense for Personnel and Readiness. The Transition Support and Services Directorate may consult individually on an ad hoc basis with appropriate agencies to determine whether or not the organization meets the validation criteria. For organizations which are denied approval as a creditable early retirement organization and which request reconsideration, the Transition Support and Services Directorate will forward that request to the next higher level for a final determination. DMDC shall advise organizations of their status.
10 U.S.C. 1045.
Under 10 U.S.C. 1045, this part provides implementing guidance for voluntary State tax withholding from the retired pay of uniformed Service members.
(a) This part applies to the Office of the Secretary of Defense, the Military Departments, the Coast Guard (under agreement with the Department of Transportation), the Public Health Service (PHS) (under agreement with the Department of Health and Human Services and the National Oceanic and Atmospheric Administration (NOAA) (under agreement with the Department of Commerce). The term “Uniformed Services,” as used herein, refers to the Army, Navy, Air Force, Marine Corps, Coast Guard, commissioned corps of the PHS, and the Commissioned corps of the NOAA.
(b) It covers members retired from the regular and reserve components of the Uniformed Services who are receiving retired pay.
(a)
(b)
(c)
(d)
(a) It is the policy of the Uniformed Services to accept written requests from members for voluntary income tax withholding from retired pay when the Department of Defense has an agreement for such withholding with the State named in the request.
(b) The Department of Defense shall enter into an agreement for the voluntary withholding of State income taxes from retired pay with any State within 120 days of a request for agreement from the proper State official. The agreement shall provide that the Uniformed Services shall withhold State income tax from the monthly retired pay of any member who voluntarily requests such withholding in writing.
(a) The amounts withheld during any calendar quarter shall be retained by the Uniformed Service and disbursed to the States during the month following that calendar quarter. Payment procedures shall conform, to the extent practicable, to the usual fiscal practices of the Uniformed Services.
(b) A member may request that the State designated for withholding be changed and that the subsequent withholdings be remitted as amended. A member may revoke his or her request for withholding at any time. Any request for a change in the State designated or any revocation is effective on the first day of the month after the
(c) A member may have in effect at any time only one request for withholding under this part. A member may not have more than two such requests in effect during any one calendar year.
(d) The agreements with States may not impose more burdensome requirements on the United States than on employers generally or subject the United States, or any member, to a penalty or liability because of such agreements.
(e) The Uniformed Services shall perform the services under this part without accepting payment from States for such services.
(f) The Uniformed Services may honor a retiree's request for refund until a payment has been made to the State. After that, the retiree may seek a refund of any State tax overpayment by filing the appropriate State tax form with the State that received the voluntary withholding payments. The Uniformed Services may honor a retiree's request for refund until a payment has been made to the State. State refunds will be in accordance with State income tax policy and procedures.
(g) A member may request voluntary tax withholding by writing the retired pay office of his or her Uniformed Service. The request shall include: The member's full name, social security number, the fixed amount to be withheld monthly from retired pay, the State designated to receive the withholding, and the member's current residence address. The request shall be signed by the member, or in the case of incompetence, his or her guardian or trustee. The amount of the request for State tax withholding must be an even dollar amount, not less than $10 or less than the State's minimum withholding amount, if higher. The Uniformed Services’ retired pay office addresses are given as follows:
(1) Army—Commanding Officer, Army Finance and Accounting Center (Dept. 90), Indianapolis, IN 46249, (800) 428-2290.
(2) Navy—Commanding Officer, Navy Finance Center (Code 301), Anthony J. Celebrezze Federal Building, Cleveland, OH 44199, (800) 321-1080.
(3) Air Force—Commander, Air Force Accounting and Finance Center, Attn: RP, Denver, CO 80279, (800) 525-0104.
(4) Marine Corps—Commanding Officer (CPR), Marine Corps Finance Center, Kansas City, MO 64197, (816) 926-7130.
(5) Coast Guard—Commanding Officer (Retired), U.S. Coast Guard Pay and Personnel Center, 444 S.E. Quincy Street, Topeka, KS 66683, (913) 295-2657.
(6) PHS—U.S. Public Health Service, Compensation Branch, 5600 Fisher Lane, Room 4-50, Rockville, MD 20857, (800) 638-8744 (except AK & MD), (301) 443-6132 (AK & MD).
(7) NOAA—Commanding Officer, Navy Finance Center (Code 301), Anthony J. Celebrezze Federal Building, Cleveland, OH 44199, (800) 321-1080.
(h) If a member's retired pay is not sufficient to satisfy a member's request for a voluntary State tax, then the withholding will cease. A member may initiate a new request when such member's retired pay is restored in an amount sufficient to satisfy the withholding request.
(i) A State requesting an agreement for the voluntary withholding of State tax from the retired pay of members of the Uniformed Services shall indicate, in writing, its agreement to be bound by the provisions of this part. If the State proposes an agreement that varies from the Standard Agreement, the State shall indicate which provisions of the Standard Agreement are not acceptable and propose substitute provisions. The letter shall be addressed to the Assistant Secretary of Defense (Comptroller), the Pentagon, Washington, DC 20301. To be effective, the letter must be signed by a State official authorized to bind the State under an agreement for tax withholding. Copies of applicable State laws that authorize employers to withhold State income tax and authorize the official to bind the State under an agreement for tax withholding shall be enclosed with the letter. The letter also shall indicate the title and address of the official whom the Uniformed Services may contact to obtain information necessary for implementing withholding.
(j) Within 120 days of the receipt of a letter from a State, the Assistant Secretary of Defense (Comptroller), or designee, will notify the State, in writing, that DoD has either entered into the Standard Agreement or that an agreement cannot be entered into with the State and the reasons for that determination.
(a) The Assistant Secretary of Defense (Comptroller) shall provide guidance, monitor compliance with this part, and have the authority to change or modify the procedures set forth.
(b) The Secretaries of the Military Departments and Heads of the other Uniformed Services shall comply with this part.
Standard Agreement For Voluntary State Tax Withholding From The Retired Pay Of Uniformed Service Members
This agreement, hereafter referred to as the “Standard Agreement,” establishes administrative procedures and assigns responsibilities for voluntary State tax withholding from the retired pay of Uniformed Service members consistent with section 654 of the Department of Defense Authorization Act for Fiscal Year 1985 (Pub. L. 98-525), codified as 10 U.S.C. 1045.
The parties to this agreement are the Department of Defense on behalf of the Uniformed Services and the State that has entered into this agreement pursuant to 10 U.S.C. 1045.
The parties to the Standard Agreement are bound by the provisions in title 32, Code of Federal Regulations, part 78. The Secretary of Defense may amend, modify, supplement, or change the procedures for voluntary State tax withholding from retired pay of Uniformed Service members after giving notice in the
Copies of Internal Revenue Service Form W-2P, “Statement for Recipients of Annuities, Pensions, Retired Pay or IRA Payments,” may be used for reporting withheld taxes to the State. The media for reporting (paper copy, magnetic tape, etc.) will comply with State reporting standards that apply to employers in general.
A. This agreement shall be subject to any amendment of 10 U.S.C. 1045 and any regulations issued pursuant to such statutory change.
B. In addition to the provisions of Article III, the agreement may be terminated by a party to the Standard Agreement by providing the other party with written notice to that effect at least 90 days before the proposed termination.
C. Nothing in this agreement shall be deemed to:
1. Require the collection of delinquent tax liabilities of retired members of the Uniformed Services;
2. Consent to the application of any provision of State law that has the effect of imposing more burdensome requirements upon the United States than the State imposes on other employers, or subjecting the United States or any member to any penalty or liability;
3. Consent to procedures for withholding, filing of returns, and payment of the withheld taxes to States that do not conform to the usual fiscal practices of the Uniformed Services;
4. Allow the Uniformed Services to accept payment from a State for any services performed with regard to State income tax withholding from the retired pay of Uniformed Service members.
E.O. 10996, 5 U.S.C. 5518, 8331-8348, and 32 U.S.C. 709.
This part is reissued to update the policies that implement title 5 U.S.C.
(a) This part applies to the Office of the Secretary of Defense and the Departments of the Army and the Air Force.
(b) Its provisions establish terms and conditions governing Federal and employee contributions for National Guard technicians who have elected participation in a State-sponsored employee retirement program not later than January 1, 1969. An eligible State employee retirement program may extend to disability and survivor benefits.
(a)
(b)
(c)
It is the policy of the Department of Defense to: (a) Negotiate agreements with States for Federal employees’ contributions to a State or State-sponsored contributory retirement program; and (b) cooperate and process agreements with each State requesting a withholding agreement covering technicians of the National Guard for a State-sponsored retirement program.
(a) Section 6(a) of Public Law 90-486 requires technicians who elected to continue coverage under a State retirement plan to make such an election by January 1, 1969. If a technician filed a valid election to remain covered by an employee retirement system sponsored by a State, the U.S. Government may pay the amount of the employer's contribution and withhold the employee's designated share for deposit to the State program that becomes due for the period beginning on or after January 1, 1969.
(b) The Federal share of payments, including employer's taxes imposed by 26 U.S.C. 3111, may not exceed the amount that the employing agency otherwise would contribute on behalf of the technician to the Civil Service Retirement and Disability Fund under 5 U.S.C. 8334.
(c) A person covered under a State-sponsored program shall not concurrently earn credits toward retirement or receive an annuity under 5 U.S.C. 8334.
(d) A person who retires under a State retirement program shall not be eligible for any rights, benefits, or privileges to which retired civilian employees of the United States may be entitled.
(e) Agreements with States shall comply with the standards contained in § 79.7.
(a) The
(b) The
Each agreement between the Secretary of Defense and the Governor, or other authorized State official, for employer and employee contributions to a State retirement program for National Guard technicians shall be completed within 120 days of receipt of a State request, Provided,
(a) State law provides for payment of employee contributions to a State-sponsored employee retirement system
(b) The program is limited to technicians of the National Guard.
(c) Each agreement is consistent with this Directive and contains a clause that subjects the agreement to any statutory amendments occurring after the effective date of the agreement.
(d) The agreement shall comply with the requirements of State law that specify who is eligible for such State-sponsored retirement programs.
(e) The commencement date for contributions must be specified.
(f) Contribution procedures, filing requirements, and payment instructions conform, when practicable, to the usual fiscal practices of the Department of the Army and the Department of the Air Force.
(g) The agreement does not impose requirements on the Department of Defense that are more burdensome than those requirements imposed on departments, agencies, or subdivisions of the State concerned.
(h) Except to the extent that an agreement may be inconsistent with this Directive, it shall continue in full force and effect until amended, modified, or terminated by appropriate authority.
20 U.S.C. 1400 et seq.; 20 U.S.C. 241; 20 U.S.C. 241 note.
This part:
(a) Establishes policies and procedures for the provision of early intervention services to infants and toddlers with disabilities (birth to age 2 inclusive) and their families, and special education and related services to children with disabilities (ages 3-21 inclusive) entitled to receive special educational instruction or early intervention services from the Department of Defense under Pub. L. 81-874, sec. 6, as amended; Pub. L. 97-35, sec. 505(c); the Individuals with Disabilities Education Act, Pub. L. 94-142, as amended; Pub. L. 102-119, sec. 23; and consistent with 32 CFR parts 285 and 310, and the Federal Rules of Civil Procedures (28 U.S.C.).
(b) Establishes policy, assigns responsibilities, and prescribes procedures for:
(1) Implementation of a comprehensive, multidisciplinary program of early intervention services for infants and toddlers ages birth through 2 years (inclusive) with disabilities and their families.
(2) Provision of a free, appropriate education including special education and related services for preschool children with disabilities and children with disabilities enrolled in the Department of Defense Section 6 School Arrangements.
(c) Establishes a Domestic Advisory Panel (DAP) on Early Intervention and Education for Infants, Toddlers, Preschool Children and Children with Disabilities, and a DoD Coordinating Committee on Domestic Early Intervention, Special Education and Related Services.
(d) Authorizes the publication of DoD Regulations and Manuals, consistent with DoD 5025.1-M,
This part:
(a) Applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Unified and Specified Commands, the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Agencies (hereafter referred to collectively as “the DoD Components”).
(b) Encompasses infants, toddlers, preschool children, and children receiving or entitled to receive early intervention services or special educational instruction from the DoD on installations with Section 6 School Arrangements, and the parents of those individuals with disabilities.
(c) Applies only to schools operated by the Department of Defense within the Continental United States, Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa, the Northern Mariana Islands, and the Virgin Islands.
(a)
(b)
(1) Evaluating the needs of an individual with a disability, including a functional evaluation of the individual in the individual's customary environment.
(2) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by individuals with disabilities.
(3) Selecting designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing of assistive technology devices.
(4) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing educational and rehabilitative plans and programs.
(5) Training or technical assistance for an individual with disabilities, or, where appropriate, the family of an individual with disabilities.
(6) Training or technical assistance for professionals (including individuals providing educational rehabilitative services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of an individual with a disability.
(c)
(1) A diagnosis of ADD may be made only after the child is evaluated by appropriate medical personnel, and evaluation procedures set forth in this part (appendix B to this part) are followed.
(2) A diagnosis of ADD, in and of itself, does not mean that a child requires special education; it is possible that a child diagnosed with ADD, as the only finding, can have his or her educational needs met within the regular education setting.
(3) For a child with ADD to be eligible for special education, the Case Study Committee, with assistance from the medical personnel conducting the evaluation, must then make a determination that the ADD is a chronic or acute health problem that results in limited alertness, which adversely affects educational performance. Children with ADD who are eligible for special education and medically related services will qualify for services under “Other Health Impaired” as described in Criterion A, paragraph (h)(1) of this section.
(d)
(e)
(1) The designated representative of the Section 6 School Arrangement, who is qualified to supervise the provision of special education. Such representative may not be the child's special education teacher.
(2) One, or more, of the child's regular education teachers, if appropriate.
(3) A special education teacher.
(4) One, or both, of the child's parents.
(5) The child, if appropriate.
(6) A member of the evaluation team or another person knowledgeable about the evaluation procedures used with the child.
(7) Other individuals, at the discretion of the parent or the Section 6 School Arrangement, who may have pertinent information.
(f)
(g)
(1)
(2)
(i) Intellectual deficit;
(ii) Sensory or physical impairment;
(iii) Attention deficit hyperactivity disorder;
(iv) Antisocial behavior;
(v) Parent-child or family problems;
(vi) Disruptive behavior disorders;
(vii) Adjustment disorders;
(viii) Interpersonal or life circumstance problems; or
(ix) Other problems that are not the result of a severe emotional disorder.
(3)
(4)
(5)
(h)
(1) The parent of an infant, toddler, child, or preschool child with a disability has been fully informed, in his or her native language, or in another mode of communication, of all information relevant to the activity for which permission is sought.
(2) The parent understands and agrees in writing to the implementation of the activity for which his or her permission is sought. The writing must describe that activity, list the child's records that will be released and to whom, and acknowledge that the parent understands consent is voluntary and may be prospectively revoked at any time.
(3) The parent of an infant, toddler, preschool child or child must consent to the release of records. The request for permission must describe that activity, list each individual's records that will be released and to whom, and acknowledge that the parent understands that consent is voluntary and may be prospectively revoked at any time.
(4) The written consent of a parent of an infant or toddler with a disability is necessary for implementation of early intervention services described in the individualized family service plan (IFSP). If such parent does not provide consent with respect to a particular early intervention service, then the early intervention services for which consent is obtained shall be provided.
(i)
(j)
(k)
(l)
(m)
(1) Are provided under the supervision of a military medical department.
(2) Are provided using Military Health Service System and community resources.
(i) Evaluation IFSP development and revision, and service coordination services are provided at no cost to the infant's or toddler's parents.
(ii) Incidental fees (e.g., child care fees) that are normally charged to infants, toddlers, and children without disabilities or their parents may be charged.
(3) Are designed to meet the developmental needs of an infant or toddler with a disability in any one or more of the following areas: Physical development, cognitive development, communication development, social or emotional development, or adaptive development.
(4) Meet the standards developed by the Assistant Secretary of Defense for Health Affairs (ASD(HA)).
(5) Include the following services: Family training, counseling, and home visits; special instruction; speech pathology and audiology; occupational therapy; physical therapy; psychological services; early intervention program coordination services; medical services only for diagnostic or evaluation purposes; early identification, screening, and assessment services; vision services; and social work services. Also included are assistive technology devices and assistive technology services; health services necessary to enable the infant or toddler to benefit from the above early intervention services; and transportation and related costs that are necessary to enable an infant or toddler and the infant's or toddler's family to receive early intervention services.
(6) Are provided by qualified personnel, including: Special educators; speech and language pathologists and audiologists; occupational therapists; physical therapists; psychologists; social workers; nurses’ nutritionists; family therapists; orientation and mobility specialists; and pediatricians and other physicians.
(7) To the maximum extent appropriate, are provided in natural environments, including the home and community settings in which infants and toddlers without disabilities participate.
(8) Are provided in conformity with an IFSP.
(n)
(o)
(p)
(1) Are provided at no cost (except as provided in paragraph (xx)(1) of this section, to parents or child with a disability and are under the general supervision and direction of a Section 6 School Arrangement.
(2) Are provided at an appropriate preschool, elementary, or secondary school.
(3) Are provided in conformity with an Individualized Education Program.
(4) Meet the requirements of this part.
(q)
(r)
(1) Such services as clean intermittent catheterization, tracheostomy care, tube feeding, the changing of dressings or osteotomy collection bags, and other health services.
(2) Consultation by physicians with other service providers on the special health care needs of infants and toddlers with disabilities that will need to be addressed in the course of providing other early intervention services.
(3) The term does not include the following:
(i) Services that are surgical in nature or purely medical in nature.
(ii) Devices necessary to control or treat a medical condition.
(iii) Medical or health services that are routinely recommended for all infants or toddlers.
(s)
(t)
(u)
(v)
(w)
(x)
(y)
(z)
(1) Are experiencing a developmental delay, as measured by appropriate diagnostic instruments and procedures, of 25 percent (or 2 standard deviations below the mean), in one or more areas, or 20 percent (or 1
(2) Are at-risk for a developmental delay; i.e., have a diagnosed physical or mental condition that has a high probability of resulting in developmental delay; e.g., chromosomal disorders and genetic syndromes.
(aa)
(bb)
(2) Provision of either direct or indirect services listed on an IEP as necessary for the student to benefit from the educational curriculum. These services may include: Medical; social work; community health nursing; dietary; psychiatric diagnosis; evaluation, and follow up; occupational therapy; physical therapy; audiology; ophthalmology; and psychological testing and therapy.
(cc)
(dd)
(ee)
(ff)
(gg)
(hh)
(ii)
(1) Conducting individual assessments in nutritional history and dietary intake; anthropometric, biochemical and clinical variables; feeding skills and feeding problems; and food habits and food preferences.
(2) Developing and monitoring appropriate plans to address the nutritional needs of infants and toddlers eligible for early intervention services.
(3) Making referrals to appropriate community resources to carry out nutrition goals.
(jj)
(kk)
(ll)
(mm)
(nn)
(1) Are experiencing developmental delays, as measured by appropriate diagnostic instruments and procedures in one or more of the following areas: Cognitive development, physical development, communication development, social or emotional development, and adaptive development; and
(2) Who, by reason thereof, need special education and related services.
(oo)
(pp)
(qq)
(rr)
(1)
(i) Audiological, diagnostic, and prescriptive services provided by audiologists who have a Certificate of Clinical Competence—Audiology (CCC-A) and pediatric experience. Audiology shall not include speech therapy.
(ii) Identification of children with hearing loss.
(iii) Determination of the range, nature, and degree of hearing loss, including referral for medical or other professional attention designed to ameliorate or correct that loss.
(iv) Provision of ameliorative and corrective activities, including language and auditory training, speech-reading (lip-reading), hearing evaluation, speech conservation, the recommendation of amplification devices, and other aural rehabilitation services.
(v) Counseling and guidance of children, parents, and service providers regarding hearing loss.
(vi) Determination of the child's need for group and individual amplification, selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification.
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(i) Administering psychological and educational tests and other assessment procedures.
(ii) Interpreting test and assessment results.
(iii) Obtaining, integrating, and interpreting information about a preschool child's or child's behavior and conditions relating to his or her learning.
(iv) Consulting with other staff members in planning school programs to meet the special needs of preschool children and children, as indicated by psychological tests, interviews, and behavioral evaluations.
(v) Planning and managing a program of psychological services, including psychological counseling for preschool children, children, and parents. For the purpose of these activities, a qualified psychologist is a psychologist licensed in a State of the United States who has a degree in clinical or school psychology and additional pediatric training and/or experience.
(9)
(i) Assessment of leisure activities.
(ii) Therapeutic recreational activities.
(iii) Recreational programs in schools and community agencies.
(iv) Leisure education.
(10)
(11)
(i) Preparing a social and developmental history on a preschool child or child identified as having a disability.
(ii) Counseling the preschool child or child with a disability and his or her family on a group or individual basis, pursuant to an IEP.
(iii) Working with problems in a preschool child's or child's living situation (home, school, and community) that adversely affect his or her adjustment in school.
(iv) Using school and community resources to enable the preschool child or child to receive maximum benefit from his or her educational program.
(12)
(i) Identification of preschool children and children with speech or language disorders.
(ii) Diagnosis and appraisal of specific speech or language disorders.
(iii) Referral for medical or other professional attention to correct or ameliorate speech or language disorders.
(iv) Provision of speech and language services for the correction, amelioration, and prevention of communicative disorders.
(v) Counseling and guidance of preschool children, children, parents, and teachers regarding speech and language disorders.
(13)
(i) Travel to and from school and between schools, including travel necessary to permit participation in educational and recreational activities and related services.
(ii) Travel from school to a medically related service site and return.
(iii) Travel in and around school buildings.
(iv) Travel to and from early intervention services.
(v) Specialized equipment (including special or adapted buses, lifts, and ramps) if required to provide special transportation for an individual with a disability.
(vi) If necessary, attendants assigned to vehicles transporting an individual with a disability when that individual requires assistance to be safely transported.
(ss)
(tt)
(uu)
(1) A condition that has been confirmed by clinical evaluation and diagnosis and that, over a long period of time and to a marked degree, adversely affects educational performance and that exhibits one or more of the following characteristics:
(i) An inability to learn that cannot be explained by intellectual, sensory, or health factors.
(ii) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(iii) Inappropriate types of behavior under normal circumstances.
(iv) A tendency to develop physical symptoms or fears associated with personal or school problems.
(v) A general, pervasive mood of unhappiness or depression.
(2) Schizophrenia, but does not include children who are socially maladjusted, unless it is determined that they are otherwise seriously emotionally disturbed.
(vv)
(ww)
(1) Preparing a social or developmental history on an infant, toddler, preschool child or child with a disability.
(2) Counseling with the infant, toddler, preschool child or child and family in a group or individual capacity.
(3) Working with individuals with disabilities (0-21 inclusive) in the home school, and/or community environment to ameliorate those conditions that adversely affect development or educational performance.
(4) Using school and community resources to enable the child to receive maximum benefit from his or her educational program or for the infant, toddler, and family to receive maximum benefit from early intervention services.
(xx)
(1)
(2)
(i) Physical and motor fitness.
(ii) Fundamental motor skills and patterns.
(iii) Skills in aquatics, dance, and individual and group games and sports (including intramural and lifetime sports).
(iv) A program that includes special physical education, adapted physical education, movement education, and motor development.
(3)
(yy)
(1) Designing learning environments and activities that promote the infant's, toddler's, preschool child's or child's acquisition of skills in a variety of developmental areas, including cognitive processes and social interaction.
(2) Planning curriculum, including the planned interaction of personnel, materials, and time and space, that leads to achieving the outcomes in the infant's, toddler's, preschool child's or child's IEP or IFSP.
(3) Providing families with information, skills, and support related to enhancing the skill development of the infant, toddler, or preschool child or child.
(4) Working with the infant, toddler, preschool child, or child to enhance the infant's, toddler's, preschool child's or child's development and cognitive processes.
(zz)
(aaa)
(bbb)
(ccc)
(ddd)
(eee)
(fff)
It is DoD policy that:
(a) All individuals with disabilities ages 3 to 21 years receiving or entitled to receive educational instruction from the Section 6 School Arrangements shall be provided a free, appropriate education under this part in accordance with the IDEA as amended, 20 U.S.C. Chapter 33; Pub. L. 102-119, Section 23; and DoD Directive 1342.21.
(b) All individuals with disabilities ages birth through 2 years (inclusive) and their families are entitled to receive early intervention services under this part, provided that such infants and toddlers would be eligible to enroll in a Section 6 School Arrangement but for their age.
(a) The Under Secretary of Defense for Personnel and Readiness (USD(P&R)) shall:
(1) Ensure that all infants and toddlers with disabilities (birth through 2 years inclusive) who but for their age would be eligible to attend the Section 6 Arrangement Schools, and their families are provided early intervention services in accordance with IDEA as amended, (20 U.S.C., Chapter 33, Subchapter VIII.) and in conformity with the procedures in appendix A to this part.
(2) Ensure that preschool children and children with disabilities ages 3-21 years (inclusive) receiving educational instruction from Section 6 School Arrangements are provided a free appropriate public education and that the educational needs of such preschool children and children with disabilities are met using the procedures established by this part.
(3) Ensure that educational facilities and services provided by Section 6 School Arrangements for preschool children and children with disabilities are comparable to educational facilities and services for non-disabled students.
(4) Maintain records on special education and related services provided to children with disabilities, consistent with 32 CFR part 310.
(5) Ensure the provision of all necessary diagnostic services and special education and related services listed on an IEP (including those supplied by or under the supervision of physicians) to preschool children and children with disabilities who are enrolled in Section 6 School Arrangements. In fulfilling this responsibility, (USD(P&R)), or designee, may use intercomponent arrangements, or act through contracts with private parties, when funds are authorized and appropriated.
(6) Develop and implement a comprehensive system of personnel development, in accordance with 20 U.S.C. 1413-(a)(3), for all professional staff employed by a Section 6 School Arrangement. This system shall include:
(i) Inservice training of general and special educational instructional and support personnel,
(ii) Implementing innovative strategies and activities for the recruitment and retention of medically related service providers,
(iii) Detailed procedures to assure that all personnel necessary to carry out the purposes of this part are appropriately and adequately prepared and trained, and
(iv) Effective procedures for acquiring and disseminating to teachers and administrators of programs for children with disabilities significant information derived from educational research, demonstration, and similar projects, and
(v) Adopting, where appropriate, promising practices, materials, and technology.
(7) Provide technical assistance to professionals in Section 6 School Arrangements involved in, or responsible for, the education of preschool children or children with disabilities.
(8) Ensure that child-find activities are coordinated with other relevant components and are conducted to locate and identify every individual with disabilities.
(9) Issue guidance implementing this part.
(10) Undertake evaluation activities to ensure compliance with this part through monitoring, technical assistance, and program evaluation.
(11) Chair the DoD Coordinating Committee on Domestic Early Intervention, Special Education, and Related Services, which shall be composed of representatives of the Secretaries of the Military Departments, the Assistant Secretary of Defense for Health Affairs (ASD(HA)), the General Counsel of the Department of Defense (GC, DoD), and the Director, Section 6 Schools.
(12) Through the DoD Coordinating Committee on Demestic Early Intervention, Special Education, and Related Services, monitor the provision of special education and related services and early intervention services furnished under this part, and ensure that related services, special education, and early intervention services are properly coordinated.
(13) Ensure that appropriate personnel are trained to provide mediation services in cases that otherwise might result in due process proceedings under this part.
(14) Ensure that transition services from early intervention services to regular or special education and from special education to the world of work are provided.
(15) Ensure that all DoD programs that provide services to infants and toddlers and their families (e.g., child care, medical care, recreation) are involved in a comprehensive intercomponent system for early intervention services.
(16) Ensure, whenever practicable, that planned construction not yet past the 35 percent design phase and new design begun after the date of this part of renovation of school or child care facilities includes consideration of the space required for the provision of medically related services and early intervention services.
(17) Shall establish the Domestic Advisory Panel that shall:
(i) Consist of members appointed by the USD (P&R) or Principal Deputy USD (P&R). Membership shall include at least one representative from each of the following groups:
(A) Individuals with disabilities.
(B) Parents, including minority parents of individuals with disabilities from various age groups.
(C) Section 6 School Arrangements special education teachers.
(D) Section 6 School Arrangements regular education teachers.
(E) Section 6 School Arrangements Superintendent office personnel.
(F) The Office of Director, Section 6 Schools.
(G) The Surgeons General of the Military Departments.
(H) The Family Support Programs of the Military Departments.
(I) Section 6 School Arrangements School Boards.
(J) Early Intervention service providers on installations with Section 6 School Arrangements.
(K) Other appropriate personnel.
(ii) Meet as often as necessary.
(iii) Perform the following duties:
(A) Review information and provide advice to ASD (P&R) regarding improvements in services provided to individuals with disabilities in Section 6 Schools and early intervention programs.
(B) Receive and consider the views of various parent, student, and professional groups, and individuals with disabilities.
(C) When necessary, establish committees for short-term purposes composed of representatives from parent, student, family and other professional groups, and individuals with disabilities.
(D) Review the findings of fact and decision of each impartial due process hearing conducted pursuant to this part.
(E) Assist in developing and reporting such information and evaluations as may aid Section 6 Schools and the
(F) Make recommendations, based on program and operational information, for changes in the budget, organization, and general management of the special education program, and in policy and procedure.
(G) Comment publicly on rules or standards regarding the education of individuals with disabilities.
(H) Assist in developing recommendations regarding the transition of toddlers with disabilities to preschool services.
(b) The Assistant Secretary of Defense for Health Affairs in consultation with the USD(P&R), the GC, DoD, and the Secretaries of the Military Departments, shall:
(1) Establish staffing and personnel standards for personnel who provide early intervention services and medically related services.
(2) Develop and implement a comprehensive system of personnel development in accordance with 20 U.S.C. 1413(a)(3), including the training of professionals, paraprofessionals and primary referral sources, regarding the basic components of early intervention services and medically related services. Such a system may include:
(i) Implementing innovative strategies and activities for the recruitment and retention of early intervention service providers.
(ii) Ensuring that early intervention service providers and medically related service providers are fully and appropriately qualified to provide early intervention services and medically related services, respectively.
(iii) Training personnel to work in the military environment.
(iv) Training personnel to coordinate transition services for infants and toddlers with disabilities from an early intervention program to a preschool program.
(3) Develop and implement a system for compiling data on the numbers of infants and toddlers with disabilities and their families in need of appropriate early intervention services, the numbers of such infants and toddlers and their families served, the types of services, and other information required to evaluate the implementation of early intervention programs.
(4) Resolve disputes among the DoD Components arising under appendix A of this part.
(c)
(1) Provide quality assurance for medically related services in accordance with personnel standards and staffing standards under DoD Directive 6025.13
(2) Plan, develop, and implement a comprehensive, coordinated, intercomponent, community-based system of early intervention services for infants and toddlers with disabilities (birth through 2 inclusive) and their families who are living on an installation with a Section 6 School Arrangement, or who but for their age, would be entitled to enroll in a Section 6 School Arrangement, using the procedures established by this part and guidelines from the ASD(HA) on staffing and personnel standards.
(3) Undertake activities to ensure compliance with this part through technical assistance, program evaluation, and monitoring.
(d) The
(a) Procedures for the provision of early intervention services for infants and toddlers with disabilities and their families are in appendix A to this part. Provision of early intervention services includes establishing a system of coordinated, comprehensive, multidisciplinary, intercomponent services providing appropriate early intervention services to all eligible infants and toddlers with disabilities and their families.
(b) Procedures for special educational programs (including related services) for preschool children and children with disabilities (3-21 years inclusive) are in appendix B to this part.
(c) Procedures for adjudicative requirements required by Pub. L. 101-476, as amended, and Pub. L. 102-119 are in appendix C to this part. These procedures establish adjudicative requirements whereby the parents of an infant, toddler, preschool child or child with a disability and the military department concerned or Section 6 School System are afforded an impartial due process hearing on early intervention services or on the identification, evaluation, and educational placement of, and the free appropriate public education provided to, such infant, toddler, preschool child or child, as the case may be.
1. A system of coordinated, comprehensive, multidisciplinary, and intercomponent programs providing appropriate early intervention services to all infants and toddlers with disabilities and their families shall include the following minimum components:
a. A timely, comprehensive, multidisciplinary evaluation of the functioning of each infant and toddler with a disability and the priorities and concerns of the infant's or toddler's family to assist in the development of the infant or toddler with a disability.
b. A mechanism to develop, for each infant and toddler with a disability, an IFSP and early intervention services coordination, in accordance with such service plan.
c. A comprehensive child-find system, coordinated with the appropriate Section 6 School Arrangement, including a system for making referrals to service providers that includes timelines and provides for participation by primary referral sources, such as the CDC and the pediatric clinic.
d. A public awareness program including information on early identification of infants and toddlers with disabilities and the availability of resources in the community to address and remediate these disabilities.
e. A central directory that includes a description of the early intervention services and other relevant resources available in the community.
1. The administration and supervision of early intervention programs and services, including the identification and coordination of all available resources.
2. The development of procedures to ensure that services are provided to infants and toddlers with disabilities and their families in a timely manner.
3. The execution of agreements with other DoD components necessary for the implementation of this appendix. Such agreements must be coordinated with the ASD(HA) and the GC, DoD, in consultation with the USD(P&R).
4. The collection and reporting of data required by ASD(HA).
5. A multidisciplinary assessment of the unique strengths and needs of the infant or toddler and the identification of services appropriate to meet such needs.
6. A family-directed assessment of the resources, priorities, and concerns of the family and the identification of the supports and services necessary to enhance the family's capacity to meet the developmental needs of its infant or toddler with a disability.
1. The IFSP shall be evaluated once a year and the family shall be provided a review of the plan at 6-month intervals (or more often where appropriate), based on the needs of the infant or toddler and family.
2. Each initial meeting and each annual meeting to evaluate the IFSP must include the following participants:
a. The parent or parents of the infant or toddler.
b. Other family members, as requested by a parent, if feasible to do so.
c. An advocate, if his or her participation is requested by a parent.
d. The Early Intervention Program Services Coordinator who has been working with the family since the initial referral of the infant or toddler or who has been designated as responsible for the implementation of the IFSP.
e. A person or persons directly involved in conducting the evaluation and assessments.
f. Persons who will be providing services to the infant, toddler, or family, as appropriate.
g. If a person or persons listed in paragraph C.2 of this section is unable to attend a meeting, arrangements must be made for involvement through other means, including:
(1) Participating in a telephone call.
(2) Having a knowledgeable authorized representative attend the meeting.
(3) Making pertinent records available at the meeting.
3. The IFSP shall be developed within a reasonable time after the assessment. With the parent's consent, early intervention
4. The IFSP shall be in writing and contain:
a. A statement of the infant's or toddler's present levels of physical development, cognitive development, communication development, social or emotional development, and adaptive development, based on acceptable objective criteria.
b. A statement of the family's resources, priorities, and concerns for enhancing the development of the family's infant or toddler with a disability.
c. A statement of the major outcomes expected to be achieved for the infant or toddler and the family, and the criteria, procedures, and timelines used to determine the degree to which progress toward achieving the outcomes is being made and whether modifications or revisions of the outcomes or services are necessary.
d. A statement of the specific early intervention services necessary to meet the unique needs of the infant or toddler and the family, including the frequency, intensity, and the method of delivering services.
e. A statement of the natural environments in which early intervention services shall be provided.
f. The projected dates for initiation of services and the anticipated duration of such services.
g. The name of the Early Intervention Program Service Coordinator.
h. The steps to be taken supporting the transition of the toddler with a disability to preschool services or other services to the extent such services are considered appropriate.
5. The contents of the IFSP shall be fully explained to the parents by the Early Intervention Program Service Coordinator, and informed written consent from such parents shall be obtained before the provision of early intervention services described in such plan. If the parents do not provide such consent with respect to a particular early intervention service, then the early intervention services to which such consent is obtained shall be provided.
1. The procedural safeguards include:
a. The timely administrative resolution of complaints by the parent(s), including hearing procedures (appendix C to this part).
b. The right to protection of personally identifiable information under 32 CFR part 310.
c. The right of the parent(s) to determine whether they, their infant or toddler, or other family members will accept or decline any early intervention service without jeopardizing the delivery of other early intervention services to which such consent is obtained.
d. The opportunity for the parent(s) to examine records on assessment, screening, eligibility determinations, and the development and implementation of the IFSP.
e. Written prior notice to the parent(s) of the infant or toddler with a disability whenever the Military Department concerned proposes to initiate or change or refuses to initiate or change the identification, evaluation, placement, or the provision of appropriate early intervention services to the infant and toddler with a disability.
f. Procedures designed to ensure that the notice required in paragraph D.1.e. of this appendix fully informs the parents in the parents’ native language, unless it clearly is not feasible to do so.
g. During the pending of any proceeding under appendix C to this part, unless the Military Department concerned and the parent(s) otherwise agree, the infant or toddler shall continue to receive the early intervention services currently being provided, or, if applying for initial services, shall receive the services not in dispute.
1. Each Section 6 School Arrangement shall locate, identify, and, with the consent of a parent of each preschool child or child, evaluate all preschool children or children who are receiving or are entitled to receive an education from Section 6 School Arrangements and who may need special education and/or related services.
2. Each Section 6 School Arrangement shall:
a. Provide screening, through the review of incoming records and the use of basic skills tests in reading, language arts, and mathematics, to determine whether a preschool child or child may be in need of special education and related services.
b. Analyze school health data for those preschool children and children who demonstrate possible disabling conditions. Such data shall include:
(1) Results of formal hearing, vision, speech, and language tests.
(2) Reports from medical practitioners.
(3) Reports from other appropriate professional health personnel as may be necessary, under this part, to aid in identifying possible disabling conditions.
c. Analyze other pertinent information, including suspensions, exclusions, other disciplinary actions, and withdrawals, compiled
3. Each Section 6 School Arrangement, in cooperation with cognizant authorities at the installation on which the Section 6 School Arrangement is located, shall conduct ongoing child-find activities that are designed to identify all infants, toddlers, preschool children, and children with possible disabling conditions who reside on the installation or who otherwise either are entitled, or will be entitled, to receive services under this part.
a. If an element of the Section 6 School Arrangement, a qualified professional authorized to provide related services, a parent, or other individual believes that an infant, toddler, preschool child or child has a possible disabling condition, that individual shall be referred to the appropriate CSC or early intervention coordinator.
b. A Section 6 School Arrangement CSC shall work in cooperation with the Military Departments in identifying infants, toddlers, preschool children and children with disabilities (birth to 21 years inclusive).
1. Each CSC will provide a full and comprehensive diagnostic evaluation of special educational, and related service needs to any preschool child or child who is receiving, or entitled to receive, educational instruction from a Section 6 School Arrangement, operated by the Department of Defense under Directive 1342.21, and who is referred to a CSC for a possible disability. The evaluation will be conducted before any action is taken on the development of the IEP or placement in a special education program.
2. Assessment materials, evaluation procedures, and tests shall be:
a. Racially and culturally nondiscriminatory.
b. Administered in the native language or mode of communication of the preschool child or child unless it clearly is not feasible to do so.
c. Validated for the specific purpose for which they are used or intended to be used.
d. Administered by qualified personnel, such as a special educator, school psychologist, speech therapist, or a reading specialist, in conformity with the instructions provided by the producers of the testing device.
e. Administered in a manner so that no single procedure is the sole criterion for determining eligibility and an appropriate educational program for a disabled preschool child or child.
f. selected to assess specific areas of educational strengths and needs, not merely to provide a single general intelligence quotient.
3. The evaluation shall be conducted by a multidisciplinary team and shall include a teacher or other specialist with knowledge in the areas of the suspected disability.
4. The preschool child or child shall be evaluated in all areas related to the suspected disability. When necessary, the evaluation shall include:
a. The current level of academic functioning, to include general intelligence.
b. Visual and auditory acuity.
c. Social and emotional status, to include social functioning within the educational environment and within the family.
d. Current physical status, including perceptual and motor abilities.
e. Vocational transitional assessment (for children ages 14-21 years (inclusive)).
5. The appropriate CSC shall met as soon as possible after the preschool child's or child's formal evaluation to determine whether he or she is in need of special education and related services. The preschool child's or child's parents shall be invited to the meeting and afforded the opportunity to participate in such a meeting.
6. The school CSC shall issue a written report that contains:
a. A review of the formal and informal diagnostic evaluation findings of the multidisciplinary team.
b. A summary of information from the parents, the preschool child or child, or other persons having significant previous contact with the preschool child or child.
c. A description of the preschool child's or child's current academic progress, including a statement of his or her learning style.
d. A description of the nature and severity of the preschool child's or child's disability(ies).
7. A preschool child or child with a disability shall receive an individual comprehensive diagnostic evaluation every 3 years, or more frequently if conditions warrant, or if the preschool child's or child's parent, teacher, or related service provider requests an evaluation. The scope and nature of the reevaluation shall be determined individually, based upon the preschool child's or child's performance, behavior, and needs when the reevaluation is conducted, and be used to update or revise the IEP.
1. Section 6 School Arrangements shall ensure that an IEP is developed and implemented for each preschool child or child with a disability enrolled in a Section 6 School Arrangement or placed on another institution by a Section 6 School Arrangement CSC under this part.
2. Each IEP shall include:
a. A statement of the preschool child's or child's present levels of educational performance.
b. A statement of annual goals, including short-term instructional objectives.
c. A statement of the specific special educational services and related services to be provided to the preschool child or child (including the frequency, number of times per week/month and intensity, amount of times each day) and the extent to which the preschool child or child may be able to participate in regular educational programs.
d. The projected anticipated date for the initiation and the anticipated length of such activities and services.
e. Appropriate objective criteria and evaluation procedures and schedules for determining, on an annual basis, whether educational goals and objectives are being achieved.
f. A statement of the needed transition services for the child beginning no later than age 16 and annually thereafter (and when determined appropriate for the child, beginning at age 14 or younger) including, when appropriate, a statement of DoD Component responsibilities before the child leaves the school setting.
3. Each preschool child or child with a disability shall be provided the opportunity to participate, with adaptations when appropriate, in the regular physical education program available to students without disabilities unless:
a. The preschool child or child with a disability is enrolled full-time in a separate facility; or
b. The preschool child or child with a disability needs specially designed physical education, as prescribed in his or her IEP.
4. If specially designed physical education services are prescribed in the IEP of a preschool child or child with a disability, the Section 6 School Arrangement shall provide such education directly, or shall make arrangements for the services to be provided through a non-Section 6 School Arrangement or another facility.
5. Section 6 School Arrangements shall ensure that a preschool child or child with a disability, enrolled by a CSC in a separate facility, receives appropriate, physical education in compliance with this part.
6. The IEP for each preschool child or child with a disability shall be developed and reviewed at least annually in meetings that include the following participants:
a. The designated representative of the Section 6 School Arrangement, who is qualified to supervise the provision of special education. Such representative may not be the preschool child's or child's special education teacher.
b. One, or more, of the preschool child's or child's regular education teachers, if appropriate.
c. The preschool child's or child's special education teacher or teachers.
d. One, or both, of the preschool child's or child's parents.
e. The child, if appropriate.
f. For a preschool child or child with a disability who has been evaluated, a member of the evaluation team or another person knowledgeable about the evaluation procedures used with that student and familiar with the results of the evaluation.
g. Other individuals, at the reasonable discretion of the parent(s) or the school.
7. Section 6 School Arrangements shall:
2a. Ensure that an IEP meeting is held, normally within 10 working days, following a determination by the appropriate CSC that the preschool child or child is eligible to receive special education and/or related services.
b. Address the needs of a preschool child or child with a current IEP who transfers from a school operated by the DoD in accordance with 32 CFR part
(1)Implementing the current IEP; or
(2) Revising the current IEP with the consent of a parent; or
(3) Initiating, with the consent of a parent, an evaluation of the preschool child or child, while continuing to provide appropriate services through a current IEP; or
(4) Initiating, with the consent of the parent, an evaluation of the preschool child or child without the provision of the services in the current IEP; or
(5) Initiating mediation, and if necessary, due process procedures.
c. Afford the preschool child's or child's parent(s) the opportunity to participate in every IEP or CSC meeting about their preschool child or child by:
(1) Providing the parent(s) adequate written notice of the purpose, time, and place of the meeting.
(2) Attempting to schedule the meeting at a mutually agreeable time and place.
8. If neither parent can attend the meeting, other methods to promote participation by a parent, such as telephone conservations and letters, shall be used.
9. A meeting may be conducted without a parent in attendance if the Section 6 School Arrangement is unable to secure the attendance of the parent. In this case, the Section 6 School Arrangement must have written records of its attempts to arrange a mutually acceptable time and place.
10. If the parent(s) attends the IEP meeting, the Section 6 School Arrangement shall take necessary action to ensure that at least one of the parents understands the proceedings at the meeting, including providing an interpreter for a parent who is deaf or whose native language is other than English.
11. The section 6 School Arrangement shall give a parent a copy of the preschool child's IEP.
12. Section 6 School Arrangements shall provide special education and related services, in accordance with an IEP, provided that the Department of Defense, its constituent elements, and its personnel, are not accountable if a preschool child or child does not achieve the growth projected in the IEP.
13. Section 6 School Arrangements shall ensure that an IEP is developed and implemented for each preschool child or child with a disability whom the CSC places in a non-Section 6 School or other facility.
1. The placement of a preschool child or child in any special education program by the Section 6 School Arrangement shall be made only under an IEP and after a determination has been made that such student has a disability and needs special education and/or related services.
2. The Section 6 School Arrangement CSC shall identify the special education and related services to be provided under the IEP.
3. A placement decision may not be implemented without the consent of a parent of the preschool child or child, except as otherwise provided in accordance with this part.
4. The placement decision must be designed to educate a preschool child or child with a disability in the least restrictive environment so that such student is educated to the maximum extent appropriate with students who do not have disabilities. Special classes, separate schooling, or other removal of preschool children or children with disabilities from the regular educational environment shall occur only when the nature or severity of the disability is such that the preschool child or child with disabilities cannot be educated satisfactorily in the regular classes with the use of supplementary aids and services, including related services.
5. Each educational placement for a preschool child or child with a disability shall be:
a. Determined at least annually by the appropriate CSC.
b. Based on the preschool child or child's IEP.
c. Located as close as possible to the residence of the parent who is sponsoring the preschool child or child for attendance in a Section 6 School Arrangement.
d. Designed to assign the preschool child or child to the school such student would attend if he or she were not a student with a disability, unless the IEP requires some other arrangement.
e. Predicated on the consideration of all factors affecting the preschool child's or child's well-being, including the effects of separation from parent(s).
f. To the maximum extent appropriate, designed so that the preschool child or child participates in school activities, including meals and recess periods, with students who do not have a disability.
1. Before a Section 6 School Arrangement CSC, with the concurrence of the Section 6 School Arrangement Superintendent concerned, places a preschool child or child with a disability in a non-Section 6 School or facility, the Section 6 School CSC shall conduct a meeting in accordance with this part to initiate the development of an IEP for such student.
2. Preschool children and children with disabilities eligible to receive instruction in Section 6 School Arrangements who are referred to another school or facility by the Section 6 School CSC have all the rights of students with disabilities who are attending the Section 6 School Arrangement.
a. If a Section 6 School Arrangement CSC places a preschool child or child with a disability in a non-Section 6 School Arrangement or facility as a means of providing special education and related services, the program of that facility, including nonmedical care, room, and board, as set forth in the student's IEP, must be at no cost to the student or the student's parents.
b. A Section 6 School Arrangement CSC may place a preschool child or child with a disability in a non-Section 6 School Arrangement or facility only if required by an IEP. An IEP for a student placed in a non-Section 6 School is not valid until signed by the Section 6 School Arrangement Superintendent, or designee, who must have participated in the IEP meeting. The IEP shall include determinations that:
(1) The Section 6 School Arrangement does not currently have, and cannot reasonably create, an educational program appropriate to meet the needs of the student with a disability.
(2) The non-Section 6 School Arrangement or facility and its educational program conform to this part.
3. A Section 6 School Arrangement is not responsible for the cost of a non-Section 6 School Arrangement placement when placement is made unilaterally, without the approval of the cognizant CSC and the Superintendent, unless it is directed by a hearing officer under appendix C of this part or a court of competent jurisdiction.
1. Parents shall be given written notice before the Section 6 School Arrangement CSC proposes to initiate or change, or refuses to initiate or change, either the identification, evaluation, or educational placement of a
2. The consent of a parent of a preschool child or child with a disability or suspected of having a disability shall be obtained before any:
a. Initiation of formal evaluation procedures;
b. Initial special educational placement; or
c. Change in educational placement.
3. If a parent refuses consent to any formal evaluation or initial placement in a special education program, the Section 6 School Arrangement Superintendent may initiate an impartial due process hearing, as provided in appendix C of this part to show why an evaluation or placement in a special education program should occur without such consent. If the hearing officer sustains the Section 6 School Arrangement CSC position in the impartial due process hearing, the appropriate CSC may evaluate or provide special education and related services to the preschool child or child without the consent of a parent, subject to the parent's due process rights.
4. A parent is entitled to an independent evaluation of his or her preschool child or child at the Section 6 School Arrangement's expense, if the parent disagrees with the findings of an evaluation of the student conducted by the school and the parent successfully challenges the evaluation in an impartial due process hearing.
a. If an independent evaluation is provided at the expense of a Section 6 School Arrangement, it must meet the following criteria:
(1) Conform to the requirements of this part.
(2) Be conducted, when possible, within the area where the preschool child or child resides.
(3) Meet applicable DoD standards governing persons qualified to conduct an evaluation.
b. If the final decision rendered in an impartial due process hearing sustains the evaluation of the Section 6 School Arrangement CSC, the parent has the right to an independent evaluation, but not at the expense of the Department of Defense or any DoD Component.
5. The parents of a preschool child or child with a disability shall be afforded an opportunity to inspect and review all relevant educational records concerning the identification, evaluation, and educational placement of such student, and the provision of a free appropriate public education to him or her.
6. Upon complaint presented in a written petition, the parent of a preschool child or child with a disability or the Section 6 School System shall have the opportunity for an impartial due process hearing provided by the Department of Defense as prescribed by appendix C of this part.
7. During the pendency of any impartial due process hearing or judicial proceeding on the identification, evaluation, or educational placement of a preschool child or child with a disability receiving an education from a Section 6 School Arrangement or the provision of a free appropriate public education to such a student, unless the Section 6 School Arrangement and a parent of the student agree otherwise, the student shall remain in his or her present educational placement, subject to the disciplinary procedures prescribed in this part.
8. If a preschool child or child with a disability, without a current IEP, who is entitled to receive educational instruction from a Section 6 School Arrangement is applying for initial admission to a Section 6 School Arrangement, that student shall enter that Arrangement on the same basis as a student without a disability.
9. The parent of a preschool child or child with a disability or a Section 6 School Arrangement employee may file a written communication with the Section 6 School Arrangement Superintendent about possible general violations of this part or Pub. L. 101-476, as amended. Such communications will not be treated as complaints under appendix C of this part.
1. All regular disciplinary rules and procedures applicable to students receiving educational instruction in the Section 6 School Arrangements shall apply to preschool children and children with disabilities who violate school rules and regulations or disrupt regular classroom activities, subject to the provisions of this section.
2. The appropriate CSC shall determine whether the conduct of a preschool child or child with a disability is the result of that disability before the long-term suspension (10 consecutive or cumulative days during the school year) or the expulsion of that student.
3. If the CSC determines that the conduct of such a preschool child or child with a disability results in whole or part from his or her disability, that student may not be subject to any regular disciplinary rules and procedures; and
a. The student's parent shall be notified in accordance with this part of the right to have an IEP meeting before any change in the student's special education placement. (A termination of the student's education for
b. The Section 6 School Arrangement CSC or another authorized school official shall ensure that an IEP meeting is held to determine the appropriate educational placement for the student in consideration of his or her conduct before the tenth cumulative day of the student's suspension or an expulsion.
4. A preschool child or child with a disability shall neither be suspended for more than 10 days nor expelled, and his or her educational placement shall not otherwise be changed for disciplinary reasons, unless in accordance with this section, except that:
a. This section shall be applicable only to preschool children and children determined to have a disability under this part.
b. Nothing contained herein shall prevent the emergency suspension of any preschool child or child with a disability who endangers or reasonable appears to endanger the health, welfare, or safety of himself or herself, or any other student, teacher, or school personnel, provided that:
(1) The appropriate Section 6 School Arrangement CSC shall immediately meet to determine whether the preschool child's or child's conduct results from his or her disability and what change in special education placement is appropriate for that student.
(2) The child's parent(s) shall be notified immediately of the student's suspension and of the time, purpose, and location of the CSC meeting and their right to attend the meeting.
(3) A component is included in the IEP that addresses the behavioral needs of the student.
(4) The suspension of the student is only effective for the duration of the emergency.
This appendix establishes adjudicative requirements whereby the parents of infants, toddlers, preschool children, and children who are covered by this part and, as the case may be, the cognizant Military Department or Section 6 School System are afforded impartial due process hearings and administrative appeals on the early intervention services or identification, evaluation, and educational placement of, and the free appropriate public education provided to, such children by the Department of Defense, in accordance with Pub. L. 101-476, as amended, 20 U.S.C. sec. 1401 et seq.; Pub. L. 81-874, sec. 6, as amended, 20 U.S.C. sec. 241; Pub. L. 97-35, sec. 505(c), 20 U.S.C. sec. 241 note; and Pub. L. 102-119, sec. 23, 20 U.S.C. sec. 241(a).
1. The Directorate for the Defense Office of Hearings and Appeals (DOHA) shall have administrative responsibility for the proceedings authorized by this appendix.
2. This appendix shall be administered to ensure that the findings, judgments, and determinations made are prompt, fair, and impartial.
3. Impartial hearing officers, who shall be DOHA Administrative Judges, shall be appointed by the Director, DOHA, and shall be attorneys who are independent of the Section 6 School System or the Military Department concerned in proceedings conducted under this appendix. A parent shall have the right to be represented in such proceedings, at no cost to the government, by counsel and by persons with special knowledge or training with respect to the problems of individuals with disabilities. DOHA Department Counsel normally shall appear and represent the Section 6 School System in proceedings conducted under this appendix, when such proceedings involve a preschool child or child. When an infant or toddler is involved, the Military Department responsible under this part for delivering early intervention services shall either provide its own counsel or request counsel from DOHA.
1. Mediation can be initiated by either a parent or, as appropriate, the Military Department concerned or the Section 6 School System to resolve informally a disagreement on the early intervention services for an infant or toddler or the identification, evaluation, educational placement of, or the free appropriate public education provided to, a preschool child or child. The cognizant Military Department, rather than the Section 6 School System, shall participate in mediation involving early intervention services. Mediation shall consist of, but not be limited to, an informal discussion of the differences between the parties in an effort to resolve those differences. The parents and the appropriate school or Military Department officials may attend mediation sessions.
2. Mediation must be conducted, attempted, or refused in writing by a parent of the infant, toddler, preschool child or child whose early intervention or special education services (including related services) are at issue before a request for, or initiation of, a hearing authorized by this appendix. Any request by the Section 6 School System or Military Department for a hearing under this appendix shall state how this requirement has been satisfied. No stigma may be attached to the refusal of a parent to mediate or to an unsuccessful attempt to mediate.
a. Should mediation be refused or otherwise fail to resolve the issues on the provision of early intervention services or a free, appropriate public education to a disabled infant, toddler, preschool child or child or the identification, evaluation, or educational placement of such an individual, the parent or either the school principal, on behalf of the Section 6 School System, or the military medical treatment facility commander, on behalf of the Military Department having jurisdiction over the infant or toddler, may request and shall receive a hearing before a hearing officer to resolve the matter. The parents of an infant, toddler, preschool child or child and the Section 6 School System or Military Department concerned shall be the only parties to a hearing conducted under this appendix.
b. The party seeking the hearing shall submit a written request, in the form of a petition, setting forth the facts, issues, and proposed relief, to the Director, DOHA. The petitioner shall deliver a copy of the petition to the opposing party (that is, the parent or the school principal, on behalf of the Section 6 School System, or the military medical treatment facility commander, on behalf of the Military Department), either in person or by first-class mail, postage prepaid. Delivery is complete upon mailing. When the Section 6 School System or Military Department petitions for a hearing, it shall inform the other parties of the deadline for filing an answer under paragraph D.1.c. of this appendix, and shall provide the other parties with a copy of this part.
c. An opposing party shall submit an answer to the petition to the Director, DOHA, with a copy to the petitioner, within 15 calendar days of receipt of the petition. The answer shall be as full and complete as possible, addressing the issues, facts, and proposed relief. The submission of the answer is complete upon mailing.
d. Within 10 calendar days after receiving the petition, the Director, DOHA, shall assign a hearing officer, who then shall have jurisdiction over the resulting proceedings. The Director, DOHA, shall forward all pleadings to the hearing officer.
e. The questions for adjudication shall be based on the petition and the answer, provided that a party may amend a pleading if the amendment is filed with the hearing officer and is received by the other parties at least 5 calendar days before the hearing.
f. The Director, DOHA, shall arrange for the time and place of the hearing, and shall provide administrative support. Such arrangements shall be reasonably convenient to the parties.
g. The purpose of a hearing is to establish the relevant facts necessary for the hearing officer to reach a fair and impartial determination of the case. Oral and documentary evidence that is relevant and material may be received. The technical rules of evidence shall be relaxed to permit the development of a full evidentiary record, with the Federal Rules of Evidence (28 U.S.C.) serving as a guide.
h. The hearing officer shall be the presiding officer, with judicial powers to manage the proceeding and conduct the hearing. Those powers shall include the authority to order an independent evaluation of the child at the expense of the Section 6 School System or Military Department concerned and to call and question witnesses.
i. Those normally authorized to attend a hearing shall be the parents of the individual with disabilities, the counsel and personal representative of the parents, the counsel and professional employees of the Section 6 School System or Military Department concerned, the hearing officer, and a person qualified to transcribe or record the proceedings. The hearing officer may permit other persons to attend the hearing, consistent with the privacy interests of the parents and the individual with disabilities, provided the parents have the right to an open hearing upon waiving in writing their privacy rights and those of the individual with disabilities.
j. A verbatim transcription of the hearing shall be made in written or electronic form and shall become a permanent part of the record. A copy of the written transcript or electronic record of the hearing shall be made available to a parent upon request and without cost. The hearing officer may allow corrections to the written transcript or electronic recording for the purpose of conforming it to actual testimony after adequate notice of such changes is given to all parties.
k. The hearing officer's decision of the case shall be based on the record, which shall include the petition, the answer, the written transcript or the electronic recording of the hearing, exhibits admitted into evidence, pleadings or correspondence properly filed and served on all parties, and such other matters as the hearing officer may include in the record, provided that such matter is made available to all parties before the record is closed under paragraph D.1.m. of this appendix.
l. The hearing officer shall make a full and complete record of a case presented for adjudication.
m. The hearing officer shall decide when the record in a case is closed.
n. The hearing officer shall issue findings of fact and render a decision in a case not later than 50 calendar days after being assigned to the case, unless a discovery request under section D.2. of this appendix is pending.
a. Full and complete discovery shall be available to parties to the proceeding, with the Federal Rules of Civil Procedure (28 U.S.C.) serving as a guide.
b. If voluntary discovery cannot be accomplished, a party seeking discovery may file a motion to accomplish discovery, provided such motion is founded on the relevance and materiality of the proposed discovery to the issues. An order granting discovery shall be enforceable as is an order compelling testimony or the production of evidence.
c. A copy of the written or electronic transcription of a deposition taken by the Section 6 School System or Military Department concerned shall be made available free of charge to a parent.
a. All witnesses testifying at the hearing shall be advised that it is a criminal offense knowingly and willfully to make a false statement or representation to a Department or Agency of the United States Government as to any matter within the jurisdiction of the Department or Agency. All witnesses shall be subject to cross-examination by the parties.
b. A party calling a witness shall bear the witness’ travel and incidental expenses associated with testifying at the hearing. The Section 6 School System or Military Department concerned shall pay such expenses when a witness is called by the hearing officer.
c. The hearing officer may issue an order compelling the attendance of witnesses or the production of evidence upon the hearing officer's own motion or, if good cause be shown, upon motion of a party.
d. When the hearing officer determines that a person has failed to obey an order to testify or to produce evidence, and such failure is in knowing and willful disregard of the order, the hearing officer shall so certify.
e. The party or the hearing officer seeking to compel testimony or the production of evidence may, upon the certification provided for in paragraph D.3.d. of the section, file an appropriate action in a court of competent jurisdiction to compel compliance with the hearing officer's order.
a. The hearing officer shall make written findings of fact and shall issue a decision setting forth the questions presented, the resolution of those questions, and the rationale for the resolution. The hearing officer shall file the findings of fact and decision with the Director, DOHA, with a copy to the parties.
b. The Director, DOHA, shall forward to the Director, Section 6 Schools or the Military Department concerned and the Domestic Advisory Panel copies, with all personally identifiable information deleted, of the hearing officer's findings of fact and decision or, in cases that are administratively appealed, of the final decision of the DOHA Appeal Board.
c. The hearing officer shall have the authority to impose financial responsibility for early intervention services, educational placements, evaluations, and related services under his or her findings of fact and decision.
d. The findings of fact and decision of the hearing officer shall become final unless a notice of appeal is filed under section F.1. of this appendix. The Section 6 School System or Military Department concerned shall implement a decision as soon as practicable after it becomes final.
1. At the request of a parent of the infant, toddler, preschool child or child when early intervention or special educational (including related) services are at issue, the requirement for a hearing may be waived, and the case may be submitted to the hearing officer on written documents filed by the parties. The hearing officer shall make findings of fact and issue a decision within the period fixed by paragraph D.1.n. of this appendix.
2. The Section 6 School System or Military Department concerned may oppose a request to waive the hearing. In that event, the hearing officer shall rule on the request.
3. Documents submitted to the hearing officer in a case determined without a hearing shall comply with paragraph D.1.g. of this appendix. A party submitting such documents shall provide copies to all other parties.
1. A party may appeal the hearing officer's findings of fact and decision by filing a written notice of appeal with the Director, DOHA, within 5 calendar days of receipt of the findings of fact and decision. The notice of appeal must contain the appellant's certification that a copy of the notice of appeal has been provided to all other parties. Filing is complete upon mailing.
2. Within 10 calendar days of the filing the notice of appeal, the appellant shall submit a written statement of issues and arguments to the Director, DOHA, with a copy to the other parties. The other parties shall submit a reply or replies to the Director, DOHA, within 15 calendar days of receiving the statement, and shall deliver a copy of each reply to the appellant. Submission is complete upon mailing.
3. The Director, DOHA, shall refer the matter on appeal to the DOHA Appeal Board. It shall determine the matter, including the making of interlocutory rulings, within 60 calendar days of receiving timely submitted
4. The determination of the DOHA Appeal Board shall be a final administrative decision and shall be in written form. It shall address the issues presented and set forth a rationale for the decision reached. A determination denying the appeal of a parent in whole or in part shall state that the parent has the right under Pub. L. 101-476, as amended, to bring a civil action on the matters in dispute in a district court of the United States without regard to the amount in controversy.
5. No provision of this part or other DoD guidance may be construed as conferring a further right of administrative review. A party must exhaust all administrative remedies afforded by this appendix before seeking judicial review of a determination made under this appendix.
The Director, DOHA, shall ensure that final decisions in cases arising under this Appendix are published and indexed to protect the privacy rights of the parents who are parties in those cases and the children of such parents, in accordance with 32 CFR part 310.
Sec. 301, 80 Stat. 379; (5 U.S.C. 301).
This part reissued DoD Directive 1344.3, “Paternity Claims and Adoption Proceedings Involving Members and Former Members of the Armed Forces,” to standardize procedures for the handling of:
(a) Paternity claims against members and former members of the Armed Forces, and
(b) Requests from civilian courts concerning the availability of members and former members of the Armed Forces to appear at an adoption hearing where it is alleged that such member is the father of an illegitimate child.
The provisions of this part apply to the Military Departments.
(a)
(2) If there exists a judicial order or decree of paternity or child support duly rendered by a United States or foreign court of competent jurisdiction against such a member, the commanding officer in the appropriate Military Departments will advise the member of his moral and legal obligations as well as his legal rights in the matter. See 42 U.S.C. 659. The member will be encouraged to render the necessary financial support to the child and take any other action considered proper under the circumstances.
(3) Communications from a judge of a civilian court, including a court summons or a judical order, concerning the availability of personnel to appear at an adoption hearing, where it is alleged that an active duty member is the father of an illegitimate child, shall receive a reply that:
(i) Due to military requirements, the member cannot be granted leave to attend any court hearing until (date), or
(ii) A request by the member for leave to attend an adoption court hearing on (date), if made, would be approved, or
(iii) The member has stated in a sworn written statement (forward a copy with response) that he is not the natural parent of the child, or
(iv) Due to the member's unavaila-bility caused by a specific reason, a completely responsive answer cannnot be made.
(4) The member should be informed of the inquiry and the response and urged to obtain legal assistance for guidance (including an explanation of sections of the Soldiers’ and Sailors’ Civil Relief Act, 50 U.S.C. appendix, section 501 et seq., if appropriate).
(b)
(2) Communications from a judge of a civilian court, including a court summons or judicial order, concerning the availability of personnel to appear at an adoption hearing, where it is alleged that the member not on active duty is the father of an illegitimate child shall receive a reply that such person is not on active duty. A copy of the communication and the reply will be forwarded to the named individual.
(3) When requested by a court, the last known address of inactive members may be furnished under the same conditions as set forth for former members under paragraph (c)(2) (i) and (ii) of this section.
(c)
(2) In addition, the last known address of the former member will be furnished to the requester:
(i) If the request is supported by a certified copy of either:
(A) A judicial order or decree of paternity or support duly rendered against a former member by a United States or foreign court of competent jurisdiction; or
(B) A document which establishes that the former member has made an official admission or statement acknowledging paternity or responsibility for support of a child before a court of competent jurisdiction, administrative or executive agency, or official authorized to receive it; or
(C) A court summons, judicial order, or similar document of a court within the United States in a case concerning the adoption of an illegitimate child; wherein the former serviceman is alleged to be the father.
(ii) If the claimant, with the corroboration of a physician's affidavit, alleges and explains an unusual medical situation which makes it essential to obtain information from the alleged father to protect the physical health of either the prospective mother or the unborn child.
5 U.S.C. 301, 7301, 7351, 7353; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215 as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR part 2635.
This part:
(a) Replaces DoD Directive 5120.47
(b) Cancels DD Form 1357, “Statement of Employment—Regular Retired Officers,” March 1987, and DD Form 1555, “Confidential Statement of Affiliations and Financial Interests,” March 1987. The Office of Government Ethics’ (OGE) SF 450, “Confidential Financial Disclosure Report,” July 1992, replaces DD Form 1555.
(c) Authorizes the publication of DoD 5500.7-R
(a) This part and 32 CFR part 84 apply to the Office of the Secretary of Defense; the Military Departments; the Chairman of the Joint Chiefs of Staff and the Joint Staff; the Unified and Specified Commands; the Office of the Inspector General of the Department of Defense; the Uniformed Services University of the Health Sciences; the Defense Agencies; the DoD Field Activities; the Combined Commands and Agencies; and the Special Activities, including non-appropriated fund instrumentalities (hereafter referred to collectively as the “DoD Components”). The sections of 32 CFR part 84 entitled “Financial and Employment Disclosure,” “Post-Government Service Employment,” and “Seeking Other Employment” also apply, as specified, to certain former employees of DoD Components in accordance with specified statutes. The section of 32 CFR part 84 entitled “Financial and Employment Disclosure” has provisions that apply to individuals who are not DoD employees such as detailees and nominees to DoD positions.
(1) Although OGE regulations, cross-referenced in 32 CFR part 84, do not apply to enlisted members of the Department of Defense, the provisions of 5 CFR parts 2634, 2635, 2638, and 2641 are determined to be appropriate for enlisted members and are hereby made applicable to enlisted members as if the terms “employee” and “special Government employee,” as used in those OGE regulations, include enlisted members to the same extent that military officers are included within the meaning of those terms.
(2) Certain criminal statutes referenced in 32 CFR part 84 and 18 U.S.C. 203, 205, 207, 208, 209, and 218 do not apply to enlisted members; however, provisions similar to those of 18 U.S.C. 208 and 209 apply to enlisted members. See § 84.3(a)(1)(i) of 32 CFR part 84.
(b) Penalties for violation of the standards and rules of conduct prescribed in 32 CFR part 84 include the full range of statutory and regulatory sanctions for DoD employees.
(1) The prohibitions and requirements printed in 32 CFR part 84 that are marked as general orders apply to all military members without further implementation. Violations may result in prosecution under the Uniform Code of Military Justice (UCMJ) (10 U.S.C. 801-940), as well as adverse administrative action and other adverse action authorized by the United States Code or Federal regulations.
(2) DoD employees on assignment to another Executive Agency for more than 30 days are subject to 5 CFR part 2635 and the regulations of that agency that supplement 5 CFR part 2635 and have been approved by OGE.
(3) In addition to details within the Federal Government, details of civilian DoD employees (except temporary or non-career employees who may not be so detailed) may be made to State and local governments, institutions of higher education, and certain other agencies. Civilian DoD employees detailed outside the Federal Government remain subject to 32 CFR part 84.
(4) In matters of ethics and standards of conduct, any inconsistencies among applicable regulations shall be resolved
Terms used in this part are defined in 32 CFR part 84.
(a) The Department of Defense shall have a single source of standards of ethical conduct and ethics guidance, including direction in the areas of financial and employment disclosure systems, post-employment rules, enforcement, and training embodied in 32 CFR part 84.
(b) A violation of this part and 32 CFR part 84 does not create any right or benefit, substantive or procedural, enforceable at law by any person against the United States, its agencies, its officers or employees, or any other person.
(a) The General Counsel of the Department of Defense shall:
(1) Ensure that appropriate updates, modifications, additions and deletions are made to 32 CFR part 84.
(2) Have approval authority for DoD Component documents supplementing or implementing 32 CFR part 84.
(b) The Heads of the DoD Components shall ensure that:
(1) 32 CFR part 84 is followed within their DoD Components.
(2) No DoD Component documents supplementing or implementing 32 CFR part 84 are issued without the approval of the General Counsel of the Department of Defense.
(3) The DoD Component DAEO or designee distributes copies of 32 CFR part 84 throughout the DoD Component and makes such copies available for review by DoD employees in the offices of each local Ethics Counselor.
(4) The DoD Component DAEO or designee distributes updates, modifications, additions, and deletions for insertion in copies of 32 CFR part 84 throughout the DoD Component.
(5) The DoD Component DAEO resolves inconsistencies among the regulations of applicable Executive Agencies, as appropriate, for DoD employees of the DoD Component.
(6) The DoD Component representative to the Ethics Oversight Committee assists in the development and upkeep of 32 CFR part 84, as needed, through the operation of that committee as a working group.
32 CFR part 84 shall be a product of a coordinated effort by the General Counsel of the Department of Defense and the DoD Component DAEOs and designees through the Ethics Oversight Committee.
5 U.S.C. 301, 7301, 7351, 7353; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215 as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR part 2635.
(a)
(b)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(2) Any active duty regular or reserve military officer, including warrant officers.
(3) Any active duty enlisted member of the Army, Navy, Air Force, or Marine Corps.
(4) Any reserve or National Guard member on active duty under orders issued pursuant to title 10, United States Code.
(5) Any reserve or National Guard member performing official duties, including while on inactive duty for training or while earning retirement points, pursuant to title 10, United States Code, or while engaged in any activity related to the performance of a Federal duty or function.
(6) Any faculty member in a civil service position or hired pursuant to title 10, United States Code, and any student (including a cadet or midshipman) of an academy, college, university, or school of DoD.
(7) Consistent with labor agreements and international treaties and agreements, and host country laws, any foreign national working for a DoD component except those hired pursuant to a defense contract.
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(1) DoD is responsible for the system and the total expenditures, for research, development, test, and evaluation for the system, are estimated to exceed $75 million (based on fiscal year 1980 constant dollars) or the eventual total expenditure for procurement exceeds $300 million (based on fiscal year 1980 constant dollars); or
(2) The system is designated a “major system” by the Head of the DoD agency responsible for the system.
(w)
(x)
(y)
(z)
(aa)
(bb)
(cc)
(dd)
(ee)
(ff)
(1) The negotiation, award, administration, or approval of a contract;
(2) The selection of a defense contractor;
(3) The approval of a change in a contract;
(4) The performance of quality assurance, operational and developmental testing, the approval of payment, or auditing under a contract; or
(5) The management of a procurement program.
(gg)
(hh)
(ii)
(jj)
(kk)
(ll)
(mm)
(a) A single, uniform source of standards of ethical conduct and ethics guidance shall be maintained within DoD, and each DoD agency shall implement and administer a comprehensive ethics program to ensure compliance with such standards and guidance;
(b) Although OGE regulations, cross-referenced in this part, do not apply to enlisted members of DoD, the provisions of 5 CFR parts 2634, 2635, 2638, 2639, 2640, and 2641, are determined to be appropriate for enlisted members and are hereby made applicable to enlisted members as if the terms “employee,” and “special Government employee,” as used in those OGE regulations, include enlisted members to the same extent that military officers are included within the meaning of those terms. The following exception applies to certain criminal statutes, 18 U.S.C. 203, 205, 207, 208, 209 and 218, and related provisions of OGE regulations, do not apply to enlisted members. Provisions similar to those of 18 U.S.C. 208 and 209 apply to enlisted members as follows:
(1) Except as approved by the DoD component DAEO or designee, an enlisted member, including an enlisted special Government employee, shall not participate personally and substantially as part of his official DoD duties, in any particular matter in which he, his spouse, minor child, partner, entity in which he is serving as officer, director, trustee, partner, or employee, or any entity with which he is negotiating or has an arrangement concerning prospective employment, has a financial interest;
(2) An enlisted member, except an enlisted special Government employee, shall not receive any salary or supplementation of his Federal Government salary, from any entity other than the Federal Government or as may be contributed out of the treasury of any State, county, or municipality, for his services to the Federal Government.
(c) DoD employees shall become familiar with all ethics provisions, including the standards set out in Executive Order 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215-218, and comply with them;
(d) DoD employees shall become familiar with the scope of and authority for the official activities for which they are responsible. Sound judgment must be exercised. All DoD employees must be prepared to account fully for the matter in which that judgment has been exercised;
(e) If the propriety of a proposed action or decision is in question for any reason, DoD employees shall seek guidance from a DoD component legal counsel, the DoD component DAEO or designee, or Ethics Counselor, as appropriate;
(f) Individual conduct, official programs and daily activities within DoD shall be accomplished lawfully and ethically;
(g) DoD employees shall adhere strictly to DoD policy of equal opportunity, regardless of race, color, religion, gender, age, national origin, or handicap, in accordance with applicable laws and regulations.
(a) The Head of each DoD component shall:
(1) Exercise personal leadership and take personal responsibility through the DoD component DAEO or designee for establishing and maintaining the DoD component's ethics program and be personally accountable for the DoD component's compliance with every requirement of this part, including the ethics and procurement integrity training requirements;
(2) When authorized, appoint a DoD component DAEO, through a formal written delegation of authority, who is qualified to oversee and supervise the DoD component's ethics programs for DoD employees, both civilian and military (the GC, DoD, may serve as the DAEO for several DoD components);
(3) When authorized, appoint a DoD component Atlernate DAEO who shall serve in the absence of the DoD component DAEO;
(4) Provide sufficient resources (including funding and investigative, audit, legal, training and administrative staff) to enable the DoD component DAEO or designee to implement and administer the DoD component's ethics programs in a positive and effective manner.
(b) Each DoD component Designated Agency Ethics Official (DAEO) shall:
(1) Be responsible for the implementation and administration of all aspects of the DoD component ethics program and manage and oversee local implementation and administration of all matters relating to ethics covered by this part.
(2) Appoint DoD component Deputy DAEOs and Ethics Counselors and delegate to them written authority to act on behalf of the DoD component DAEO;
(3) Ensure that ethics advice (and facts relied upon for such advice) is in writing, when practicable;
(4) Ensure that written opinions regarding the applicability of 10 U.S.C. 2397b and 41 U.S.C. 423 are provided within 30 days of request by any DoD employee provided that the requests is accompanied by complete and full information necessary to render an opinion;
(5) Ensure that proper collection, review, and handling of the DoD component's financial and employment disclosure reports, including those submitted by Presidential appointees for confirmation purposes;
(6) Be responsible for the implementation and administration of ethics and procurement integrity training and ensure that necessary resources are available to accomplish such training;
(7) Provide periodic ethics and procurement integrity training for Ethics Counselors;
(8) Certify Qualified Individuals to conduct ethics training;
(9) Assist agency designees, through the chain of command or supervision, in initiating prompt, effective action to evaluate and process violations, potential violations, and appearances of violations of ethics laws or regulations, in accordance with applicable procedures as discussed in subpart J of this part;
(10) Provide advice and assistance to DoD employees of the DoD component not otherwise served by a local Ethics Counselor;
(11) Oversee and coordinate local ethics programs through a system for periodic evaluation and ensure that the DoD component provides and maintains sufficient funding, staff, space and resources to administer the DoD component's ethics programs;
(12) Maintain liaison with the DoD EOC, OGE, and the DoD Standards of Condut Office (SOCO), and provide to SOCO and OGE all information required by law or regulation;
(13) Represent the DoD component to OGE, Congress, the Executive Branch and the public on matters relating to ethics and standards of conduct.
(c) Each DoD component Alternate Designated Agency Ethics Official (Alternate DAEO) shall serve in the absence of the DoD component DAEO and, when so serving, is authorized to take any action this part indicates may be taken only by the DoD component DAEO.
(d) Each DoD component Deputy Designated Agency Ethics Official (Deputy DAEO) shall serve on behalf of the DoD component DAEO consistent with written delegation of authority from the DoD component DAEO.
(e) The head of each DoD component command or organization shall:
(1) Exercise personal leadership and take personal responsibility for establishing and maintaining the command's or organization's ethics program in coordination with the command's or organization's Ethics Counselors;
(2) Be personally accountable for the command's or organization's ethics program, including its ethics and procurement integrity training program, and the command's or organization's compliance with every requirement of this part;
(3) Provide sufficient resources to enable the command's organization's Ethics Counselors to implement and administer the local aspects of the command's or organization's ethics program in a positive and effective manner;
(4) Ensure the prompt resolution of any actual or apparent conflict of interest involving a DoD employee of the command or organization;
(5) Direct administrative officers (or equivalent) of the command or organization to ensure that the position descriptions of the DoD component command or organization indicate if financial disclosure report filing, annual
(6) Direct administrative officers (or equivalent) of the command or organization to coordinate with the DoD component DAEO or designee to develop lists of all DoD employees of the command or organization who are required to receive ethics and procurement integrity training, schedule such training, annotate such lists to indicate when required training was accomplished and retain annotated lists for three years;
(7) Ensure that DoD employees of the command or organization who are in positions requiring the filing of SF 450,
(8) Ensure that DoD employees of the command or organization attend required ethics and procurement integrity training.
(f) The General Counsel of each DoD component shall:
(1) Serve as the DAEO for the DoD component unless otherwise delegated;
(2) Support all aspects of the ethics program of the DoD component;
(3) Provide legal guidance and assistance to the DoD component DAEO or designee.
(g) The Judge Advocate General of each Military Department shall:
(1) Provide legal guidance and assistance to Ethics Counselors under his supervision;
(2) Support all aspects of the ethics program of the Military Department.
(h) The General Counsel, DoD (GC, DoD) shall:
(1) Maintain the DoD SOCO and provide sufficient resources to enable SOCO to oversee and coordinate DoD component ethics programs, to produce reports required by Congress and maintain report data, and to manage the DoD EOC;
(2) Represent DoD as a whole to OGE, Congress, the Executive Branch, and the public when called upon to do so on matters relating to ethics policy;
(3) Have the authority to incorporate changes to Government-wide regulations that are reprinted in this part without formal coordination.
(i) Each agency designee shall:
(1) In accordance with § 84.10(g), provide prior approval or disapproval of outside activities by DoD employees under his responsibility;
(2) Receive and appropriately process reports of suspected violations of ethics statutes or regulations and possible conflicts of interest;
(3) Receive and appropriately process reports of non-compliance with the filing requirements of subpart G of this part;
(4) Perform all the other duties of an agency designee established in this part and in 5 CFR part 2635;
(5) Annually determine those positions under his responsibility that require the filing of SF 450s, and annual ethics and procurement integrity training.
(j) The DoD Standards of Conduct Office (SOCO) shall:
(1) Manage the DoD EOC and call periodic meetings to consider current issues in ethics and standards of conduct;
(2) Coordinate DoD component ethics programs, including providing uniform guidance and training material;
(3) Collect and publish important written opinions from DoD components, when practicable, to promote uniformity of ethics opinion throughout DoD;
(4) Monitor and assist DoD component DAEOs in ensuring effective corrective action is taken to remedy violations, potential violations and the appearance of violations of ethics laws or this part;
(5) Certify Qualified Individuals to conduct ethics training who may be used by DoD components;
(6) Make ethics and procurement integrity training for ethics trainers available on an ongoing basis to ensure that Qualified Individuals are uniformly prepared to provide such training;
(7) Distribute ethics and procurement integrity training material to all DoD component DAEOs for use in all types of ethics and procurement integrity training;
(8) In the interest of Federal Government efficiency and economy, establish and maintain a resource center of ethics and procurement integrity materials (including training materials) developed by DoD components.
(k) The DoD Ethics Oversight Committee (EOC) shall:
(1) Meet periodically, as necessary;
(2) Consider general ethics issues or current issues and make recommendations to promote uniformity of ethics opinions throughout DoD;
(3) Provide recommendations to DoD component DAEOs on particular ethics matters in accordance with this part;
(4) Provide recommendations for DoD input on proposed ethics legislation and regulations.
(l) The Director, Washington Headquarters Services shall:
(1) Prepare an annual report listing all the defense contractors that have been awarded $10 million or more in defense contracts during the fiscal year and publish the report in the
(2) Prepare an annual report listing all the defense contractors that have been awarded $25,000 or more in defense contracts during the fiscal year and distribute to the DoD component DAEOs not later than December 31 following the end of the fiscal year.
(m) The Under Secretary of Defense for Acquisition shall prepare an annual report listing all the major defense systems as defined by 10 U.S.C. 2302(5), and the prime defense contractors responsible for each, that were in progress during the fiscal year and provide the report to the DoD SOCO for publication in the
(n) Each Ethics Counselor shall:
(1) Provide written and oral advice, counseling, and assistance to his DoD component command or organization and to the DoD employees of his DoD component command or organization, on all ethics matters, particularly areas covered by this part and related statutes and regulations;
(2) Request assistance, through appropriate channels, from the DoD component DAEO or designee on any matter than cannot be resolved locally;
(3) Maintain a current copy of this part, and all changes, for review by any DoD employee;
(4) Maintain a thorough understanding of current DoD ethics policy through contact with the DoD component DAEO, attendance at periodic ethics training courses, and other appropriate methods;
(5) Promptly provide a copy to the DoD component DAEO of precedental written decisions to assist uniformity throughout the DoD components;
(6) Perform other duties as assigned by written delegation from the DoD component DAEO;
(7) Review financial disclosure reports in accordance with subpart G of this part.
(o) The Inspector General of each DoD component shall:
(1) Investigate ethics matters arising in the DoD component, and refer any such matters that involve suspected criminal violations to the appropriate criminal investigative office of the DoD component;
(2) Report to the DoD component DAEO or designee on investigations that result in referrals to the Department of Justice (DoJ) and on disciplinary actions that must be reported in response to the OGE annual ethics survey;
(3) Ensure inspectors and agents are educated in ethics matters to ensure appropriate handling of ethics related cases and calls;
(p) The director of each DoD component personnel office (or equivalent) shall:
(1) Provide the DoD component DAEO or designee such personnel data on DoD employees, both civilian and military, as may be required by the DoD component DAEO or designee;
(2) Assign personnel action officers the responsibility of providing the required information at local levels;
(3) In coordination with the DoD component DAEO or designee, establish procedures to inform new DoD employees of their obligation to receive
(4) In coordination with the DoD component DAEO or designee, establish out-processing procedures and records to advise DoD employees of available counseling regarding post-employment and procurement integrity restrictions prior to departure from DoD;
(5) In coordination with the DoD component DAEO or designee, establish procedures to advise incoming and outgoing DoD employees of their financial and employment disclosure reporting obligations.
(q) The administrative officer (or equivalent) of each DoD component command and organization shall:
(1) Ensure that each position description of the DoD component command or organization indicates if an SF 278,
(2) Upon the request of the DAEO or designee, ensure the accuracy of personnel data provided by the Director of the DoD component personnel office on DoD employees of the DoD component command or organization;
(3) In coordination with the DoD component DAEO or designee, develop a list of all DoD employees within the DoD component command or organization who are required to receive ethics and procurement integrity training;
(4) In coordination with the DoD component DAEO or designee, ensure that DoD employees of the DoD component command or organization are scheduled to receive required ethics and procurement integrity training;
(5) Annotate such list to indicate when required training was accomplished and retain annotated list for three years.
(r) Each DoD employee shall:
(1) Abide by the ethical principles established by Executive Order 12674, ethics statutes, and the ethics regulations promulgated by OGE and the DoD thereunder;
(2) Set a personal example for fellow DoD employees in performing official duties within the highest ethical standards;
(3) Report suspected violations of ethics regulations in accordance with § 84.38(a);
(4) Perform all official duties so as to facilitate Federal Government efficiency and economy;
(5) Attend ethics and procurement integrity training as required;
(6) File financial and employment disclosure reports as required.
See 5 CFR part 2635, “Standards of Ethical Conduct for Employees of the Executive Branch.” The following sections of 5 CFR part 2635 are military general orders: § 2635.202(a); § 2635.202(c)(1),(2),(3),(4), and (5) (excluding example and paragraphs (c)(4) (i) through (iii)); § 2635.302; § 2635.402(a) (excluding note); § 2635.502(a) (excluding paragraphs (a)(1) and(2)); § 2635.503(a) (excluding examples); § 2635.604(a) (excluding the last sentence and examples); § 2635.606(a) (excluding the last sentence and example); the first sentence of § 2635.702; § 2635.702(a) (excluding examples); § 2635.702(b) (excluding examples); § 2635.702(c) (excluding examples); § 2635.703(a); § 2635.704(a); § 2635.705(b) (excluding examples); the first paragraph of § 2635.802; § 2635.802(a); § 2635.802(b) (excluding sentence beginning “Employees are cautioned * * *” and excluding examples); § 2635.805(a); § 2635.807(a) (excluding paragraphs (a)(1) and (2)); the first sentence of § 2635.808; § 2635.808(b) (excluding example); and § 2635.808(c) (excluding paragraph (c)(3) and examples).
See 5 CFR 3601.101-3601.108, “Supplemental Standards of Conduct for Employees of the Department of Defense.” The following sections of 5 CFR
(a)
(2)
(3)
(i) Attendance at appropriate functions incident to the ceremony, such as a dinner preceding the ceremony and reception following it, and related food, hospitality and entertainment, as long as the function and related benefits are not lavish, excessive, or extravagant;
(ii) Tangible gifts or mementos in connection with the ceremony to DoD employees, their spouses, and their dependent children, who are official participants in the ceremony, as long as the aggregate retail value does not exceed $100 per family and the cost is not borne by the Federal Government. When such gifts exceed the $100 limit, the recipient shall pursue one of the following alternatives:
(A) Return the gift to the donor;
(B) Retain the gift after reimbursing the donor the full value of the gift; or
(C) Forward the gift to the appropriate DoD component official for disposition as a gift to the Federal Government in accordance with statute. See 10 U.S.C. 2601.
(b)
(1) The use of Federal Government telephone systems (including calls over commercial systems which will be paid for by the Federal Government), except as provided in paragraph (b)(2) of this section shall be limited to the conduct of official business. Such official business calls may include emergency calls and calls that the DoD components determine are necessary in the interest of the Federal Government.
(2) Personal calls (such as calls to speak to spouse/minor children or to arrange for emergency repairs to residence or automobile) that must be made during working hours over the commercial local/long distance network may properly be authorized as being in the best interest of the Federal Government if the call is consistent with the following criteria:
(i) It does not adversely affect the performance of official duties by the DoD employee or the DoD employee's organization;
(ii) It is of reasonable duration and frequency; and
(iii) It could not reasonably have been made at another time;
(iv) And, in the case of long distance calls, is:
(A) Charged to the employee's home telephone number or other non-Federal Government number (third number call);
(B) Made to an 800 toll-free number;
(C) Charged to the called party if a non-Federal Government number (collect call);
(D) Charged to a personal telephone credit card; or
(E) When traveling for more than one night on Federal Government business in the United States, a brief call to his residence to notify family of a schedule change.
(c)
(i) Activities necessitated by a DoD employee's law enforcement duties;
(ii) Activities by organizations composed primarily of DoD employees or their dependents for the benefit of welfare funds for their own members or for the benefit of other DoD employees or their dependents, subject to the limitations of local law and of § 84.9(k) and (l), when approved by the Head of the DoD Component or designee;
(iii) Private wagers among DoD employees if based on a personal relationship and transacted entirely within assigned Federal Government living quarters and within the limitations of local laws [end of General Order; or
(iv) Purchases of lottery tickets authorized by any State from blind vendors licensed to operate vending facilities in accordance with 20 U.S.C. 107a(5).
(2) Gambling with a subordinate may be a violation of Articles 133 and 134 of the Uniform Code of Military Justice (UCMJ) (10 U.S.C. 801-940).
(3) Gambling may be prohibited by Federal Government building and grounds regulations, such as 32 CFR part 40b which prohibits gambling in the Pentagon.
(d)
(1) The commander, head of the organization, or supervisor may prohibit the employment or activity if he believes that the proposed outside activity will detract from readiness or pose a security risk.
(2) If action is not taken to prohibit the employment or activity, the DoD employee is free to engage in the employment or activity in keeping with other restrictions of this part.
(e)
See 5 CFR part 2636, “Limitations on Outside Employment and Prohibition of Honoraria; Confidential Reporting of Payments of Charities in Lieu of Honoraria.”
(a)
(2) DoD employees are prohibited from attending events in their official DoD capacities at Federal Government expense in order to acquire or maintain professional credentials that are a minimum requirement to hold the DoD position. See 5 U.S.C. 5946 and 31 U.S.C. 1345.
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(1) A DoD component may co-sponsor a civic or community activity where the head of the DoD component command or organization determines that the activity is unrelated to the purpose or business of the co-sponsoring, non-Federal entity or the purpose or business of any of its members. See DoD Instruction 5410.20
(2) A DoD component may co-sponsor a conference, seminar, or similar event with a non-Federal entity when all of the following requirements are met:
(i) The head of the DoD component command or organization finds that the subject matter of the conference (or co-sponsored portion) is scientific, technical or professional issues that are relevant to the DoD component's mission;
(ii) The head of the DoD component command or organization finds that the purpose of co-sponsorship is to transfer federally developed technology or to stimulate wider interest and inquiry into the scientific, technical or professional issues previously identified;
(iii) The non-Federal entity is a recognized scientific, technical or professional organization approved by the DoD component DAEO for this purpose; and
(iv) The DoD component accomplishes the co-sponsorship through a
(3) If the DoD component desires to sponsor an event, but requires assistance in making the arrangements, the DoD component may arrange, through normal acquisition procedures, to have a non-Federal entity provide whatever assistance is necessary. If the event is open to individuals outside the Federal Government, attendance may not be limited to members of the supporting non-Federal entity. The supporting non-Federal entity may be permitted to mention its support in conference materials, but not in terms which imply that it is sponsoring or co-sponsoring the event.
(j)
(k)
(i) The Combined Federal Campaign (CFC);
(ii) Emergency and disaster appeals approved by the Office of Personnel Management (OPM);
(iii) Army Emergency Relief;
(iv) Navy-Marine Corps Relief Society;
(v) Air Force Assistance Fund, including:
(A) Air Force Enlisted Men's Widows and Dependents Home Foundation, Inc.;
(B) Air Force Village;
(C) Air Force Aid Society;
(D) General and Mrs. Curtis E. LeMay Foundation.
(vi) Other organizations composed primarily of DoD employees or their dependents when fundraising among their own members for the benefit of welfare funds for their own members when approved by the head of the DoD component command or organization [end of General Order].
(2) Fundraising by DoD employees is strictly regulated by Executive Order 12353, 47 FR 12785, 3 CFR, 1982 Comp., p. 139, 5 CFR part 950, DoD Directive 5035.1
(l)
(i) The support does not interfere with the performance of official duties and would in no way detract from readiness;
(ii) The sponsoring, non-Federal entity is not affiliated with the CFC (including local CFC) or, if affiliated with the CFC, the Director, OPM or designee has no objection to DoD support of the event (OPM generally has no objection to support of events that do not specifically target Federal employees for fundraising);
(iii) The community relations with the immediate community and/or other legitimate DoD interests are served by the support;
(iv) It is appropriate to associate DoD, including the concerned Military Department, with the event;
(v) The event is of interest and benefit to the local civilian or military community as a whole;
(vi) The DoD Component command or organization is able and willing to provide the same support to comparable events that meet the criteria of this subsection and are sponsored by other similar non-Federal entities;
(vii) The use is not restricted by other statutes or regulations; and
(viii) Except for a charitable fundraising event that meets all other criteria for DoD participation, no admission fee (beyond what will cover the reasonable costs of sponsoring the event) is charged for the event, no admission fee (beyond what will cover the reasonable costs of sponsoring the event) is charged for the portion of the event supported by the DoD, or DoD support to the event is incidental to the entire event in accordance with public affairs guidance.
(2) Involvement of DoD resources in air shows sponsored by non-Federal entities is approved or disapproved by the Office of the Assistant Secretary of Defense (Public Affairs).
(3) Speeches by DoD employees at events sponsored by non-Federal entities are not precluded when the speech expresses an official DoD position in a public forum in accordance with public affairs guidance.
(m)
(1) Certain banks and credit unions (32 CFR part 231);
(2) United Service Organization (DoD Directive 1330.12
(3) Labor organizations (5 U.S.C. Chapter 71; DoD 1400.25-M
(4) Combined Federal Campaign (Executive Order 10927, 26 FR 2383, 3 CFR, 1959-1963 Comp., p. 508) DoD Directive 5035.1;
(5) Association of Management Officials and Supervisors (DoD Instruction 5010.30
(6) American Registry of Pathology (10 U.S.C. 177); Henry M. Jackson Foundation for the Advancement of Military Medicine (10 U.S.C. 178); American National Red Cross (10 U.S.C. 2542); Boy Scouts Jamborees (10 U.S.C. 2544); Girl Scouts International Events (10 U.S.C. 2545); Shelter for Homeless (10 U.S.C. 2546); National Military Associations; Assistance at National Conventions (10 U.S.C. 2548); Assistance from American National Red Cross (10 U.S.C. 2602); United Seaman's Service Organization (10 U.S.C. 2604); Scouting: Cooperation and Assistance in Foreign Areas (10 U.S.C. 2606); and Civil Air Patrol (10 U.S.C. 9441-9442).
(a)
(2)
(i) The participation or paper is related to the DoD employee's official position or to DoD functions, management or mission; and
(ii) The Agency can derive some benefit from the participation or preparation, such as expansion of professional expertise by DoD employees or improved public confidence derived fro the professional recognitions of the DoD employee's competence;
(iii) The participation or preparation of the paper does not interfere with the performance of official DoD duties.
(3)
(4)
(b)
(c)
(d)
(e)
(f)
(i) Agency designees may permit occasional use of Federal Government telephone systems in keeping with GSA rules on personal calls, provided that such use does not interfere with the performance of official duties. See § 84.7(b) and 41 CFR 201-21.6;
(ii) Because the cost to the Federal Government is minimal, the use of office telecommunications equipment for local calls, word processing equipment, libraries and similar resources and facilities whose use would not affect Federal Government costs significantly, may be permitted by the agency designee if:
(A) The non-Federal entity is not a prohibited source;
(B) The agency designee determines that:
(
(
(C) The use of such resources is made only during personal time, such as excused absence, lunch period, or after duty hours; and
(D) The use does not interfere with the performance of official duties.
(2)
(ii) [The following is a General Order] For the same reasons, copiers and other duplicating equipment may not be used for unofficial activity in support of non-Federal entities [end of General Order].
(g)
(i) Business activity means any business, contractual or other financial relationship not involving the provision of personal services by the DoD employee. It does not include a routine commercial transaction or the purchase of an asset or interest, such as common stock, that is available to the general public.
(ii) Employment means any form of non-Federal Government employment or business relationship involving the provision of personal services by the DoD employee. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner or trustee.
(iii) Prohibited source has the meaning set forth in 5 CFR 2635.203(d), as modified by the separate agency designations in 5 CFR 3601.102.
(2) The DoD component DAEO or designee may, by a written notice, exempt categories of business activities or employment from the requirement of paragraph (g)(1) of this section for prior approval based on a determination that business activities or employment within those categories would generally be approved and are not likely to involve conduct prohibited by statute or regulation.
(3) A copy of the request for prior approval and the written approval shall be kept with the filed copy of the DoD employee's financial disclosure report, SF 450 or SF 278, or with the local Ethics Counselor.
(4) Such DoD employees who have not obtained prior approval and who are, on the effective date of this supplemental rule, already engaged in an outside activity that requires prior approval shall have 90 days from that date to obtain such approval.
(5) Except to the extent that when procedures have been established by higher authority for any class of DoD employee (e.g., DoD Directive 6025.7
(i) The commander, head of the organization, or supervisor may prohibit the employment or activity if he believes that the proposed outside activity will detract from readiness or pose a security risk.
(ii) If action is not taken to prohibit the employment or activity, the DoD employee is free to engage in the employment or activity in keeping with other restrictions of this part.
(h)
(i) The required disclaimer shall expressly state that the views presented are those of the speaker or author and do not necessarily represent the views of DoD or its components.
(ii) Where a disclaimer is required for an article, book or other writing, the disclaimer shall be printed in a reasonably prominent position in the writing itself. Where a disclaimer is required for a speech or other oral presentation, the disclaimer may be given orally provided it is given at the beginning of the oral presentation [end of General Order].
(2)
(3)
(a)
(2)
(3)
(i) Approved in writing by the travel approving authority with the advice of the DoD employee's Ethics Counselor;
(ii) If accepted under the authority granted by 31 U.S.C. 1353, approved in advance of travel.
(4)
(i) For DoD employees of OSD, Defense Agencies and OSD Field Activities, the Executive Secretary, OSD;
(ii) For DoD employees of Military Departments, the Secretaries concerned or their designees;
(iii) For DoD employees of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the United or Specified Commands, and the Combined Commands and agencies, the Chairman of the Joint Chiefs of Staff, or his designee.
(b)
(i) In accordance with 31 U.S.C. 1353 and GSA travel regulations, 41 CFR 301-1.2 and part 304, Heads of DoD components may accept travel benefits from a non-Federal source incurred by DoD employees in connection with their attendance in an official capacity at a meeting or similar function. The Joint Federal Travel Regulations
(ii) Where the GSA travel regulations, 41 CFR 301-1.2 and part 304, are inconsistent with the JFTR and JTR, 41 CFR 301-1.2 and part 304 are the controlling authorities.
(iii) A DoD component may not accept travel benefits from non-Federal sources under any other gift acceptance authority if 31 U.S.C. 1353 applies.
(iv)
(A) When travel benefits are paid for rather than provided in kind, payments from the non-Federal source will be by check or similar instrument made payable to the United States Treasury. Any such payment received by the DoD employee (or spouse) shall be submitted with his travel voucher as soon as practicable.
(B) The DoD employee shall exclude from his travel voucher any request for reimbursement for travel benefits furnished in kind by a non-Federal source on the travel voucher to ensure that appropriate deductions are made in the travel, per diem, or other allowances payable by the United States.
(v)
(2)
(i) This authority may not be used to accept travel benefits covered by 31 U.S.C. 1353.
(ii) This authority may be used to accept, for example, reimbursement for travel benefits of flight crew members that accompany Federal Government aircraft to international air shows or the expenses incurred by the attendance of DoD employees at ceremonial events in order to enhance a DoD component's public relations. This authority may also be used to accept travel benefits offered after travel has begun or has been completed.
(3)
(c)
(2)
(i) The source is tax-exempt organization described by 26 U.S.C. 501(c)(3) or a State or local government (see 5 CFR part 410, subpart G);
(ii) The contribution, award, or payment of travel benefits is incidental to
(iii) An appropriate deduction is made from any payment by the Federal Government to the DoD employee for their official travel entitlement;
(iv) The contribution, award, or payment is not a reward for services to the non-Federal source;
(v) Acceptance of the contribution, award or payment would not reflect unfavorably on the DoD employee's ability to perform his duties in a fair and objective manner, nor otherwise compromise the integrity of any Federal Government action; and
(vi) The travel approving authority approves the acceptance of the contribution, award or payment in writing.
(3)
(4)
(ii) Travel benefits accepted under 5 U.S.C. 4111 shall be reported by the travel-approving authority directly to the DoD component DAEO or designee within 30 days after completion of travel. These reports shall include, at a minimum, the information required for the semiannual reports by the JFTR, Paragraph U7908 and JTR, Paragraph C4908.
(d)
(a)
(1)
(i) Travel coupons, tickets, promotional items of more than nominal value, frequent flyer mileage credits, and most other benefits received by DoD employees from non-Federal sources (e.g., airlines, rental car companies, hotels) incident to their official travel belong to the Federal Government. They may not be used for personal purposes.
(ii) If possible, such benefits will be turned over to the appropriate official. See JFTR, Paragraph U2010B, JTR, Paragraph C1200, 41 CFR part 301 and 41 CFR 101-25.103.
(2)
(b)
(2)
(c)
(i)
(ii)
(2)
(3)
(4)
(a) The
(1) Approve or disapprove acceptance of travel benefits in kind or payments of travel expenses from non-Federal sources in accordance with § 84.11 (c) and (d);
(2) Acquire the concurrence of the DoD component DAEO or designee when approving travel benefits in accordance with the conflict of interest analysis required by 41 CFR 304-1.5;
(3) Prepare and submit a report to the DoD component DAEO or designee reporting all travel benefits over $250 accepted in accordance with the authority granted under 31 U.S.C. 1353 as implemented in § 84.11(b);
(4) Prepare and submit a report to the DoD component DAEO or designee within 30 days after completion of travel during which travel benefits have been paid by non-Federal sources under 5 U.S.C. 4111. See § 84.11(c)(3).
(b) Each
(1) Prepare and submit semiannual reports to OGE on acceptance of payments under 31 U.S.C. 1353 due May 31 and November 30 each year. See § 84.11(b)(1)(v);
(2) Retain reports from the travel-approving authority under 5 U.S.C. 4111 for two years. See § 84.11(c)(4);
(3) Provide written concurrence for the approval of travel benefits in accordance with the conflict of interest analysis required by 41 CFR 304-1.5.
(c) Each
(1) Provide all necessary information to the travel approving authority for a semiannual report to the DoD component DAEO;
(2) Turn in any merchandise, frequent flyer miles or other benefits as required under § 84.12(a).
(a) See 5 CFR part 2639, “Interpretation of 18 U.S.C. 209”
(b) See 5 CFR part 2640, “Interpretation of 18 U.S.C. 208”
(a)
(b)
(c)
(1) The regulatory waivers for DoD under 18 U.S.C. 208(b)(2) have been preserved and are reprinted as follows (see 5 CFR 2635.402(d));
(i) For civilian DoD components, such waivers appear in Appendix B to this part;
(ii) For the Department of the Army, such waivers appear in Appendix B to this part;
(iii) For the Department of the Air Force, such waivers appear in Appendix B to this part;
(iv) For the Department of the Navy, such waivers appear in Appendix B to this part.
(2) Application of 18 U.S.C. 208(a) may be waived for individuals when a financial interest is not so substantial as to be likely to affect the integrity of the services that the Federal Government may expect from the DoD employee. Considerations in determining whether the interest is not so substantial as to be deemed likely to affect the integrity of the services that the Federal Government may expect from the DoD employee include:
(i) The extent to which the DoD employee's exercise of authority and responsibility can affect his interest;
(ii) The relative importance of the interest in the DoD employee's life or finances;
(iii) The potential for harm to the Federal Government and to the DoD employee if the DoD employee's interests influence his decision-making;
(iv) How the situation would appear to an informed public;
(v) The nature of the relationship between the DoD employee and the individual who has the interest concerned.
(3) In order to pursue an individual waiver under 18 U.S.C. 208(b)(1) the following steps are mandatory:
(i) Before a waiver is requested, consideration should first be given to alternative resolutions, such as disqualification, divestiture, reassignment, or rearrangement of duties. Individual waivers are to be considered only when all alternatives have been exhausted. The supervisor should also consider, with the advice of the Ethics Counselor, whether a potential violation of 18 U.S.C. 208(a) exists. See paragraph (d) of this section. Even if the interests are insubstantial, consideration should be given to whether the particular matter will have a direct and predictable effect on the financial interest. See 5 CFR 2635.402(b)(1);
(ii) A request for a waiver shall be forwarded through the chain of command or supervision to the DoD component DAEO. The DoD component DAEO shall consult, if practicable, on the action with OGE;
(iii) Pending the approval of the waiver, the DoD employee shall be disqualified from participation in the particular matter that will have an effect on the financial interest;
(iv) The waiver request shall include the Ethics Counselor's findings of fact on the following:
(A) The manner in which the financial interest was acquired;
(B) The purpose behind the DoD employee's acquisition of the interest;
(C) The dollar value of the interest;
(D) The potential amount by which the DoD employee's official actions may affect the financial interest;
(E) The degree to which the DoD employee has control over official actions which may affect the non-Federal entity;
(F) The size of the non-Federal entity and the degree to which official actions may affect the non-Federal entity;
(G) The value of the financial interest in relation to the DoD employee's net worth and income from other sources;
(H) The degree to which the DoD employee has control over the financial interest, and whether it is capable of being divested.
(4) By statute, authority to grant 18 U.S.C. 208(b)(1) waivers rests with the DoD official responsible for the DoD employee's appointment. By Executive Order 12674, that authority shall not be exercised without prior consultation, if practicable, with OGE. The DoD component DAEO shall consult with OGE regarding the waiver on behalf of the DoD official responsible for the DoD employee's appointment.
(d)
(a)
(2) [The following is a General Order] DoD employees are also prohibited, except as provided by law for the proper discharge of official duties, from, directly or indirectly, giving, offering, promising, demanding, seeking, receiving, accepting, or agreeing to accept anything of value for or because of any official act performed or to be performed, or for or because of any testimony given or to be given before an individual or non-Federal entity authorized to hear evidence or take testimony [end of General Order]. See 18 U.S.C. 201(c).
(3) These prohibitions do not apply to the payment or receipt of witness fees authorized by law, certain travel and subsistence expenses to appear as a witness and value of time lost in attendance at a trial, hearing, or proceeding. Other prohibitions may apply. See 18 U.S.C. 201(d); 5 U.S.C. 5515 and 5751 and paragraph 66 of part IV, MCM, 1984 (10 U.S.C. 801-940).
(b)
(1) The prohibition does not apply to a DoD employee's representation of himself, but this exception does not extend to the representation of a distinct, legal, non-Federal entity as a corporation, a partnership, or even a sole proprietorship. 18 U.S.C. 203(a)(2) prohibits an offer or payment of compensation, the solicitation or receipt of which is otherwise barred.
(2) The prohibitions apply to special Government employees but only in relation to a particular matter involving a specific party or parties in which the special Government employee participated personally and substantially or, absent such participation, if he served more than a total of 60 days in the preceding 365 days, in relation to any particular matter pending in the DoD agency.
(3) 18 U.S.C. 203 does not prohibit giving testimony under oath or making statements required to be made under penalty of perjury.
(4) 18 U.S.C. 203 does not prohibit representation, with or without compensation, of one's parents, spouse, child, or any person or estate the DoD employee serves as administrator, guardian or other personal fiduciary. This exemption is permitted only if approved by the DoD official responsible for appointing the DoD employee to his DoD position. The exemption may not be extended to the DoD employee's representation of any such person in matters in which the DoD employee has officially participated personally and substantially or in matters which, even absent such participation, are the subject of his official responsibility.
(5) The head of a department or agency may authorize a special Government employee to represent his regular employer or other outside organization in the performance of work under a Federal Government grant or contract if the department or agency head certifies and publishes the certification in the
(c)
(d)
(2)
(i) Giving testimony under oath or making statements required to be made under penalty of perjury or representing another person, with or without compensation, in a disciplinary, loyalty, or other personnel administration proceeding;
(ii) Representing, with or without compensation, one's parents, spouse, child, or a person estate the DoD employee serves as a fiduciary, but only if approved by the DoD official responsible for appointing the DoD employee to this DoD position. This exception does not apply to matters in which the DoD employee has participated personally and substantially or which, in the absence of such participation, are the subject of his official DoD responsibility;
(iii) The head of a department or agency may allow a special Governmental employee to represent his regular employer or other outside organization in the performance of work under a Federal Government grant or contract if the department or agency head certifies and publishes the certification in the
(iv) For special Government employees, the prohibitions apply only to covered matters in which they participated personally and substantially as a special Government employee. Absent such participation, the prohibitions apply only if he served more than a total of 60 days during the preceding 365 days and the covered matter was pending in the DoD agency during that period.
(e)
(2) 18 U.S.C. 209 prohibits DoD employees from receiving pay or allowances or supplements of pay or benefits from any source other than the United States for the performance of official service or duties unless specifically authorized by law. Note that a task or job that is performed outside normal working hours does not necessarily allow acceptance of payment for performing it. If the undertaking is part of one's official duties, pay for its performance may not be accepted from any source other than the United States regardless of when it was performed.
(3) A DoD employee may continue to participate in bona fide pension, retirement, insurance, bonus, or other employee welfare or benefit plan maintained by his former employer. See 18 U.S.C. 209(b).
(4) Reserve military officers and certain temporarily commissioned military officers who are ordered to active duty may continue to receive compensation from individuals who furnished compensation to them prior to being ordered to active duty. See 10 U.S.C. 1033 and 50 U.S.C. App. 454(f).
(f)
(1) 5 U.S.C. 5536 precludes extra pay from the Federal Government for the performance of official duties. Subject to certain limitations, civilian DoD employees may hold two distinctly different Federal Government positions and receive the salaries of both if the duties of each are performed. Absent specific authority, however, military member may not do so because any arrangement by a military member for rendering services to the Federal Government in another position is incompatible with the military member's actual or potential military duties. That a military member may have leisure hours during which no official duty is performed does not alter the result. See 52 Comp. Gen. 471 and 22 Comp. Gen. 127, 149.
(2) 5 U.S.C. 5536 applies to enlisted members and precludes enlisted members from supplementing their official salaries from outside sources for performing their official duties.
(g)
(h)
(i)
(2) Commanders, or their designees, shall screen Reservists performing training to ensure that no actual or apparent conflict exists between their private interests and their duty assignment. While Reservists have an affirmative obligation under this rule to disclose material facts in this regard, receiving commands cannot assume compliance and shall independently screen incoming personnel to avoid conflicts of interests.
(j)
(1) [The following is a General Order] This prohibition includes the solicited sale of insurance, stocks, mutual funds, real estate, cosmetics, household supplies, vitamins, and other goods or services [end of General Order].
(2) [The following is a General Order] Both the act of soliciting and the act of selling as a result of soliciting are prohibited. In both cases, however, a solicitation is necessary for a violation to occur. While the standard prohibits a senior from making a solicited sale to a junior or to the junior's family, sales made because a junior approaches the senior and requests the sale to be made are not prohibited, absent coercion or intimidation by the senior [end of General Order].
(3) Personal commercial solicitations by the spouse or other household member of a DoD employee to those who are junior in rank, grade, or position to the
(i) Cause actual or perceived partiality or unfairness;
(ii) Involve the actual or apparent use of rank or position for personal gain; or
(iii) Otherwise undermine discipline, morale, or authority.
(k)
(2) There are requirements regarding seeking outside employment. See 5 CFR 2635.601-2635.606 and subpart H of this part.
(3) There is a prohibition on engaging in outside employment or activities that conflict with official duties. See 5 CFR 2635.802.
(4) There are limitations on certain outside activities such as receipt of outside earned income by certain DoD Presidential appointees or non-career DoD employees, service as an expert witness, participation in professional associations, teaching, writing, speaking, or fundraising. See 5 CFR 2635.804-2635.808.
(5) There is a prohibition on the receipt of honoraria. See 5 CFR part 2636.
(6) There are prohibitions on the misuse of official position such as improper endorsements or improper use of non-public information. See 5 CFR 2635.701-2635.705.
(7) There are prohibitions on certain post-Government service employment. See subpart I of this part.
See 5 CFR part 734, “Political Activities of Federal Employees.”
(a)
(1) The policy governing the political activities of civilian DoD employees is derived from the Hatch Act Amendments, 5 U.S.C. 7321 through 7325. Guidance on the application of the Hatch Act Amendments is provided by the Hatch Act Hotline at the Office of Special Counsel at 1-(800) 854-2824.
(2) Primary enforcement responsibility under the Hatch Act Amendments lies with the Office of Special Counsel under 5 U.S.C. 1216(c); however, DoD Components have responsibility to investigate allegations of prohibited political activity by excepted service employees of the DoD Component.
(3) It is DoD policy to encourage civilian DoD employees and members of the Armed Forces to carry out the obligations of citizenship to the maximum extent possible consistent with the restrictions imposed by law and by this part.
(b)
(1) Be candidates for public office in nonpartisan elections;
(2) Register and vote as they choose;
(3) Assist in voter registration drives;
(4) Express opinions about candidates and issues;
(5) Contribute money to political organizations;
(6) Attend political fundraising functions;
(7) Attend and be active at political rallies and meetings;
(8) Join and be an active member of a political party or club;
(9) Sign nominating petitions;
(10) Campaign for or against referendum questions, constitutional amendments, or municipal ordinances;
(11) Campaign for or against candidates in partisan elections (see paragraph (b)(3) of this section);
(12) Make campaign speeches for candidates in partisan elections (see paragraph (b)(3) of this section);
(13) Distribute campaign literature in partisan elections (see paragraph (b)(3) of this section);
(14) Hold office in political clubs or parties (see paragraph (b)(3) of this section).
(c)
(1) Military members are not covered by the Hatch Act Amendments, 5 U.S.C. 7321 through 7327. Political activities of Military members are covered in § 84.19.
(2) Notwithstanding paragraph (a) of this section, as a matter of longstanding DoD policy, DoD employees who are appointed by the President, by and with the advice and consent of the Senate (e.g. the Secretary of Defense, the Secretaries of the Military Departments, etc.), and DoD employees who are appointed by the Secretary of Defense to non-career Senior Executive Service positions may not engage in activities that could be interpreted as associating the DoD with any partisan political cause or issue.
(3) The following DoD employees (except for Presidential appointees who are confirmed by and with the consent of the Senate) are prohibited from engaging in the activities described in paragraphs (a)(11) through (a)(14) of this section:
(i) Employees of the National Security Agency;
(ii) Employees of the Defense Intelligence Agency;
(iii) Career members of the senior executive service;
(iv) Administrative Law Judges; and
(v) Contract appeals board members.
(d)
(1) Use official authority or influence for the purpose of interfering with or affecting the result of an election;
(2) Collect political contributions unless both the collector and the donor are members of the same Federal labor organization or employee organization and the donor is not a subordinate;
(3) Knowingly solicit or discourage the political activity of any person who has business with DoD;
(4) Engage in political activity while on duty;
(5) Engage in political activity while in any Federal workplace;
(6) Engage in political activity while wearing an official uniform or displaying official insignia identifying the office or position of the DoD employee;
(7) Engage in political activity while using a Government owned or leased vehicle;
(8) Solicit political contributions from the general public;
(9) Be a candidate for public office in partisan elections;
(10) Wear political buttons on duty;
(11) Contribute to the political campaign of another Federal Government employee who is in the DoD employee's chain of command or supervision or who is the employing authority, including the political campaign to re-elect the President or Vice President.
(e)
(1) Run as an independent candidate for election to a partisan political office in an election for local office of the municipality or political subdivision provided the candidacy for, and service in, the partisan political office shall not result in neglect of, or interference with, the performance of the duties of the DoD employee or create an actual or apparent conflict of interest; and
(2) Accept or receive political contributions in connection with a local election of the municipality or political subdivision provided the DoD employee does not solicit political contributions from the general public.
(f)
(1) The restrictions of 5 U.S.C. 3303 apply to all personnel actions described
(i) Competitive service employees;
(ii) Career appointees in the Senior Executive Service; and
(iii) Excepted service employees other than one who is appointed by the President or whose position has been determined to be of confidential, policy-determining, policy-making, or policy-advocating character.
(2) Each personnel action with respect to a DoD employee or applicant, as described in paragraph (c)(1) of this section, shall be taken without regard to any recommendation or statement, oral or written, made by the following types of individuals:
(i) Members of Congress or Congressional employees;
(ii) Elected officials of any State (including the District of Columbia and the Commonwealth of Puerto Rico), county, city, or other subdivision thereof;
(iii) Officials of political parties; or
(iv) Other individuals or organizations making such recommendations or statements on the basis of the party affiliations of the DoD employee or applicant recommended.
(3) DoD employees may solicit, accept, and consider any statement with respect to a DoD employee or applicant described in paragraph (c)(1) of this section if the statement meets one of the following conditions:
(i) It is pursuant to a request or requirement of the DoD Component and consists solely of an evaluation of the work performance, ability, aptitude, and general qualifications of the DoD employee or applicant;
(ii) It relates solely to the character and residence of the DoD employee or applicant;
(iii) It is furnished pursuant to a request made by an authorized representative of the Government of the United States solely in order to determine whether the DoD employee or applicant meets suitability or security standards;
(iv) It is furnished by a former employer of the DoD employee or applicant pursuant to a request of an agency, and consists solely of an evaluation of the work performance, ability, aptitude, and general qualifications of such DoD employee or applicant during employment with such former employer; or
(v) It is furnished pursuant to a provision of law or regulation authorizing consideration of such statement with respect to a specific position or category of positions.
(4) DoD Component Heads are required by 5 CFR 300.801 to ensure that DoD employees and applicants described in paragraph (c)(1) of this section are notified of the provisions of 5 U.S.C. 3303.
See DoD Directive 1344.10
See 5 CFR part 2634, “Financial Disclosures, Qualified Trusts, and Certificates of Divestiture for Executive Branch Employees”.
(a)
(i) Civilian Presidential appointees;
(ii) Regular and reserve military officers whose pay grade is 0-7 or above;
(iii) Members of the Senior Executive Service;
(iv) Other civilian DoD employees, including special Government employees, whose positions are classified above GS/GM-15 prescribed by 5 U.S.C.
(v) DoD employees in the excepted service in positions that are of a confidential or policy-making character unless they have been excluded by the Director, OGE. See paragraph (a)(4) of this section;
(vi) Individuals serving by appointment under the Intergovernmental Personnel Act, from State or local governments, institutions of higher education or other eligible organizations. See 5 U.S.C. 3371-3376;
(vii) Civilian individuals who are detailed to positions described in paragraphs (a)(1)(iii) through (a)(1)(v) of this section;
(viii) DoD component DAEOs.
(2)
(3)
(4)
(b)
(1) The name, position, grade, organization and entrance-on duty or termination date of each individual assigned to the DoD component who is required to file a new entrant or termination SF 278 immediately upon the appointment of the individual to a position requiring filing, or upon receipt of an SF 52, “Request for Personnel Action,” August 1988, requesting approval of the retirement, resignation, or removal of the individual from such a position;
(2) By January 10 of each year, the name, position, grade, and organization of each individual assigned to the DoD component who is required to file an annual SF 278.
(c)
(d)
(ii) The report shall contain the information prescribed in the “Instructions for Completing SF 278” attached to the SF 278. These reports shall be certified by the DoD component DAEO, and processed as prescribed by OGE regulation, 5 CFR part 2634.
(iii) Unless otherwise required by the Senate, nomination reports are not required of individuals nominated to positions as military officers. Such individuals must file new entrant reports as prescribed in the following.
(2)
(ii) The report shall contain the information prescribed for new entrant reports in the “Instructions for Completing SF 278” attached to the SF 278.
(iii) No new entrant report is necessary if the reporting individual has, within 30 days prior to assuming a new position, left another covered position for which the reporting individual filed an SF 278.
(iv) Notwithstanding paragraph (a)(3) of this section, reserve military officers shall file a new entrant report within 30 days of promotion to grade O-7, regardless of whether they are expected to perform active duty for more than 60 days.
(3)
(4)
(5)
(6)
(7)
(ii) If the reporting individual fails to remit the $200 fee within 90 days, the fee shall be subject to DoD component debt collection procedures.
(iii) If extraordinary circumstances existed that caused the late submission of the report, a request for a waiver of the fee may be submitted by the reporting individual with supporting documentation to the DoD component DAEO or designee. The DoD component DAEO or designee shall review the request and forward it with a recommendation for approval or denial to OGE. OGE will grant or deny the waiver.
(e)
(2) A complete report is required even if no changes have occurred since the last submission.
(3) Termination reports shall contain information covering the preceding calendar year, if an annual report was not filed for that year, and that portion of the present calendar year up to the date of termination from the covered position.
(4) A reporting individual shall request required information known only to another person to be submitted by that person to appropriate reviewing authorities. Such a submission may be made with a request for confidentiality which shall be honored by DoD reviewing authorities when appropriate even
(f)
(1) A civilian Presidential appointee shall file directly with his DoD component DAEO or designee;
(2) Any other reporting individual shall submit his SF 278 through his supervisor and through his Ethics Counselor to the DoD component DAEO or designee. In some cases, the Ethics Counselor and the DoD component DAEO or designee are the same person;
(i) A military officer serving in a DoD component or in the Central Intelligence agency shall submit his report through his supervisor directly with the DAEOs or designees of those agencies;
(ii) A military officer serving in OSD or for the Chairman of the Joint Chiefs of Staff and Joint Staff, shall submit his report, through his supervisor, to the GC, DoD, as the DoD component DAEO;
(iii) A military officer serving in a joint, Unified, Specified or Combined Commands, other than a Commander in Chief, shall file through his supervisor directly with his DoD component DAEO or designee. A Commander in Chief of such command shall file with the Legal Advisor to the Chairman of the Joint Chiefs of Staff.
(3) A reporting individual who has more than one immediate supervisor shall submit his report through both supervisors prior to submitting it to the DoD component DAEO or designee. Such a reporting individual may submit a copy of his report to one supervisor and the original to the other in order to expedite processing;
(4) Reporting individuals on detail to other Executive or Legislative Branch agencies shall follow the filing requirements and procedures of those agencies.
(g)
(2)
(A) Each item is completed; and
(B) No interest or position disclosed on the report violates or appears to violate;
(
(
(
(
(ii) The reports are to be taken at “face value” unless there is a patent omission or ambiguity or the official has independent knowledge of matters outside the report. However, to ensure that there are no omissions, the previous report of each reporting individual, if applicable, shall be compared to the current submission.
(iii) If the Ethics Counselor believes that additional information is required, the reporting individual shall be notified of the additional information required and the date by which it must be submitted. The reporting individual shall submit the required information directly to the Ethics Counselor.
(A) When the Ethics Counselor amends or revises a report based on additional information obtained from the reporting individual, he shall initial the amendment or revision and make a note of the source of the information in the comment section of the report. For example, if the Ethics Counselor adds to a report that a certain fund is an excepted investment fund based on a telephone conversation with the reporting individual, he shall number and initial the change on Schedule A and add a notation in the comment section of the report, such as “1. per telecon with Mr.
(B) When a substantial amount of information is missing from the report, it shall be returned to the supervisor for evaluation in accordance with the standards set forth in paragraph (g)(2)(i) of this section, with instructions to return it to the Ethics Counselor with any additional comments or supplementary information.
(iv) If the Ethics Counselor agrees with the supervisor's evaluation that no item violates, or appears to violate, applicable laws or regulations, then:
(A) The Ethics Counselor shall annotate the report or attach an endorsement stating that no conflicts of interest under applicable laws or regulations exist, and forward it to the appropriate DoD Component DAEO or designee; and
(B) If there are no financial interests in non-Federal entities doing or seeking business with DoD reported on the SF 278, the Ethics Counselor may issue a memorandum with the SF 278 to the appropriate DoD Component DAEO or designee.
(v) If the Ethics Counselor disagrees with the supervisor's evaluation, and concludes that the report does not comply with applicable laws and regulations, he shall do the following:
(A) Notify the reporting individual in writing of the preliminary determination;
(B) Afford the reporting individual a reasonable opportunity for an oral or written response; and
(C) Determine, after considering any response, whether or not the reporting individual is in compliance with applicable laws and regulations. If the Ethics Counselor concludes that the report does fulfill the requirements, he shall annotate the report or attach an endorsement stating that no conflicts of interest under applicable laws or regulations exist and dispose of the report in accordance with paragraph (g)(2)(iv) of this section. If the Ethics Counselor determines that it does not, he shall:
(
(
(
(
(
(vi) Except in unusual situations, which must be documented fully to the satisfaction of the Ethics Counselor, remedial action shall be completed within three months from the date the reporting individual was notified that the action is required.
(vii) Remedial steps, in accordance with 5 CFR 2634.605-2634.607, may include the following measures:
(A) Divestiture:
(
(
(
(
(
(
(
(
(
(B) Disqualification in accordance with 5 CFR 3601.105;
(C) Limitation of duties;
(D) Transfer or reassignment;
(E) Resignation;
(F) Exemption under 18 U.S.C. 208 (b)(1) or (b)(3);
(G) Establishment of a qualified blind trust.
(viii) When the Ethics Counselor determines that a reporting individual has complied fully with the remedial measures, a notation to that effect shall be made in the comment section of the SF 278. The Ethics Counselor shall then follow the procedures set forth in paragraph (g)(2)(iv) of this section.
(ix) If steps ensuring compliance with applicable laws and regulations are not taken by the date established, the Ethics Counselor shall report the matter to the agency designee for appropriate action, with an information copy to the DoD component DAEO.
(3)
(ii) Additional information required by the DoD component DAEO or designee shall be collected in accordance with paragraph (g)(2)(ii) of this section.
(iii) The DoD component DAEO or designee shall notify the reporting individual of any necessary remedial action in accordance with procedures set forth in paragraph (g)(2)(v) of this section.
(iv) When the DoD component DAEO or designee determines that no item violates, or appears to violate, any applicable law or regulation, or when the DoD component DAEO or designee determines that a reporting individual has complied fully with the remedial measures, the DoD component DAEO or designee shall sign and date the report.
(v) If steps ensuring compliance with applicable laws or regulations are not taken by the date established, the DoD component DAEO or designee shall report the matter to the Head of the DoD component for remedial action, with an information copy to the Director, OGE.
(vi) If the DoD component or designee concludes that no item violates, or appears to violate, any applicable law or regulation, but that there are financial interests in non-Federal entities doing or seeking business with DoD, then the DoD component DAEO or designee may issue a memorandum of caution to the reporting individual.
(vii) All reports shall be reviewed within 60 days after the date of filing. The DoD component DAEO or designee shall record the date of the review and ensure that all reports are reviewed within the 60 day period. After review, the DoD component DAEO or designee may proceed to obtain addition information, seek remedial action, or sign and date the report.
(4)
(ii) Secretaries of Military Departments shall cause a review of all relevant systems of records maintained by their departments, including investigative files, to determine if there is any evidence that the nominee has violated the rules or standards of conduct.
(iii) Each nomination forwarded to the Secretary of Defense shall be accompanied by a certification by the Secretary of the Military Department concerned that the required review has been conducted and has or has not disclosed a violation of the rules or standards of conduct.
(h)
(2)
(i)
(j)
(2)
(3)
(A) Any unlawful purpose;
(B) Any commercial purpose other than by news and communications media for dissemination to the general public;
(C) Determining or establishing the credit rating of any individual;
(D) Directly or indirectly, for the solicitation of money for any political, charitable or other purpose.
(ii) The court in which the action is brought may assess a penalty against a person in any amount, not to exceed $10,000. This shall be in addition to any other remedy available under statutory or common law.
(a)
(i) Commanding officers, heads and deputy heads, and executive officers of:
(A) Navy shore installations with 500 or more military and civilian DoD employees (including foreign nationals and indirect personnel regularly attached but excluding personnel attached for temporary duty); and
(B) All Army, Air Force, and Marine Corps installations, bases, air stations or activities.
(ii) Special Government employees, except the following categories of DoD employees who are required to file reports only when specifically requested to do so by their supervisor:
(A) Physicians, dentists, and allied medical specialists engaged only in providing services to patients;
(B) Veterinarians providing only veterinary services;
(C) Lecturers participating only in educational activities;
(D) Chaplains performing only religious services;
(E) Individuals in the motion picture or television fields who are utilized only as narrators or actors in DoD productions;
(F) Reservists on active duty for less than 30 consecutive days during a calendar year; and
(G) Members of selection panels for ROTC candidates.
(iii) DoD employees classified at GS/GM-15 or below under 5 U.S.C. 5332 or a comparable pay level under other authority, and members of the military below the grade of O-7 as follows:
(A) When the official responsibilities of such DoD employees require them to participate personally and substantially through decision or exercise of significant judgment in taking an official action for contracting or procurement, administering or monitoring grants, subsidies, licenses or other Federally conferred financial or operational benefits, regulating or auditing any non-Federal entity, or other activities in which the final decision or action may have a direct and substantial economic impact on the interests of any non-Federal entity;
(B) Any DoD employee serving in a position in which his supervisor determines that the duties and responsibilities of the position require the DoD employee to file such a report to avoid an actual or apparent conflict of interest and to carry out the purpose of any statute, Executive Order, or regulation applicable to or administered by that reporting individual;
(iv) Individuals who are detailed to positions described in paragraph (a)(1)(iii) of this section.
(v) Individuals serving on detail under the Intergovernmental Personnel Act, from State or local governments, institutions of higher education or other eligible organizations. See 5 U.S.C. 3371-3376.
(2)
(ii) DoD employees who are not employed in contracting or procurement and who have decision making responsibilities regarding expenditures of less than $2,500 per purchase and less than $25,000 cumulatively per year are excluded from the requirement to file the SF 450. However, Agency Designees may require such DoD employees, in individual cases, to file the SF 450. Such DoD employees remain subject to conflict of interest statutes and regulations.
(b)
(i) Immediately upon the appointment of covered DoD employees, the name, position, organization and entrance-on-duty date of DoD employees required by their supervisor to file a new entrant SF 450.
(ii) By October 3 of each year, a list of the names, positions and organizations, when applicable, of DoD employees who are required to file an annual SF 450.
(2) Coordination is required as follows:
(i) Administrative officers (or equivalent) of each organization shall coordinate with the supervisors within their organization, in consultation with the DoD component DAEO or designee, to update the list of annual reporting individuals in their organization and report any additions or deletions to the concerned Ethics Counselor by October 31 of each year. In addition, it is the administrative officers’ responsibility to ensure that any new positions are evaluated to determine whether such reports are required; or
(ii) The directors of personnel offices shall coordinate with Ethics Counselors and supervisors to ensure that position or billet descriptions of reporting individuals described in paragraph (a) of this section contain a statement that an SF 450 must be filed.
(c)
(d)
(ii) A special Government employee shall submit an SF 450 with information current as of the filing date for the preceding 12 months, through his supervisor to his Ethics Counselor before assuming duties in a covered position. A special Government employee whose appointment is renewed shall file a new entrant report for the preceding 12 months prior to his reappointment. A special Government employee whose appointment exceeds one year shall file a new entrant report on the anniversary of his appointment.
(2)
(3)
(ii) Requests for extensions shall be submitted in writing.
(iii) Each annual reporting individual is automatically granted a 30 day extension by this part to make the reporting deadline November 30 as stated in paragraph (d)(2) of this section. This automatic extension need not be annotated on an individual report. Any other extension shall be noted.
(e)
(2) A complete report is required even though no changes have occurred since the last submission.
(3) A reporting individual shall request required information known only to another person to be submitted by that person to appropriate reviewing authorities. Such a submission may be made with a request for confidentiality which shall be honored by DoD reviewing authorities when appropriate, even if it limits disclosure to the reporting individual.
(f)
(g)
(2) The Ethics Counselor shall review each report to determine that:
(i) Each item is completed; and
(ii) No interest or position disclosed on the report violates or appears to violate:
(A) Any applicable provision of Chapter 11 of title 18, United States Code;
(B) The Ethics in Government Act of 1978, Public Law 95-521 (5 U.S.C. App.), and implementing regulations;
(C) Executive Order 12674 and implementing regulations; or
(D) Any other related laws or regulations applicable to DoD employees of the agency.
(3) The Ethics Counselor shall not sign and date the report until the determinations described in paragraph (g)(2) of this section are made. The reports are to be taken at “face value” unless there is a patent omission or ambiguity or the official has independent knowledge of matters outside the report.
(4) If the Ethics Counselor believes that additional information is required, the reporting individual shall be notified of the additional information required and the date by which it must be submitted. The reporting individual shall submit the required information directly to the Ethics Counselor.
(i) When the Ethics Counselor amends or revises a report based on additional information obtained from the reporting individual, he shall initial the amendment or revision and make a note of the source of the information in the comment section of the report. For example, if the Ethics Counselor adds to a report that a certain fund is an excepted investment fund based on a telephone conversation with the reporting individual, he shall number and initial the change on Schedule A and add a notation in the comment section of the report such as, “1. per telecon with Mr. Doe on June 16, 1992” and initial the comment.
(ii) When a substantial amount of information is missing from the report, it shall be returned to the supervisor for his evaluation in accordance with the standards set forth in paragraph (g)(2) of this section with instructions to return it to the Ethics Counselor with any additional comments or supplementary information.
(5) If the Ethics Counselor agrees with the supervisor's evaluation that no item violates, or appears to violate, applicable laws or regulations, then the Ethics Counselor shall sign and date the report.
(6) If the Ethics Counselor agrees with the supervisor's evaluation that no item violates, or appears to violate, applicable laws or regulations, but that there are financial interests in non-Federal entities doing or seeking business with DoD, then the Ethics Counselor may issue a memorandum of caution to the reporting individual and shall sign and date the report.
(7) If the Ethics Counselor disagrees with the supervisor's evaluation that no item violates or appears to violate applicable laws or regulations, then the Ethics Counselor shall do the following:
(i) Notify the reporting individual, in writing, of the preliminary determination;
(ii) Afford the reporting individual a reasonable opportunity for an oral or written response; and
(iii) Determine, after considering any response, whether or not the reporting individual is in compliance with applicable laws and regulations. If the Ethics Counselor concludes that the report does fulfill the requirements, he shall sign and date the report. If the Ethics Counselor determines that it does not, he shall:
(A) Notify the reporting individual of the conclusion;
(B) Afford the reporting individual an opportunity for personal consultation, if practicable;
(C) Determine what remedial action shall be taken to bring the reporting individual into compliance; and
(D) Notify the reporting individual, in writing, of the remedial action required, indicating a date by which that action must be taken;
(E) Ensure that the supervisor of the reporting individual is notified of the required remedial action and date by which that action must be taken.
(8) Except in unusual situations, which must be documented fully to the satisfaction of the Ethics Counselor, remedial action shall be completed within 90 days from the date the reporting individual was notified that the action is required.
(9) Remedial steps, in accordance with 5 CFR 2634.605-2635.607 may include the following measures:
(i) Divestiture:
(A) Any DoD employee or the spouse, minor or dependent child of a DoD employee may be issued a Certificate of Divestiture by the Director, OGE, upon a determination that such divestiture is reasonably necessary to comply with 18 U.S.C. 208 or any other Federal Government conflict of interest statute, regulation, rule, or Executive order;
(B) If obtained before the sale, the Certificate of Divestiture allows for the non-recognition of capital gains that result upon the sale of property to comply with conflict of interest requirements if the property is rolled over into property permitted by OGE. See 5 CFR 2634.1001 for additional guidance;
(C) The following items must be submitted to the Director, OGE, by the DoD component DAEO:
(
(
(
(
(
(D) The Director, OGE, will issue a Certificate of Divestiture when divestiture is reasonably necessary to comply with conflict of interest requirements.
(ii) Disqualification in accordance with 5 CFR 3601.105;
(iii) Limitation of duties;
(iv) Transfer or reassignment;
(v) Resignation;
(vi) Exemption under 18 U.S.C. 208(b)(1) or (b)(3);
(vii) Establishment of a qualified blind trust
(10) When the Ethics Counselor determines that a reporting individual has complied fully with the remedial measures, a notation to that effect shall be made on the SF 450. The Ethics Counselor shall then sign and date the SF 450 and dispose of it in accordance with paragraph (h) of this section.
(11) If steps ensuring compliance with applicable laws and regulations are not taken by the date established, the Ethics Counselor shall report the matter to the agency designee for appropriate action, with an information copy to the DoD component DAEO.
(12) All reports shall be reviewed within 60 days after the date of filing and the Ethics Counselor shall record the date of the initial review. After the initial review, the Ethics Counselor shall obtain additional information, as necessary, seek remedial action, or sign and date the report.
(h)
(i)
(j)
(i) The number of individuals required to file an annual SF 450; and
(ii) The number of individuals who have not filed an SF 450 as of November 30.
(2) Subsequent to December 15, monthly reports may be required by the DoD component DAEO to be filed for those organizations which have not received an SF 450 from all reporting individuals required to file, until 100% compliance has been achieved. These monthly reports shall be forwarded as described in paragraph (j)(1) of this section.
(k)
(2)
(a)
(1) Is employed at a pay rate equal to or greater than the minimum rate for a GS/GM-13;
(2) Within the two-year period prior to the effective date of service or employment with the DoD component, was employed by a defense contractor who, during the preceding one-year period, was awarded $10 million or more in defense contracts; and
(3) Was employed by or performed services for the defense contractor and at any time during that year received compensation of or was salaried at a rate of $25,000 per year or more at any time during employment.
(i) Compensation is received by an individual if it is paid to a business entity with which the person is affiliated in exchange for services rendered by that individual.
(ii) A rate of $25,000 per year equates to $12 per hour.
(b)
(c)
(i) Each item is completed and sufficient information is provided; and
(ii) Whether the information indicates any violation or apparent violation of any of the conflicts of interest, standards of conduct, procurement integrity, or related laws and regulations.
(2) The Ethics Counselor need not audit the report. Disclosures are to be taken at “face value” unless there is a patent omission or ambiguity or the official has independent knowledge of matters outside the report. However, it its expected that the Ethics Counselor will resolve any apparent violations to ensure there are no actual violations.
(3) If the Ethics Counselor believes that additional information is required, the reporting individual shall be notified of the additional information required and the date by which it must be submitted. The reporting individual shall submit the required information directly to the Ethics counselor.
(4) When the Ethics Counselor has completed the review and accomplished any necessary remedial action, the Ethics Counselor shall sign and date the report and dispose of it in accordance with § 84.23(d).
(5) If the Ethics Counselor concludes that the reporting individual is not in compliance with applicable laws or regulations, the Ethics Counselor shall:
(i) Notify the reporting individual, in writing, of the preliminary determination;
(ii) Afford the reporting individual an opportunity for personal consultation, if practicable;
(iii) Determine what remedial action should be taken to bring the reporting individual into compliance; and
(iv) Notify the reporting individual of the remedial action required, indicating a date by which that action must be taken, normally within 90 days.
(6) When the Ethics Counselor determines that a reporting individual has complied fully with the remedial measures, a notation to that effect shall be
(d)
(2) The DoD Component DAEO or designee shall ensure that appropriate data from each DD Form 1787 is extracted and sent, together with all other such data from other such reports that were received during the previous calendar year for the entire DoD Component, by March 15, to the Defense Manpower Data Center (DMDC) where a consolidated report to Congress is compiled. DMDC will accept data only on computer disk using any common word processing software or ASCII.
(3) If steps ensuring compliance with applicable laws and regulations are not taken by the date established, the Ethics Counselor shall report the matter to the DoD component DAEO and take whatever other action might be required in accordance with subpart J of this part.
(4) DD Forms 1787 shall be retained by SOCO for six years from the date of filing with SOCO.
(e)
(f)
(2)
(a)
(b)
(a)
(2) This prohibition does not apply to a procurement official:
(i) After he leaves Federal Government service;
(ii) Who is employed by a contractor, subcontractor, consultant, expert, or advisor after he ceases to act on behalf of, or provide advice to, the procuring agency concerning the procurement;
(iii) Who has been granted recusal, in writing, in accordance with the provisions of 48 CFR 3.104-6 and paragraph (a)(4) of this action and who has in fact discontinued participation in the procurement;
(iv) Whose only communication with a competing contractor is to reject an unsolicited offer of employment or business opportunity or advise the competing contractor that he must seek recusal prior to any discussion regarding the unsolicited offer;
(v) Who has made inquiry in good faith of the potential contractor and been advised that the contractor is not or will not become a competing contractor on a procurement on which the individual is a procurement official; or
(vi) Where the procurement official engages in conduct in good faith reliance upon a written ethics advisory opinion;
(vii) After the procurement has been concluded by the award or modification of a contract or the cancellation of the procurement.
(3) A procurement official may discuss employment or business opportunities with a competing contractor only if a written recusal request was submitted and approved in accordance with the policy and procedures contained in 48 CFR 3.104-6 (c) through (h). The head of the contracting activity has the authority to approve or disapprove a request for recusal; however, he may not approve recusal for a procurement official who has participated personally and substantially in certain evaluation functions listed in 48 CFR 3.104-6(c).
(4) Any DoD procurement official or former DoD procurement official may, by written request, seek advice from his DoD component DAEO or designee regarding whether he may be precluded by the procurement integrity rules from engaging in a specified activity. See 48 CFR 3.104-8.
(i) The request must provide the DoD component DAEO or designee with sufficient information to make a determination.
(ii) The DoD component DAEO shall make his determination, in writing, within 30 days, or as soon thereafter as practicable.
(iii) A copy of the request and the ethics advisory opinion shall be retained for six years, in accordance with DoD component procedures.
(b)
(1)
(2)
(a)
(1) Any military officer in grade O-4 or above, or any civilian DoD employee serving in a position for which the rate of pay is equal to or greater than the minimum rate of pay for GS/GM-11 who;
(2) At any time during his DoD service, performed a “procurement function” involving a defense contractor which received at least $25,000 a year in DoD business; and
(3) Who contacts or is contacted by that defense contractor regarding future employment.
(b)
(1) The name, title, agency address, and telephone number of the reporting individual;
(2) The name of the defense contractor concerned;
(3) The date of each contact covered by the report; and
(4) A brief description of the substance of each contact.
(c)
(i) Any DoD employee required to submit a report of an employment contact shall submit to his supervisor a written statement disqualifying himself from participating in any “procurement function” involving the defense contractor until such time as the possibility of future employment with that defense contractor has been rejected by either party.
(ii) Procurement officials may be required to request recusal through formal procedures requiring written approval by the head of the contracting agency. See § 84.26(a).
(2)
(3)
(i) The name, title, agency address, and telephone number of the DoD employee submitting the report;
(ii) The extent of disqualification (i.e., a description of duties affecting the defense contractor the DoD employee may not perform as a result of the disqualification);
(iii) Identification of the DoD employee or office that will handle duties during the disqualification period; and
(iv) An explanation of any other steps required to avoid potential conflicts of interests;
(v) If the statement is necessary only because of a second contact which was rejected, information in accordance with paragraphs (c)(3)(iii) and (c)(3)(iv) of this section.
(4)
(5)
(d)
(e)
(1) Prohibition of employment with the defense contractor concerned for up to ten years from the date of separation from DoD; and
(2) An administrative penalty not to exceed $10,000.
(a)
(1) Ensure that the prospect of employment does not affect the performance or non-performance of their official duties;
(2) Ensure that they do not communicate inside information to a prospective employer; and
(3) Avoid any activity that would affect the public's confidence in the integrity of the Federal Government, even if it is not an actual violation of the law.
(b)
(1) Although the counseling and advice are given by DoD attorneys and involve the interpretation of law and
(2) This counseling and advice is personal to the current or former DoD employee. It does not extend to the individual's business, employer, or prospective employer.
(a) See 5 CFR part 2637, “Regulations Concerning Post-Employment Conflict of Interest”.
[5 CFR part 2637 applies only to DoD employees who left Federal Government service before 1991]
(b) See 5 CFR part 2641, “Post-Employment Conflict of Interest Restrictions”.
[5 CFR part 2641 applies to DoD employees who left Federal Government service on or after January 1, 1991]
(a)
(b)
(1) To obtain such an authorization in the case of former DoD employees:
(i) The head of the DoD component command or organization involved shall submit, in writing, to the Head of the DoD component a request that the former DoD employee be permitted to participate in a particular matter from which he would ordinarily be barred under 18 U.S.C. 207;
(ii) The Head of the DoD component or designee may determine in writing that such participation is appropriate if:
(A) The former DoD employee has outstanding scientific or technological qualifications;
(B) The national interest of the United States would be served by such participation;
(C) The former DoD employee has qualifications that are otherwise unavailable; and
(D) The Head of the DoD component or designee has consulted with the DoD component DAEO.
(2) In cases involving former Federal Government employees other than former DoD employees, authorization may be obtained in accordance with procedures in 18 U.S.C. 207(j)(5).
(a)
(1) Although ethics counseling and advice are given by DoD attorneys and involve interpretation of law and regulation and rendering of legal opinion, no attorney-client or other confidential relationship is created. Communications made to an Ethics Counselor in seeking such advice are not privileged.
(2) Ethics counseling and advice are personal to the current or former DoD employee. They do not extend to anyone else, including his business, employer, or prospective employer.
(b)
(a)
(i) 0-4s and above, and civilians serving in positions for which the rate of pay was equal to or higher than the minimum rate of a GS/GM-13, who:
(A) On a majority of their working days during a two-year period prior to separation;
(B) Performed a procurement function relating to a defense contract;
(C) At a site or plant owned or operated by the defense contractor and which was the DoD employee's principal work location.
(ii) 0-4s and above, and civilians serving in positions for which the rate of pay was equal to or higher than the minimum rate of pay for a GS/GM-13, who:
(A) On a majority of their working days during the two-year period prior to separation;
(B) Performed a procurement function related to a major defense system and;
(C) In the performance of the procurement function, participated personally and substantially on any occasion and in a manner involving decision-making responsibilities with respect to a contract for the system;
(D) Through contact with the defense contractor; and
(iii) 0-7s and above, and civilians serving in positions for which the rate of pay was equal to or higher than the minimum rate of pay for a Senior Executive Service position, who during the two-year period prior to separation, acted as a “primary representative of the United States” in negotiation of a defense contract in an amount in excess of $10 million or settlement of an unresolved claim exceeding $10 million. An unresolved claim is valued by the greater of the amount of the claim or the amount of the settlement.
(2)
(i) The effective date of this law was April 16, 1987. The law does not prohibit the continuation of defense contractor employment begun or compensation accepted before then. If an employee separated from DoD prior to April 16, 1987, the statute does not apply. However, former DoD employees who were still employed or on active duty on or after April 16, 1987 must comply fully with its provisions, if within its scope.
(ii) For the period of December 1, 1989 until May 31, 1991, the statute was suspended and employment or acceptance of compensation during that period could not violate the statute. Questions about the effect of the suspension should be referred to the local Ethics Counselor.
(3)
(ii) Ethics Counselors who have not been delegated authority in writing to issue 10 U.S.C. 2397b written opinions shall promptly forward the request to the DoD component DAEO or designee who has such authority.
(iii) Written opinions shall be issued within 30 days of receiving the request together with all necessary information.
(iv) A written opinion that this statute is not applicable to a specific situation, if based on a complete disclosure of all relevant information, creates a
(v) A copy of each 10 U.S.C. 2397b written opinion shall be retained by the DoD component DAEO or designee for three years.
(4)
(ii) 10 U.S.C. 2397b does not prohibit any former DoD employee from accepting compensation from any defense contractor that, during the fiscal year preceding the fiscal year in which compensation is accepted, was not a defense contractor or was a defense contractor whose contracts totalled less than $10 million.
(iii) 10 U.S.C. 2397b prohibits employment with particular defense contractors, not subcontractors, but former DoD employees cannot avoid its consequences merely by forming their own company and then “subcontracting” themselves to otherwise prohibited defense contractors.
(b)
(i) Participating in any manner on behalf of a competing contractor in any negotiations leading to the award or modification of a defense contract for such procurement; or
(ii) Participating personally and substantially on behalf of the competing contractor in the performance of such defense contract.
(2)
(3)
(ii) Ethics Counselors who have not been delegated specific authority in writing to issue 41 U.S.C. 423 written opinions shall promptly forward the request to the DoD component DAEO or designee who has such authority.
(iii) Written opinions shall be issued within 30 days of receiving the request, together with all necessary information.
(iv) Where the DoD employee or former DoD employee relies in good faith on a written opinion that this statute is not applicable to a specific situation, the DoD employee or former DoD employee shall not be found to have knowingly violated the restrictions of the statute.
(v) A copy of each 41 U.S.C. 423 opinion shall be retained by the DoD component DAEO or designee for three years.
(a)
(1)
(i) The term “department” refers to individual DoD components, not DoD as a whole, insofar as it concerns retired military officers. For example, this statute does not prohibit retired
(ii) The term “anything” in the phrase “sale of anything” has been construed by DoJ to encompass both goods and services.
(iii) DoD has determined that this statute does not prohibit the sale of personal services when the retiree is only representing himself. However, sale of personal services may not include the work product of a closely held corporation where individuals other than the retiree contribute to the services provided.
(2)
(A) Signing a bid, proposal, or contract;
(B) Negotiating a contract;
(C) Contacting a DoD employee to obtain or negotiate defense contracts, negotiate or discuss changes in specifications, price, cost allowances, or other terms of a defense contract, or settle disputes concerning performance of a defense contract; or
(D) Any other liaison activity with a view toward the ultimate consummation of a sale although the actual defense contract is negotiated subsequently by another person.
(ii) Activities which are not considered “selling” include:
(A) Purely social contacts, as long as there is an independent basis for the social relationship and no promotion of a product or attempt to influence a procurement;
(B) Technical contacts for the purpose of conferring with non-contracting technical specialists to acquire information this is available to all prospective defense contractors, provided that these contacts do not otherwise involve “selling” as discussed in paragraph (a)(2)(i) of this section. See 42 Comp. Gen. 236.241;
(C) Contacts subsequent to the execution of a defense contract relating to performance or progress, if they do not include modification of the defense contract or “selling” as discussed in paragraph (a)(2)(i) of this section.
(b)
(c)
(i)
(A)
(B)
(
(
(
(ii)
(
(
(B) The Director, OPM, may grant a waiver at the request of the Head of an Executive agency. Additionally, the Director, OPM, may delegate to an agency the authority to grant waivers for the temporary employment of retired members during emergencies or other unusual circumstances, but not for employment necessitated by exceptional difficulties in recruiting or retaining qualified individuals. The Director, OPM, has delegated to DoD authority to approve dual compensation restriction waivers in certain circumstances at installations scheduled for closure.
(C) Waivers are to be the exception, not the rule. If appropriate, however, a waiver may be obtained for either or both of the dual compensation reductions. See 5 CFR part 553 for procedures for obtaining a waiver.
(2)
(i) The appointment is authorized by the Secretary of a Military Department or designee, or by OPM if the position is in the competitive service;
(ii) The minimum rate of basic pay for the position has been increased under 5 U.S.C. 5305; or
(iii) A state of national emergency exists.
(d)
(i) This provision prohibits employment of all retired military members,
(ii) Employment by educational or commercial institutions owned, operated, or controlled by a foreign government is included within the scope of this restriction.
(iii) The penalty for violation is withholding the retired military member's retired pay in an amount equal to the foreign salary illegally received. See 61 Comp. Gen. 306.
(2) Congress has consented to the acceptance of civil employment with a foreign government by, among others, retired regular military members and reserve military members, if both the Secretary of the Military Department and the Secretary of State approve the employment. See 37 U.S.C. 908. Because approval is prospective only, foreign civil employment should not be accepted until approval has been obtained. Retired military members who wish to accept such employment should submit a written request for approval to the Secretary of their Military Department through appropriate channels. The request must fully describe the contemplated employment and the nature and extent of the involvement with the foreign government.
(3) A former military member desiring employment with a foreign government or any foreign business interest may be required to register as an agent of a foreign principal under the Foreign Agents Registration Act of 1938, 22 U.S.C. 611
Executive Order 12834 (58 FR 5911) requires contractual ethics commitments regarding post-Government service employment from full-time, non-career Presidential, Vice-Presidential or agency Head appointees in an Executive agency whose rate of basic pay is not less than the rate for level V of the Executive Schedule, except for those appointed as members of the senior foreign service or solely as uniformed service commissioned officers. See Executive Order 12834 and OGE Form 203,
(a)
(b)
(1) Military members on terminal leave may accept civilian employment with the Federal Government and are entitled to the pay of that civilian position in addition to the pay and allowances to which entitled while on terminal leave. See 5 U.S.C. 5534a.
(2) A military officer on active duty may not accept a civil office with a State or local government, nor may he perform the duties of such an office. See 10 U.S.C. 973(b)(3). This applies while the military officer is on terminal leave. See 56 Comp. Gen 855.
(a)
(1) Each former DoD employee of a DoD component who:
(i) Served at a pay rate equal to or greater than the minimum rate for a GS/GM-13, or served on active duty at least ten years and held the grade of 0-4 or above at any time during his service;
(ii) Within the two-year period immediately following termination of service or employment with the DoD component, is employed by a defense contractor who, during the preceding one-
(iii) Is employed by or performs services for the defense contractor and receives compensation of or is salaried at a rate of $25,000 per year or more from the defense contractor.
(2) Compensation is received by a reporting individual if it is paid to a business entity with which the reporting individual is affiliated in exchange for services rendered by that reporting individual;
(3) A rate of $25,000 per year equates to $12 per hour.
(b)
(c)
(i) Each item is completed and sufficient information is provided; and
(ii) Whether the information indicates any violation or apparent violation of any of the conflicts of interest, standards of conduct, procurement integrity, and related laws and regulations.
(2) The DoD component DAEO or designee need not audit the report. Disclosures are to be taken at “face value” unless there is a patent omission or ambiguity or the official has independent knowledge of matters outside the report. However, it is expected that the DoD component DAEO or designee will resolve any apparent violations to ensure there are no actual violations.
(3) If the DoD component DAEO or designee believes that additional information is required, the reporting individual shall be notified of the additional information required and the date by which it must be submitted. The reporting individual shall submit the required information directly to the DoD component DAEO or designee.
(4) When the DoD component DAEO or designee has completed the review and accomplished any necessary remedial action, he shall sign and date the report and dispose of it in accordance with paragraph (d)(2) of this section.
(5) If the DoD component DAEO or designee concludes that the reporting individual is not in compliance with applicable laws or regulations, the DoD component DAEO or designee shall:
(i) Notify the reporting individual of the preliminary determination;
(ii) Afford the reporting individual an opportunity for personal consultation, if practicable;
(iii) Determine what remedial action should be taken to bring the reporting individual into compliance; and
(iv) Notify the reporting individual of the remedial action required, indicating a date by which that action must be taken, normally within 90 days.
(6) When the DoD component DAEO or designee determines that a reporting individual has complied fully with the remedial measures, a notation to that effect shall be made in the comment section of the report. Then the DoD component DAEO or designee shall sign and date the report as the reviewing official and dispose of it in accordance with paragraph (d)(2) of this section.
(d)
(1) After the Ethics Counselor signs and dates the report, the Ethics Counselor shall send the original to the DoD Component DAEO or designee, who shall forward it, together with all other such reports that were received during the previous calendar year, to SOCO not later than March 15.
(2) The DoD Component DAEO or designee shall ensure that appropriate data from each DD Form 1787 is extracted and sent, together with all other such data from other such reports that were received during the previous calendar year for the entire DoD Component, by March 15 to the Defense Manpower Data Center (DMDC) where a consolidated report to Congress is compiled. DMDC will accept data only on computer disk using any common word processing software or ASCII.
(3) If steps ensuring compliance with applicable law and regulations are not taken by the date established, the Ethics Counselor shall report the matter to the DoD Component DAEO and take whatever other action might be required in accordance with subchapter J of this part.
(4) DD Forms 1787 shall be retained by SOCO for six years from the date of filing with SOCO.
(e)
(f)
(2)
Penalties for violation of the rules republished in, and prescribed by, this part include the full range of applicable criminal, civil and administrative sanctions for current DoD employees, including punishment under the UCMJ for military members. Many of the statutes that regulate the post-Government service employment activities of former or retired DoD employees also provide for specific criminal and administrative sanctions. This subpart sets out the requirements for reporting and inquiry to ensure that ethics-related laws and regulations are properly enforced and that appropriate administrative or disciplinary action is taken.
(a)
(1) The DoD employee's agency designee;
(2) The suspected violator's agency designee;
(3) The head of the DoD component command or organization;
(4) Any Ethics Counselor;
(5) The DoD component's IG;
(6) The DoD component's criminal investigative office; or
(7) The DoD hotline or DoD component hotline.
(b)
(2) If a suspected violation is reported to some entity other than those named in paragraph (a)(4) through (a)(7) of this section, then the notified person shall promptly report the matter to his Ethics Counselor.
(3) An Ethics Counselor who receives a report shall review the facts and, if the facts tend to support a violation, report the allegation to the appropriate investigative organization or, through the chain of command or supervision, to the head of the DoD component command or organization of the suspected violator. In addition, the Ethics Counselor must ensure that the following is accomplished:
(i) If a violation of 18 U.S.C. 203, 205, 207, 208 or 209 is suspected, the matter shall be reported to the DoD component's criminal investigative organization. The investigative organization is responsible for investigating the allegation and notifying DoJ in accordance with DoD Directive 5525.7
(A) Report to the DoD component DAEO as follows:
(
(
(
(
(
(B) File periodic follow-up reports with the DoD component DAEO until a final determination is made;
(C) If the matter is referred to the DoJ or the U.S. Attorney, include OGE Form 202,
(ii) If a violation of 18 U.S.C. 201 or 281 is suspected, it shall be handled in the same manner as paragraph (b)(3)(i)(A) of this section except that OGE Form 202 is not used for referrals;
(iii) If a violation of 10 U.S.C. 2397 is suspected, the Ethics Counselor shall inquire into the matter and, if substantiated, attempt to obtain compliance. If these efforts fail, the Ethics Counselor shall forward a written report to the GC, DoD through the DoD component DAEO with a recommendation for action by the Secretary of Defense pursuant to 10 U.S.C. 2397(f);
(A) The report need be filed only when the Ethics Counselor determines that there is sufficient evidence to believe that a violation has occurred;
(B) The report shall include all relevant facts, a summary of witness statements, and a justification for the recommendation to refer or not to refer the violation for enforcement action.
(iv) If a violation of 10 U.S.C. 2397a is suspected, the Ethics Counselor shall report the matter to the DoD component DAEO in the same manner as in paragraph (b)(3)(i)(A) of this section. If the Ethics Counselor believes that the Secretary of Defense should take action pursuant to 10 U.S.C. 2397a(d), the Ethics Counselor shall forward a written report to the GC, DoD through the DoD component DAEO with a recommendation for action;
(A) The report need be filed only when the Ethics Counselor determines that there is sufficient evidence to believe that a violation has occurred;
(v) If a violation of 10 U.S.C. 2397b is suspected, the Ethics Counselor shall report the matter to the DoD component DAEO in the same manner as in paragraph (b)(3)(i)(A) of this section;
(vi) If it is suspected that an individual is receiving retired pay contrary to 37 U.S.C. 801, a report of the matter shall be made to the Defense Finance and Accounting Service. A copy of that report shall be sent to the DoD component DAEO;
(vii) If a violation of 5 CFR part 2635 involving a loss to the Federal Government of $5,000 or more is suspected, the Ethics Counselor shall report the matter to the DoD component DAEO in the same manner as in paragraph (b)(3)(i)(A) of this section.
(4) In addition, if any of the previous violations fall within a DoD component's procurement fraud program, the Ethics Counselor shall ensure that referrals, coordinations, and reports required by that program are accomplished. If the matter includes a suspected violation of the Gratuities Clause in a defense contract, the Ethics Counselor shall report the matter in accordance with DoD component procedures issued pursuant to 48 CFR 3.203. See paragraph (c) of this section.
(5) For matters not handled within the DoD component's procurement fraud program, any civil or criminal referrals to DoJ or the local U.S. Attorney of violations of this part shall be coordinated with the DoD component DAEO. The DoD component DAEO shall be informed of referrals of violations of this part handled within the DoD component's procurement fraud program.
(c)
(1)
(2)
(3)
(4)
(a)
(b)
(c)
(d)
(i) Imposing an administrative penalty, not to exceed $10,000;
(ii) With respect to violations of 10 U.S.C. 2397a, imposing an additional administrative penalty of a particular amount if the individual is determined to have accepted or continued employment with a defense contractor during the ten-year period beginning with the date of separation from Federal Government service.
(2) DoD may take other appropriate disciplinary action when indicated by the outcome of a case in accordance with the laws or regulations violated.
(e)
See 5 CFR part 2638, “Office of Government Ethics and Executive Agency Ethics Program Responsibilities.”
(a)
(2) In the Military Departments, responsibility for implementation of ethics training programs rests with the heads of DoD component commands or organizations who shall ensure that ethics training is accomplished in accordance with this subpart.
(3) Training shall be accomplished using material authorized by the DoD component DAEO or designee in meeting the requirements of this subpart. Ethics Counselors may augment this material with additional training material needed to address specific ethics issues peculiar to their organization.
(4) DoD component Heads and DoD component DAEOs have the authority to require that DoD employees other than the ones covered by 5 CFR part 2638 receive annual ethics training.
(b)
(2) Heads of DoD components shall establish procedures to ensure that DoD employees receive (or have received) procurement integrity training and sign the Option Form (OF) 333,
(3) The following DoD employees should receive procurement integrity training and execute the required certificate:
(i) All DoD employees who are members of the acquisition workforce;
(ii) All DoD employees who are engaged in, or who might become engaged in, procurement official activities, as set forth in 41 U.S.C. 423 and 48 CFR 3.104.
(4) This requirement may be waived if the head of the DoD component command or organization determines that the DoD employee will not act as a procurement official while assigned to the organization.
(a)
(2) CIAET shall be accomplished in person by a Qualified Individual or by recording in the presence of a Qualified Individual, subject to the following exceptions:
(i) If the DoD component DAEO determines it is impractical to accomplish CIAET in the presence of a Qualified Individual, DoD employees who are not required to receive AET may be trained by other means within the minimum training requirements set out by OGE in 5 CFR 2638.703 provided that, with the exception of enlisted members, such training was completed by February 3, 1993;
(ii) If the DoD component DAEO determines it is impractical to accomplish CIAET training in the presence of a Qualified Individual, then special Government employees and military officers serving on active duty fewer than 30 consecutive days annually may be trained by other means within the minimum training requirements set out by OGE in 5 CFR 2638.704;
(iii) If the DoD component DAEO makes, with the approval of OGE, a written determination that it is impractical to accomplish CIAET training in the presence of a Qualified Individual, then DoD employees who are required to receive AET may be trained by other means within the minimum training requirement set out by OGE in 5 CFR 2638.704. OGE requires the written determination to identify the particular DoD employees or groups of DoD employees concerned and the specific circumstances that make the presence of a Qualified Individual impractical (mere administrative inconvenience or cost to an agency, standing alone, shall not justify such determination).
(3) The term “immediate office” as used in 5 CFR 2638.703 shall mean the local Ethics Counselor's.
(4) CIAET shall be a minimum of one hour.
(5) Those DoD employees who are required to receive AET will satisfy their 1993 annual ethics training obligation if they attended CIAET in 1992 or 1993.
(b)
(2) IET shall be accomplished in person by a Qualified Individual or by recording in the presence of a Qualified Individual, and such IET shall qualify as AET for the year the new DoD employees entered on duty, subject to the following exceptions:
(i) If the DoD component DAEO determines it is impractical to accomplish IET in the presence of a Qualified Individual, DoD employees who are
(ii) If the DoD component DAEO determines that it is impractical to accomplish IET in the presence of a Qualified Individual, then DoD employees who are required to receive AET may be trained by other means within the minimum training requirement set out by OGE in 5 CFR 2638.704 provided that such DoD employees receive additional annual ethics training, either CIAET, IET or AET, if more than three months remain of the calendar year in which those DoD employees entered on duty.
(3) The term “immediate office” as used in 5 CFR 2638.703 shall mean the local Ethics Counselor's office.
(4) IET shall be a minimum of one hour.
(c)
(2) AET shall be accomplished in person by a Qualified Individual or by recording in the presence of a Qualified Individual, subject to the following exceptions:
(i) If the DoD component DAEO determines it is impractical to accomplish AET in the presence of a Qualified Individual, then special Government employees and military officers serving fewer than 30 consecutive days annually, may be trained by other means within the minimum training requirements set out by OGE in 5 CFR 2638.704;
(ii) If the DoD component DAEO makes a written determination that it is impractical to accomplish AET in the presence of a Qualified Individual, then DoD employees other than special Government employees and military members serving fewer than 30 days annually may be trained by other means within the minimum training requirement set out by OGE in 5 CFR 2638.704. OGE requires the written determination to identify the particular DoD employees or groups of DoD employees concerned and the specific circumstances that make the presence of a Qualified Individual impractical (mere administrative inconvenience or cost to an agency, standing alone, shall not justify such determination).
(3) AET shall be a minimum of one hour.
(d)
(e)
(2) SOCO shall distribute ethics training material to all DoD component DAEOs for use in all types of ethics training.
(3) Ethics training material shall include a training video with accompanying pamphlet, modular ethics training packages with copies of overhead slides, facilitator scripts, discussion hypotheticals, and handout material, and a programmed text. Other programmed texts, correspondence courses, and ethics computer games, and materials developed by DoD components will be distributed as they are developed.
(4) In the interest of Federal Government efficiency and economy, DoD components that develop ethics training develop ethics training material independently shall provide a copy of the material to SOCO for distribution to other DoD components.
(5) At a minimum, all ethics training shall include a review of part I of Executive Order 12674, 5 CFR part 2635 and this part.
(a) The Head of each DoD component shall:
(1) Exercise personal leadership and take personal responsibility through
(2) Provide sufficient resources to enable the DoD component DAEO to implement and administer the DoD component's ethics and procurement integrity training program.
(b) Each DoD component DAEO shall:
(1) Be responsible for the implementation and administration of ethics and procurement integrity training and ensure that necessary resources are available to accomplish such training;
(2) Provide periodic ethics and procurement integrity training for Ethics Counselors;
(3) Certify Qualified Individuals to conduct ethics training.
(c) The head of each DoD component command or organization shall:
(1) Exercise personal leadership and take personal responsibility for establishing and maintaining the command's or organization's ethics and procurement integrity training program;
(2) Be personally accountable for the command's or organization's ethics and procurement integrity program;
(3) Ensure that DoD employees of the command or organization attend required ethics and procurement integrity training; and
(4) Direct administrative officers (or equivalent) of the command or organization to coordinate with the DoD component DAEO or designee to develop lists of all DoD employees of the command or organization who are required to receive ethics and procurement integrity training, schedule such training, annotate such lists to indicate when required training was accomplished and retain annotated lists for three years.
(d) The DoD SOCO shall:
(1) Make ethics and procurement integrity training for ethics trainers available on an ongoing basis to ensure that Qualified Individuals are uniformly prepared to provide such training;
(2) Distribute ethics and procurement integrity training material to all DoD component DAEOs for use in all types of ethics and procurement integrity training;
(3) Certify Qualified Individuals to conduct ethics training who may be used by DoD components.
(e) The director of each DoD component personnel office shall, in coordination with the DoD component DAEO or designee, establish procedures in coordination with the DoD component DAEO or designee to inform new DoD employees of their obligation to receive ethics and procurement integrity training as required.
(f) The administrative officer (or equivalent) of each DoD component command and organization shall:
(1) In coordination with the DoD component DAEO or designee, develop lists of all DoD employees within the DoD component command or organization who are required to receive ethics and procurement integrity training;
(2) In coordination with the DoD component DAEO or designee, ensure that DoD employees with the DoD component command or organization are scheduled to receive required ethics or procurement integrity training;
(3) Annotate such lists to indicate when required training was accomplished and retain annotated lists for three years.
(g) The DoD employees shall attend ethics and procurement integrity training as required.
(a) See Executive Order 12674.
(b) See Executive Order 12834.
In accordance with 5 U.S.C. 7301 note, each agency shall display, in appropriate areas of any Federal Government building in which at least 20 civilians are regularly employed by the agency, copies of the following Code of Ethics for Government Service:
Any person in Government service should:
I. Put loyalty to the highest moral principles and to country above loyalty to persons, party, or Government department.
II. Uphold the Constitution, laws, and regulations of the United States and of all governments therein and never be a party to their evasion.
III. Give a full day's labor for a full day's pay; giving earnest effort and best thought to the performance of duties.
IV. Seek to find and employ more efficient and economical ways of getting tasks accomplished.
V. Never discriminate unfairly by the dispensing of special favors or privileges to anyone, whether for remuneration or not; and never accept, for himself or herself or for family members, favors or benefits under circumstances which might be construed by reasonable persons as influencing the performance of governmental duties.
VI. Make no private promises of any kind binding upon the duties of office, since a Government employee has no private word which can be binding on public duty.
VII. Engage in no business with the Government, either directly or indirectly, which is inconsistent with the conscientious performance of governmental duties.
VIII. Never use any information gained confidentially in the performance of governmental duties as a means of making private profit.
IX. Expose corruption wherever discovered.
X. Uphold these principles, ever conscious that public office is a public trust.
On April 17, 1990, DoD established human goals. See Appendix C of this part.
(a)
(b)
(i) Truthfulness is required. Deceptions are easily uncovered and usually are. Lies erode credibility and undermine public confidence. Untruths told for seemingly altruistic reasons (to prevent hurt feelings, to promote good will, etc.) are nonetheless resented by the recipients.
(ii) Straightforwardness adds frankness to truthfulness and is usually necessary to promote public confidence and to ensure effective, efficient conduct of Federal Government operations. Truths that are presented in such a way as to lead recipients to confusion, misinterpretation or inaccurate conclusions are not productive. Such indirect deceptions can promote ill-will and erode openness, especially when there is an expectation of frankness.
(iii) Candor is the forthright offering of unrequested information. It is necessary in accordance with the gravity of the situation and the nature of the relationships. Candor is required when a reasonable person would feel betrayed if the information were withheld. In some circumstances, silence is dishonest, yet in other circumstances, disclosing information would be wrong and perhaps unlawful.
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(a)
(b)
(1) This statute applies to civilian DoD employees at pay rates of GS/GM-11 or above and to military officers in grades 0-4 or above. If such an individual has participated in the performance of a procurement function in connection with a DoD awarded defense contract and is contacted by the defense contractor to whom the defense contract was awarded regarding future employment opportunities with the defense contractor, the individual must:
(i) Promptly report the contact to his supervisor and to the DoD component DAEO; and
(ii) Disqualify himself from all participation in the performance of procurement functions relating to contracts of the defense contractor.
(2) A DoD employee is not required to report an initial contact with a defense contractor or disqualify himself if he terminates the contact immediately and rejects any offer of employment. The individual must make a report and disqualify himself, however, if subsequent contacts are made.
(c)
(d)
(1) Spent the majority of his working days during the two-year period prior to leaving Federal Government service performing a procurement function at a site or plant owned or operated by the defense contractor; or
(2) Performed procurement functions relating to a major system, on a majority of the individual's working days during the two-year period prior to leaving Federal Government service, and in the performance of those functions participated personally and substantially in a manner involving decision-making responsibilities, through contact with the defense contractor; or
(3) In the case of former DoD employees, Senior Executive Service and above, and former military officers 0-7 and above, acted as a primary representative of the United States during the two-year period prior to leaving Federal Government service, in the negotiation of a defense contract in an amount in excess of $10 million with the defense contractor, or in the negotiation of an unresolved claim in excess of $10 million.
(e)
(2) The statute also prohibits a retired military officer, during the two-year period following the military officer's release from active duty, from prosecuting or assisting in the prosecution of any claim against the United States involving the Military Department from which the military officer is retired, or involving any subject matter with which the military officer was directly connected while in an active duty status.
(a)
(b)
(1) Aiding, abetting, counseling, commanding, inducing, or procuring another to commit a crime under any criminal statute (18 U.S.C. 2);
(2) Concealing or failing to report to proper authorities the commission of a felony under any criminal statute if the individual knew of the actual commission of the crime (18 U.S.C. 4);
(3) Conspiring with one or more persons to commit a crime under any criminal statute or to defraud the United States, if any party to the conspiracy does any act to further the object of the conspiracy (18 U.S.C. 371);
(4) Misuse of a Federal Government vehicle (31 U.S.C. 1344 and 1349(b));
(5) Interference in an examination or personnel action in connection with Federal Government employment (18 U.S.C. 1917);
(6) Conversion of Federal Government property (18 U.S.C. 641);
(7) Private use of public money (18 U.S.C. 653), embezzlement of the money or property of another individual in the possession of a DoD employee by reason of his Federal Government employment (18 U.S.C. 654);
(8) Certain political activities (5 U.S.C. 7321-7327, 18 U.S.C. 600-603 and 606-607 apply to civilian DoD employees, and DoD Directive 1344.10
(9) Failing to register under the Foreign Agents Registration Act of 1983 and acting as an agent of a foreign principal when required to register (18 U.S.C. 219);
(10) Soliciting contributions for gifts or giving gifts to superiors, or accepting gifts from subordinates (5 U.S.C. 7351) applies to civilians; regulations set out in 5 CFR 2635.301 through 2635.304 apply to both military and civilian DoD employees;
(11) Accepting, without statutory authority, any present, emolument, office or title, or employment of any kind, from any king, prince, or foreign state without the consent of the Congress; this restriction applies to any person holding any office or profit in or trust of the Federal Government, including all retired military members and regular enlisted members (Article I, Section 9, Clause 8, of the Constitution of the United States; exceptions to this restriction are at 37 U.S.C. 908);
(12) Union activities of military members (10 U.S.C. 976);
(13) Violating merit system principles (5 U.S.C. 2301).
18 U.S.C. 208(b) permits agencies to grant an exemption in writing from 18 U.S.C. 208(a) if the outside financial interest is deemed in advance not substantial enough to affect the integrity of Government services. Categories of financial interests may also be made nondisqualifying by a general regulation published in the
A conflict does not exist when [Department of the Army] DA personnel hold shares of a widely held, diversified mutual fund or regulated investment company. In accordance with the provisions of 18 U.S.C 208b(2), such holdings are exempted as being too remote or inconsequential to affect the integrity of the services of Government personnel.
(b) Under 18 U.S.C. 208(b)(2), [Department of the Navy] DON personnel need not be disqualified from participating in matters in which they have the following financial interests:
(1) Shares of widely held and diversified mutual, money market, trust, or similar funds offered for sale by a financial institution or by a regulated investment company;
(2) Deposits in and loans from banks or other financial institutions, provided they are at customary and generally available terms and conditions; and
(3) Federal, State, municipal, or local government bonds, regardless of the value of such interests.
(b) DON personnel who are members or officers of non-governmental associations or organizations must avoid activities on behalf of such groups that are incompatible with their official Government positions. Under certain circumstances, holding a position in a private association or organization or undertaking activities on its behalf could conflict with one's official duties. Holding, however, a position in a private, non-profit association or other organization that fosters and promotes the general interests of the naval service and which depends, in part, upon the voluntary efforts of DON personnel acting in their private capacities for leadership, is unlikely to affect the integrity of the services of such personnel. Under 18 U.S.C. 208(b)(2), such individuals are not disqualified from rendering advice or making recommendations within their chains of command on particular matters affecting such organizations if:
(1) They disclose their interest or affiliation to their supervisor prior to rendering advice or making recommendations;
(2) The final decision is made by higher authority; and
(3) The individual's commander does not determine that disqualification is otherwise required by the best interest of DON or of the United States.
Non-Disqualifying Financial Interest. Air Force personnel need not disqualify themselves if the financial holdings are in shares of a widely held diversified mutual fund or regulated investment company. The indirect interests in business entities of these financial holdings come from ownership by the fund or investment company of stocks in business entities. They are hereby exempted from the requirements of 18 U.S.C. 208(a), according to 18 U.S.C. 208(B)(2), as too remote or inconsequential to affect the integrity of the government officers’ or employees’ services.
To attract to the Department of Defense people with ability, dedication, and capacity for growth;
To provide opportunity for everyone, military and civilian, to rise to as high a level of responsibility as possible, dependent only on individual talent and diligence;
To assure that equal opportunity and safety programs are an integral part of readiness;
To make military and civilian service in the Department of Defense a model of equal opportunity for all regardless of race, color, sex, religion, or national origin;
To provide equity in civilian employment for older persons and disabled individuals and to provide a safe environment that is accessible to and usable by them;
To hold those who do business with or receive assistance from the Department to full compliance with its policies of equal opportunity and safety;
To help each service member in leaving the service to readjust to civilian life;
To provide a safe and healthful work environment, free from recognized occupational hazards for all personnel; and
To contribute to the improvement of our society, including its disadvantaged members, by greater utilization of our human and physical resources while maintaining full effectiveness in the performance of our primary mission.
5 U.S.C. 301.
(a) This part establishes a health promotion policy within the Department of Defense to improve and maintain military readiness and the quality of life of DoD personnel and other beneficiaries.
(b) This part replaces 32 CFR part 203 and establishes policy on smoking in DoD occupied buildings and facilities.
(a) This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, and the Defense Agencies.
(b) It is directed to all military personnel and retirees, their families, and, where specified, to civilian employees.
It is DoD policy to:
(a) Encourage military personnel, retirees, their families and civilian employees to live healthy lives through an integrated, coordinated and comprehensive health promotion program.
(b) Foster an environment that enhances the development of healthful lifestyles and high unit performance.
(c) Recognize the right of individuals working or visiting in DoD occupied buildings to an environment reasonably free of contaminants.
(d) Disallow DoD Components’ participation with manufacturers or distributors of alcohol or tobacco products in promotional programs, activities, or contests aimed primarily at DoD personnel. This does not prevent accepting support from these manufacturers or distributors for worthwhile programs benefiting military personnel when no advertised cooperation between the Departmment of Defense and the manufacturer or distributor directly or indirectly identifying an alcohol or tobacco product with the program is required. Neither does it prevent the participation of military personnel in programs, activities, or contests approved by the manufacturers or distributors of such products when that participation is incidental to general public participation.
(a) The
(1) Establish and chair the Health Promotion Coordinating Committee comprised of representatives of the Office of the Assistant Secretary of Defense (Force Management and Personnel) (OASD(FM&P)), Office of the Assistant Secretary of Defense (Acquisition and Logistics) (OASD(A&L)), the Office of the Assistant Secretary of Defense (Reserve Affairs) (OASD(RA)), each Military Service, and such other advisors as the OASD(HA) considers appropriate.
(2) Facilitate exchanges of technical information and problem solving within and among Military Services and Defense Agencies.
(3) Provide technical assistant, guidance and consultation.
(4) Coordinate health data collection efforts to ensure standardization and facilitate joint studies across DoD components.
(5) Review dietary standards for DoD dining facilities as specified in DoD Directive 3235.2
(b) The
(1) Use of tobacco products in DoD occupied facilities.
(2) Operation of health promotion and screening programs at the worksite and in Professional Military Education, DoD Dependents Schools, and section 6 schools.
(3) Dietary regulation of DoD snack concessions, and vending machines.
(4) Reduction of stress in work setting.
(5) Designate two representatives to the Health Promotion Coordinating Committee.
(c) The
(1) Coordinate and monitor relevant aspects of the health promotion program as it pertains to National Guard and Reserve Personnel.
(2) Designate a representative to the Health Promotion Coordinating Committee.
(d) The
(1) Develop a comprehensive health promotion program plan for their respective Service(s).
(2) Establish and operate an integrated, coordinated and comprehensive health promotion program as prescribed by this Directive.
(3) Designate from their respective Service(s) a health promotion coordinator who shall also serve as representative to the Health Promotion Coordinating Committee.
(4) Evaluate the effectiveness of their respective health promotion program(s).
(e) The
(f) The
(a) Each Military Service shall establish a health promotion program coordinator to serve as the focal point for all health promotion program issues and to integrate the activities of the medical and personnel departments.
(b) A Health Promotion Coordinating Committee shall be established to enhance communication among the Military Services, recommend joint policy and program actions, review program implementation, and recommend methodologies and procedures for program evaluation. The Committee shall be chaired by the Assistant Secretary of Defense (Health Affairs) (ASD(HA)) or designee. Additional members shall include two representatives from the Office of the Assistant Secretary of Defense (Force Management and Personnel); one representative from the Office of the Assistant Secretary of Defense (Reserve Affairs); one representative
(c) Each Component shall prepare a plan for the implementation of a comprehensive health promotion program that includes specific objectives (planned accomplishments) with measurable action steps. The plan shall address all of the program elements identified in the definition of health promotion for each group in the target populations. The plan shall consider workload, systems support, and training needs of individuals charged with responsibility at all organizational levels.
(d) Health promotion plans and programs shall address smoking prevention and cessation, physical fitness, nutrition, stress management, alcohol and drug abuse, and early identification of hypertension.
(1) Smoking prevention and cessation programs shall aim to create a social environment that supports abstinence and discourage use of tobacco products, create a healthy working environment, and provide smokers with encouragement and professional assistance in quitting. In addition to these aims, smoking prevention and cessation programs shall include the following elements.
(i) Smoking shall be permitted in buildings only to the extent that it does not endanger the life or property, or risk impairing nonsmokers’ health.
(ii) The smoking of tobacco products within DoD occupied space shall be controlled in accordance with the following guidelines:
(A) Smoking shall be prohibited in auditoriums, conference rooms and classrooms. No Smoking signs shall be prominently displayed, and ashtrays shall not be permitted. Receptacles may be placed at entrances so that visitors may dispose of lighted smoking material when entering a nonsmoking area.
(B) Nonsmoking areas shall be designated and posted in all eating facilities in DoD occupied buildings. Smoking areas shall be permitted only if adequate space is available for nonsmoking patrons and ventilation is adequate to provide them a healthy environment.
(C) Elevators shall be designated as nonsmoking areas.
(D) Smoking shall be prohibited in official buses and vans.
(E) Within the confines of medical treatment facilities, smoking shall be restricted to private offices and specially designated areas. Smoking by patients shall be limited to specially designated areas, and health care providers shall not smoke in the presence of patients while performing their duties. Smoking is permitted in visitor waiting areas only where space and ventilation capacities permit division into smoking and nonsmoking sections.
(F) Smoking shall not be permitted in common work areas shared by smokers and nonsmokers unless adequate space is available for nonsmokers and ventilation is adequate to provide them a healthy environment. Where feasible, smoking preference should be considered when planning individual work stations so that smoking and nonsmoking areas may be established.
(G) When individual living quarters are not available and two or more individuals are assigned to one room, smoking and nonsmoking preferences shall be considered in the assignment of rooms.
(H) Smoking by students attending DoD Dependents Schools or section 6 schools shall not be permitted on school grounds except as provided by policy regulations promulgated by the Director, DoDDS. Faculty and staff shall smoke only in specifically designated areas and shall not smoke in the presence of students.
(iii) Installations shall assess the current resources, referral mechanisms, and need for additional smoking cessation programs. Occupational health clinics shall consider the feasibility of smoking cessation programs for civilian employees or, at a minimum, be able to refer employees to such programs. While smoking cessation should be encouraged, care shall be taken to avoid coercion or pressure on employees to enter smoking cessation programs against their will. Smoking prevention programs shall be
(iv) Information on the health consequences of smoking shall be incorporated with the information on alcohol and drug abuse provided to military personnel at initial entry and at permanent change of station as specified in 32 CFR part 62a. At initial entry, nonsmokers shall be encouraged to refrain from smoking. Smokers shall be encouraged to quit and be offered assistance in quitting.
(v) As part of routine physical and dental examinations and at other appropriate times, health care providers should be encouraged to inquire about the patient's tobacco use, including use of smokeless tobacco products; to advise him or her of the risks associated with use, the health benefits of abstinence, and of where to obtain help to quit.
(vi) Appropriate DoD health care providers should advise all pregnant smokers of the risks to the fetus.
(vii) The Military Services shall conduct public education programs appropriate to various target audiences on the negative health consequences of smoking.
(2) Physical fitness programs shall aim to encourage and assist all target populations to establish and maintain the physical stamina and cardiorespiratory endurance necessary for better health and a more productive lifestyle. In addition to the provisions of DoD Directive 1308.1
(i) Health professionals shall consider exercise programs conducive to improved health, and encourage appropriate use by patients. For military personnel, recommendations shall accord with military readiness requirements.
(ii) Commanders and managers should assess the availability of fitness programs at or near work sites and should consider integrating fitness regimens into normal work routines for military personnel as operational commitments allow.
(iii) The chain of command should encourage and support community activities that develop and promote fitness among all target populations. Activities should be designed to encourage the active participation of many people rather than competition among a highly motivated few.
(3) Nutrition programs shall aim to encourage and assist all target populations to establish and maintain dietary habits contributing to good health, disease prevention, and weight control. Weight control involves both nutrition and exercise, and is addressed in part in DoD Directive 1308.1. Nutrition programs include efforts not only to help individuals develop appropriate dietary habits, but also to modify the environment so that it encourages and supports appropriate habits. Additionally, nutrition programs shall include the following elements.
(i) Nutritional advice and assistance shall be provided by appropriate DoD health care professionals to military personnel, retirees, and family members.
(ii) In military and civilian dining facilities, where feasible, calorie information and meals with reduced amounts of fat, salt, and calories shall be made readily available.
(iii) Snack concessions and vending machines, when feasible, shall offer nutritious alternatives, such as fresh fruit, fruit juices, and whole grain products.
(iv) Public information campaigns shall be conducted by the Military Services to alert all target populations about the relationship between diet and risk of chronic diseases.
(4) Stress management programs shall aim to reduce environmental stressors and help target populations cope with stress. Additionally, stress management programs shall include the following elements.
(i) Commanders should develop leadership practices, work policies and procedures, and physical settings that promote productivity and health for military personnel and civilian employees.
(ii) Health and fitness professionals are encouraged to advise target groups on scientifically supported stress management techniques.
(iii) The topic of stress management should be considered for integration into the curricula at appropriate Professional Military Education programs and in the DoD Dependents Schools and section 6 schools to familiarize students with scientifically supported concepts of stress management for day-to-day problems, life transitions, and life crises.
(5) Alcohol and drug abuse prevention programs shall aim to prevent the misuse of alcohol and other drugs, eliminate the illegal use of such substances, and provide counseling or rehabilitation to abusers who desire assistance in accordance with the provisions of 32 CFR parts 62a and 62 and DoD Instruction 1010.6
(i) Appropriate DoD health care professionals shall advise all pregnant patients and patients contemplating pregnancy about the risks associated with the use of alcohol and other drugs during pregnancy.
(ii) The Military Services shall conduct public education programs appropriate to various target audiences. Programs should include such topics as alcohol and drug use and pregnancy, driving while intoxicated, and adolescent alcohol and drug abuse.
(6) Hypertension prevention programs shall aim to identify hypertension early, provide information regarding control and lifestyle factors, and provide treatment referral where indicated. Early identification of hypertension programs shall include the following elements.
(i) Hypertension screening shall be provided as part of all medical examinations and the annual dental examination for active duty service members. Screening shall also be provided to other beneficiaries, excluding those in the Children's Preventive Dentistry Program, at the time of their original request for care. Patients with abnormal screening results shall receive appropriate medical referrals.
(ii) Each DoD medical facility should periodically offer mass hypertension screening to encourage beneficiaries to monitor their blood pressure regularly.
(iii) Occupational health clinics shall make hypertension screening readily available to civilian employees, and shall encourage employees to use this service.
(iv) Public information campaigns emphasizing the dangers of hypertension and the importance of periodic hypertension screening and dietary regulation shall be conducted.
42 U.S.C. 13041.
This part: (a) Implements Public Law 101-647, section 231 and Public Law 102-190, section 1094.
(b) Requires procedures for existing and newly hired individuals and includes a review of personnel and security records to include a Federal Bureau of Investigation (FBI) fingerprint check and State Criminal History Repositories (SCHR) checks of residences listed on employment or certification applications.
(c) Establishes policy, assigns responsibilities, and prescribes procedures for criminal history background checks for all existing and newly hired individuals involved in the provision of child care services as Federal employees, contractors, or in Federal facilities to children under the age of 18. The checks are required of all individuals in the Department of Defense involved in providing child care services defined in Public Law 101-647, and for policy
(d) Allows the Department to provisionally hire such individuals before the completion of a background check. However, at all times while children are in the care of that individual, the child care provider must be within sight and under the supervision of a staff person whose background check has been successfully completed. Healthcare personnel shall comply with guidance provided in the Memorandum from the Assistant Secretary of Defense for Health Affairs (ASD(HA))
(e) Includes all individuals providing child care services to children in accordance with 32 CFR part 310, Federal Personnel Manual (FPM)
This part applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Unified and Specified Commands, the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”).
Terms used in this part are defined as follows.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(1)
(2)
(s)
(t)
(u)
(v)
(w)
(x)
(y)
(z)
(aa)
(bb)
(cc)
(dd)
(ee)
(ff)
It is Department of Defense policy to:
(a) Establish a standardized and comprehensive process for screening applicants for positions involving child care services on DoD installations and in DoD activities.
(b) Provide fair, impartial, and equitable treatment before an individual may be deemed suitable to serve as an employee, a certified care provider, a specified volunteer position, or as an individual employed under contract in activities covered by this part, 32 CFR part 310, Federal Personnel Manual (FPM), 32 CFR part 154, DoD Directive 6400.1, DoD Instruction 6060.2, DoD Instruction 6400.2, DoD Directive 1400.13, 32 CFR part 68, DoD Directive 6025.11, DoD Directive 1015.1, and 32 CFR part 212 by conducting a thorough review of all appropriate records as described in this part.
(c) Protect children by denying or removing from employment, contract, or volunteer status any applicant or current employee who is determined unsuitable to provide child care services because derogatory information is contained in a suitability investigation.
(d) Ensure than an individual is advised of proposed disciplinary action, decertification, or refusal to hire by the hiring authority or designee if disqualifying derogatory information is contained in a suitability investigation. The individual is given the opportunity to challenge the accuracy and completeness of reported information.
(e) Foster cooperation among the DoD Components, other Federal Agencies, State and county agencies, and other civilian authorities in conducting criminal history background checks.
(a) The
(2) Monitor compliance with this part.
(3) Coordinate oversight of criminal history background checks as specified under this part.
(b) The
(2) Provide oversight of process and procedures to conduct criminal history background checks to include assignment of proponency.
(3) Provide technical support and resources as required.
(4) Coordinate participation of specific organizations within the DoD Component involved in the conduct of the checks.
(5) Ensure that applicants and employees are made aware of their rights under 32 CFR part 310 including the right to challenge accuracy of records.
(6) Maintain the records of all individuals hired, certified, or employed under contract for positions that involve child care services for 2 years following termination of their service.
(7) Establish a mechanism to evaluate all adverse information resulting from criminal history background checks, using the criteria in appendix B to this part. Final suitability decisions are made by the DoD Component Head or designee.
The records of all existing employees and applicants for positions in child care services are reviewed by the Component designee according to the procedures prescribed in appendix A to this part.
This appendix establishes the procedures for conducting criminal history background checks on existing and newly hired individuals required by Public Law 101-647, section 231 and Public Law 102-190, section 1094. Background checks are required for all civilian providers involved in child care services who have regular contact with children. The categories of providers include current and prospective individuals hired with APF and NAFI funds for education, treatment or healthcare, child care or youth activities, and individuals employed under contract involved in the provision of child care services. In addition to the mandates of Public Law 102-190, section 1094, the Department of Defense requires that military members (except healthcare personnel), foster or respite care providers, FCC providers and family members, and specified volunteers shall have checks specified in this part.
Component designees shall notify existing and newly hired individuals and contractors
1.
2.
3.
a. Except as otherwise provided in this subsection, the DoD Components shall process APF applicants using currently established procedures for completing background checks described in 32 CFR part 310. APF applicants must complete a SF-171, “Application for Federal Employment,” and attach an SF-87, “Fingerprint Chart,” completed by a law enforcement officer; and an SF-85P, “Questionnaire for Public Trust Positions” (Annotate Block “B” with code 03), for conduct of a NACI. The package shall be forwarded to the OPM.
b. The DoD Components shall assign responsibility for conducting the criminal history background checks through the SCHR to personnel offices working with law enforcement or investigative agencies. They shall conduct checks in all States that an employee or prospective employee lists as current and former residences in an employment or security application. It is deemed unnecessary to conduct checks before 18 years of age because juvenile records are unavailable. If no response is received from the State(s) within 60 days, determinations based upon the FBI report may be made. Responses received after this determination has been made must be provided to the determining authority.
c. Under Public Law 102-190, section 1094, the DoD Components may employ an individual pending completion of successful background checks described in Public Law 101-647, section 231. If an individual is so employed, at all times while children are in the care of that individual, he or she must be within sight and under the supervision of an individual whose background checks have been completed, with no derogatory reports.
d. Once it is clear that no derogatory information exists, line of sight supervision is terminated by the designee. If a derogatory report exists, Component personnel procedures shall prescribe appropriate action consistent with the criteria contained in this part.
a. Except as otherwise provided in this subsection, the DoD Components shall process NAFI applicants following established procedures for completing background checks. NAFI applicants must complete a DD Form 398-2 “Department of Defense National Agency Questionnaire,” with reason for request identified as OTHER and annotated as CHILD CARE, and FD Form 258, “FBI Applicant Fingerprint Card.” Fingerprints shall be taken by the local law enforcement organization personnel and together with the DD Form 398-2 shall be forwarded to: Defense Investigative Service, Personnel Investigations Center, P.O. Box 1083, Baltimore, MD 21203-1083.
b. The DoD Components shall follow the procedures in the FPM, Chapter 731 and 736 and in paragraph B.1.b.,c., and d. of this appendix to obtain fingerprints for the FBI,
Foreigh national employees overseas, while not expressly included within the law, are subject to the following record checks or those equivalent in scope to checks conducted on U.S. citizens:
a. Host-government law enforcement and security agency checks at the city, State (province), and national level, whenever permissible by the laws of the host government.
b. Defense Central Investigative Index (DCII).
c. FBI checks (when information exists regarding residence by the individual in the United States for 1 year or more since age 18).
d. When permissible by the laws of the host government, host-government checks are requested directly by the employing Service or agency. As an alternative, the DoD Components may request that overseas Military Service investigative elements obtain appropriate host-government checks. Where host-nations’ arrangements preclude comparable criminal history checks, foreign nationals will not be eligible for employment in child care services.
This category includes summer hires, student interns, and NAFI flexible category employees. Background checks for these individuals are processed according to funding source; i.e., for APF employees (to OPM) or NAFI employees (to DIS). Installation designated points of contact shall notify applicants of report disposition.
This category includes civilian personnel involved in the delivery of healthcare. Within the context of such medical care, line of sight supervision must be viewed through the prism of existing medical quality assurance, clinical privileging, and licensure directives, which require pre-employment screens, enhanced surveillance of new employees, and ongoing monitoring of the performance of all healthcare providers. These programs are inherent to both quality medical care and patient safety and are adequate and equivalent mechanisms for the sight and supervision requirements in paragraph B.1.c. and d. of this appendix. It should be noted that these quality assurance programs are not sufficient in and of themselves under Public Law 101-647, section 231. Therefore, the required FBI fingerprint check and the SCHR check must be completed as expeditiously as possible.
All currently employed individuals covered by this part shall have the FBI fingerprint and criminal history background check as described in Public Law 101-647, section 231. If the results of such checks, to include the SCHR, cannot be confirmed through an examination of available local records, action shall be initiated in accordance with paragraph B.1. of this appendix for APF employees and paragraph B.2. of this appendix for NAFI employees, and with paragraph D. of this appendix for individuals employed under contract. The SCHR checks are conducted in all cases in accordance with paragraph A.2. of this appendix. For the purposes of this part, no IRC is required for individuals employed before June 1991.
1. Sponsoring activities are responsible for ensuring that the requirements in this part are included in the statement of work for all child care programs to be contracted. The contracting officer is responsible for performing any action necessary to verify that services provided by the contractor conform to contract quality requirements. Component designees for requiring activities shall ensure that the statement of work, at a minimum:
a. States that the contractor must ensure its employees have proper criminal history background checks as outlined in this part.
b. States that actual checks are performed by the Government.
c. Includes procedures that the contractor must follow to obtain checks for its employees; for example, identify the office where employees report for processing, identify proper forms to be completed, etc. Also, identify the DoD Component for billing purposes, and identify the appropriate security point of contact or installation commander as the authorized recipient of background check results.
d. States that employees may be permitted to work before completion of background checks, provided the employee is within sight of an individual who has successfully completed a background check.
e. States that employees have the right to obtain a copy of the background check report, whom they should contact for the copy and whom to contact for procedures to challenge the accuracy and completeness of the information in the report.
f. Requires that contractor employees who have previously received a background check must provide proof of the check or obtain a new one.
2. Requirements for child care services must be submitted to the contracting officer
3. Procedures for obtaining responses for background checks are the same as those for NAFI employees and response to derogatory information will occur through the appropriate designee and contractor. An IRC will be performed if the individual is a military member or family member, or has worked or lived on a military installation within 5 years.
Criminal history background checks with the FBI and the States are not required. Duplication of previous background checks are not required for personnel where official records demonstrate that an adequate check has already been conducted. This category includes the following:
1.
2.
3.
4.
Public Law 101-647, section 231 requires that each application for employment shall include a question asking whether the individual has ever been arrested for or charged with a crime involving a child, and, if so, requires a description of the disposition of the arrest or charge. The forms identified in paragraphs B.1.a. and B.2.a. of this appendix are signed by the applicant under penalty of perjury, with the applicable Federal punishment for perjury stated on the respective forms.
1. An applicant's signature indicates an understanding of the employer's obligation to require a record check as a condition of employment. Information on background checks shall be maintained in accordance with applicable Component implementing regulations.
2. Payment for the conduct of any criminal history background check is the responsibility of the requesting Service or agency.
3. The results of the background check are forwarded to the Component designee at the sending installation for appropriate action. A derogatory report would include, but not be limited to, the following applicable crimes: Any charge or conviction for a sex crime, an offense involving a child victim, a substance abuse felony, or a violent crime.
4. The hiring authority or designee is responsible for notifying the individual of a derogatory report. The individual may obtain a copy of the criminal history report and has the right to challenge the accuracy and completeness of any information contained in the report through the Privacy Program described in 32 CFR part 310. The individual may provide information concerning positive mitigating factors for any adverse information presented.
5. Employees whose criminal history background checks result in nonselection for employment or service shall be informed by the Component designee of the right to an administrative appeal under 32 CFR part 310. The individual may appeal with a specific request such as amendments to the records or request to file statement disagreeing with information in the record. If the employee's request for record information is refused, the
This procedure consists of an IRC and a DCII name check and is required by the Component designee at a minimum every 5 years for all employees providing child care services and covers the time period since the completion of the last background check. NAFI employees who change duty stations will complete a new investigation when considered for employment. A new investigation is required by the Department of Defense if a break in service results in a time-lapse of more than 2 years. FCC, foster care and respite care providers, and their family members will complete an IRC annually.
Refers to temporary responsibility for children in child care services, and relates to oversight for temporary or permanent authority to exercise direction and control by an individual over an individual whose required background checks have been initiated but not completed. Use of video equipment is acceptable provided it is monitored by an individual who has successfully completed a background check. Supervision procedures pending completion of background checks for healthcare personnel suggest that the Surgeons General shall require close clinical supervision and full compliance with existing DoD Directives, Instructions, and other guidance (issued by the Department of Defense and the Military Department concerned) on quality assurance, risk management, licensure, employee orientation, and credentials certification. These policies rely on process and judgment, and meet the intent of the “direct sight supervision” provision, affording local commanders a flexible and reasonable alternative.
This identifies the requirements of this part for background checks by category of personnel. These checks are initiated through the personnel offices in collaboration with law enforcement and security personnel. (Reminder: An IRC may only be completed on an individual who is a military member or family member, or who lives or works on a military installation.)
1. Appropriated Fund (APF) Employees. FBI, SCHR, and IRC. (SF-171, SF-87, and SF-85P).
2. Non-appropriated Fund Instrumentalities (NAFI) Employees. FBI, SCHR, and IRC. (DD Form 398-2 and FD Form 258).
3. Foreign National Employees Overseas. IRC and local government check.
4. Temporary Employees. FBI, SCHR, and IRC.
5. Current Employees. FBI and SCHR.
6. Government Contract Employees. FBI, SCHR, and IRC.
7. Other Providers.
a. Military Members. Military members will have an IRC and, if no current security clearance exists, a name check of the DCII. Checks are not required for military healthcare personnel.
b. Foster and Respite Care Providers and Family Members (age 12 and older). IRC and Service DCII (for adults).
c. Family Child Care Providers and Family Members (age 12 and older). IRC and Service DCII (for adults).
d. Specified Volunteers. IRC.
The ultimate decision to determine how to use information obtained from the criminal history background checks in selection for positions involving the care, treatment, supervision, or education of children must incorporate a common sense decision based upon all known facts. Adverse information is evaluated by the DoD Component Head or designee who is qualified at the appropriate level of command in interpreting criminal history background checks. All information of record both favorable and unfavorable will be assessed in terms of its relevance, recentness, and seriousness. Likewise, positive mitigating factors should be considered. Final suitability decisions shall be made by that commander or designee. Criteria that
Any conviction for a sexual offense, a drug felony, a violent crime, or a criminal offense involving a child or children.
1. Acts that may tend to indicate poor judgment, unreliability, or untrustworthiness in working with children.
2. Any behavior; illness; or mental, physical, or emotional condition that in the opinion of a competent medical authority may cause a defect in judgment or reliability.
3. Offenses involving assault, battery, or other abuse of a victim, regardless of age of the victim.
4. Evidence or documentation of substance abuse dependency.
5. Illegal or improper use, possession, or addiction to any controlled or psychoactive substances, narcotic, cannibas, or other dangerous drug.
6. Sexual acts, conduct, or behavior that, because of the circumstances in which they occur, may indicate untrustworthiness, unreliability, lack of judgment, or irresponsibility in working with children.
7. A wide range of offenses such as arson, homicide, robbery, fraud, or any offense involving possession or use of a firearm.
8. Evidence that the individual is a fugitive from justice.
9. Evidence that the individual is an illegal alien who is not entitled to accept gainful employment for a position.
10. A finding of negligence in a mishap causing death or serious injury to a child or dependent person entrusted to their care.
In making a determination of suitability, the evaluator shall consider the following additional factors to the extent that these examples are considered pertinent to the individual case:
1. The kind of position for which the individual is applying or employed.
2. The nature and seriousness of the conduct.
3. The recentness of the conduct.
4. The age of the individual at the time of the conduct.
5. The circumstances surrounding the conduct.
6. Contributing social or environmental conditions.
7. The absence or presence of rehabilitation or efforts toward rehabilitation.
8. The nexus of the arrests in regard to the job to be performed.
1. All applications, for each of the categories of individuals identified in § 86.3, will include the following questions: “Have you ever been arrested for or charged with a crime involving a child? Have you ever been asked to resign because of or been decertified for a sexual offense? And, if so, “provide a description of the case disposition.” For FCC, foster care, and respite care providers, this question is asked of the applicant regarding all adults, and all children 12 years and older, who reside in the household.
2. All applications shall state that the form is being signed under penalty of perjury. In addition, a false statement rendered by an employee may result in adverse action up to and including removal from Federal service.
3. Evaluation of criminal history background checks is made and monitored by qualified personnel at the appropriate level designated by the Component. Final suitability decisions are made by the designee.
All SCHR checks should be accompanied by the following: 1. State form, if required. If no State form is required, the request should be on letterhead, beginning with the statement that the check is in accordance with Public Law 101-647. The request must include full identifying information, such as: Name, date of birth, social security number, complete addresses, etc.
2. Fingerprint set if required. Some State laws require a fingerprint set either on a State form or forms used by the agency.
3. Release statement signed by the applicant or employee. If required by the State, the release must be notarized.
4. Payment for the SCHR check.
5. Self-addressed, stamped envelope.
The following is an updated listing of State addresses, fees, and other information:
10 U.S.C. chapter 58.
(a) This part supersedes the Assistant Secretary of Defense For Force Management and Personnel memorandum,
(b) Implements transition assistance programs for DoD military personnel and their families as outlined in section 502, Public Law 101-510; section 661
This part applies to: (a) The Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Unified Combatant Commands, and the Defense Agencies (hereafter referred to collectively as “the DoD Components”). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, and the Marine Corps.
(b) All active duty Service members and their families.
(a)
(1) In the case of a Regular officer (other than a retired officer), he or she was involuntarily discharged under other than adverse conditions, as characterized by the Secretary of the separating Service member's Military Department. Discharge under adverse conditions is determined by referring to the reason for separation as well as the officer's service, as outlined in Department of Defense Directive 1332.30.
(2) In the case of a Reserve officer who is on the active duty list or, if not on the active duty list, is on full-time active duty (or in the case of a member of the National Guard, full time National Guard duty) for the purpose of organizing, administering, recruiting, instructing, or training the Reserve components, he or she is involuntarily discharged or released from active duty or full-time National Guard duty (other than a release from active duty or full-time National Guard duty incident to a transfer to retired status) under other than adverse conditions as characterized by the Secretary of the separating Service member's Military Department. Discharge under adverse conditions is determined by referring to the reason for separation as well as the officer's service, as outlined in Department of Defense Directive 1332.30.
(3) In the case of a Regular enlisted member serving on active duty, he or she is denied reenlistment or involuntarily discharged under other than adverse conditions, as characterized by the Secretary of the separating Service member's Military Department. Discharge under adverse conditions is determined by referring to the reason for separation as well as the enlisted member's service, as outlined in Department of Defense Directive 1332.14.
(4) In the case of a Reserve enlisted member who is on full-time active duty (or in the case of a member of the National Guard, full-time National Guard duty) for the purpose of organizing, administering, recruiting, instructing, or training the Reserve components, he or she is denied reenlistment or is involuntarily discharged or released from active duty (or full-time National Guard duty) under other than adverse conditions as determined by referring to the reason for separation as well as the enlisted member's service, as outlined in Department of Defense Directive 1332.14.
(b)
(c)
(d)
It is DoD policy that: (a) Transition assistance programs prepare separating Service members and their families with the skills, tools, and self-confidence necessary to ensure successful reentry into the Nation's civilian work force.
(b) Transition assistance programs be designed to complete the military personnel “life cycle.” This cycle begins with the Service member's recruitment from the civilian sector, continues with training and sustainment throughout a Service members's active service in the Armed Forces, and ends when the Service member returns to the civilian sector.
(c) Transition assistance programs include: (1) Transition service as defined in )88.3 (d) to be provided to Service members and their families for up to 90 days after separation, space and work load permitting.
(2) Separation entitlements as defined in § 88.3 (b) for Service members who are involuntarily separating as defined in § 99.3 (a) or separating under the Voluntary Separation Incentive or Special Separation Benefit Programs as defined in § 88.3 (c).
(d) Service members from one Service shall not restricted from participating in another Service's transition assistance program unless workload or other unusual circumstances dictate. Every effort will be made to accommodate all eligible personnel, especially if referral to another transition site will require the Service member to travel a long distance and incur significant expense.
(e) [Reserved]
(f) When being discharged, released from active duty, or retiring (hereafter referred to as “separating Service members”), Service members and their families bear primary responsibility for their successful transition into the civilian sector.
(g) Spouses shall be encouraged to participate in transition planning and counseling to the maximum extent possible.
(h) Enhanced transition programs shall be established for Service members and their families who are overseas to help alleviate the special difficulties overseas personnel encounter when job and house hunting.
(i) Installations in the United States shall give priority transition assistance to personnel who recently returned from overseas.
(a) The Assistant Secretary of Defense for Personnel and Readiness shall; (1) Issue guidance on transition assistance programs for Service members and their families, as necessary.
(2) Coordinate, as necessary, within the Department of Defense to ensure the availability of high quality, equitable, and cost-effective transition programs among the Military Services.
(3) Coordinate with and seek the assistance of the Departments of Labor and Veterans Affairs, and other Federal Agencies to facilitate delivery of high quality transition assistance programs to separating Service members.
(4) Evaluate the level of resources needed to deliver quality transition
(5) Monitor and evaluate the overall effectiveness of transition assistance programs.
(6) Coordinate with theater commanders, though the Chairman of the Joint Chiefs of Staff, on transition assistance programs (job fairs and training conferences, for example) impacting overseas Unified Combatant Commands.
(7) Establish the Department of Defense Service Member Transition Assistance Coordinating Committee, consisting of representatives from the Military Services and Assistant Secretary of Defense for Personnel and Readiness. The purpose of this committee is to provide DoD-level direction and coordination for transition assistance programs.
(8) Collect data to determine systematically the degree to which transition assistance programs satisfy the needs of transitioning Service members and their families.
(9) Review, modify, and reissue policy guidance, as required.
(b) The Assistant Secretary of Defense for Reserve Affairs shall establish and publish guidance on transition assistance programs for Reserve personnel and their families.
(c) The Assistant Secretary of Defense for Health Affairs shall establish guidance on transitional medical and dental care, including health insurance and preexisting conditions coverage, for Service members and their families.
(d) The Secretaries of the Military Departments shall ensure compliance with the criteria in Public Law 101-510, 102-190, and 102-484, as amended, and the following provisions:
(1) Preparation counseling shall be available no later than 90 days before separation to all separating Service members.
(2) High quality transition counseling and employment assistance programs are established on military facilities with more than 500 Service members permanently assigned or serving at that installation.
(3) The participation of separating Service members in transition assistance programs shall be coordinated with mission requirements.
(4) Transition assistance programs are allocated the resources necessary to delivery quality transition assistance programs.
(5) The Military Services are represented on the Department of Defense Service Member Transition Assistance Coordinating Committee. Each of the Military Services may invite an installations-level transition manager to participate.
(6) Quarterly reports on the status of transition programs are submitted to the Assistant Secretary of Defense for Personnel and Readiness beginning the second quarter after this publication is published, and continuing each quarter until cancellation of this part.
(7) The Inspector General of each Military Service shall review and report compliance with § 88.5(d)(1) through (d)(6) to the Service Secretary, on an annual basis, due no later than January 31 of the next calendar year.
The quarterly report requirement in § 88.5(d)(6) has been assigned Report Control Symbol DD-P&R(Q) 1927.
5 U.S.C. 5525.
This part updates the uniform policies established in implementation of Office of Personnel Management (OPM) Regulation, “Allotments and Assignments from Federal Employees (5 CFR 550.301) and Treasury Fiscal Requirements Manual for Guidance of Departments and Agencies (volume 1, part 3, “Payrolls, Deductions and Withholdings”) and to provide for allotments to professional and other organizations as authorized by Federal Personnel Manual (chapter 252, Professional and other Associations).
The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, and the Defense Agencies and govern the policy under which civilian employees may make allotments of their pay.
Selected Terms used are defined below:
(a)
(b)
(c)
(d)
(e)
(a)
(1) Support of relatives or dependents of the allotter.
(2) Savings.
(i) Unrestricted as to allottee. Two such allotments may be authorized an eligible employee at any one time. The eligibility criteria are specified in paragraph (b)(1) of this section.
(ii) Allotted to a financial organization for credit to a savings account of the allotter as authorized by the Treasury Fiscal Requirements Manual. Only two such allotments, in whole dollars, under this provision shall be allowed an eligible employee. Eligibility criteria are specified in paragraph (b)(2) of this section. Monies thus credited to the allotter's savings account may be used for any purpose in accordance with the desires and direction of the allotter as long as that purpose does not circumvent any statute, executive order or other applicable regulation.
(3) Payment of commercial insurance premiums on the life of the allotter.
(4) Payments of U.S. Government Life Insurance or National Service Life Insurance premiums.
(5) Voluntary liquidation of indebtedness to the U.S. Government.
(6) Repayment of loans obtained for the purchase of a home.
(7) Payment of certain State and District of Columbia income taxes as authorized by OPM Regulation and the Treasury Fiscal Requirements Manual.
(8) Payment of certain city income taxes as authorized by OPM Regulation and the Treasury Fiscal Requirements Manual.
(9) Payment of labor organization dues as authorized by DoD Directive 1426.1,
(10) Charitable contributions to a Combined Federal Campaign as authorized by DoD Directive 5035.1,
(11) Purchase of U.S. savings bonds. Employees normally will be permitted only two such allotments at any one time. Additional allotments for amounts of $18.75 or more in approved increments may be authorized to the extent the pay system can accommodate such allotments.
(12) Payment of dues to a professional or other association. One allotment in a calendar year may be made by an employee to an association when the association:
(i) Provides some worthwhile function or service that would contribute to the agency's mission and programs or to the morale and welfare of the agency's employees. (See also DoD Instruction 5010.30,
(ii) Has a sufficient number of members who request dues withholding to justify the administrative arrangements required; that is, a minimum of either 50 participants, or 1 percent of the total number, paid by the payroll office. This criterion may be waived by the Assistant Secretary of Defense
(iii) Is not a labor organization eligible for recognition under DoD Directive 1426.1
(iv) Is a lawful nonprofit organization. The organization's constitution and bylaws must indicate that the organization subscribes to certain minimum standards of fiscal responsibility and that it employs democratic principles in the nomination and election of officers.
(v) Does not discriminate in regard to the terms or conditions of membership because of race, color, creed, sex, age, or national origin.
(vi) Does not advocate and has not assisted or participated in a strike, work stoppage, or slowdown against the Government of the United States or any agency thereof, nor does it impose a duty or obligation on its members to conduct, assist, or participate in such a strike.
(vii) Does not advocate the overthrow of the constitutional form of Government in the United States.
(viii) Agrees to reimburse the United States for the full cost of establishing the allotment and making payment to the organization. Such costs will not be passed on to the employee by any special charge or assessment in excess of that paid by other members. This reimbursement may be waived, in whole or in part, by the ASD (MRA&L) for associations of supervisors when warranted.
(ix) Meets any additional criteria imposed by the Military Departments or Defense Agencies, or by the individual payroll offices.
(b)
(1) An employee may make an allotment of pay as provided in paragraphs (a) (1), (2)(i), (3) through (6), (11), and (12) of this section when the employee is:
(i) Assigned to a post of duty outside the continental United States;
(ii) Working on an assignment away from his regular post of duty when the assignment is expected to continue for 3 months or more;
(iii) Serving as an officer or member of a crew of a vessel under the control of the Federal Government.
(2) An employee whose place of employment is within the continental United States may authorize an allotment of pay as provided in paragraph (a) (2)(ii) and (5), (11), and (12) of this section.
(3) An employee, who is employed outside of, but is a resident in, a State or the District of Columbia with which the Department of the Treasury has entered into an agreement to withhold income taxes from the pay of employees in accordance with the procedures prescribed in the Treasury Fiscal Requirements Manual, may make an allotment of pay for the purpose specified in paragraph (a)(7).
(4) An employee, who is employed in, or a resident of, a city with which the Department of the Treasury has entered into an agreement to withhold city income taxes in accordance with the procedures prescribed in the Treasury Fiscal Requirements Manual, may make an allotment of pay for the purpose specified in paragraph (a)(8).
(5) An employee who meets the eligibility requirements prescribed in DoD Directive 1426.1,
(6) An employee who meets the eligibility requirements prescribed in DoD Directive 5035.1
(c)
(d)
(1) Foreign nationals employed by the DoD to work in their own countries or in the Canal Zone may be permitted to make allotments for the purposes shown in paragraph (a) (9) and (10) of this section, and to pay premiums on group health benefits and group life insurance.
(2) Foreign nationals may be permitted to make other allotments from pay when such allotments are based on local customs and practices or are pursuant to treaties or country-to-country agreements.
(e)
(2) Allotment payments shall be made in accordance with the schedule established by the particular department or agency of the DoD, provided such allotment checks are not issued until the related earnings have accrued. This shall be stipulated as a requirement for the allotment.
(3) Except as provided by paragraph (a)(2) and (11), a DoD employee shall not have more than one allotment payable to the same allottee at the same time.
(4) Allotments will not exceed the pay due the allotter.
(f)
(1) Upon receipt of: (i) Notice of retirement, separation, or death of the allotter;
(ii) Notice that the allotter has been placed in an extended leave without pay status;
(iii) Written notice from the allotter unless this right is otherwise restricted by law;
(iv) Notice of death of the allottee; or
(v) Notice that the whereabouts of the allottee is unknown.
(2) When the conditions under which an allotment was permitted no longer exist.
E.O. 12333, 3 CFR, 1981 Comp., p. 200; 50 U.S.C. apps. 401, 402.
(a) DoD Directive 5405.2,
(b) E.O. 12333, United States Intelligence Activities, 3 CFR, 1981 Comp., p. 200, reprinted in 50 U.S.C. app. 401.
(c) The National Security Agency Act of 1959, Public Law No. 86-36, as amended, 50 U.S.C. app. 402.
(d) Rule 4, Federal Rules of Civil Procedure.
(e) DoD Instruction 7230.7,
(f) 28 CFR 50.15.
(a) This part implements § 93.1(a) in the National Security Agency/Central Security Service including all field sites (hereinafter referred to collectively as NSA). The procedures herein are also promulgated pursuant to the NSA's independent authority, under § 1.12(b)(10) of E.O. 12333 referenced under § 93.1(b), to protect the security of its activities, information and employees. This part establishes policy, assigns responsibilities, and prescribes mandatory procedures for service of process at NSA and for the release of official information in litigation by NSA personnel, through testimony or otherwise.
(b) This part is intended only to provide guidance for the internal operation of the NSA and does not create any right or benefit, substantive or procedural, enforceable at law against the United States, the Department of Defense, or NSA. This part does not override the statutory privilege against the disclosure of the organization or any function of the NSA, of any information with respect to the activities thereof, or of the names, titles, salaries, or numbers of the persons employed by the NSA. See section 6(a) of the DoD Directive referenced under § 93.1(a).
(a)
(b)
(c)
(d)
(e)
(1) Is in the custody and control of NSA; or
(2) Relates to information in the custody and control of NSA; or
(3) Was acquired by NSA personnel as part of their official duties or because of their official status within NSA.
(f)
(g)
Official information that is not classified, privileged, or otherwise protected from public disclosure, should generally be made reasonably available for use in Federal and State courts and by other governmental bodies.
(a)
(1) If official information is sought, through testimony or otherwise, by a litigation 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 (a)(5) of this section, NSA personnel may only produce, disclose, release, comment upon or testify concerning those matters that were specified in writing and approved by the GC.
(2) Whenever a litigation demand is made upon NSA personnel for official information or for testimony concerning such information, the person upon whom the demand was made shall immediately notify the OGC. After consultation and coordination with the DoJ, if required, the GC shall determine whether the individual is required to comply with the demand and shall notify the requester or the court or other authority of that determination.
(3) If a litigation demand requires a response before instructions from the GC are received, the GC shall furnish the requester or the court or other authority with a copy of § 93.1(a) and this part 93. The GC shall also inform the requester or the court or other authority that the demand is being reviewed, and seek a stay of the demand pending a final determination.
(4) If a court or other authority declines to stay the demand in response to action taken pursuant to paragraph 3 of this section, or if such court or other authority orders that the demand must be complied with notwithstanding the final decision of the GC, the NSA personnel upon whom the demand was made shall notify the GC of such ruling or order. If the GC determines that no further legal review of or challenge to the ruling or order will be sought, the affected NSA personnel shall comply with the demand or order. If directed by the GC, however, the affected NSA personnel must decline to
“I must respectfully advise the Court that under instructions given to me by the General Counsel of the National Security Agency, in accordance with Department of Defense Directive 5405.2 and NSA Regulation 10-62, I must respectfully decline to [produce/disclose] that information.”
(5) In the event NSA personnel receive a litigation demand for official information originated by another U.S. Government component, the GC shall forward the appropriate portions of the request to the other component. The GC shall notify the requester, court, or other authority of the transfer, unless such notice would itself disclose classified information.
(b)
(1)
(i) Parties who wish to deliver, instead of sending by registered or certified mail, the copies of the service of process to NSA or to NSA personnel sued or summoned in their official capacities, will comply with the procedures for service of process on NSA premises in paragraph (b) of this section.
(ii) Litigants may attempt to serve process upon NSA personnel in their official capacities at their residences or other places. Because NSA personnel are not authorized to accept such service of process, such service is not effective under § 93.1(d). NSA personnel should refuse to accept service. However, NSA personnel may find it difficult to determine whether they are being sued or summoned in their private or official capacity. Therefore, NSA personnel shall notify the OGC as soon as possible if they receive any summons or complaint that appears to relate to actions in connection with their official duties so that the GC can determine the scope of service.
(2)
(i) When the NSA person works at NSA Headquarters at Fort George G. Meade, Maryland, the process server should first telephone the OGC on (301) 688-6054, and attempt to schedule a time for the NSA person to accept
(ii) A process server who arrives at NSA during duty hours without first having contacted the OGC, will be referred to the Visitor Control Center (VCC) at Operations Building 2A. The VCC will contact the OGC. If an NSA attorney is not available, the process server will be referred to the Security Duty Officer, who will act in accordance with Office of Security (M5) procedures approved by the GC. Service of process will not be accepted during non-duty hours unless prior arrangements have been made by the OGC. For purposes of this part, duty hours at NSA Headquarters are 0800 to 1700, Monday through Friday, excluding legal holidays. A process server who arrives at NSA during non-duty hours without having made arrangements through the OGC to do so will be told to call the OGC during duty hours to arrange to serve process.
(iii) Upon being notified that a process server is at the VCC, an NSA attorney will review the service of process and determine whether the NSA person is being sued or summoned in his official or individual capacity. (If the person is being sued or summoned in his or her official capacity, the NSA attorney will accept service of process by noting on the return of service form that “service is accepted in official capacity only.”) If the person is being sued or summoned in his or her individual capacity, the NSA attorney will contact that person to see if that person will consent to accept service.
(3)
(4) No individual will confirm or deny that the person sued or summoned is affiliated with NSA until a NSA attorney or the Field Chief has ascertained that the individual's relationship with NSA is not classified. If the NSA person's association with NSA is classified, service of process will not be accepted. In such a case, the GC must be immediately informed. The GC will then contact the DoJ for guidance.
(5)
Consistent with the guidelines in § 93.1(e), NSA may charge reasonable fees to parties seeking, by request or demand, official information not otherwise available under the Freedom of Information Act, 5 U.S.C. 552. Such fees are calculated to reimburse the Government for the expense of providing such information, and may include:
(a) The costs of time expended by NSA employees to process and respond to the request or demand;
(b) 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
(c) Expenses generated by materials and equipment used to search for,
(a)
(b)
(c)
(d)
Sec. 301, 80 Stat. 379; 5 U.S.C. 301.
This part prescribes uniform procedures acceptable to the Immigration and Naturalization Service of the Department of Justice, to (a) facilitate the naturalization of aliens who have served honorably in the Armed Forces of the United States and to (b) militarily certify alien dependents seeking naturalization under the provisions of Immigration and Nationality Act of 1952, as amended, sections 319(b) and 323(c) (8 U.S.C. 1430(b) and 1434(c)); and furnishes policy guidance to the Secretaries of the Military Departments governing discharge or release from active duty in the Armed Forces of the United States of permanent-residence aliens who desire to be naturalized as U.S. citizens under the provisions of Act of June 27, 1952, section 328 (66 Stat. 249); 8 U.S.C. 1439.
The provisions of this part apply to the Military Departments.
(a)
(b)
(a)
(i) Has been lawfully admitted to the United States for permanent residence;
(ii) Was separated from the military service under honorable conditions;
(iii) Files a petition while still in the military service, or within six (6) months after the termination of such service; and
(iv) Can comply in all other respects with the Immigration and Nationality Act of 1952, except that (
(2) The prescribed 3-year period may be satisfied by a combination of active duty and inactive duty in a reserve status.
(3) An alien member desiring to fulfill naturalization requirements through military service shall not be separated prior to completion of three (3) full years of active duty unless:
(i) His performance or conduct does not justify retention, in which case he shall be separated in accordance with the provisions of part 41 of this subchapter and chapter 47, title 10, United States Code (Uniform Code of Military Justice), as appropriate; or
(ii) He is to be transferred to inactive duty in a reserve component in order to:
(
(
(4) Caution shall be exercised to ensure that an alien's affiliation with the Armed Forces of the United States, whether on active duty or on inactive duty in a reserve status, is not terminated even for a few days short of the 3-year statutory period, since failure to comply with the exact 3-year requirement of Act of June 27, 1952, section 328 (66 Stat. 249); 8 U.S.C. 1439 will automatically preclude a favorable determination by the Immigration and Naturalization Service on any petition for naturalization based on an alien's military service.
(5) During a period of hostilities, as designated by the President of the United States, the expeditious naturalization provisions outlined in paragraph (b) of this section, will take precedence over the foregoing.
(b)
(i) The induction, enlistment, or reenlistment in the United States or its
(ii) Enlistment or reenlistment aboard a ship on the high seas or in foreign waters does not meet the requirements of Immigration and Nationality Act of 1952, as amended, section 329 (8 U.S.C. 1440). In such instances, the provisions of paragraph (a) of this section may apply.
(2) Each Military Department will establish procedures containing the provisions outlined in paragraphs (b)(2) (i) and (ii) of this section. In addition, each qualifying alien shall be advised of the liberalized naturalization provisions of the Immigration and Nationality Act of 1952, as amended, section 329 (8 U.S.C. 1440), i.e., that the usual naturalization requirements concerning age, residence, physical presence, court jurisdiction and waiting periods are not applicable, and will be given appropriate assistance in processing his naturalization application in consonance with procedures contained in “Naturalization Requirements and General Information,” published by the U.S. Department of Justice (Form N-17).
(i) Military basic training and orientation programs will include advice and assistance to interested aliens in completing and submitting the application and other forms required to initiate naturalization proceedings.
(ii) In addition, applicants should be advised that:
(
(
(
(
(
(
(
(
(
(c)
(1) DD Form 1278, “Certificate of Overseas Assignment to Support Application to File Petition for Naturalization,”
(i) When dependents are authorized automatic concurrent travel, DD Form 1278 will be issued not earlier than 90 days prior to the dependents’ schedule date of travel.
(ii) When advance application for concurrent travel is required, DD Form 1278 will be issued after approval is received and not earlier than 90 days prior to the dependents’ scheduled date of departure.
(iii) When concurrent travel is not authorized, DD Form 1278 will be issued after authorization for dependents’ movement is received and not earlier than 90 days prior to the dependents’ scheduled date of travel.
(2) Upon receipt of DD Form 1278, the alien will file this form, together with the application for petition for naturalization, Immigration and Naturalization Form N-400 (adult) or N-402 (child) as appropriate, if not previously filed, with the nearest office of the Immigration and Naturalization Service. The application must be accompanied by:
(i) Three identical photographs.
(ii) Form FD-358, Applicant Fingerprint Card, and
(iii) Form G-325, Biographic Information.
(3) Further processing of the application for citizenship is as prescribed by the Immigration and Naturalization Service.
(4) Upon completion of the naturalization process, immediate application for passport should be made, in order that it can be issued prior to scheduled departure of the dependent for overseas.
The following forms required for naturalization purposes may be obtained from any office of the Immigration and Naturalization Service:
(a) N-400 Application to File a Petition for Naturalization (Adult) (Submit original form only).
(b) N-402 Application to File a Petition for Naturalization (Child) (Submit original form only).
(c) G-325 Biographic Information (Submit original and duplicate of multileaf form).
(d) G-325B Biographic Information (Submit original form only).
(e) FD-258 Applicant Fingerprint Card (Submit one completed card).
(f) N-426 Certificate of Military or Naval Service (Submit in triplicate). (Should be handled on a priority basis so as to avoid prejudicing the early completion of the naturalization process, particularly for an alien who may receive an overseas assignment.)
(g) “Naturalization Requirements and General Information,” published
10 U.S.C. 503, 504, 505, and 520a.
Under title 10 U.S. Code, sections 503, 504, 505 and 520a, this part establishes policy guidance concerning the acquisition of criminal history record information for use in determining an enlistment applicant's suitability for entry and for participation in special programs that require a determination of trustworthiness (part 156 of this title), assigns responsibilities, and prescribes procedures.
This part applies to the Office of the Secretary of Defense, the Military Departments, and the Defense Investigative Service (DIS). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
(a)
(b)
(c)
Section 503 of title 10 U.S. Code requires the Secretaries of the Military Departments to conduct intensive recruiting campaigns to obtain enlistments. It is the policy of the Department of Defense that the Military Services review the background of applicants for enlistment and for participation in special programs to identify:
(a) Those whose backgrounds pose serious questions as to fitness for service (10 U.S.C. 504 and 505) or suitability for participation in special programs (part 156 of this title).
(b) Those who may not be enlisted in the Military Services unless a waiver is granted (section 504 of title 10, United States Code).
(c) Those who may try to enlist fraudulently.
(a)
(b)
(c)
(a) Under section 520a of title 10 U.S. Code, recruiters are authorized to request and receive criminal history record information from the criminal justice system.
(b) The Military Services shall obtain criminal history record information on enlistment applicants from the criminal justice system and from the DIS and shall review this information to determine whether applicants are acceptable for enlistment and for assignment to special programs. Recruiters shall request such information in each instance by addressing their requests to the criminal justice system not later than 90 days after each application for enlistment is made.
(c) The Military Services shall ensure the confidentiality of criminal history record information obtained for recruiting purposes. Personnel who have access to this information may not disclose it except for the purposes for which obtained (10 U.S.C. 520a).
(d) The DIS shall provide additional background information to the Military Services as needed to determine the suitability of applicants for enlistment and for participation in special programs. This additional background information shall be provided by Entrance National Agency Checks (ENTNACs) and other investigations as directed by DoD 5200.2-R.
5 U.S.C. 301; 10 U.S.C. 133.
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.
(a) 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.
(b) This directive does not apply to the release of official information or testimony by DoD personnel in the following situations:
(1) Before courts-martial convened by the authority of the Military Departments or in administrative proceedings conducted by or on behalf of a DoD Component;
(2) 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;
(3) In response to requests by Federal Government counsel in litigation conducted on behalf of the United States;
(4) As part of the assistance required pursuant to DoD Directive 5220.6, “Industrial Personnel Security Clearance Program,” December 20 1976; or,
(5) 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.
(c) This Directive does not supersede or modify existing laws or DoD program 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. 552, or the Privacy Act, 5 U.S.C.
(d) 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.
(e) This Directive does not preclude official comment on matters in litigation in appropriate cases.
(f) 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.
(a)
(b)
(c)
(d)
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.
(a) The
(b) The
(a)
(2) 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.
(3) Notwithstanding the provisions of paragraph (a) (1) and (2) of this section, the General Counsel, DoD, in litigation involving terrorism, espionage, nuclear weapons, intelligence means or sources, or otherwise as deemed necessary, may notify Components that General Counsel, DoD, will assume primary responsibility for coordinating all litigation requests and demands for official DoD information or testimony of DoD personnel, or both; consulting with the Department of Justice, as required; and taking final action on such requests and demands.
(b)
(1) Whether the request or demand is unduly burdensome or otherwise inappropriate under the applicable court rules;
(2) Whether the disclosure, including release
(3) Whether the disclosure would violate a statute, executive order, regulation, or directive;
(4) Whether the disclosure, including release
(5) Whether the disclosure, except when
(6) 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.
(c)
(2) 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 (c)(5), 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 (a) of this section.
(3) Whenever a litigation request or demand is made upon DoD personnel for official DoD information or for testimony concerning such information,
(4) If, after DoD personnel have received a litigation request or demand and have in turn notified the appropriate DoD official in accordance with paragraph (c)(3) of this section , a response to the request or demand is required before instructions from the responsible official are received, the responsible official designated in paragraph (a) 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.
(5) 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 § 97.6(c)(4), 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 order or ruling 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.
(d)
(e)
5 U.S.C. 301 and 552.
Under Secretary of Defense memorandum dated June 5, 1981 and 32 CFR part 373, this part clarifies terminology, updates responsibilities and specific requirements to be met in conducting the examination of Defense Hotline allegations, and updates managing and operating procedures for the Defense Hotline Program.
This part applies to the Office of the Secretary of Defense (OSD) and its field activities; the Military Departments, including the National Guard and Reserve components; the Organization of the Joint Chiefs of Staff (OJCS); the Unified and Specified Commands; the Inspector General of the Department of Defense (IG, DoD); and the Defense Agencies (hereafter referred to collectively as “DoD Components”).
(a)
(b)
(c)
(d)
(e)
(a) It is DoD policy to combat fraud and mismanagement in DoD programs and operations. To strengthen and focus departmental efforts in support of this policy, the Defense Hotline Program, under the direction and control of the IG, DoD, shall ensure that allegations of fraud and mismanagement are properly evaluated; substantive allegations are examined; appropriate administrative, remedial, or prosecutive actions are taken; and systems of records for the control of the Defense Hotline are established and maintained.
(b) All DoD Component hotlines shall comply with the guidelines prescribed by this part.
(a) The Inspector General, Department of Defense, as the principal advisor to the Secretary of Defense on all matters relating to the prevention and detection of fraud and mismanagement, shall:
(1) Oversee the development of the Defense Hotline Program.
(2) Provide guidance to DoD Components for implementing DoD policies.
(3) Direct, manage, and control the operation of the Defense Hotline Program.
(4) Establish procedures to ensure that full and proper consideration is given to all cases of alleged fraud and mismanagement in the Department of Defense that are reported through the Defense Hotline Program.
(5) Ensure that audits, inspections, and investigations initiated as an integral part of the Defense Hotline Program are conducted under applicable laws, including the Uniform Code of Military Justice, court decisions, and DoD regulatory documents and policies.
(6) Conduct periodic quality assurance reviews of the DoD Component field investigative files to ensure that investigations of the Hotline allegations have been handled properly and that the findings and conclusions of the examiners are fully supported by the documentation contained in the official files.
(7) Periodically review and evaluate the operations of the Defense Hotline Program.
(8) Establish a Defense Hotline Advisory Group to:
(i) Review Defense Hotline allegations that have been referred in accordance with paragraph (b)(6) of this section and provide appropriate processing and referral instructions to the staff.
(ii) Review, upon request of the Defense Hotline staff, selected audit, inspection, and investigative Defense Hotline completion reports. Weaknesses and deficiencies identified by the examinations shall be referred to the IG, DoD, for appropriate action and resolution.
(iii) Review, or cause to be reviewed on an annual basis, those complaints that were received by the Defense Hotline staff and determined to be matters that did not warrant examination due to insufficient information, age of the allegation, nature of the complaint (i.e., personal grievance, suggestions, etc.), or because of the nonspecific nature of the allegation. The group shall also provide guidance to the staff based on the results of the review, as necessary.
(9) Direct that the applicable IG, DoD, element conduct an audit, inspection, or investigation of any allegation where it is determined that conduct of the inquiry by the involved agency or organization might result in a lack or perceived lack of objectivity or independence on the part of the examining officials. Coordination with the heads of the concerned DoD Components may be done before conducting the examination, if such action is considered appropriate.
(10) Ensure that any allegation made against a staff member of the IG, DoD, the Defense Hotline, or DoD personnel involved in conducting the audit, inspection, or investigative activity is examined in an impartial, independent, and objective manner.
(b) The Inspector General shall select, from nominees provided by the Assistant Inspectors General, the necessary professional and administrative personnel to staff the Defense Hotline. The staff shall:
(1) Operate the Defense Hotline, recording the pertinent information of those allegations received by telephone, mail, or other means of communication that appear to merit examination; and maintain statistical data on all contacts (letters, telephone calls, personal interviews) that are received by the Defense Hotline.
(2) Establish controls to provide maximum protection for the identity of all persons using the Defense Hotline.
(3) Establish and maintain the required procedural controls, files, and records necessary for tracking the allegations from receipt through the phases of examination, closeout, and storage.
(4) Obtain from the complainant the specific information necessary to ascertain the substance of each allegation and complete a Defense Hotline Record of Call (Appendix A) to record and document those allegations determined to have sufficient merit to warrant referral to the appropriate DoD Component for action or as information matters.
(5) Advise the IG, DoD, or Deputy IG, DoD, of serious allegations or significant trends disclosed while operating the Defense Hotline.
(6) Prepare a Defense Hotline Decision Memorandum (Appendix B) for each valid letter allegation received, and indicate on the memorandum to which DoD Component the allegation is to be referred for either action or information purposes. The memorandum shall be a means for tracking and maintaining control of the complaint. The staff shall also provide any comments and guidance considered pertinent to the conduct of the examination.
(7) Refer items preliminarily determined to be sensitive, controversial, or involving flag or general officers or DoD civilian officials of GS/GM-15 equivalent or higher grades to the Defense Hotline Advisory Group for review and determination by the examining agency. Refer all other allegations directly to the DoD Component concerned.
(8) Coordinate with the General Accounting Office (GAO) Hotline on Defense Hotline Program-related matters. They shall also process all DoD-related allegations that are received from the GAO Hotline in the same manner as Defense Hotline Program allegations, and advise the Defense Hotline Advisory Group of any problems encountered in performing this function.
(9) Promptly process and refer to the appropriate DoD Component those allegations that warrant inquiry, and expedite the processing and referral of those allegations that are time-sensitive. The referral of time-sensitive allegations by telephone is permitted when any delay might adversely affect the efforts of the examining officials.
(10) Review and analyze all interim and final reports of examination to ensure that all aspects of the Defense Hotline complaint were addressed fully, the examinations were conducted properly, and appropriate corrective or punitive measures were taken based on the examination findings.
(11) Notify the appropriate DoD Component Hotline coordinator, by written memorandum, of discrepancies noted in individual reports or apparent deficiencies in the related examination, so that the DoD Component may review and, if necessary, reconduct an audit, inspection, or investigation of the complaint and submit a revised or corrected closing report.
(12) Notify the Defense Hotline Advisory Group of any significant instance when a report of completed examination indicates that the work performed did not meet prescribed audit, inspection, or investigative standards, or was defective in depth, scope, independence, or some other respect, or any instance when examination verifies the complaint of wrongdoing and the DoD Component declines to initiate corrective or punitive measures.
(13) Evaluate all allegations of criminal activity that involve the OSD, the OJCS, or DoD Components and, when warranted, initiate investigation. Conduct investigations of any other allegations, as directed by the IG, DoD.
(14) Investigate or participate in the investigation of Defense Hotline allegations of criminal activity that involve more than one DoD Component or involve other special circumstances.
(15) Ensure that professionalism and organizational independence are observed at all times and that investigations of allegations are conducted impartially and objectively.
(16) Retain all Defense Hotline Program case files for at least 2 years after the Defense Hotline staff has closed the inquiry, then retire the files in accordance with the appropriate DoD administrative Directives and Instructions.
(17) Develop and implement a follow-up system to ensure that recommended administrative or judicial corrective measures, tendered by the examining officials, have been implemented by the responsible authorities. The system should reflect the results of criminal prosecutions, sentences imposed, monetary recoveries, and administrative and other actions taken. When it has been determined that such corrective action has not been taken by the proper authorities, the staff should initiate action to bring the matter to the attention of the next higher command organization.
(18) Inform Defense Hotline agency and organization Hotline coordinators of substantive allegations passed directly to the IG, DoD, for action, if appropriate.
(19) Maintain liaison and communication with DoD Component Hotline coordinators, other Government Agencies and organizations, and external investigative agencies.
(20) Prepare periodic summary analyses of all Defense Hotline operations, including regular reports to the IG, DoD, for each 6-month period ending on March 31 and September 30, and to the Deputy Inspector General for Program Planning, Review and Management for use in the DoD, Office of the Inspector General “Semiannual Report to the Congress.” Include in the semiannual report an accounting for all allegations received by the Defense Hotline office from all sources, and prepare them in accordance with the format required by DoD, Office of the Inspector General, “Semiannual Report to the Congress.”
(21) Maintain the widest dissemination of information concerning the Defense Hotline Program by using such mechanisms as news releases, items in internal publications (including telephone directories), official notices, posters, and other media. Develop educational material for use in encouraging DoD employees to report fraud and mismanagement in DoD programs and operations.
(c)
(1) Establish a single coordinator to manage, monitor, and report to the Defense Hotline the actions of audit, inspection, and investigative groups on allegations referred by the Defense Hotline to the DoD Component for action.
(2) Establish and implement operational procedures in accordance with the guidance in § 98.6.
(3) Have cognizant audit, inspection, and investigative organizations examine Defense Hotline complaints. The audit, inspection, and investigative organizations shall:
(i) Audit, inspect, or investigate Defense Hotline referrals in accordance with DoD standards and procedures, and under the implementing guidance of the concerned agency or organization. Examination of Defense Hotline allegations by the Military Departments shall be conducted using the regulatory procedures of the concerned Service element.
(ii) Maintain appropriate records to ensure accountability of all Defense Hotline referrals until final disposition of the case.
(iii) Establish the administrative and operational controls and procedures necessary to provide maximum protection for the identity of any Defense Hotline Program source who requests anonymity or confidentiality.
(iv) Ensure that professionalism and organizational independence are observed and that audits, inspections, and investigations are conducted in an impartial and objective manner.
(v) Promptly process all allegations that have been referred by the Defense Hotline for action and expedite the examination of allegations that are time-sensitive.
(vi) Process and examine all allegations that have been referred as “information” matters to determine if an inquiry is warranted. Report any action taken as the result of the referral as outlined in paragraph (c)(3)(vii) of this section.
(vii) Submit a final report of the results of the inquiry through the Component Hotline coordinator to the Defense Hotline within 90 days from the date the complaint was transmitted by the Hotline for action. The report shall conform with the format prescribed in the Defense Hotline Completion Report (Appendix D). When an examination cannot be completed in 90 days, submit a Defense Hotline Progress Report (Appendix C) to the Defense Hotline stating the reason for the delay and the expected date of submission of the final report.
(viii) Submit to the Defense Hotline a Defense Hotline Progress Report on each open case on the 6-month anniversary date of the beginning of the investigation, using the format in Appendix C.
(ix) Submit progress reports to the Defense Hotline on the status of all audit actions or criminal investigations that have been open 6 months or more as of March 31 and September 30 to facilitate semiannual reporting under Pub. L. 95-452. Submit the cited status information 15 calendar days before the end of the 6-month period.
(x) Provide information or documentation on pending or closed examinations to the IG, DoD.
(xi) Ensure that documentation contained in the official examination file fully supports the findings and conclusions reflected in the Defense Hotline Completion Report. As a minimum, the file shall contain a copy of the Hotline Completion Report and a memorandum that reflects the actions taken by the examining official to determine the findings, complete identity of all witnesses, the date and information related during the interview, and specific details and location of all documents reviewed. The extent of the file documentation shall be dictated by the type of examination conducted.
(xii) Retain all working papers and files for 2 years from the date the matter was formally closed by the Defense Hotline. At the end of the 2-year period, retire the files in accordance with the pertinent administrative procedures of the DoD Component.
(4) Cooperate with the auditors, inspectors, and investigators by granting immediate and unrestricted access—except as is provided for by section F. of
(5) Ensure, under reporting requirements outlined in paragraphs (c)(3) (vii), (viii), and (ix) that reports are promptly submitted to the referring audit, inspection, or investigative organization. Also, completion reports should reflect administrative, corrective, punitive, or other type action taken on cases referred to them for resolution.
(6) Maintain an active Defense Hotline publicity campaign, using local newspapers, official notices, posters, telephone directories, and other media. Implement education programs to encourage employees to identify and report fraud and mismanagement in DoD programs and operations.
(a) Methods for processing and controlling the receipt, examination, and reporting of all allegations referred to DoD Components for audit, inspection, and investigation through the Defense Hotline Program are addressed in this section and § 98.5 and include procedures to track, monitor, and follow up on allegations referred to the Defense Hotline, regardless of source. Sources of allegations include The White House, Members of Congress, the GAO Hotline, Office of Management and Budget (OMB), other executive agency hotlines, DoD staff activities, and individuals communicating directly with the IG, DoD.
(b) Necessary controls shall be established to provide maximum protection for the identity of users of the Defense Hotline. Individuals shall be ensured that they can report instances of fraud and mismanagement without fear of reprisal or unauthorized disclosure of identity, as provided in Pub. L. 95-452 and DoD Instruction 7050.3.
(c) All substantive allegations received by the Defense Hotline shall be examined. The examination shall normally be conducted by disinterested and qualified auditors, inspectors, or investigators. When necessary, DoD Components may use individuals or groups with other professional or technical skills to assist in conducting examinations under the direct supervision of the responsible audit, inspection, or investigative officials.
(d) The procedures used must ensure that due professional care and organizational independence are observed, and that examinations are impartial and objective. Allegations must be examined by officials independent of the specific unit, office, staff element, operation, etc., in which the complaint is alleged to have occurred.
(e) DoD Components shall encourage personnel to register complaints and grievances through appropriate management and grievance channels, and submit suggestions for management improvements through the proper DoD Incentive Awards Program. There shall be no requirement for any individual who makes complaints or provides information to the IG, DoD, Defense Hotline representatives to discuss such complaints or information with the individual's supervisor or the head of the activity. DoD Components shall encourage the reporting of suspected fraud and mismanagement to the Defense Hotline either through the toll-free 800-424-9098 commercial, FTS 202-693-5080, or AUTOVON 223-5080 telephone system or by mail to the Defense Hotline, The Pentagon, Washington, DC 20301-1900.
The reporting requirements in § 98.5 are exempt from formal approval and licensing under subsection VII.F. of enclosure 3 to DoD Directive 5000.19.
This part is effective March 20, 1987. The Military Departments shall forward two copies of implementing documents to the Inspector General, Department of Defense, within 60 days. This part is the implementing guidance for all other DoD Components.
Access to Criminal History Records for National Security Purposes, of The Intelligence Authorization Act for Fiscal Year 1986, Pub. L. No. 99-169, secs. 801-803, 99 Stat. 1002, 1008-1011 (1985) (codified in part at 5 U.S.C. 9101).
(a) The Department of Defense (DoD), Office of Personnel Management (OPM), or Central Intelligence Agency (CIA) has the right to criminal history information of States and local criminal justice agencies in order to determine whether a person may:
(1) Be eligible for access to classified information;
(2) Be assigned to sensitive national security duties; or
(3) Continue to be assigned to national security duties.
(b) This part sets out the conditions under which the DoD, OPM, or CIA may sign an agreement to indemnify and hold harmless a State or locality against claims for damages, costs, and other monetary loss caused by disclosure or use of criminal history record information by one of these agencies.
(c) The procedures set forth in this part do not apply to situations where a Federal agency seeks access to the criminal history records of another Federal agency.
(d) By law these provisions implementing 5 U.S.C. 9101 (b)(3) shall expire December 4, 1988, unless the duration of said section is extended or limited by Congress.
For the purposes of §§ 99.1 through 99.9 of this part:
As provided for under 5 U.S.C. 9101(b)(3), a State or locality may request an indemnification agreement.
(a) To be eligible for an indemnification agreement a State or locality must have had a law in effect on December 4, 1985 that prohibited or had the effect of prohibiting the disclosure of criminal history record information to the DoD, OPM, or CIA.
(b) A State or locality is also eligible for an indemnification agreement if it meets the conditions of paragraph (a) of this section, but nevertheless provided criminal history record information to the DoD, OPM, or CIA on or before December 4, 1985.
When requesting an indemnification agreement, the State or locality must notify each Federal agency as appropriate, at the address listed in the appendix to this part, of its eligibility of an indemnification agreement. It must also:
(a) Certify that on December 4, 1985, the State or locality had in effect a law which prohibited or had the effect of prohibiting the disclosure of criminal history record information to the DoD, OPM, or CIA; and
(b) Append to the request for an indemnification agreement a copy of such law.
The terms of the Uniform Federal Agency Indemnification Agreement (UFAIA), must conform to the following provisions:
(a)
(b)
(2) The indemnification agreement will not extend to any act or omission prior to the transmittal of the criminal history record information to the Federal agency.
(3) The indemnification agreement will not extend to any negligent acts on the part of the State or locality in compiling, transcribing or failing to delete or purge any of the information transmitted.
(c)
(1) The Federal agency when requesting criminal history record information from the State or locality for the release of such information will attest that it has obtained the written consent of the individual under investigation after advising him or her of the purposes for which that information is intended to be used.
(2) The Federal agency will attest that it has advised that individual of the right to access that information.
(d)
(e)
(2) The notice must be given to the Attorney General and to the U.S. Attorney of the district embracing the place wherein the claim is made.
(3) The Attorney General shall make all determinations regarding the settlement or defense of such claims.
10 U.S.C. 510, 511, 593, 597, or 651, and 32 U.S.C. 302.
This part is reissued to update DoD policy on actions to be taken in regard to members of the Ready Reserve whose performance of duty or participation in Reserve training is unsatisfactory; and provides greater flexibility to the Military Departments when dealing with unsatisfactory performance.
The provisions of this part apply to the Office of the Secretary of Defense and the Military Departments.
Persons who are enlisted or appointed in, or transferred to a Reserve component of the Armed Forces of the United States, under the provisions of 10 U.S.C. 510, 511, 593, 597, or 651 and 32 U.S.C. 302 are expected to participate and perform satisfactorily as members of the Ready Reserve to fulfill their obligation or service agreement. This policy is also in accordance with the standards prescribed by 32 CFR parts 102 and 101 and the Military Departments concerned.
The Secretaries of the Military Departments shall ensure that:
(a) Ready Reserve applicants understand their obligations for satisfactory participation in the Ready Reserve before their enlistment or appointment.
(b) Members of the Ready Reserve continue to understand their obligations for satisfactory participation in the Ready Reserve after their enlistment or appointment in accordance with 32 CFR part 44.
(a)
(i) Ordered to active duty,
(ii) Ordered to active duty for training,
(iii) Transferred to the Individual Ready Reserve (IRR) for the balance of their statutory military service obligation with a tentative characterization of service, normally under other than honorable conditions, when the Military Department concerned has determined that the individuals still possesses the potential for useful service under conditions of full mobilization; or
(iv) Discharged for unsatisfactory participation under the provisions of 32 CFR part 41, when the Military Department concerned has determined that the individual has
(2) Members of the Selected Reserve who have fulfilled their statutory military service obligation under 10 U.S.C. 651 or who did not incur such obligation,
(i) Transferred to the IRR for the balance of their current enlistment contract or service agreement with a tentative characterization of service, normally under other than honorable conditions, when the Military Department
(ii) Discharged for unsatisfactory performance under 32 CFR part 41 when the Military Department concerned has determined that the individual has no further potential for useful service under conditions of full mobilization.
(3) When a member of the Selected Reserve is identified as an unsatisfactory participant and considered a possible candidate for involuntary transfer to the IRR or for discharge, a board of officers shall be convened, as required by 10 U.S.C. 1163 to consider the circumstances and recommend appropriate action.
(4) When an individual is transferred to the IRR as a result of an approved board recommendation, no further board action shall be required before discharge if the individual fails to take affirmative action in an effort to upgrade the tentative characterization of service.
(5) Members of the IRR who have not fulfilled their statutory military service obligation under 10 U.S.C. 651 were enlisted or appointed under any program that provided that the obligation could be fulfilled by service in the IRR only, and whose participation in such a program has not been satisfactory
(i) Retained in the IRR for the duration of their statutory military service obligation with a tentative characterization of service, normally under other than honorable conditions, when the Military Department concerned has determined that the individual still possesses the potential for useful service under conditions of full mobilization; or
(ii) Discharged for unsatisfactory performance under 32 CFR part 41, when the Military Department concerned has determined that the individual has no potential for useful service under conditions of full mobilization.
(6) When a member of the IRR, whose enlistment or appointment provided that the service concerned could be performed entirely in the IRR (as opposed to the Selected Reserve), is identified as an unsatisfactory participant, a board of officers shall be convened as required by 10 U.S.C. 1163 to consider the circumstances and recommend appropriate action. When an individual is retained as a result of an approved board action, no further board action shall be required before discharge if the individual fails to take affirmative action in an effort to upgrade the tentative characterization of service.
(7) Individuals assigned to the Selected Reserve who are ordered to active duty under 10 U.S.C. 673a or to active duty for training under the provisions of 10 U.S.C. 270 may be returned to their previous unit of assignment or transferred to the IRR upon the completion of the active duty or active duty for training. When necessary, the individual's term of enlistment or service agreement may be extended to permit completion of the designated period of active duty or active duty for training in accordance with 10 U.S.C. 270(b) and 673(b).
(8) Individuals who are transferred or assigned to the IRR who have a tentative characterization of service of less than honorable because of unsatisfactory participation in the Ready Reserve shall be discharged at the end of their statutory military service obligation or their period of enlistment or service agreement, whichever is later with such characterization
(9) When members of the Selected Reserve are ordered to active duty, active duty for training, or transferred to the IRR because of unsatisfactory participation, copies of their orders should be furnished to the individuals through personal contact by a member of the command and a written acknowledgment of receipt obtained. When such
(i) Orders mailed to such members shall be sent by Certified Mail (Return Receipt Requested), and a Receipt for Certified Mail (PS Form 3800) obtained. In addition, the individual who mails the orders shall prepare a Sworn Affidavit of Service by Mail (format at enclosure) that shall be inserted, together with the PS Form 3800, in the member's personnel file.
(ii) Notification shall be made through the mailing of orders to the member's most recent mailing address.
(iii) Provided the orders were properly mailed to the most recent address furnished by the member, absence of proof of delivery does not change the fact that the member was properly ordered to report for active duty, active duty for training, or transferred to the IRR, as appropriate.
(iv) Individuals ordered to active duty who fail to report shall have their names entered into the National Crime Information Center of the Federal Bureau of Investigation within 30 days following their reporting date and appropriate screening by the Deserter Information Point concerned.
(10) Orders affecting members of the IRR that involve active duty for training required by the terms of their enlistment or service agreement may be handled by mail in the manner prescribed in paragraph (a)(9)(i) of this section.
(11) Each member of the IRR must keep the organization of assignment informed of:
(i) His/her accurate and current mailing address;
(ii) Any change of address, marital status, number of dependents, and civilian employment; and
(iii) Any change in physical condition that would prevent the member from meeting the physical or mental standards prescribed by 10 U.S.C. 652 and part 44 of this title.
(12) Individuals involuntarily ordered to active duty or active duty for training under provisions of this part may be delayed as prescribed by the Secretary of the Military Department concerned.
(13) Individuals whose involuntary order to active duty would result in extreme community or personal hardship may, upon their request, be transferred to the Standby Reserve, the Retired Reserve, or discharged, as appropriate, in accordance with 10 U.S.C. 673a(c) and part 44 of this title.
(b)
(1) Members of the Selected Reserve who are unable to participate in a unit of the Selected Reserve by reason of an action taken by the Military Department concerned, such as unit inactivation or relocation, to the effect that they now reside beyond a reasonable commuting distance (as defined in § 100.6(e)) of a Reserve unit, shall be assigned to the IRR until they are able to join or be assigned to another unit, or complete their statutory military service obligation.
(2) Members of the Selected Reserve who change their residence:
(i) May lose their unit position. However, they will be transferred to another paid-drill unit with the same Reserve component if possible or be given 90 days after departing from their original unit to locate and join another unit. At the new unit, they will fill an existing vacancy or be assigned as a temporary overstrength within the congressionally authorized standard-years (defined in § 100.6(f)) or funds under paragraph (b)(2)(iii) (A) and (B) of this section.
(ii) May locate position vacancies that require different specialties than the ones they now possess. Therefore, the Secretary of the Military Department concerned may provide for the retaining of these individuals (with their consent) by ordering them to active duty for training to acquire the necessary specialties.
(iii) Must be accepted in a Reserve unit by their parent Military Department regardless of vacancies, subject to the following conditions:
(A) The losing unit certifies that the reservist's performance of service has been satisfactory.
(B) The reservist's specialty is usable in the unit, the member can be retrained by on-the-job training, or the
(iv) Are authorized to transfer to another Reserve component under the provisions of DoD Directive 1205.51, “Transfer of Persons Between Reserve Components of the Armed Forces,” June 25, 1959, when the conditions outlined in paragraph (b)(2)(iii) apply.
(3) If members of the Selected Reserve who change their residents fail to join another unit within a period of 90 days, and at least 1 unit of their component is within a reasonable commuting distance, as such distance is defined in § 100.6(e) they shall be processed in accordance with § 100.5(a) unless they are considered eligible to be handled as “exceptions” under policies outlined in paragraph (b) (5) through (8) of this section.
(4) If members of the Selected Reserve who change their residences locate in an area where they reside beyond a reasonable commuting distance, as such distance is defined in § 100.6(e) of a paid-drill unit of the same Reserve component, they shall be assigned to the IRR of their service until they are able to transfer to a paid-drill unit of another Reserve component; or complete their statutory military service obligation.
(5) Members of the Ready Reserve who are preparing for, or are engaged in, critical civilian occupations will be screened in accordance with 32 CFR part 44.
(6) Individuals who are preparing for the ministry in a recognized theological or divinity school may participate voluntarily in the Ready Reserve. However, under 10 U.S.C. 685, such individuals may not be required to do so. Members who do not wish to participate shall be transferred to the Standby Reserve. If such training is terminated before graduation, the member may be transferred back to the Ready Reserve. A member eligible for assignment to the Standby Reserve under the provisions of 10 U.S.C. 268(b), 270, 510, 511, 593, 597, 651, 652, 672, 673, 673a, 673b, 685, and 1163 who voluntarily remains assigned to the Selected Reserve and participates in the training required, waives any right to request delay to exemption from any later mobilization on the basis of preparation for the ministry.
(7) Individuals who are enrolled in a course of graduate study in one of the health professions shall be screened in accordance with DoD Directive 1200.141, “Reservists Who Are Engaged in Graduate Study or Training in Certain Health Progressions,” July 30, 1969.
(8) Individuals who incur a bona fide, temporary nonmilitary obligation requiring overseas residency outside the United States, or religious missionary obligation shall be processed in accordance with 32 CFR art 103.
(9) Nothing in this part shall be construed as limiting the right of the individual to voluntarily request transfer to the Standby Reserve or to the Retired Reserve, or discharge from the Reserve components when such action is authorized by regulations of the Military Department concerned.
(10) Nothing in this part shall be construed as precluding action against a member of the Ready Reserve, either by court-martial or review by a board of officers convened by an authority designated by the Secretary of the Military Department concerned, when such action might otherwise be warranted under 10 U.S.C. 268(b), 270, 510, 511, 593, 597, 651, 652, 672, 673, 673a, 673b, 685, and 1163 and the regulations of the Military Department concerned.
(a)
(b)
(1) Participating in annual active duty for training and not paid for attendance at regular drills (pay categories D and E), or awaiting, in a nonpay status, their initial active duty for training (pay category L).
(2) Enrolled in officer training program (pay category J) members of the Individual Ready Reserve pool (pay category H), and reservists on extended active duty. (See 10 U.S.C. 268(b) 32 CFR part 102.)
(3) Members of the Inactive Army National Guard.
(c)
(d)
(e)
(1) A 100-mile radius of the drill site that does not exceed a distance that can be traveled by automobile under average conditions of traffic, weather, and roads within 3 hours. This applies only to those units that normally conduct four drills on 2 consecutive days during the training year, if Government meals and quarters are provided at the base where the unit drills. (The provisions of this paragraph shall apply only to those individuals enlisting, reenlisting, or extending their enlistments after November 1, 1972.)
(2) A 50-mile radius of the drill site that does not exceed a distance that can be traveled by automobile under average conditions of traffic, weather, and roads within a period of 1
(f)
(g)
I am the
10 U.S.C. 270 (a), (b), (c), 511 (b), (d), and 673a, and 32 U.S.C. 502(a).
This part establishes: (a) The criteria and training requirements for satisfactory participation by members of the Reserve components of the U.S. Armed Forces who are subject to the provisions of 10 U.S.C. and 32 U.S.C., and (b) uniform DoD policy for training members of such Reserve components who may be temporarily residing in sovereign foreign nations.
The provisions of this part apply to the Office of the Secretary of Defense and the Military Departments.
For the purposes of administering 10 U.S.C. 270(a), the terms
The Secretaries of the Military Departments will issue regulations prescribing criteria and training requirements for satisfactory participation in Reserve training programs by members of Reserve components of the U.S. Armed Forces and exceptions thereto, consistent with § 101.5.
(a)
(A) In at least 48 scheduled drills or training periods and not less than 14 days (exclusive of travel time) of active duty training during each year; or
(B) On active duty for training for no more than 30 days each year, unless otherwise specifically prescribed by the Secretary of Defense.
(ii) The provisions of § 101.5(a)(1) do not apply to graduates of the Federal and State Maritime Academies who are commissioned in the Naval Reserve.
(2)
(i) Assemble for drill and instruction at least 48 times a year, and
(ii) Participate in training encampments, maneuvers, or other exercises at least 15 days a year, unless excused by the Secretaries of the Army or Air Force.
(3)
(i) Enlisted under the provisions of 10 U.S.C. 511(b) or (d) thereby incurring a statutory obligation to participate in the Ready Reserve in an active training status for a specified period of time after the 2 years of active duty described above.
(ii) Performed part or all of their 2 years of active duty as a result of being ordered to active duty under 10 U.S.C. 673a for not participating satisfactorily in a unit of the Ready Reserve. However, the Secretary concerned, or designee, may waive this requirement in those cases where involuntary retention would not be in the best interest of the Service.
(iii) Filled a vacancy in the Selected Reserve that otherwise cannot be filled, following a diligent recruiting effort by the Secretary concerned.
(iv) Executed a separate written agreement incurring an obligation to participate in the Selected Reserve.
(4)
(ii) Members, who enlisted under the provisions of 10 U.S.C. 511(b) or (d) and serve on active duty described in paragraph (a)(4)(i) are obligated to participate in the Ready Reserve in an active duty training status during the statutory period of service in the Ready Reserve.
(5)
Within the general policy outlined in § 101.5(a), the minimum amount of annual training prescribed by the Secretaries of the Military Departments concerned will be no less than the training required to maintain the proficiency of the unit and the skill of the individual. In establishing annual training requirements under this policy, the Secretaries:
(a) May grant exceptions under circumstances outlined below for individuals who are subject to the training requirements set forth in § 101.5(a)(1) and (2):
(1) To the degree that it is consistent with military requirements, the personal circumstances of an individual may be considered in assigning him/her to a training category prescribed in 32 CFR part 102, except as otherwise provided by 32 CFR part 100.
(2) Members who have performed a minimum initial tour of extended active duty, as prescribed by the Military Departments concerned may be placed in Category I (no training) as defined in 32 CFR part 102, when the Secretary of the Military Department concerned determines that no training for mobilization requirement exists because of
(i) Changes in military skills required;
(ii) The degree of military skill held; or
(iii) Compatibility of the member's civilian occupation with his/her military skill.
(b) May grant exceptions regarding absences after considering the member's manner of performance of prescribed training duty under the provisions of § 101.5(a)(1) and provided that the absences not so excepted do not exceed 10% of scheduled drills or training periods.
(c) Shall require members to: (1) Meet the standards of satisfactory performance of training duty set forth in § 101.6(b); or (2) participate satisfactorily in an officer training program. The placement of such members in the Standby Reserve as a result of the screening process prescribed in 32 CFR part 44, will continue to constitute satisfactory performance of service.
Under the provisions of 32 CFR part 100, members of the Ready Reserve who fail to meet the criteria for satisfactory performance, as set forth in § 101.6, may be:
(a) Ordered to active duty; or
(b) Ordered to active duty for training; or
(c) Transferred to, or retained in the Individual Ready Reserve with a tentative characterization of service, normally under other than honorable conditions; or
(d) Discharged for unsatisfactory participation under the provisions of 32 CFR part 41, when the Military Department concerned has determined that the individual has no potential for useful service under conditions of full mobilization.
(a) The Secretaries of the Military Departments may authorize the conduct of scheduled drills or training periods, correspondence courses, and such other active or inactive duty training as they consider appropriate for members of the Reserve components who may be temporarily residing in sovereign foreign nations which permit the United States to maintain troops of the Active Forces (other than Military Advisory Assistance Group or attached personnel) within their boundaries.
(b) Prior to authorizing such training, the Secretaries of the Military Departments will instruct the attaches representing their respective Departments to inform the U.S. Ambassador and the appropriate officials of the foreign government of the intent to conduct such training. If the foreign government objects, the Secretaries of the Military Departments will furnish all the facts and their recommendations to the Secretary of Defense.
(c) This policy does not prohibit the conduct of inactive duty training, such as correspondence courses, in those sovereign foreign countries in which the United States does not maintain Active Forces and where an agreement exists between the United States and the sovereign foreign nation concerned for the conduct of such training.
(d) This policy does not prohibit for a limited duration the augmentation of Defense Attache Offices by attache reservists (mobilization augmentees or mobilization designees) during periods of local emergencies or for short-term (less than 30 days) training periods, provided the provisions of paragraph (b) of this section are respected. Attache reservists who are available, possess the expertise required, and reside temporarily in foreign countries, shall be utilized to the maximum extent to augment Defense Attache Offices before the continental United States-based attache reservists are utilized.
10 U.S.C. 136.
This revises 32 CFR part 102 to:
(a) Update DoD policy and assign responsibilities for implementing recent changes in law.
(b) Establish DoD policy guidance for maintaining and reporting personnel data in accordance with (IAW) DoD Directive 1205.17
(c) Designate uniform Reserve component (RC) categories (RCCs) and training and retired categories (TRCs) for the Ready Reserve, Standby Reserve, and Retired Reserve of the Armed Forces under 10 U.S.C. 268, 270, 271, 273, 274, 1376, 2001, and 6017.
(d) Establish minimal training criteria for each category of the RCs.
(e) Provide DoD uniform planning policies and procedures on training.
(f) Establish DoD Policy guidance for participation in Selective Service System (SSS) activities, civil defense activities, and continental United States (CONUS) Defense programs by members of the Ready and Standby Reserve.
This part applies to the Office of the Secretary of Defense (OSD); the Military Departments and their Reserve components (RCs); the Chairman, Joint Chiefs of Staff and Joint Staff; the U.S. Coast Guard (USCG) and its Reserve Component (RC) with the concurrence of the Department of Transportation (DoT); and the Defense Agencies (hereafter referred to collectively as “DoD Components”).
Uniform Reserve, training and retirement categories used in this part are defined in appendix A to this part. Other terms used in this part are defined in appendices B and C to this part.
It is DoD policy to:
(a)
(b)
(1) Place all RC members in an RCC and TRC IAW the uniform Reserve, training and retirement categories described in appendices A and D of this part. Individuals shall be assigned to RCCs and TRCs based on their mobilization obligations and training requirements.
(2) Ensure that all RC members receive training IAW mobilization assignments and required readiness levels. All members of the Ready Reserve, except members of the Army National Guard (ARNG) of the United States and the Air National Guard (ANG) of the United States, may be required to serve on AD training (ADT) up to 30 days a year (section 270(a)(2) of title 10, U.S.C.) There is no statutory maximum annual limit on required training for members of the National Guard. Training for the Individual Ready Reserve (IRR), Standby Reserve, and Retired Reserve may be accomplished voluntarily IAW DoD procedures in § 102.6.
(3) Approve any additional inactive duty training (IDT), as necessary and consistent with law. Authorizing and utilizing additional training is subject to the categories, limitations, and controls in § 102.4(c).
(c)
(2) Paid IDT periods shall not be less than 4 hours. No more than two IDT periods may be performed in any calendar day. Service Secretaries shall prescribe minimum standards for IDT, IAW 37 U.S.C. 206.
(3) IDT periods for points only (without pay) shall not be less than 2-hours duration with a maximum of two points authorized in any 1 calendar day (one point in any 1 calendar day for attendance at professional or trade conventions) (DoD Instruction 1215.7.
(4) Where practical, multiple IDT periods (MIDTPs) shall be used to maximize training effectiveness.
(d)
(1) Those training periods are intended for the principal use of non-technician drilling Reservists. The RC shall identify additional IDT periods separately from normal unit or individual training periods in budget documents and in internal records so that training period costs and training support costs for each type of additional
(2) Three categories of additional IDT periods are, as follows:
(i) Additional training periods (ATPs) for units, subunits, and individuals are for accomplishing additional required training, as defined by a unit's postmobilization mission. The number of those training periods shall not exceed 12 each fiscal year (FY) for any member.
(ii) Additional flying and flight training periods (AFTPs) are authorized for primary aircrew members for conducting aircrew training and combat crew qualification training to attain and maintain aircrew flying proficiency and sustain mobilization readiness. AFTPs shall not be in addition to the ATPs in paragraph (d)(2)(i) of this section. The number of those training periods shall not exceed 48 each FY for any aircrew member, unless specifically authorized by the Secretary concerned.
(iii) Readiness management periods (RMPs) are used to support the ongoing day-to-day operation of the unit, accomplishing unit administration, training preparation, support activities, and maintenance functions. The number of RMPs shall not exceed 24 each FY for any member. Those training periods shall be used only where sufficient full-time support (FTS) personnel are not available to accomplish those duties. RMPs shall not be performed on the same day another training period (IDT, ATP, or AFTP) is being performed and not more than one RMP shall be performed by an individual in 1 calendar day.
(3) Notwithstanding the limitations in paragraphs (d)(2)(i) and (d)(2)(iii) of this section, the Service Secretary may authorize ATPs or RMPs in excess of those specified on an exception basis. Exception shall be strictly limited to specific skills and missions requiring training in excess of that authorized in paragraphs (d)(2)(i) and (d)(2)(iii) of this section. In no case shall ATPs or RMPs exceed 30 each year for each person. Those training periods shall not be used for augmenting missions or functions, but must provide bona fide training opportunities required to meet readiness levels. That authority may not be delegated below the Service Secretary.
(e)
(1) Initial AD training (IADT), which includes basic military training and technical skill training, is required for all enlisted accessions. For nonprior service (NPS) male enlistees who are between the ages of 18
(2) AT may be required for all members of the Ready Reserve. By DoD policy, members of the Selected Reserve shall perform AT. For all members of Selected Reserve units, except for those in the National Guard, that training shall be for not less than 14 days (exclusive of travel time) each year (10 U.S.C. 270(a)(1)). National
(3) ADT is authorized to provide for full-time attendance at organized and planned specialized skill training, flight training, combat crew training, unit conversion training, refresher and proficiency training, officer acquisition training, professional development education programs, etc., for providing RC members with necessary skills and disciplines supporting RC missions. Authorized ADT must provide a primary training content to the recipient. Authorization for ADT shall be managed IAW DoD Directives established by the Secretaries concerned. Nontechnician personnel shall receive priority consideration for such training.
(4) AD for special work (ADSW) is authorized for personnel from applicable military or Reserve personnel appropriations for projects supporting active or RC programs, such as annual screening, operation of training camps, training ships, and unit conversions to new weapons systems, when such duties are essential to the organization. Projects supporting study groups, training site and exercises, short-term mission projects, and administrative support functions also are included. Authorization of ADSW shall be managed IAW DoD Directives established by the Secretary concerned. ADSW tours exceeding 180 days are accountable against AD strengths (regular, or RC AD end strengths, consistent with pay appropriations) IAW 10 U.S.C. 115(b)(1)(B). By DoD policy, those tours normally are limited to 139 days, or less, in 1 FY. Exceptions to the 139-day limit may be granted on an individual basis for specific mission requirements. Nontechnician personnel shall receive priority consideration for those tours. Short breaks in tours; i.e., 30 days or less, to circumvent that requirement, are not authorized.
(5) AD, other than for training or ADSW, including full-time National Guard duty, is authorized in support of RC missions, under 10 U.S.C. 265, 672(d), 678, 715, 3019, 3033, 3496, 8019, 8033, and 8496 and 32 U.S.C. 708. Personnel performing such duty are included in the FTS numbers for each RC under the collective title of Active Guard or Reserve (AGR), including Navy training and administration of Reserves (TARs) and all statutory tour personnel.
(f)
(2) In cases where a total of more than 1 day is required to meet the annual screening requirement, or in other specific circumstances approved under regulations issued by the Secretary concerned, ADT may be used instead of MD.
(g)
(h)
(a) The Assistant Secretary of Defense (Reserve Affairs) (ASD(RA)) shall:
(1) Establish DoD policy and provide guidance for RC training and retirement categories.
(2) Establish policy guidance for the minimal training criteria and the AD requirements associated with each category.
(b) The Secretaries of the Military Departments and the Commandant of the United States Coast Guard (USCG) shall:
(1) Place all RC members in a RCC and TRC IAW criteria established in appendices A and D of this part.
(2) Ensure that plans and policies for the management of RCCs are consistent with this part.
(3) Ensure that RC members receive training and serve on AD IAW the minimum criteria established for each RCC in § 102.4(c).
(a)
(2)
(i) AT tours for individual mobilization augmentees (IMAs) or other Reservists assigned as an individual to any training categories ordered to AT at Headquarters, support organizations, or to activities not operating on Saturday, Sunday, or Federal holidays, normally are limited by DoD policy to 12 days excluding travel time; i.e., from Monday of the first week through Friday of the second week.
(ii) When required, members may be ordered to AT for longer periods than 12 days (excluding travel time), up to a maximum of 30 days each FY, for activities that enhance readiness, such as participating in mobilization exercises. Training may begin on days other than Monday, when special activities begin during the week.
(iii) AT normally is performed during one consecutive period. Split tours may be authorized for selected units or individuals, if required to meet training missions. Any additional costs must be justified fully. Authorization for variations in AT lengths shall be managed IAW DoD Directives established by the Secretaries concerned.
(3)
(i) AD service performed under 10 U.S.C. 672(d), 673, 673b, 3500, or 8500 is equivalent to the training that might have been performed under the authority of 10 U.S.C. 270 and paragraph (a)(2) of this section.
(ii) AD service under 10 U.S.C. 672(d), 673, 673b, 3500, or 8500, when combined with training required by 10 U.S.C. 270 and paragraph (a)(2) of this section constitutes an undue personal hardship.
(4)
(ii) The Secretaries concerned may require members enlisted for service in the Selected Reserve to participate in IDT periods before completing IADT. Those training periods may be with or without pay.
(iii) IADT, which includes basic military training and technical skill training, is required for all enlisted accessions. For NPS male enlistees who are between ages of 18
(iv) Individual Reservists are exempt from participating in AT or ADT during the last 120 days before completing their Military Service obligation (MSO) if they have served on AD for 1 year, or longer. (See 10 U.S.C. 270(a)).
(b)
(2)
(c)
(1)
(i) Personnel who have not fulfilled their statutory MSO.
(ii) Personnel temporarily assigned for hardship, or other cogent reason, who intend returning to the Ready Reserve.
(iii) Personnel retained in an active RC status under 10 U.S.C. 1006.
(iv) Members transferred from the Ready Reserve to the Standby Reserve, after being designated as “key personnel” by their employers, may volunteer for assignment to the Standby Reserve Active Status List for the period they remain designated as key personnel. Individuals desiring to be transferred shall apply directly to the RC concerned.
(2)
(i) Members transferred to the Inactive Status List instead of separating IAW 10 U.S.C. 1209.
(ii) All other members transferred to the Inactive Status List IAW DoD Directive 1235.9. Personnel enrolled in a military school course, including correspondence courses, when transferred from the Ready Reserve to the Standby Reserve Inactive Status List may continue voluntarily participating in the course until completion. Those personnel shall not be entitled to pay and allowances, travel and transportation, or
(d)
(1) Reserve members in receipt of retired pay under 10 U.S.C. chapter 67.
(2) Reserve members who have transferred to the Retired Reserve after completing 20 qualifying years creditable for retired pay under 10 U.S.C. chapter 67, but who are not yet 60 years of age, or are age 60 and have not applied for retired pay.
(3) Reserve members retired for physical disability under 10 U.S.C. 1201, 1202, 1204, or 1205. Members have completed 20 years of Military Service creditable for retired pay, under 10 U.S.C. chapter 67 or are more than 30-percent disabled.
(4) Reserve officers and enlisted members who have retired after completion of 20, or more, years of active Military Service. That does not include Regular enlisted members of the Army, the Navy, the Air Force, or the Marine Corps, with 20 to 30 years of Military Service who are assigned to the Retired Reserve or transferred to the Fleet Reserve (Navy) or the Fleet Marine Corps Reserve.
(5) Reserve personnel drawing retired pay based on retirement for reasons other than age, Service requirements, or physical disability. That category is restricted to those who are retired under special conditions, as authorized by the ASD(RA) under legislation.
(e)
(f)
There are three RCCs. They are the Ready Reserve, The Standby Reserve, and the Retired Reserve. Each member of the National Guard and Reserve is assigned within one of those categories. (All National Guard members, including those in the Inactive National Guard (ING), are in the Ready Reserve.)
The Ready Reserve is comprised of military members of the Reserve and National Guard, organized in units or as individuals, and liable for order to AD in time of war or national emergency under 10 U.S.C. 672 and 673 (reference (d)). The Ready Reserve consists of three subcategories: the Selected Reserve, the IRR, and the ING.
1.
a.
(1)
(2)
(b)
(c)
(d)
b.
c.
(1)
(2)
(3)
(a)
(b)
(4)
(5)
(6)
2.
a. IRR is a manpower pool comprised principally of individuals having had training, having served previously in the AC or in the Selected Reserve, and having some period of their MSO remaining. There are some voluntary individuals in the IRR for hardship or special nonpay programs providing a variety of professional assignments and opportunities for earning retirement points and military benefits. Those personnel all have an obligation to complete either MSO or another contractual commitment. Members voluntarily may participate in training for retirement points and promotion with or without pay. IRR members may be (but are not presently) required to meet the same training requirements as Selected Reservists. Required training (involuntary) may not exceed 30 days a year under 10 U.S.C. 270(a)(2).
b. The IRR also includes some personnel participating in officer training programs or in the AFHP Stipend Program. Members in
c. The IRR also includes members of the Delayed Entry Program (DEP) enlisted under 10 U.S.C. 513. (Currently, there is no requirement to account for those untrained members of the IRR in the RCCPDS.)
d. The ING consists of National Guard personnel in an inactive status in the Ready Reserve, not in the Selected Reserve, attached to a specific National Guard unit. To remain ING members, members must muster once a year with their assigned unit, but they do not participate in training activities. On mobilization, ING members mobilize with their units. Similar to other IRR, some ING members have legal and contractual obiligations. ING members may not train for points or pay and are not eligible for promotion. Currently, the ING category is used only by the ARNG and has the RCC and TRC designator of “II”.
The Standby Reserve consists of personnel maintaining their military affiliation without being in the Ready Reserve, having been designated key civilian employees, or who have a temporary hardship or disability. Those individuals are not required to perform training and are not part of units. The Standby Reserve is a pool of trained individuals who may be mobilized as needed to fill manpower needs in specific skills. The Standby Reserve consists of the following training categories:
1.
a. Members designated as key employees IAW DoD Directive 1200.7,
b. Personnel not having fulfilled their statutory MSO, or temporarily assigned for hardship reason intending to return to the Ready Reserve, or retained by an RC in an active status under 10 U.S.C. 1006. Those members may participate voluntarily with or without pay and may receive credit for, and be considered for, promotion. They have the RCC and TRC designator of “YD.”
2.
a. Members transferred to the Standby Reserve Inactive Status List under 10 U.S.C. 1209 instead of separating. They have the RCC TRC designator of “YL.”
b. All other members transferred to the Standby Reserve Inactive Status List IAW DoD Directive 1235.9. They have the RCC TRC designator of “YN.”
1. Consists of all personnel transferred to the Retired Reserve. Retired Reservists voluntarily may train, with or without pay, with a unit where they have premobilization orders. Suitable arrangements with the unit are required. The Retired Reserve consists of the following retired categories:
a. Reserve members who have completed 20 qualifying years creditable for retired pay and are in receipt of retired pay (at, or after, age 60) under 10 U.S.C. chapter 67. Those members shall be assigned the RCC and TRC designator of “V1.”
b. Reserve members who have completed 20 qualifying years creditable for retired pay and are not yet 60 years of age, or are age 60 and have not applied for retirement pay. Those members shall be assigned the RCC and TRC designator of “V2.”
c. Reserve members retired for physical disability under 10 U.S.C. 1201, 1202, 1204, or 1205. Members have completed 20 years of service creditable for retired pay or are more than 30-percent disabled. Those members shall be assigned the RCC and TRC designator of “V3.”
d. Reserve enlisted members who have completed 20, or more, years of active service and are receiving retired or retainer pay. Regular enlisted personnel of the Army, the Navy, the Air Force, and the Marine Corps with 20 to 30 years of active Military Service who are transferred to the Reserve or the Fleet Naval Reserve on retirement until they have completed 30 years of total active and retired or retainer service, are NOT included in that category. That includes Regular (but not Reserve) Navy and Marine Corps retirees who are transferred to the Fleet Reserve and the Fleet Mairne Corps Reserve, respectively. Those personnel shall be assigned the RCC and TRC designator of “V4”.
e. Reserve personnel drawing retired pay under other than age, service requirements, or physical disability. That category is restricted for retirement under special conditions, as authorized by the Office of the ASD(RA) (OASD(RA)) under legislation. Those personnel shall be assigned the RCC and TRC designator of “V5.”
2. All members retired having completed at least 20 years of active service (Regular or Reserve), regardless of the retired list where assigned, may be ordered to AD when required by the Secretary of the Military Department concerned, IAW 10 U.S.C. 688.
3. Retired Reserve members may be ordered to AD in their status as Retired Reserve members. It is not necessary to place the member in the Ready Reserve for that purpose.
4. Former members having completed 20 satisfactory years service creditable for retirement, but electing to be discharged from the RCs, are not a part of the Retired Reserve nor Military Service members.
The SSS administers the Military Selective Service Act (MSSA), which authorizes the Director of Selective Service, by delegation from the President, “* * * to order to active duty with their consent and to assign to the Selective Service System such officers of the selective-service section of the State headquarters and headquarters detachments and such other officers of the federally recognized National Guard of the United States or other armed forces personnel (including personnel of the reserve components thereof), as may be necessary for the administration of the national and of the several State headquarters of the Selective Service System.”
1.
2.
1. The U.S. civil defense and CONUS defense program are an integral part of U.S. national security. Support of civil defense may be provided through RC members participating with Federal, State, and local civil agencies only when clearly furthering specifically identifiable DoD interest. Participation shall be in an IDT or ADT status and on a reimbursable basis, except when the primary basis for participating is to meet a DoD program requirement. Subject to priorities and guidance in DoD Directive 3025.10,
2. Programs involving RC members in civil defense activities directly supporting the FEMA or State and local government under a FEMA program must be approved jointly by the FEMA and the Department of Defense. Assigning members in an AD (other than for training) status supporting of civil defense outside the Department of Defense must be approved IAW DoD Directive 1000.17. The following programs are approved for such participation:
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b.
c.
d.
e.
3. Members of the IRR and Standby Reserve Active Status List, voluntarily participating in approved civil defense activities, may receive retirement points IAW DoD Instruction 1215.7.
4. IRR members participating in civil defense activities may request ADT to attend civil defense courses. If so ordered, those Reservists shall be entitled to pay and allowance including travel allowances for such training.
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a. The ARNG of the United States.
b. The USAR.
c. The U.S Naval Reserve (USNR).
d. The U.S. Marine Corps Reserve (USMCR).
e. The ANG of the United States.
f. The U.S. Air Force Reserve (USAFR).
g. The U.S. Coast Guard Reserve (USCGR).
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This part provides standards, procedures, and priority guidelines for enlistment, assignment or appointment of individuals in units of the Reserve Components of the Military Departments.
(a) Physical and mental standards for male personnel enlisted in the basic enlistment pay grade will not be higher than those prescribed by the Military Selective Service Act of 1967, or DOD Directive 1145.1, “Qualitative Distribution of Military Manpower,” September 13, 1967,
(b) The appropriate Secretary shall, except as otherwise provided by law, prescribe physical, mental, moral, academic attainment, professional and age qualifications for appointment of reserve members of the Armed Forces of the United States.
(c) The enlistment of individuals under the provisions of section 511(a) or 511(d) of title 10 U.S. Code, and the assignment of applicants to units of the Ready Reserve shall normally be in accordance with the order of priorities listed below. Applicants in categories (1) through (6) may be enlisted without regard to their date of application. Nonprior service applicants in category (7) who are accepted on reserve unit enlistment waiting lists will be retained in their original priority. However, exceptions to these policies may be made when, in the best judgment of those responsible for the procurement of reserve personnel, an applicant's prior military service or significant civilian training or experience in the occupational skill concerned is considered to warrant it. In such cases, notation as to the basis of the exception shall be made in the individual's service record.
(1) Members of the Selected Reserve who desire to reenlist.
(2) Members of Selected Reserve units applying for transfer from another locality.
(3) Members of the Selected Reserve who were relieved from assignment to units due to reorganization, inactivation, or relocation of their units.
(4) Members of the Ready Reserve Pool.
(5) Prior service applicants.
(6) Nonprior service individuals who have not undergone random selection for induction (includes all qualified female nonprior service applicants), or who have undergone random selection for induction and have passed through their full year of vulnerability without induction.
(7) Nonprior service individuals who have undergone random selection for induction but have not yet passed through their full year of vulnerability.
(d) In conjunction with the policies in paragraph (c) of this section, the Secretaries of the Military Departments will require their Reserve Components to actively recruit qualified individuals of all races, creeds, and ethnic groups toward the end that all units shall generally reflect the character of the population in the unit's recruiting area.
(e) Prior to enlisting a draft-liable individual in one of the Reserve Components, the applicant shall be required to sign a written statement to the effect that he has not received orders to report for induction, that any subsequent receipt of such orders will be reported to his unit commander, and that he understands he is subject to an induction order if issued before he enlists.
(1) An individual who enlists in a Reserve Component and who subsequently receives orders to report for induction, the issuing date of which precedes his date of enlistment, shall be discharged from his Reserve Component for the purpose of induction into the Armed Forces.
(2) The discharge should be effected concurrently with the induction so as to continue the individual's military obligation consistent with § 50.2(d) of this title.
(3) The date of issuance of orders to report for induction shall be considered to be the date of mailing of such orders by appropriate authority in the Selective Service System.
(f) Individual applicants for assignment or enlistment in the Reserve Components shall not be accepted unless there is reasonable assurance that they will be available and able to participate satisfactorily in the unit concerned. In this respect careful consideration shall be given to the geographical location, future plans, and possible conflicts with the civilian occupation of the individual applicant. Individuals who are engaged in or preparing for a skill listed in the Department of Labor “List of Critical Occupations for Screening the Ready Reserve” shall not be enlisted unless there is an overriding military necessity for their skill consistent with part 125 of this title.
(g) Reserve members who have enlisted under the provisions of section 511(d) of title 10, U.S.C., and who thereafter incur either a bona fide temporary, nonmilitary obligation requiring overseas residency outside the United States, or a bona fide, temporary, religious missionary obligation which would conflict with their required participation in reserve training, may, upon their request, be reenlisted under the provisions of section 511(a) of title 10, U.S.C. Requests under the provisions of this subsection, except those from members who incur a legitimate religious missionary obligation, will be approved by the Secretary of the Military Department concerned. Requests from members based on a religious missionary obligation may be approved by the local National Guard or Reserve Component Commander. Approval of all such requests are subject to the following requirements:
(1) Certification of the obligation is made by the employer, sponsor, or recognized church body as appropriate.
(2) Reserve members concerned have completed their initial period of active-duty-for-training.
(3) The approving authority concerned is satisfied that the request is bona fide.
(4) Reenlistment contracts for such individuals will include an agreement to serve for a period of time which will include the period of temporary, nonmilitary obligation (not to exceed 30 months) plus the remaining obligatory military service remaining under the original enlistment contract. Such reenlistment contracts will assure that each individual will serve a total of six (6) years of reserve service as required by law.
(5) The individual reservists concerned will be carried as members of the inactive National Guard or the Ready Reserve Pool, as appropriate, during the period of nonmilitary obligation, and as such, will be subject to being involuntarily ordered to active duty as authorized by law (see paragraph IV.C.2 of DOD Directive 1215.13, “Unsatisfactory Performance of Ready Reserve Obligation,” October 12, 1970.
10 U.S.C. 1161.
This part:
(a) Updates implementation policy, assigns responsibilities, and prescribes procedures for informing Service members who are covered by the provisions of 38 U.S.C chapter 43 and individuals who apply for uniformed service, of their civilian employment and reemployment rights, benefits and obligations.
(b) Implements 38 U.S.C. chapter 43, which updated, codified, and strengthened the civilian employment and reemployment rights and benefits of Service members and individuals who apply for uniformed service, and specifies the obligations of Service members and applicants for uniformed service.
This part applies to the Office of the Secretary of Defense; the Military Departments, including the Coast Guard when it is not operating as a Military Service in the Department of the Navy by agreement with the Department of Transportation; the Chairman of the Joint Chiefs of Staff; and the Defense Agencies (referred to collectively in this part as “the DoD Components”). The term “Military Departments,” as used in this part, refers to the Departments of the Army, Navy, and Air Force. The term “Secretary concerned” refers to the Secretaries of the Military Departments and the Secretary of Transportation with respect to the Coast Guard when it is not operating as a Service in the Department of the Navy. The term “Military Services” refers to the Army, the Navy, the Air Force, the Marine Corps, and the Coast Guard.
It is DoD policy to support non-career service by taking appropriate actions to inform and assist uniformed Service members and former Service members who are covered by the provisions of 38 U.S.C. chapter 43, and individuals who apply for uniformed service of their rights, benefits, and obligations under 38 U.S.C. Chapter 43. Such actions include:
(a) Advising non-career Service members and individuals who apply for uniformed service of their employment and reemployment rights and benefits provided in 38 U.S.C. chapter 43, as implemented by this part, and the obligations they must meet to exercise those rights.
(b) Providing assistance to Service members, former Service members and individuals who apply for uniformed service in exercising employment and reemployment rights and benefits.
(c) Providing assistance to civilian employers of non-career Service members in addressing issues involving uniformed service as it relates to civilian employment or reemployment.
(d) Considering requests from civilian employers of members of the National Guard and Reserve to adjust a Service member's scheduled absence from civilian employment because of uniformed service or make other accommodations to such requests, when it is reasonable to do so.
(e) Documenting periods of uniformed service that are exempt from a Service member's cumulative 5-year absence from civilian employment to perform uniformed service as provided in 38 U.S.C. chapter 43 and implemented by this part.
(f) Providing, at the Service member's request, necessary documentation concerning a period or periods of service, or providing a written statement that such documentation is not available, that will assist the Service member in establishing civilian reemployment rights, benefits and obligations.
(a) The Assistant Secretary of Defense for Reserve Affairs, under the Under Secretary of Defense for Personnel and Readiness, shall:
(1) In conjunction with the Departments of Labor (DoL) and Veterans Affairs, the Office of Personnel Management (OPM), and other appropriate Departments and activities of the executive branch, determine actions necessary to establish procedures and provide information concerning civilian employment and reemployment rights, benefits and obligations.
(2) Establish procedures and provide guidance to the Secretaries concerned
(3) Monitor compliance with 38 U.S.C. chapter 43 and this part.
(4) Publish in the
(b) The Secretaries of the Military Departments and the Commandant of the Coast Guard shall establish procedures to:
(1) Ensure compliance with this part.
(2) Inform Service members who are covered by the provisions of 38 U.S.C. chapter 43 and individuals who apply for uniformed service of the provisions of 38 U.S.C. chapter 43 as implemented by this part.
(3) Provide available documentation, upon request from a Service member or former Service member, that can be used to establish reemployment rights of the individual.
(4) Specify, as required, and document those periods of active duty that are exempt from the 5-year cumulative service limitation that a Service member may be absent from a position of civilian employment while retaining reemployment rights.
(5) Provide assistance to Service members and former Service members who are covered by the provisions of 38 U.S.C. chapter 43, and individuals who apply for uniformed service in exercising employment and reemployment rights.
(6) Provide assistance, as appropriate, to civilian employers of Service members who are covered by the provisions of 38 U.S.C. chapter 43 and individuals who apply for uniformed service.
(7) Cooperate with the DoL in discharging its responsibilities to assist persons with employment and reemployment rights and benefits.
(8) Cooperate with OPM in carrying out its placement responsibilities under 38 U.S.C. chapter 43.
The Secretaries of the Military Departments and the Commandant of the Coast Guard shall:
(a) Inform individuals who apply for uniformed service and members of a Reserve component who perform or participate on a voluntary or involuntary basis in active duty, active duty for special work, initial active duty for training, active duty for training, inactive duty training, annual training and full-time National Guard duty, of their employment and reemployment rights, benefits, and obligations as provided under 38 U.S.C. chapter 43 and described in Appendix A of this part. Other appropriate materials may be used to supplement the information contained in Appendix A of this part.
(1) Persons who apply for uniformed service shall be advised that DoD strongly encourages applicants to provide advance notice in writing to their civilian employers of pending uniformed service or any absence for the purpose of an examination to determine the person's fitness to perform uniformed service. Providing written advance notice is preferable to verbal advance notice since it is easier to establish that this basic prerequisite to retaining reemployment rights was fulfilled. Regardless of the means of providing advance notice, whether verbal or written, it should be provided as early as practicable.
(2) Annually and whenever called to duty for a contingency operation, advise Service members who are participating in a Reserve component of:
(i) The requirement to provide advance written or verbal notice to their civilian employers for each period of military training, active and inactive duty, or full-time National Guard duty.
(A) Reserve component members shall be advised that DoD strongly encourages that they provide advance notice to their civilian employers in writing for each period of pending uniformed service. Providing written advance notice is preferable to verbal advance notice since it easily establishes that this prerequisite to retaining reemployment rights was fulfilled.
(B) Regardless of the means of providing advance notice, whether written or verbal, it should be provided as early
(C) The advance notice requirement can be met by providing the employer with a copy of the unit annual training schedule or preparing a standardized letter. The sample employer notification letter in Appendix B of this part may be used for this purpose.
(ii) The 5-year cumulative limit on absences from their civilian employment due to uniformed service and exemptions to that limit.
(iii) The requirements for reporting or submitting application to return to their position of civilian employment.
(iv) Their general reemployment rights and benefits.
(v) The option for continuing employer provided health care, if the employer provides such a benefit.
(vi) The opportunity to use accrued leave in order to perform uniformed service.
(vii) Who they may contact to obtain assistance with employment and reemployment questions and problems.
(b) Inform Service members who are covered by the provisions of 38 U.S.C. Chapter 43, upon completion of an extended period of active duty and before separation from active duty of their employment and reemployment rights, benefits, and obligations as provided under 38 U.S.C. Chapter 43. This shall, as a minimum, include notification and reporting requirements for returning to employment with their civilian employer. While Appendix A of this part provides the necessary information to satisfy this requirement, other appropriate materials may be used to supplement this information.
(c) Issue orders that span the entire period of service when ordering a member of the National Guard or Reserve to active duty for a mission or requirement. Order modifications shall be initiated, as required, to ensure continuous active duty should the period required to complete the mission or requirement change.
(d) Document the length of a Service member's initial period of military service obligation performed on active duty.
(e) Determine and certify in writing those additional training requirements not already exempt for the 5-year cumulative service limit which are necessary for the professional development, or skill training or retraining for members of the National Guard or Reserve. Once the Secretary concerned certifies those training requirements, performance of uniformed service to complete a certified training requirement is exempt from the 5-year cumulative service limit.
(f) Determine those periods of active duty when a Service member is ordered to, or retained on, active duty (other than for training) under any provision of law because of a war or national emergency declared by the President or Congress. If the purpose of the order to, or retention on, active duty is for the direct or indirect support of the war or national emergency, then the orders of the Service member should be so annotated, since that period of service is exempt from the 5-year cumulative service limit established in 38 U.S.C. Chapter 43.
(g) Determine those periods of active duty performed by a member of the National Guard or Reserve that are designated by the Secretary concerned as a critical mission or critical requirement, and for that reason are exempt form the 5-year cumulative service limit. The authority for determining what constitutes a critical mission or requirement shall not be delegated below the Assistant Secretary level or the Commandant of the Coast Guard. The designation of a critical requirement to gain the necessary experience to qualify for key senior leadership positions shall be used judiciously, and the necessary experience and projected key leadership positions fully documented. This authority shall not be used to grant exemptions to avoid the cumulative 5-year service limit established by 38 U.S.C. Chapter 43 or to extend individuals in repeated statutory tours. The Assistant Secretary of Defense for Reserve Affairs shall be notified in writing of all occasions in which a Service member is granted more than one exemption for a critical requirement when the additional exemption(s) extend the Service member beyond the
(h) When appropriate, ensure that orders to active duty or orders retaining members on active duty specify the statutory or Secretarial authority for those orders when such authority meets one or more of the exemptions from the 5-year cumulative service limit provided in 38 U.S.C. Chapter 43. If circumstances arise that prevent placing this authority on the orders, the authority shall be included in a separation document and retained in the Service member's personnel file.
(i) Ensure that appropriate documents verifying any period of service exempt from the 5-year cumulative service limit are place in the Service member's personnel record or other appropriate record.
(j) Document those circumstances that prevent a Service member from providing advance notification of uniformed service to a civilian employer because of military necessity or when advance notification is otherwise impossible or unreasonable, as defined in § 104.3.
(k) Designate those officers, as defined in § 104.3, who are authorized by the Secretary concerned to provide advance notification of service to a civilian employer on behalf of a Service member or applicant for uniformed service.
(l) Provide documentation, upon request from a Service member or former Service member, that may be used to satisfy the Service member's entitlement to statutory reemployment rights and benefits. Appropriate documentation may include, as necessary:
(1) The inclusive dates of the initial period of military service obligation performed on active duty.
(2) Any period of service during which a Service member was required to serve because he or she was unable to obtain a release from active duty though no fault of the Service member.
(3) The cumulative length of all periods of active duty performed.
(4) The authority under which a Service member was ordered to active duty when such service was exempt from the 5-year cumulative service limit.
(5) The date the Service member was last released from active duty, active duty for special work, initial active duty for training, active duty for training, inactive duty training, annual training or full-time National Guard duty. This documentation establishes the timeliness of reporting to, or submitting application to return to, a position of civilian employment.
(6) Whether service requirements prevent providing a civilian employer with advance notification of pending service.
(7) That the Service member's entitlement to reemployment benefits has not been terminated because of the character of service as provided in 38 U.S.C. 4304.
(8) When appropriate, a statement that sufficient documentation does not exist.
(m) Establish a central point of contact at a headquarters or regional command who can render assistance to active duty Service members and applicants for uniformed service about employment and reemployment rights, benefits and obligations.
(n) Establish points of contact in each Reserve component headquarters or Reserve regional command, and each National Guard State headquarters who can render assistance to:
(1) Members of the National Guard or Reserve about employment and reemployment rights, benefits and obligations.
(2) Employers of National Guard and Reserve members about duty or training requirements arising from a member's uniformed service or service obligation.
(o) A designated Reserve component representative shall consider, and accommodate when it does not conflict with military requirements, a request from a civilian employer of a National Guard and Reserve member to adjust a Service member's absence from civilian employment due to uniformed service when such service has an adverse impact on the employer. The representative may make arrangements other than adjusting the period of absence to accommodate such a request when it serves the best interest of the military and is reasonable to do so.
1. The Uniformed Services Employment and Reemployment Rights Act (USERRA) which is codified in 38 U.S.C. Chapter 43 provides protection to anyone absent from a position of civilian employment because of uniformed service if:
a. Advance written or verbal notice was given to the civilian employer.
(1) Advance notice is not required if precluded by military necessity, or is otherwise unreasonable or impossible.
(2) DoD strongly encourages Service members and or applicants for service to provide advance notice to their civilian employer in writing for each period of pending uniformed service. Providing written advance notice is preferable to verbal advance notice since it easily establishes that this prerequisite to retaining reemployment rights was fulfilled. Regardless of the means of providing advance notice, whether written or verbal, it should be provided as early as practicable. Also, DoD strongly recommends that Reserve component members provide advance notice to their civilian employers at least 30 days in advance when it is feasible to do so. The advance notice requirement can be met by providing the employer with a copy of the unit annual training schedule or preparing a standardized letter. The sample employer notification letter in Appendix B of this part may be used for this purpose;
b. The cumulative length of absences does not exceed 5 years;
c. The individual reports to, or submits an application for reemployment, within the specified period based on duration of services as described in section D of this Appendix; and,
d. The person's character of service was not disqualifying as described in paragraphs A.2.d. and e. of this appendix.
2. A civilian employer is not required to reemploy a person if:
a. The civilian employment was for a brief, non-recurrent period and there was no reasonable expectation that the employment would continue indefinitely or for a significant period.
b. The employer's circumstances have so changed as to make reemployment impossible or unreasonable.
c. The reemployment imposes an undue hardship on the employer in the case of an individual who:
(1) Has incurred a service connected disability; or,
(2) Is not qualified for the escalator position or the position last held, and cannot become qualified for any other position of lesser status and pay after a reasonable effort by the employer to qualify the person for such positions.
d. The Service member or former Service member was separated from a uniformed service with a dishonorable or bad conduct discharge, or separated from a uniformed service under other than honorable conditions.
e. An officer dismissed from any Armed Force or dropped from the rolls of any Armed Force as prescribed under 10 U.S.C. 1161.
f. The cumulative length of service exceeds five years and no portion of the cumulative five years of uniformed service falls within the exceptions described in section C. of this Appendix.
g. An employer asserting that he or she is not required to reemploy an individual because the employment was for a brief, non-recurrent period, or reemployment is impossible or unreasonable, or reemployment imposes an undue hardship on the employer, that employer has the burden of proving his or her assertion.
3. Entitlement to protection under 38 U.S.C. Chapter 43 does not depend on the timing, frequency, and duration of training or uniformed service.
1. A person who is a member of, applies to be a member of, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any employment benefit by an employer on the basis of that membership, an application for membership, performance of service, or an obligation for service in the uniformed services.
2. A person, including a non-Service member, shall not be subject to employment discrimination or any adverse employment action because he or she has taken an action to enforce a protection afforded a Service member, has testified or made a statement in or in connection with any proceeding concerning employment and reemployment rights of a service member, has assisted or participated in an investigation, or has otherwise exercised any right provided by 38 U.S.C. Chapter 43.
3. An employer shall be considered to have engaged in an act of discrimination if an individual's membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that
In order to retain reemployment rights and benefits provided by 38 U.S.C. Chapter 43, the cumulative length of absences from the same employer cannot exceed 5 years. Not counted toward this limit is:
1. Service beyond 5 years if required to complete an initial service obligation;
2. Service during which an individual was unable to obtain release orders before the expiration of the 5-year cumulative service limit through no fault of his or her own;
3. Inactive duty training; annual training; ordered to active duty for unsatisfactory participation; active duty by National Guardsmen for encampments, maneuvers, field operations or coastal defense; or to fulfill additional training requirements, as determined by the Secretary concerned, for professional skill development, or to complete skill training or retraining;
4. Involuntary order or call to active duty, or retention on active duty;
5. Ordered to or retained on active duty during a war or national emergency declared by the President or Congress;
6. Ordered to active duty in support of an operational mission for which personnel have been involuntarily called to active duty;
7. Performing service in support of a critical mission or requirement, as determined by the Secretary concerned;
8. Performing service in the National Guard when ordered to active duty by the President to suppress an insurrection or rebellion, repel an invasion, or execute laws of the United States; and,
9. Voluntary recall to active duty of retired regular Coast Guard officers or retired enlisted Coast Guard members.
1. For service of 30 days or less, or for an absence for an examination to determine the individual's fitness to perform uniformed service, the Service member or applicant must report to work not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of service or the examination, after allowing for an eight hour rest period following safe transportation to his or her residence.
2. For service of 31 days or more but less that 181 days, the Service member must submit an application for reemployment not later than 14 days after completion of service, or by the next full calendar day when submitting an application within the 14 day limit was impossible or unreasonable through no fault of the Service member.
3. For service of 181 days or more, the Service member must submit an application for reemployment not later than 90 days after the completion of service.
4. If hospitalized or convalescing from an illness or injury incurred or aggravated during service, the Service member must, at the end of the period necessary for recovery, follow the same procedures, based on length of service, as described in sections D.1. through D.3. of this appendix. The period of hospitalization or convalescence may not normally exceed 2 years.
5. Anyone who fails to report or apply for reemployment within the specified period shall not automatically forfeit entitlement to reemployment rights and benefits, but is subject to the rules of conduct, established policies, general practices of the employer pertaining to explanations and discipline because of an absence from scheduled work.
1. If service is for 31 days or more, a Service member must provide documentation, upon request from the employer, that establishes:
a. He or she made application to return to work within the prescribed time period;
b. He or she has not exceeded the 5-year cumulative service limit; and
c. His or her reemployment rights were not terminated because of character of service as described in paragraphs A.2.d. and e. of this appendix.
2. Failure to provide documentation cannot serve as a basis for denying reemployment to the Service member, former Service member, or applicant if documentation does not exist or is not readily available at the time of the employer's request. However, if after reemployment, documentation becomes available that establishes that the Service member or former Service member does not meet one or more of the requirements contained in section E.1. of this appendix, the employer may immediately terminate the employment.
1. Reemployment position for service of 90 days or less:
a. The position the person would have attained if continuously employed (the “escalator” position) and if qualified to perform the duties; or,
b. The position in which the person was employed in when he or she departed for uniformed service, but only if the person is not qualified to perform the duties of the escalator position, despite the employer's reasonable efforts to qualify the person for the escalator position.
2. Reemployment position for service of 91 days or more:
a. The escalator position, or a position of like seniority, status and pay, the duties of which the person is qualified to perform; or,
b. The position in which the person was employed in when he or she departed for uniformed service or a position of like seniority, status and pay, the duties of which the person is qualified to perform, but only if the person is not qualified to perform the duties of the escalator position after the employer has made a reasonable effort to qualify the person for the escalator position.
3. If a person cannot become qualified, after reasonable efforts by the employer to qualify the person, for either the escalator position or the position formerly occupied by the employee as provided in sections F.1. and F.2. of this appendix, for any reason (other than disability), the person must be employed in any other position of lesser status and pay that the person is qualified to perform, with full seniority.
If a person who is disabled because of service cannot (after reasonable efforts by the employer to accommodate the disability) be employed in the escalator position, he or she must be reemployed:
1. In any other position that is equivalent to the escalator position in terms of seniority, status, and pay that the person is qualified or can become qualified to perform with reasonable efforts by the employer; or,
2. In a position, consistent with the person's disability, that is the nearest approximation to the position in terms of seniority, status, and pay to the escalator or equivalent position.
1. A person who was employed by a Federal Executive Agency when he or she departed for uniformed service must be reemployed using the same order of priorities as prescribed in sections F. and G. of this appendix as appropriate. If the Director of OPM determines that the Federal Executive Agency that employed the person no longer exists and the functions have not been transferred to another Federal Executive Agency, or it is impossible or unreasonable for the agency to reemploy the person, the Director of OPM shall identify a position of like seniority, status, and pay at another Federal Executive Agency that satisfies the reemployment criteria established for private sector employers, sections F. and G. of this appendix, and for which the person is qualified and ensure that the person is offered such position.
2. If a person was employed by the Judicial Branch or the Legislative Branch of the Federal Government when he or she departed for uniformed service, and the employer determines that it is impossible or unreasonable to reemploy the person, the Director of OPM shall, upon application by the person, ensure that an offer of employment in a Federal Executive Agency is made.
3. If the Adjutant General of a State determines that it is impossible or unreasonable to reemploy a person who was employed as a National Guard technician, the Director of OPM shall, upon application by the person, ensure that an offer of employment in a Federal Executive Agency is made.
1. The heads of the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Security Agency, and, as determined by the President, any Executive Agency or unit thereof, the principal function of which is to conduct foreign intelligence or counterintelligence activities, shall prescribe procedures for reemployment rights for their agency that are similar to those prescribed for private and other Federal agencies.
2. If an appropriate officer of an agency referred to in subsection I.1. of this appendix determines that reemployment of a person who was an employee of that agency when he or she departed for uniformed service is impossible or unreasonable, the agency shall notify the person and the Director of OPM. The Director of OPM shall, upon application by that person, ensure that the person is offered employment in a position in a Federal Executive Agency.
1. A person who is reemployed under 38 U.S.C. Chapter 43 is entitled to the seniority, and other rights and benefits determined by seniority that the person had upon commencing uniformed service, and any additional seniority, and rights and benefits he or she would have attained if continuously employed.
2. A person who is absent by reason of uniformed service shall be deemed to be on furlough or leave of absence from his or her civilian employer and is entitled to such other rights and benefits not determined by seniority as generally provided by the employer to employees on furlough or leave of absence having similar seniority, status and pay who are also on furlough or leave of absence, as provided under a contract, policy, agreement, practice or plan in effect during the Service member's absence because of uniformed service.
3. The individual may be required to pay the employee cost, if any, of any funded benefit continued to the same extent other employees on furlough or leave of absence are required to pay.
If, after being advised by his or her employer of the specific rights and benefits to be lost, a Service member, former Service member or applicant of uniformed service knowingly provided written notice of intent not to seek reemployment after completion of uniformed service, he or she is no longer entitled to any non-seniority based rights and benefits. This includes all non-seniority based rights and benefits provided under any contract, plan, agreement, or policy in effect at the time of entry into uniformed service or established while performing such service, and are generally provided by the employer to employees having similar seniority, status and pay who are on furlough or leave of absence.
A person who is reemployed following uniformed service cannot be discharged from employment, except for cause:
1. Within 1 year after the date of reemployment if that person's service was 181 days or more; or,
2. Within 180 days after the date of reemployment if such service was 31 days or more but less than 181 days.
During any period of uniformed service, a person may, upon request, use any vacation, annual leave, or similar leave with pay accrued before the commencement of that period of service.
An employer who provides employee health plan coverage, including group health plans, must allow the Service member to elect to continue personal coverage, and coverage for his or her dependents under the following circumstances:
1. The maximum period of coverage of a person and the person's dependents under such an election shall be the lesser of:
a. The 18 month period beginning on the date on which the person's absence begins; or
b. The day after the date on which the person was required to apply for or return to a position or employment as specified in section D. of this appendix, and fails to do so.
2. A person who elects to continue health plan coverage may be required to pay up to 102 percent of the full premium under the plan, except a person on active duty for 30 days or less cannot be required to pay more than the employee's share, if any, for the coverage.
3. An exclusion or waiting period may not be imposed in connection with the reinstatement of coverage upon reemployment if one would not have been imposed had coverage not been terminated because of service. However, an exclusion or waiting period may be imposed for coverage of any illness or injury determined by the Secretary of Veterans Affairs to have been incurred in, or aggravated during, the performance of uniformed service.
1. This section applies to individuals whose pension benefits are not provided by the Federal Employees’ Retirement System (FERS) or the Civil Service Retirement System (CSRS), or a right provided under any Federal or State law governing pension benefits for governmental employees.
2. A person reemployed after uniformed service shall be treated as if no break in service occurred with the employer(s) maintaining the employee's pension benefit plan. Each period of uniformed service, upon reemployment, shall be deemed to constitute service with the employer(s) for the purpose of determining the nonforfeitability of accrued benefits and accrual of benefits.
3. An employer reemploying a Service member or former Service member under 38 U.S.C. Chapter 43 is liable to the plan for funding any obligation attributable to the employer of the employee's pension benefit plan that would have been paid to the plan on behalf of that employee but for his or her absence during a period of uniformed service.
4. Upon reemployment, a person has three times the period of military service, but not to exceed five years after reemployment, within which to contribute the amount he or she would have contributed to the pension benefit plan if he or she had not been absent for uniformed service. He or she is entitled to accrued benefits of the pension plan that are contingent on the making of, or are derived from, employee contributions or elective deferrals only to the extent the person makes payment to the plan.
1. Federal employees enrolled in FERS who are reemployed with the Government are allowed to make up contributions to the Thrift Savings Fund over a period specified by the employee. However, the makeup period may not be shorter than two times nor longer than four times the period of absence for uniformed service.
2. Employees covered by the FERS are entitled to have contributions made to the Thrift Savings Fund on their behalf by the employing agency for their period of absence in an amount equal to one percent of the employee's basic pay. If an employee covered by
3. The employee shall be credited with a period of civilian service equal to the period of uniformed service, and the employee may elect, for certain purposes, to have his or her separation treated as if it had never occurred.
4. This benefit applies to any employee whose release from uniformed service, discharge from hospitalization, or other similar event make him or her eligible to seek reemployment under 38 U.S.C. Chapter 43 on or after August 2, 1990.
5. Additional information about Thrift Saving Plan (TSP) benefits is available in TSP Bulletins 95-13 and 95-20. A fact sheet is included in TSP Bulletin 95-20 which describes benefits and procedures for eligible employees. Eligible employees should contact their personnel office for information and assistance.
1. Employees covered by CSRS may make up contributions to the TSP, as in section P.1. of this appendix. However, no employer contributions are made to the TSP account of CSRS employees.
2. This benefit applies to any employee whose release from uniformed service, discharge from hospitalization, or other similar event makes him or her eligible to seek reemployment under 38 U.S.C. Chapter 43 on or after August 2, 1990.
3. Additional information about TSP benefits is available in TSP Bulletins 95-13 and 95-20. A fact sheet is included in TSP Bulletin 95-20 which describes benefits and procedures for eligible employees. Eligible employees should contact their personnel office for information and assistance.
Information and informal assistance concerning civilian employment and reemployment is available through the National Committee for Employer Support of the Guard and Reserve (NCESGR). NCESGR representatives can be contacted by calling 1-800-336-4590.
1. A person may file a complaint with the Secretary of Labor if an employer, including any Federal Executive Agency or OPM, has failed or refused, or is about to fail or refuse, to comply with employment or reemployment rights and benefits. The complaint must be in writing, and include the name and address of the employer, and a summary of the allegation(s).
2. The Secretary of Labor shall investigate each complaint and, if it is determined that the allegation(s) occurred, make reasonable efforts to ensure compliance. If these efforts are unsuccessful, the Secretary of Labor shall notify the complainant of the results and advise the complainant of his or her entitlement to pursue enforcement.
3. The Secretary of Labor shall, upon request, provide technical assistance to a claimant and, when appropriate, to the claimant's employer.
1. State or Private Employers.
a. A person may request that the Secretary of Labor refer a complaint to the Department of Justice. If the Department of Justice is reasonably satisfied that the person is entitled to the rights or benefits sought, the Department of Justice may appear on behalf of, and act as attorney for, the complainant, and commence an action for appropriate relief, or the individual may commence an action on his or her own behalf in the appropriate Federal district court.
b. The district court hearing the complaint can require the employer to:
(1) Comply with the law;
(2) Compensate the person for any loss of wages or benefits suffered; and
(3) If the court determines that the employer willfully failed to comply with the law, pay the person an amount equal to the amount of lost wages or benefits as liquidated damages.
c. A person may file a private suit against an employer without the Secretary of Labor's assistance if he or she:
(1) Has chosen not to seek the Secretary's assistance;
(2) Has chosen not to request that the Secretary refer the complaint to the Department of Justice; or
(3) Has refused the Department of Justice's representation of his or her complaint.
d. No fees or court costs shall be charged or taxed against any person filing a claim. The court may award the person who prevails reasonable attorney fees, expert witness fees, and other litigation expenses.
2. Federal Government as the Employer.
a. The same general enforcement procedures established for private employers are applied to Federal Executive Agencies as an employer; however, if unable to resolve the complaint, the Secretary of Labor shall refer the complaint to the Office of Special Counsel, which shall represent the individual in a hearing before the Merit Systems Protection Board if reasonably satisfied that the individual is entitled to the rights and benefits sought. The claimant also has the option of directly filing a complaint with the Merit Systems Protection Board on his or her own behalf.
b. A person who is adversely affected or aggrieved by a final order or decision of the
3. Federal Intelligence Agency as the Employer. An individual employed by a Federal Intelligence Agency listed in subparagraph I.1. of this appendix, may submit a claim to the inspector general of the agency.
This is to inform you that (insert applicant or Service member's name) must report for military training or duty on (insert date). My last period of work will be on (insert date), which will allow me sufficient time to report for military duty. I will be absent from my position of civilian employment for approximately (enter expected duration of duty as specified on your orders, and include the applicable period you have to return or submit notification of your return to work) while performing military training or duty unless extended by competent military authority or delayed by circumstances beyond my control. I otherwise expect to return to work on (insert date).
10 U.S.C. 113 note.
This part implements Pub. L. 100-180 and reissues Secretary of Defense Memorandum for Secretaries of the Military Departments, “Employment of Spouses of Members of the Armed Forces,” October 22, 1987 and Secretary of Defense Memorandum for Secretaries of the Military Departments, “Employment of Spouses of Members of the Armed Forces,” December 30, 1987.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments (including their National Guard and Reserve components), the Organization of the Joint Chiefs of Staff (OJCS), the Unified and Specified Commands, the Defense Agencies, and the DoD Field Activities (hereafter referred to as “DoD Components”).
(a) No DoD official shall, directly or indirectly, impede or otherwise interfere with the right of a spouse of a military member to pursue and hold a job, attend school, or perform volunteer services on or off a military installation. Moreover, no DoD official shall use the preferences or requirements of a DoD Component to influence, or attempt to influence, the employment, educational, or volunteer service decisions of a spouse. Neither such decision of a spouse, nor the marital status of the member, shall affect, favorably or adversely, the performance appraisals or assignment and promotion opportunities of the member, subject to the clarification in paragraph (b)(2) of this section.
(b)
(2) Personnel decisions, including those related to the assignments of military members, shall not be affected, favorably or adversely, by the employment, educational, or volunteer
(i) When necessary to ameliorate the personal hardship of a member or spouse upon the request of the member concerned, such as when a family member requires specialized medical treatment, educational provisions under DoD Instruction 1342.12
(ii) To facilitate the assignment of dual-career military married couples to the same geographic area.
(iii) When otherwise required by law, such as instances in which a prohibited conflict of interest may exist between the official duties of a military member and the employment of the member's spouse.
(iv) When the Assistant Secretary of Defense (Force Management and Personnel), with the concurrence of the General Counsel, determines, on a case-by-case basis, for reasons of national security, that marital status is an essential assignment qualification for particular military billets or positions.
(3) Performance appraisals on members of the Military Services, including officer and enlisted efficiency or fitness reports, shall not contain any information regarding the employment, educational, or volunteer service activities of the member's spouse, or reflect favorably or adversely on the member based solely on the member's martial status.
(a) The Secretaries of the Military Departments and the Heads of other DoD Components shall ensure compliance with this part.
(b) The Secretaries of the Military Departments shall issue regulations, enforceable under the Uniform Code of Military Justice (UCMJ), and appropriate regulations or other guidance applicable to civilian personnel, implementing this part.
(c) The Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) shall monitor compliance with this part.
This part is effective February 10, 1988. The Secretaries of the Military Departments shall forward two copies of implementing documents to the Assistant Secretary of Defense (Force Management and Personnel) within 60 days.
10 U.S.C. 1091; Federal Acquisition Regulation (FAR), part 37.
This part establishes policy under 10 U.S.C. 1091, “Contracts For Direct Health Care Providers,” and assigns responsibility for implementing the authority for personal services contracts for direct health care providers.
(a) This part applies to the Office of the Secretary of Defense (OSD) and the Military Departments.
(b) It applies only to personal services contracts awarded under 10 U.S.C. 1091 for direct health care providers.
(a)
(b)
(a) It is the policy of the Department of Defense that when in-house sources are insufficient to support the medical mission of the Military Departments, personal services contracts under 10 U.S.C. 1091 may be executed.
(b) It is the purpose of personal services contracts to facilitate mission accomplishment, maximize beneficiary access to military MTFs, maintain readiness capability, reduce use of the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS), and enhance quality of care by promoting the continuity of the patient/provider relationship.
(c) Personal services contractors shall be subject to the same quality assurance, credentialing processes, and other standards as those required of military health care providers. In addition, providers, other than para-professionals, must be licensed in accordance with State or host country requirements to perform the contract services.
(d) In establishing lines of authority and accountability, DoD supervisors may direct the activities of personal services contractors on the same basis as DoD employees. However, the rights, benefits, and compensation of personal services contractors shall be determined solely in accordance with the personal service contract.
(e) Requests for personal services contracts contemplating reimbursement at the maximum rate of basic pay and allowances under 10 U.S.C. 1091 shall be approved at the major command level. The 0-6 grade shall be used sparingly and subsequently will be subject to review.
(a) Each contract under 10 U.S.C. 1091 with an individual or with an entity, such as a professional corporation or partnership, for the personal services of an individual must contain language specifically acknowledging the individual as a personal services contractor whose performance is subject to supervision and direction by designated officials of the Department of Defense.
(b) The appearance of an employer-employee relationship created by the DoD supervision of a personal services contractor will normally support a limited recognition of the contractor as equal in status to a DoD employee in disposing of personal injury claims arising out of the contractor's performance. Personal injury claims alleging negligence by the contractor within the scope of his or her contract performance, therefore, will be processed as claims alleging negligence by DoD military or civil service personnel.
(c) Compensation for personal services contractors under 10 U.S.C. 1091 shall be within the limits established in the Table of Authorized Compensation Rates (see enclosure 1). Prorated compensation based upon hourly, daily, or weekly rates may be awarded when a contractor's services are not required on a full-time basis. In all cases, however, a contractor may be compensated only for periods of time actually devoted to the delivery of services required by the contract.
(d) Contracts for personal services entered into shall be awarded and administered pursuant to the provisions of the Federal Acquisition Regulation (FAR), part 37 and DoD and departmental supplementary contracting provisions.
(a) The Military Departments shall be responsible for the management of the direct health care provider contracting program, ensuring that effective means of obtaining adequate quality care is achieved in compliance with the FAR, part 37. The portion of the Military Department regulations ensuring that compensation provided for a particular type of service is based on objective criteria and is not susceptible to individual favoritism shall be stressed.
(b) The Office of the Assistant Secretary of Defense (Health Affairs) (OASD(HA)) shall be responsible for monitoring the personal services contracting program.
10 U.S.C. 2101-2111, 37 U.S.C. 209, 50 App. U.S.C. 456(a).
This part reissues 32 CFR part 110 implementing Pub. L. 88-647, 92-171, and 98-94 and updates policy, assigns responsibilities, and prescribes procedures for determining commutation rates for Reserve Officers’ Training Corps (ROTC) detachments offered commutation funds instead of uniforms.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, and the Defense Logistics Agency (DLA) (hereafter referred to collectively as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
It is DoD policy to provide subsistence allowance in accordance with Pub. L. 92-171 and to eligible participants of senior ROTC programs and commutation funds instead of uniforms (section 2110, Pub. L. 88-647) for members of senior ROTC programs at eligible schools.
(a) The
(1) Administer the overall DoD ROTC program.
(2) Maintain liaison with the Military Departments regarding the functioning of the ROTC program.
(3) Announce the standard rates of commutation instead of uniforms to the Military Departments not later than August 1 each year.
(b) The
(c) The
(1) Prescribe the standard uniform items for each climatic zone, sex, and course (basic and advanced) in quantities authorized to be provided.
(2) Develop the communication rates, based on the standard Military Service uniforms, and establish procedures for rate review on an annual basis.
(3) Submit to the ASD(FM&P) an estimate of the rates of commutation, based on the latest DLA clothing rate, for climatic zones by sex and course not later than July 1 of each year.
(4) Classify educational institutions as Military Colleges (MC), Civilian Colleges (CC), or Military Junior Colleges (MJC), hereafter also called schools.
(5) Conduct inspections to ensure that the schools meet the requirements for the respective classifications and that those receiving commutation funds provide quality uniforms in sufficient quantities.
(6) Program and budget for subsistence allowance and commutation, instead of uniforms, for members of the senior ROTC program.
(a)
(1) The classification MC shall be assigned to units established in:
(i) Essentially military colleges or universities that, for purposes of qualifying as an MC under 50 U.S.C. App. 456(a)(1):
(A) Confer baccalaureate or graduate degrees.
(B) Require a course in military training throughout the undergraduate course for all qualified undergraduate students.
(C) Organize their military students as a corps of cadets under constantly maintained military discipline.
(D) Require all members of the corps, including those nonmembers enrolled in the ROTC, to be habitually in uniform when on campus.
(E) Have as their objective the development of the military students’ character by means of military training and the regulation of their conduct in accordance with the principles of military discipline.
(F) In general, meet military standards similar to those maintained at the Military Service academies.
(ii) The designation “all qualified undergraduate students,” under paragraph (a)(i)(B) of this section means all physically fit students except:
(A) Female students who waive their right to participate as provided by Pub. L. 95-485, section 809.
(B) Foreign nationals.
(C) Students who are not liable for induction by virtue of having honorably completed active training and service.
(D) Students who are pursuing special undergraduate courses beyond 4 years after completing the required military training.
(E) Certain categories of students who are excused specifically by administrative decision and approved by the ROTC unit commander.
(2) The classification CC shall be assigned when units are established at civilian colleges and universities that are not operated on an essentially military basis, but that confer baccalaureate or graduate degrees.
(3) The classification MJC shall be assigned when ROTC units are established at essentially military schools that provide junior college or junior college and high school instruction, but DO NOT confer baccalaureate degrees. Those units shall meet all other requirements of an MC. (See Pub. L. 88-647).
(b)
(i) Organize and maintain within their undergradute student bodies a self-contained corps of cadets.
(ii) Require all members of the corps of cadets to be in appropriate uniform at all times while on the campus.
(iii) House all members of the corps of cadets in barracks separate from nonmembers.
(iv) Require all members of the corps of cadets to be under constantly maintained military discipline on a 24-hours-per-day, 7-days-per-week basis.
(v) Require all physically qualified members of the above corps of cadets to be enrolled in the basic course of ROTC, except:
(A) Female students who waive their right to participate as provided by Pub. L. 95-485.
(B) Foreign nationals.
(C) Students who are not liable for induction by virtue of having completed honorably active training and service.
(D) Certain categories of students are excused specifically by administrative decisions.
(E) Other students whose enrollment is prevented by provisions or appropriate regulations of a Military Department.
(2) MCs, CCs, or MJCs may be paid the special rate of commutation only for those members of the corps of cadets meeting the requirements set forth in paragraph (b)(1), who are enrolled in ROTC. The requirements of paragraphs (b)(1) (iii) and (iv), may be waived for married students, graduate students, and day students who are not housed with the corps of cadets. Day students are those ROTC cadets who are authorized by university officials to reside off campus within a reasonable commuting distance to the university.
(3) Institutions designated as MCs may enroll into the ROTC, of the appropriate Military Service, those students who, for various reasons, are not required to be members of the corps of cadets. These institutions shall receive, for such student only, the standard commutation rate. The special rate shall be authorized for eligible females who elect to participate as enrolled senior ROTC cadets, provided that the requirements of paragraphs (b)(1) (ii), (iii), and (iv) are met or unless these requirements are waived under the provisions of paragraph (a)(1)(ii)(E).
(c)
(i) Except when on summer fiel training or practice cruises, when subsistence in kind is furnished, or when otherwise on active duty, the subsistence allowance for each enrolled member of the advanced training program in the senior ROTC shall be $100 per month for not more than a total of 20 months.
(ii) Except when on summer field training or practice cruises, when subsistence in kind is furnished, the subsistence allowance for each cadet or midshipman appointed under the financial assistance program for specially selected members, under the provisions of Pub. L. 88-647, shall be $100 per month for not more than a total of 20 months during the basic course training program and $100 per month for not more than a total of 20 months during the advanced course training program unless the individual has been authorized extended entitlements under the provisions of Pub. L. 98-94. The $100 per month subsistence may be authorized for not more than a total of 30 months during the advanced course training program when an extended financial assistance entitlement is approved by the Military Service Secretary of the Military Department concerned.
(2)
(i) The Military Departments shall develop the commutation rates and establish procedures for their review on an annual basis. The review shall be scheduled during May so that the current unit price list disseminated by the DLA during the previous December of each year can be used to develop the commutation rates and made available to institutions for use at the beginning of the fall term. The commutation payment shall be made to the institutions based on the number of students enrolled and in attendance for at least 60 consecutive days.
(ii) Commutation rates for uniforms shall be based on the latest approved items of clothing for each climatic
(iii) Standard commutation rates for the basic course (first 2 years) of the senior ROTC shall be payable in the indicated amount on an annual basis not to exceed 2 years to CCs that offer Military Science (MS) I and II or equivalent. The rates shall be paid after cadets have been enrolled 60 days.
(iv) Standard rates for the advanced course cover the 2-year period that each member is enrolled in advanced course training in the senior ROTC (Appendix D). These rates shall be paid after cadets have been enrolled for 60 days in the advanced course. Commutation funds for camp uniforms, if paid, shall be in addition to payments for the advanced course.
(v) Special rates of commutation shall be paid for students enrolled at MCs, CCs, or MJCs fulfilling the requirements of paragraph (b).
(vi) Special rates of commutation shall be identical for all the Military Services for those qualifying institutions defined in paragraph (b). These rates shall be three times the highest standard rate submitted by sex and course from the Military Departments for climatic zones 1 or 2. Each Military Department shall submit special rate estimates for zones 1 and 2 to the Assistant Secretary of Defense (ASD(FM&P), or designee, not later than July 1. The special rates shall be announced by the ASD(FM&P), or designee, not later than August 1 of each year.
(vii) Special rates of commutation for students enrolled in the basic course (MS I and II or equivalent) of MCs, CCs, and MJCs shall be paid on an annual basis not to exceed 2 years. Special rates for students enrolled in the advanced course (MS III and IV or equivalent) of MCs, CCs, or MJCs shall be paid for the 2-year period that each member is enrolled in the advanced course.
(viii) Commutation for the basic course and the advanced course shall be paid based on Appendices C and D, respectively.
(ix) One-half of the special commutation rate shall be paid to the institution for those students enrolled in the second year of the advanced course for whom the institution previously has not received commutation.
(x) The standard rates shown in Appendix E for summer field training are not subject to the special commutation rate adjustment.
(xi) Commutation of uniform funds may be expended to support ONLY the following activities:
(A) Procurement, receipt, storage, and issue expenses not to exceed 10 percent of the cost for standard uniform items in quantities as prescribed by the Secretary of the Military Department concerned, or distinctive uniforms and insignia as prescribed by those institutions that meet the requirements of paragraph (b). Marking up or raising the price of that paid by an institution when items are purchased from military inventories is not authorized.
(B) Alteration and maintenance of the uniform, which is defined as laundry, dry cleaning, renovation, alterations and sizing, not to exceed $10 per uniform.
(C) Salary payments to the property custodian for custody of uniforms purchased with commutation funds. Such custodial fees shall not exceed the specified percent of the commutation funds received against the actual enrollments in each course listed below for the immediate past academic year:
(D) Purchase of hazard insurance to protect uniform inventory against loss.
(xii) Unexpended commutation of uniform funds is the balance remaining after all commitments or obligations relating to the immediate past academic year and the amount of retained uniform commutation funds (see paragraph (c)(2)(xii)(A)) have been deducted. The unexpended balance shall be computed as of July 1 each year. Commitments or obligations relating to new year procurement, maintenance, or other allowable activities may not be charged against the unexpended balance. As an exception, the unexpended balance may be used for
(A) The amount of unexpended uniform commutation funds an institution may retain from 1 academic year to the next for continued financing of the uniform program is the greater of $3500 or 20 percent of the uniform entitlement for the immediate past academic year.
(B) Accumulated funds that exceed this limitation shall be returned to the Military Services.
(C) As of July 1 of each year, a uniform commutation report DD Form 2340, “Annual Report on Uniform Commutation Fund” shall be completed by the institution receiving commutation funds and submitted to the appropriate authority for each Military Service by July 31.
(d)
(1) The Secretaries of Military Departments shall prescribe specific inspection procedures applicable to ROTC units of their respective Military Services.
(2) When discrepancies are noted at institutions, their classifications shall be subject to review for resolution or withdrawal by the Secretaries of the Military Department concerned. In the instance of withdrawal of classification, the appropriate Military Service's review of, and final notification to, the institution shall be within 30 days of the date the discrepancy was noted.
The reporting requirement for paragraph (c)(2)(xii)(C) is assigned OMB No. 0704-0200.
The climate zones listed above are to be used as a guide to determine clothing requirements for a specific detachment. Wind chill equivalent temperatures can vary widely for areas within close proximity to each other due to variations in wind velocity and elevation. Detachment commanders may request a zone change by submitting evidence to the Major Command of the appropriate Military Service that the wind chill equivalent temperature for the coldest month has been within the limits of the requested zone classification for the past 3 consecutive years.
The Standard and special commutation rates are based on the latest approved items of clothing for each climatic zone. The zones are:
To determine the appropriate zone for each ROTC detachment, use the table below. Enter the appropriate dry bulb temperature at the top and read down. Find the wind velocity on the left and read across. The intersection of the two lines provides the equivalent temperature. For example, a combination of 20 degrees Fahrenheit and a 10 mile-per-hour wind has a wind chill equivalent temperature of 3 degrees Fahrenheit. The wind chill equivalent temperature is based on the average monthly temperature and wind of the coldest month for each of the past 3 consecutive years.
10 U.S.C. 2031, as amended.
This part is reissued to update and clarify policies for the organization and administration of the Reserve Officers’ Training Corps (ROTC) program in all secondary schools (hereafter called Junior ROTC), as a result of amendments to title 10 U.S.C. section 2031. Amendments include new viability standards for Junior ROTC units, in accordance with section 602 of the Defense Appropriation Act, Fiscal Year (FY) 1981, and the extension of the authority for section 607 in the Defense Authorization Bill, FY 1982.
(a) This part applies to the Office of the Secretary of Defense and the Military Departments. The term “Military Service,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
(b) Its provisions include those institutions with established Junior ROTC units and encompass the operation and administration of the Junior ROTC program worldwide at both public and private institutions.
(a)
(b)
(c)
(d)
(e)
(1) Require a 4-year course in military training.
(2) Organize their military students as a Corps of Cadets under constantly maintained military discipline.
(3) Require all members of the Corps, including those members enrolled in military training, to be in appropriate uniform when on campus.
(4) Have as their objectives the development of the student's character through military training, the regulation of the student's conduct in accordance with the principles of military discipline, and the meeting of military standards similar to those maintained at Military Service academies.
(f)
(g)
It is the policy of the Department of Defense to sponsor and fund the Junior ROTC program to provide an opportunity for secondary school students to learn the basic elements and requirements for national security and their personal obligations as Americans. The Junior ROTC program is intended to:
(a) Develop informed and responsible citizens.
(b) Strengthen character.
(c) Promote an understanding of the basic elements and requirements for national security.
(d) Help form habits of self-discipline.
(e) Develop respect for and an understanding of the need for constituted authority in a democratic society.
(f) Develop an interest in the Military Services as a possible career.
The
(a) Sponsor and conduct a Junior ROTC program.
(b) Provide a fair and equitable geographical distribution of their Junior ROTC units, with no more than one Military Service's Junior ROTC unit in a school.
(c) Prescribe a curriculum of at least 3 academic years for their Junior ROTC units, offering students one of the following curricular programs:
(1)
(2)
(d) Prescribe advance placement.
(1) A student presenting evidence of successful completion of either the academic or technical track of Junior ROTC under any Military Department is entitled to advance promotion to the grade of no less than E-2 upon initial enlistment in an active or reserve component of a Military Service.
(2) A student presenting evidence of successful completion of a 3-year Junior ROTC program (either track) is entitled to not less than 1 year of credit in the basic course of Senior ROTC when the student enters college.
(e) Reimburse the institution for Junior ROTC instructor salaries at the rate of one-half the amount of the difference between the instructor's retired or retainer pay and the amount of active duty pay and allowances (excluding hazardous duty pay) the instructor would receive if he or she were ordered to active duty.
(f) Ensure that the provisions of § 111.7 are followed.
(g) Account for the cost incurred by the Department of Defense in sponsoring, conducting, or disestablishing a Junior ROTC unit.
(h) Evaluate annually the operation, administration, and effectiveness of
The theft of any military weapons or ammunition from a secondary educational institution shall be reported under Report Control Symbol DD-POL(SA&AR) 1358, as prescribed in DoD Directive 5100.76, “Physical Security Review Board,” February 10, 1981.
(a)
(1) Maintain a Junior ROTC enrollment of no less than 100 physcially fit students, or 10 percent of the number of students enrolled in the institution, who are at least 14 years of age and are citizens or nationals of the United States.
(2) Employ as Junior ROTC instructors retired officers and enlisted personnel whose qualifications are approved by the Secretary of the Military Department concerned to administer the basic military orientation courses. Officer instructors shall possess baccalaureate or higher-level degrees. This qualification may be waived for a period of 4 years from the time of initial hire or from the date of this part (whichever is later), if the school authority agrees and while the instructor works toward obtaining a bachelor's degree.
(3) Pay retired personnel so employed. The institution is the employing agency and shall pay the full amount due the Junior ROTC instructor. The Junior ROTC instructor shall receive retired or retainer pay from the U.S. Government. The amount due from the institution is at least the amount equal to the difference between retired or retainer pay and the active duty pay and allowance that the Junior ROTC instructor would receive if ordered to active duty. The institution shall be reimbursed for Junior ROTC instructor salaries at the rate of one-half the difference of the instructor's retirement or retainer pay and active duty pay and allowances. For purposes of calulating a Junior ROTC instructor's pay, “active duty pay and allowances” shall be limited to the basic pay, basic allowance for quarters, allowance for variable housing (VHA), allowance for uniforms (enlisted only), and basic allowance for subsistence. The level of active duty pay and allowances, less retired or retainer pay, is the minimum salary the institution shall pay Junior ROTC instructors. This should not be considered an attempt to cap or limit the amount of pay that may be agreed upon between the individual Junior ROTC instructor and the instructor's employer. The institution may pay more than the amount equal to the difference between retired or retainer pay and the individual's active duty pay and allowance rate, but shall do so without additional entitlement for reimbursement from the Federal government. (See enclosure 1 for examples of proper computation of the Junior ROTC instructor's pay.)
(4) Contract separately with the individual Junior ROTC instructor for any additional duties desired by the institution beyond those connected with the instruction, operation, and administration of the Junior ROTC program, at no cost to the Military Department concerned. Such additional services shall be performed outside the scope of Junior ROTC duties and hours. (This requirement does not preclude Junior ROTC instructors from serving on routine committees or from performing other extracurricular duties normally performed by other faculty members.) (See enclosure 1.)
(5) Compensate a Junior ROTC instructor only for the period of time he or she performs duties as a Junior ROTC instructor. For periods of service as a Junior ROTC instructor for less than 12 months of a calendar or fiscal year, the instructor shall be compensated the difference between the amount of the retirement (or retainer) pay and active duty pay times the length of employment as a Junior ROTC instructor expressed as a fraction of 12 months. (Refer to enclosure 1, Examples C and D, for clarification.)
(6) Provide an additional amount of compensation for a Junior ROTC instructor for only that part of the summer (or interim) months, between academic sessions, during which the instructor performs administrative or instructional duties that are directly related to the Junior ROTC program. Administrative and instructional duties directly related to the Junior ROTC program that would entitle a Junior ROTC instructor to additional compensation include, but are not limited to:
(i) Administrative and instructional duties performed in an interim term Junior ROTC program, such as summer school;
(ii) The grading of examinations and papers during the period immediately following the end of the school year; and
(iii) The preparation of new course materials during the period immediately preceding the beginning of a school year.
(7) Advise the Secretary of the Military Department concerned of any change of employment status of retired personnel employed at an institution.
(8) Provide suitable safeguards for the government property provided. Such safeguards shall include, but not be limited to:
(i) Employment of clerical and maintenance personnel required to issue, account for, and maintain the government property.
(ii) Bonds or insurance (or both) to cover loss and damage of the property.
(iii) Secure storage of U.S. military weapons and ammunition in the inventory of Junior ROTC units. Junior ROTC units that have U.S.-furnished military weapons and ammunition in their inventory shall be inspected for physical security by the sponsoring Military Department. Established security standards for arms rooms, including separate secure storage of bolts of operable weapons, shall be emphasized.
(9) Provide positive safeguards to prevent discrimination against students or instructors on the grounds of sex, race, religion, or national origin.
(10) Provide adequate facilities for classroom instruction, storage for the unit's equipment (see paragraph (a)(8)(iii) of this section, and adequate, suitably located drill areas, as determined by the Secretary of the Military Department concerned.
(11) Provide the required courses of instruction and maintain the standards prescribed by the Secretary of the Military Department concerned.
(b)
(2) Authorized strength of retired officer and noncommissioned officer instructors:
(i) Single Junior ROTC units and each subunit of a mutiple Junior ROTC unit shall be authorized one retired officer instructor per 500 enrolled ROTC students, or major fraction thereof, and one retired enlisted instructor per 100 enrolled ROTC students, or major fraction thereof.
(ii) As exceptions to the above, any school that qualifies for a Junior ROTC unit shall be authorized at least one officer and, when necessary, the Secretary of the Military Department concerned may authorize substitution of officers for enlisted instructors, and conversely, within the above authorizations.
(iii) Supervisory personnel for multiple Junior ROTC units shall be obtained by organizing the multiple unit so that these limitations are not exceeded.
(3) Retired officer and noncommissioned officer instructors are employees of the school and are responsible to school authorities for the conduct of the Junior ROTC program. In this regard, however, the Secretary of the Military Department concerned shall
(c)
(2) The Secretary concerned may prescribe qualifying tests and cutoff scores for Junior ROTC training.
(d)
(i) Military equipment needed for the prescribed military training program, provided the equipment is not needed for training of their regular and reserve components.
(ii) Surplus military equipment, allied to military requirements for particular technical training courses (DoD Directive 5100.13, “Donation of Surplus Personal Property to Educational Activities of Special Interest to the Armed Services,” November 18, 1971), when, in the judgment of the Secretary of the Military Department concerned, the military training requirements is warranted.
(iii) Spare parts, tools, cleaning materials, technical publications, and other materials necessary for maintenance of the equipment.
(iv) Necessary test materials, individual equipment, and uniforms.
(2) The Military Department concerned shall pay transportation charges, including packaging and handling, for shipment to and from the institution. The institution shall pay all other costs incident to maintenance and local storage and safeguarding of the property.
(e)
(2) Junior ROTC units that are in at least their 2nd year of enrollment and do not have the statutory minimum of 100 students, or 10 percent of the number of students enrolled in the institution, who are at least 14 years of age, whichever is less, shall be placed on probation immediately. No later than the end of the academic year, the Military Department concerned shall evaluate the unit's potential to attain the minimum enrollment upon the opening of school in the fall. If it is likely the enrollment minimum will not be met, the Military Department concerned shall encourage school authorities to concur in disestablishment of the unit at the end of that current school year. The Military Department concerned shall make the final determination as to the school's capability to meet the enrollment minimum. When the Military Department's evaluation indicates that minimum enrollment probably will be met at the beginning of the fall school term, the unit may be continued. However, no later than 30 days following the beginning of the next school term, the sponsoring Military Department shall determine whether the enrollment minimum has been met. If it has not, the school shall be officially notified of the unit's disestablishment, and physical termination shall be scheduled for no later than the end of that academic year.
(f)
(2) The nomination of retired officer and noncommissioned officer instructors shall be in accordance with applicable regulations of the Military Departments. The respective Military Departments shall submit the names of nominees to the Director, DoDDS, ATTN: Teacher Recruitment, for final
(3) In addition to meeting Military Department qualifications, each applicant for a Junior ROTC instructor position must meet the criteria required by the North Central Accreditation Association of Colleges and Secondary Schools (NCA). NCA criteria may be obtained from the Director, DoDDS, Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics).
The computation of the amount due to the Junior ROTC instructor, from the U.S. Government and the institutions is illustrated in the examples provided below.
Example A: A Junior ROTC instructor agrees to instruct, administer, and operate a Junior ROTC unit for 12 months at Murray High School. Murray High School remains open 12 months of the year without the usual summer recess.
Example B: If the school district in EXAMPLE A feels that the Junior ROTC instructor should be compensated more than the minimum, they may do so.
Example C: Murray High School wanted the Junior ROTC instructor to coach the football team. A separate contract between Murray High School and the Junior ROTC instructor was written to describe any additional duties desired by the institution beyond those connected with the instruction, administration, and operation of the Junior ROTC unit. (See enclosure 2, subsection A.4.)
Example D: Central High School is open 9 months of the year for instruction and a total of an additional month for preregistration activities, such as preparing curricula and counseling students in August, and postacademic activities in June, such as recording permanent grades and taking inventory on teaching materials needed for the coming academic year. As an instructor at Central High School, the Junior ROTC instructor shall participate in these required duties.
The Junior ROTC instructor has accepted a 10-month contract with Central High School to provide instruction, administration, and operation of the Junior ROTC unit. His compensation is calculated as follows:
Example E: The Junior ROTC instructor in EXAMPLE D has elected to have his compensation from the school district paid in 12 equal payments during the year. This does not change the annual minimum compensation due from the institution as the following computation indicates.
5 U.S.C. 5520a(k) and 10 U.S.C. 113(d).
This part: (a) Updates policy and responsibilities governing delinquent indebtedness of members of the Military Services, and prescribes policy for processing involuntary allotments from the pay of military members to satisfy judgment indebtedness in accordance with 5 U.S.C. 5520a(k).
(b) Establishes responsibility for procedures implementing 5 U.S.C. 5520a(k), 15 U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1665a, 1666-1666j, and 1667-1667e (“Truth in Lending Act”), and 15 U.S.C. 1601 note, and 1692-1692o (“Fair Debt Collection Practices Act”).
(c) Designates the Director, Defense Finance and Accounting Service (DFAS), as the Department of Defense Executive Agent for forms necessary to process involuntary allotments. The Executive Agent shall publish, print, stock, distribute, and revise forms.
(a) Applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard when it is not operating as a Military Service in the Navy by agreement with the Department of Transportation), the Chairman of the Joint Chiefs of Staff, the Unified Combatant Commands, the Inspector General of the Department of Defense, the Defense Agencies, and the Department of Defense Field Agencies (hereafter referred to collectively as “the Department of Defense Components”). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, the Marine Corps, and the Coast Guard.
(b) The provisions of this part do not apply to:
(1) Indebtedness of a member of the Military Services to the Federal Government.
(2) Processing of indebtedness claims to enforce judgments against military members for alimony or child support.
(3) Claims by State or municipal governments under the processing guidelines for complaints, including tax collection actions.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(1) Retired personnel, including those placed on the temporary or permanent disabled retired list; and
(2) Personnel in a prisoner of war or missing in action status, as determined by the Secretary of the Military Department concerned.
(a) Members of the Military Services are expected to pay their just financial obligations in a proper and timely manner. A Service member's failure to pay a just financial obligation may result in disciplinary action under the Uniform Code of Military Justice (10 U.S.C. 801-940) or a claim pursuant to Article 139 of the Uniform Code of Military Justice (10 U.S.C. 939). Except as stated in this section, and in paragraphs (a)(1) and (a)(2) of this section, the Department of Defense Components have no legal authority to require members to pay a private debt or to divert any part of their pay for satisfaction of a private debt.
(1) Legal process instituted in civil courts to enforce judgments against military personnel for the payment of alimony or child support shall be acted on in accordance with 42 U.S.C. 651-665, and Part 7, Chapter 7, Section B. of Department of Defense 7000.14-R
(2) Involuntary allotments under 5 U.S.C. 5520a(k) shall be established in accordance with this part.
(b) Whenever possible, indebtedness disputes should be resolved through amicable means. Claimants may contact military members by having correspondence forwarded through the military locator services for an appropriate fee, as provided under DoD Instruction 7230.7.
(c) The following general policies apply to processing of
(1) Debt complaints meeting the requirements of this part, and procedures established by the Under Secretary of Defense (Personnel and Readiness), as required by 32 CFR part 113, shall receive prompt processing assistance from commanders.
(2) Assistance in indebtedness matters shall not be extended to those creditors:
(i) Who have not made a bona fide effort to collect the debt directly from the military member;
(ii) Whose claims are patently false and misleading; or
(iii) Whose claims are obviously exorbitant;
(3) Some States have enacted laws that prohibit creditors from contacting a debtor's employer about indebtedness or communicating facts on indebtedness to an employer unless certain conditions are met. The conditions that must be met to remove this prohibition are generally such things as reduction of a debt to judgment or obtaining written permission of the debtor.
(i) At Department of Defense installations in States having such laws, the processing of debt complaints shall not be extended to those creditors who are in violation of the State law. Commanders may advise creditors that this rule has been established because it is the general policy of the Military Services to comply with State law when that law does not infringe upon significant military interests.
(ii) The rule in § 112.4(c)(3)(i) shall govern even though a creditor is not licensed to do business in the State where the debtor is located. A similar practice shall be started in any State enacting a similar law regarding debt collection.
(4) Under 15 U.S.C. 1601 note and 1692-1692o (“Fair Debt Collection Practices Act”), contact by a debt collector with third parties, such as commanding officers, for aiding debt collection is prohibited without a court order, or the debtor's prior consent given directly to the debt collector. Creditors are generally exempt from this requirement, but only when they collect on this own behalf.
(d) The following general policies apply to processing of
(1) In those cases in which the indebtedness of a military member has been reduced to a judgment, an application for an involuntary allotment from the pay of the member may be made under procedures prescribed by the Under Secretary of Defense (Personnel and Readiness). Such procedures shall provide the exclusive remedy available under 5 U.S.C. 5520a(k).
(2) An involuntary allotment from a member's pay shall not be started in any indebtedness case in which:
(i) Exigencies of military duty caused the absence of the member from the judicial proceeding at which the judgment was rendered; or
(ii) There has not been compliance with the procedural requirements of the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C. appendix sections 501-591.
(a) The Under Secretary of Defense for Personnel and Readiness shall:
(1) In consultation with the Under Secretary of Defense (Comptroller), establish procedures for the processing of debt complaints and involuntary allotments.
(2) Have policy oversight on the assistance to be provided by military authorities to creditors of military personnel who have debt complaints, and on involuntary allotment of military pay.
(b) The Under Secretary of Defense (Comptroller) shall:
(1) Establish, as necessary, procedures supplemental to those promulgated by the Under Secretary of Defense (Personnel and Readiness) to administer and process involuntary allotments from the pay of members of the Military Services; this includes the authority to promulgate forms necessary for the efficient administration and processing of involuntary allotments.
(2) Ensure that the Director, DFAS:
(i) Implements procedures established by the Under Secretary of Defense (Personnel and Readiness) and the Under Secretary of Defense (Comptroller).
(ii) Considers whether the Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended (50 U.S.C. appendix sections 501-591), has been complied with under 5 U.S.C. 5520a(k) prior to establishing an involuntary allotment against the pay of a member of the Military Services.
(iii) Acts as the Department of Defense Executive Agent for Department
(c) The Heads of the Department of Defense Components shall urge military personnel to meet their just financial obligations, since failure to do so damages their credit reputation and affects the public image of all Department of Defense personnel. See DoD Directives 1000.10,
(d) The Secretaries of the Military Departments shall:
(1) Establish, as necessary, procedures to administer and process involuntary allotments from the pay of members of the Military Services. This includes designating those commanders, or other officials who may act in the absence of the commander, who shall be responsible for determining whether a member's absence from a judicial proceeding was caused by exigencies of military duty, and establishing appeal procedures regarding such determinations.
(2) Require commanders to counsel members to pay their just debts, including complying, as appropriate, with court orders and judgments for the payment of alimony or child support.
(3) Emphasize prompt command action to assist with the processing of involuntary allotment applications.
(e) The Chief, Office of Personnel and Training, for the Coast Guard shall:
(1) Establish, as necessary, procedures supplemental to those promulgated by the Under Secretary of Defense (Personnel and Readiness) to administer and process involuntary allotments from the pay of members of the Military Services; this includes the authority to promulgate forms necessary for the efficient administration and processing of involuntary allotments.
(2) Ensure that the Commanding Officer, Coast Guard Pay and Personnel Center:
(i) Implements procedures established by the Under Secretary of Defense (Personnel and Readiness) and Chief, Office of Personnel and Training.
(ii) Considers whether the Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended (50 U.S.C. appendix sections 501-591), has been complied with under 5 U.S.C. 5520a(k) prior to establishing an involuntary allotment against the pay of a member of the Military Services.
(iii) Acts as the Coast Guard Executive Agent for forms necessary to process involuntary allotments.
5 U.S.C. 5520a(k) and 10 U.S.C. 113(d).
This part implements policy, assigns responsibilities, and prescribes procedures under 32 CFR part 112 governing delinquent indebtedness of members of the Military Services.
This part applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard when it is not operating as a Military Service in the Navy by agreement with the Department of Transportation), the Chairman of the Joint Chiefs of Staff, the Unified Combatant Commands, the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, the Marine Corps, and the Coast Guard.
(a)
(b)
(c)
(1) Including:
(i) Basic pay but excluding reduction for education for education benefits under section 38 U.S.C. 1411 (“New G.I. Bill”).
(ii) Special pay (including enlistment and reenlistment bonuses).
(iii) Incentive pay.
(iv) Accrued leave payments (basic pay portion only).
(v) Readjustment pay.
(vi) Severance pay (including disability severance pay).
(vii) Lump-sum Reserve bonus.
(viii) Inactive duty training pay.
(2) Excluding:
(i) Retired pay (including) disability retired pay).
(ii) Retainer pay.
(iii) Separation pay, Voluntary Separation Incentive (VSI), and Special Separation Benefit (SSB).
(iv) Allowances paid under titles 10 and 37 of the United States Code (e.g., Chapter 53 of title 10 and Chapter 7 of title 37, respectively) and other reimbursements for expenses incurred in connection with duty in the Military Service or allowances in lieu thereof.
(v) Payments not specifically enumerated in § 113.3(c)(1).
(3) After including the items in § 113.3(c)(1), subtracting the following pay items to compute the final earnings value of the pay subject to involuntary allotment:
(i) Federal and State employment and income tax withholding (amount limited only to that which is necessary to fulfill member's tax liability).
(ii) FICA tax.
(iii) Amounts mandatorily withheld for the United States Soldiers’ and Airmen's Home.
(iv) Deductions for the Servicemen's Group Life Insurance coverage.
(v) Retired Serviceman's Family Protection Plan.
(vi) Indebtedness to the United States.
(vii) Fines and forfeitures ordered by a court-martial or a commanding officer.
(viii) Amounts otherwise required by law to be deducted from a member's pay (except payments under 42 U.S.C. 659, 661, 662, and 665).
(d)
(e)
(a) It is DoD policy under 32 CFR part 112 that procedures be established for the processing of debt complaints against members of the Military Services and involuntary allotments from the pay of members of the Military Services.
(b) An involuntary allotment shall not exceed the lesser of 25 percent of a member's pay subject to involuntary allotment or the maximum percentage of pay subject to garnishment proceedings under the applicable State law.
(c) The amount of an involuntary allotment under 32 CFR part 112 and this part when combined with deductions as a result of garnishments or statutory allotments for spousal support and child support under 42 U.S.C. 659, 661, 662, or 665, may not exceed the lesser of
(d) The Truth in Lending Act (15 U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1666j, and 1667-1667e) prescribes the general disclosure requirements that must be met by those offering or extending consumer credit and Federal Reserve Board Regulation Z (12 CFR 226) prescribes the specific disclosure requirements for both open-end and installment credit transactions. In place of Federal Government requirements, State regulations apply to credit transactions when the Federal Reserve Board has determined that the State regulations impose substantially similar requirements and provide adequate enforcement measures. Commanding officers, with the assistance of judge advocates, should check regulations of the Federal Reserve Board to determine whether Federal or State laws and regulations govern.
(a) The Under Secretary of Defense for Personnel and Readiness shall monitor compliance with this part.
(b) The Under Secretary of Defense (Comptroller) shall ensure Defense Finance and Accounting Service (DFAS) implementation of this part.
(c) The Heads of the DoD Components shall ensure compliance with this part.
(a) The following procedures apply to the processing of debt complaints against members of the Military Services.
(1) It is incumbent on those submitting indebtedness complaints to show that they have met the disclosure requirements of the Truth in Lending Act (15 U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1666j, and 1667-1667e) and Federal Reserve Board Regulation Z (12 CFR 226), and that they complied with the Standards of Fairness (appendix B to this part).
(2) Creditors subject to Federal Reserve Board Regulation Z (12 CFR 226), and assignees claiming thereunder, shall submit with their debt complaint an executed copy of the Certificate of Compliance (appendix A to this part), and a true copy of the general and specific disclosures provided the member of the Military Service as required by the Truth in Lending Act (15 U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1666j, and 1667-1667e). Debt complaints that request assistance but do not meet these requirements will be returned without action to the claimant.
(3) A creditor not subject to Federal Reserve Board Regulation Z (12 CFR 226), such as a public utility company, shall submit with the request a certificate that no interest, finance charge, or other fee is in excess of that permitted by the law of the State in which the obligation was incurred.
(4) A foreign-owned company having debt complaints shall submit with its request a true copy of the terms of the debt (English translation) and shall certify that it has subscribed to the Standards of Fairness (appendix B to this part).
(5) Debt complaints that meet the requirements of this part shall be processed by Department of Defense Components. “Processed” means that Heads of the Department of Defense Components, or designees, shall:
(i) Review all available facts surrounding the transaction forming the basis of the complaint, including the member's legal rights and obligations, and any defenses or counterclaims the member may have.
(ii) Advise the member concerned that:
(A) Just financial obligations are expected to be paid in a proper and timely manner, and what the member should do to comply with that policy;
(B) Financial and legal counseling services are available under DoD Directive 1344.7
(C) That a failure to pay a just debt may result in the creditor obtaining a judgment from a court that could form the basis for collection of pay from the member pursuant to an involuntary allotment.
(iii) If a member acknowledges a debt as a result of creditor contact with a DoD Component, advise the member that assistance and counseling may be available from the on-base military banking office, the credit union serving the military field of membership, or other available military community service organizations.
(iv) Direct the appropriate commander to advise the claimant that:
(A) Those aspects of DoD policy prescribed in 32 CFR part 112.4, are pertinent to the particular claim in question; and
(B) The member concerned has been advised of his or her obligations on the claim.
(v) The commander's response to the claimant shall not undertake to arbitrate any disputed debt, or admit or deny the validity of the claim. Under no circumstances shall the response indicate whether any action has been taken, or will be taken, against the member as a result of the complaint.
(b) The following procedures apply to the processing of involuntary allotments from the pay of members of the Military Services.
(1)
(ii) Each application must include a copy of the final judgment certified by the clerk of court and such other documents as may be required by § 113.6(b)(1)(iv).
(iii) A garnishment summons or order is insufficient to satisfy the final judgment requirement of § 113.6(b)(1)(ii) and is not required to apply for an involuntary allotment under this part.
(iv) Involuntary allotment applications must contain the following information, certifications, and acknowledgment:
(A) The full name, social security number, and branch of Service of the military member against whose pay an involuntary allotment is sought. Although not required, inclusion of the member's current duty station and duty address on the application form will facilitate processing of the application.
(B) The applicant's full name and address. If the applicant is not a natural person, the application must be signed by an individual with the authority to act on behalf of such entity. If the allotment is to be in favor of a person other than the original judgment holder, proof of the right to succeed to the interest of the original judgment holder is required and must be attached to the application.
(C) The dollar amount of the judgment. Additionally, if the judgment awarded interest, the total dollar amount of the interest on the judgment accrued to the date of application.
(D) A certification that the judgment has not been amended, superseded, set aside, or satisfied; or, if the judgment has been satisfied in part, the extent to which the judgment remains unsatisfied.
(E) A certification that the judgment was issued while the member was not on active duty (in appropriate cases). If the judgment was issued while the member was on active duty, a certification that the member was present or
(F) A certification that the member's pay could be garnished under applicable State law and section 5520a(k) of the United States Code, if the member were a civilian employee.
(G) A certification that, to the knowledge of the applicant, the debt has not been discharged in bankruptcy, nor has the member filed for protection from creditors under the bankruptcy laws of the United States.
(H) A certification that if the judgment is satisfied prior to the collection of the total amount through the involuntary allotment process, the applicant will provide prompt notice that the involuntary allotment must be discontinued.
(I) A certification that if the member overpays the amount owed on the judgment, the applicant shall refund the amount of overpayment to the member within 30 days of discovery or notice of the overpayment, whichever, is earlier, and that if the applicant fails to repay the member, the applicant understands he or she may be denied the right to collect by involuntary allotment on other debt reduced to judgments.
(J) Acknowledgment that as a condition of application, the applicant agrees that neither the United States, nor any disbursing official or Federal employee whose duties include processing involuntary allotment applications and payments, shall be liable for any payment or failure to make payment from moneys due or payable by the United States to any person pursuant to any application made in accordance herewith.
(v) The original and three copies of the application and supporting documents must be submitted by the applicant to DFAS.
(vi) A complete “application package” (the DD Form 2653, supporting documentation, and three copies of the application and supporting documents), is required for processing of any request to establish an involuntary allotment pursuant to this part and 32 CFR part 112.
(vii) Applications that do not conform to the requirements of this part shall not be processed. If an application is ineligible for processing, the application package shall be returned to the applicant with an explanation of the deficiency. In cases involving repeated false certifications by an applicant, the designated DFAS official may refuse to accept or process additional applications by that applicant for such period of time as the official deems appropriate to deter against such violations in the future.
(2)
(A) Complete Section I of DD Form 2654, “Involuntary Allotment Notice and Processing” (Appendix D to this part), by inserting the name, social security number, rank, and branch of service of the military member against whom an application for involuntary allotment is being processed. Additionally, the DFAS official shall provide the due date for receipt of a response at DFAS. The due date shall be 90 days from the date DFAS mails the DD Form 2654 to the commander and member concerned as provided for in § 113.6(b)(2)(i)(B).
(B) Mail one copy of the application package to the member and two copies of the application package, along with DD Form 2654, to the commander of the military member or other official as designated by the Military Service concerned during times of war, national emergency, deployment, or other similar circumstances, who may act for the commander, provided the Military Service concerned has provided DFAS with the name or position of the official and the appropriate address (hereinafter, the meaning of the term “commander” includes such other official).
(C) Within 60 days of mailing the copies of the application package and DD Form 2654, DFAS shall provide notice
(D) Retain the original of the application package and DD Form 2654.
(ii) Upon receipt of an application, the commander shall determine if the member identified in Section I of DD Form 2654 is assigned or attached to the commander's unit and available to respond to the involuntary allotment application. If the member is not assigned or attached, or not available to respond (e.g., retired, in a prisoner of war status, or in a missing in action status), the commander will promptly complete Section II of DD Form 2654 and attach appropriate documentation supporting the determination. The commander will then mail the application package and DD Form 2654 to DFAS. Section II shall also be used by the commander to notify DFAS of extensions beyond the due date for a response contained in Section I of DD Form 2654. When such extensions are authorized, the commander will complete Section II, make a copy of Sections I and II, and promptly mail the copy to DFAS.
(iii) Within 5 days of receipt of an application package and DD Form 2654 from the designated DFAS official, the commander shall notify the member of the receipt of the application, provide the member a copy of the entire application package, and counsel the member using and completing Section III of DD Form 2654 about the following:
(A) That an application for the establishment of an involuntary allotment for the lesser of 25 percent of the member's pay subject to involuntary allotment or the maximum percentage of pay subject to garnishment proceedings under the applicable State law has been received.
(B) That the member has 15 calendar days from the date of receipt of the commander's notice to complete Section IV of DD Form 2654. That for good cause shown, the commander may grant an extension of reasonable time (normally not exceeding 30 calendar days) to submit a response. That during times of deployment, war, national emergency, assignment outside the United States, hospitalization, or other similar situations that prevent the member from obtaining necessary evidence or from responding in a timely manner, extensions exceeding 30 calendar days may be granted. That if the member fails to respond within the time allowed, the commander will note the member's failure to respond in Section V of DD Form 2654 and send the form to DFAS for appropriate action.
(C) That the member's response will either consent to the involuntary allotment or contest it.
(D) That the member may contest the application for any one of the following reasons:
(
(
(
(
(
(
(
(E) That, if the member contests the involuntary allotment, the member shall provide evidence (documentary or otherwise) in support thereof. Furthermore, that any evidence submitted by the member may be disclosed to the applicant for the involuntary allotment.
(F) That the member may consult with a legal assistance attorney, if reasonably available, or a civilian attorney at no expense to the government. That if a legal assistance attorney is available, the member should immediately arrange for an appointment. That the member may request a reasonable delay from the commander to obtain legal assistance (in cases where an approved delay will cause DFAS to receive the member's response after the due date identified in Section I of DD Form 2654, the commander must immediately notify the designated DFAS official of the delay, the date for an expected response, and the reason for the delay by completing Section II of DD Form 2654 and forwarding a copy of Sections I and II to DFAS). Additionally, that requests for extensions of time based on the need for legal assistance shall be denied to members who fail to exercise due diligence in seeking such assistance.
(G) That if the member contests the involuntary allotment on the grounds that exigencies of military duty caused the absence of the member from the judicial proceeding at which the judgment was rendered, then the member's commander shall review and make the final determination on this contention, and notify the designated DFAS official of the commander's decision by completing Section V of DD Form 2654 and forwarding the form to DFAS.
(
(
(H) That if the member contests the involuntary allotment on any basis other than exigencies of military duty, the application package and DD Form 2654 shall be returned to the commander who shall forward it to the designated DFAS official for appropriate action.
(I) That if the member fails to respond to the commander within the time allowed under § 113.6(b)(2)(iii)(B), the commander shall notify the designated DFAS official of the member's failure to respond by completing Section V of DD Form 2654, and forwarding the form to DFAS.
(iv) After counseling the member in accordance with § 113.6(b)(2)(iii)(A)-(I), the commander shall:
(A) Date and sign Section III of DD Form 2654.
(B) Obtain the member's acknowledgment of counseling by having the member sign the appropriate space on Section III of DD Form 2654.
(C) Determine if the member consents to the involuntary allotment or needs the time authorized under this part to review the application package and take appropriate action. If the member consents to the involuntary allotment, the commander shall direct the member to appropriately complete Section IV of DD Form 2654. The commander must then complete the appropriate item in Section V and promptly forward the completed DD Form 2654 to the designated DFAS official.
(D) Complete the appropriate items in Section V of DD Form 2654 when the member fails to respond within the time authorized for a response, or asserts that exigencies of military duty caused the absence of the member from an appearance in the judicial proceeding upon which the Involuntary Allotment Application is sought.
(
(
(
(E) Promptly following the date the member's response is due to the commander as determined by § 113.6(b)(2)(iii)(B), ensure that the DD Form 2654 is appropriately completed and mail the form, along with any response received from the member, to DFAS.
(F) Provide the member a copy of the completed DD Form 2654 within 5 days of mailing to the designated DFAS official.
(v) Upon receipt of DD Form 2654 and any additional evidence submitted by the member, the designated DFAS official shall conduct a review of the entire application package, DD Form 2654, and any evidence submitted by the member, to determine whether the application for an involuntary allotment should be approved and established.
(A) In those cases where the member's commander has completed Section V of DD Form 2654, and determined that exigencies of military duty caused the absence of the member from an appearance in a judicial proceeding upon which the involuntary allotment application is sought, the designated DFAS official shall deny the involuntary allotment application and provide the applicant written notice of the denial and the reason therefor. The designated DFAS official shall also advise the applicant that:
(
(
(
(
(
(
(B) Upon receiving written notice that an applicant has successfully appealed a commander's determination on exigencies of military duty that resulted in denial of an involuntary allotment application, DFAS shall review the application in accordance with § 113.6(b)(2)(v)(C), and determine whether the involuntary allotment should be approved and initiated.
(C) In all cases, other than as described in § 113.6(b)(2)(v)(A), the designated DFAS official shall deny an involuntary allotment application, and
(
(
(
(
(
(
(
(
(D) In all cases other than as described in § 113.6(b)(2)(v) (A) and (C), the designated DFAS official shall approve the involuntary allotment application and establish an involuntary allotment against the pay subject to involuntary allotment of the member.
(vi) The designated DFAS official shall, at any time after establishing an involuntary allotment, cancel or suspend such allotment and notify the applicant of that cancellation if the member concerned, or someone acting on his or her behalf, submits legally sufficient proof, by affidavit or otherwise, that the allotment should not continue because of the existence of the factors enumerated in § 113.6(b)(2)(v)(A) and (C)(
(3)
(i) Payment of an approved involuntary allotment under 32 CFR part 112 and this part shall commence within 30 days after the designated DFAS official has approved the involuntary allotment.
(ii) Payments under this part shall not be required more frequently than once each month, and the designated official shall not be required to vary normal pay and disbursement cycles.
(iii) If the designated DFAS official receives several applications on the same member of a Military Service, payments shall be satisfied on a first-come, first-served basis.
(iv) Payments shall continue until the judgment is satisfied or until canceled or suspended.
(A) DFAS shall collect the total judgment, including interest when awarded by the judgment. Within 30 days following collection of the amount of the judgment, including interest as annotated by the applicant in Section I of DD Form 2654, the applicant may submit a final statement of interest that accrued during the pay-off period. This final statement of interest request must be accompanied by a statement of account showing how the applicant computed the interest amount. DFAS will collect this post-application interest provided it is an amount owed pursuant to the judgment. DFAS shall not accept any further interest requests.
(B) Interest or other costs associated with the debt forming the basis for the judgment, but not included as an amount awarded by the judgment, shall not be paid to applicants for involuntary allotments.
(v) If the member is found not to be entitled to money due from or payable
(vi) Upon receiving notice from an applicant that a judgment upon which an involuntary allotment is based has been satisfied, vacated, modified, or set aside, the designated DFAS official shall promptly adjust or discontinue the involuntary allotment.
(vii) The Under Secretary of Defense (Comptroller) may, in DoD 7000.14-R
I certify that the (Name of Creditor) upon extending credit
I further certify that the Standards of Fairness set forth in DoD Directive 1344.9
1. No finance charge contracted for, made, or received under any contract shall be in excess of the charge that could be made for such contract under the law of the place in which the contract is signed in the United States by the military member.
a. In the event a contract is signed with a U.S. company in a foreign country, the lowest interest rate of the State or States in which the company is chartered or does business shall apply.
b. However, interest rates and service charges applicable to overseas military banking facilities shall be as established by the Department of Defense.
2. No contract or loan agreement shall provide for an attorney's fee in the event of default unless suit is filed, in which event the fee provided in the contract shall not exceed 20 percent of the obligation found due. No attorney fees shall be authorized if the attorney is a salaried employee of the holder.
3. In loan transactions, defenses that the debtor may have against the original lender or its agent shall be good against any subsequent holder of the obligation. In credit transactions, defenses against the seller or its agent shall be good against any subsequent holder of the obligation, provided that the holder had actual knowledge of the defense or under conditions where reasonable inquiry would have apprised the holder of this fact.
4. The military member shall have the right to remove any security for the obligation beyond State or national boundaries if the military member or family moves beyond such boundaries under military orders and notifies the creditor, in advance of the removal, of the new address where the security will be located. Removal of the security shall not accelerate payment of the obligation.
5. No late charge shall be made in excess of 5 percent of the late payment, or $5.00, whichever is the lesser amount, or as provided by law or applicable regulatory agency determination. Only one late charge may be made for any tardy installment. Late charges shall not be levied where an allotment has been timely filed, but payment of the allotment has been delayed. Late charges by overseas banking facilities are a matter of contract with the Department of Defense.
6. The obligation may be paid in full at any time or through accelerated payments of any amount. There shall be no penalty for prepayment. In the event of prepayment, that portion of the finance charges that has inured to the benefit of the seller or creditor shall be prorated on the basis of the charges that would have been ratably payable had finance charges been calculated and payable as equal periodic payments over the terms of the contract, and only the prorated amount to the date of prepayment shall be due. As an alternative, the “Rule of 78” may be applied.
7. If a charge is made for loan insurance protection, it must be evidenced by delivery of a policy or certificate of insurance to the military member within 30 days.
8. If the loan or contract agreement provides for payments in installation, each payment, other than the down payment, shall be in equal or substantially equal amounts, and installments shall be successive and of equal or substantially equal duration.
9. If the security for the debt is repossessed and sold in order to satisfy or reduce the debt, the repossession and resale shall be governed by the laws of the State in which the security is requested.
10. A contract for personal goods and services may be terminated at any time before delivery of the goods or services without charge to the purchaser. However, if goods made to the special order of the purchaser result in preproduction costs, or require preparation for delivery, such additional costs shall be listed in the order form or contract.
a. No termination charge shall 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 that 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 the Truth in Lending Act (15 U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1665a, 1666-1666j, and 1667-1667e) and Federal Reserve Board Regulation Z (12 CFR 226)).
10 U.S.C. 261, 267, 275, 511, 651, 652, 671, 1331, 6330, and 8914.
This part updates policy and standardize data elements affecting the RCCPDS.
This part applies to: (a) The Office of the Secretary of Defense (OSD); the Military Departments (including their National Guard and Reserve components); the Chairman, Joint Chiefs of Staff and Joint Staff; the Defense Agencies; and the U.S. Coast Guard, by agreement with the Department of Transportation (DoT), when it is not operating as a military service in the Navy.
(b) All officers, warrant officers, and enlisted personnel assigned to the Ready Reserve, the Standby Reserve, and the Retired Reserve. Reservists on Active Duty for Training (ADT) who continue their assignment with a Reserve component are included. Reserve Officer Training Corps (ROTC) members, who are not members of the Simultaneous Membership Program (SMP), are excluded. Also excluded are individuals who have elected discharge after 20 creditable years instead of transfer to the Retired Reserve. The Defense Manpower Data Center (DMDC) shall maintain an historical file on those individuals.
(c) Enlisted members of an active component, who also hold a Reserve commission, shall not be reported in the RCCPDS.
(d) Service members on Extended Active Duty (EAD) who are part of the active component or assigned to the Selective Service System (SSS) shall not be reported. (That does not include Service members identified in § 114.5(a)(1)).
(a) The RCCPDS is the computerized common data base established to meet the policy requirements and to provide statistical tabulations of Reserve components’ strengths and related data for use throughout the Department of Defense, other Government Agencies, the Congress, and for appropriate public release by the Assistant Secretary of Defense (Public Affairs) (ASD(PA)) (DoD Directive 1205.17
(b) The requirements and procedures prescribed by 32 CFR part 286a must be followed to safeguard the personnel data maintained in that reporting system. Individuals having access to identifiable personnel information may be held personally responsible and punishable under the law for making unauthorized disclosures.
(a) The
(1) Establish policy and provide guidance for Reserve Component Categories (RCCs), personnel transaction accounting, personnel data items, definitions, and accuracy standards.
(2) Provide policy guidance to the DMDC on the content and use of the RCCPDS including data fields, definitions, frequency, format, and the content of periodic and special RCCPDS
(3) Revise and maintain this part, as necessary, to update data requirements and provide accurate and effective guidance on personnel data management to the Military Departments and their Reserve components.
(b) The
(1) Ensure that Reserve component military personnel information requirements for acturial valuations and for effective Total Force military personnel management are identified to the ASD(RA).
(2) Exercise such policy guidance and management supervision for the DMDC, consistent with ASD(FM&P) responsibilities in 32 CFR part 384, as required, to ensure that adequate resources are available and used by the DMDC to fulfill its responsibilities.
(c) The
(1) Operate and maintain the RCCPDS, to include computer support, software development, quality control, inquiry capabilities, and administrative support.
(2) Develop, produce, and distribute all periodic and special RCCPDS reports.
(3) Provide programming and analytical support to the ASD(RA) for special studies requiring use of the RCCPDS.
(4) Modify the RCCPDS to reflect the changing nature of the Reserve components.
(5) Inform the ASD(RA) of data produced from the RCCPDS for other users and of the state and quality of the information submitted by the Reserve components.
(d) The
(1) Provide their respective Reserve components with the support necessary to maintain a personnel data system.
(2) Prepare at the end of each month, and submit within 20 calendar days, a “Master Officer File” and “Master Enlisted File” reflecting the status of each member of the Reserve component as of the last day of each month, as stated in Appendix A to this part.
(3) Prepare at the end of each month, and submit wthin 20 calendar days, an “Officer Transaction File” and an “Enlisted Transaction File” reflecting the gains, losses, reenlistments, extensions, and transfers of Reserve component personnel that occurred during the reporting month, as stated in Appendix C to this part. Transactions processed within 45 days of effective day shall not be considered late, due to data lag.
(4) Edit monthly submissions according to the editing concept defined in appendix B to this part.
(5) Perform a quality control validation of the data before submission to the OSD.
(a) The following categories of Full-Time Support (FTS) personnel shall be reported in the RCCPDS:
(1)
(2)
(b) As the official DoD vehicle for reporting Reserve component manpower strengths, records reported in RCCPDS (as prescribed in § 114.4(d) (2) and (3)) may not be duplicated in other DoD-wide strength reporting systems. Additionally, to support the accuracy of strength data in the system, the DoD Components shall ensure that:
(1) All strength-effecting changes are processed and repored without delay.
(2) All master and transaction files are edited before submission following the procedures in appendix C to this part.
(c) Requests to provide specifically tailored reports and inquiries to system users shall be directed to the address in paragraph (g) of this section. A Reserve component may not be provided data relative to another Reserve component without prior approval of that Reserve component.
(d) Any information available to the RCCPDS required by the SSS and the
(e) Information from the RCCPDS shall be provided annually to Federal Agencies screening employees who are also Reserve component members, as prescribed by 32 CFR part 44.
(f) RCCPDS data validity shall be ensured, as follows:
(1) The following shall be critical data for all Reserve component members, and the goal shall be 100-percent validity to ensure acceptability in the system appendix A to this part.
(2) Each of the following (as applicable in each Reserve Component Category) shall have as a goal at least 98-percent validity:
(3) The goal for all remaining data fields shall be:
(i) 95-percent validity for the Ready Reserve and Standby Reserve.
(ii) 95-percent validity for the Retired Reserve eligible for pay at age 60.
(4) The data validity rates §114.6(f) (1) through (3)) shall be used as standards for judging the validity of that data base and shall be provided to any audit or inspection agency reviewing their accuracy.
(g) Magnetic tape files and the quality control edit report (apendices E and F) to this part shall be delivered by the 20th of the month following the previous report period to the following: Defense Manpower Data Center, Attn: Reserve File Manager, 99 Pacific Street, suite 155-A, Monterey, CA 93940-3231.
The reporting requirements for this part are assigned the following Report Control Symbols (RCS):
Master File: DD-RA(M)1147 (See Appendix A to this part).
Transaction File: DD-RA(M)1148 (See Appendix C to this part).
1. All transactions flowing into the RCCPDS from the Reserve components apply to gains and losses (including transfers, reenlistments and extensions). Report the appropriate Reserve Component Category Designator (RCCD) and Reserve Component Training-Retirement Category Designator (RCTRCD) for all transactions, as follows:
a. For accessions, use codes for gaining categories listed in record field 92.a.
b. For transfers, use codes for categories to which transferred listed in record field 92.d.
c. For losses, use codes for categories from which loss occurred listed in record field 92.b.
2. The following conditions show examples of acceptable transaction practices:
a. When a Service member is transferred from the IRR to the Standby Reserve, submit a transfer transaction i.e. TN.
b. If a Service member transfers from one State to another, and continues as a Selected Reservist of the same Reserve component, submit no transaction.
c. If a Service member is transferred from the IRR and/or ING (or Standby and/or Retired) to the Selected Reserve, submit a transfer transaction. Do not submit a corresponding loss transaction for the decrease in IRR strength.
d. A loss to the Reserve component shall only be reported if a change from Reserve component appropriations to Active component appropriations occurs. That does not apply to Reserve component members performing duty for 180 days, or less, in support of an Active component mission that is being funded through Active component appropriations. Reserve component members shall be reported in RCCPDS in their current Reserve Component Category while performing that duty.
3. The occurrence of multiple transactions during a single reporting period is unusual. However, those must be reported against the same record in the same update cycle. The following conditions shall apply:
a. Include only valid gains, losses, transfers, reenlistments, and extensions.
b. Do not report record corrections resulting from erroneous gains, losses, reenlistments, or extensions. For example, if an erroneous “loss” is processed and then a corresponding “gain” is initiated during the same reporting cycle, do not report those transactions.
c. Ensure that the transaction effective dates of the various transactions are different.
All data submitted to the RCCPDS must be edited by the Reserve components for validity, reliability, and consistency before submission to ensure that the Reserve component strengths match the official strengths produced from the RCCPDS. At the Department of Defense, all master files and transaction inputs are edited before file update to ensure the accuracy of files and resulting reports. Use the following edit procedures to screen all input:
a.
b.
a.
(1) A gain from outside the Reserve component is valid only if the Service member's record did not exist on the Reserve component's last month's master file. If the Service member's record already exists on last month's master file, the transaction shall reject and not be counted.
(2) A transfer from inside the Reserve component (i.e. from IRR to Selected Reserve) is valid if the Service member's record existed on the Reserve component's last month's master file. If that condition is not satisfied, the transaction shall reject and not be counted.
b.
c.
d.
3.
a. When the Reserve component code equals “9”.
b. When the SSN does not fit within the numeric boundaries established by the Social Security Administration.
a. During the month's reporting cycle, each gain, loss, reenlistment, extension, or transfer transaction shall have a corresponding impact on the master file for the same period. The following relationships exist:
(1) When a gain transaction is submitted, report a master file record on that Service member during the same cycle.
(2) When a loss transaction is reported, eliminate the master file record showing the Service member as a Reservist.
(3) When a reenlistment and/or extension transaction is submitted, the corresponding master file for the same period must reflect the individual as being in a Reserve component.
(4) When a transfer transaction occurs, the corresponding master file for the same period must reflect the individual as being in the new Reserve component category.
b. All transactions that cannot satisfy the above relationship to the current master file shall reject and will not be counted.
A. Submit magnetic tape files separately for each Reserve component within 20 calendar days of each month's end (as of date of the file). Separate each file into “officer” and “enlisted” files.
B. Order each file by Social Security Number (field number 3), in ascending order, beginning with “001010001.” Additionally, sort transaction records with like SSNs on the ascending transaction effective date.
C. Multifile reels are permissible and preferred to reduce the volume of tape handling.
D. All tapes shall be 9-track, 6250 or 1600 bytes per inch (BPI), extended binary coded decimal interchange code (EBCDIC), with standard IBM labels. Data set names (DSN) shall be seven positions without spaces or periods, as follows:
1. First position;
2. Second position:
3. Third through sixth position, as of date. Enter:
4. Seventh position;
E. Block all files with 13,600 characters (32 data records of 425 characters per block).
F. Accompany all magnetic tape files by a computer-produced quality control edit. Make that edit after the files have been produced, but before submission to the OSD. The computer-produced edit may also serve as the letter of transmittal for the files. (See Appendices E and F for format.)
G. Mail all magnetic tape files and quality control edits to the address shown in § 114.6(g).
The format for each Master File (1147) Quality Control Edit Report is, as follows (data is illustrative):
The format for each Transaction File (1148) Quality Control Edit Report is, as follows (data is illustrative):
Sec. 301, 80 Stat. 379; 5 U.S.C. 301, sec. 1(5)(A), 72 Stat. 1438; 10 U.S.C. 271, E.O. 11190; 3 CFR, 1964-1965 Comp. p. 272, E.O. 11382; 3 CFR, 1967 Comp. p. 327.
This part establishes Department of Defense policy guidance to the Military Departments for assignment of military personnel to and transfer between reserve categories, and discharge from reserve status under the provisions of the Military Selective Service Act of 1967 (50 App. U.S.C. 451 et seq.) and title 10 U.S.C.
(a)
(1) Transfer thereto under sections 269(a) and 651 of title 10 U.S.C. upon release from active duty:
(2) Appointment as a Reserve Officer and assignment to the Ready Reserve under section 6(d), The Military Selective Service Act of 1967 (50 App. U.S.C. 451 et seq.) and section 269(a) of title 10 U.S.C.;
(3) Entry (appointment or enlistment) into the Army National Guard of the United States or Air National Guard of the United States in accordance with section 269(b) of title 10 U.S.C. as affected by sections 510, 591, 3077, 3261, 3351, 8077, 8261, and 8351 of title 10 U.S.C.;
(4) Direct entry under section 511 of title 10 U.S.C.;
(5) Direct voluntary entry (appointment or enlistment) of an individual into the Ready Reserve, other than as provided above.
(b)
(c)
(a) Provided they are not on active duty, the following personnel who have not fulfilled their total military service statutory obligation shall, upon their request, be assigned to or transferred to the Standby Reserve:
(1) Those who have served 5 or more years on active duty (other than for training).
(2) Those who have served on active duty (other than for training) and participated satisfactorily in accredited training programs of the Ready Reserve for a combined total of at least 5 years, or such shorter period as the Secretary of a Military Department concerned, with the approval of the Secretary of Defense, may prescribe.
(b) Individuals qualifying for assignment or transfer to the Standby Reserve under paragraph (a) of this section, shall, if otherwise qualified therefor and a suitable vacancy exists, be afforded the opportunity to execute a written agreement to be assigned to or remain in the Ready Reserve. All such voluntary agreements will provide that:
(1) The reservist may be transferred to the Standby Reserve by the appropriate Secretary for cogent reasons;
(2) The reservist waives his right to transfer to the Standby Reserve under the conditions stated in paragraph (a) of this section, while serving under such agreement.
(3) The period of the agreement shall be as prescribed by part 125 of this subchapter.
(c) Transfer to the Standby Reserve under the screening process in conform-ance with section 271 of title 10, U.S.C. will be accomplished under part 125 of this subchapter.
(d) Transfer to the Standby Reserve of members of the Army National Guard of the United States or the Air National Guard of the United States will be subject to section 269(g) of title 10 U.S.C.
(e) Upon transfer of a member of the Ready Reserve to the Standby Reserve, notification thereof to the Selective Service System will be made by the Military Department concerned in accordance with part 136 of this subchapter.
(f) Assignment to the Inactive Status List of the Standby Reserve and retention thereon is governed by part 136 of this subchapter.
(a) In accordance with section 272 of title 10 U.S.C. any member of the Standby Reserve who has not completed his statutory obligated period of military service in the Ready Reserve may be transferred to the Ready Reserve whenever the reasons for his transfer to the Standby Reserve no longer exist, provided he is otherwise qualified and a requirement exists.
(b) Subject to such regulations as the appropriate Secretary may prescribe, a member of either the Standby Reserve or the Retired Reserve may, upon his own request, be transferred to the Ready Reserve if qualified and a requirement exists for him. However, a member of the Retired Reserve who is entitled to retired pay may not be transferred to the Ready Reserve unless the Secretary concerned personally makes a special finding that the member's services in the Ready Reserve are indispensable. Such voluntary transfer will be accomplished under section 269(d) of title 10, U.S.C. Those who have fulfilled their Ready Reserve statutory obligation will be required to execute a written agreement to serve in the Ready Reserve under conditions set forth in this paragraph (b).
(c) In any case, where an individual is transferred from the Standby Reserve to the Ready Reserve or the Retired
(a) Enlisted members of the Ready Reserve or the Standby Reserve not on active duty who have completed their statutory obligation or who are not otherwise subject to a military obligation will be discharged upon the completion of their obligation or upon the expiration of their enlistment, as the case may be, unless they voluntarily (1) re-enlist to serve in the Ready Reserve or Standby Reserve, or (2), where applicable, extend their enlistment to remain in the Ready Reserve or (3) request transfer to the Inactive Status List of the Standby Reserve under the provisions of part 136 of this subchapter. Only those personnel listed in part 136 of this subchapter may re-enlist in the Standby Reserve.
(b) Any person who while a member of a reserve component becomes a regular or duly ordained minister of religion shall be discharged from such reserve component upon request under section 1162(b) of title 10, U.S.C. The definition of regular or duly ordained minister of religion provided in section 16(g) of The Military Selective Service Act of 1967 (50 App. U.S.C., 451 et seq.) shall be used in connection with this regulation.
(c) Those commissioned officers of the reserve who have accepted indefinite appointment will not be subject to mandatory discharge upon completion of the statutory obligation.
(d) Discharge from one's statutory obligation for hardship or other causes will be governed by pertinent provisions of parts 50 and 125 of this subchapter.
(e) Discharge from the reserve components is governed by sections 1003, 1162, and 1163 of title 10, U.S.C., subject to sections 680-681 and 1006 of the same reference.
(f) Upon the discharge of members of the Standby Reserve, due notification thereof will be made to the Selective Service System by the Military Department concerned.
10 U.S.C. 511, 32 U.S.C. 302, 50 App. U.S.C. 456(c)(2)(A).
This part updates uniform policies governing active duty and active-duty-for-training programs established to provide basic training for persons enlisting directly into the Reserve Components (see § 132.3(a) and (d)(1)).
(a) The provisions of this part apply to the Military Departments conducting reserve enlistment programs under the provisions of title 10, U.S.C. section 511, and title 32, U.S.C. for personnel without prior military service.
(b) Initial active duty or active-duty-for-training programs may include, in addition to recruit or basic individual training, basic unit training and various types of specialist training.
(a)
(b)
(2) Persons without prior military service who are 26 years or over who enlist under section 511(a) of title 32, U.S.C. will be enlisted for such period as is prescribed by the Secretary of the Military Department concerned.
(c)
(i) The initial period of active-duty-for-training will be determined within each Military Service on the basis of the amount of training considered necessary to qualify the individual for the military specialty for which he enlisted.
(ii) Unless otherwise provided by law, personnel shall participate in reserve training in the Ready Reserve for the total period of enlistment except for the period of delay in reporting for active-duty-for-training permitted by paragraph (d) of this section.
(iii) Deferment from induction of draft-liable enlistees based on satisfactory service in the Reserves is governed by the Military Selective Service Act of 1967, as supplemented by Selective Service Regulations.
(2) Persons without prior military service who enlist in the Reserve Forces under section 511(b) of title 10, U.S.C. will perform such active-duty-for-training and inactive duty training as required to qualify them as combat ready by not later than 6 months following date of enlistment.
(d)
(i) Persons enlisting for positions requiring security clearance for access to or work with classified military information or equipment may be delayed to the extent necessary to accomplish the required clearances.
(ii) Persons with special qualifications enlisted to fill positions requiring highly specialized skills for which appropriate formal training courses are offered only infrequently may be delayed to the extent necessary to insure that the enlistee receives the training commensurate with the requirements of the position for which enlisted.
(iii) Persons who have enlisted and who subsequently incur a personal hardship as a result of an unexpected delay in being ordered to initial active-duty-for-training may be delayed beyond 180 days under regulations prescribed by the Secretary of the Military Department concerned.
(iv) Delays for such personnel shall, in no case, exceed a period of 1 year from date of enlistment. Such delays shall not be employed for the purpose of stockpiling personnel.
(2) Participation in Reserve training by individuals during periods of delay will be in accordance with part 102 of this subchapter.
(3) Persons enlisting in the Reserve Components under section 511(b) of title 10, U.S.C., shall be ordered to active duty or advanced school training no later than 1 year following enlistment.
(e)
(f)
(g)
(h)
(1) The Military Departments will program and budget for advanced individual training capabilities sufficiently to fulfill the individual training requirements of National Guard and Reserve units on a priority consistent with mobilization missions assigned.
(2) Personnel enlisted under subsections (a) or (d) of 10 U.S.C. 511, who have received such advanced training will be required to agree to actively participate in the Selected Reserve for the duration of their statutory obligation.
In the interest of maintaining reasonable uniformity and equity among the reserve enlistment programs of the Military Departments, proposed changes to existing reserve enlistment programs established in conformance with this part and programs proposed for establishment under its provisions will be submitted to the Assistant Secretary of Defense (Manpower and Reserve Affairs) for approval.
10 U.S.C. 133.
This part provides policy, prescribes procedures, and assigned responsibilities regarding the use of copyrighted sound and video recordings within the Department of Defense.
(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified commands, and the Defense Agencies (hereafter referred to collectively as “DoD Components”).
(b) This part does not regulate the procurement or use of copyrighted works for authorized official purposes.
(a) It is DoD policy: (1) To recognize the rights to copyright owners by establishing specific guidelines for the use of copyrighted works by individuals within the DoD community, consistent with the Department's unique mission and worldwide commitments, and (2) Not to condone, facilitate, or permit unlicensed public performance or unlawful reproduction for private or personal use of copyrighted sound or video recordings, using government appropriated or nonappropriated-fund-owned or leased equipment or facilities.
(b) Although the policy expressed in this Directive takes into account the copyright law of the United States, the application of that law to specific situations is a matter for interpretation by the U.S. Copyright Office and the Department of Justice.
(a) Permission or licenses from copyright owners shall be obtained for public performance of copyrighted sound and video recordings.
(b) Component procedures established pursuant to § 142.5, below provide guidance for determining whether a performance is “public.” These general principles will be observed:
(1) A performance in a residential facility or a physical extension thereof is not considered a public performance.
(2) A performance in an isolated area or deployed unit is not considered a public performance.
(3) Any performance at which admission is charged normally would be considered a public performance.
(c) Government audio and video duplicating equipment and appropriated funded playback equipment may not be used for reproduction of copyrighted sound or video recordings.
Heads of DoD Components shall establish procedures to comply with this Directive and shall provide necessary local guidance and legal interpretation.
10 U.S.C. 801-940; and 10 U.S.C. 976.
This rule is reissued to reflect revisions in policies and procedures for organizations whose objective is to organize or represent members of the Armed Forces of the United States for purposes of negotiating or bargaining about terms or conditions of military service. The policies and procedures set forth herein are designed to promote the readiness of the armed forces to defend the United States. The part does not modify or diminish the existing authority of commanders to control access to, or maintain good order and discipline on, military installations; nor does it modify or diminish the obligations of commanders and supervisors under 5 U.S.C. 7101-7135 with respect to organizations representing DoD civilian employees.
(a) The provisions of this part apply to:
(1) Department of Defense Components, which include the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies;
(2) All military and civilian personnel of the Department of Defense; and
(3) Individuals and groups entering, using, or seeking to enter or use military installations.
(b) This part does not limit the application of the Uniform Code of Military Justice title 10 U.S.C., sections 801-940 or 10 U.S.C. 976 including the prohibitions and criminal penalties set forth therein with respect to matters that are the subject of this part or that are beyond its scope.
It is the policy of the United States under Public Law 95-610 that:
1. Members of the armed forces of the United States must be prepared to fight and, if necessary, to die to protect the welfare, security, and liberty of the United States and of their fellow citizens.
2. Discipline and prompt obedience to lawful orders of superior officers are essential and time-honored elements of the American military tradition and have been reinforced from the earliest articles of war by laws and regulations prohibiting conduct detrimental to the military chain of command and lawful military authority.
3. The processes of conventional collective bargaining and labor-management negotiation cannot and should not be applied to the relationships between members of the armed forces and their military and civilian superiors.
4. Strikes, slowdowns, picketing, and other traditional forms of job action have no place in the armed forces.
5. Unionization of the armed forces would be incompatible with the military chain of command, would undermine the role, authority, and position of the commander, and would impair the morale and readiness of the armed forces.
6. The circumstances which could constitute a threat to the ability of the armed forces to perform their mission are not comparable to the circumstances which could
(a)
(i) Join or maintain membership in such organization; or
(ii) Attempt to enroll any other member of the armed forces as a member of such organization.
(2) No person on a military installation, and no member of the armed forces, may enroll in a military labor organization any member of the armed forces or solicit or accept dues or fees for such an organization from any member of the armed forces.
(b)
(2) No member of the armed forces, and no civilian officer or employee, may negotiate or bargain on behalf of the United States concerning the terms or conditions of military service of members of the armed forces with any person who represents or purports to represent members of the armed forces.
(c)
(i) Negotiate or bargain with any person concerning the terms or conditions of service of any member of the armed forces,
(ii) Recognize any military labor organization as a representative of individual members of the armed forces in connection with any complaint or grievance of any such member arising out of the terms or conditions of service of such member in the armed forces, or
(iii) Make any change with respect to the terms or conditions of service in the armed forces of individual members of the armed forces.
(2) No person may use any military installation for any meeting, march, picketing, demonstration, or other similar activity for the purpose of engaging in any activity prohibited by this Directive.
(3) No member of the armed forces, and no civilian officer or employee, may permit or authorize the use of any military installation for any meeting, march, picketing demonstration, or other similar activity which is for the purpose of engaging in any activity prohibited by this Directive.
(d)
(a) This part does not limit the right of any member of the armed forces to:
(1) Join or maintain membership in any lawful organization or association not constituting a “military labor organization” as defined in § 143.7.
(2) Present complaints or grievances concerning the terms or conditions of the service of such member in the armed forces in accordance with established military procedures;
(3) Seek or receive information or counseling from any source;
(4) Be represented by counsel in any legal or quasi-legal proceeding, in accordance with applicable laws and regulations;
(5) Petition the Congress for redress of grievances; or
(6) Take such other administrative action to seek such administrative or judicial relief, as is authorized by applicable law and regulations.
(b) This part does not prevent commanders or supervisors from giving consideration to the views of any member of the armed forces presented individually or as a result of participation on command-sponsored or authorized advisory council, committees, or organizations.
(c) This part does not prevent any civilian employed at a military installation from joining or being a member of an organization that engages in representational activities with respect to terms or conditions of civilian employment.
(a)
(1) Ensure compliance with this part and with the guidelines contained in enclosure 1.
(2) Establish procedures to ensure that any action initiated under this part is reported immediately to the Head of the DoD Component concerned.
(3) Report any action initiated under this part immediately to the Secretary of Defense.
(b)
(a)
(b)
(1) Negotiating or bargaining with any civilian officer or employee, or with any member of the armed forces, on behalf of members of the armed forces, concerning the terms or conditions of military service of such members in the armed forces;
(2) Representing individual members of the armed forces before any civilian officer or employee, or any member of the armed forces, in connection with any grievance or complaint of any such member arising out of the terms or conditions of military service of such member in the armed forces; or
(3) Striking, picketing, marching, demonstrating, or any other similar form of concerted action which is directed against the Government of the United States and which is intended to induce any civilian officer or employee, or any member of the armed forces, to:
(i) Negotiate or bargain with any person concerning the terms or conditions of military service of any member of the armed forces,
(ii) Recognize any organization as a representative of individual members of the armed forces in connection with complaints and grievances of such members arising out of the terms or conditions of military service of such members in the armed forces, or
(iii) Make any change with respect to the terms or conditions of military service of individual members of the armed forces.
(c)
(d)
(e)
(f)
The guidelines for making certain factual determinations are as follows:
(a) In determining whether an organization is a military labor organization, whether a person is a member of a military labor organization, or whether such person or organization is
(b) In determining whether the commission of a prohibited act by a person can be imputed to the organization, examples of factors that may be considered include: the frequency of such act; the position in the organization of persons committing the act; whether the commission of such act was known by the leadership of the organization; whether the commission of the act was condemned or disavowed by the leadership of the organization.
(c) Any information about persons and organizations not affiliated with the Department of Defense needed to make the determinations required by this Directive shall be gathered in strict compliance with the provisions of DoD Directive 5200.27
10 U.S.C. 982.
This part implements 10 U.S.C. 982 to establish uniform Department of Defense policies for jury service by members of the Armed Forces on active duty.
The provisions of this part apply to active-duty members of the Armed Forces.
(a)
(b)
(c)
(d)
It is DoD policy to permit members of the Armed Forces maximally to fulfill their civic responsibilities consistent with their military duties. For service members stationed in the United States, servicing on a State or local jury is one such civic obligation. Service members are exempt from jury duty, when it unreasonably would interfere with performance of their military duties or adversely affect the readiness of a unit, command, or activity.
The
The Secretaries of the Military Departments shall publish procedures that provide the following:
(a) When a Service member on active duty is summoned to perform State or local jury duty, the Secretary concerned, or the official to whom such authority has been delegated, shall decide if such jury duty would:
(1) Interfere unreasonably with the performance of the service member's military duties.
(2) Affect adversely the readiness of the unit, command, or activity to which the member is assigned.
(b) If such jury service would interfere with the service member's military duties or adversely affect readiness, the service member shall be exempted from jury duty. The decision of the Secretary concerned, or the official to whom such authority has been delegated, shall be conclusive.
(c) All general and flag officers, commanders and commanding officers, officers-in-charge, and all personnel assigned to the operating forces, in a training status, or stationed outside the United States are exempt from serving on a State or local jury. Such jury service necessarily would interfere with the performance of military duties by these members and adversely affect the readiness of the unit, command, or activity to which they are assigned.
(d) Service members who serve on State or local juries shall not be charged leave or lose any pay or entitlements during the period of service. All fees accrued to the member for jury service are payable to the United States Treasury. Members are entitled to any reimbursement from the State or local jury authority for expenses incurred in the performance of jury duty, such as for transportation costs or parking fees.
(e) Written notice of each exemption determination shall be provided to the responsible State or local official who summoned an exempt member for jury duty.
This part is effective June 13, 1988.
5 U.S.C. 301; 10 U.S.C. 133.
This part establishes policy, assigns responsibilities, and prescribes procedures for cooperation with the Office of Special Counsel (OSC) of the Merit Systems Protection Board (MSPB) in fulfilling the responsibilities of the Special Counsel under Pub. L. 95-454 and 5 CFR 1201 and 1250 to conduct investigations of alleged prohibited personnel practices and to ensure the investigation of other allegations of improper or illegal conduct referred to the Department of Defense by the OSC. This part provides internal guidance to DoD officials, and does not establish an independent basis for any person or organization to assert a right, benefit, or privilege.
(a) This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Office of the Joint Chiefs of Staff (OJCS), the Inspector General, Department of Defense (IG, DoD) and the Defense Agencies (hereafter referred to collectively “as DoD Components”).
(b) The provisions of this part that relate to prohibited personnel practices do not apply to the Defense Intelligence Agency (DIA) or the National Security Agency (NSA), as prescribed by 5 U.S.C. 2302(a)(2)(C)(ii.).
(c) This part does not restrict the IG, DoD, in coordinating investigative efforts on individual cases with the OSC where concurrent jurisdiction exists.
(b) Mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
(b) The field activities of the Secretary of Defense.
(c) The Organization of the Joint Chiefs of Staff.
(d) The Unified and Specified Commands.
(b) A promotion.
(c) An adverse action under 5 U.S.C. 7501
(d) A detail, transfer, or reassignment.
(e) A reinstatement.
(f) A restoration.
(g) A reemployment.
(h) A performance evaluation under 5 U.S.C. 4301
(i) A 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.
(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 (see 5 U.S.C. 2302(b)(1).
(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 (as defined in 5 U.S.C. 3110) 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. (See whistleblower)
(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
(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.
(a) A violation of any law, rule, or regulation.
(b) Mismanagement, a gross waste of funds, or an abuse of authority.
(c) A substantial or specific danger to public health or safety.
(d) Such disclosure qualifies if it is not specifically prohibited by statute and if such information is not specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs.
(e) Where the information disclosed affects only the personal situation of the complaintant, it is generally to be regarded as an allegation of a prohibited personnel practice or violation of other civil service law, rule, or regulation, and the complainant will not be considered a whistleblower.
It is DoD policy that:
(a) Civilian personnel actions taken by DoD management officials, civilian and military, shall conform to laws and regulations implementing established merit system principles and must be free of any prohibited personnel practices, as described in 5 U.S.C. 2302 and § 145.3 of this part.
(b) It is the responsibility of each DoD management official to take vigorous corrective action and, when appropriate, to initiate disciplinary measures when prohibited personnel practices occur.
(c) DoD Components shall cooperate with the Office of Special Counsel by:
(1) Promoting merit system principles in civilian employment programs within the Department of Defense.
(2) Investigating and reporting on allegations of improper or illegal conduct forwarded to the Component by the OSC pursuant to 5 U.S.C. 1206(b) (2) or (3).
(3) Facilitating orderly investigation by the OSC of alleged prohibited personnel practices and other matters assigned for investigation to the OSC by law, such as the Freedom of Information Act and the Hatch Act.
(d) DoD Components shall cooperate with the OSC by providing appropriate assistance and information to its representatives during their investigations and by furnishing to the OSC investigators copies of releasable documents requested under the authority of the Civil Service Reform Act of 1978, 5 CFR 1250, the Privacy Act, and Civil Service Rule V.
(e) Close coordination between DoD and OSC personnel during an OSC investigation is encouraged to eliminate duplication of effort, and to avoid unnecessary delay in initiating, when appropriate, corrective or disciplinary action. This coordination shall be conducted in full recognition of the independent statutory basis for the OSC, as provided in Pub. L. 95-454 and of the responsibilities of the Department of Defense.
(f) OSC investigative requests involving classified information shall be accorded special attention and prompt consideration under existing administrative procedures.
(g) When OSC and a DoD Component or an employee assigned DoD counsel are engaged in litigation, release of information shall be accomplished pursuant to MSPB rules of discovery (5 CFR 1201, subpart B.).
(a) The
(1) The policies, standards, and procedures set forth in this part are administered in a manner that encourages consistency in responding to investigations of alleged prohibited personnel practices.
(2) Alleged illegal or improper conduct referred to a Military Department
(3) There is full cooperation with the IG, DoD, and the General Counsel, Department of Defense (GC, DoD), including assignment of military and civilian attorneys to represent employees suspected or accused by the OSC of committing a prohibited personnel practice or an otherwise illegal or improper act.
(b) The
(1) Ensuring that DoD legal counsel is assigned upon request to represent a DoD employee suspected or accused by the OSC of committing a prohibited personnel practice or an illegal or improper act when the act complained of was within the scope of the employee's official responsibilities and such representation is in the interest of the Department of Defense; or, in unusual situations, that outside legal counsel is engaged where the use of DoD counsel would be inappropriate, and the same conditions are satisfied.
(2) Providing DoD legal counsel to seek intervention for the purpose of representing the interests of OSD or a Defense agency (other than the DLA) in an MSPB hearing resulting from charges of misconduct against an employee of OSD or a Defense agency, under the authority of the Civil Service Reform Act of 1978.
(3) Seeking the assistance of the Department of Justice in responding to requests by employees for legal representation in obtaining judicial review of an order by the MSPB, under 5 U.S.C. 1207.
(4) Modifying § 145.3 and Appendix to this part and issuing supplementary instructions concerning all aspects of DoD cooperation with the OSC, including instructions on OSC investigations of allegedly arbitrary and capricious withholding of information under the Freedom of Information Act or violations of the Hatch Act.
(5) Reviewing for adequacy and legal sufficiency with the IG, DoD, each report of an investigation that must be personally reviewed by the Secretary or Deputy Secretary of Defense on action taken or to be taken in response to an OSC finding of reasonable cause to believe there has been a violation of law, rule, or regulation, not including a prohibited personnel practice or allegation referred to the Attorney General of the United States for appropriate action.
(c) The
(1) Investigate, or cause to be investigated, as appropriate, any complaint referred to the Department of Defense by OSC.
(2) Coordinate, where feasible, investigative efforts by DoD Components and the OSC, with particular emphasis on those conducted or initiated by action of the OSC.
(3) Submit the results of any investigation conducted under this part to the appropriate General Counsel.
(d) The
(e) The
(a)
(2) Allegations of improper or illegal conduct referred to a Military Department or to the DLA by the OSC shall be forwarded to the General Counsel of that Component.
(3) Upon receipt of a referral under paragraph (a) (1) or (2) of this section IG, DoD, or the GC of the Component concerned, as appropriate, shall ensure compliance with the Civil Service Reform Act of 1978 by obtaining a suitable
(4) Copies of each allegation referred under paragraph (a)(2) shall be forwarded by the General Counsel concerned to the IG, DoD.
(b)
(i) Serve as a point of contact in providing assistance to the OSC in conducting investigations of alleged prohibited activities before any designation of an attorney of record for the Component or individual respondent for matters in litigation.
(ii) Monitor those investigations.
(iii) Ensure that appropriate Component personnel are fully apprised of the nature and basis for an OSC investigation, as well as the rights and duties of Component personnel in regard to such investigations.
(iv) Ensure that any corrective or disciplinary action considered appropriate because of facts disclosed by such an investigation is accomplished under paragraph (b)(2), in a timely manner.
(2) The designated Senior Management Official shall have authority to:
(i) Refer to responsible officials recommendations by the OSC for corrective action.
(ii) Seek OSC approval of proposed disciplinary action against an employee for an alleged prohibited personnel practice or illegal or improper act under investigation by the OSC when it is determined that such discipline is warranted.
(iii) Ensure that disciplinary action against an employee adjudged at fault following completion of an OSC investigation has been considered to avoid the need for a proceeding before the MSPB.
(iv) Ensure that information concerning members of the Armed Forces who are found by the Component to have committed a prohibited personnel practice or other violation of this Directive in the exercise of authority over civilian personnel is referred to appropriate military authority.
(3) The Senior Management Official shall:
(i) Establish a system under which an employee is identified to serve as the Liaison Officer for any OSC investigator who may initiate an investigation at a facility, base, or installation for which the employee is assigned liaison duties. It shall be the responsibility of the Liaison Officer to:
(A) Assist the OSC investigator.
(B) Ensure that all OSC requests for documents are in writing.
(C) Process such requests, as well as all requests for interviews.
(ii) Determine, to the extent practicable, whether an investigation is being, or has been, conducted that replicates in whole or in part the proposed or incomplete investigation by the OSC, and convey that information to the OSC whenever this might avoid redundant investigative effort.
(iii) Inform the General Counsel of the Component concerned of any OSC investigation and consult with the General Counsel on any legal issue related to an OSC investigation.
(iv) Ensure that Component personnel involved are given timely legal and policy advice, through arrangements effected by the Liaison Officer, on the nature and basis for an OSC investigation, the authority of the OSC, and the rights and duties of Component personnel, including those set forth in Appendix.
(v) Inform the IG, DoD, of any OSC investigation of an alleged prohibited personnel practice that is identified as having resulted from a whistleblower complaint or involves an allegation of otherwise illegal or improper conduct.
1. An employee or member of the Armed Forces asked to provide information (testimonial or documentary) to the OSC in the course of an investigation by that office may obtain legal advice from DoD attorneys, both civilian and military, on that employee's or members's rights and obligations. This includes assistance at any interviews with OSC investigators. However, the attorney-client relationship shall not be established unless the employee is suspected or accused by the OSC of committing a prohibited personnel practice or other illegal or improper act and has been assigned DoD counsel.
2. An employee who believes that he or she is suspected or has been accused by the OSC of committing a prohibited personnel practice or other illegal or improper act may obtain legal representation from the Department of Defense under the conditions prescribed in § 145(b)(1) of this part, except as provided in section 7, below. The attorney assigned shall be a military member or employee from another Component whenever an attorney from the same Component is likely to face a conflict between his or her ethical obligation to the employee client and to the Component employer, and in any case where the suspected or accused employee has requested representation from another Component. Outside legal counsel may be retained by the Component on behalf of the employee only under unusual circumstances and only with the personal approval of the General Counsel of the Department of Defense.
3. The General Counsel responsible for authorizing representation shall determine whether a conflict is liable to occur if an attorney from the same Component is assigned to represent the employee and, in that case or in a case in which the suspected or accused employee has requested representation from another Component, shall seek the assistance of another General Counsel in obtaining representation from outside the Component. The General Counsels of the Military Departments and the DLA shall ensure the availability of appropriately trained counsel for assignment to such cases.
4. To obtain legal representation the employee:
a. Must request legal representation, in writing, together with all process and pleadings served, and explain the circumstances that justify DoD legal assistance.
b. Indicate whether he or she has retained legal counsel from outside the Department of Defense.
c. Obtain a written certification from his or her supervisor that the employee was acting within the scope of his of her official duties, and that no adverse or disciplinary personnel action against the employee for the conduct being investigated by the OSC has been initiated by the Component.
5. Employee requests for legal representation must be approved by the General Counsel, DoD, for employees of OSD or a Defense Agency (other than the DLA), or by the General Counsel of a Military Department or the General Counsel of the DLA for employees of those Components.
6. The conditions of legal representation must be explained to the accused employee in writing and accepted in writing by that employee.
7. DoD resources may not be used to provide legal representation for an employee with respect to a DoD disciplinary action against the employee for committing or participating in a prohibited personnel practice or for engaging in illegal or improper conduct, regardless of whether that participation or conduct is also the basis for disciplinary action proposed by the OSC.
8. After approval of an employee's request, under section 4, above, a DoD attorney shall be assigned (or, in unusual circumstances, outside counsel retained) as the employee's representative in matters pending before the OSC or MSPB. This approval may be limited to representing the employee 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 of his Directive.
9. An attorney-client relationship shall be established and continued between the suspected or accused employee and assigned DoD counsel.
10. In representing a DoD employee under this part, a DoD attorney designated counsel for the employee shall act as a vigorous advocate of the employee's individual legal interests before the OSC or MSPB; the attorney's professional responsibility to the Department of Defense and his or her employing Component will be satisfied by fulfilling this responsibility to the employee. Legal representation may be terminated only with the approval of the General Counsel who authorized representation, and normally only on the basis of information not available at the time the attorney was assigned.
11. The attorney-client relationship may be terminated if the assigned DoD counsel for the employee determines, with the approval of the General Counsel who authorizes representation, that:
a. The 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.
b. Termination of the professional representation is not in violation of the rules of professional conduct applicable to the assigned counsel.
12. The DoD attorney designated counsel may request relief from the duties of representation or counseling without being required to furnish explanatory information that might compromise the assurance to the client of confidentiality.
13. This part authorizes cognizant DoD officials to approve a represented employee's request for travel, per diem, witness appearances, or other departmental support necessary to ensure effective legal representation of the employee by the designated counsel.
14. An employee's participation in OSC investigations, MSPB hearings, and other related proceedings shall be considered official departmental business for time and attendance requirements and similar purposes.
15. The following advice to employees questioned during the course of an OSC investigation may be appropriate in response to the most frequent inquiries:
a. An employee 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 questions.
b. Requests for clarification of both questions and answers are appropriate to avoid misinterpretation.
c. Means to ensure verification of an interview by OSC investigators are appropriate, whether the employee is or is not accompanied by a legal representative. 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 interrogator agrees to the tape recording of the proceeding.
d. Any errors that appear in a written summary of an interview prepared by the interviewer should be corrected before the employee signs the statement. The employee is not required to sign any written summary that is not completely accurate. An employee may make a copy of the summary for his or her own use as a condition of signing.
5 U.S.C. 301; 10 U.S.C. 113; 10 U.S.C. 814; Pub. L. 100-456 section 721.
This part:
(a) Implements section 721 of Pub. L. 100-456.
(b) Establishes policy and procedures for the return to the United States of, or other action affecting, DoD members and employees serving outside the United States, and family members accompanying them.
(c) Prescribes procedures for treating such individuals who have been charged with, or convicted of, a felony in a court, have been held in contempt of a court for failure to obey the court's order, or have been ordered to show cause by a court why they should not be held in contempt for failing to obey the court's order.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Joint Chiefs of Staff (JCS), the Joint Staff, the Unified and Specified Commands, the Inspector General of the Department of Defense (IG, DoD), the Uniformed Services University of the Health Sciences (USUHS), the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “DoD Components”).
It is DoD policy that:
(a) With due regard for mission requirements, the provisions of applicable international agreements, and ongoing DoD investigations and courts-martial, the Department of Defense shall cooperate with courts and State and local officials in enforcing court orders relating to DoD members and employees stationed outside the United
(b) This part does not affect the authority of DoD Components to cooperate with courts and State and local officials in enforcing orders against DoD members and employees outside the United States on matters not listed in paragraph (a) of this section.
(c) This part does not create any rights or remedies and may not be relied on by any person, organization, or other entity to allege a denial of such rights or remedies.
(a) The
(1) Issue Instructions and other guidance, as necessary, to implement this part.
(2) Review and approve the implementing documents issued by DoD Components under this part.
(3) Coordinate on requests for exception to the requirements of this part under § 146.5(b).
(b) The
(c) The
(1) Comply with this part.
(2) Issue Regulations implementing this part.
(3) Report promptly to the ASD(FM&P) and GC, DoD, any action taken under paragraphs (a) (1) and (2) of § 146.6.
(a) On receipt of a request for assistance from a court, or a Federal, State, or local official concerning a court order described in § 146.4(a), the Head of the DoD Component concerned, or designee, shall determine whether the request is based on an order issued by a court of competent jurisdiction. Attempts shall be made to resolve the matter to the satisfaction of the court without the return of, or other action affecting, the member, employee, or family member (subject). Before action is taken under this section, the subject shall be afforded the opportunity to provide evidence of legal efforts to resist the court order, or otherwise show legitimate cause for noncompliance. If the Head of the DoD Component concerned determines that such efforts warrant a delay in taking action under this section, the DoD Component Head may grant a brief delay (not more than 90 days). All delays promptly shall be reported to the ASD(FM&P) and to the GC, DoD.
(1) If the request pertains to a felony or to contempt involving the unlawful or contemptuous removal of a child from the jurisdiction of a court or the custody of a parent or another person awarded custody by court order, and the matter cannot be resolved with the court without the return of the subject to the United States, the Head of the DoD Component, or designee, promptly shall take the action prescribed in paragraphs (b) through (d) of this section, unless the ASD(FM&P), or designee, grants an exception.
(2) If the request does not pertain to a felony or contempt involving the unlawful or contemptuous removal of a child from the jurisdiction of the court or the custody of a parent or another person awarded custody by court order, and if the matter cannot be resolved with the court without the return of the subject to the United States, the Head of the DoD Component, or designee, promptly shall take the action prescribed in paragraphs (b) through (d) of this section, when deemed appropriate with the facts and circumstances of each particular case, following consultation with legal staff.
(b) If a DoD member is the subject of the request, the member shall be ordered, under 10 U.S.C. 814, to return expeditiously to an appropriate port of
(c) If a DoD employee is the subject of the request concerning the court order, the employee strongly shall be encouraged to comply with the court order. Failure to respond to the court order may be a basis for withdrawal of command sponsorship and may be the basis for adverse action against the DoD employee, to include removal from the Federal Service. Proposals to take such adverse action must be approved by the Head of the DoD Component concerned, or designee. Such proposals shall be coordinated with the cognizant civilian personnel office and legal counsel.
(d) If the family member of a DoD member or employee is the subject of a request concerning the court order, the family member strongly shall be encouraged to comply with the court order. Failure to respond to the court order may be a basis for withdrawing the command sponsorship of the family member.
E.O. 12968 (60 FR 40245, 3 CFR 1995 Comp., p 391).
The following adjudicative guidelines are established for all United States Government civilian and military personnel, consultants, contractors, employees of contractors, licensees, certificate holders or grantees and their employees and other individuals who require access to classified information. They apply to persons being considered for initial or continued eligibility for access to classified information, to include sensitive compartmented information and special access programs and are to be used by government departments and agencies in all final clearance determinations.
(a) The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance. Eligibility for access to classified information is predicated upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination. In evaluating the relevance of an individual's conduct, the adjudicator should consider the following actors:
(1) The nature, extent, and seriousness of the conduct;
(2) The circumstances surrounding the conduct, to include knowledgeable participation;
(3) The frequency and recency of the conduct;
(4) The individual's age and maturity at the time of the conduct;
(5) The voluntariness of participation;
(6) The presence or absence of rehabilitation and other pertinent behavioral changes;
(7) The motivation for the conduct;
(8) The potential for pressure, coercion, exploitation, or duress;
(9) The likelihood of continuation of recurrence.
(b) Each case must be judged on its own merits, and final determination remains the responsibility of the specific department or agency. Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security.
(c) The ultimate determination of whether the granting or continuing of eligibility for a security clearance is clearly consistent with the interests of national security must be an overall common sense determination based upon careful consideration of the following, each of which is to be evaluated in the context of the whole person, as explained further below:
(1) Guideline A: Allegiance to the United States.
(2) Guideline B: Foreign influence.
(3) Guideline C: Foreign preference.
(4) Guideline D: Sexual behavior.
(5) Guideline E: Personal conduct.
(6) Guideline F: Financial considerations.
(7) Guideline G: Alcohol consumption.
(8) Guideline H: Drug involvement.
(9) Guideline I: Emotional, mental, and personality disorders.
(10) Guideline J: Criminal conduct.
(11) Guideline K: Security violations.
(12) Guideline L: Outside activities.
(13) Guideline M: Misuse of Information Technology Systems.
(d) Although adverse information concerning a single criterion may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility, or emotionally unstable behavior. Notwithstanding, the whole person concept, pursuit of further investigations may be terminated by an appropriate adjudicative agency in the face of reliable, significant, disqualifying, adverse information.
(e) When information of security concern becomes known about an individual who is currently eligible for access to classified information, the adjudicator should consider whether the person:
(1) Voluntarily reported the information;
(2) Was truthful and complete in responding to questions;
(3) Sought assistance and followed professional guidance, where appropriate;
(4) Resolved or appears likely to favorably resolve the security concern;
(5) Has demonstrated positive changes in behavior and employment;
(6) Should have his or her access temporarily suspended pending final adjudication of the information.
(f) If after evaluating information of security concern, the adjudicator decides that the information is not serious enough to warrant a recommendation of disapproval or revocation of the security clearance, it may be appropriate to recommend approval with a warning that future incidents of a similar nature may result in revocation of access.
(a)
(b)
(2) Association or sympathy with persons who are attempting to commit, or who are committing, any of the above acts;
(3) Association or sympathy with persons or organizations that advocate the overthrow of the United States Government, or any state or subdivision, by force or violence or by other unconstitutional means;
(4) Involvement in activities which unlawfully advocate or practice the commission of acts of force or violence to prevent others from exercising their rights under the Constitution or laws of the United States or of any state.
(c)
(2) The individual's involvement was only with the lawful or humanitarian aspects of such an organization;
(3) Involvement in the above activities occurred for only a short period of time and was attributable to curiosity or academic interest;
(4) The person has had no recent involvement or association with such activities.
(a)
(b)
(2) Sharing living quarters with a person or persons, regardless of their citizenship status, if the potential for adverse foreign influence or duress exists;
(3) Relatives, cohabitants, or associates who are connected with any foreign government;
(4) Failing to report, where required, associations with foreign nationals;
(5) Unauthorized association with a suspected or known collaborator or employee of a foreign intelligence service;
(6) Conduct which may make the individual vulnerable to coercion, exploitation, or pressure by a foreign government;
(7) Indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, coercion or pressure;
(8) A substantial financial interest in a country, or in any foreign owned or operated business that could make the individual vulnerable to foreign influence.
(c)
(2) Contacts with foreign citizens are the result of official United States Government business;
(3) Contact and correspondence with foreign citizens are casual and infrequent;
(4) The individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons or organizations from a foreign country;
(5) Foreign financial interests are minimal and not sufficient to affect the individual's security responsibilities.
(a)
(b) Conditions that could raise a security concern and may be disqualifying include:
(1) The exercise of dual citizenship;
(2) Possession and/or use of a foreign passport;
(3) Military service or a willingness to bear arms for a foreign country;
(4) Accepting educational, medical, or other benefits, such as retirement and social welfare, from a foreign country;
(5) Residence in a foreign country to meet citizenship requirements;
(6) Using foreign citizenship to protect financial or business interests in another country;
(7) Seeking or holding political office in the foreign country;
(8) Voting in foreign elections;
(9) Performing or attempting to perform duties, or otherwise acting, so as to serve the interests of another government in preference to the interests of the United States.
(c)
(2) Indicators of possible foreign preference (e.g., foreign military service) occurred before obtaining United States citizenship;
(3) Activity is sanctioned by the United States;
(4) Individual has expressed a willingness to renounce dual citizenship.
(a)
(b)
(2) Compulsive or addictive sexual behavior when the person is unable to stop a pattern or self-destructive or high-risk behavior or that which is symptomatic of a personally disorder;
(3) Sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress;
(4) Sexual behavior of a public nature and/or that which reflects lack of discretion or judgment.
(c)
(2) The behavior was not recent and there is no evidence of subsequent conduct of a similar nature;
(3) There is no other evidence of questionable judgment, irresponsibility, or emotional instability;
(4) The behavior no longer serves as a basis for coercion, exploitation, or duress.
(a)
(1) Refusal to undergo or cooperate with required security processing, including medical and psychological testing;
(2) Refusal to complete required security forms, releases, or provide full, frank and truthful answers to lawful questions of investigators, security officials or other representatives in connection with a personnel security or trustworthiness determination.
(b)
(2) The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities;
(3) Deliberately providing false or misleading information concerning relevant and material matters to an investigator, security official, competent medical authority, or other representative in connection with a personnel security or trustworthiness determination;
(4) Personal conduct or concealment of information that may increase an individual's vulnerability to coercion, exploitation, or duties, such as engaging in activities which, if known, may affect the person's personal, professional, or community standing or render the person susceptible to blackmail;
(5) A pattern of dishonesty or rule violations, including violation of any written or recorded agreement made between the individual and the agency;
(6) Association with persons involved in criminal activity.
(c)
(2) The falsification was an isolated incident, was not recent, and the individual has subsequently provided correct information voluntarily;
(3) The individual made prompt, good faith efforts to correct the falsification before being confronted with the facts;
(4) Omission of material facts was caused or significantly contributed to by improper or inadequate advice of authorized personnel, and the previously omitted information was promptly and fully provided;
(5) The individual has taken positive steps to significantly reduce or eliminate vulnerability to coercion, exploitation, or duress;
(6) A refusal to cooperate was based on advice from legal counsel or other officials that the individual was not required to comply with security processing requirements and, upon being made aware of the requirement, fully and truthfully provided the requested information;
(7) Association with persons involved in criminal activities has ceased.
(a)
(b)
(2) Deceptive or illegal financial practices such as embezzlement, employee theft, check fraud, income tax evasion, expense account fraud, filing deceptive loan statements, and other intentional financial breaches of trust;
(3) Inability or unwillingness to satisfy debts;
(4) Unexplained affluence;
(5) Financial problems that are linked to gambling, drug abuse, alcoholism, or other issues of security concern.
(c)
(2) It was an isolated incident;
(3) The conditions that resulted in the behavior were largely beyond the person's control (e.g., loss of employment, a business downtrun, unexpected medical emergency, or a death, divorce or separation);
(4) The person has received or is receiving counseling for the problem and there are clear indications that the problem is being resolved or is under control;
(5) The affluence resulted from a legal source;
(6) The individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.
(a)
(b)
(2) Alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, or drinking on the job;
(3) Diagnosis by a credentialed medical professional (e.g., physician, clinical psychologist, or psychiatrist) of alcohol abuse or alcohol dependence;
(4) Evaluation of alcohol abuse or alcohol dependence by a licensed clinical social worker who is a staff member of a recognized alcohol treatment program;
(5) Habitual or binge consumption of alcohol to the point of impaired judgment;
(6) Consumption of alcohol, subsequent to a diagnosis of alcoholism by a credentialed medical professional and following completion of an alcohol rehabilitation program.
(c)
(2) The problem occurred a number of years ago and there is no indication of a recent problem;
(3) Positive changes in behavior supportive of sobriety;
(4) Following diagnosis of alcohol abuse or alcohol dependence, the individual has successfully completed impatient or outpatient rehabilitation along with aftercare requirements, participates frequently in meetings of Alcoholics Anonymous or a similar organization, has abstained from alcohol for a period of at least 12 months, and received a favorable prognosis by a credentialed medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program.
(a)
(2) Drugs are defined as mood and behavior altering substances, and include:
(i) Drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens),
(ii) Inhalants and other similar substances.
(3) Drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.
(b)
(2) Illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution;
(3) Diagnosis by a credentialed medical professional (e.g., physician, clinical psychologist, or psychiatrist) of drug abuse or drug dependence;
(4) Evaluation of drug abuse or drug dependence by a licensed clinical social
(5) Failure to successfully complete a drug treatment program prescribed by a credentialed medical professional. Recent drug involvement, especially following the granting of a security clearance, or an expressed intent not to discontinue use, will almost invariably result in an unfavorable determination.
(c)
(2) The drug involvement was an isolated or aberration event;
(3) A demonstrated intent not to abuse any drugs in the future;
(4) Satisfactory completion of a prescribed drug treatment program, including rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a credentialed medical professional.
(a)
(b)
(2) Information that suggests that an individual has failed to follow appropriate medical advice relating to treatment of a condition, e.g., failure to take prescribed medication;
(3) A pattern of high-risk, irresponsible, aggressive, anti-social or emotionally unstable behavior;
(4) Information that suggests that the individual's current behavior indicates a defect in his or her judgment or reliability.
(c)
(2) Recent opinion by a credentialed mental health professional that an individual's previous emotional, mental, or personality disorder is cured, under control or in remission and has a low probability of recurrence or exacerbation;
(3) The past emotional instability was a temporary condition (e.g., one caused by a death, illness, or marital breakup), the situation has been resolved, and the individual is no longer emotionally unstable.
(a)
(b)
(2) A single serious crime or multiple lesser offenses.
(c)
(2) The crime was an isolated incident;
(3) The person was pressured or coerced into committing the act and those pressures are no longer present in that person's life;
(4) The person did not voluntarily commit the act and/or the factors leading to the violation are not likely to recur;
(5) Acquittal;
(6) There is clear evidence of successful rehabilitation.
(a)
(b)
(2) Violations that are deliberate or multiple or due to negligence.
(c)
(2) Were isolated or infrequent;
(3) Were due to improper or inadequate training;
(4) Demonstrate a positive attitude towards the discharge of security responsibilities.
(a)
(b)
(2) Any foreign national;
(3) A representative of any foreign interest;
(4) Any foreign, domestic, or international organization or person engaged in analysis, discussion, or publication of material on intelligence, defense, foreign affairs, or protected technology.
(c)
(2) The individual terminates the employment or discontinues the activity upon being notified that it is in conflict with his or her security responsibilities.
(a)
(b)
(2) Illegal or unauthorized modification, destruction, manipulation or denial of access to information residing on an information technology system;
(3) Removal (or use) of hardware, software, or media from any information technology system without authorization, when specifically prohibited by rules, procedures, guidelines or regulations;
(4) Introduction of hardware, software, or media into any information technology system without authorization, when specifically prohibited by rules, procedures, guidelines or regulations.
(c)
(2) The conduct was unintentional or inadvertent;
(3) The introduction or removal of media was authorized;
(4) The misuse was an isolated event;
(5) The misuse was followed by a prompt, good faith effort to correct the situation.
The following investigative standards are established for all United States Government civilian and military personnel, consultants, contractors, employees of contractors, licensees, certificate holders or grantees and their employees and other individuals who require access to classified information, to include Sensitive Compartmented Information and Special Access Programs, and are to be used by government departments and agencies as the investigative basis for final clearance determinations. However, nothing in these standards prohibits an agency
There are three standards (Attachment D to this subpart part summarizes when to use each one):
(a) The investigation and reinvestigation standards for “L” access authorizations and for access to confidential and secret (including all secret-level Special Access Programs not specifically approved for enhanced investigative requirements by an official authorized to establish Special Access Programs by section in 4.4 of Executive Order 12958) (60 FR 19825, 3 CFR 1995 Comp., p. 33);
(b) The investigation standard for“Q” access authorizations and for access to top secret (including top secret Special Access Programs) and Sensitive Compartmented Information;
(c) The reinvestigation standard for continued access to the levels listed in paragraph (b) of this section.
Some elements of standards specify a period of coverage (e.g. seven years). Where appropriate, such coverage may be shortened to the period from the subject's eighteenth birthday to the present or to two years, whichever is longer.
Investigations and reinvestigations may be expanded under the provisions of Executive Order 12968 (60 FR 40245, 3 CFR 1995 Comp., p. 391) and other applicable statutes and Executive Orders.
Investigations that satisfy the requirements of a given standard and are current meet the investigative requirements for all levels specified for the standard. They shall be mutually and reciprocally accepted by all agencies.
If a person who requires access has been retired or separated from U.S. government employment for less than two years and is the subject of an investigation that is otherwise current, the agency regranting the access will, as a minimum, review an updated Standard Form 86 and applicable records. A reinvestigation is not required unless the review indicates the person may no longer satisfy the standards of Executive Order 12968 (60 FR 40245, 3 CFR 1995 Comp., p. 391); (Attachment D to this subpart, Table 2).
The National Agency Check is a part of all investigations and reinvestigations. It consists of a review of;
(a) Investigative and criminal history files of the FBI, including a technical fingerprint search;
(b) OPM's Security/Suitability Investigations Index;
(c) DoD's Defense Clearance and Investigations Index;
(d) Such other national agencies (e.g., CIA, INS) as appropriate to the individual's background.
(a)
(1) Access to CONFIDENTIAL and SECRET (including all SECRET-level Special Access Programs not specifically approved for enhanced investigative requirements by an official authorized to establish Special Access Programs by sect. 4.4 of Executive Order 12958) (60 FR 19825, 3 CFR 1995 Comp., p. 333);
(2) “L” access authorizations.
(b)
(c)
(1)
(2)
(3)
(4)
(5)
(d)
(a)
(1) Access to TOP SECRET (including TOP SECRET Special Access Programs) and Sensitive Compartment Information;
(2) “Q” access authorizations.
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
If no residence, employment, or education exceeds six months, local agency checks should be performed as deemed appropriate.
(13)
(14)
(15)
(c)
(a)
(1)
(2) “Q” access authorizations.
(b)
(c)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(ii)
(8)
(9)
(10)
(11)
(d)
The following minimum investigative standards, implementing section 3.3 of Executive Order 12968,
Based on a justified need meeting the requirements of section 3.3 of Executive Order 12968, temporary eligibility for access may be granted before investigations are complete and favorably adjudicated, where official functions must be performed prior to completion of the investigation and adjudication process. The temporary eligibility will be valid until completion of the investigation and adjudication; however, the agency granting it may revoke it at any time based on unfavorable information identified in the course of the investigation.
As a minimum, such temporary eligibility requires completion of the Standard Form 86, including any applicable supporting documentation, favorable review of the form by the appropriate adjudicating authority, and submission of a request for an expedited National Agency Check with Local Agency Checks and Credit (NACLC).
As a minimum, such temporary eligibility requires completion of the Standard Form 86, including any applicable supporting documentation, favorable review of the form by the appropriate adjudicating authority, and expedited submission of a request for a Single Scope Background Investigation (SSBI).
As a minimum, such temporary eligibility requires completion of the Standard Form 86, including any applicable supporting documentation, favorable review of the form by the appropriate adjudicating authority, immediate submission of a request for an expedited Single Scope Background Investigation (SSBI), and completion and favorable review by the appropriate adjudicating authority of relevant criminal history and investigative records of the Federal Bureau of Investigation and of information in the Security/Suitability Investigations Index (SII) and the Defense Clearance and Investigations Index (DCII).
Temporary eligibility for access must satisfy these minimum investigative standards, but agency heads may establish additional requirements based on the sensitivity of the particular, identified categories of classified information necessary to perform the lawful and authorized functions that are the basis for granting temporary eligibility for access. However, no additional requirements shall exceed the common standards for background investigations developed under section 3.2(b) of Executive Order 12968. Temporary eligibility for access is valid only at the agency granting it and at other agencies who expressly agree to accept it and acknowledge understanding of its investigative basis. It is further subject to limitations specified in sections 2.4(d) and 3.3 of Executive Order 12968,
E.O. 12968 (60 FR 40245, 3 CFR 1995 Comp., p. 391.)
Interagency reciprocal acceptance of security policies and procedures for approving, accrediting, and maintaining the secure posture of shared facilities will reduce aggregate costs, promote interoperability of agency security systems, preserve vitality of the U.S. industrial base, and advance national security objectives.
Once a facility is authorized, approved, certified, or accredited, all U.S. Government organizations desiring to conduct classified programs at the facility at the same security level shall accept the authorization, approval, certification, or accreditation without change, enhancements, or upgrades. Executive Order, Safeguarding Directives, National Industrial Security Program Operating Manual (NISPOM), the NISPOM Supplement, the Director of Central Intelligence Directives, interagency agreements, successor documents, or other mutually agreed upon methods shall be the basis for such acceptance.
After initial security authorization, approval, certification, or accreditation, subsequent security reviews shall normally be conducted no more frequently than annually.
Additionally, such reviews shall be aperiodic or random, and be based upon risk management principles. Security reviews may be conducted “for cause”, to follow up on previous findings, or to accomplish close-out actions. Visits may be made to a facility to conduct security support actions, administrative inquiries, program reviews, and approvals as deemed appropriate by the cognizant security authority or agency.
Agency heads shall ensure that any policy documents their agency issues setting out facilities security policies and procedures incorporate the policy set out herein, and that such policies are reasonable, effective, efficient, and enable and promote interagency reciprocity.
Agencies which authorize, approve, certify, or accredit facilities shall provide to the Security Policy Board Staff a points of contact list to include names and telephone numbers of personnel to be contacted for verification of authorized, approved, certified, or accredited facility status. The Security Policy Board Staff will publish a comprehensive directory of points of contact.
Agencies will continue to review and assess the potential value added to the process of co-use of facilities by development of electronic data retrieval across government. As this review continues, agencies creating or modifying facilities databases will do so in a manner which facilitates community data
(a) Redundant, overlapping, and duplicative policies and practices that govern the co-use of facilities for classified purposes have resulted in excessive protection and unnecessary expenditure of funds. Lack of reciprocity has also impeded achievement of national security objectives and adversely affected economic and technological interest.
(b) Interagency reciprocal acceptance of security policies and procedures for approving, accrediting, and maintaining the secure posture of shared facilities will reduce the aggregate costs, promote interoperability of agency security systems, preserve the vitality of the U.S. industrial base, and advance national security objectives.
(c) Agency heads, or their designee, are encouraged to periodically issue written affirmations in support of the policies and procedures prescribed herein and in the Security Policy Board (SPB) policy, entitled “Reciprocity of Use and Inspections of Facilities.”
(d) The policies and procedures prescribed herein shall be applicable to all agencies. This document does not supersede the authority of the Secretary of Defense under Executive Order 12829 (58 FR 3479, 3 CFR 1993 Comp., p. 570); the Secretary of Energy or the Chairman of the Nuclear Regulatory Commission under the Atomic Energy Act of 1954, as amended; the Secretary of State under the Omnibus Diplomatic Security and Anti-Terrorism Act of 1986; the Secretaries of the military departments and military department installation Commanders under the Internal Security Act of 1950; the Director of Central Intelligence under the National Security Act of 1947, as amended, or Executive Order 12333; the Director of the Information Security Oversight Office under Executive Order 12829 or Executive Order 12958 (60 FR 19825, 3 CFR 1995 Comp., p. 333); or substantially similar authority instruments assigned to any other agency head.
(a) Agency heads, or their designee, shall ensure that security policies and procedures for which they are responsible are reasonable, effective, and efficient, and that those policies and procedures enable and promote interagency reciprocity.
(b) To the extent reasonable and practical, and consistent with US law, Presidential decree, and bilateral and international obligations of the United States, the security requirements, restrictions, and safeguards applicable to industry shall be equivalent to those applicable within the Executive Branch of government.
(c) Once a facility is authorized approved, certified, or accredited, all government organizations desiring to conduct classified programs at the facility at the same security level shall accept the authorization, approval, certification, or accreditation without change, enhancements, or upgrades.
(a) Each Senior Agency Official shall ensure that adequate reciprocity provisions are incorporated within his or her regulatory issuances that prescribe agency safeguards for protecting classified information.
(b) Each Senior Agency Official shall develop, implement, and oversee a program that ensures agency personnel adhere to the policies and procedures prescribed herein and the reciprocity provisions of the National Industrial Security Program Operating Manual (NISPOM).
(c) Each Senior Agency Official must ensure that implementation encourages reporting of instances of non-compliance, without fear of reprisal, and each reported instance is aggressively acted upon.
(d) The Director, Information Security Oversight Office (ISOO), consistent with his assigned responsibilities under Executive Order 12829, serves as the central point of contact within Government to consider and take action on complaints and suggestions from industry concerning alleged violations of the reciprocity provisions of the NISPOM.
(e) The Director, Security Policy Board Staff (D/SPBS) or his/her designee, shall serve as the central point of contact within Government to receive from Federal Government employees alleged violations of the reciprocity provisions prescribed herein and the policy “Reciprocity of Use and Inspections of Facilities” of the SPB.
(a) Agencies that authorize, approve, certify, or accredit facilities shall provide to the SPB Staff a points of contact list to include names and telephone numbers of personnel to be contacted for verification of the status of facilities. The SPB Staff will publish a comprehensive directory of agency points of contact.
(b) After initial security authorization, approval, certification, or accreditation, subsequent reviews shall normally be conducted no more frequently than annually. Additionally, such reviews shall be aperiodic or random, and be based upon risk-management principles. Security Reviews may be conducted “for cause”, to follow up on previous findings, or to accomplish close-out actions.
(c) The procedures employed to maximize interagency reciprocity shall be based primarily upon existing organizational reporting channels. These channels should be used to address alleged departures from established reciprocity requirements and should resolve all, including the most egregious instances of non-compliance.
(d) Two complementary mechanisms are hereby established to augment existing organizational channels: (1) An accessible and responsive venue for reporting and resolving complaints/reported instances of non-compliance. Government and industry reporting channels shall be as follows:
(1)
(B) Should the matter remain unresolved, the complainant (employee, Security Officer, Special Security Officer, or similar official) is encouraged to report the matter formally to the Senior Agency Official for resolution.
(C) Should the Senior Agency Official response be determined inadequate by the complainant, the matter should be reported formally to the Director, Security Policy Board Staff (D/SPBS).
(D) Should the matter remain unresolved, the Security Policy Forum may consider referral to the SPB, the agency head, or the National Security Council as deemed appropriate.
(ii)
(B) Should the matter remain unresolved, the complainant (employee, FSO, or CSSO) is encouraged to report the matter formally to the Cognizant Security Office (CSO) for resolution.
(C) Should the CSO responses be determined inadequate by the complainant, the matter should be reported formally to the Senior Agency Official within the Cognizant Security Agency (CSA) for resolution.
(D) Should the Senior Agency Official response be determined inadequately by the complainant, the matter should be reported formally to the Director, information Security Oversight Office (ISOO) for resolution.
(E) The Director, ISOO, may revisit the matter with the Senior Agency Official or refer the matter to the agency head or the National Security Council as deemed appropriate.
(2) An annual survey administered to a representative sampling of agency and private sector facilities to assess overall effectiveness of agency adherence to applicable reciprocity requirements.
(i) In coordination with the D/SPBS, the Director, ISOO, as Chairman of the NISP Policy Advisory Committee (NISPPAC), shall develop and administer an annual survey to a representative number of cleared contractor activities/employees to assess the effectiveness of interagency reciprocity implementation. Administration of the survey shall be coordinated fully with each affected Senior Agency Official.
(ii) In coordination with the NISPPAC, the D/SPBS shall develop and administer an annual survey to a representative number of agency activities/personnel to assess the effectiveness of interagency reciprocity implementation. Administration of the survey shall be coordinated fully with each affected Senior Agency Official.
(iii) The goal of annual surveys should not be punitive but educational. All agencies and departments have participated in the crafting of these facilities policies, therefore, non-compliance is a matter of internal education and direction.
(e) Agencies will continue to review and assess the potential value added to the process of co-use of facilities by development of electronic data retrieval across government.
E.O. 12968 (60 FR 40245, 3 CFR 1995 Comp., p. 391.)
(a) Heads of federal departments and agencies which process, discuss, and/or store classified national security information, restricted data, and sensitive but unclassified information, shall, in response to specific threat data and based on risk management principles, determine the need for Technical Surveillance Countermeasures (TSCM).
To obtain maximum effectiveness by the most economical means in the various TSCM programs, departments and agencies shall exchange technical information freely; coordinate programs; practice reciprocity; and participate in consolidated programs, when appropriate.
(a) Heads of U.S. Government departments and agencies which plan, implement, and manage TSCM programs shall:
(1) Provide TSCM support consisting of procedures and countermeasures determined to be appropriate for the facility, consistent with risk management principles.
(2) Report to the Security Policy Board, attention: Chair, Facilities Protection Committee (FPC), for appropriate dissemination, all-source intelligence that concerns technical surveillance threats, devices, techniques, and unreported hazards, regardless of the source or target, domestic or foreign.
(3) Train a professional cadre of personnel in TSCM techniques.
(4) Ensure that the FPC and Training and Professional Development Committee are kept apprised of their TSCM program activities as well as training and research and development requirements.
(5) Assist other departments and agencies, in accordance with federal law, with TSCM services of common concern.
(6) Coordinate, through the FPC, proposed foreign disclosure of TSCM equipment and techniques.
(b) The FPC shall advise and assist the Security Policy Board in the development and review of TSCM policy, including guidelines, procedures, and instructions. The FPC shall:
(1) Coordinate TSCM professional training, research, development, test, and evaluation programs.
(2) Promote and foster joint procurement of TSCM equipment.
(3) Evaluate the impact on the national security of foreign disclosure of TSCM equipment or techniques and recommend policy changes as needed.
(4) Develop guidance for use in obtaining intelligence information on the plans, capabilities and actions of organizations hostile to the U.S. Government concerning technical penetrations and countermeasures against them.
(5) Biennially, review, update and disseminate the national strategy for TSCM.
Article 66(f), Uniform Code of Military Justice (10 U.S.C. § 866(f) (1994)).
(a) The titles of the Courts of Criminal Appeals of the respective services are:
(1) “United States Army Court of Criminal Appeals.”
(2) “United States Navy-Marine Corps Court of Criminal Appeals.”
(3) “United States Air Force Court of Criminal Appeals.”
(4) “United States Coast Guard Court of Criminal Appeals.”
(b) Each Court is authorized a seal in the discretion of the Judge Advocate General concerned. The design of such seal shall include the title of the Court.
(a) The jurisdiction of the Court is as follows:
(1)
(i) Death; or
(ii) Dismissal of a commissioned officer, cadet or midshipman, dishonorable or bad-conduct discharge, or confinement for 1 year or longer; and in which the accused has not waived or withdrawn appellate review.
(2)
(i) For which Article 66 does not otherwise provide appellate review, and
(ii) Which the Judge Advocate General forwards to the Court for review pursuant to Article 69(d), and
(iii) In which the accused has not waived or withdrawn appellate review.
(3)
(4)
(b)
(c)
In cases referred to it for review pursuant to Article 66, the Court may act only with respect to the findings and sentence as approved by the convening authority. In reviewing a case or action under Article 69(d) or in determining an appeal under Article 62, the Court may act only with respect to matters of law. The Court may, in addition, review such other matters and take such other action as it determines to be proper under substantive law.e
(a)
(b)
When the filing of a notice of appearance, brief, or other paper in the office of a Judge Advocate General is required by this part, such papers shall be filed in the office of the Judge Advocate General of the appropriate armed force or in such other place as the Judge Advocate General or rule promulgated pursuant to § 150.26 may designate. If transmitted by mail or other means, they are not filed until received in such office.
All formal papers shall be signed and shall show, typewritten or printed, the signer's name, address, military grade (if any), and the capacity in which the paper is signed. Such signature constitutes a certification that the statements made therein are true and correct to the best of the knowledge, information, and belief of the persons signing the paper and that the paper is filed in good faith and not for purposes of unnecessary delay.
In computing any period of time prescribed or allowed by this part, by order of the Court, or by any applicable statute, the day of the act, event or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday, or, when the act to be done is the filing of a paper in court, a day on which the office of the Clerk of the Court is closed due to weather or other conditions or by order of the Chief Judge, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor a holiday.
(a)
(b)
(c)
(d)
The conduct of counsel appearing before the Court shall be in accordance with rules of conduct prescribed pursuant to Rule for Courts-Martial 109 by the Judge Advocate General of the service concerned. However, the Court may exercise its inherent power to regulate counsel appearing before it, including the power to remove counsel from a particular case for misconduct in relation to that case. Conduct deemed by the Court to warrant consideration of suspension from practice or other professional discipline shall be reported by the Court to the Judge Advocate General concerned.
An accused may be represented before the Court by appellate counsel detailed pursuant to Article 70(a) or by civilian counsel provided by the accused, or both. An accused who does not waive appellate review pursuant to Rule for Courts-Martial 1110 shall, within 10 days after service of a copy of the convening authority's action under Rule for Courts-Martial 1107(h), forward to the convening authority or the Judge Advocate General:
(a) A request for representation by military appellate defense counsel, or
(b) Notice that civilian counsel has been retained or that action has been taken to retain civilian counsel (must include name and address of civilian counsel), or
(c) Both a request for representation by military appellate defense counsel under paragraph (a) for this section and notice regarding civilian counsel under paragraph (b) of this section, or
(d) A waiver of representation by counsel.
(a) When a record of trial is referred to the court—
(1) If the accused has requested representation by appellate defense counsel, pursuant to Article 70(c)(1), counsel detailed pursuant to Article 70(a) will be assigned to represented the accused; or
(2) If the accused gives notice that he or she has retained or has taken action to retain civilian counsel, appellate defense counsel shall be assigned to represent the interests of the accused pending appearance of civilian counsel. Assigned defense counsel will continue to assist after appearance by civilian counsel unless excused by the accused; or
(3) If the accused has neither requested appellate counsel nor given notice of action to retain civilian counsel, but has not waived representation by counsel, appellate defense counsel will be assigned to represent the accused, subject to excusal by the accused or by direction of the Court.
(b) In any case—
(1) The Court may request counsel when counsel have not been assigned.
(2) Pursuant to Article 70(c)(2), and subject to paragraph (a)(2) of this section, appellate defense counsel will represent the accused when the United States is represented by counsel before the Court.
When civilian counsel represents an accused before the Court, the Court will notify counsel when the record of trial is received. If both civilian and assigned appellate defense counsel represent the accused, the Court will regard civilian counsel as primary counsel unless notified otherwise. Ordinarily, civilian counsel will use the accused's copy of the record. Civilian counsel may reproduce, at no expense to the government, appellate defense counsel's copy of the record.
Military and civilian appellate counsel shall file a written notice of appearance with the Court. The filing of any pleading relative to a case which contains the signature of counsel constitutes notice of appearance of such counsel.
Withdrawals from appellate review, and waivers of appellate review filed after expiration of the period prescribed by the Rule for Courts-Martial 1110(f)(1), will be referred to the Court for consideration. At its discretion, the Court may require the filing of a motion for withdrawal, issue a show cause order, or grant the withdrawal without further action, as may be appropriate. The Court will return the record of trial, in a case withdrawn from appellate review, to the Judge Advocate General for action pursuant to Rule for Courts-Martial 1112.
(a)
(b)
(c)
Oral arguments may be heard in the discretion of the Court upon motion by either party or when otherwise ordered by the Court. The motion of a party for oral argument shall be made no later than 7 days after the filing of an answer to an appellant's brief. Such motion shall identify the issue(s) upon which counsel seek argument. The Court may, on its own motion, identify the issue(s) upon which it wishes argument.
(a)(1) A party may suggest the appropriateness of consideration or reconsideration by the Court as a whole. Such consideration or reconsideration ordinarily will not be ordered except:
(i) When consideration by the full Court is necessary to secure or maintain uniformity of decision, or
(ii) When the proceedings involve a question of exceptional importance, or
(iii) When a sentence being reviewed pursuant to Article 66 extends to death.
(2) In cases being reviewed pursuant to Article 66, a party's suggestion that a matter be considered initially by the Court as a whole must be filed with the Court within 7 days after the government files its answer to the assignment of errors, or the appellant files a reply under § 150.15(b). In other proceedings, the suggestion must be filed with the party's initial petition or other initial
(b) The suggestion of a party for consideration or reconsideration by the Court as a whole shall be transmitted to each judge of the Court who is present for duty, but a vote need not be taken to determine whether the cause shall be considered or reconsidered by the Court as a whole on such a suggestion made by a party unless a judge requests a vote.
(c) A majority of the judges present for duty may order that any appeal or other proceeding be considered or reconsidered by the Court sitting as a whole. However, en banc reconsideration of an en banc decision will not be held unless at least one member of the original majority concurs in a vote for reconsideration.
(d) This rule does not affect the power of the Court
The Court shall give notice of its orders and decisions by immediately serving them, when rendered, on appellate defense counsel, including civilian counsel, if any, government counsel and the Judge Advocate General, or designee, as appropriate.
(a) The Court may, in its discretion and on its own motion, enter an order announcing its intent to reconsider its decision or order in any case not later than 30 days after service of such decision or order on appellate defense counsel or on the appellant, if the appellant is not represented by counsel, provided a petition for grant of review or certificate for review has not been filed with the United States Court of Appeals for the Armed Forces, or a record of trial for review under Article 67(b) has not been received by that Court. No briefs or arguments shall be received unless the order so directs.
(b) Provided a petition for grant of review or certificate for review has not been filed with the United States Court of Appeals for the Armed Forces, or a record of trial for review under Article 67(b) or writ appeal has not been received by the United States Court of Appeals for the Armed Forces, the Court may, in its discretion, reconsider its decision or order in any case upon motion filed either:
(1) By appellate defense counsel within 30 days after receipt by counsel, or by the appellant if the appellant is not represented by counsel, of a decision or order, or
(2) By appellate government counsel within 30 days after the decision or order is received by counsel.
(c) A motion for reconsideration shall briefly and directly state the grounds for reconsideration, including a statement of facts showing jurisdiction in the Court. A reply to the motion for reconsideration will be received by the Court only if filed within 7 days of receipt of a copy of the motion. Oral arguments shall not be heard on a motion for reconsideration unless ordered by the Court. The original of the motion filed with the Court shall indicate the date of receipt of a copy of the same by opposing counsel.
(d) The time limitations prescribed by this part shall not be extended under the authority of §§ 150.24 or 150.25 beyond the expiration of the time for filing a petition for review or writ appeal with the United States Court of Appeals for the Armed Forces, except that the time for filing briefs by either party may be extended for good cause.
(a)
(1) A previous history of the case including whether prior actions have been filed or are pending for the same relief in this or any other court and the disposition or status of such actions;
(2) A concise and objective statement of all facts relevant to the issue presented and of any pertinent opinion, order or ruling;
(3) A copy of any pertinent parts of the record and all exhibits related to the petition if reasonably available and transmittable at or near the time the petition is filed;
(4) A statement of the issue;
(5) The specific relief sought;
(6) Reasons for granting the writ;
(7) The jurisdictional basis for relief sought and the reasons why the relief sought cannot be obtained during the ordinary course of appellate review;
(8) If desired, a request for appointment of appellate counsel.
(b)
(c)
(d)
(e)
(f)
(g)
(a)
(b)
(c)
(d)
(1) The representative of the government designated by the Judge Advocate General shall decide whether to file the appeal with the Court. The trial counsel shall have 20 days from the date written notice to appeal is filed with the trial court to forward the appeal, including an original and two copies of the record of trial, to the representative of the government designated by the Judge Advocate General. The person designated by the Judge Advocate General shall promptly file the original record with the Clerk of the Court and forward one copy to
(2) Appellee shall prepare an answer in the manner prescribed by § 150.15 and shall file such answer within 20 days after any filing of the government brief.
(e) The government shall diligently prosecute all appeals by the United States and the Court will give such appeals priority over all other proceedings where practicable.
(a) Whether submitted to the Judge Advocate General by the accused in propria persona or by counsel for the accused, a petition for new trial submitted while the accused's case is undergoing review by a Court of Criminal Appeals shall be filed with an original and two copies and shall comply with the requirements of Rule for Courts-Martial 1210(c).
(b) Upon receipt of a petition for new trial submitted by other than appellate defense counsel, the Court will notify all counsel of record of such fact.
(c) A brief in support of a petition for new trial, unless expressly incorporated in or filed with the petition, will be filed substantially in the format specified by § 150.15 no later than 30 days after the filing of the petition or receipt of the notice required by paragraph (b) of this section, whichever is later. An appellate's answer shall be filed no later than 30 days after the filing of an appellant's brief. A reply may be filed no later than 10 days after the filing of the appellee's answer.
(a)
(b)
(c)
(d)
(e)
Except as otherwise provided in § 150.19(d), the Court, in its discretion, may extend any time limits prescribed and may dispose of any interlocutory or other appropriate matter not specifically covered by this part, in such manner as may appear to be required for a full, fair, and expeditious consideration of the case. See § 150.4.
For good cause shown, the Court acting as a whole or in panel may suspend the requirements or provisions of any of this part in a particular case on petition of a party or on its own motion and may order proceedings in accordance with its direction.
The Chief Judge of the Court has the authority to prescribe internal rules for the Court.
The recording, photographing, broadcasting, or televising of any session of the Court or other activity relating thereto is prohibited unless specifically authorized by the Court.
Proposed amendments to this part may be submitted to the Chief Judge of any Court named in § 150.1 or to a Judge Advocate General. Before acting on any proposed amendments not received from the Chief Judges, the Judge Advocates General shall refer them to the Chief Judges of the Courts for comment. The Chief Judges shall confer on any proposed changes, and shall report to the Judge Advocates General as to the suitability of proposed changes and their impact on the operation of the Courts and on appellate justice.
1. Pursuant to Article 69 of the Uniform Code of Military Justice, 10 U.S.C. § 869 (1994) and the Rules of Practice and Procedure for Courts of Criminal Appeals, Rule 2(b), the record of trial in the above-entitled case is forwarded for review.
2. The accused was found guilty by a (type of court-martial) of a violation of Article(s)
3. In review, pursuant to Uniform Code of Military Justice, Article 66, it is requested that action be taken with respect to the following issues:
Received a copy of the foregoing Direction for Review this
[Set forth a concise summary of the chronology of the case, including the general nature of the charges, the pleas of the accused, the findings and sentence at trial, the action by the convening authority, and any other pertinent information regarding the proceedings.]
[Set forth those facts necessary to a disposition of the assigned errors, including specific page references and exhibit numbers. Answers may adopt appellant's or petitioner's statement of facts if there is no dispute, may state additional facts, or, if there is a dispute, may restate the facts as they appear from appellee's or respondent's viewpoint. The repetition of uncontroverted matters is not desired.]
[Set forth each error alleged in upper case letters, followed by separate arguments for each error. Arguments shall discuss briefly the question presented, citing and quoting such authorities as are deemed pertinent. Each argument shall include a statement of the applicable standard of review, and shall be followed by a specific prayer for the relief requested.]
[The brief of either party may include an appendix containing copies of unpublished opinions cited in the brief, and extracts of statutes, rules or regulations pertinent to the assigned errors.]
I certify that a copy of the foregoing was mailed or delivered to the Court and opposing counsel on (date).
1 U.S.C. 133, 75 Stat. 517.
This part is reissued to update established DoD policy and procedures on trial by foreign courts and treatment in foreign prisons of U.S. military personnel, nationals of the U.S. serving with, employed by, or accompaning the Armed Forces of the United States, and the dependents of both (hereafter referred to as U.S. personnel); and provides uniform reporting on the exercise of foreign criminal jurisdiction.
The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, and the Unified and Specified Commands. As used herein, the term “Military Services” refers to the Army, Navy, Air Force, and Marine Corps.
It is the policy of the Department of Defense to protect, to the maximum extent possible, the rights of U.S. personnel who may be subject to criminal trial by foreign courts and imprisonment in foreign prisons.
(a)
(b)
(c)
(1) In the geographical areas for which a unified command exists, the commander shall designate within each country the “Commanding Officer” referred to in the Senate Resolution (§ 151.6).
(2) In areas where a unified command does not exist, a commanding officer in each country shall be nominated by the Military Departments. These recommendations shall be forwarded by the Judge Advocate General of the Army to the Secretary of Defense, for implementation through the Office of the Assistant Secretary of Defense (International Security Affairs). In designating the commanding officer to act for all the Military Departments, consideration must be given to the availability of legal officers and readiness of access to the seat of the foreign government. Such an officer may also be appointed by the Military Departments for countries where no U.S. forces are regularly stationed.
(d)
(2) Copies of these studies shall be forwarded by the designated commanding officer to each of the Judge Advocates General of the Military Services. Principal emphasis is to be placed on those safeguards that are of such a fundamental nature as to be guaranteed by the Constitution of the United States in all criminal trials in State courts of the United States. See § 151.7 for enumeration of safeguards considered important. These country law studies shall be subject to a continuing review. Whenever there is a significant change in any country's criminal law, the change shall be forwarded by the designated commanding officer to each of the Military Service's Judge Advocates General.
(e)
(2) The designated commanding officer shall determine, in the light of legal procedures in effect in that country, whether there is danger that the accused will not receive a fair trial. A trial shall not be considered unfair merely because it is not identical with trials held in the United States. Due regard, however, should be given to those United States trial rights listed in § 151.7 that are relevant to the facts and circumstances of the trial in question.
(3) If the designated commanding officer determines there is risk of an unfair trial, the commanding officer shall decide, after consultation with the chief of the diplomatic mission, whether to press a request for waiver of jurisdiction through diplomatic channels. If the commanding officer so decides, the recommendation shall be submitted through the unified commander, if any, and The Judge Advocate General of the accused's service, to the Office of the Secretary of Defense. The objective in each case is to see that U.S. military personnel obtain a fair trial in the receiving state under all circumstances.
(f)
(1) When the designated commanding officer determines, after a careful consideration of all the circumstances, that suitable corrective action can be taken under existing administrative regulations, the commanding officer may request the local foreign authorities to refrain from exercising their criminal jurisdiction.
(2) When it appears possible that release of jurisdiction will not be obtained and that the accused may not obtain a fair trial, the commander exercising general court-martial jurisdiction over the command in which such
(3) The designated commanding officer shall then determine, in the light of legal procedures in effect in that country, whether there is danger that the accused will not receive a fair trial.
(4) If it is determined that there is such danger, the designated commanding officer shall decide, after consultation with the chief of the diplomatic mission, whether a request should be submitted through diplomatic channels to foreign authorities seeking their assurances of a fair trial for the accused or, in appropriate circumstances, that they forego their right to exercise jurisdiction over the accused. If the designated commanding officer so decides, a recommendation shall be submitted through the unified commander, if any, and The Judge Advocate General of the Military Service concerned, to the Office of the Secretary of Defense.
(g)
(2) Trial observers shall attend and prepare formal reports in all cases of trials of U.S. personnel by foreign courts or tribunals, except for minor offenses. In cases of minor offenses, the observer shall attend the trial at the discretion of the designated commanding officer, but shall not be required to make a formal report. These reports need not be classified, but shall be treated as For Official Use Only documents. They shall be forwarded intact to the designated commanding officer through such agencies as the designated commanding officer may prescribe for transmission to the Judge Advocate General of the accused's service, with any comments of the appropriate Military Service commander. These reports shall be forwarded immediately upon the completion of the trial in the lower court, and shall not be delayed because of the possibility of a new trial, rehearing or appeal, reports of which shall be forwarded in the same manner. Copies shall also be forwarded to the unified commander, if any, and to the chief of the diplomatic mission.
(3) The trial observer report shall contain a factual description or summary of the trial proceedings. It should enable an informed judgment to be made regarding: (i) Whether there was any failure to comply with the procedural safeguards secured by a pertinent status of forces agreement, and (ii) whether the accused received a fair trial under all the circumstances. The report shall specify the conclusions of the trial observer with respect to paragraph (g)(3)(i) of this section, and shall state in detail the basis for the conclusions. Unless the designated commanding officer directs otherwise, the report shall not contain conclusions with respect to paragraph (g)(3)(ii) of this section.
(4) The designated commanding officer, upon receipt of a trial observer report, shall be responsible for determining: (i) Whether there was any failure to comply with the procedural safeguards secured by the pertinent status of forces agreement, and (ii) whether the accused received a fair trial under all the circumstances. Due regard should be given to those fair trial rights listed in § 151.7 that are relevant to the particular facts and circumstances of the trial. However, a trial shall not be found unfair merely because it is not identical with trials held in the United States. If the designated commanding officer is of the opinion that the procedural safeguards specified in pertinent agreements were denied or that the trial was otherwise unjust, the commanding officer shall
(h)
(i)
(2) In consonance with this policy, U.S. military personnel confined in foreign penal institutions shall be visited at least every 30 days, at which time the conditions of confinement and other matters relating to their health and welfare shall be observed. The Military Services shall maintain, on a current basis, records of these visits as reports by their respective commands. Records of each visit should contain the following information:
(i) Names of personnel conducting visit and date of visit.
(ii) Name of each prisoner visited, serial number, and sentence.
(iii) Name and location of prison.
(iv) Treatment of the individual prisoner by prison warden and other personnel (include a short description of the rehabilitation program, if any, as applied to the prisoner).
(v) Conditions existing in the prison, such as light, heat, sanitation, food, recreation, and religious activities.
(vi) Change in status of prisoner, conditions of confinement or transfer to another institution.
(vii) Condition of prisoner, physical and mental.
(viii) Assistance given to prisoner, such as legal, medical, food, bedding, clothing, and health and comfort supplies.
(ix) Action taken to have any deficiencies corrected, either by the local commander or through diplomatic or consular mission.
(x) Designation of command responsible for prisoner's welfare and reporting of visits.
(xi) Information as to discharge of a prisoner from the Military Service or termination of confinement.
(3) When it is impracticable for the individual's commanding officer or representative to make visits, the designated commanding officer should be requested to arrange that another unit be responsible for such visits or to request that the appropriate diplomatic or consular mission assume responsibility therefor. When necessary, a medical officer should participate in the visits and record the results of medical examinations. If reasonable requests for permission to visit U.S. military personnel are arbitrarily denied, or it is ascertained that the individual is being mistreated or that the conditions of custody or confinement are substandard, the case should be referred to the diplomatic or consular mission concerned for appropriate action.
(4) To the extent possible, military commanders should seek to conclude local arrangements whereby U.S. military authorities may be permitted to
(5) The military commanders shall make appropriate arrangements with foreign authorities whereby custody of individuals who are members of the Armed Forces of the United States shall, when they are released from confinement by foreign authorities, be turned over to U.S. military authorities. In appropriate cases, diplomatic or consular officers should be requested to keep the military authorities advised as to the anticipated date of the release of such persons by the foreign authorities.
(6) In cooperation with the appropriate diplomatic or consular mission, military commanders shall, insofar as possible, ensure that dependents of U.S. military personnel, nationals of the United States serving with, employed by or accompanying the armed forces, and dependents of such nationals when in the custody of foreign authorities, or when confined (pretrial and post-trial) in foreign penal institutions receive the same treatment, rights, and support as would be extended to U.S. military personnel in comparable situations pursuant to the provisions of § 151.4(i).
(j)
(k)
The following reporting system, which has been implemented by the Military Departments, shall be continued after revision in accordance with the provisions herein. The Department of the Army is designated as executive agent within the Department of Defense for maintaining and collating information received on the basis of the reports submitted.
(a)
(1) A statistical summary (DD Form 838) by country and type of offense of all cases involving U.S. personnel.
(2) A report signed by the appropriate Military Service commander in each country for which DD Form 838 is prepared, concerning the commander's personal evaluation of the impact, if any, the local jurisdictional arrangements have had upon accomplishment of the mission and upon the discipline and morale of the forces, together with specific facts or other information, where appropriate, substantiating the commanders’ opinion.
(3) A report of the results of visits made and particular actions taken by appropriate military commanders under § 151.4(i).
(4) A report of the implementation of 10 U.S.C. 1037 showing by country and Military Service:
(i) The total number of cases in which funds were expended and
(ii) Total expenditures in each of the following categories:
(A) Payment of counsel fees,
(B) Provision of bail,
(C) Court costs and other expenses.
(b)
(i) An alphabetical list of U.S. personnel who were imprisoned during the reporting period under sentence of confinement imposed by a foreign country, indicating the individual's home address, grade, and serial number (where applicable), offense of which found guilty, date and place of confinement, length of sentence to confinement imposed, and estimated date of release from confinement.
(ii) A similar list of the names of prisoners released during the reporting period.
(2) An information copy of these lists shall be furnished by the appropriate Military Service commander to the diplomatic or consular mission in the country concerned.
(c)
(2) Important new cases or important developments in pending cases shall be reported informally and immediately to the Office of the General Counsel, DoD.
Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of Executive T, Eighty-second Congress, second session, an agreement between the parties to the North Atlantic Treaty Regarding the Status of their Forces, signed at London on June 19, 1951. It is the understanding of the Senate, which understanding inheres in its advise and consent to the ratification of the Agreement, that nothing in the Agreement diminishes, abridges, or alters the right of the United States of America to safeguard its own security by excluding or removing persons whose presence in the United States is deemed prejudicial to its safety or security, and that no person whose presence in the United States is deemed prejudicial to its safety or security shall be permitted to enter or remain in the United States. In giving its advise and consent to ratification, it is the sense of the Senate that:
(a) The criminal jurisdiction provisions of Article VII do not constitute a precedent for future agreements;
(b) Where a person subject to the military jurisdiction of the United States is to be tried by the authorities of a receiving state, under the treaty the Commanding Officer of the armed forces of the United States in such state shall examine the laws of such state with particular reference to the procedural safeguards contained in the Constitution of the United States;
(c) If, in the opinion of such Commanding Officer, under all the circumstances of the case, there is danger that the accused will not be protected becase of the absence or denial of constitutional rights the accused would enjoy in the United States, the Commanding Officer shall request the authorities of the receiving State to waive jurisdiction in accordance with the provisions of paragraph 3(c) of Article VII (which requires the receiving
(d) A representative of the United States to be appointed by the Chief of Diplomatic Mission with the advice of the senior U.S. military representative in the receiving State will attend the trial of any such person by the authorities of a receiving State under the agreement, and any failure to comply with the provisions of paragraph 9 of Article VII of the Agreement shall be reported to the commanding officer of the Armed Forces of the United States in such State who shall then request the Department of State to take appropriate action to protect the rights of the accused, and notification shall be given by the Executive Branch to the Armed Services Committees of the Senate and House of Representatives.
The following is a listing of “fair trial” safeguards or guarantees that are considered to be applicable to U.S. State court criminal proceedings, by virtue of the 14th Amendment as interpreted by the Supreme Court of the United States. The list is intended as a guide for the preparation of country law studies prescribed by § 151.4 and for the determinations made by the designated commanding officer under § 151.4(e) through § 151.4(g). Designated commanding officers should also consider other factors that could result in a violation of due process of law in State court proceedings in the United States.
(a) Criminal statute alleged to be violated must set forth specific and definite standards of guilt.
(b) Accused shall not be prosecuted under an
(c) Accused shall not be punished by bills of attainder.
(d) Accused must be informed of the nature and cause of the accusation and have a reasonable time to prepare a defense.
(e) Accused is entitled to have the assistance of defense counsel.
(f) Accused is entitled to be present at the trial.
(g) Accused is entitled to be confronted with hostile witnesses.
(h) Accused is entitled to have compulsory process for obtaining favorable witnesses.
(i) Use of evidence against the accused obtained through unreasonable search or seizure or other illegal means is prohibited.
(j) Burden of proof is on the Government in all criminal trials.
(k) Accused is entitled to be tried by an impartial court.
(l) Accused may not be compelled to be a witness against him or herself; and shall be protected from the use of a confession obtained by torture, threats, violence, or the exertion of any improper influence.
(m) Accused shall not be subjected to cruel and unusual punishment.
(n) Accused is entitled to be tried without unreasonable (prejudicial) delay.
(o) Accused is entitled to a competent interpreter when the accused does not understand the language in which the trial is conducted and does not have counsel proficient in the language both of the court and of the accused.
(p) Accused is entitled to a public trial.
(q) Accused may not be subjected to consecutive trials for the same offense that are so vexatious as to indicate fundamental unfairness.
E.O. 12473; 10 U.S.C. 836; 10 U.S.C. 867(g).
This part implements the requirement established by the President that Manual for Courts-Martial, United States 1984, Executive Order 12473 reference be reviewed annually.
(a) This part applies to the Office of the Secretary of Defense, the Military Departments, and, by the agreement with the Secretary of Transportation, to the Coast Guard.
(b) This part is intended only to improve the internal management of the Federal Government; it is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.
It is DoD policy to review annually the Manual for Courts-Martial, to ensure that the Manual fulfills its fundamental purpose as a comprehensive body of law governing military justice procedures and as a guide for lawyers and nonlawyers in the operation and application of such law.
(a)
(2) The Joint Service Committee on Military Justice shall review the Manual (including the Discussion and Appendices) in light of judicial and legislative developments in civilian practice to:
(i) Ensure that the Manual, the Discussion, and the Appendices apply the principles of law and rules of evidence generally recognized in the trial of criminal cases in the U.S. District Courts to the extent practicable and to the extent that such principles and rules are not contrary to or inconsistent with the UCMJ. See Article 36, UCMJ (10 U.S.C. 836 and 10 U.S.C. 867(g)). This includes the requirement that the Manual must be workable across the spectrum of circumstances in which courts-martial are conducted, including combat conditions.
(ii) Ensure that the Manual, the Discussion, and the Appendices reflect current military practice and judicial precedent.
(3) The Joint Service Committee shall send its draft review to the General Counsel not later than April 15, 1985, and February 1 of each year thereafter. A copy of the report shall be sent to the committee, established by Article 67(g), UCMJ (10 U.S.C. 836 and 10 U.S.C. 867(g)) which may submit comments on the draft review to the General Counsel.
(4) The draft review shall set forth any specific recommendations for changes in the Manual, the Discussion, or the Appendices. If no changes are recommended, the draft review shall so state. If changes are recommended by the Joint Service Committee, the public notice procedures of paragraph (c) of this section, are applicable. If the Joint Service Committee determines that an aspect of civilian practice should be adopted, but recommends that the Manual should not be changed because the proposal would be contrary to or inconsistent with 10 U.S.C. 836 and 867(g) the draft review should contain a legislative proposal. Minority reports, if any, shall be included.
(5) Proposed changes to the Manual for Courts-Martial and proposed legislative changes that are recommended in the draft review are subject to the coordination requirements of DoD Directive 5500.1.
(b)
(2) Proposed changes to the Manual for Courts-Martial under this section are subject to the public notice procedures of paragraph (c) of this section.
(c)
(2) The Joint Service Committee on Military Justice shall coordinate with the Office of General Counsel as to the timing and content of such notice.
(3) The notice shall include a brief description of the matters contained in the proposed change, the time and place where a copy of the proposed change may be examined, and the procedure for obtaining a copy of the proposed change.
(4) A period of not less than 75 days after publication of notice shall be allowed for public comment, but a shorter period may be prescribed when it is determined that a 75-day period is unnecessary or contrary to the sound administration of military justice.
(5) Comments shall be submitted to the Joint Service Committee on Military Justice.
(a) The General Counsel is responsible for the administration of this part including approval of the annual review of the Manual for Courts-Martial, coordination of any proposed changes to the Manual for Courts-Martial under DoD Directive 5500.1, approval of any proposed changes to the Discussion and Appendices accompanying the Manual for Courts-Martial, and transmittal to the Congress of rules approved by the President. See Article 36, UCMJ (10 U.S.C. 836 and 10 U.S.C. 867 (g)).
(b) The Judge Advocates General of the Military Departments; the Director, Judge Advocate Division, Headquarters, U.S. Marine Corps; and the Chief Counsel, U.S. Coast Guard are responsible for appointment of representatives to the Joint Service Committee on Military Justice.
The reporting requirement prescribed in § 152.4(a) is exempt from formal approval and licensing in accordance with subsection VII.C. of enclosure 3 to DoD Directive 5000.19.
E.O. 10450, 18 FR 2489, 3 CFR, 1949-1953 Comp., p. 936; E.O. 12356, 47 FR 14874 and 15557, 3 CFR, 1982 Comp., p. 166; E.O. 10865, 25 FR 1583, 3 CFR, 1959-1963 Comp., p. 398; E.O. 12333, 46 FR 59941, 3 CFR, 1981 Comp., p. 200.
(a) To establish policies and procedures to ensure that acceptance and retention of personnel in the Armed Forces, acceptance and retention of civilian employees in the Department of Defense (DoD), and granting members of the Armed Forces, DoD civilian employees, DoD contractors, and other affiliated persons access to classified information are clearly consistent with the interests of national security.
(b) This part: (1) Establishes DoD personnel security policies and procedures;
(2) Sets forth the standards, criteria and guidelines upon which personnel security determinations shall be based;
(3) Prescribes the kinds and scopes of personnel security investigations required;
(4) Details the evaluation and adverse action procedures by which personnel security determinations shall be made; and
(5) Assigns overall program management responsibilities.
(a) This part implements the Department of Defense Personnel Security Program and takes precedence over all other departmental issuances affecting that program.
(b) All provisions of this part apply to DoD civilian personnel, members of the Armed Forces, excluding the Coast Guard in peacetime, contractor personnel and other personnel who are affiliated with the Department of Defense except that the unfavorable administrative action procedures pertaining to contractor personnel requiring access to classified information are contained in DoD 5220.22-R and in 32 CFR part 155.
(c) The policies and procedures which govern the National Security Agency are prescribed by Public Laws 88-290 and 86-36, Executive Orders 10450 and 12333, DoD Directive 5210.45
(d) Under combat conditions or other military exigencies, an authority in paragraph A, Appendix E, may waive such provisions of this part as the circumstances warrant.
(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)
(a)
(b)
(c)
The ultimate decision in applying either of the security standards set forth in § 154.6 (b) and (c) must be an overall common sense determination based upon all available facts. The criteria for determining eligibility for a clearance under the security standard shall include, but not be limited to the following:
(a) Commission of any act of sabotage, espionage, treason, terrorism, anarchy, sedition, or attempts thereat or preparation therefor, or conspiring with or aiding or abetting another to commit or attempt to commit any such act.
(b) Establishing or continuing a sympathetic association with a saboteur, spy, traitor, seditionist, anarchist, terrorist, revolutionist, or with an espionage or other secret agent or similar representative of a foreign nation whose interests may be inimical to the interests of the United States, or with any person who advocates the use of force or violence to overthrow the Government of the United States or to alter the form of Government of the United States by unconstitutional means.
(c) Advocacy or use of force or violence to overthrow the Government of the United States or to alter the form of Government of the United States by unconstitutional means.
(d) Knowing membership with the specific intent of furthering the aims of, or adherence to and active participation in any foreign or domestic organization, association, movement, group or combination of persons (hereafter referred to as organizations) which unlawfully advocates or practices the commission of acts of force or violence to prevent others from exercising their rights under the Constitution or laws of the U.S. or of any State or which seeks to overthrow the Government of the U.S. or any State or subdivision thereof by unlawful means.
(e) Unauthorized disclosure to any person of classified information, or of other information, disclosure of which is prohibited by statute, Executive Order or regulation.
(f) Performing or attempting to perform one's duties, acceptance and active maintenance of dual citizenship, or other acts conducted in a manner which serve or which could be expected to serve the interests of another government in preference to the interests of the United States.
(g) Disregard of public law, statutes, Executive Orders or regulations including violation of security regulations or practices.
(h) Criminal or dishonest conduct.
(i) Acts of omission or commission that indicate poor judgment, unreliability or untrustworthiness.
(j) Any behavior or illness, including any mental condition, which, in the opinion of competent medical authority, may cause a defect in judgment or reliability with due regard to the transient or continuing effect of the illness and the medical findings in such case.
(k) Vulnerability to coercion, influence, or pressure that may cause conduct contrary to the national interest. This may be
(1) The presence of immediate family members or other persons to whom the applicant is bonded by affection or obligation in a nation (or areas under its domination) whose interests may be inimical to those of the United States, or
(2) Any other circumstances that could cause the applicant to be vulnerable.
(l) Excessive indebtedness, recurring financial difficulties, or unexplained affluence.
(m) Habitual or episodic use of intoxicants to excess.
(n) Illegal or improper use, possession, transfer, sale or addiction to any controlled or psychoactive substance, narcotic, cannabis or other dangerous drug.
(o) Any knowing and willful falsification, coverup, concealment, misrepresentation, or omission of a material fact from any written or oral statement, document, form or other representation or device used by the Department of Defense or any other Federal agency.
(p) Failing or refusing to answer or to authorize others to answer questions or provide information required by a congressional committee, court, or agency in the course of an official inquiry whenever such answers or information concern relevant and material matters pertinent to an evaluation of the individual's trustworthiness, reliability, and judgment.
(q) Acts of sexual misconduct or perversion indicative of moral turpitude, poor judgment, or lack of regard for the laws of society.
(a)
(b)
(c)
(d)
(e)
(f)
(2) The OPM, FBI, Central Intelligence Agency (CIA), Secret Service, and the Department of State conduct specially scoped BIs under the provisions of DCID 1/14. Any investigation conducted by one of the above-cited agencies under DCID 1/14 standards is considered to meet the SBI investigative requirements of this part.
(3) The detailed scope of an SBI is set forth in paragraph 4, Appendix A.
(g)
(2) Special Investigative Inquiries are scoped as necessary to address the specific matters requiring resolution in the case concerned and generally consist of record checks and/or interviews with potentially knowledgeable persons. An SII may include an interview with the subject of the investigation when necessary to resolve conflicting information and/or to provide an opportunity to refute or mitigate adverse information.
(3) In those cases when there is a disagreement between Defense Investigative Service (DIS) and the requester as to the appropriate scope of the investigation, the matter may be referred to the Deputy Under Secretary of Defense for Policy for resolution.
(h)
(i)
(1)
(2)
(3)
(4)
(i) Existing personnel security screening systems (e.g., Air Force Assessment Screening Program, Naval Security Group Personnel Security Interview Program, U.S. Army Personnel Security Screening Program); or
(ii) Commander of the nominating organization or such official as he or she has designated in writing (e.g., Deputy Commander, Executive Officer, Security Officer, Security Manager, S-2, Counterintelligence Specialist, Personnel Security Specialist, or Personnel Officer); or
(iii) Agents of investigative agencies in direct support of the Component concerned.
(5)
(ii) For those investigations requested subsequent to the personal interview requirements of paragraph (i)(4) of this section the following procedures apply:
(A) The DD Form 1879 (Request for Personnel Security Investigation) shall be annotated under Item 20 (Remarks) with the statement “Personal Interview Conducted by (cite the duty assignment of the designated official (e.g., Commander, Security Officer, Personnel Security Specialist, etc.))” in all cases in which an SBI is subsequently requested.
(B) Unfavorable information developed through the personal interview required by paragraph (i)(4) of this section, will be detailed in a written report attached to the DD Form 1879 to include full identification of the interviewer. Failure to provide such information may result in conduct of an incomplete investigation by DIS.
(C) Whenever it is determined that it is not feasible to conduct the personal interview required by paragraph (i)(4) of this section prior to requesting the SBI, the DD Form 1879 shall be annotated under Item 20 citing the reason for not conducting the interview.
(j)
(a)
(b)
(i) Overthrowing the Government of the United States or the government of a State;
(ii) Substantially impairing for the purpose of influencing U.S. Government policies or decisions:
(A) The functions of the Government of the United States, or
(B) The functions of the government of a State;
(iii) Depriving persons of their civil rights under the Constitution or laws of the United States.
(2)
(3)
(c)
(2)
(3)
(4)
(d)
(2)
(3)
(e)
(a)
(b)
(c)
(d)
(1) The authority (statute or Executive order that authorized solicitation);
(2) The principal purpose or purposes for which the information is to be used;
(3) The routine uses to be made of the information;
(4) Whether furnishing such information is mandatory or voluntary;
(5) The effect on the individual, if any, of not providing the information and
(6) That subsequent use of the data may be employed as part of an aperiodic, random process to screen and evaluate continued eligibility for access to classified information.
(e)
(1) Investigate only cases or persons assigned within their official duties.
(2) Interview sources only where the interview can take place in reasonably private surroundings.
(3) Always present credentials and inform sources of the reasons for the investigation. Inform sources of the subject's accessibility to the information to be provided and to the identity of the sources providing the information. Restrictions on investigators relating to Privacy Act advisements to subjects of personnel security investigations are outlined in paragraph (d) of this section.
(4) Furnish only necessary identity data to a source, and refrain from asking questions in such a manner as to indicate that the investigator is in possession of derogatory information concerning the subject of the investigation.
(5) Refrain from using, under any circumstances, covert or surreptitious investigative methods, devices, or techniques including mail covers, physical or photographic surveillance, voice analyzers, inspection of trash, paid informants, wiretap, or eavesdropping devices.
(6) Refrain from accepting any case in which the investigator knows of circumstances that might adversely affect his fairness, impartiality, or objectivity.
(7) Refrain, under any circumstances, from conducting physical searches of the subject or his property.
(8) Refrain from attempting to evaluate material contained in medical files. Medical files shall be evaluated for personnel security program purposes only by such personnel as are designated by DoD medical authorities. However, review and collection of medical record information may be accomplished by authorized investigative personnel.
(f)
(a)
(b)
(1) The criteria to be applied in designating a position as sensitive are:
(i) Critical-sensitive.
(A) Access to Top Secret information.
(B) Development or approval of plans, policies, or programs that affect the overall operations of the Department of Defense or of a DoD Component.
(C) Development or approval of war plans, plans or particulars of future major or special operations of war, or critical and extremely important items of war.
(D) Investigative and certain investigative support duties, the issuance of personnel security clearances or access authorizations, or the making of personnel security determinations.
(E) Fiduciary, public contact, or other duties demanding the highest degree of public trust.
(F) Duties falling under Special Access programs.
(G) Category I automated data processing (ADP) positions.
(H) Any other position so designated by the head of the Component or designee.
(ii) Noncritical-sensitive.
(A) Access to Secret or Confidential information.
(B) Security police/provost marshal-type duties involving the enforcement of law and security duties involving the protection and safeguarding of DoD personnel and property.
(C) Category II automated data processing positions.
(D) Duties involving education and orientation of DoD personnel.
(E) Duties involving the design, operation, or maintenance of intrusion detection systems deployed to safeguard DoD personnel and property.
(F) Any other position so designated by the head of the Component or designee.
(2) All other positions shall be designated as nonsensitive.
(c)
(d)
(e)
(2) Each request to DIS for a BI or SBI that involves access to Top Secret or SCI information will require inclusion of the appropriate billet reference, on the request for investigation. Each Component head should in corporate, to the extent feasible, the Top Secret billet structure into the component Manpower Unit Manning Document. Such a procedure should minimize the time and effort required to maintain such a billet structure.
(3) A report on the number of established Top Secret billets will be submitted each year to the DUSD(P) as part of the annual clearance report referred to in subpart K.
(a)
(b)
(c)
(2) Seasonal employees (including summer hires) normally do not require access to classified information. For those requiring access to classified information the appropriate investigation is required. The request for the NAC (or NACI) should be submitted to DIS by entering “SH” (summer hire) in red letters approximately one inch high on the DD Form 398-2, Personnel Security Questionnaire (National Agency Checklist). Additionally, to ensure expedited processing by DIS, summer hire requests should be assembled and forwarded to DIS in bundles, when appropriate.
(d)
(e)
(2)
(f)
(a)
(b)
(2) If an officer or warrant officer candidate has been the subject of a favorable NAC or ENTNAC and there has not been a break in service of more than 12 months, a new NAC is not authorized. This includes ROTC graduates who delay entry onto active duty pending completion of their studies.
(3) All derogatory information revealed during the enlistment or appointment process that results in a moral waiver will be fully explained on a written summary attached to the DD Form 398-2.
(c)
(d)
(1) A DNACI is initiated at the time an application for a commission is received; and
(2) The applying health professional, chaplain, or attorney agrees in writing that, if the results of the investigation are unfavorable, he or she will be subject to discharge if found to be ineligible to hold a commission. Under this exception, commissions in Reserve Components other than the National Guard may be tendered to immigrant alien health professionals, chaplains, and attorneys.
(e)
(a)
(2) Military, DoD civilian, and contractor personnel who are employed by or serving in a consultant capacity to the DoD, may be considered for access to classified information only when such access is required in connection with official duties. Such individuals may be granted either a final or interim personnel security clearance provided the investigative requirements set forth below are complied with, and provided further that all available information has been adjudicated and a finding made that such clearance would be clearly consistent with the interests of national security.
(b)
(A) BI.
(B) Established billet per § 154.13(e) (1) through (3) (except contractors).
(ii) Interim Clearance:
(A) Favorable NAC, ENTNAC, DNACI, or NACI completed
(B) Favorable review of DD Form 398/SF-86/SF-171/DD Form 49
(C) BI or SBI has been initiated
(D) Favorable review of local personnel, base/military police, medical, and other security records as appropriate.
(E) Established billet per § 154.13(e) (1) through (3) (except contractors)
(F) Provisions of paragraph § 154.14(e) (1) and (2) have been met regarding civilian personnel.
(2)
(A) DNACI: Military (except first-term enlistees) and contractor employees
(B) NACI: Civilian employees
(C) ENTNAC: First-term enlistees
(ii) Interim Clearance:
(A) When a valid need to access Secret information is established, an interim Secret clearance may be issued in every case, provided that the steps
(B) Favorable review of DD Form 398-2/SF-85/SF-171/DD Form 48.
(C) NACI, DNACI, or ENTNAC initiated.
(D) Favorable review of local personnel, base military police, medical, and security records as appropriate.
(E) Provisions of § 154.14(e) have been complied with regarding civilian personnel.
(3)
(A) NAC or ENTNAC: Military and contractor employees (except for Philippine national members of the United States Navy on whom a BI shall be favorably completed.)
(B) NACI: Civilian employees (except for summer hires who may be granted a final clearance on the basis of a NAC).
(ii) Interim Clearance:
(A) Favorable review of DD Form 398-2/SF 85/SF 171/ DD Form 48.
(B) NAC, ENTNAC or NACI initiated.
(C) Favorable review of local personnel, base military police, medical, and security records as appropriate.
(D) Provisions of § 154.14(e) (1) and (2) have been complied with regarding civilian personnel.
(4)
(c)
(i) LAAs will be limited to Secret and Confidential level only; LAAs for Top Secret are prohibited.
(ii) Access to classified information is not inconsistent with that determined releasable by designated disclosure authorities, in accordance with DoD Directive 5230.11
(iii) Access to classified information must be limited to information relating to a specific program or project.
(iv) Favorable completion of an BI (scoped for 10 years); where the full investigative coverage cannot be completed, a counterintelligence scope polygraph examination will be required in accordance with the provisions of DoD Directive 5210.48.
(v) Security clearances previously issued to immigrant aliens will be reissued as LAAs.
(vi) The Limited Access Authorization determination shall be made only by an authority designated in paragraph B, Appendix E.
(vii) LAAs issued by the Unified and Specified Commands shall be reported to the central adjudicative facility of the appropriate military department in accordance with the assigned responsibilities in DoD Directive 5100.3
(2) In each case of granting a Limited Access Authorization, a record shall be maintained as to:
(i) The identity (including current citizenship) of the individual to whom the Limited Access Authorization is granted, to include name and date and place of birth;
(ii) Date and type of most recent investigation to include the identity of the investigating agency;
(iii) The nature of the specific program material(s) to which access is authorized (delineated as precisely as possible);
(iv) The classification level to which access is authorized; and
(v) The compelling reasons for granting access to the materials cited in (iii).
(vi) Status of the individual (i.e., immigrant alien or foreign national).
(3) Individuals granted LAAs under the foregoing provisions shall be the
(4) Foreign nationals who are LAA candidates must agree to submit to a counterintelligence-scope polygraph examination prior to being granted access in accordance with DoD Directive 5210.48.
(5) If geographical and political situations prevent the full completion of the BI (and/or counterintelligence-scope polygraph) issuance of an LAA shall not be authorized; exceptions to the policy may only be authorized by the DUSD(P).
(6) A report on all LAAs in effect, including the data required in paragraphs (d)(2) (i) through (vi) of this section shall be furnished to the Deputy Under Secretary of Defense for Policy within 60 days after the end of each fiscal year. (See § 154.77).
(d)
(2) Members of the U.S. Senate and House of Representatives do not require personnel security clearances. They may be granted access to DoD classified information which relates to matters under the jurisdiction of the respective Committees to which they are assigned and is needed to perform their duties in connection with such assignments.
(3) Congressional staff members requiring access to DoD classified information shall be processed for a security clearance in accordance with 32 CFR part 353 and the provisions of this part. The Director, Washington Headquarters Services (WHS) will initiate the required investigation (initial or reinvestigation) to DIS, adjudicate the results and grant, deny or revoke the security clearance, as appropriate. The Assistant Secretary of Defense (Legislative Affairs) will be notified by WHS of the completed clearance action.
(4) State governors do not require personnel security clearances. They may be granted access to specifically designated classified information, on a “need-to-know” basis, based upon affirmation by the Secretary of Defense or the head of a DoD Component or single designee, that access, under the circumstances, serves the national interest. Staff personnel of a governor's office requiring access to classified information shall be investigated and cleared in accordance with the prescribed procedures of this part when the head of a DoD Component, or single designee, affirms that such clearance serves the national interest. Access shall also be limited to specifically designated classified information on a “need-to-know” basis.
(5) Members of the U.S. Supreme Court, the Federal judiciary and the Supreme Courts of the individual States do not require personnel security clearances. They may be granted access to DoD classified information to the extent necessary to adjudicate cases being heard before these individual courts.
(6) Attorneys representing DoD military, civilian or contractor personnel, requiring access to DoD classified information to properly represent their clients, shall normally be investigated by DIS and cleared in accordance with the prescribed procedures in paragraph (b) of this section. This shall be done upon certification of the General Counsel of the DoD Component involved in the litigation that access to specified classified information, on the part of the attorney concerned, is necessary to adequately represent his or her client. In exceptional instances, when the exigencies of a given situation do not permit timely compliance with the provisions of § 154.16(b), access may be granted with the written approval of an authority designated in Appendix E provided that as a minimum: a favorable name check of the FBI and the DCII has been completed, and a DoD Non-Disclosure Agreement has been executed. In post-indictment cases, after a judge has invoked the security procedures of the Classified Information Procedures Act (CIPA) the Department of Justice may elect to conduct the necessary background investigation and issue the required security clearance, in coordination with the affected DoD Component.
(e)
(1) To persons in nonsensitive positions.
(2) To persons whose regular duties do not require authorized access to classified information.
(3) For ease of movement of persons within a restricted, controlled, or industrial area, whose duties do not require access to classified information.
(4) To persons who may only have inadvertent access to sensitive information or areas, such as guards, emergency service personnel, firemen, doctors, nurses, police, ambulance drivers, or similar personnel.
(5) To persons working in shipyards whose duties do not require access to classified information.
(6) To persons who can be prevented from accessing classified information by being escorted by cleared personnel.
(7) To food service personnel, vendors and similar commercial sales or service personnel whose duties do not require access to classified information.
(8) To maintenance or cleaning personnel who may only have inadvertent access to classified information unless such access cannot be reasonably prevented.
(9) To persons who perform maintenance on office equipment, computers, typewriters, and similar equipment who can be denied classified access by physical security measures.
(10) To perimeter security personnel who have no access to classified information.
(11) To drivers, chauffeurs and food service personnel.
(f)
(g)
(1) Authorization for such one-time access shall be granted by a flag or general officer, a general court-martial convening authority or equivalent Senior Executive Service member, after coordination with appropriate security officials.
(2) The recipient of the one-time access authorization must be a U.S. citizen, possess a current DoD security clearance, and the access required shall be limited to classified information one level higher than the current clearance.
(3) Such access, once granted, shall be cancelled promptly when no longer required, at the conclusion of the authorized period of access, or upon notification from the granting authority.
(4) The employee to be afforded the higher level access shall have been continuously employed by a DoD Component or a cleared DoD contractor for the preceding 24-month period. Higher level access is not authorized for part-time employees.
(5) Pertinent local records concerning the employee concerned shall be reviewed with favorable results.
(6) Whenever possible, access shall be confined to a single instance or at most, a few occasions. The approval for access shall automatically expire 30 calendar days from date access commenced. If the need for access is expected to continue for a period in excess of 30 days, written approval of the granting authority is required. At such
(7) Access at the higher level shall be limited to information under the control and custody of the authorizing official and shall be afforded under the general supervision of a properly cleared employee. The employee charged with providing such supervision shall be responsible for:
(i) Recording the higher-level information actually revealed,
(ii) The date(s) such access is afforded; and
(iii) The daily retrieval of the material accessed.
(8) Access at the next higher level shall not be authorized for COMSEC, SCI, NATO, or foreign government information.
(9) The exercise of this provision shall be used sparingly and repeat use within any 12 month period on behalf of the same individual is prohibited. The approving authority shall maintain a record containing the following data with respect to each such access approved:
(i) The name, and SSN of the employee afforded higher level access.
(ii) The level of access authorized.
(iii) Justification for the access, to include an explanation of the compelling reason to grant the higher level access and specifically how the DoD mission would be furthered.
(iv) An unclassified description of the specific information to which access was authorized and the duration of access along with the date(s) access was afforded.
(v) A listing of the local records reviewed and a statement that no significant adverse information concerning the employee is known to exist.
(vi) The approving authority's signature certifying (h)(9) (i) through (v) of this section.
(vii) Copies of any pertinent briefing/debriefings administered to the employee.
(h)
(2) The flag/general officer approving issuance of the clearance shall, provide the appropriate DoD Component central clearance facility a written record to be incorporated into the DCII detailing:
(i) Full identifying data pertaining to the cleared subject;
(ii) The classification of the information to which access was authorized.
(3) Such access may be granted only after the compelling reason and the specific aspect of the DoD mission which is served by granting such access has been detailed and under the condition that the classified materials involved are not removed from the confines of a government installation or other area approved for storage of DoD classified information.
(a)
(b)
(2) A previous investigation conducted within the past five years which substantially meets the investigative requirements prescribed by this section may serve as a basis for granting access approval provided that there has been no break in the individual's military service, DoD civilian employment, or access to classified information under the Industrial Security Program greater than 12 months. The individual shall submit one copy of an updated PSQ covering the period since the completion of the last SBI.
(c)
(d)
(i)
(B) Personnel assigned on a temporary or part-time basis to duties supporting the President:
(C) Personnel assigned to the Office of the Military Aide to the Vice President.
(ii)
(B) Employees of contractors who provide services or contractors employees who require unescorted access to Presidential Support areas, activities, or equipment—including maintenance of the Presidential retreat, communications, and aircraft.
(C) Individuals in designated units requiring a lesser degree of access to the President or Presidential Support activities.
(2) Personnel nominated for Category One duties must have been the subject of an SBI, including a NAC on the spouse and all members of the individual's immediate family of 18 years of age or over who are U.S. citizens other than by birth or who are resident aliens. The SBI must have been completed within the 12 months preceding selection for Presidential Support duties. If such an individual marries subsequent to the completion of the SBI, the required spouse check shall be made at that time.
(3) Personnel nominated for Category Two duties must have been the subject
(4) The U.S. citizenship of foreign-born immediate family members of all Presidential Support nominees must be verified by investigation.
(5) A limited number of Category One personnel having especially sensitive duties have been designated by the Director, White House Military Office as “Category A.” These personnel shall be investigated under special scoping in accordance with the requirements of the Memorandum of Understanding between the Director, White House Military Office and the Special Assistant to the Secretary and Deputy Secretary of Defense, July 30, 1980.
(e)
(i)
(A) The individual has had a favorable DNACI, NAC (or ENTNAC) within the past 5 years without a break in service or employment in excess of 1 year.
(B) The BI has been requested.
(C) All other requirements of the PRP screening process have been fulfilled.
(D) The individual is identified to supervisory personnel as being certified on an interim basis.
(E) The individual is not used in a two-man team with another such individual.
(F) Justification of the need for interim certification is documented by the certifying official.
(G) Should the BI not be completed within 150 days from the date of the request, the certifying official shall query the Component clearance authority, who shall ascertain from DIS the status of the investigation. On the basis of such information, the certifying official shall determine whether to continue or to withdraw the interim certification.
(ii)
(B) Interim certification is authorized for an individual who has not had a DNACI/NACI completed within the past 5 years, subject to the following conditions:
(
(
(
(
(iii)
(B) In those cases in which the investigation was completed more than 5 years prior to initial assignment or in which there has been a break in service or employment in excess of 1 year subsequent to completion of the investigation, a reinvestigation is required.
(C) Subsequent to initial assignment to the PRP, reinvestigation is not required so long as the individual remains in the PRP.
(D) A medical evaluation of the individual as set forth in DoD Directive 5210.42.
(E) Review of the individual's personnel file and other official records and information locally available concerning behavior or conduct which is relevant to PRP standards.
(F) A personal interview with the individual for the purpose of informing him of the significance of the assignment, reliability standards, the need for reliable performance, and of ascertaining his attitude with respect to the PRP.
(G) Service in the Army, Navy and Air Force Reserve does not constitute active service for PRP purposes.
(f)
(2) Personnel
(g)
(a)
(b)
(2) In meeting the requirements of this paragraph, approval shall be obtained from one of the authorities designated in paragraph A, Appendix E of this part, for authority to request NACs on DoD military, civilian or contractor employees. A justification shall
(3) NAC requests shall—
(i) Be forwarded to DIS in accordance with the provisions of paragraph B, Appendix C,
(ii) Contain a reference to this paragraph on the DD Form 398-2, and
(iii) List the authority in Appendix E who approved the request.
(4) Determinations to deny access under the provisions of this paragraph must not be exercised in an arbitrary, capricious, or discriminatory manner and shall be the responsibility of the military or installation commander as provided for in DoD Directive 5200.8.
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(1) Host government law enforcement and security agency checks at the city, state (province), and national level, whenever permissible by the laws of the host government; and
(2) DCII.
(3) FBI-HQ/ID. (Where information exists regarding residence by the foreign national in the United States for one year or more since age 18).
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(a)
(1) To prove or disprove an allegation relating to the criteria set forth in § 154.7 of this part with respect to an individual holding a security clearance or assigned to a position that requires a trustworthiness determination;
(2) To meet the periodic reinvestigation requirements of this part with respect to those security programs enumerated below; and
(3) Upon individual request, to assess the current eligibility of individuals who did not receive favorable adjudicative action after an initial investigation, if a potential clearance need exists and there are reasonable indications that the factors upon which the adverse determination was made no longer exists.
(b)
(c)
(d)
(e)
(f)
(g)
(1) The potential damage that might result from the individual's defection or abduction.
(2) The availability and probable effectiveness of means other than reinvestigation to evaluate factors concerning the individual's suitability for continued SCI access.
(h)
(i)
(2) Generally, the Deputy Under Secretary of Defense for Policy will only approve periodic reinvestigations of persons having access to Secret information if the unauthorized disclosure of the information in question could reasonably be expected to:
(i) Jeopardize human life or safety.
(ii) Result in the loss of unique or uniquely productive intelligence sources or methods vital to U.S. security.
(iii) Compromise technologies, plans, or procedures vital to the strategic advantage of the United States.
(3) Each individual accessing very sensitive Secret information who has been designated by an authority listed in paragraph A, Appendix E as requiring periodic reinvestigation, shall be the subject of a PR conducted on a 5-year recurring basis scoped as stated in paragraph 5, Appendix A.
(j)
(k)
Previously conducted investigations and previously rendered personnel security determinations shall be accepted within DoD in accordance with the policy set forth below.
As long as there is no break in military service/civilian employment greater than 12 months, any previous personnel security investigation conducted by DoD investigative organizations that essentially is equivalent in scope to an investigation required by this part will be accepted without requesting additional investigation. There is no time limitation as to the acceptability of such investigations, subject to the provisions of §§ 154.8(h) and 154.25(b) of this part.
(a) Adjudicative determinations for appointment in sensitive positions, assignment to sensitive duties or access to classified information (including those pertaining to SCI) made by designated DoD authorities will be mutually and reciprocally accepted by all DoD Components without requiring additional investigation, unless there has been a break in the individual's military service/civilian employment of greater than 12 months or unless derogatory information that occurred subsequent to the last prior security determination becomes known. A check of the DCII should be conducted to accomplish this task.
(b) Whenever a valid DoD security clearance or Special Access authorization (including one pertaining to SCI) is on record, Components shall not request DIS or other DoD investigative organizations to forward prior investigative files for review unless:
(1) Significant derogatory information or investigation completed subsequent to the date of last clearance or Special Access authorization, is known to the requester; or
(2) The individual concerned is being considered for a higher level clearance (e.g., Secret or Top Secret) or the individual does not have a Special Access authorization and is being considered for one; or
(3) There has been a break in the individual's military service/civilian employment of greater than 12 months subsequent to the issuance of a prior clearance.
(4) The most recent SCI access authorization of the individual concerned was based on a waiver.
(c) Requests for prior investigative files authorized by this part shall be made in writing, shall cite the specific justification for the request (i.e., upgrade of clearance, issue Special Access authorization, etc.), and shall include the date, level, and issuing organization of the individual's current or most recent security clearance or Special Access authorization.
(d) All requests for non-DoD investigative files, authorized under the criteria prescribed by paragraphs (a), (b) (1), (2), (3), and (4) and (c) of this section shall be:
(1) Submitted on DD Form 398-2 to DIS;
(2) Annotated as a “Single Agency Check” of whichever agency or agency developed the investigative file or to obtain the check of a single national agency.
(e) When further investigation is desired, in addition to an existing non-
(f) Whenever a civilian or military member transfers from one DoD activity to another, the losing organization's security office is responsible for advising the gaining organization of any pending action to suspend, deny or revoke the individual's security clearance as well as any adverse information that may exist in security, personnel or other files. In such instances the clearance shall not be reissued until the questionable information has been adjudicated.
(a) Whenever a prior investigation or personnel security determination (including clearance for access to information classified under E.O. 12356 of another agency of the Federal Government meets the investigative scope and standards of this part, such investigation or clearance may be accepted for the investigative or clearance purposes of this part, provided that the employment with the Federal agency concerned has been continuous and there has been no break longer than 12 months since completion of the prior investigation, and further provided that inquiry with the agency discloses no reason why the clearance should not be accepted. If it is determined that the prior investigation does not meet the provisions of this paragraph, supplemental investigation shall be requested.
(b) A NACI conducted by OPM shall be accepted and considered equivalent to a DNACI for the purposes of this part.
(c) Department of Defense policy on reciprocal acceptance of clearances with the Nuclear Regulatory Commission and the Department of Energy is set forth in DoD Directive 5210.2.
Requests for personnel security investigations shall be limited to those required to accomplish the Defense mission. Such requests shall be submitted only by the authorities designated in § 154.31. These authorities shall be held responsible for determining if persons under their jurisdiction require a personnel security investigation. Proper planning must be effected to ensure that investigative requests are submitted sufficiently in advance to allow completion of the investigation before the time it is needed to grant the required clearance or otherwise make the necessary personnel security determination.
Requests for personnel security investigation shall be accepted only from the requesters designated below:
(a)
(i) Central Clearance Facility.
(ii) All activity commanders.
(iii) Chiefs of recruiting stations.
(2) Navy (including Marine Corps).
(i) Central Adjudicative Facility.
(ii) Commanders and commanding officers of organizations listed on the Standard Navy Distribution List.
(iii) Chiefs of recruiting stations.
(3) Air Force.
(i) Air Force Security Clearance Office.
(ii) Assistant Chief of Staff for Intelligence.
(iii) All activity commanders.
(iv) Chiefs of recruiting stations.
(b) Defense Agencies—Directors of Security and activity commanders.
(c) Organization of the Joint Chiefs of Staff—Chief, Security Division.
(d) Office of the Secretary of Defense—Director for Personnel and Security, Washington Headquarters Services.
(e) Commanders of Unified and Specified Commands or their designees.
(f) Such other requesters approved by the Deputy Under Secretary of Defense for Policy.
Authorized requesters shall use the tables set forth in Appendix C to determine the type of investigation that shall be requested to meet the investigative requirement of the specific position or duty concerned.
To insure efficient and effective completion of required investigations, all requests for personnel security investigations shall be prepared and forwarded in accordance with Appendix B and the investigative jurisdictional policies set forth in § 154.9.
To insure that personnel security investigations are conducted in an orderly and efficient manner, requests for priority for individual investigations or categories of investigations shall be kept to a minimum. DIS shall not assign priority to any personnel security investigation or categories of investigations without written approval of the Deputy Under Secretary of Defense for Policy.
(a) To conduct the required investigation, it is necessary that the investigative agency be provided certain relevant data concerning the subject of the investigation. The Privacy Act of 1974 requires that, to the greatest extent practicable, personal information shall be obtained directly from the subject individual when the information may result in adverse determinations affecting an individual's rights, benefits, and privileges under Federal programs.
(b) Accordingly, it is incumbent upon the subject of each personnel security investigation to provide the personal information required by this part. At a minimum, the individual shall complete the appropriate investigative forms, provide fingerprints of a quality acceptable to the FBI, and execute a signed release, as necessary, authorizing custodians of police, credit, education, employment, and medical and similar records, to provide relevant record information to the investigative agency. When the FBI returns a fingerprint card indicating that the quality of the fingerprints is not acceptable, an additional set of fingerprints will be obtained from the subject. In the event the FBI indicates that the additional fingerprints are also unacceptable, no further attempt to obtain more fingerprints need be made; this aspect of the investigation will then be processed on the basis of the name check of the FBI files. As an exception, a minimum of three attempts will be made for all Presidential Support cases, for SCI access nominations if the requester so indicates, and in those cases in which more than minor derogatory information exists. Each subject of a personnel security investigation conducted under the provisions of this part shall be furnished a Privacy Act Statement advising of the authority for obtaining the personal data, the principal purpose(s) for obtaining it, the routine uses, whether disclosure is mandatory or voluntary, the effect on the individual if it is not provided, and that subsequent use of the data may be employed as part of an aperiodic review process to evaluate continued eligibility for access to classified information.
(c) Failure to respond within the time limit prescribed by the requesting organization with the required security forms or refusal to provide or permit access to the relevant information required by this part shall result in termination of the individual's security clearance or assignment to sensitive duties utilizing the procedures of § 154.59 or further administrative processing of the investigative request.
(a) The standard which must be met for clearance or assignment to sensitive duties is that, based on all available information, the person's loyalty, reliability, and trustworthiness are such that entrusting the person with classified information or assigning the person to sensitive duties is clearly consistent with the interests of national security.
(b) The principal objective of the DoD personnel security adjudicative
(c) Establishing relevancy is one of the key objectives of the personnel security adjudicative process in evaluating investigative material. It involves neither the judgment of criminal guilt nor the determination of general suitability for a given position; rather, it is the assessment of a person's trustworthiness and fitness for a responsibility which could, if abused, have unacceptable consequences for the national security.
(d) While equity demands optimal uniformity in evaluating individual cases, assuring fair and consistent assessment of circumstances from one situation to the next, each case must be weighed on its own merits, taking into consideration all relevant facts, and prior experience in similar cases. All information of record, both favorable and unfavorable, must be considered and assessed in terms of accuracy, completeness, relevance, seriousness, and overall significance. In all adjudications the protection of the national security shall be the paramount determinant.
(a) To ensure uniform application of the requirement of this part and to ensure that DoD personnel security determinations are effected consistent with existing statutes and Executive orders, the head of each Military Department and Defense Agencies shall establish a single Central Adjudication Facility for his/her component. The function of such facility shall be limited to evaluating personnel security investigations and making personnel security determinations. The chief of each Central Adjudication Facility shall have the authority to act on behalf of the head of the Component concerned with respect to personnel security determinations. All information relevant to determining whether a person meets the appropriate personnel security standard prescribed by this part shall be reviewed and evaluated by personnel security specialists specifically designated by the head of the Component concerned, or designee.
(b) In view of the significance each adjudicative decision can have on a person's career and to ensure the maximum degree of fairness and equity in such actions, a minimum level of review shall be required for all clearance/access determinations related to the following categories of investigations:
(1) BI/SBI/PR/ENAC/SII:
(i)
(ii)
(2)
(i)
(ii)
(c) Exceptions to the above policy may only be granted by the Deputy Under Secretary of Defense for Policy.
(a) The criteria and adjudicative policy to be used in applying the principles at § 154.40 are set forth in § 154.7(a) and Appendix H of this part. The ultimate consideration in making a favorable personnel security determination is whether such determination is clearly consistent with the interests of national security and shall be an overall common sense evaluation based on all available information. Such a determination shall include consideration of the following factors:
(1) The nature and seriousness of the conduct;
(2) The circumstances surrounding the conduct;
(3) The frequency and recency of the conduct;
(4) The age of the individual;
(5) The voluntariness of participation; and
(6) The absence or presence of rehabilitation.
(b) Detailed adjudication policy guidance to assist adjudicators in determining whether a person is eligible for access to classified information or assignment to sensitive duties is contained in Appendix H. Adjudication policy for access to SCI is contained in DCID 1/14.
(a) Each adjudicative determinations, whether favorable or unfavorable, shall be entered into the Defense Clearance and Investigations Index (DCII) on a daily basis, but in no case to exceed 5 working days from the date of determination.
(b) The rationale underlying each unfavorable personnel security determination, to include the appeal process, and each favorable personnel security determination where the investigation or information upon which the determination was made included significant derogatory information of the type set forth in § 154.7 and appendix H to part 154, shall be maintained in written or automated form and is subject to the provisions of 32 CFR part 285 and 32 CFR part 310. This information shall be maintained for a minimum of 5 years from the date of determination.
(a) The issuance of a personnel security clearance (as well as the function of determining that an individual is eligible for access to Special Access program information, or is suitable for assignment to sensitive duties or such other duties that require a trustworthiness determination) is a function distinct from that involving the granting of access to classified information. Clearance determinations are made on the merits of the individual case with respect to the subject's suitability for security clearance. Access determinations are made solely on the basis of the individual's need for access to classified information in order to perform official duties. Except for suspension of access pending final adjudication of a personnel security clearance, access may not be finally denied for cause without applying the provisions of § 154.56(b).
(b) Only the authorities designated in paragraph A, Appendix E are authorized to grant, deny or revoke personnel security clearances or Special Access authorizations (other than SCI). Any commander or head of an organization may suspend access for cause when there exists information raising a serious question as to the individual's ability or intent to protect classified information, provided that the procedures
(c) All commanders and heads of DoD organizations have the responsibility for determining those position functions in their jurisdiction that require access to classified information and the authority to grant access to incumbents of such positions who have been cleared under the provisions of this part.
(a) Authorities designated in paragraph A, Appendix E shall record the issuance, denial or revocation of a personnel security clearance in the DCII (see § 154.43). A record of the clearance issued shall also be recorded in an individual's personnel/security file or official personnel folder, as appropriate.
(b) A personnel security clearance remains valid until the individual is separated from the Armed Forces, separated from DoD civilian employment, has no further official relationship with DoD, official action has been taken to deny, revoke or suspend the clearance or access, or regular access to the level of classified information for which the individual holds a clearance is no longer necessary in the normal course of his or her duties. If an individual resumes his or her affiliation with DoD no single break in the individual's relationship with DoD exists greater than 24 months and/or, the need for regular access to classified information at or below the previous level recurs, and no record of an unfavorable administrative action exists, the appropriate clearance shall be reissued without further investigation or adjudication provided there has been no additional investigation or development of derogatory information.
(c) Personnel security clearances of DoD military personnel shall be granted denied or revoked only by the designated authority of the parent Military Department. Issuance, reissuance, denial, or revocation of a personnel security clearance by any DoD Component concerning personnel who have been determined to be eligible for clearance by another component is expressly prohibited. Investigations conducted on Army, Navy, and Air Force personnel by DIS will be returned only to the parent service of the subject for adjudication regardless of the source of the original request. The adjudicative authority will be responsible for expeditiously transmitting the results of the clearance determination. As an exception, the employing DoD Component may issue an interim clearance to personnel under their administrative jurisdiction pending a final eligibility determination by the individual's parent Component. Whenever an employing DoD Component issues an interim clearance to an individual from another Component, written notice of the action shall be provided to the parent Component.
(d) When a Defense agency, to include Chairman of the Joint Chiefs of Staff, initiates an SBI (or PR) for access to SCI on a military member, DIS will return the completed investigation to the appropriate Military Department adjudicative authority in accordance with paragraph (c) of this section for issuance (or reissuance) of the Top Secret clearance. Following the issuance of the security clearance, the military adjudicative authority will forward the investigative file to the Defense agency identified in the “Return Results To” block of the DD Form 1879. The receiving agency will then forward the completed SBI on to DIA for the SCI adjudication in accordance with DCID 1/14.
(e) The interim clearance shall be recorded in the DCSI (§ 154.43) by the parent DoD Component in the same manner as a final clearance.
(a) Access to classified information shall be granted to persons whose official duties require such access and who have the appropriate personnel security clearance. Access determinations (other than for Special Access programs) are not an adjudicative function relating to an individual's suitability for such access. Rather they are decisions made by the commander that access is officially required.
(b) In the absence of derogatory information on the individual concerned, DoD commanders and organizational managers shall accept a personnel security clearance determination, issued
(c) The access level of cleared individuals will, wherever possible, be entered into the Defense Clearance and Investigations Index (DCII), along with clearance eligibility. However, completion of the DCII Access field is required effective October 1, 1993 in all instances where the adjudicator with a personnel security investigation. Agencies are encouraged to start completing this field as soon as possible.
As set forth in § 154.48 the personnel security clearance and access eligibility must be withdrawn when the events described therein occur. When regular access to a prescribed level of classified information is no longer required in the normal course of an individual's duties, the previously authorized access eligibility level must be administratively downgraded or withdrawn, as appropriate.
(a)
(b)
(2) The Director DIS shall establish appropriate alternative means whereby information with potentially serious security significance can be reported other than through DoD command or industrial organization channels. Such access shall include utilization of the DoD Inspector General “hotline” to receive such reports for appropriate follow-up by DIS. DoD Components and industry will assist DIS in publicizing the availability of appropriate reporting channels. Additionally, DoD Components will augment the system when and where necessary. Heads of DoD Components will be notified immediately to take action if appropriate.
(c)
(1) The commander or head of the organization shall determine whether, on
(2) Whenever a determination is made to suspend a security clearance for access to classified information or assignment to sensitive duties (or other duties requiring a trustworthiness determination), the individual concerned must be notified of the determination in writing by the commander, or head of the component or adjudicative authority, to include a brief statement of the reason(s) for the suspension action consistent with the interests of national security.
(3) Component field elements must promptly report all suspension actions to the appropriate central adjudicative authority, but not later than 10 working days from the date of the suspension action. The adjudicative authority will immediately update the DCII Eligibility and Access fields to alert all users to the individual's changed status.
(4) Every effect shall be made to resolve suspension cases as expeditiously as circumstances permit. Suspension cases exceeding 180 days shall be closely monitored and managed by the DoD Component concerned until finally resolved. Suspension cases pending in excess of 12 months will be reported to the DASD(CI&SCM) for review and appropriate action.
(5) A final security clearance eligibility determination shall be made for all suspension actions and the determination entered in the DCII. If, however, the individual under suspension leaves the jurisdiction of the Department of Defense and no longer requires a clearance (or trustworthiness determination), entry of the “Z” Code (adjudication action incomplete due to loss of jurisdiction) if the clearance eligibility field is appropriate. In no case shall a “suspension” code (Code Y) remain as a permanent record in the DCII.
(6) A clearance or access entry in the DCII shall not be suspended or downgraded based solely on the fact that a periodic reinvestigation was not conducted precisely within the 5 year time period for TOP SECRET/SCI or within the period prevailing for SECRET clearances under departmental policy. While every effort should be made to ensure that PRs are conducted within the prescribed time frame, agencies must be flexible in their administration of this aspect of the personnel security program so as not to undermine the ability of the Department of Defense to accomplish its mission.
(d)
(a)
(b)
(1) A written statement of the reasons why the unfavorable administrative action is being taken. The statement shall be as comprehensive and detailed as the protection of sources afforded confidentiality under the provisions of the Privacy Act of 1974 (5 U.S.C. 552a) and national security permit. The statement will also provide the name and address of the agencies (agencies) to which the individual may write to obtain a copy of the investigative file(s) upon which the unfavorable administrative action is being taken. Prior to issuing a statement of reasons to a civilian employee for suspension or removal action, the issuing authority must comply with the provisions of Federal Personnel Manual, chapter 732, subchapter 1, paragraph 1-6b. The signature authority must be as provided for in § 154.41(b) (1)(ii) and (2)(ii).
(2) An opportunity to reply in writing to such authority as the head of the Component concerned may designate;
(3) A written response to any submission under subparagraph b. stating the final reasons therefor, which shall be as specific as privacy and national security considerations permit. The signature authority must be as provided for in § 154.41(b) (1)(ii) and (2)(ii). Such response shall be as prompt as individual circumstances permit, not to exceed 60 days from the date of receipt of the appeal submitted under paragraph (b)(2) of this section provided no additional investigative action is necessary. If a final response cannot be completed within the time frame allowed, the subject must be notified in writing of this fact, the reasons therefor, and the date a final response is expected, which shall not, in any case, exceed a total of 90 days from the date of receipt of the appeal under paragraph (b) of this section.
(4) An opportunity to appeal to a higher level of authority designated by the Component concerned.
(c)
(a)
(b)
(a)
(b)
(2) The heads of all DoD components are encouraged to develop programs designed to counsel and assist employees in sensitive positions who are experiencing problems in their personal lives with respect to such areas as financial, medical or emotional difficulties. Such initiatives should be designed to identify potential problem areas at an early stage so that any assistance rendered by the employing activity will have a reasonable chance of precluding long term, job-related security problems.
(c)
(1) In conjunction with the submission of PRs stated in § 154.19, and paragraph 5, Appendix A, supervisors will be required to review an individual's DD Form 398 to ensure that no significant adverse information of which they are aware and that may have a bearing on subject's continued eligibility for access to classified information is omitted.
(2) If the supervisor is not aware of any significant adverse information that may have a bearing on the subject's continued eligibility for access, then the following statement must be documented, signed and dated, and forwarded to DIS with the investigative package.
I am aware of no information of the type contained at Appendix D, 32 CFR part 154, relating to subject's trustworthiness, reliability, or loyalty that may reflect adversely on his/her ability to safeguard classified information.
(3) If the supervisor is aware of such significant adverse information, the following statement shall be documented, signed and dated and forwarded to DIS with the investigative package, and a written summary of the derogatory information forwarded to DIS with the investigative package:
I am aware of information of the type contained in Appendix D, 32 CFR part 154, relating to subject's trustworthiness, reliability, or loyalty that may reflect adversely on his/her ability to safeguard classified information and have reported all relevant details to the appropriate security official(s).
(4) In conjunction with regularly scheduled fitness and performance reports of military and civilian personnel whose duties entail access to classified information, supervisors will include a comment in accordance with paragraphs (c) (2) and (3) of this section as well as a comment regarding an employee's discharge of security responsibilities, pursuant to their Component guidance.
(d)
(2) Moreover, individuals having access to classified information must report promptly to their security office:
(i) Any form of contact, intentional or otherwise, with individuals of any nationality, whether within or outside the scope of the employee's official activities, in which:
(A) Illegal or unauthorized access is sought to classified or otherwise sensitive information.
(B) The employee is concerned that he or she may be the target of exploitation by a foreign entity.
(ii) Any information of the type referred to in § 154.7 or appendix H to this part.
(e)
(a)
(b)
(i) The specific security requirements of their particular job.
(ii) The techniques employed by foreign intelligence activities in attempting to obtain classified information and their responsibility for reporting such attempts.
(iii) The prohibition against disclosing classified information, by any means, to unauthorized persons or discussing or handling classified information in a manner that would make it accessible to unauthorized persons.
(iv) The penalties that may be imposed for security violations.
(2) If an individual declines to execute Standard Form 312, “Classified Information Nondisclosure Agreement”
(c)
(d) Foreign travel briefing. While world events during the past several years have diminished the threat to our national security from traditional cold-war era foreign intelligence services, foreign intelligence service continue to pursue the unauthorized acquisition of classified or otherwise sensitive U.S. Government information, through the recruitment of U.S. Government employees with access to such information. Through security briefings and education, the Department of Defense continues to provide for the protection of information and technology considered vital to the national security interests from illegal or unauthorized acquisition by foreign intelligence services.
(1) DoD Components will establish appropriate internal procedures requiring all personnel possessing a DoD security clearance to report to their security office all contacts with individuals of any nationality, whether within or outside the scope of the employee's official activities, in which:
(i) Illegal or unauthorized access is sought to classified or otherwise sensitive information.
(ii) The employee is concerned that he or she may be the target of exploitation by a foreign entity.
(2) The DoD security manager, security specialist or other qualified individual will review and evaluate the reported information. Any facts or circumstances of a reported contact with a foreign national that appear to:
(i) Indicate an attempt or intention to obtain unauthorized access to proprietary, sensitive, or classified information or technology;
(ii) Offer a reasonable potential for such; or
(iii) Indicate the possibility of continued contact with the foreign national for such purposes, shall be promptly reported to the appropriate counterintelligence agency.
(e)
(i) An acknowledgment that the individual has read the appropriate provisions of the Espionage Act, other criminal statutes, DoD Regulations applicable to the safeguarding of classified information to which the individual has had access, and understands the implications thereof;
(ii) A declaration that the individual no longer has any documents or material containing classified information in his or her possession;
(iii) An acknowledgment that the individual will not communicate or transmit classified information to any unauthorized person or agency; and
(iv) An acknowledgment that the individual will report without delay to the FBI or the DoD Component concerned any attempt by any unauthorized person to solicit classified information.
(2) When an individual refuses to execute a Security Termination Statement, that fact shall be reported immediately to the security manager of the cognizant organization concerned. In any such case, the individual involved shall be debriefed orally. The fact of a refusal to sign a Security Termination Statement shall be reported to the Director, Defense Investigative Service who shall ensure that it is recorded in the Defense Clearance and Investigations Index.
(3) The Security Termination Statement shall be retained by the DoD Component that authorized the individual access to classified information for the period specified in the Component's records retention schedules, but
(4) In addition to the provisions of paragraphs (e)(1), (e)(2), and (e)(3) of this section, DoD Components shall establish a central authority to be responsible for ensuring that Security Termination Statements are executed by senior personnel (general officers, flag officers and GS-16s and above). Failure on the part of such personnel to execute a Security Termination Statement shall be reported immediately to the Deputy Under Secretary of Defense for Policy.
In recognition of the sensitivity of personnel security reports and records, particularly with regard to individual privacy, it is Department of Defense policy that such personal information shall be handled with the highest degree of discretion. Access to such information shall be afforded only for the purpose cited herein and to persons whose official duties require such information. Personnel security investigative reports may be used only for the purposes of determining eligibility of DoD military and civilian personnel, contractor employees, and other persons affiliated with the Department of Defense, for access to classified information, assignment or retention in sensitive duties or other specifically designated duties requiring such investigation, or for law enforcement and counterintelligence investigations. Other uses are subject to the specific written authorization of the Deputy Under Secretary of Defense for Policy.
DoD authorities responsible for administering the DoD personnel security program and all DoD personnel authorized access to personnel security reports and records shall ensure that the use of such information is limited to that authorized by this part and that such reports and records are safeguarded as prescribed herein. The heads of DoD Components and the Deputy Under Secretary of Defense for Policy for the Office of the Secretary of Defense shall establish internal controls to ensure adequate safeguarding and limit access to and use of personnel security reports and records as required by §§ 154.67 and 154.68.
Access to personnel security investigative reports and personnel security clearance determination information shall be authorized only in accordance with 32 CFR parts 286 and 286a and with the following:
(a) DoD personnel security investigative reports shall be released outside of the DoD only with the specific approval of the investigative agency having authority over the control and disposition of the reports.
(b) Within DoD, access to personnel security investigative reports shall be limited to those designated DoD officials who require access in connection with specifically assigned personnel security duties, or other activities specifically identified under the provisions of § 154.65.
(c) Access by subjects of personnel security investigative reports shall be afforded in accordance with 32 CFR part 286a.
(d) Access to personnel security clearance determination information shall be made available, other than provided for in paragraph (c) of this section, through security channels, only to DoD or other officials of the Federal Government who have an official need for such information.
Personnel security investigative reports and personnel security determination information shall be safeguarded as follows:
(a) Authorized requesters shall control and maintain accountability of all reports of investigation received.
(b) Reproduction, in whole or in part, of personnel security investigative reports by requesters shall be restricted to the minimum number of copies required for the performance of assigned duties.
(c) Personnel security investigative reports shall be stored in a vault, safe, or steel file cabinet having at least a lockbar and an approved three-position dial-type combination padlock or in a similarly protected area/container.
(d) Reports of DoD personnel security investigations shall be sealed in double envelopes or covers when transmitted by mail or when carried by persons not authorized access to such information. The inner cover shall bear a notation substantially as follows:
(e) An individual's status with respect to a personnel security clearance or a Special Access authorization is to be protected as provided for in 32 CFR part 286.
(a) Personnel security investigative reports, to include OPM NACIs may be retained by DoD recipient organizations, only for the period necessary to complete the purpose for which it was originally requested. Such reports are considered to be the property of the investigating organization and are on loan to the recipient organization. All copies of such reports shall be destroyed within 90 days after completion of the required personnel security determination. Destruction shall be accomplished in the same manner as for classified information in accordance with 32 CFR part 159.
(b) DoD record repositories authorized to file personnel security investigative reports shall destroy PSI reports of a favorable or of a minor derogatory nature 15 years after the date of the last action. That is, after the completion date of the investigation or the date on which the record was last released to an authorized user—whichever is later. Personnel security investigative reports resulting in an unfavorable administrative personnel action or court-martial or other investigations of a significant nature due to information contained in the investigation shall be destroyed 25 years after the date of the last action. Files in this latter category that are determined to be of possible historical value and those of widespread public or congressional interest may be offered to the National Archives after 15 years.
(c) Personnel security investigative reports on persons who are considered for affiliation with DoD will be destroyed after 1 year if the affiliation is not completed.
Information that is classified by a foreign government is exempt from public disclosure under the Freedom of Information and Privacy Acts. Further, information provided by foreign governments requesting an express promise of confidentiality shall be released only in a manner that will not identify or allow unauthorized persons to identify the foreign agency concerned.
To ensure uniform implementation of the DoD personnel security program throughout the Department, program responsibility shall be centralized at DoD Component level.
(a) The Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASD(C31)) shall have primary responsibility for providing guidance, oversight, development and approval for policy and procedures governing personnel security program matters within the Department:
(1) Provide program management through issuance of policy and operating guidance.
(2) Provide staff assistance to the DoD Components and defense agencies in resolving day-to-day security policy and operating problems.
(3) Conduct inspections of the DoD Components for implementation and compliance with DoD security policy and operating procedures.
(4) Provide policy, oversight, and guidance to the component adjudication functions.
(5) Approve, coordinate and oversee all DoD personnel security research initiatives and activities.
(b) The General Counsel shall ensure that the program is administered in a manner consistent with the laws; all proceedings are promptly initiated and expeditiously completed; and that the rights of individuals involved are protected, consistent with the interests of national security. The General Counsel shall also ensure that all relevant decisions of the courts and legislative initiatives of the Congress are obtained on a continuing basis and that analysis of the foregoing is accomplished and disseminated to DoD personnel security program management authorities.
(c) The Heads of the Components shall ensure that:
(1) The DoD personnel security program is administered within their area of responsibility in a manner consistent with this part.
(2) A single authority within the office of the head of the DoD Component is assigned responsibility for administering the program within the Component.
(3) Information and recommendations are provided the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASD(C31)) and the General Counsel at their request concerning any aspect of the program.
(a) The OASD(C31) shall be provided personnel security program management data by the Defense Data Manpower Center (DMDC) by December 31 each year for the preceding fiscal year. To facilitate accurate preparation of this report, all adjudicative determinations must be entered into the DC11 by all DoD central adjudication facilities no later than the end of the fiscal year. The information required below is essential for basic personnel security program management and in responding to requests from the Secretary of Defense and Congress. The report shall cover the preceding fiscal year, broken out by clearance category, according to military (officer or enlisted), civilian or contractor status and by the central adjudication facility that took the action, using the enclosed format:
(1) Number of Top Secret, Secret, and Confidential clearances issued;
(2) Number of Top Secret, Secret, and Confidential clearances denied;
(3) Number of Top Secret, Secret, and Confidential clearances revoked;
(4) Number of SCI access determinations issued;
(5) Number of SCI access determinations denied;
(6) Number of SCI access determinations revoked; and
(7) Total number of personnel holding a clearance for Top Secret, Secret, Confidential and Sensitive Compartmented Information as of the end of the fiscal year.
(b) The Defense Investigative Service (DIS) shall provide the OASD(C3I) a quarterly report that reflects investigative cases opened and closed during the most recent quarter, by case category type, and by major requester. The information provided by DIS is essential for evaluating statistical data regarding investigative workload and the manpower required to perform personnel security investigations. Case category types include National Agency Checks (NACs); Expanded NACs; Single Scope Background Investigations (SSBIs), Periodic Reinvestigations (PRs); Secret Periodic Reinvestigations (SPRs); Post Adjudicative (PA); Special Investigative Inquiries (SIIs); and Limited Inquiries (LIs). This report shall be forwarded to OASD(C3I) within 45 days after the end of each quarter.
(c) The reporting requirement for DMDC and DIS has been assigned Report Control Symbol DD-C3I(A) 1749.
The heads of DoD Components shall assure that personnel security program matters are included in their administrative inspection programs.
This appendix prescribes the scope of the various types of personnel security investigations.
1.
a. DCII records consist of an alphabetical index of personal names and impersonal titles that appear as subjects or incidentals in investigative documents held by the criminal, counterintelligence, fraud, and personnel security investigative activities of the three military departments, DIS, Defense Criminal Investigative Service (DCIS), and the National Security Agency. DCII records will be checked on all subjects of DoD investigations.
b. FBI/HQ has on file copies of investigations conducted by the FBI. The FBI/HQ check, included in every NAC, consists of a review of files for information of a security nature and that developed during applicant-type investigations.
c. An FBI/ID check, included in every NAC (but not ENTNAC), is based upon a technical fingerprint search that consists of a classification of the subject's fingerprints and comparison with fingerprint cards submitted by law enforcement activities. If the fingerprint card is not classifiable, a “name check only” of these files is automatically conducted.
d. OPM. The files of OPM contain the results of investigations conducted by OPM under Executive Orders 9835 and 10450, those requested by the Nuclear Regulatory Commission (NRC), the Department of Energy (DOE) and those requested since August 1952 to serve as a basis for “Q” clearances. Prior to that date, “Q” clearance investigations were conducted by the FBI. A “Q” clearance is granted to individuals who require access to DOE information. In order to receive a “Q” clearance, a full field background investigation must be completed on the individual requiring access in accordance with the Atomic Energy Act of 1954. Also on file are the results of investigations on the operation of the Merit System, violations of the Veterans Preference Act, appeals of various types, fraud and collusion in Civil Service examinations and related matters, data on all Federal employment, and an index of all BIs on civilian employees or applicants completed by agencies of the Executive Branch of the U.S. Government. The OPM files may also contain information relative to U.S. citizens who are, or who were, employed by a United Nations organization or other public international organization such as the Organization of American States. OPM records are checked on all persons who are, or who have been, civilian employees of the U.S. Government; or U.S. citizens who are, or who have been, employed by a United Nations organization or other public international organization; and on those who have been granted security clearances by the NRC or DOE.
e. Immigration and Naturalization Service (I&NS). The files of I&NS contain (or show where filed) naturalization certificates, certificates of derivative citizenship, all military certificates of naturalization, repatriation files, petitions for naturalization and declaration of intention, visitors’ visas, and records of aliens (including government officials and representatives of international organizations) admitted temporarily into the U.S. I&NS records are checked when the subject is:
(1) An alien in the U.S., or
(2) A naturalized citizen whose naturalization has not been verified, or
(3) An immigrant alien, or
(4) A U.S. citizen who receives derivative citizenship through the naturalization of one or both parents, provided that such citizenship has not been verified in a prior investigation.
f. State Department. The State Department maintains the following records:
(1) Security Division (S/D) files contain information pertinent to matters of security, violations of security, personnel investigations pertinent to that agency, and correspondence files from 1950 to date. These files are checked on all former State Department employees.
(2) Passport Division (P/D) shall be checked if subject indicates U.S. citizenship due to birth in a foreign country of American parents. This is a check of State Department Embassy files to determine if subject's birth was registered at the U.S. Embassy in the country where he was born. Verification of this registration is verification of citizenship.
g. Central Intelligence Agency (CIA). The files of CIA contain information on present and former employees, including members of the Office of Strategic Services (OSS), applicants for employment, foreign nationals, including immigrant aliens in the U.S., and U.S. citizens traveling outside the U.S. after July 1, 1946. These files shall be checked under the following guidelines.
These files shall also be checked if subject has been an employee of CIA or when other sources indicate that CIA may have pertinent information.
h. Military Personnel Record Center files are maintained by separate departments of the Armed Forces, General Services Administration and the Reserve Records Centers. They consist of the Master Personnel Records of retired, separated, reserve, and active duty members of the Armed Force. These records shall be checked when the requester provides required identifying data indicating service during the last 15 years.
i. Treasury Department. The files of Treasury Department agencies (Secret Service, Internal Revenue Service, and Bureau of Customs) will be checked only when available information indicates that an agency of the Treasury Department may be reasonably expected to have pertinent information.
j. The files of other agencies such as the National Guard Bureau, the Defense Industrial Security Clearance Office (DISCO), etc., will be checked when pertinent to the purpose for which the investigation is being conducted.
2.
a.
b.
(1)
(2)
(b) When information developed reflects unfavorably upon a person's current credit reputation or financial responsibility, the investigation will be expanded as necessary.
(3)
(b)
3.
a.
b.
c.
d.
e.
f.
g.
h.
4.
b.
(1) A DCII, FBI/ID name check only and FBI/HQ check shall be conducted on subject's current spouse or cohabitant. In addition, such other national agency checks as deemed appropriate based on information on the subject's SPH or PSQ shall be conducted.
(2) A check of FBI/HQ files on members of subject's immediate family who are aliens in the U.S. or immigrant aliens who are 18 years of age or older shall be conducted. As used throughout the part, members of subject's immediate family include the following:
(a) Current spouse.
(b) Adult children, 18 years of age or older, by birth, adoption, or marriage.
(c) Natural, adopted, foster, or stepparents.
(d) Guardians.
(e) Brothers and sisters either by birth, adoption, or remarriage of either parent.
(3) The files of CIA shall be reviewed on alien members of subject's immediate family who are 18 years of age or older, regardless of whether or not these persons reside in the U.S.
(4) I&NS files on members of subject's immediate family 18 years of age or older shall be reviewed when they are:
(a) Aliens in the U.S., or
(b) Naturalized U.S. citizens whose naturalization has not been verified in a prior investigation, or
(c) Immigrant aliens, or
(d) U.S. citizens born in a foreign country of American parent(s) or U.S. citizens who received derivative citizenship through the naturalization of one or both parents, provided that such citizenship has not been verified in a prior investigation.
c.
d.
(1) A birth certificate must be presented if the individual was born in the United States. To be acceptable, the certificate must show that the birth record was filed shortly after birth and must be certified with the registrar's signature and the raised, impressed, or multicolored seal of his office except for States or jurisdictions which, as a matter of policy, do not issue certificates with a raised or impressed seal. Uncertified copies of birth certificates are not acceptable.
(a) A delayed birth certificate (a record filed more than one year after the date of birth) is acceptable provided that it shows that the report of birth was supported by acceptable secondary evidence of birth as described in subparagraph (b), below.
(b) If such primary evidence is not obtainable, a notice from the registrar stating that no birth record exists should be submitted. The notice shall be accompanied by the best combination of secondary evidence obtainable. Such evidence may include a baptismal certificate, a certificate of circumcision, a hospital birth record, affidavits of persons having personal knowledge of the facts of the birth, or other documentary evidence such as
(c) All documents submitted as evidence of birth in the United States shall be original or certified documents. Uncertified copies are not acceptable.
(2) A certificate of naturalization shall be submitted if the individual claims citizenship by naturalization.
(3) A certificate of citizenship issued by the I&NS shall be submitted if citizenship was acquired by birth abroad to a U.S. citizen parent or parents.
(4) A Report of Birth Abroad of A Citizen of The United States of America (Form FS-240), a Certification of Birth (Form FS-545 or DS-1350), or a Certificate of Citizenship is acceptable if citizenship was acquired by birth abroad to a U.S. citizen parent or parents.
(5) A passport or one in which the individual was included will be accepted as proof of citizenship.
e.
(2) Attempts will be made to review records at overseas educational institutions when the subject resided overseas in excess of one year.
(3) Verify attendance or graduation at the last secondary school attended within the past 10 years if there was no attendance at an institution of higher learning within the period of investigation.
(4) Verification of attendance at military academies is only required when the subject failed to graduate.
f.
(2)
(3)
(4)
(5) When an individual has resided outside the U.S. continuously for over one year, attempts will be made to confirm overseas employments as well as conduct required interviews of a supervisor and co-worker.
g.
h.
i.
j.
k.
(1) Foreign travel not under the auspices of the U.S. Government. When employment, education, or residence has occurred overseas for more than 90 days during the past 15 years or since age 18, which was not under the auspices of the U.S. Government, a check of records will be made at the Passport Office of the Department of State, the CIA, and other appropriate agencies. Efforts shall be made to develop sources, generally in the U.S., who knew the individual overseas to cover significant employment, education, or residence and to determine whether any lasting foreign contacts or connections were established during this period. If the individual has worked or lived outside of the U.S. continuously for over one year, the investigation will be expanded to cover fully this period through the use of such investigative assets and checks of record sources as may be available to the U.S. Government in the foreign country in which the individual resided.
(2) Foreign travel under the auspices of the U.S. Government. When employment, education, or residence has occurred overseas for a period of more than one year, under the auspices of the U.S. Government, a record check will be made at the Passport Office of the Department of State, the CIA and other appropriate agencies. Efforts shall be made to develop sources (generally in the U.S.) who knew the individual overseas to cover significant employment, education, or residence and to determine whether any lasting foreign contacts or connections were established during this period. Additionally, the investigation will be expanded to cover fully this period through the use of such investigative assets and checks of record sources as may be available to the U.S. Government in the foreign country in which the individual resided.
1.
m.
n.
o.
p.
(1) The requester indicates that subject's medical records were unavailable for review prior to submitting the request for investigation, or
(2) The requester indicates that unfavorable information is contained in subject's medical records, or
(3) The subject lists one or more of the following on the SPH or PSQ:
(a) A history of mental or nervous disorders.
(b) That subject is now or has been addicted to the use of habit-forming drugs such as narcotics or barbiturates or is now or has been a chronic user to excess of alcoholic beverages.
q.
5.
b.
(1)
(2)
(3)
(a) The SUBJECT is aboard a deployed ship or in some remote area that would cause the interview to be excessively delayed.
(b) The SUBJECT is in an overseas location serviced by the State Department or the FBI.
(4)
(5)
(6)
(7)
(8)
(9)
(10)
A.
In this connection, it is particularly important that the provision of Executive Order 12356 requiring strict limitations on the dissemination of official information and material be closely adhered to and that investigations requested for issuing clearances
In view of the foregoing, the following guidelines have been developed to simplify and facilitate the investigative request process:
1. Limit requests for investigation to those that are essential to current operations and clearly authorized by DoD policies and attempt to utilize individuals who, under the provisions of this part, have already met the security standard;
2. Assure that military personnel on whom investigative requests are initiated will have sufficient time remaining in service after completion of the investigation to warrant conducting it;
3. Insure that request forms and prescribed documentation are properly executed in accordance with instructions;
4. Dispatch the request directly to the DIS Personnel Investigations Center;
5. Promptly notify the DIS Personnel Investigations Center if the investigation is no longer needed (notify OPM if a NACI is no longer needed); and
6. Limit access through strict need-to-know, thereby requiring fewer investigations.
In summary, close observance of the above-cited guidelines will allow the DIS to operate more efficiently and permit more effective, timely, and responsive service in accomplishing investigations.
B.
C.
The notation “ALL REFERENCES” shall be stamped immediately above the title at the top of the Standard Form 85.
D.
2. The DD Form 398-2 must be completed to cover the most recent five year period. All information, to include items relative to residences and employment, must be complete and accurate to avoid delays in processing.
E.
2. For the BI and SBI, the DD Form 398 must be completed to cover the most recent five and 15 year period, respectively, or since the 18th birthday, whichever is shorter.
F.
a. For a PR requested in accordance with § 154.19 (a) and (k) and the DD Form 1879 must be accompanied by the following documents:
(1) Original and four copies of DD Form 398.
(2) Two copies of FD-258.
(3) Original copy of DD Form 2221.
b. In processing PRs, previous investigative reports will not be requested by the requesting organization, unless significant derogatory or adverse information, postdating the most recent favorable adjudication, is developed during the course of reviewing other locally available records. In the latter instance, requests for previous investigative reports may only be made if it is determined by the requesting organization that the derogatory information is so significant that a review of previous investigative reports is necessary for current adjudicative determinations.
2. No abbreviated version of DD Form 398 may be submitted in connection with a PR.
3. The PR request shall be sent to the address in paragraph E.1.
G.
Such requests shall set forth the basis for the additional investigation and describe the specific matter to be substantiated or disproved.
2. The request should be accompanied by an original and four copies of the DD Form 398, where appropriate, two copies of FD-258 and an original copy of DD Form 2221, unless such documentation was submitted within the last 12 months to DIS as part of a NAC or other personnel security investigation. If pertinent, the results of a recently completed NAC, NACI, or other related investigative reports available should also accompany the request.
H.
The request will include subject's name, grade, social security number, date and place of birth, and DIS case control number if known.
I.
2. All requests for initial investigations will be submitted to PIC regardless of their urgency. If, however, there is an urgent need for a postadjudication investigation, or the mailing of a request to PIC for initiation of a postadjudication case would prejudice timely pursuit of investigative action, the DD Form 1879 may be directed for initiation, in CONUS, to the nearest DIS Field Office, and in overseas locations, to the military investigative service element supporting the requester (Appendix I). The field element (either DIS or the military investigative agency) will subsequently forward either the DD Form 1879 or completed investigation to PIC.
3. A fully executed DD Form 1879 and appropriate supporting documents may not be immediately available. Further, a case that is based on sensitive security issues may be compromised by a request that the subject submit a DD Form 398. A brief explanation should appear on DD Form 1879s which does not include complete supporting documentation.
J.
K.
Background Investigation (BI) and Special Background Investigation (SBI) shall be considered as devoid of significant adverse information unless they contain information listed below:
1. Incidents, infractions, offenses, charges, citations, arrests, suspicion or allegations of illegal use or abuse of drugs or alcohol, theft or dishonesty, unreliability, irresponsibility, immaturity, instability or recklessness, the use of force, violence or weapons or actions that indicate disregard for the law due to multiplicity of minor infractions.
2. All indications of moral turpitude, heterosexual promiscuity, aberrant, deviant, or bizarre sexual conduct or behavior, transvestitism, transsexualism, indecent exposure, rape, contributing to the delinquency of a minor, child molestation, wife-swapping, window-peeping, and similar situations from whatever source. Unlisted full-time employment or education; full-time education or employment that cannot be verified by any reference or record source or that contains indications of falsified education or employment experience. Records or testimony of employment, education, or military service where the individual was involved in serious offenses or incidents that would reflect adversely on the honesty, reliability, trustworthiness, or stability of the individual.
3. Foreign travel, education, visits, correspondence, relatives, or contact with persons from or living in a foreign country or foreign intelligence service.
4. Mental, nervous, emotional, psychological, psychiatric, or character disorders/behavior or treatment reported or alleged from any source.
5. Excessive indebtedness, bad checks, financial difficulties or irresponsibility, unexplained affluence, bankruptcy, or evidence of living beyond the individual's means.
6. Any other significant information relating to the criteria included in paragraphs (a) through (q) of § 154.7 or Appendix H of this part.
A.
B.
C.
D. Officials authorized to certify personnel under their jurisdiction for access to Restricted Data (to include Critical Nuclear Weapon Design Information): see enclosure to DoD Directive 5210.2.
E. Officials authorized to approve personnel for assignment to Presidential Support activities: The Executive Secretary to the Secretary and Deputy Secretary of Defense or designee.
F.
G.
1. Heads of DoD Components or their designees for critical-sensitive positions.
2. Organizational commanders for noncritical-sensitive positions.
H.
Officials authorized to designate nonappropriated fund positions of trust: Heads of DoD Components and/or their designees.
A.
B.
C.
D.
2. Such procedures shall be structured to insure the interviewee his full rights under the Constitution of the United States, the Privacy Act of 1974 and other applicable statutes and regulations.
E.
F.
2. Criteria guidelines contained in DCID 1/14 upon which the acceptability for nomination determination is to be based shall be provided to commanders of DoD organizations who may nominate individuals for access to SCI and shall be consistent with those established by the Senior Officer of the Intelligence Community of the Component concerned with respect to acceptability for nomination to duties requiring access to SCI.
While reasonable consistency in reaching adjudicative determinations is desirable, the nature and complexities of human behavior preclude the development of a single set of guidelines or policies that is equally applicable in every personnel security case. Accordingly, the following adjudication policy is not intended to be interpreted as inflexible rules of procedure. The following policy requires dependence on the adjudicator's sound judgment, mature thinking, and careful analysis as each case must be weighed on its own merits, taking into consideration all relevant circumstances, and prior experience in similar cases as well as the guidelines contained in the adjudication policy, which have been compiled from common experience in personnel security determinations.
Each adjudication is to be an overall common sense determination based upon consideration and assessment of all available information, both favorable and unfavorable, with particular emphasis being placed on the seriousness, recency, frequency and motivation for the individual's conduct; the extent to which conduct was negligent, willful, voluntary, or undertaken with knowledge of the circumstances or consequences involved; and, to the extent that it can be estimated, the probability that conduct will or will not continue in the future. The listed “Disqualifying Factors” and ”Mitigating Factors” in this set of Adjudication Policies reflect the consideration of those factors of seriousness, recency, frequency, motivation, etc., to common situations and types of behavior encountered in personnel security adjudications, and should be followed whenever an individual case can be measured against this policy guidance. Common sense may occasionally necessitate deviations from this policy guidance, but such deviations should not be frequently made and must be carefully explained and documented.
The “Disqualifying Factors” provided herein establish some of the types of serious conduct under the criteria that can justify a determination to deny or revoke an individual's eligibility for access to classified information, or appointment to, or retention in sensitive duties. The “Mitigating Factors” establish some of the types of circumstances that may mitigate the conduct listed under the “Disqualifying Factors”. Any determination must include a consideration of both the conduct listed under “Disqualifying Factors” and any circumstances listed under the appropriate or corresponding “Mitigating Factors”.
The adjudication policy is subdivided into sections appropriate to each of the criteria provided in § 154.7 of this part, except § 154.7(i) for which conduct under any of the “Disqualifying Factors” of the adjudication policy or any other types of conduct may be appropriately included, if it meets the definition of § 154.7(i).
In all adjudications, the protection of the national security shall be the paramount determinant. In the last analysis, a final decision in each case must be arrived at by applying the standard that the issuance of the clearance or assignment to the sensitive position is “clearly consistent with the interests of national security.”
(See § 154.7 (a) through (d)).
1. Furnishing a representative of a foreign government information or data which could damage the national security of the United States.
2. Membership in an organization that has been characterized by the Department of Justice as one which meets the criteria in the above cited “Basis.”
3. Knowing participation in acts that involve force or violence or threats of force or violence to prevent others from exercising their rights under the Constitution or to overthrow or alter the form of government of the United States or of any State.
4. Monetary contributions, service, or other support of the organization defined in “Basis”, above, with the intent of furthering the unlawful objectives of the organization.
5. Participation, support, aid, comfort or sympathetic association with persons, groups, organizations involved in terrorist activities, threats, or acts.
6. Evidence of continuing sympathy with the unlawful aims and objectives of such an organization, as defined in the “Basis” above.
7. Holding a position of major doctrinal or managerial influence in an organization as defined in the “Basis” above.
1. Lack of knowledge or understanding of the unlawful aims of the organization.
2. Affiliation or activity occurred during adolescent/young adult years (17-25), more than 5 years has passed since affiliation was severed, and affiliation was due to immaturity.
3. Affiliation for less than a year out of curiosity or academic interest.
4. Sympathy or support limited to the lawful objectives of the organization.
(See § 154.7(f)).
1. The active maintenance of dual citizenship, by one or more of the following:
a. Possession of a passport issued by a foreign nation and use of this passport to obtain legal entry into any sovereign state in preference to use of a U.S. passport.
b. Military service in the armed forces of a foreign nation or the willingness to comply with an obligation to so serve, or the willingness to bear arms at any time in the future on behalf of the foreign state.
c. Exercise or acceptance of rights, privileges or benefits offered by the foreign state to its citizens, (e.g., voting in a foreign election; receipt of honors or titles; financial compensation due to employment/retirement, educational or medical or other social welfare benefits), in preference to those of the United States.
d. Travel to or residence in the foreign state for the purpose of fulfilling citizenship requirements or obligations.
e. Maintenance of dual citizenship to protect financial interests, to include property ownership, or employment or inheritance rights in the foreign state.
f. Registration for military service or registration with a foreign office, embassy or consulate to obtain benefits.
2. Employment as an agent or other official representative of a foreign government, or seeking or holding political office in a foreign state.
3. Use of a U.S. Government position of trust or responsibility to influence decisions in order to serve the interests of another government in preference to those of the United States.
1. Claim of dual citizenship is with a foreign country whose interests are not inimical to those of the United States and is based solely on applicant's or applicant's parent(s)’ birth, the applicant has not actively maintained citizenship in the last ten years and indicates he or she will not in the future act so as to pursue this claim.
2. Military service while a U.S. citizen was in the armed forces of a state whose interests are not inimical to those of the United States and such service was officially sanctioned by United States authorities.
3. Employment is as a consultant only and services provided is of the type sanctioned by the United States Government.
(See § 154.7 (g) and (e)).
1. Deliberate or reckless disregard of security regulations, public law, statutes or Executive Orders which could have resulted in the loss or compromise of classified information.
2. Deliberate or reckless violations of security regulations, including, but not limited to, taking classified information home or carrying classified data while in a travel status without proper authorization, intentionally copying classified documents in order to obsure classification markings, disseminating classified information to cleared personnel who have no “need to know”, or disclosing classified information, or other information, disclosure of which is prohibited by Statute, Executive Order or Regulation, to persons who are not cleared or authorized to receive it.
3. Pattern of negligent conduct in handling or storing classified documents.
1. Violation of security procedures was directly caused or significantly contributed to by an improper or inadequate security briefing, provided the individual reasonably relied on such briefing in good faith.
2. Individual is personally responsible for a large volume of classified information and the violation was merely administrative in nature.
3. Security violation was merely an isolated incident not involving deliberate or reckless violation of security policies, practices or procedures.
(See § 154.7(h)).
When it is determined that an applicant for a security clearance, or a person holding a clearance, has engaged in conduct which would constitute a felony under the laws of the United States, the clearance of such person shall be denied or revoked unless it is determined that there are compelling reasons to grant or continue such clearance. Compelling reasons can only be shown by clear and convincing evidence of the following:
(a) The felonious conduct (1) did not involve an exceptionally grave offense; (2) was an isolated episode; and (3) the individual has demonstrated trustworthiness and respect for the law over an extended period since the offense occurred; or
(b) The felonious conduct (1) did not involve an exceptionally grave offense; (2) was an isolated episode; (3) was due to the immaturity of the individual at the time it occurred; and (4) the individual has demonstrated maturity, trustworthiness, and respect for the law since that time; or
(c) In cases where the individual has committed felonious conduct but was not convicted of a felony, there are extenuating circumstances which mitigate the seriousness of the conduct such that it does not reflect a lack of trustworthiness or respect for the law.
The above criteria supersede all criteria previously used to adjudicate criminal conduct involving commission of felonies under the Laws of the United States. Involvement in criminal activities which does not constitute a felony under the laws of the United States shall be evaluated in accordance with the criteria set forth below. (For purposes of this paragraph, the term “felony” means any crime punishable by imprisonment for more than a year. The term “exceptionally grave offense” includes crimes against the Federal Government, its instrumentalities, officers, employees or agents; or involves dishonesty, fraud, bribery or false statement; or involves breach of trust or fiduciary duty; or involves serious threat to life or public safety.)
1. Criminal conduct involving:
a. Commission of a State felony.
b. Force, coercion, or intimidation.
c. Firearms, explosives, or other weapons.
d. Dishonesty or false statements, e.g. fraud, theft, embezzlement, falsification of documents or statements.
e. Obstruction or corruption of government functions.
f. Deprivation of civil rights.
g. Violence against persons.
2. Criminal conduct punishable by confinement for one year or more.
3. An established pattern of criminal conduct, whether the individual was convicted or not.
4. Failure to complete a rehabilitation program resulting from disposition of a criminal proceeding or violation of probation, even if the violation did not result in formal revocation of probation. Rehabilitation should not be considered a success or failure while the individual is still on parole/probation.
5. Criminal conduct that is so recent in time as to preclude a determination that recurrence is unlikely.
6. Close and continuing association with persons known to the individual to be involved in criminal activities.
7. Criminal conduct indicative of a serious mental aberration, lack of remorse, or insufficient probability of rehabilitative success, (e.g., spouse or child abuse).
8. Disposition:
a. Conviction.
b. Disposition on a legal issue not going to the merits of the crime.
c. Arrest or indictment pending trial when there is evidence that the individual engaged in the criminal conduct for which arrested or indicted.
9. Arrest record. In evaluating an arrest record, information that indicates that the individual was acquitted, that the charges were dropped or the subject of a “stet” or “nolle prosequi”, that the record was expunged, or that the cause was dismissed due to error not going to the merits, does not negate the security significance of the underlying conduct. Personnel security determinations are to be made on the basis of all available information concerning a person's conduct and actions rather than the legal outcome of a criminal proceeding.
1. Immaturity attributable to the age of the individual at the time of the offense.
2. Extenuating circumstances surrounding the offense.
3. Circumstances indicating that the actual offense was less serious than the offense charged.
4. Isolated nature of the conduct.
5. Conduct occurring only in the distant past (such as more than 5 years ago) in the absence of subsequent criminal conduct.
6. Transitory conditions directly or significantly contributing to the conduct (such as divorce action, death in family, severe provocation) in the absence of subsequent criminal conduct.
(See § 154.7(j)).
1. Diagnosis by competent medical authority (board certified psychiatrist or clinical psychologist) that the individual has an illness or mental condition which may result in a significant defect in judgment or reliability.
2. Conduct or personality traits that are bizarre or reflect abnormal behavior or instability even though there has been no history of mental illness or treatment, but which nevertheless, in the opinion of competent medical authority, may cause a defect in judgment or reliability.
3. A diagnosis by competent medical authority that the individual suffers from mental or intellectual incompetence or mental retardation to a degree significant enough to establish or suggest that the individual could not recognize, understand or comprehend the necessity of security regulations, or procedures, or that judgment or reliability are significantly impaired, or that the individual could be influenced or swayed to act contrary to the national security.
4. Diagnosis by competent medical authority that an illness or condition that had affected judgment or reliability may recur even though the individual currently manifests no symptoms, or symptoms currently are reduced or in remission.
5. Failure to take prescribed medication or participate in treatment (including follow-up treatment or aftercare), or otherwise failing to follow medical advice relating to treatment of the illness or mental condition.
1. Diagnosis by competent medical authority that an individual's previous mental or emotional illness or condition that did cause significant defect in judgment or reliability is cured and has no probability of recurrence, or such a minimal probability of recurrence as to reasonably estimate there will be none.
2. The contributing factors or circumstances which caused the bizarre conduct or traits, abnormal behavior, or defect in judgment and reliability have been eliminated or rectified, there is a corresponding alleviation of the individual's condition and the contributing factors or circumstances are not expected to recur.
3. Evidence of the individual's continued reliable use of prescribed medication for a period of at least two years, without recurrence and testimony by competent medical authority that continued maintenance of
4. There has been no evidence of a psychotic condition, a serious or disabling neurotic disorder, or a serious character or personality disorder for the past 10 years.
(See paragraph § 154.7(k)).
1. Indications that the individual now is being blackmailed, pressured or coerced by any individual, group, association, organization or government.
2. Indications that a vulnerable individual actually has been targeted and/or approached for possible blackmail, coercion or pressure by any individual, group, association, organization or government.
3. Indications that the individual has acted to increase the vulnerability for future possible blackmail, coercion or pressure by any individual, group, association, organization or governments, especially by foreign intelligence services. Indicators include, but are not limited to the following:
a. Failure to report to security officials any evidence, indication or suspicion that mail to relatives has been opened, unusually delayed or tampered with in any way, or that telephone calls have been monitored.
b. An increase in curiosity or official or quasi-official inquiries about the individual to relatives in the country where they reside occasioned by the receipt of mail, packages, telephone calls or visits from the individual.
c. Contact with, or visits by officials to the individual while visiting relatives in another country, to learn more about the individual, or the individual's employment or residence, etc.
d. Unreported attempts to obtain classified or other sensitive information or data by representatives of a foreign country.
4. Conduct or actions by the individual while visiting in a country hostile to the United States that increase the individual's vulnerability to be targeted for possible blackmail, coercion or pressure. These include, but are not limited to the following:
a. Violation of any laws of the foreign country where relatives reside during visits or through mailing letters or packages, (e.g., smuggling, currency exchange violations, unauthorized mailings, violations of postal regulations of the country, or any criminal conduct, including traffic violations) which may call the attention of officials to the individual.
b. Frequent and regular visits, correspondence, or telephone contact with relatives in the country where they reside, increasing the likelihood of official notice.
c. Failure to report to security officials those inquiries by friends or relatives for more than a normal level of curiosity concerning the individual's employment, sensitive duties, military service or access to classified information.
d. Repeated telephone or written requests to the foreign government officials for official favors, permits, visas, travel permission, or similar requests which increase the likelihood of official notice.
e. Reckless conduct, open or public misbehavior or commission of acts contrary to local customs or laws, or which violate the mores of the foreign country and increase the likelihood of official notice.
f. Falsification of documents, lying to officials, harassing or taunting officials or otherwise acting to cause an increase in the likelihood of official notice or to increase the individual's vulnerability because personal freedom could be jeopardized.
g. Commission of any illicit sexual act, drug purchase or use, drunkenness or similar conduct which increases the likelihood of official notice, or which increases the individual's vulnerability because personal freedom could be jeopardized.
5. Conduct or actions by the individual that increase the individual's vulnerability to possible coercion, blackmail or pressure, regardless of the country in which it occurred, including, but not limited to the following:
a. Concealment or attempts to conceal from an employer prior unfavorable employment history, criminal conduct, mental or emotional disorders or treatment, drug or alcohol use, sexual preference, or sexual misconduct described under that section below, or fraudulent credentials or qualifications for employment.
b. Concealment or attempts to conceal from immediate family members, or close associates, supervisors or coworkers, criminal conduct, mental or emotional disorders or treatment, drug or alcohol abuse, sexual preference, or sexual misconduct described under that section below.
1. The individual:
a. Receives no financial assistance from and provides no financial assistance to persons or organizations in the designated country.
b. Has been in the United States for at least 5 years since becoming a U.S. citizen without significant contact with persons or organizations from the designated country (each year of active service in the United States military may be counted).
c. Has close ties of affection to immediate family members in the United States.
d. Has adapted to the life-style in the United States, established substantive financial or other associations with U.S. enterprises or community activities.
e. Prefers the way of life and form of government in the U.S. over the other country.
f. Is willing to defend the U.S. against all threats including the designated country in question.
g. Has not divulged the degree of association with the U.S. government or access to classified information to individuals in the designated country in question.
h. Has not been contacted or approached by anyone or any organization from a designated country to provide information or favors, or to otherwise act for a person or organization in the designated country in question.
i. Has promptly reported to proper authorities all attempted contacts, requests or threats from persons or organizations from the designated country.
j. The individual is aware of the possible vulnerability to attempts of blackmail or coercion and has taken positive steps to reduce or eliminate such vulnerability.
(See § 154.7(1)).
1. History of bad debts, garnishments, liens, repossessions, unfavorable judgments, delinquent or uncollectable accounts or debts written off by creditors as uncollectable losses with little or no apparent or voluntary effort by the individual to pay amounts owed.
2. Bankruptcy:
a. Due to financial irresponsibility, or
b. With continuing financial irresponsibility thereafter.
3. Indebtedness aggravated or caused by gambling, alcohol, drug abuse, or other factors indicating poor judgement or financial irresponsibility.
4. A history or pattern of living beyond the person's financial means or ability to pay, a lifestyle reflecting irresponsible expenditures that exceed income or assets, or a history or pattern of writing checks not covered by sufficient funds or on closed accounts.
5. Indication of deceit or deception in obtaining credit or bank accounts, misappropriation of funds, income tax evasion, embezzlement, fraud, or attempts to evade lawful creditors.
6. lndifference to or disregard of financial obligations or indebtedness or intention not to meet or satisfy lawful financial obligations or when present expenses exceed net income.
7. Unexplained affluence or income derived from illegal gambling, drug trafficking or other criminal or nefarious means.
8. Significant unexplained increase in an individual's net worth.
1. Scheduled program or systematic efforts demonstrated over a period of time (generally one year) to satisfy creditors, to acknowledge debts and arrange for reduced payments, entry into debt-consolidation program or seeking the advice and assistance of financial counselors or court supervised payment program.
2. Change to a more responsible lifestyle, reduction of credit card accounts, and favorable change in financial habits over a period of time (generally one year).
3. Stable employment record and favorable financial references.
4. Unforeseen circumstances beyond the individual's control (e.g. a major or catastrophic illness or surgery, accidental loss of property or assets not covered by insurance, decrease or cutoff of income, indebtedness resulting from court judgments not due to the individual's financial mismanagement), provided the individual demonstrates efforts to respond to the indebtedness in a reasonable and responsible fashion.
5. Indebtedness due to failure of legitimate business efforts or business-related bankruptcy without evidence of fault or financial irresponsibility on the part of the individual, irresponsible mismanagement of an individual's funds by another who had fiduciary control or access to them without the individual's knowledge, or loss of assets as a victim of fraud or deceit, provided the individual demonstrates efforts to respond to the indebtedness in a reasonable and responsible fashion.
6. Any significant increase in net worth was due to legitimate business interests, inheritance or similar legal explanation.
(See paragraph § 154.7(m)).
1. Habitual or episodic consumption of alcohol to the point of impairment or intoxication.
2. Alcohol-related incidents such as traffic violations, fighting, child or spouse abuse, non-traffic violation or other criminal incidents related to alcohol use.
3. Deterioration of the individual's health or physical or mental condition due to alcohol use or abuse.
4. Drinking on the job, reporting for work in an intoxicated or “hungover” condition, tardiness or absences caused by or related to alcohol abuse, and impairment or intoxication occurring during, and immediately following, luncheon breaks.
5. Refusal or failure to accept counseling or professional help for alcohol abuse or alcoholism.
6. Refusal or failure to follow medical advice relating to alcohol abuse treatment or to abstain from alcohol use despite medical or professional advice.
7. Refusal or failure to significantly decrease consumption of alcohol or to change life-style and habits which contributed to past alcohol related difficulties.
8. Indications of financial or other irresponsibility or unreliability caused by alcohol abuse, or discussing sensitive or classified information while drinking.
9. Failure to cooperate in or successfully complete a prescribed regimen of an alcohol abuse rehabilitation program.
1. Successfully completed an alcohol awareness program following two or less alcohol-related incidents and has significantly reduced alcohol consumption, and made positive changes in life-style and improvement in job reliability.
2. Successfully completed an alcohol rehabilitation program after three or more alcohol-related incidents, has significantly reduced or eliminated alcohol consumption in accordance with medical or professional advice, regularly attended Alcoholics Anonymous or similar support organization for approximately one year after rehabilitation, and abstained from the use of alcohol for that period of time.
3. Whenever one of the situations listed below occurs, the individual must have successfully completed an alcohol rehabilitation or detoxification program and totally abstained from alcohol for a period of approximately two years:
a. The individual has had one previously failed rehabilitation program and subsequent alcohol abuse or alcohol related incidents.
b. The individual has been diagnosed by competent medical or health authority as an alcoholic, alcoholic dependent or chronic abuser of alcohol.
4. Whenever the individual has had repeated unsuccessful rehabilitation efforts and has continued drinking or has been involved in additional alcohol related incidents then the individual must have successfully completed an alcohol rehabilitation or detoxification program, totally abstained from alcohol for a period of at least three years and maintained regular and frequent participation in meetings of Alcoholics Anonymous or similar organizations.
5. If an individual's alcohol abuse was surfaced solely as a result of self referral to an alcohol abuse program and there have been no precipitating factors such as alcohol related arrests or incidents action will not normally be taken to suspend or revoke security clearance solely on the self referral for treatment.
(See § 154.7(n)).
1. Abuse of cannabis only, not in combination with any other substance.
a. Experimental abuse, defined as an average of once every two months or less, but no more than six times.
b. Occasional abuse, defined as an average of not more than once a month.
c. Frequent abuse, defined as an average of not more than once a week.
d. Regular abuse, defined as an average of more than once a week.
e. Compulsive use, habitual use, physical or psychological dependency, or use once a day or more on the average.
2. Abuse of any narcotic, psychoactive substance or dangerous drug (to include prescription drugs), either alone, or in combination with another or cannabis, as follows:
a. Experimental abuse, defined as an average of once every two months or less, but no more than six times.
b. Occasional abuse, defined as an average of not more than once a month.
c. Frequent abuse, defined as an average of not more than once a week.
d. Regular abuse, defined as an average of more than once a week.
e. Compulsive use, habitual use, physical or psychological dependency, or use on an average of once a day or more on the average.
3. Involvement to any degree in the unauthorized trafficking, cultivation, processing, manufacture, sale, or distribution of any narcotic, dangerous drug, or cannabis or assistance to those involved in such acts whether or not the individual was arrested for such activity.
4. Involvement with narcotics, dangerous drugs or cannabis under the following conditions whether or not the individual engages in personal use:
a. Possession.
b. Possession of a substantial amount, more than could reasonably be expected for personal use.
c. Possession of drug paraphernalia for cultivating, manufacturing or distributing (e.g.,
d. Possession of personal drug paraphernalia such as needles for injecting, smoking devices and equipment, etc.
5. Information that the individual intends to continue to use (regardless of frequency) any narcotic, dangerous drug or cannabis.
1. Abuse of cannabis only, as follows: (Use this to assess Disqualifying Factor 1)
a. Experimental abuse, which occurred more than six months ago and the individual has demonstrated an intent not to use cannabis or any other narcotic, psychoactive substance or dangerous drug in the future.
b. Occasional abuse of cannabis, which occurred more than 12 months ago, and the individual has demonstrated an intent not to use cannabis or any other narcotic, dangerous drug or psychoactive substance in the future.
c. Frequent abuse of cannabis occurred more than 18 months ago, and the individual has demonstrated an intent not to use cannabis or any other narcotic, dangerous drug or psychoactive substance in the future.
d. Regular abuse of cannabis occurred more than two years ago, and the individual has demonstrated an intent not to use cannabis or any other narcotic, dangerous drug or psychoactive substance in the future.
e. Compulsive, habitual use or physical or psychological dependency on cannabis occurred more than three years ago, the individual has demonstrated an intent not to use cannabis or any other narcotic, dangerous drug or psychoactive substance in the future and has demonstrated a stable life-style, with no indication of physical or psychological dependence.
2. For abuse
a. Experimental abuse occurred more than 12 months ago, the individual has demonstrated an intent not to use any drugs or cannabis in the future and has successfully completed a drug rehabilitation program.
b. Occasional abuse occurred more than two years ago, the individual has demonstrated an intent not to use any drugs or cannabis in the future, has a stable lifestyle and satisfactory employment record and has successfully completed a drug rehabilitation program.
c. Frequent abuse occurred more than three years ago, the individual has demonstrated an intent not to use any drugs or cannabis in the future, has a stable lifestyle, including satisfactory employment record with no further indication of drug abuse, and has successfully completed a drug rehabilitation program.
d. Regular abuse occurred more than four years ago, the individual has demonstrated an intent not to use any drugs or cannabis in the future, has a stable lifestyle, including satisfactory employment record with no further indication of drug abuse, and has successfully completed a drug rehabilitation program.
e. Compulsive abuse occurred more than five years ago, the individual has demonstrated an intent not to use any drugs or cannabis in the future, has a stable lifestyle, including satisfactory employment record with no further indication of drug abuse, and has successfully completed a drug rehabilitation program.
3. Use this only to assess conduct under Disqualifying Factor 3.
a. Involvement in trafficking, cultivation, processing, manufacture, sale or distribution occurred more than five years ago, the individual has demonstrated an intent not to do so in the future, and has a stable lifestyle and satisfactory employment record and has not been involved in any other criminal activity.
b. Cultivation was for personnel use only, in a limited amount for a limited period and the individual has not been involved in similar activity or other criminal activity for more than three years and has demonstrated intent not to do so again in the future.
c. Illegal sale or distribution involved only the casual supply to friends of small amounts (not for profit or to finance a personal supply) and occurred on only a few occasions more than two years ago, and the individual has demonstrated an intent not to do so again in the future.
4. Use this only to assess conduct under Disqualifying Factor 4 in the corresponding subparagraphs.
a. No possession of drugs or other criminal activity in the last two years.
b. The individual has not possessed drugs in the last three years, has had no other criminal activity in the last three years and has demonstrated an intent not to be involved in such activity in the future.
c. The individual has not possessed drug paraphernalia used in processing, manufacture or distribution for the last five years,
d. The individual has not possessed drug paraphernalia for personal use in the last year, has had no other criminal activity in the last two years and has demonstrated an intent not to be involved in such activity in the future.
1.
2.
3.
(See § 154.7(o)).
1. Deliberate omission, concealment, falsification or misrepresentation of relevant and material facts including, but not limited to information concerning arrests, drug abuse or treatment, alcohol abuse or treatment, treatment for mental or emotional disorders, bankruptcy, military service information, organizational affiliations, financial problems, employment, foreign travel, or foreign connections from any Personnel Security Questionnaire, Personal History Statement or similar form used by any Federal agency to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance or access eligibility, or award fiduciary responsibilities.
2. Deliberately providing false or misleading information concerning any of the relevant and material matters listed above to an investigator, employer, supervisor, security official or other official representative in connection with application for security clearance or access to classified information or assignment to sensitive duties.
1. The information was not relevant or material to reaching a security clearance or access determination.
2. The falsification was an isolated incident in the distant past (more than 5 years) and the individual subsequently had accurately provided correct information voluntarily during reapplication for clearance or access and there is no evidence of any other falsification misrepresentation or dishonest conduct by the individual.
3. The behavior was not willful.
4. The falsification was done unknowingly or without the individual's knowledge.
5. The individual made prompt, good faith efforts to correct the falsification before being confronted with the facts of falsification.
6. Omission of material fact was caused by or significantly contributed to by improper or inadequate advice of authorized personnel, provided the individual reasonably relied on such improper or inadequate advice in good faith, and when the requirement subsequently was made known to the individual, the previously omitted information was promptly and fully provided.
(See § 154.7(p)).
1. Failure or refusal to provide full, frank and truthful answers or to authorize others to do so, in connection with any application for security clearance or access, to include required non-disclosure and security termination agreements.
2. Failure or refusal to provide appropriate investigative forms, including release forms, for use by investigators in obtaining information from medical institutions, agencies or personal physicians, therapists, psychologists, psychiatrists, counselors, rehabilitation treatment, agencies or personnel; from police or criminal agencies, probation agencies or officers, financial institutions, employers, Federal or State agencies, professional associations or any other organizations as required as part of an investigation for security clearance, access, appointment or assignment to sensitive duties.
3. Failure or refusal to authorize others to provide relevant and material information necessary to reach a security clearance determination.
4. Failure or refusal to answer questions or provide information required by a Congressional committee, court or agency when such answers or information concern relevant and material matters pertinent to evaluating the individual's trustworthiness, reliability and judgment.
1. The individual was unable to provide the information despite good faith and reasonable efforts to do so.
2. The individual was unaware of the necessity to provide the information requested or of the possible consequences of such refusal or failure to provide the information, and, upon being made aware of this requirement, fully frankly and truthfully provided the requested information.
3. The individual sought and relied in good faith on information and advice from legal counsel or other officials that the individual was not required to provide the information requested, and, upon being made aware of the requirement, fully, frankly and truthfully provided the requested information.
(See § 154.7(q)).
Disqualifying Factors (behavior falls within one or more of the following categories):
1. The conduct involves:
a. Acts performed or committed in open or public places.
b. Acts performed with a minor, or with animals.
c. Acts involving inducement, coercion, force, violence or intimidation of another person.
d. Prostitution, pandering or the commission of sexual acts for money or other remuneration or reward.
e. Sexual harassment.
f. Self mutilation, self punishment or degradation.
g. Conduct that involves spouse swapping, or group sex orgies.
h. Adultery that is recent, frequent and likely to continue and has an adverse effect on good order or discipline within the workplace (e.g., officer/enlisted, supervisor/subordinate, instructor/student).
i. Conduct determined to be criminal in the locale in which it occurred.
j. Deviant or perverted sexual behavior which may indicate a mental or personality disorder (e.g., transexualism, transvestism, exhibitionism, incest, child molestation, voyeurism, bestiality, or sodomy.)
2. The conduct has been recent.
3. The conduct increases the individual's vulnerability to blackmail, coercion or pressure.
4. Evidence that the applicant has intention or is likely to repeat the conduct in question.
1. Sexual misconduct occurred on an isolated basis during or preceding adolescence with no evidence of subsequent conduct of a similar nature, and clear indication that the individual has no intention of participating in such conduct in the future.
2. Sexual misconduct was isolated, occurred more than 3 years ago, and there is clear indication that the individual has no intention of participating in such conduct in the future.
3. The individual was a minor or was the victim of force, or violence by another.
4. The individual has successfully completed professional therapy, has been rehabilitated and diagnosed by competent medical authority that misconduct is not likely to recur.
5. Demonstration that the individual's sexual misconduct can no longer form the basis for vulnerability to blackmail, coercion or pressure.
The purpose of this appendix is to establish, within the framework of this part, 32 CFR part 361 and Defense Investigative Service Manual 20-1, standardized procedures for the military investigative agencies to follow when they perform administrative and investigative functions on behalf of DIS at overseas locations.
This part describes in detail Background Investigations (BI) which are conducted for Limited Access Authorizations and those Special Investigative Inquiries conducted for post-adjudicative purposes. Hereafter they are referred to as LAA and Post-adjudicative cases and are briefly described in paragraphs a and b below:
a.
b.
a. As a rule, investigative activity in most PSIs occurs in the U.S. even when the Subject is at an overseas location. Therefore, the submission of requests for investigation to the Personnel Investigation Center (PIC) at Baltimore is a required procedure as it ensures uniform application of DoD PSI policy and the efficient dispatch and coordination of leads.
b. When the purpose of the investigation is for an LAA or post-adjudication on a Subject overseas, much, if not all of the leads are at an overseas location. While these cases also may be submitted directly to PIC for action, there is an inherent delay in the mailing of the request, the exchange of leads and reports with PIC, and transmittal of the reports back to the requester. To avoid this delay, the military investigative agencies, when acting for DIS overseas in accordance with 32 CFR part 361 may, with their Headquarters approval, accept these requests for investigations, initiate them and disseminate the results from the same level as they open, close, and disseminate their own cases. Usually this will greatly improve response time to the requester.
c. Under the procedures in paragraph b., above, DIS will not often be in a position to directly exercise its responsibility for control and direction until the case or lead is in progress or even completed; therefore, adherence to the policy stated in referenced documents, and as modified herein, is mandatory. When the policy of the military investigative agency is at variance with the above, the matter will be referred to the respective headquarters for resolution.
d. Since DIS is ultimately responsible for the personnel security product, it must be kept informed of all such matters referred to in this appendix. For instance, when the investigative agency overseas receives a DD Form 1879, Request for Personnel Security Investigation, which sets forth an issue outside DIS jurisdiction, it will reject the request, inform the requester of the reason and furnish an information copy of the DD Form 1879 and rejection letter to PIC. When the issue/jurisdiction is unclear to the investigative agency, the DD Form 1879 and the perceived jurisdictional question should be promptly forwarded to DIS for action and, if appropriate, to the component's headquarters for information. Questions on the interpretation of DIS or DoD policy and Directives pertaining to individual PSI cases can usually be resolved through direct communications with PIC.
e. 32 CFR part 361 establishes the supporting relationship of the military investigative agencies to DIS in overseas areas, and DIS provides these agencies with copies of relevant policy and interpretive guidance. For these reasons, the investigative agency vice the requester, is responsible for evaluating the request, processing it, collecting and evaluating the results within their jurisdiction for sufficiency, and forwarding the completed product to the appropriate activity.
f. The magnitude of operations at PIC requires that methods of handling LAA and post-adjudicative cases be consistent to the maximum extent possible. For this reason, the procedures for LAA cases are nearly identical to those for post-adjudicative cases. Briefly, the main exceptions are:
(1) The notification to PIC that a post-adjudication case has been opened will be by message, since an issue is present at the outset, whereas notification of an LAA case should normally be by mail.
(2) The scope of the LAA investigation is 10 years or since the person's 18th birthday, whichever is shortest, whereas the leads in a post-djudication case are limited to resolving the issue.
a. As set-forth in 32 CFR part 361 DIS is responsible for conducting all DoD PSIs in the 50 States, District of Columbia, and Puerto Rico, and will request the military departments to accomplish investigative requirements elsewhere. The military investigative agencies in overseas locations routinely respond to personnel security investigative leads for DIS.
b. DIS jurisdiction also includes investigation of subversive affiliations, suitability information, and hostage situations when such inquiries are required for personnel security purposes; however, jurisdiction will rest with the military investigative agencies, FBI and/or civil authorities as appropriate when the alleged subversion or suitability issue represents a violation of law or, in the case of a hostage situation, there is an indication that the person concerned is actually being pressured, coerced, or influenced by interests inimical to the United States, or that hostile intelligence is taking action specifically directed against that person. Specific policy guidance on the applicability of these procedures and the jurisdictional considerations are stated in § 154.9.
a. A request for investigation must be submitted by using DD Form 1879 and accompanied by supporting documentation unless such documentation is not immediately available, or the obtaining of documentation would compromise a sensitive investigation. Upon receipt of the request, the military investigative component will identify the issue(s), scope the leads, and ensure that the proposed action is that which is authorized
b. Upon such determination, the Component will prepare an Action Lead Sheet (ALS) which fully identifies the Subject and the scope of the case, and specifies precisely the leads which each investigative component (including DIS/PIC when appropriate) is to conduct.
c. Case opening procedures described above are identical for LAA and post-adjudication cases except with respect to notification of case opening to PIC:
(1) Post-adjudication Cases. These cases, because they involve an issue, are potentially sensitive and must be examined as early as possible by PIC for conformity to the latest DoD policy. Accordingly, the initial notification to PIC of case openings will always be by message. The message will contain at a minimum:
(a) Full identification of the subject;
(b) A narrative describing the allegation/facts in sufficient detail to support opening of the case; and
(c) A brief listing of the leads that are planned.
The DD Form 1879 and supporting documents, along with the agency's ALS, should be subsequently mailed to PIC.
(2) LAA Cases. The notification to PIC of case opening will normally be accomplished by mailing the DD Form 1879, DD Form 398 (Personal History Statement), a copy of the ALS, and any other supporting documents to PIC. Message notification to PIC in LAA cases will only be required if there is a security or suitability issue apparent in the DD Form 1879 or supporting documents.
(d) Beyond initial actions necessary to test allegation for investigative merit and jurisdiction, no further investigative action should commence until the notification of case opening to PIC has been dispatched.
(e) PIC will promptly respond to the notification of case opening by mail or message specifying any qualifying remarks along with a summary of previously existing data. PIC will also provide a DIS case control number (CCN). This number must be used by all components on all case related paperwork/reports.
(The investigating agency may assign its unique service CCN for interim internal control; however, the case will be processed, referenced, and entered into the DCII by the DIS case control number.) The first five digits of the DIS CCN will be the Julian date of the case opening when received at DIS.
a. The expected completion time for leads in LAA cases is 50 calendar days and for post-adjudication cases, 30 days, as computed from the date of receipt of the request. If conditions preclude completion in this time period, a pending report of the results to date, along with an estimated date of completion will be submitted to PIC.
b. Copies of all ALSs will be furnished to PIC. In addition, PIC will be promptly notified of any significant change in the scope of the case, or the development of an investigative issue.
c. The procedures for implementing the Privacy Act in PSI cases are set in DIS Manual 20-1-M 1. Any other restrictions on the release of information imposed by an overseas source or by regulations of the country where the inquiry takes place will be clearly stated in the report.
d. The report format for these cases will be that used by the military investigative agency.
e. Investigative action outside the jurisdictional area of an investigative component office may be directed elsewhere by ALS as needed in accordance with that agency's procedures and within the following geographical considerations:
(1) Leads will be sent to PIC if the investigative action is in the United States, District of Columbia, Puerto Rico, American Samoa, Bahama Islands, the U.S. Virgin Islands, and the following islands in the Pacific: Wake, Midway, Kwajalin, Johnston, Carolines, Marshalls, and Eniwetok.
(2) Leads to areas not listed above may be dispatched to other units of the investigative agency or even to another military agency's field units if there is an agreement or memorandum of understanding that provides for such action. For case accountability purposes, copies of such “lateral” leads must be sent to the PIC.
(3) Leads that cannot be dispatched as described in paragraph (2) above, and those that must be sent to a non-DoD investigative agency should be sent to PIC for disposition.
f. The Defense Investigative Manual calls for obtaining PIC approval before conducting a Subject interview on a post-adjudicative investigation. To avoid the delay that compliance with this procedure would create, a military investigative component may conduct the interview provided:
(1) All other investigative leads have been completed and reviewed.
(2) The CCN has been received, signifying DIS concurrence with the appropriateness of the investigation.
(3) Contrary instructions have not been received from the PIC.
(4) The interview is limited to the resolution of the relevant issues disclosed by the investigation.
g. Notwithstanding the provisions of paragraphs f.(1) through (4) of this Appendix, if time is of the essence due to imminent transfer of the subject, a subject interview may be conducted at the discretion of the investigative agency.
Paragraph 3, above, describes the advantages of timely handling which accrue when the military investigative components act for DIS overseas. These actions for DIS may, however, be limited by the component's staffing and resource limitations, especially since some cases require more administration and management than others. Post-adjudication case leads, for instance, will normally be within the geographical jurisdiction of the component that accepted the request for investigation; therefore, relatively little case management is required. In contrast, LAA cases may require leads world-wide, and, therefore, create more complex case management and administration, especially in the tracking, monitoring and reviewing of leads outside the component's geographical area. Accordingly, an investigative component will accept the case from the requester, but only assign itself the appropriate leads within its own geographical jurisdiction and send the balance to PIC for appropriate disposition in accordance with the following:
a. The investigative agency will accept the request for investigation (thereby saving time otherwise lost in mailing to PIC) but limit its involvement in case management by extracting only those leads it will conduct or manage locally.
b. The agency should then prepare an ALS that shows clearly what leads it will cover and send PIC a copy of this ALS, along with the request for investigation and any other appropriate documentation. It must be clear in the ALS that PIC is to act on all those leads that the unit has not assigned to itself.
c. PIC, as case manager, will assume responsibility for the complete investigative package and, upon receipt of the last lead, will send the results to the appropriate activity.
d. The agency that accepted the case and assigned itself leads may send a copy of its report to the activity in the “Results to” block at the same time it sends the originals to PIC. If so, the letter of transmittal must inform the recipient that these reports are only a portion of the investigation, and that the balance will be forthcoming from PIC. Similarly, PIC must be informed of which investigative reports were disseminated. (This is normally done by sending PIC a copy of the letter of transmittal.)
a.
b. Post-Adjudication Cases. There is no standard scope. The inquiries conducted will be limited to those necessary to resolve the issue(s).
a. Whether the investigative component or PIC closes out an investigation, there are three key elements to consider:
(1) The investigative results must be reviewed for quality and conformance to policy.
(2) The results must be sent to the activity listed in the “Results to” block of the DD Form 1879.
(3) PIC must be informed whether or not any dissemination was made by the investigative agency and, if so, what reports were furnished.
b. Investigative results may also be sent to a requester or higher level activity that makes a statement of need for the results. In such instances, a copy of the letter requesting the results and the corresponding letter of transmittal must be sent to PIC for retention.
c. When an investigative agency disseminates reports for PIC, it may use the transmittal documents, letters, or cover sheets it customarily uses for its own cases.
d. The material that is to be provided to PIC will consist of: The originals of all reports, and all other case documentation such as original statements, confidential source sheets, interview logs, requests for investigation, letters of transmittal to adjudicaters/requesters, or communications with the requester, such as those that modify the scope of the investigation.
e. For DIS to fulfill its responsibilities under DoD 5220.22-R and the Privacy Act of 1974 all inquiries conducted in its behalf must be set forth in an ROI for the permanent file, whether the case is completed, terminated early, or referred to another agency.
A case may require premature closing at any time after receipt of the DD Form 1879 by the investigative component if the information accompanying the request, or that which is later developed, is outside DIS jurisdiction. For example, alleged violations of law, a counterintelligence matter, or actual coercion/influence in a hostage situation (see paragraph 4.b. of this Appendix ) must be referred to the appropriate agency, and DIS involvement terminated. The requester will be informed by letter or indorsement to the DD Form 1879 of the information developed that, due to jurisdictional consideration, the case was referred to (fill in appropriate address) and that the DIS case is closed. The agency to which referral was made and PIC will be furnished with the results of all investigations conducted under DIS auspices. DIS, however, has an interest in the referral agency's actions and no information should be solicited from that agency.
OMB Circular A-71 (and Transmittal Memo #B1), July 1978 OMB Circular A-130, December 12, 1985, and FPM Letter 732, November 14, 1978 contain the criteria for designating positions under the existing categories used in the personnel security program for Federal civilian employees as well as the criteria for designating ADP and ADP related positions. This policy is outlined below:
ADP-I positions. Those positions in which the incumbent is responsible for the planning, direction, and implementation of a computer security program; major responsibility for the direction, planning and design of a computer system, including the hardware and software; or, can access a system during the operation or maintenance in such a way, and with a relatively high risk for causing grave damage, or realize a significant personal gain.
ADP-II positions. Those positions in which the incumbent is responsible for the direction, planning, design, operation, or maintenance of a computer system, and whose work is technically reviewed by a higher authority of the ADP-I category to insure the integrity of the system.
ADP-III positions. All other positions involved in computer activities.
In establishing the categories of positions, other factors may enter into the determination, permitting placement in higher or lower categories based on the agency's judgement as to the unique characteristics of the system or the safeguards protecting the system.
Three categories have been established for designating computer and computer-related positions—ADP-I, ADP-II, and ADP-III. Specific criteria for assigning positions to one of these categories is as follows:
E.O. 10865, 3 CFR 1959-1963 Comp., p. 398, as amended by E.O. 10909, 3 CFR 1959-1963 Comp., p. 437; E.O. 11382, 3 CFR 1966-1970 Comp., p. 690; and E.O. 12829, 3 CFR 1993 Comp., p. 570.
This part updates policy, responsibilities, and procedures of the Defense Industrial Personnel Security Clearance Review Program implementing E.O. 10865, as amended.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Inspector General of the Department of Defense (IG, DoD), and the Defense Agencies (hereafter referred to collectively as “the DoD Components”).
(b) By mutual agreement, also extends to other Federal Agencies that include:
(c) Applies to cases that the Defense Industrial Security Clearance Office (DISCO) forwards to the “Defense Office of Hearings and Appeals (DOHA)” for action under this part to determine whether it is clearly consistent with the national interest to grant or continue a security clearance for the applicant.
(d) Provides a program that may be extended to other security cases at the direction of the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASD(C
(e) Does not apply to cases in which:
(1) A security clearance is withdrawn because the applicant no longer has a need for access to classified information;
(2) An interim security clearance is withdrawn by the DISCO during an investigation; or
(3) A security clearance is withdrawn for administrative reasons that are without prejudice as to a later determination of whether the grant or continuance of the applicant's security clearance would be clearly consistent with the national interest.
(f) Does not apply to cases for access to sensitive compartmented information or a special access program.
(a)
(b)
It is DoD policy that:
(a) All proceedings provided for by this part shall be conducted in a fair and impartial manner.
(b) A clearance decision reflects the basis for an ultimate finding as to whether it is clearly consistent with the national interest to grant or continue a security clearance for the applicant.
(c) Except as otherwise provided for by E.O. 10865, as amended, or this part, a final unfavorable clearance decision shall not be made without first providing the applicant with:
(1) Notice of specific reasons for the proposed action.
(2) An opportunity to respond to the reasons.
(3) Notice of the right to a hearing and the opportunity to cross-examine persons providing information adverse to the applicant.
(4) Opportunity to present evidence on his or her own behalf, or to be represented by counsel or personal representative.
(5) Written notice of final clearance decisions.
(6) Notice of appeal procedures.
(d) Actions pursuant to this part shall cease upon termination of the applicant's need for access to classified information except in those cases in which:
(1) A hearing has commenced;
(2) A clearance decision has been issued; or
(3) The applicant's security clearance was suspended and the applicant provided a written request that the case continue.
(a) The Assistant Secretary of Defense of Command, Control, Communications and Intelligence shall:
(1) Establish investigative policy and adjudicative standards and oversee their application.
(2) Coordinate with the General Counsel of the Department of Defense (GC, DoD) on policy affecting clearance decisions.
(3) Issue clarifying guidance and instructions as needed.
(b) The General Counsel of the Department of Defense shall:
(1) Establish guidance and provide oversight as to legal sufficiency of procedures and standards established by this part.
(2) Establish the organization and composition of the DOHA.
(3) Designate a civilian attorney to be the Director, DOHA.
(4) Issue clarifying guidance and instructions as needed.
(5) Administer the program established by this part.
(6) Issue invitational travel orders in appropriate cases to persons to appear and testify who have provided oral or written statements adverse to the applicant relating to a controverted issue.
(7) Designate attorneys to be Department Counsels assigned to the DOHA to represent the Government's interest in cases and related matters within the applicability and scope of this part.
(8) Designate attorneys to be Administrative Judges assigned to the DOHA.
(9) Designate attorneys to be Administrative Judge members of the DOHA Appeal Board.
(10) Provide for supervision of attorneys and other personnel assigned or attached to the DOHA.
(11) Develop and implement policy established or coordinated with the GC, DoD, in accordance with this part.
(12) Establish and maintain qualitative and quantitative standards for all work by DOHA employees arising within the applicability and scope of this part.
(13) Ensure that the Administrative Judges and Appeal Board members have the requisite independence to render fair and impartial decisions consistent with DoD policy.
(14) Provide training, clarify policy, or initiate personnel actions, as appropriate, to ensure that all DOHA decisions are made in accordance with policy, procedures, and standards established by this part.
(15) Provide for maintenance and control of all DOHA records.
(16) Take actions as provided for in § 155.6(b), and the additional procedural guidance in appendix A to this part.
(17) Establish and maintain procedures for timely assignment and completion of cases.
(18) Issue guidance and instructions, as needed, to fulfill the foregoing responsibilities.
(19) Designate the Director, DOHA, to implement paragraphs (b)(5) through (b)(18) of this section, under general guidance of the GC, DoD.
(c) The Heads of the DoD Components shall provide (from resources available to the designated DoD Component) financing, personnel, personnel spaces, office facilities, and related administrative support required by the DOHA.
(d) The ASD(C
(a) Applicants shall be investigated in accordance with the standards in 32 CFR part 154.
(b) An applicant is required to give, and to authorize others to give, full, frank, and truthful answers to relevant and material questions needed by the DOHA to reach a clearance decision and to otherwise comply with the procedures authorized by this part. The applicant may elect on constitutional or other grounds not to comply; but refusal or failure to furnish or authorize the providing of relevant and material information or otherwise cooperate at any stage in the investigation or adjudicative process may prevent the DOHA from making a clearance decision. If an applicant fails or refuses to:
(1) Provide relevant and material information or to authorize others to provide such information; or
(2) Proceed in a timely or orderly fashion in accordance with this part; or
(3) Follow directions of an Administrative Judge or the Appeal Board; then the Director, DOHA, or designee, may revoke any security clearance held by the applicant and discontinue case processing. Requests for resumption of case processing and reinstatement of a security clearance may be approved by the Director, DOHA, only upon a showing of good cause. If the request is denied, in whole or in part, the decision is final and bars reapplication for a security clearance for 1 year from the date of the revocation.
(c) Each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria in 32 CFR 154.7 and adjudication policy in appendix H to 32 CFR part 154, including as appropriate:
(1) Nature and seriousness of the conduct and surrounding circumstances.
(2) Frequency and recency of the conduct.
(3) Age of the applicant.
(4) Motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequences involved.
(5) Absence or presence of rehabilitation.
(6) Probability that the circumstances or conduct will continue or recur in the future.
(d) Whenever there is a reasonable basis for concluding that an applicant's continued access to classified information poses an imminent threat to the national interest, any security clearance held by the applicant may be suspended by the ASD(C
(e) Nothing contained in this part shall limit or affect the responsibility
(f) Additional procedural guidance is in appendix A to this part.
1. When the DISCO cannot affirmatively find that it is clearly consistent with the national interest to grant or continue a security clearance for an applicant, the case will be promptly referred to the DOHA.
2. Upon referral, the DOHA shall make a prompt determination whether to grant or continue a security clearance, issue a statement of reasons (SOR) as to why it is not clearly consistent with the national interest to do so, or take interim actions, including but not limited to:
a. Direct further investigation.
b. Propound written interrogatories to the applicant or other persons with relevant information.
c. Requiring the applicant to undergo a medical evaluation by a DoD Psychiatric Consultant.
d. Interviewing the applicant.
3. An unfavorable clearance decision shall not be made unless the applicant has been provided with a written SOR that shall be as detailed and comprehensive as the national security permits. A letter of instruction with the SOR shall explain that the applicant or Department Counsel may request a hearing. It shall also explain the adverse consequences for failure to respond to the SOR within the prescribed time frame.
4. The applicant must submit a detailed written answer to the SOR under oath or affirmation that shall admit or deny each listed allegation. A general denial or other similar answer is insufficient. To be entitled to a hearing, the applicant must specifically request a hearing in his or her answer. The answer must be received by the DOHA within 20 days from receipt of the SOR. Requests for an extension of time to file an answer may be submitted to the Director, DOHA, or designee, who in turn may grant the extension only upon a showing of good cause.
5. If the applicant does not file a timely and responsive answer to the SOR, the Director, DOHA, or designee, may discontinue processing the case, deny issuance of the requested security clearance, and direct the DISCO to revoke any security clearance held by the applicant.
6. Should review of the applicant's answer to the SOR indicate that allegations are unfounded, or evidence is insufficient for further processing, Department Counsel shall take such action as appropriate under the circumstances, including but not limited to withdrawal of the SOR and transmittal to the Director for notification of the DISCO for appropriate action.
7. If the applicant has not requested a hearing with his or her answer to the SOR and Department Counsel has not requested a hearing within 20 days of receipt of the applicant's answer, the case shall be assigned to an Administrative Judge for a clearance decision based on the written record. Department Counsel shall provide the applicant with a copy of all relevant and material information that could be adduced at a hearing. The applicant shall have 30 days from receipt of the information in which to submit a documentary response setting forth objections, rebuttal, extenuation, mitigation, or explanation, as appropriate.
8. If a hearing is requested by the applicant or Department Counsel, the case shall be assigned to an Administrative Judge for a clearance decision based on the hearing record. Following issuance of a notice of hearing by the Administrative Judge, or designee, the applicant shall appear in person with or without counsel or a personal representative at a time and place designated by the notice of hearing. The applicant shall have a reasonable time to prepare his or her case. The applicant shall be notified at least 15 days in advance of the time and place of the hearing, which generally shall be held at a location in the United States within a metropolitan area near the applicant's place of employment or residence. A continuance may be granted by the Administrative Judge only for good cause. Hearings may be held outside of the United States in NATO cases, or in other cases upon a finding of good cause by the Director, DOHA, or designee.
9. The Administrative Judge may require a prehearing conference.
10. The Administrative Judge may rule on questions of procedure, discovery, and evidence and shall conduct all proceedings in a fair, timely, and orderly manner.
11. Discovery by the applicant is limited to non-privileged documents and materials subject to control by the DOHA. Discovery by Department Counsel after issuance of an SOR may be granted by the Administrative Judge only upon a showing of good cause.
12. A hearing shall be open except when the applicant requests that it be closed, or when
13. As far in advance as practical, Department Counsel and the applicant shall serve one another with a copy of any pleading, proposed documentary evidence, or other written communication to be submitted to the Administrative Judge.
14. Department Counsel is responsible for presenting witnesses and other evidence to establish facts alleged in the SOR that have been controverted.
15. The applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.
16. Witnesses shall be subject to cross-examination.
17. The SOR may be amended at the hearing by the Administrative Judge on his or her own motion, or upon motion by Department Counsel or the applicant, so as to render it in conformity with the evidence admitted or for other good cause. When such amendments are made, the Administrative Judge may grant either party's request for such additional time as the Administrative Judge may deem appropriate for further preparation or other good cause.
18. The Administrative Judge hearing the case shall notify the applicant and all witnesses testifying that 18 U.S.C. 1001 is applicable.
19. The Federal Rules of Evidence (28 U.S.C. 101
20. Official records or evidence compiled or created in the regular course of business, other than DoD personnel background reports of investigation (ROI), may be received and considered by the Administrative Judge without authenticating witnesses, provided that such information has been furnished by an investigative agency pursuant to its responsibilities in connection with assisting the Secretary of Defense, or the Department or Agency head concerned, to safeguard classified information within industry under to E.O. 10865, as amended. An ROI may be received with an authenticating witness provided it is otherwise admissible under the Federal Rules of Evidence (28 U.S.C. 101
21. Records that cannot be inspected by the applicant because they are classified may be received and considered by the Administrative Judge, provided the GC, DoD, has:
a. Made a preliminary determination that such evidence appears to be relevant and material.
b. Determined that failure to receive and consider such evidence would be substantially harmful to the national security.
22. A written or oral statement adverse to the applicant on a controverted issue may be received and considered by the Administrative Judge without affording an opportunity to cross-examine the person making the statement orally, or in writing when justified by the circumstances, only in either of the following circumstances:
a. If the head of the Department or Agency supplying the statement certifies that the person who furnished the information is a confidential informant who has been engaged in obtaining intelligence information for the Government and that disclosure of his or her identity would be substantially harmful to the national interest; or
b. If the GC, DoD, has determined the statement concerned appears to be relevant, material, and reliable; failure to receive and consider the statement would be substantially harmful to the national security; and the person who furnished the information cannot appear to testify due to the following:
(1) Death, severe illness, or similar cause, in which case the identity of the person and the information to be considered shall be made available to the applicant; or
(2) Some other cause determined by the Secretary of Defense, or when appropriate by the Department or Agency head, to be good and sufficient.
23. Whenever evidence is received under item 21. or 22., the applicant shall be furnished with as comprehensive and detailed a summary of the information as the national security permits. The Administrative Judge and Appeal Board may make a clearance decision either favorable or unfavorable to the applicant based on such evidence after giving appropriate consideration to the fact that the applicant did not have an opportunity to confront such evidence, but any final determination adverse to the applicant shall be made only by the Secretary of Defense, or the Department or Agency head, based on a personal review of the case record.
24. A verbatim transcript shall be made of the hearing. The applicant shall be furnished one copy of the transcript, less the exhibits, without cost.
25. The Administrative Judge shall make a written clearance decision in a timely manner setting forth pertinent findings of fact, policies, and conclusions as to the allegations in the SOR, and whether it is clearly consistent with the national interest to grant or continue a security clearance for the applicant. The applicant and Department
26. If the Administrative Judge decides that it is clearly consistent with the national interest for the applicant to be granted or to retain a security clearance, the DISCO shall be so notified by the Director, DOHA, or designee, when the clearance decision becomes final in accordance with item 36., below.
27. If the Administrative Judge decides that it is not clearly consistent with the national interest for the applicant to be granted or to retain a security clearance, the Director, DOHA, or designee, shall expeditiously notify the DISCO, which shall in turn notify the applicant's employer of the denial or revocation of the applicant's security clearance. The letter forwarding the Administrative Judge's clearance decision to the applicant shall advise the applicant that these actions are being taken, and that the applicant may appeal the Administrative Judge's clearance decision.
28. The applicant or Department Counsel may appeal the Administrative Judge's clearance decision by filing a written notice of appeal with the Appeal Board within 15 days after the date of the Administrative Judge's clearance decision. A notice of appeal received after 15 days from the date of the clearance decision shall not be accepted by the Appeal Board, or designated Board Member, except for good cause. A notice of cross appeal may be filed with the Appeal Board within 10 days of receipt of the notice of appeal. An untimely cross appeal shall not be accepted by the Appeal Board, or designated Board Member, except for good cause.
29. Upon receipt of a notice of appeal, the Appeal Board shall be provided the case record. No new evidence shall be received or considered by the Appeal Board.
30. After filing a timely notice of appeal, a written appeal brief must be received by the Appeal Board within 45 days from the date of the Administrative Judge's clearance decision. The appeal brief must state the specific issue or issues being raised, and cite specific portions of the case record supporting any alleged error. A written reply brief, if any, must be filed within 20 days from receipt of the appeal brief. A copy of any brief filed must be served upon the applicant or Department Counsel, as appropriate.
31. Requests for extension of time for submission of briefs may be submitted to the Appeal Board or designated Board Member.
A copy of any request for extension of time must be served on the opposing party at the time of submission. The Appeal Board, or designated Board Member, shall be responsible for controlling the Appeal Board's docket, and may enter an order dismissing an appeal in an appropriate case or vacate such an order upon a showing of good cause.
32. The Appeal Board shall address the material issues raised by the parties to determine whether harmful error occurred. Its scope of review shall be to determine whether or not:
a. The Administrative Judge's findings of fact are supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record. In making this review, the Appeal Board shall give deference to the credibility determinations of the Administrative Judge;
b. The Administrative Judge adhered to the procedures required by E.O. 10865, as amended and this part; or
c. The Administrative Judge's rulings or conclusions are arbitrary, capricious, or contrary to law.
33. The Appeal Board shall issue a written clearance decision addressing the material issues raised on appeal. The Appeal Board shall have authority to:
a. Affirm the decision of the Administrative Judge;
b. Remand the case to an Administrative Judge to correct identified error. If the case is remanded, the Appeal Board shall specify the action to be taken on remand; or
c. Reverse the decision of the Administrative Judge if correction of identified error mandates such action.
34. A copy of the Appeal Board's written clearance decision shall be provided to the parties. In cases in which evidence was received under items 21. and 22., the Appeal Board's clearance decision may require deletions in the interest of national security.
35. Upon remand, the case file shall be assigned to an Administrative Judge for correction of error(s) in accordance with the Appeal Board's clearance decision. The assigned Administrative Judge shall make a new clearance decision in the case after correcting the error(s) identified by the Appeal Board. The Administrative Judge's clearance decision after remand shall be provided to the parties. The clearance decision after remand may be appealed pursuant to items 28. to 35.
36. A clearance decision shall be considered final when:
a. A security clearance is granted or continued pursuant to item 2.;
b. No timely notice of appeal is filed;
c. No timely appeal brief is filed after a notice of appeal has been filed;
d. The appeal has been withdrawn;
e. When the Appeal Board affirms or reverses an Administrative Judge's clearance decision; or
f. When a decision has been made by the Secretary of Defense, or the Department or Agency head, under item 23.
The Director, DOHA, or designee, shall notify the DISCO of all final clearance decisions.
37. An applicant whose security clearance has been finally denied or revoked by the DOHA is barred from reapplication for 1 year from the date of the initial unfavorable clearance decision.
38. A reapplication for a security clearance must be made initially by the applicant's employer to the DISCO and is subject to the same processing requirements as those for a new security clearance application. The applicant shall thereafter be advised he is responsible for providing the Director, DOHA, with a copy of any adverse clearance decision together with evidence that circumstances or conditions previously found against the applicant have been rectified or sufficiently mitigated to warrant reconsideration.
39. If the Director, DOHA, determines that reconsideration is warranted, the case shall be subject to this part for making a clearance decision.
40. If the Director, DOHA, determines that reconsideration is not warranted, the DOHA shall notify the applicant of this decision. Such a decision is final and bars further reapplication for an additional one year period from the date of the decision rejecting the application.
41. Nothing in this part is intended to give an applicant reapplying for a security clearance any greater rights than those applicable to any other applicant under this part.
42. An applicant may file a written petition, under oath or affirmation, for reimbursement of loss of earnings resulting from the suspension, revocation, or denial of his or her security clearance. The petition for reimbursement must include as an attachment the favorable clearance decision and documentation supporting the reimbursement claim. The Director, DOHA, or designee, may in his or her discretion require additional information from the petitioner.
43. Claims for reimbursement must be filed with the Director, DOHA, or designee, within 1 year after the date the security clearance is granted. Department Counsel generally shall file a response within 60 days after receipt of applicant's petition for reimbursement and provide a copy thereof to the applicant.
44. Reimbursement is authorized only if the applicant demonstrates by clear and convincing evidence to the Director, DOHA, that all of the following conditions are met:
a. The suspension, denial, or revocation was the primary cause of the claimed pecuniary loss; and
b. The suspension, denial, or revocation was due to gross negligence of the Department of Defense at the time the action was taken, and not in any way by the applicant's failure or refusal to cooperate.
45. The amount of reimbursement shall not exceed the difference between the earnings of the applicant at the time of the suspension, revocation, or denial and the applicant's interim earnings, and further shall be subject to reasonable efforts on the part of the applicant to mitigate any loss of earnings. No reimbursement shall be allowed for any period of undue delay resulting from the applicant's acts or failure to act. Reimbursement is not authorized for loss of merit raises and general increases, loss of employment opportunities, counsel's fees, or other costs relating to proceedings under this part.
46. Claims approved by the Director, DOHA, shall be forwarded to the Department or Agency concerned for payment. Any payment made in response to a claim for reimbursement shall be in full satisfaction of any further claim against the United States or any Federal Department or Agency, or any of its officers or employees.
47. Clearance decisions issued by Administrative Judges and the Appeal Board shall be indexed and made available in redacted form to the public.
50 U.S.C. 781.
This part:
(a) Updates the policy and responsibilities for the DoDPSP under Pub. L. 81-832; E.O. 10450, 18 FR 2489, 3 CFR, 1949-1953 Comp., p. 936; E.O. 10865, 25 FR 1583, 3 CFR, 1959-1963 Comp., p. 398; E.O. 12333, 46 FR 59941, 3 CFR, 1981 Comp., p.200; and E.O. 12356, 47 FR 14874 and 15557, 3 CFR 1982 Comp., p. 166.
(b) Continues to authorize the publication of DoD 5200.2-R
This part applies to:
(a) The Office of the Secretary of Defense, the Military Departments (including the Coast Guard when it is operating as a Military Service in the Navy), the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Unified and Specified Commands, and the Defense Agencies, except as provided for the National Security Agency (NSA) in paragraph (b) of this section (hereafter referred to collectively as “the DoD Components”).
(b) The NSA is exempt from the provisions of this Directive. The personnel security program for the NSA is implemented pursuant to DoD Directive 5210.45,
(c) DoD military and civilian personnel, consultants to the Department of Defense, contractors cleared under the Defense Industrial Security Program (DISP) Regulations DoD 5220.22
It is DoD policy that:
(a) No person shall be appointed as a civilian employee of the Department of Defense, accepted for entrance into the Armed Forces of the United States, authorized access to classified information, or assigned to duties that are subject to investigation under this part unless such appointment, acceptance, clearance, or assignment is clearly consistent with the interests of national security.
(b) A personnel security clearance shall be granted and assignment to sensitive duties shall be authorized only to U.S. citizens. As an exception, a non-U.S. citizen may, by an authorized official (as specified in 32 CFR part 154) be assigned to sensitive duties or granted a Limited Access Authorization for access to classified information if there is a need for access in support of a specific DoD program, project, or contract.
(c) The personnel security standard that shall be applied in determining a person's eligibility for a security clearance or assignment to sensitive duties is whether, based on all available information, the person's allegiance, trustworthiness, reliability, and judgment are such that the person can reasonably to expected to comply with Government policy and procedures for safeguarding classified information and performing sensitive duties.
(d) 32 CFR part 154 shall identify those positions and duties that require a personnel security investigation (PSI). A PSI is required for:
(1) Appointment to a sensitive civilian position.
(2) Entry into military service.
(3) The granting of a security clearance or approval for access to classified information.
(4) Assignment to other duties that require a personnel security or trustworthiness determination.
(5) Continuing eligibility for retention of a security clearance and approval for access to classified information or for assignment to other sensitive duties.
(e) 32 CFR part 154 shall contain personnel security criteria and adjudicative guidance to assist in determining whether an individual meets the clearance and sensitive position standards referred to in paragraphs (a) and (c) of this section.
(f) No unfavorable personnel security determination shall be made except in accordance with procedures set forth in 32 CFR part 154 or 32 CFR part 155 or as otherwise authorized by law.
(a) The
(1) Be responsible for overall policy, guidance, and control of the DoDPSP.
(2) Develop and implement plans, policies, and procedures for the DoDPSP.
(3) Issue and maintain DoD 5200.2-R consistent with DoD 5025.1-M.
(4) Conduct an active oversight program to ensure compliance with DoDPSP requirements.
(5) Ensure that research is conducted to assess and improve the effectiveness of the DoDPSP (DoD Directive 5210.79
(6) Ensure that the Defense Investigative Service is operated pursuant to 32 CFR part 361.
(7) Ensure that the DoD Security Institute provides the education, training, and awareness support to the DoDPSP under DoD Directive 5200.32.
(8) Be authorized to make exceptions to the requirements of this part on a case-by-case basis when it is determined that doing so furthers the mission of the Department of Defense and is consistent with the protection of classified information from unauthorized disclosure.
(b) The
(1) Be responsible for providing advice and guidance as to the legal sufficiency of procedures and standards implementing the DoDPSP and the DISP.
(2) Exercise oversight of PSP appeals procedures to verify that the rights of individuals are being protected consistent with the constitution, laws of the United States, Executive Orders, Directives, or Regulations that implement the DoDPSP and DISP, and with the interests of national security.
(c) The
(1) Designate a senior official who shall be responsible for implementing the DoDPSP within their components.
(2) Ensure that the DoDPSP is properly administered under this Directive within their components.
(3) Ensure that information and recommendations are provided to the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence on any aspect of the program.
R.S. 161, 5 U.S.C. 22.
This part: (a) Consolidates into one document this part and parts of DoD Instruction 5100.38, “Defense Documentation Center for Scientific and Technical Information,” March 29, 1965;
(b) Supplements DoD Directive 5100.36, “Department of Defense Technical Information,” December 31, 1962, and DoD Instruction 5129.43, “Assignment of Functions for the Defense Scientific and Technical Information Program,” January 22, 1963;
(c) Provides policy and assigns responsibilities for the dissemination of DoD technical information;
(d) Establishes certification procedures for access to DoD technical information.
(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to as “DoD Components”), and other U.S. Government agencies disseminating or requesting access to DoD technical information.
(b) The procedures established by this part shall be used by technical Information Dissemination Activities to control access to DoD technical information. The access afforded through use of these procedures does not override special consideration or approvals that affect the flow of controlled information.
(c) This part does not apply to primary distribution of technical information or to interlibrary loan within Department of Defense.
The purpose of the DoD Technical Information Program is to ensure the complete and timely exchange among
(a) The
(1) Manage and disseminate DoD technical information, as provided in DoD Directive 5100.36, “Department of Defense Technical Information,” December 31, 1962.
(2) Approve service charges collected by Information Dissemination Activities to provide partial reimbursement and to prevent excessive, unwarranted use of these services.
(b) The
(1) Pursue organized, coordinated, and comprehensive programs for technical information dissemination. These programs shall provide for the interchange of technical information within Department of Defense; between Department of Defense and other Federal agencies and their contractors; among Department of Defense, NATO governments and other allies; and between Department of Defense and the national and international scientific and technical community in accordance with DoD 5200.1-R, “Information Security Program Regulation,” December 1978, and parts 286 and 286a of this title.
(2) Within the limits of security and access restrictions necessary to ensure adequate intra-DoD technical information exchange.
(i) Vigorously pursue a policy that ensures that technical information generated within activities under their cognizance is provided for public use through appropriate Federal agencies and technology transfer programs according to approved DoD clearance procedures; and
(ii) Wherever possible, provide unclassified technical documents and other information to expedite the information transfer procedures. However, all critical technology to which the Department of Defense has title or proprietary interest shall be classified at the appropriate level.
(3) Certify access for DoD technical information users as described in § 157.6.
(4) Introduce an active technology transfer program aimed at transferring to the public as much DoD-developed technology as is consistent with the DoD mission. Active participation by DoD laboratories, centers, and other organizations in Federal and local government technology transfer organizations, such as the Federal Laboratory Consortium, is encouraged.
(5) Support a program for the domestic dissemination of DoD-developed technology that, because of its commercial significance, should be made available as early as possible,
(6) Make planning and technical requirements information available through Industry Information Centers so that industry can plan and apply its resources effectively.
(7) Make technical information on selected technologies available through Information Analysis Centers to support the DoD mission.
(8) Sponsor or support technical symposia, conferences and meetings for disseminating technical information in accordance with DoD Directive 5200.12,
(9) Ensure compliance with provisions of DoD Directive 5000.11,
(c) The
(d)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(a)
(2) A uniform certification procedure shall be used for the effective control of the flow of technical information and shall utilize the DD Form 1540, “Registration for Scientific and Technical Information Services,” cited in DoD 5220.22-R, “Industrial Security Regulation,” January 1979.
(3) Certification shall be according to subject fields and groups of interest and recorded on DD Form 1540. Such certification is a warranty that the user's oficial responsibilities require access to technical information that can be described by one or another of the prescribed DoD categories of science and technology.
(b)
(i) DTIC shall:
(A) Develop and distribute such instructions and procedural guidance as necessary for use by DoD Components, U.S. Government contractors and subcontractors, DoD potential contractors, and other U.S. Government offices to maintain the most effective use of the certification procedures within the terms of this Instruction and existing security regulations.
(B) Maintain at DTIC the central authority file of eligible users and notify affected dissemination activities of each new eligible user, along with conditions and scope of coverage, and of any subsequent changes thereto.
(C) Provide information products from DTIC to eligible users as follows:
(
(
(D) Recommend changes to DoD 5220.22-M,
(ii) DCAS shall certify the DD Form 1541 and report any change affecting a facility clearance through submission of a revised DD Form 1541 to the central authority file.
(2) Each DoD Component conducting, administering, or sponsoring research, development, test and evaluation and other technical work shall:
(i) Require in-house activities to complete all parts of the DD Form 1540 and submit it to the DTIC before requesting reports or information from dissemination activities. The commanding officer, the technical director, or their authorized designee shall review, approve, modify, or disapprove the registration for technical information services on DD Form 1540 submitted by their personnel.
(ii) Review, approve, modify, or disapprove DD Form 1540 submitted by non-DoD activities or organizations under its cognizance. Personnel selected to authorize DD Form 1540 shall have the technical competence and familiarity with contractor or grantee programs necessary to judge the subject fields of interest of the applicant.
(iii) Instruct and assist its sponsored activities in filling out and submitting DD Form 1540.
(iv) Recommend changes to DoD 5220.22-M and related security procedures in conformance with this part.
(v) Promptly report to the DTIC any changes of certification status, such as change in mission of the DoD Component, contract termination, and contract or grant revision.
(vi) Designate an office at each appropriate level of the organization with responsibility for:
(A) Providing and maintaining procedures that are responsive to this Instruction and with applicable security regulations.
(B) Reviewing special cases, such as referral of questions on DD Form 1540 from the DTIC.
(3) Each dissemination activity, within the scope of its mission, shall make its technical information available to eligible users in accordance with the certification terms and the applicable security and distribution controls.
(c)
(2) Components of non-DoD executive branch agencies who do not participate in the DoD Industrial Security Program shall make specific arrangements with the DTIC for certification of DD Form 1540 and facility clearance authorization when DoD technical information is required.
(3) Components of the legislative and judicial branches, their contractors, and their grantees who are in need of unclassified information shall make specific arrangements with DTIC for certification of DD Form 1540. Certification for classified information, if needed, must be approved by the Office of the Deputy Under Secretary of Defense for Research and Engineering (Research and Advanced Technology). In these cases, submission of the completed DD Form 1540 by contractors and grantees must be accompanied by adequate facility clearance authorization.
E.O. 12356, 10 U.S.C.
This part is reissued; establishes procedures and assigns responsibilities for the systematic declassification review of information classified under E.O. 12356 and Information Security Oversight Office Directive No. 1, DoD Directive 5200.1 and DoD 5200.1-R, and prior orders, directives, and regulations governing security classification; and implements section 3.3 of E.O. 12356.
(a) This part applies to the Office of the Secretary of Defense (OSD) and to activities assigned to the OSD for administrative support, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to collectively as “DoD Components”).
(b) This part applies to the systematic review of permanently valuable
(c) Its provisions do not cover Restricted Data or Formerly Restricted Data under the Atomic Energy Act of 1954 or information in nonpermanent records.
(d) Systematic declassification review of records pertaining to intelligence activities (including special activities) or intelligence sources or methods shall be in accordance with special procedures issued by the Director of Central Intelligence.
(a)
(b)
(c)
(d)
It is the policy of the Department of Defense to assure that information that warrants protection against unauthorized disclosure is properly classified and safeguarded as well as to facilitate the flow of unclassified information about DoD operations to the public.
(a) DoD classified information that is permanently valuable, as defined by 44 U.S.C. 2103, that has been accessioned into the National Archives of the United States, will be reviewed systematically for declassification by the Archivist of the United States, with the assistance of the DoD personnel designated for that purpose, as it becomes 30 years old; however, file series concerning intelligence activities (including special activities) created after 1945, intelligence sources or methods created after 1945, and cryptology records created after 1945 will be reviewed as they become 50 years old.
(b) All other DoD classified information and foreign government information that is permanently valuable and in the possession or control of DoD Components, including that held in Federal records centers or other storage areas, may be reviewed systematically for declassification by the DoD Component exercising control of such information.
(c) DoD classified information and foreign government information in the possession or control of DoD Components shall be declassified when they become 30 years old, or 50 years old in the case of DoD intelligence activities (including special activities) created after 1945, intelligence sources or methods created after 1945, or cryptology created after 1945, if they are not within one of the categories specified in §§ 158.7 through 158.10 or in 48 FR 4403, January 31, 1983.
(d) Systematic review for declassification shall be in accordance with procedures contained in DoD 5200 1-R. Information that falls within any of the categories in §§ 158.7 through 158.10 and in 44 FR 4403 shall be declassified if the designated DoD reviewer determines, in light of the declassification considerations contained in § 158.11 that classification no longer is required. In the absence of such a declassification determination, the classification of the information shall continue as long as required by national security considerations.
(e) Before any declassification or downgrading action, DoD information under review should be coordinated with the Department of State on subjects cited in § 158.12, and with the Central Intelligence Agency (CIA) on subjects cited in § 158.13.
(a) The
(1) Exercise oversight and policy supervision over the implementation of this part.
(2) Request DoD Components to review §§ 158.7 through 158.11 of this part every 5 years.
(3) Revise §§ 158.7 through 158.11 to ensure they meet DoD needs.
(4) Authorize, when appropriate, other Federal agencies to apply this part to DoD information in their possession.
(b) The
(1) Recommend changes to §§158.7 through 158.13 of this part.
(2) Propose, with respect to specific programs, projects, and systems under his or her classification jurisdiction, supplements to §§ 158.7 through 158.11 of this part.
(3) Provide advice and designate experienced personnel to provide timely assistance to the Archivist of the United States in the systematic review of records under this part.
(c) The
(d) The
The following categories of information shall be reviewed systematically for declassification by designated DoD review in accordance with this part:
(a) Nuclear propulsion information.
(b) Information concerning the establishment, operation, and support of the U.S. Atomic Energy Detection System.
(c) Information concerning the safeguarding of nuclear materials or facilities.
(d) Information that could affect the conduct of current or future U.S. foreign relations. (Also see § 158.12.)
(e) Information that could affect the current or future military usefulness of policies, programs, weapon systems, operations, or plans when such information would reveal courses of action, concepts, tactics, or techniques that are used in current operations plans.
(f) Research, development, test, and evaluation (RDT&E) of chemical and biological weapons and defensive systems; specific identification of chemical and biological agents and munitions; chemical and biological warfare plans; and U.S. vulnerability to chemical or biological warfare attack.
(g) Information about capabilities, installations, exercises, research, development, testing and evaluation, plans, operations, procedures, techniques, organization, training, sensitive liaison and relationships, and equipment concerning psychological operations; escape, evasion, rescue and recovery, insertion, and infiltration and exfiltration; cover and support; deception; unconventional warfare and special operations; and the personnel assigned to or engaged in these activities.
(h) Information that reveals sources or methods of intelligence or counter-intelligence, counterintelligence activities, special activities, identities of clandestine human agents, methods of special operations, analytical techniques for the interpretation of intelligence data, and foreign intelligence reporting. This includes information that reveals the overall scope, processing rates, timeliness, and accuracy of intelligence systems and networks, including the means of interconnecting such systems and networks and their vulnerabilities.
(i) Information that relates to intelligence activities conducted jointly by the Department of Defense with other Federal agencies or to intelligence activities conducted by other Federal agencies in which the Department of
(j) Airborne radar and infrared imagery.
(k) Information that reveals space system:
(1) Design features, capabilities, and limitations (such as antijam characteristics, physical survivability features, command and control design details, design vulnerabilities, or vital parameters).
(2) Concepts of operation, orbital characteristics, orbital support methods, network configurations, deployments, ground support facility locations, and force structure.
(l) Information that reveals operational communications equipment and systems:
(1) Electronic counter-counter-measures (ECCM) design features or performance capabilities.
(2) Vulnerability and susceptibility to any or all types of electronic warfare.
(m) Information concerning electronic intelligence, telemetry intelligence, and electronic warfare (electronic warfare support measures, electronic countermeasures (ECM), and ECCM) or related activities, including:
(1) Information concerning or revealing nomenclatures, functions, technical characteristics, or descriptions of foreign communications and electronic equipment, its employment or deployment, and its association with weapon systems or military operations.
(2) Information concerning or revealing the processes, techniques, operations, or scope of activities involved in acquiring, analyzing, and evaluating the above information, and the degree of success obtained.
(n) Information concerning Department of the Army systems listed in §158.8.
(o) Information concerning Department of the Navy systems listed in §158.9.
(p) Information concerning Department of the Air Force systems listed in §158.10.
(q) Cryptologic information (including cryptologic sources and methods). This includes information concerning or revealing the processes, techniques, operations, and scope of SIGINT comprising communications intelligence, electronics intelligence, and telemetry intelligence; and the cryptosecurity and emission security components of COMSEC, including the communications portion of cover and deception plans.
(1) Recognition of cryptologic information may not always be an easy task. There are several broad classes of cryptologic information, as follows:
(i) Those that relate to COMSEC. In documentary form, they provide COMSEC guidance or information. Many COMSEC documents and materials are accountable under the Communications Security Material Control System. Examples are items bearing transmission security (TSEC) nomenclature and crypto keying material for use in enciphering communications and other COMSEC documentation such as National COMSEC Instructions, National COMSEC/Emanations Security (EMSEC) Information Memoranda, National COMSEC Committee Policies, COMSEC Resources Program documents, COMSEC Equipment Engineering Bulletins, COMSEC Equipment System Descriptions, and COMSEC Technical Bulletins.
(ii) Those that relate to SIGINT. These appear as reports in various formats that bear security classifications, sometimes followed by five-letter codewords (World War II's ULTRA, for example) and often carrying warning caveats such as “This document contains codeword material” and “Utmost secrecy is necessary . . .” Formats may appear as messages having addressees, “from” and “to” sections, and as summaries with SIGINT content with or without other kinds of intelligence and comment.
(iii) RDT&E reports and information that relate to either COMSEC or SIGINT.
(2) Commonly used words that may help in identification of cryptologic documents and materials are “cipher,” “code,” “codeword,” “communications intelligence” or “COMINT,” “communications security” or “COMSEC,” “cryptanalysis,” “crypto,” “cryptography,” “cryptosystem,” “decipher,” “decode,” “decrypt,” “direction finding,” “electronic intelligence” or
The following categories of Army information shall be reviewed systematically for declassification by designated DoD reviewers in accordance with this part.
(a) Ballistic Missile Defense (BMD) missile information, including the principle of operation of warheads (fuzing, arming, and destruct operations); quality or reliability requirements; threat data; vulnerability; ECM and ECCM); details of design, assembly, and construction; and principle of operations.
(b) BMD systems data, including the concept definition (tentative roles, threat definition, and analysis and effectiveness); detailed quantitative technical system description-revealing capabilities or unique weaknesses that are exploitable; overall assessment of specific threat-revealing vulnerability or capability; discrimination technology; and details of operational concepts.
(c) BMD optics information that may provide signature characteristics of U.S. and United Kingdom ballistic weapons.
(d) Shaped-charge technology.
(e) Fleshettes.
(f) M380 Beehive round.
(g) Electromagnetic propulsion technology.
(h) Space weapons concepts.
(i) Radar-fuzing programs.
(j) Guided projectiles technology.
(k) ECM and ECCM to weapons systems.
(l) Armor materials concepts, designs, or research.
(m) 2.75-inch Rocket System.
(n) Air Defense Command and Coordination System (AN/TSQ-51).
(o) Airborne Target Acquisition and Fire Control System.
(p) Chaparral Missile System.
(q) Dragon Guided Missile System Surface Attack, M47.
(r) Forward Area Alerting Radar (FAAR) System.
(s) Ground laser designators.
(t) Hawk Guided Missile System.
(u) Heliborne, Laser, Air Defense Suppression and Fire and Forget Guided Missile System (HELLFIRE).
(v) Honest John Missile System.
(w) Lance Field Artillery Missile System.
(x) Land Combat Support System (LCSS).
(y) M22 (SS-11 ATGM) Guided Missile System, Helicopter Armament Subsystem.
(z) Guided Missile System, Air Defense (NIKE HERCULES with Improved Capabilities with HIPAR and ANTIJAM Improvement).
(aa) Patriot Air Defense Missile System.
(bb) Pershing IA Guided Missile System.
(cc) Pershing II Guided Missile System.
(dd) Guided Missile System, Intercept Aerial M41 (REDEYE) and Associated Equipment.
(ee) U.S. Roland Missile System.
(ff) Sergeant Missile System (less warhead) (as pertains to electronics and penetration aids only).
(gg) Shillelagh Missile System.
(hh) Stinger/Stinger-Post Guided Missile System (FIM-92A).
(ii) Terminally Guided Warhead (TWG) for Multiple Launch Rocket System (MLRS).
(jj) TOW Heavy Antitank Weapon System.
(kk) Viper Light Antitank/Assault Weapon System.
The following categories of Navy information shall be reviewed systematically for declassification by designated DoD reviewers in accordance with this part.
(a) Naval nuclear propulsion information.
(b) Conventional surface ship information:
(1) Vulnerabilities of protective systems, specifically:
(i) Passive protection information concerning ballistic torpedo and underbottom protective systems.
(ii) Weapon protection requirement levels for conventional, nuclear, biological, or chemical weapons.
(iii) General arrangements, drawings, and booklets of general plans (applicable to carriers only).
(2) Ship-silencing information relative to:
(i) Signatures (acoustic, seismic, infrared, magnetic (including alternating magnetic (AM)), pressure, and underwater electric potential (UEP)).
(ii) Procedures and techniques for noise reduction pertaining to an individual ship's component.
(iii) Vibration data relating to hull and machinery.
(3) Operational characteristics related to performance as follows:
(i) Endurance or total fuel capacity.
(ii) Tactical information, such as times for ship turning, zero to maximum speed, and maximum to zero speed.
(c) All information that is uniquely applicable to nuclear-powered surface ships or submarines.
(d) Information concerning diesel submarines as follows:
(1) Ship-silencing data or acoustic warfare systems relative to:
(i) Overside, platform, and sonar noise signature.
(ii) Radiated noise and echo response.
(iii) All vibration data.
(iv) Seismic, magnetic (including AM), pressure, and UEP signature data.
(2) Details of operational assignments, that is, war plans, antisubmarine warfare (ASW), and surveillance tasks.
(3) General arrangements, drawings, and plans of SS563 class submarine hulls.
(e) Sound Surveillance System (SOSUS) data.
(f) Information concerning mine warfare, mine sweeping, and mine countermeasures.
(g) ECM or ECCM features and capabilities of any electronic equipment.
(h) Torpedo information as follows:
(1) Torpedo countermeasures devices: T-MK6 (FANFARE) and NAE beacons.
(2) Tactical performance, tactical doctrine, and vulnerability to counter-measures.
(i) Design performance and functional characteristics of guided missiles, guided projectiles, sonars, radars, acoustic equipments, and fire control systems.
The Department of the Air Force has determined that the categories identified in § 158.7 of this part shall apply to Air Force information.
(a) Technological developments; widespread public knowledge of the subject matter; changes in military plans, operations, systems, or equipment; changes in the foreign relations or defense commitments of the United States; and similar events may bear upon the determination of whether information should be declassified. If the responsible DoD reviewer decides that, in view of such circumstances, the public disclosure of the information being reviewed no longer would result in damage to the national security, the information shall be declassified.
(b) The following are examples of considerations that may be appropriate in deciding whether information in the categories listed in §§ 158.7 through 158.10 may be declassified when it is reviewed:
(1) The information no longer provides the United States a scientific, engineering, technical, operational, intelligence, strategic, or tactical advantage over other nations.
(2) The operational military capability of the United States revealed by the information no longer constitutes a limitation on the effectiveness of the Armed Forces.
(3) The information is pertinent to a system that no longer is used or relied on for the defense of the United States or its allies and does not disclose the capabilities or vulnerabilities of existing operational systems.
(4) The program, project, or system information no longer reveals a current weakness or vulnerability.
(5) The information pertains to an intelligence objective or diplomatic initiative that has been abandoned or achieved and will no longer damage the foreign relations of the United States.
(6) The information reveals the fact or identity of a U.S. intelligence source, method, or capability that no longer is employed and that relates to no current source, method, or capability that upon disclosure could cause damage to national security or place a person in immediate jeopardy.
(7) The information concerns foreign relations matters whose disclosure can no longer be expected to cause or increase international tension to the detriment of the national security of the United States.
(c) Declassification of information that reveals the identities of clandestine human agents shall be accomplished only in accordance with procedures established by the Director of Central Intelligence for that purpose.
(d) The NSA/CSS is the sole authority for the review and declassification of classified cryptologic information. The procedures established by the NSA/CSS to facilitate the review and declassification of classified cryptologic information are:
(1)
(ii) If the COMSEC information has been incorporated into other documents by the receiving agency, referral to the NSA/CSS is necessary before declassification.
(2)
(ii) If the SIGINT information has been incorporated by the receiving agency into documents it produces, referral to the NSA/CSS is necessary before any declassification.
(a) Statements of U.S. intent to defend, or not to defend, identifiable areas, or along identifiable lines, in any foreign country or region.
(b) Statements of U.S. intent militarily to attack in stated contingencies identifiable areas in any foreign country or region.
(c) Statements of U.S. policies or initiatives within collective security organizations (for example, North Atlantic Treaty Organization (NATO) and Organization of American States (OAS)).
(d) Agreements with foreign countries for the use of, or access to, military facilities.
(e) Contingency plans insofar as they involve other countries, the use of foreign bases, territory or airspace, or the use of chemical, biological, or nuclear weapons.
(f) Defense surveys of foreign territories for purposes of basing or use in contingencies.
(g) Reports documenting conversations with foreign officials, that is, foreign government information.
(a) Cryptologic, cryptographic, or SIGINT. (Information in this category shall continue to be forwarded to the NSA/CSS in accordance with § 158.11(d). The NSA/CSS shall arrange for necessary coordination.)
(b) Counterintelligence.
(c) Special access programs
(d) Information that identifies clandestine organizations, agents, sources, or methods.
(e) Information on personnel under official or nonofficial cover or revelation of a cover arrangement.
(f) Covertly obtained intelligence reports and the derivative information
(g) Methods or procedures used to acquire, produce, or support intelligence activities.
(h) CIA structure, size, installations, security, objectives, and budget.
(i) Information that would divulge intelligence interests, value, or extent of knowledge on a subject.
(j) Training provided to or by the CIA that would indicate its capability or identify personnel.
(k) Personnel recruiting, hiring, training, assignment, and evaluation policies.
(l) Information that could lead to foreign political, economic, or military action against the United States or its allies.
(m) Events leading to international tension that would affect U.S. foreign policy.
(n) Diplomatic or economic activities affecting national security or international security negotiations.
(o) Information affecting U.S. plans to meet diplomatic contingencies affecting national security.
(p) Nonattributable activities conducted abroad in support of U.S. foreign policy.
(q) U.S. surreptitious collection in a foreign nation that would affect relations with the country.
(r) Covert relationships with international organizations or foreign governments.
(s) Information related to political or economic instabilities in a foreign country threatening American lives and installations therein.
(t) Information divulging U.S. intelligence collection and assessment capabilities.
(u) U.S. and allies’ defense plans and capabilities that enable a foreign entity to develop countermeasures.
(v) Information disclosing U.S. systems and weapons capabilities or deployment.
(w) Information on research, development, and engineering that enables the United States to maintain an advantage of value to national security.
(x) Information on technical systems for collection and production of intelligence, and their use.
(y) U.S. nuclear programs and facilities.
(z) Foreign nuclear programs, facilities, and intentions.
(aa) Contractual relationships that reveal the specific interest and expertise of the CIA.
(bb) Information that could result in action placing an individual in jeopardy.
(cc) Information on secret writing when it relates to specific chemicals, reagents, developers, and microdots.
(dd) Reports of the Foreign Broadcast Information Service (FBIS) (— Branch, —Division) between July 31, 1946, and December 31, 1950, marked CONFIDENTIAL or above.
(ee) Reports of the Foreign Documents Division between 1946 and 1950 marked RESTRICTED or above.
(ff) Q information reports.
(gg) FDD translations.
(hh) U reports.
E.O. 12356 and 5 U.S.C. 301.
(a) This part updates policies and procedures of the DoD information Security Program, implements Executive Order 12356 and 32 CFR part 2001, delegates authority, and assigns responsibilities.
(b) This part authorizes the development, publication, and maintenance of the following documents, consistent with DoD 5025.1-M.
(1) DoD 5200.1-R, “Information Security Program Regulation”;
(2) DoD 5200.1-H, “Department of Defense Handbook for Writing Security Classification Guidance”;
(3) DoD 5200.1-I, “Index of Security Classification Guides”;
(4) DoD 5200.1-PH, “A Guide to Marking Classified Documents”; and
(5) Other DoD 5200.1-PH series issuances necessary to ensure or facilitate compliance with and implementation of DoD 5200.1-R and E.O. 12356 and 32 CFR part 2001.
(a) This part applies to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to as “DoD Components”).
(b) This part covers all information that is owned, produced by or for, or is under the control of the Department of Defense that shall be protected from unauthorized disclosure in the interest of national security under Executive Order 12356 and ISOO Directive No. 1 and all such information received by the Department of Defense from other sources, including that received from or produced pursuant to or as a result of a joint arrangement with a foreign government or international organization.
It is the policy of the Department of Defense to assure that information that warrants protection against unauthorized disclosure is properly classified and safeguarded as well as to facilitate the flow of unclassified information about DoD operations to the public.
To carry out this policy, there is established a DoD Information Security Program that shall be administered to ensure that:
(a) Information requiring protection in the interest of national security is properly classified and safeguarded.
(b) Overclassification and unnecessary classification are avoided.
(c) Information is classified as long as required by national security considerations.
(d) Unnecessary expense to the Department of Defense, industry, and the U.S. government, resulting from protection of information no longer requiring classification, is eliminated.
(e) Declassified information is made available to the public under 32 CFR part 285.
(f) Classified inventories are reduced to the minimum necessary to meet operational requirements, thereby affording better protection to that which remains.
(g) DoD military and civilian personnel, who require access to classified information in the conduct of official business, are familiar with the requirements of DoD 5200.1-R and E.O. 12356 and 32 CFR part 2001, and that they comply with those requirements.
(a) The
(1) Direct and administer the DoD Information Security Program, establish policy, standards, criteria, and procedures to comply with E.O. 12356, except its section 3.4.
(2) Conduct an active oversight program to ensure effective implementation of DoD 5200.1-R, Executive Order 12356, and 32 CFR part 2001, to include security education and training.
(3) Consider and take action on complaints and suggestions from persons within or outside the government regarding the DoD information Security Program.
(b) The
(c) The
(1) Designate a senior official who shall be responsible for the direction and administration of the Component's
(2) Ensure that funding and resources are adequate to carry out such oversight, and security education and training programs.
(3) Consider and take action on complaints and suggestions from persons within or outside the government regarding the Component's Information Security Program.
(4) Establish procedures to limit access to classified information to those who need to know.
(5) Develop plans for the protection, removal, or destruction of classified material in case of fire, natural disaster, civil disturbance, terrorist activities, or enemy action. These plans shall include the treatment of classified information located in foreign countries.
(d) Pursuant to E.O. 12356, the
E.O. 12356, 5 U.S.C. 301.
Information of the Department of Defense relating to national security shall be protected against unauthorized disclosure as long as required by national security considerations. This part establishes a system for classification, downgrading and declassification of information; sets forth policies and procedures to safeguard such information; and provides for oversight and administrative sanctions for violations.
This part governs the DoD Information Security Program and takes precedence over all DoD Component regulations that implement that Program. Under 32 CFR part 159, E.O. 12356, and Information Security Oversight Office (ISOO) Directive No. 1, it establishes, for the Department of Defense, uniform policies, standards, criteria, and procedures for the security classification, downgrading, declassification, and safeguarding of information that is owned by, produced for or by, or under the control of the Department of Defense or its Components.
Except as otherwise provided herein, the provisions of this part that are relevant to operations of nongovernment personnel entrusted with classified information shall be made applicable
The provisions of this part relating to accountability, dissemination, transmission, or safeguarding of classified information may be modified by military commanders but only to the extent necessary to meet local conditions in connection with combat or combat-related operations. Classified information should be introduced into forward combat areas or zones or areas of potential hostile activity only when essential to accomplish the military mission.
Nothing in this part supersedes any requirement related to “Restricted Data” in the Atomic Energy Act of August 30, 1954, as amended, or the regulations of the Department of Energy under that Act. “Restricted Data” and material designated as “Formerly Restricted Data,” shall be handled, protected, classified, downgraded, and declassified to conform with Pub. L. 83-703 and the regulations issued pursuant thereto.
(a) Sensitive Compartmented Information (SCI) and Communications Security (COMSEC) Information shall be handled and controlled in accordance with applicable national directives and DOD Directives and Instructions. Other classified information, while in established SCI or COMSEC areas, may be handled in the same manner as SCI or COMSEC information. Classification principles and procedures, markings, downgrading, and declassification actions prescribed in this part apply to SCI and COMSEC information.
(b) Pursuant to 32 CFR part 159, the Director, National Security Agency/Chief, Central Security Service may prescribe special rules and procedures for the handling, reporting of loss, storage, and access to classified communications security devices, equipments, and materials in mobile, hand-held or transportable systems, or that are used in conjunction with commercial telephone systems, or in similar circumstances where operational demands preclude the application of standard safeguards. These special rules may include procedures for safeguarding such devices and materials, and penalties for the negligent loss of government property.
This part applies to protection of classified information processed, stored or used in, or communicated, displayed or disseminated by an automatic data processing (ADP) system. Additional security policy, responsibilities, and requirements applicable specifically to ADP systems are contained in DoD Directive 5200.28
(a)
(b)
(c)
(d)
(e)
(f)
(1) Owned by, produced for or by, or under the control of the U.S. Government; and
(2) Determined under E.O. 12356 or prior orders and this part to require protection against unauthorized disclosure; and
(3) So designated.
(g)
(h)
(i)
(j)
(k)
(l)
Equipments and components so designated bear the designator “Controlled Cryptographic Item” or “CCI.”)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(1) Provided to the United States by a foreign government or governments, an international organization of governments, or any element thereof with the expectation, expressed or implied, that the information, the source of the information, or both, are to be held in confidence; or
(2) Produced by the United States pursuant to or as a result of a joint arrangement with a foreign government or governments or an international organization of governments, or any element thereof, requiring that the information, the arrangement, or both, are to be held in confidence.
(v)
(w)
(x)
(y)
(z)
(aa)
(bb)
(cc)
(dd)
(ee)
(ff)
(1) Design, manufacture or utilization of atomic weapons;
(2) The production of special nuclear material; or
(3) The use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category under section 142 of Pub. L. 83-703.
(gg)
(hh)
(ii)
(jj)
(kk)
(ll)
(mm)
(nn)
(a)
(2)
(3)
(b)
(c)
(a)
(b)
(c)
(d)
(a)
(2)
(i)
(ii)
(iii) Each delegation of original classification authority shall be in writing and shall specify the title of the position held by the recipient.
(3)
(A) The normal course of operations or missions of the organization results in the origination of information warranting classification;
(B) There is a substantial degree of local autonomy in operations or missions as distinguished from dependence upon a higher level of command or supervision for relatively detailed guidance;
(C) There is adequate knowledge by the originating level to make sound classification determinations as distinguished from having to seek such knowledge from a higher level of command or supervision; and
(D) There is a valid reason why already designated classification authorities in the originator's chain of command or supervision have not issued or cannot issue classification guidance to meet the originator's normal needs.
(ii) Each request for a delegation of original classification authority shall:
(A) Identify the title of the position held by the nominee and the nominee's organization;
(B) Contain a description of the circumstances, consistent with paragraph (a)(3)(i) of this section, that justify the delegation of such authority; and
(C) Be submitted through established channels to the Secretary of Defense, the Secretary of the Military Department concerned, the senior official designated by each under § 5.3(a) of E.O. 12356, or the appropriate Top Secret classification authority.
(4)
(b)
(1) Respect original classification decisions;
(2) Verify the information's current level of classification as far as practicable before applying the markings; and
(3) Carry forward to any newly created documents the assigned dates or events for declassification and any additional authorized markings.
(c)
(i)
(A) The Office of the Deputy Under Secretary of Defense (Policy) (ODUSD(P)) for the Office of the Secretary of Defense; the Organization of the Joint Chiefs of Staff; the headquarters of each Unified Command and the headquarters of subordinate Joint Commands; and the Defense Agencies.
(B) The Offices of the Secretaries of the Military Departments for the officials of their respective departments, including Specified Commands but excluding officials from their respective departments wo are serving in headquarters elements of Unified Commands and headquarters of Joint Commands subordinate thereto.
(ii)
(A) The ODUSD(P) for the Office of the Secretary of Defense.
(B) The offices of the Secretaries of the Military Departments for the officials of their respective departments, including Specified Commands but excluding officials from their respective departments who are serving in headquarters elements of Unified Commands and headquarters elements of Joint Commands subordinate thereto.
(C) The Director, Joint Staff, for the OJCS.
(D) The Commanders-in-Chief of the Unified Commands, for their respective headquarters and the headquarters of subordinate Joint Commands.
(E) The Directors of the Defense Agencies, for their respective agencies.
(iii) If the listing of titles of positions and organizations prescribed in paragraphs (c)(1) (i) and (ii) of this section discloses intelligence or other information that either qualifies for security classification protection or otherwise qualifies to be withheld from public release under statute, some other means may be recommended by the DoD Component by which original classification authorities can be readily identified. Such recommendations shall be submitted to ODUSD(P) for approval.
(iv) The listings prescribed in paragraphs (c)(1) (i) and (ii) of this section shall be reviewed at least annually by the senior official designated in or pursuant to § 159a.92(a)(1), § 159a.93 (a) or (b) or designee to ensure that officials so listed have demonstrated a continuing need to exercise original classification authority.
(2) The DoD Components that maintain listings of designated original classification authorities shall, upon request, submit copies of such listings to ODUSD(P).
(d)
(i) By the Secretary of Defense and the Secretaries of the Military Departments, with respect to all information over which their respective Departments exercise final classification jurisdiction;
(ii) By the official who authorized the original classification, if that official is still serving in the same position, by a successor, or by a supervisory official of either; and
(iii) By other officials designated for the purpose in accordance with paragraph (d)(2) of this section.
(2) The Secretary of Defense, the Secretaries of the Military Departments, the Chairman of the Joint Chiefs of Staff, the Directors of the Defense Agencies, or their senior officials designated under § 159a.93 (b) or (c) may designate additional officials at the lowest practicable echelons of command and supervision to exercise declassification and downgrading authority over classified information in their functional areas of interest. Records of officials so designated shall be maintained in the same manner as prescribed in § 159a.12(c)(1)(i) for records of designations of original classification authority.
(a)
(2) An official who classifies a document or other material and is identified thereon as the classifier is and continues to be an accountable classifier even though the document or material is approved or signed at a higher level in the same organization.
(b)
(2) A higher level official through or to whom a document or other material
(c)
(2) The official charged with developing any plan, program or project in which classification is a factor, shall include under an identifiable title or heading, classification guidance covering the information involved. The guidance shall conform to the requirements contained in § 159a.17.
(d)
(1) Each DoD Component shall establish procedures whereby holders of classified information may challenge the decision of the classifier.
(2) Challenges to classification made under this subsection shall include sufficient description of the information being challenged to permit identification of the information and its classifier with reasonable effort. Challenges to classification shall also include the reason or reasons why the challenger believes that the information is classified improperly or unnecessarily.
(3) Challenges received under this subsection shall be acted upon within 30 days of receipt. The challenger shall be notified of any changes made as a result of the challenge or the reasons why no change is made.
(4) Pending final determination of a challenge to classification, the information or document in question shall be safeguarded as required for the level of classification initially assigned.
(5) The fact that an employee or military member of the Department of Defense has issued a challenge to classification shall not in any way result in or serve as a basis for adverse personnel action.
(6) The provisions of this paragraph do not apply to or affect declassification review actions undertaken under the mandatory review requirements of § 159a.26 of this part or under the provisions of 32 CFR part 285.
(a)
(b)
(c)
(1) Military plans, weapons, or operations;
(2) Vulnerabilities or capabilities of systems, installations, projects, or plans relating to the national security;
(3) Foreign government information;
(4) Intelligence activities including special activities, or intelligence sources or methods;
(5) Foreign relations or foreign activities of the United States;
(6) Scientific, technological, or economic matters relating to the national security;
(7) U.S. Government programs for safeguarding nuclear materials or facilities;
(8) Cryptology;
(9) A confidential source; or
(10) Other categories of information that are related to national security and that require protection against unauthorized disclosure as determined by the Secretary of Defense or Secretaries of the Military Departments. Recommendations concerning the need to designate additional categories of information that may be considered for classification shall be forwarded through channels to the appropriate Secretary for determination. Each such determination shall be reported promptly to the Director of Security Plans and Programs, ODUSD(P), for promulgation in an Appendix to this part and reporting to the Director, ISOO.
(d)
(e)
(2) Basic scientific research information not clearly related to national security may not be classified.
(3) A product of nongovernment research and development that does not incorporate or reveal classified information to which the producer or developer was given prior access may not be classified until and unless the government acquires a proprietary interest in the product. This prohibition does not affect the provisions of the Patent Secrecy Act of 1952.
(4) References to classified documents that do not reveal classified information may not be classified or used as a basis for classification.
(5) Classification may not be used to limit dissemination of information that is not classifiable under the provisions of E.O. 12356 or this part or to prevent or delay public release of such information.
(6) Information may be classified or reclassified after receiving a request for it under the Freedom of Information Act, the Privacy Act, or the mandatory review provisions of this part (§ 159a.26) if such classification is consistent with this part and is accomplished personally and on a document-by-document basis, except as provided in paragraph (e)(7) of this section, by the Secretary or Deputy Secretary of Defense, by the Secretaries or Under Secretaries of the Military Departments, by the senior official designated by each Secretary under § 5.3(a) of E.O. 12356, or by an official with original Top Secret classification authority.
(7) The Secretary of Defense and the Secretaries of the Military Departments may reclassify information previously declassified and disclosed, and they may classify unclassified information that has been disclosed, if they determine in writing that the information requires protection in the interest of national security and the information may reasonably be recovered. Any such reclassification or classification shall be reported to the DUSD(P) for subsequent reporting to the Director, ISOO.
(f)
(g)
(h)
(2) If mere knowledge of the existence of the item of equipment or object would compromise or nullify its national security advantage, its existence would warrant classification.
(i)
(j)
(k)
(1) The original classifying authority, upon learning that a loss or possible compromise of specific classified information has occurred, shall prepare a written damage assessment and;
(i) Reevaluate the information involved and determine whether (A) Its classification should be continued without change; (B) The specific information, or parts therof, should be modified to minimize or nullify the effects of the reported compromise and the classification retained; (C) Declassification, downgrading, or upgrading is warranted; and (D) Counter-measures are appropriate and feasible to negate or minimize the effect of the compromise.
(ii) Give prompt notice to all holders of such information when the determination is within categories (A), (C), or (D) of paragraph (k)(1)(i) of this section.
(2) Upon learning that a compromise or probable compromise has occurred, any official having original classification jurisdiction over related information shall reevaluate the related information and determine whether one of the courses of action enumerated in paragraph (k)(1)(i) of this section should be taken or, instead, whether upgrading of the related information is warranted. When such a determination is within categories (B), (C), or (D) of
(l)
(m)
(a)
(b)
(2) When it can be determined, a specific date or event for declassification shall be set by the original classification authority at the time the information is classified originally. Such dates or events shall be consistent with national security. Any event specified for declassification shall be an event certain to occur.
(3) Original classification authorities may not be able to predetermine a date or event for automatic declassification in which case they shall provide for the indefinite duration of classification.
(4) Information classified under predecessor orders and marked for declassification review shall remain classified until reviewed for declassification under the provisions of this part.
(c)
(a)
(2) Classification guides shall:
(i) Identify the information elements to be protected, using categorization to the extent necessary to ensure that the information involved can be identified readily and uniformly;
(ii) State which the classification designations (that is, Top Secret, Secret, or Confidential) applies to each element or category of information;
(iii) State declassification instructions for each element or category of information in terms of a period of
(iv) State any special public release procedures and foreign disclosure considerations.
(3) Each classification guide shall be approved personally and in writing by an official who:
(i) Has program or supervisory responsibility over the information or is the senior agency official designated by the Secretary of Defense or Secretaries of the Military Departments in accordance with § 5.3(a) of E.O. 12356; and
(ii) Is authorized to classify information originally at the highest level of classification prescribed in the guide.
(b)
(c)
(d)
(e)
(2) Classification guides issued before August 1, 1982, that are in current use must be updated to meet the requirements of paragraph (a)(2) of this section. Such updating shall be accomplished by the next biennial review. Converting previous declassification determinations directed by classification guides shall be accomplished in accordance with the following:
(i) Automatic declassification dates or events remain in force unless changed by competent authority in accordance with § 159a.16(c).
(ii) Dates for declassification review shall be changed to automatic declassification dates or provide for the indefinite duration of classification.
(f)
(2) Two copies of each approved classification guide and its changes shall be sent by the originator to the Administrator, Defense Technical Information Center (DTIC), Defense Logistic Agency, unless such guide is classified Top Secret, or covers SCI, or is determined by the approval authority of the guide to be too sensitive for automatic
(g)
(2) Any classification guide that because of classification considerations is not listed in accordance with paragraph (g)(1) of this section, shall be reported by the originator to the Director of Security Plans and Programs, ODUSD(P). The report shall include the title of the guide, its date, the classification of the guide, and identification of the originating activity. A separate classified list of such guides will be maintained. Report Control Symbol DD-POL(B&AR)1418 applies to this information collection system.
(a)
(b)
(c)
(d)
(a) Safeguard the information in the manner prescribed for the intended classification.
(b) Mark the information (or cover sheet) with the intended classification designation prescribed in § 159a.11;
(c) Transmit the information under appropriate safeguards to an appropriate classification authority for evaluation. The transmittal shall state that the information is tentatively marked to protect it in transit. If such authority is not readily identifiable, the information should be forwarded to a headquarters activity of a DoD Component, to the headquarters office having overall classification management responsibilities for a DoD Component, or to the DUSD(P). A determination whether to classify the information shall be made within 30 days of receipt;
(d) Upon decision by the classifying authority, the tentative marking shall be removed. If a classification is assigned, appropriate markings shall be applied; but
(e) In an emergency requiring immediate communication of the information, after taking the action prescribed by paragraphs (a) and (b) of this section transmit the information and then proceed in accordance with paragraph (c) of this section.
(a)
(b)
(1) If the patent application contains information that warrants classification, it shall be assigned a classification and be marked and safeguarded accordingly.
(2) If the patent application does not contain information that warrants classification, the following procedures shall be followed:
(i) A cover sheet (or cover letter for transmittal) shall be placed on the application with substantially the following language:
The attached material contains information on which secrecy orders have been issued by the U.S. Patent Office after determination that disclosure would be detrimental to national security (Patent Secrecy Act of 1952, 35 U.S.C. 181-188). Its transmission or revelation in any manner to an unauthorized person is prohibited by law. Handle as though classified CONFIDENTIAL (or such other classification as would have been assigned had the patent application been within the definition provided in § 159a.9(f)).
(ii) The information shall be withheld from public release; its dissemination within the Department of Defense shall be controlled; the applicant shall be instructed not to disclose it to any unauthorized person; and the patent application (or other document incorporating the protected information) shall be safeguarded in the manner prescribed for equivalent classified material.
(3) If filing of a patent application with a foreign government is approved under provisions of the Patent Secrecy Act of 1952 and agreements on interchange of patent information for defense purposes, the copies of the patent application prepared for foreign registration (but only those copies) shall be marked at the bottom of each page as follows:
Withheld under the Patent Secrecy Act of 1952 (35 U.S.C. 181-188). Handle as CONFIDENTIAL (or such other level as has been determined).
(c)
(2) If no prior access was given but the person or company conducting the independent research or development believes that protection may be warranted in the interest of national security, the person or company should safeguard the information in accordance with § 159a.19 and submit it to an appropriate DoD element for evaluation. The DoD element receiving such a request for evaluation shall make or obtain a determination whether a classification would be assigned if it were government information. If the determination is negative, the originator shall be advised that the information is unclassified. If the determination is affirmative, the DoD element shall make or obtain a determination whether a proprietary interest in the research and development will be acquired. If so, the information shall be assigned proper classification. If not, the originator shall be informed that there is no basis for classification and the tentative classification shall be canceled.
(d)
(a)
(1) Can be notified promptly of such action, and
(2) Are authorized access to the higher level of classification, or the information can be retrieved from those not authorized access to information at the contemplated higher level of classification.
(b)
(1) Makes the determination required for upgrading in paragraph (a) of this section;
(2) Determines that control of the information has not been lost by such communication and can still be prevented from being lost; and
(3) In the case of information released to secondary distribution centers, such as the DTIC, determines that no secondary distribution has been made and can still be prevented (see also § 159a.15(e) (6) and (7)).
(c)
(d)
(a)
(b)
(a)
(b)
(c)
(d)
(a)
(1) Provide guidance and assistance to National Archives and Records Administration (NARA) employees in identifying and separating documents and specific categories of information within documents that are deemed to require continued classification; and
(2) Refer doubtful cases to the DoD Component having classification jurisdiction over the information or material for resolution.
(b)
(c)
(2) All DoD classified information that is permanently valuable and in the possession or control of DoD Components, including that held in Federal Records Centers or other storage areas, may be reviewed systematically for declassification by the DoD Component exercising control of such information. Systematic declassification review conducted by DoD Components and personnel designated under paragraph (a) of this section shall proceed as follows:
(i) Information over which the Department of Defense exercises exclusive or final original classification authority and that under DoD Directive 5200.30, the responsible reviewer determines is to be declassified, shall be marked accordingly.
(ii) Information over which the Department of Defense exercises exclusive or final original classification authority that, after review, is determined to warrant continued protection shall remain classified as long as required by national security considerations.
(3) Classified information over which the Department of Defense does not exercise exclusive or final original classification authority encountered during DoD systematic review may not be declassified unless specifically authorized by the agency having classification jurisdiction over it.
(d)
(e)
(a)
(b)
(c)
(d)
(1) Requests shall be in writing and reasonably describe the information sought with sufficient particularity to enable the Component to identify documents containing that information, and be reasonable in scope; for example, the request does not involve such a large number or variety of documents as to leave uncertain the identity of the particular information sought.
(2) Requests shall be submitted to the Office of the Assistant Secretary of Defense (Public Affairs) (ASD(PA)) (entry point for OSD records), the Military Department, or other Component most concerned with the subject matter that is designated under 32 CFR part 285 to receive requests for records under the Freedom of Information Act. These offices are identified in appropriate parts of title 32 of the Code of Federal Regulations for each DoD Component.
(e)
(1) The designated office shall acknowledge receipt of the request. When a request does not satisfy the conditions of paragraph (d)(1) of this section, the requester shall be notified that unless additional information is provided or the scope of the request narrowed, no further action will be undertaken.
(2) DoD Component action upon the initial request shall be completed within 60 days (45 working days). If no determination has been made within 60 days (45 working days) of receipt of the request, the requester shall be notified of his right to appeal and of the procedures for making such an appeal.
(3) The designated office shall determine whether, under the declassification provisions of this part, the requested information may be declassified, and, if so, make such information available to the requester, unless withholding is otherwise warranted under applicable law. If the information may not be released in whole or in part, the requester shall be given a brief statement as to the reasons for denial, notice of the right to appeal the determination within 60 days (45 working days) to a designated appellate authority (including name, title, and address of such authority), and the procedures for such an appeal.
(4) When a request is received for information classified by another DoD Component or an agency outside the Department of Defense, the designated office shall:
(i) Forward the request to such DoD Component or outside agency for review together with a copy of the document containing the information requested, when practicable and when appropriate, with its recommendation to withhold any of the information;
(ii) Notify the requester of the referral unless the DoD Component or outside agency to which the request is referred objects to such notice on grounds that its association with the information requires protection; and
(iii) Request, when appropriate, that the DoD Component or outside agency notify the referring office of its determination.
(5) If the request requires the rendering of services for which fees may be charged under title 5 of the Independent Offices Appropriation Act in accordance with DoD Instruction 7230.7
(6) A requester may appeal to the head of a DoD Component or designee whenever that DoD Component has not acted on an initial request within 60 days or the requester has been notified that requested information may not be released in whole or in part. Within 30 days after receipt, an appellate authority shall determine whether continued classification of the requested information is required in whole or in part, notify the requester of its determination, and make available to the requester any information determined to be releasable. If continued classification is required under this part, the requester shall be notified of the reasons therefor. If so requested, an appellate authority shall communicate its determination to any referring DoD Component or outside agency.
(7) The ASD(PA) shall act as appellate authority for all appeals regarding OSD, OJCS, and Unified Command records.
(f)
(g)
(h)
(a)
(b)
(c)
(a)
(b)
(a)
(b)
(c)
(a)
(b)
(c)
(2) Classified documents and material shall be marked in accordance with paragraph (d) of this section unless the markings themselves would reveal a confidential source or relationship not otherwise evident in the document, material, or information.
(3) The marking requirements of paragraph (d) (1)(iv) and (2)(iv) of this section do not apply to documents or other material that contain, in whole or in part, Restricted Data or Formerly Restricted Data information. Such documents or other material or portions thereof shall not be declassified without approval of the Department of Energy with respect to Restricted Data or Formerly Restricted Data information, and with respect to any other national security information contained therein, the approval of the originating agency.
(d)
(i) The identity of the original classification authority by position title, unless he or she is the signer or approver of the document;
(ii) The agency and office of origin;
(iii) The overall classification of the document;
(iv) The date or event for automatic declassification or the notation “Originating Agency's Determination Required” or “OADR”; and, if applicable,
(v) Any downgrading action to be taken and the date or event thereof.
(2) At the time of derivative classification, the following shall be shown on the face of all derivatively classified documents or clearly associated with other forms of classified information in a manner appropriate to the medium involved:
(i) The source of classification, that is, a source document or classification guide. If classification is derived from more than one source, the phrase “Multiple Sources” will be shown and the identification of each source will be maintained with the file or record copy of the document;
(ii) The agency and office of origin of the derivatively classified document;
(iii) The overall classification of the document;
(iv) The date or event for declassification or the notation “Originating Agency's Determination Required” or “OADR,” carried forward from the classification source. If the classification is derived from multiple sources, either the most remote date or event for declassification marked on the sources or if required by any source, the notation “Originating Agency's Determination Required” or “OADR” shall be shown; and, if applicable,
(v) Any downgrading action to be taken and the date or event thereof.
(3) In addition to the foregoing, classified documents shall be marked as prescribed in § 159a.32, subpart L of this part, if the document contains foreign government information, and with any applicable special notation listed in § 159a.35. Such notations shall be carried forward from source documents to derivatively classified documents when appropriate. Provides illustrated guidance on the application of classification and associated markings to documents prepared by the Department of Defense.
(4) Material other than paper documents shall show the required information on the material itself or if that is not practical, in related or accompanying documentation.
(e)
(i) If all information in a document or material is classified as an act of original classification, the classification authority who made the determination shall be identified on the “Classified by” line, unless the classifier is also the signer or approver of the document.
(ii) If the classification of all information in a document or material is derived from a single source (for example, a source document or classification guide), the “Classified by” line shall identify the source document or classification guide, including its date when necessary to insure positive identification.
(iii) If the classification of information contained in a document or material is derived from more than one original classification authority, or an original classification authority and another source, or from more than one source document, classification guide, or combination thereof, the “Classified by” line shall be marked “Multiple Sources” and identification of all such authorities and sources shall be maintained with the file or record copy of the document.
(iv) If an official with requisite classification authority has been designated by the head of an activity to approve security classifications assigned to all information leaving the activity, the title of that designated official shall be shown on the “Classified
(2) Guidance concerning the identification of the classification authority on electronically transmitted messages is contained in § 159a.32(h).
(3) Guidance concerning the identification of the classification authority on DoD documents that contain only foreign or NATO classified information is contained in § 159a.77(d).
(f)
(a)
(b)
(c)
(2) Portion marking of DoD documents containing foreign government information shall be in accordance with § 159a.77(d).
(3) Illustrations, photographs, figures, graphs, drawings, charts and similar portions of classified documents will be clearly marked to show
(4) If, in an exceptional situation, parenthetical portion marking is determined to be impracticable, the document shall contain a statement sufficient to identify the information that is classified and the level of such classification. Thus, for example, each portion of a classified document need not be marked separately if all portions are classified at the same level, provided a statement to that effect is included in the document. In the case of classified compilations, the explanations required by paragraph (d) of this section meet this requirement.
(5) When elements of information in one portion require different classifications, but segregation into separate portions would destroy continuity or context, the highest classification required for any item shall be applied to that portion or paragraph.
(6) Waivers of the foregoing portion marking requirements may be granted for good cause. Any request by a DoD Component senior official for a waiver of portion marking requirements shall be submitted to the DUSD(P) and include the following:
(i) Identification of the information or class of documents for which such waiver is sought;
(ii) Detailed explanation of why the waiver should be granted;
(iii) The Component's judgment of the anticipated dissemination of the information or class of documents for which the waiver is sought, and
(iv) The extent to which such information subject to the waiver may be a basis for derivative classification. Waivers shall be granted only upon a written determination by the DUSD(P) as the designee of the Secretary of Defense, that there will be minimal circulation of the specified documents or information, and minimal potential usage of these documents or information as a source for derivative classification determinations; or there is some other basis to conclude that the benefits of portion marking are clearly outweighed by the increased administrative burdens. The granting and revocation of portion marking waivers shall be reported to the Director of the ISOO by the DUSD(P).
(d)
(2)
(e)
(f)
(g)
(h)
(2) The first item of information in the text of a classified electronically transmitted message shall be its overall classification. Paper copies of classified electronically transmitted messages shall be marked at the top and bottom with the assigned classification. Portions shall be marked as prescribed herein for paper copies of documents. When such messages are printed by an automated system, classification markings may be applied by that system, provided that page markings so applied are clearly distinguishable on the face of the document from the printed text.
(3) The originator of a classified electronically transmitted message shall be considered the accountable classifier under § 159a.15(a). The highest level official identified on the message as the sender or, in the absence of such identification, the head of the organization originating the message, is deemed to be the classifier of the message. Thus, a “Classified by” line is not required on such messages. The originator is responsible for maintaining adequate records as required by § 159a.31(d)(2) to show the source of an assigned derivative classification.
(4) The last line of text of a classified electronically transmitted message shall show the date or event for downgrading, if appropriate, and the date or event for automatic declassification or “Originating Agency's Determination Required,” by abbreviated markings from § 159a.34. The foregoing is not required for messages that contain information identified as Restricted Data or Formerly Restricted Data.
(5) Any document, the classification of which is based solely upon the classification of the content of a classified electronically transmitted message, shall cite the message on the “Classified by” line of the newly created document.
(i)
(a)
(b)
(c)
(1)
When self-processing film or paper is used to photograph or reproduce classified information, all parts of the last exposure shall be removed from the camera and destroyed as classified waste, or the camera shall be protected as classified.
(2)
(3)
(4)
(5)
(d)
(e)
(2)
(f)
(g)
(h)
(i)
(j)
(k)
(a)
(b)
(2) New material that derives its classification from information classified prior to August 1, 1982, shall be treated as follows:
(i) If the source material bears a declassification date or event, that date or event shall be carried forward to the new material;
(ii) If the source material bears no declassification date or event, or bears an indeterminate date or event such as “Upon Notification by Originator,” “Cannot Be Determined,” or “Impossible to Determine,” or is marked for declassification review, the new material shall be marked with the notation “Originating Agency's Determination Required” or “OADR”; or
(iii) If the source material is foreign government information bearing no date or event for declassification or is marked for declassification review, the new material shall be marked with the notation “Originating Agency's Determination Required” or “OADR.”
(3) New material that derives its classification from a classification guide issued prior to August 1, 1982, that has not been updated to conform with this Regulation shall be treated as follows:
(i) If the guide specifies a declassification date or event, that date or event shall be applied to the new material; or
(ii) If the guide specifies a declassification review date, the notation “Originating Agency's Determination Required” or “OADR” shall be applied to the new material.
(c)
(1)
Classified by
Declassify on
Message Abbreviation:
DECL
(2)
Classified by
Declassify on
Message Abbreviation:
DECL
(3)
Downgrade to
Message Abbreviation:
DNG/
(4) There is no requirement for adding declassification instructions on documents with Restricted Data or Formerly Restricted Data markings (see § 159a.31(b)(3) and § 159a.35 (a) and (b)). Except for electronically transmitted messages, only a completed “Classified by” line is added to documents so marked.
(5) Electronically transmitted messages do not require a “classified by” line (See § 159a.32(h)(3)).
(6) DoD 5200.1-PH provides additional marking guidance.
(d)
(e)
(2) When individual documents or materials are permanently withdrawn from storage units, they shall be remarked promptly as prescribed by paragraph (a) of this section. However, when documents or materials subject to a downgrading or declassification notice are withdrawn from one storage unit solely for transfer to another, or a storage unit containing such documents or materials is transferred from one place to another, the transfer may be made without remarking if the notice is attached to or remains with each shipment.
(a)
(2) When display of warning notices on other materials is not possible, their applicability to the information shall be included in the written notification of the assigned classification.
(b)
This material contains Restricted Data as defined in the Atomic Energy Act of 1954. Unauthorized disclosure subject to administrative and criminal sanctions.
(c)
Unauthorized disclosure subject to administrative and criminal sanctions. Handle as Restricted Data in foreign dissemination. Section 144.b, Atomic Energy Act, 1954.
(d)
(2) Existing stamps or preprinted labels containing the caveat “Warning Notice—Intelligence Sources and Methods Involved” may be used on documents created on or after the effective date of this part until replacement is required. Any replacement or additional stamps or labels purchased after the effective date of this part shall conform to the wording of paragraph (d)(1) of this section.
(e)
COMSEC Material—Access by Contractor Personnel Restricted to U.S. Citizens Holding Final Government Clearance.
(f)
Reproduction requires approval of originator or higher DoD authority.
Further dissemination only as directed by (insert appropriate office or official) or higher DoD authority.
(g)
(a)
(2) Documents and material classified under DoD C-5105.21-M-1
(b)
(a)
(b)
(c)
(1)
(i) A safe-type steel file container having a built-in, three-position, dial-type combination lock approved by the GSA or a Class A vault or vault type
(ii) An alarmed area, provided such facilities are adjudged by the local responsible official to afford protection equal to or better than that prescribed in paragraph (c)(1) (i) of this section. When an alarmed area is used for the storage of Top Secret material, the physical barrier must be adequate to prevent:
(A) Surreptitious removal of the material, and
(B) Observation that would result in the compromise of the material. The physical barrier must be such that forcible attack will give evidence of attempted entry into the area. The alarm system must provide immediate notice to a security force of attempted entry. Under field conditions, the field commander will prescribe the measures deemed adequate to meet the storage standards contained in paragraphs (c)(1)(i) and (ii) of this section.
(2)
(3)
(ii)
(4)
(i) When combination padlocks are used, the provisions of paragraph (e) of this section apply.
(ii) When key-operated high security padlocks are used, keys shall be controlled as classified information with classification equal to that of the information being protected and:
(A) A key and lock custodian shall be appointed to ensure proper custody and handling of keys and locks;
(B) A key and lock control register shall be maintained to identify keys for each lock and their current location and custody;
(C) Keys and locks shall be audited each month;
(D) Keys shall be inventoried with each change of custodian;
(E) Keys shall not be removed from the premises;
(F) Keys and spare locks shall be protected in a secure container;
(G) Locks shall be changed or rotated at least annually, and shall be replaced upon loss or compromise of their keys; and
(H) Master keying is prohibited.
(d)
(i) A current survey has been made of on-hand security storage equipment and classified records; and
(ii) Based upon the survey, it has been determined that it is not feasible to use available equipment or to retire, return, declassify or destroy enough
(2)
(3) Nothing in this subpart shall be construed to modify existing Federal Supply Class Management Assignments made under DoD Directive 5030.47.
(e)
(2)
(A) When placed in use;
(B) Whenever an individual knowing the combination no longer requires access;
(C) When the combination has been subject to possible compromise;
(D) At least annually; or
(E) When taken out of service. Built-in combination locks shall be reset to the standard combination 50-25-50; combination padlocks shall be reset to the standard combination 10-20-30.
(ii)
(iii)
(iv)
(3)
(f)
(1) A GSA-approved security container is considered to have been restored to its original state of security integrity if:
(i) All damaged or altered parts (for example, locking drawer, and drawer head) are replaced; or
(ii) When a container has been drilled immediately adjacent to or through the dial ring to neutralize a lock-out, the replacement lock is equal to the original equipment, and the drilled hole is repaired with a tapered, hardened tool-steel pin, or a steel dowel, drill bit, or bearing with a diameter slightly larger than the hole and of such length that when driven into the hole there shall remain at each end of the rod a shallow recess not less than
(2) GSA-approved containers that have been drilled in a location or repaired in a manner other than as described in paragraph (f)(1) of this section, will not be considered to have been restored to their original state of security integrity. The Test Certification Label on the inside of the locking drawer and the “General Services Administration Approved Security Container” label, if any, on the outside of the top drawer shall be removed from such containers.
(3) If damage to a GSA-approved security container is repaired with welds, rivets, or bolts that cannot be removed and replaced without leaving evidence of entry, the cabinet is limited thereafter to the storage of Secret and Confidential material.
(4) If the damage is repaired using methods other than those permitted in paragraphs (f) (1) and (3) of this section, use of the container will be limited to unclassified material and a notice to this effect will be permanently marked on the front of the container.
(a)
(2) Only the head of a DoD Component, or single designee at the headquarters and major command levels, may authorize removal of classified information from designated working areas in off-duty hours, for work at home or otherwise, provided that a GSA-approved security container is furnished and appropriate regulations otherwise provide for the maximum protection possible under the circumstances. (See also § 159a.55.) Any such arrangements approved before the effective date of this part shall be reevaluated and, if continued approval is warranted, compliance with this paragraph is necessary.
(b)
(1) Classified documents removed from storage shall be kept under constant surveillance and face down or covered when not in use. Cover sheets shall be Standard Forms 703, 704, and 705 for, respectively, Top Secret, Secret, and Confidential documents. (Use of these Standard Forms is required when existing supplies of similar purpose forms are exhausted or by September 30, 1986, whichever occurs earlier).
(2) Preliminary drafts, carbon sheets, plates, stencils, stenographic notes, worksheets, typewriter ribbons, and other items containing classified information shall be either destroyed immediately after they have served their purpose; or shall be given the same classification and secure handling as the classified information they contain.
(3) Destruction of typewriter ribbons from which classified information can be obtained shall be accomplished in the manner prescribed for classified working papers of the same classification. After the upper and lower sections have been cycled through and overprinted five times in all ribbon or typing positions, fabric ribbons may be treated as unclassified regardless of their classified use thereafter. Carbon and plastic typewriter ribbons and carbon paper that have been used in the production of classified information shall be destroyed in the manner prescribed for working papers of the same classification after initial usage. However, any ribbon in a typewriter that uses technology which enables the ribbon to be struck several times in the same area before it moves to the next position may be treated as unclassified.
(c)
(d)
(2) These emergency planning procedures do not apply to material related to COMSEC. Planning for the emergency protection including emergency destruction under no-notice conditions of classified COMSEC material shall be developed in accordance with the requirements of NSA KAG I-D.
(3) Emergency plans shall provide for the protection of classified material in a manner that will minimize the risk of injury or loss of life to personnel. In the case of fire or natural disaster, the immediate placement of authorized personnel around the affected area, preinstructed and trained to prevent the removal of classified material by unauthorized personnel, is an acceptable means of protecting classified material and reducing casualty risk. Such plans shall provide for emergency destruction to preclude capture of classified material when determined to be required. This determination shall be based on an overall commonsense evaluation of the following factors:
(i) Level and sensitivity of classified material held by the activity;
(ii) Proximity of land-based commands to hostile or potentially hostile forces or to communist-controlled countries;
(iii) Flight schedules or ship deployments in the proximity of hostile or potentially hostile forces or near communist-controlled countries;
(iv) Size and armament of land-based commands and ships;
(v) Sensitivity of operational assignment; and
(vi) Potential for aggressive action of hostile forces.
(4) When preparing emergency destruction plans, consideration shall be given to the following:
(i) Reduction of the amount of classified material held by a command as the initial step toward planning for emergency destruction;
(ii) Storage of less frequently used classified material at more secure commands in the same geographical area (if available);
(iii) Transfer of as much retained classified material to microforms as possible, thereby reducing the bulk that needs to be evacuated or destroyed;
(iv) Emphasis on the priorities for destruction, designation of personnel responsible for destruction, and the designation of places and methods of destruction. Additionally, if any destruction site or any particular piece of destruction equipment is to be used by more than one activity or entity, the order or priority for use of the site or equipment must be clearly delineated;
(v) Identification of the individual who is authorized to make the final determination when emergency destruction is to begin and the means by which this determination is to be communicated to all subordinate elements maintaining classified information;
(vi) Authorization for the senior individual present in an assigned space containing classified material to deviate from established plans when circumstances warrant; and
(vii) Emphasis on the importance of beginning destruction sufficiently early to preclude loss of material. The effect of premature destruction is considered inconsequential when measured against the possibility of compromise.
(5) The emergency plan shall require that classified material holdings be assigned a priority for emergency evacuation or destruction. Priorities should be based upon the potential effect on national security should such holdings
(i)
(ii)
(iii)
(6) If, as determined by appropriate threat analysis, Priority One material cannot otherwise be afforded a reasonable degree of protection from hostile elements in a no-notice emergency situation, provisions shall be made for installation of Anticompromise Emergency Destruct (ACED) equipment to ensure timely initiation and positive destruction of such material
(7) An ACED requirement is presumed to exist and provisions shall be made for an ACED system to protect Priority One material in the following environments:
(i) Shore-based activities located in or within 50 miles of potentially hostile countries, or located within or adjacent to countries with unstable governments;
(ii) Reconnaissance aircraft, both manned and unmanned, that operate within JCS-designated reconnaissance reporting areas (see Memorandum by the Secretary, Joint Chiefs of Staff (SM) 701-76, Volume II, “Peacetime Reconnaissance and Certain Sensitive Operations”;
(iii) Naval surface noncombatant vessels operating in hostile areas when not accompanied by a combatant vessel;
(iv) Naval subsurface vessels operating in hostile areas; and
(v) U.S. Navy Special Project ships (Military Sealift Command-operated) operating in hostile areas.
(8) Except in the most extraordinary circumstances, ACED is not applicable to commands and activities located within the United States. Should there be reason to believe that an ACED requirement exists in environments other than in those listed in paragraph (d)(7) of this section, a threat and vulnerability study should be prepared and submitted to the head of the DoD Component concerned or his designee for approval. The threat and vulnerability study should include, at a minimum, the following data, classified if appropriate:
(i) Volume and type of Priority One material held by the activity, that is, paper products, microforms, magnetic tape, and circuit boards.
(ii) A statement certifying that the amount of Priority One material held by the activity has been reduced to the lowest possible level;
(iii) An estimate of the time, beyond the time frames cited above, required to initiate irreversible destruction of Priority One material held by the activity, and the methods by which destruction of that material would be attempted in the absence of an ACED system;
(iv) Size and composition of the activity;
(v) Location of the activity and the degree of control it, or other United States authority, exercises over security; and
(vi) Proximity to potentially hostile forces and potential for aggressive action by such forces.
(9) When a requirement is believed to exist for ACED equipment not in the GSA or DoD inventories, the potential requirement shall be submitted to the
(10) In determining the method of destruction of other than Priority One material, any method specified for routine destruction or any other means that will ensure positive destruction of the material may be used. Ideally, any destruction method should provide for early attainment of a point at which the destruction process is irreversible. Additionally, classified material may be jettisoned at sea to prevent its easy capture. It should be recognized that such disposal may not prevent recovery of the material. Where none of the methods previously mentioned can be employed, the use of other means, such as dousing the classified material with a flammable liquid and igniting it, or putting to use the facility garbage grinders, sewage treatment plants, and boilers should be considered.
(11) Under emergency destruction conditions, destruction equipment may be operated at maximum capacity and without regard to pollution, preventive maintenance, and other constraints that might otherwise be observed.
(12) Commands and activities that are required to maintain an ACED system pursuant to paragraph (d)(7) of this section, shall conduct drills periodically to ensure that responsible personnel are familiar with the emergency plan. Such drills should be used to evaluate the anticipated effectiveness of the plan and the prescribed equipment and should be the basis for improvements in planning and equipment use. Actual destruction should not be initiated during drills.
(e)
(f)
(g)
(1) At a U.S. military installation, or a location where the United States enjoys extraterritorial status, such as an embassy or consulate.
(2) At a U.S. Government activity located in a building used exclusively by U.S. Government tenants, provided the building is under 24-hour control by U.S. Government personnel.
(3) At a U.S. Government activity located in a building not used exclusively by U.S. Government tenants nor under host government control, provided the classified material is stored in security containers approved by the GSA and is placed under 24-hour control by U.S. Government personnel.
(4) At a U.S. Government activity located in a building not used exclusively by U.S. Government tenants but which is under host government control, provided the classified material is stored in GSA-approved security containers which are further secured in a locked
(5) When host government and U.S. personnel are co-located, U.S. classified material that has not been authorized for release to the host government pursuant to DoD Directive 5230.11, shall, to the extent possible, be segregated from releasable classified material to facilitate physical control and prevent inadvertent compromise. However, U.S. classified material that is releasable to the host country need not be subject to the 24-hour U.S. control requirement provided the host government exercises its own control measures over the pertinent areas or containers during non-duty hours.
(6) Foreign nationals shall be escorted while in areas where nonreleasable U.S. classified material is handled or stored. However, when required by operational necessity, foreign nationals may be permitted, during duty hours, unescorted entry to such areas provided the nonreleasable information is properly stored or is under the direct personal supervision and control of cleared U.S. personnel who can prevent unauthorized access.
(a)
(2) The inspection program shall be implemented in a manner which does not interfere unduly with the performance of assigned missions.
(3) The inspection program shall be implemented in a manner which does not significantly disrupt the ingress and egress of persons who are employees of, or visitors to, defense installations and facilities.
(4) Inspections carried out under this program shall be limited to the extent feasible to areas where classified work is being performed, and cover only persons employed within, or visiting, such areas.
(5) Inspections carried out under this program shall be performed at a sufficient frequency to provide a credible deterrent to those who would be inclined to remove classified materials without authority from the installation or facility in question.
(6) The method and frequency of such inspections at a given installation or facility is at the discretion of the commander or head of the installation or facility, or other designated official. Such inspections shall conform to the procedures set forth in the following:
(i)
(B) Inspections may be accomplished at one or more designated entry/exit points; they need not be carried out at all entry/exit points at the same time.
(C) Inspections may be done on a random basis using any standard which may be appropriate, for example, every third person; every tenth person; every hundredth person, at the entry/exit point(s) designated.
(D) Inspections at a particular entry/exit point(s) may be limited as appropriate to various periods of time, for example, one week, one day, or one hour.
(E) Inspections shall be conducted at all entry/exit points after normal duty hours, including weekends and holidays, on a continuous basis, if practicable.
(b)
(2) DoD Components shall provide employees who have a legitimate need to remove classified material from the installation or activity with written or printed authorizations to pass through designated entry/exit points. (See § 159a.59(f)) This may include:
(i) The authorization statements prescribed in § 159a.59.
(ii) If authorized in Component instructions, wallet-size cards which describe in general terms the purpose(s) for authorizing the employee to remove classified material from the facility (for example, use at meetings or transmission to authorized recipients).
(3) Inspectors are to ensure that personnel are not removing classified material without authorization. Where inspectors determine that individuals do not appear to have appropriate authorization to remove classified material, they shall request such individual to obtain appropriate authorization before exiting the premises. If, due to the circumstances, this is not feasible, the inspector should attempt to verify by telephone the authority of the individual in question to remove the classified material with the employing office. When such verification cannot be obtained, and if removal cannot be prevented, the inspector shall advise the employing office and appropriate security office as soon as feasible that classified material was removed by the named individual at a particular time and without apparent authorization.
(4) If the employing office determines that classified material was removed by one of its employees without authority, it shall request an investigation of the circumstances of the removal by appropriate investigative authorities. Where such investigation confirms a violation of security procedures, other than espionage or deliberate compromise, for which § 159a.50 applies, appropriate administrative, disciplinary, or legal action shall be taken.
Compromise of classified information presents a threat to the national security. Once a compromise is known to have occurred, the seriousness of damage to U.S. interests must be determined and appropriate measures taken to negate or minimize the adverse effect of such compromise. When possible, action also should be taken to regain custody of the documents or material that were compromised. In all cases, however, appropriate action must be taken to identify the source and reason for the compromise and remedial action taken to ensure further compromises do not occur. The provisions of DoD Instruction 5240.4
(a) The procedures for handling compromises of cryptographic information are set forth in NACSI 4006 and implementing instructions.
(b) The procedures for handling compromises of SCI information are set forth in DoD TS-5105.21-M-2
(a) Any person who has knowledge of the loss or possible compromise of classified information shall immediately report such fact to the security manager of the person's activity (see § 159a.93(e)) or to the commanding officer or head of the activity in the security manager's absence.
(b) Any person who discovers classified information out of proper control shall take custody of such information and safeguard it in an appropriate manner, and shall notify immediately an appropriate security authority.
The immediate commander, supervisor, security manager, or other authority shall initiate a preliminary inquiry to determine the circumstances surrounding the loss or possible compromise of classified information. The preliminary inquiry shall establish one of the following:
(a) That a loss or compromise of classified information did not occur;
(b) That a loss or compromise of classified information did occur but the compromise reasonably could not be expected to cause damage to the national security. If, in such instances, the official finds no indication of significant security weakness, the report
(c) That the loss or compromise of classified information did occur and that the compromise reasonably could be expected to cause damage to the national security or that the probability of damage to the national security cannot be discounted. Upon this determination, the responsible official shall:
(1) Report the circumstances of the compromise to an appropriate authority as specified in DoD Component instructions;
(2) If the responsible official is the originator, take the action prescribed in § 159a.47; and
(3) If the responsible official is not the originator, notify the originator of the known details of the compromise, including identification of the classified information. If the originator is unknown, notification will be sent to the office specified in DoD Component instructions.
If it is determined that further investigation is warranted, such investigation will include the following:
(a) Identification of the source, date, and circumstances of the compromise.
(b) Complete description and classification of each item of classified information compromised;
(c) A thorough search for the classified information;
(d) Identification of any person or procedure responsible for the compromise. Any person so identified shall be apprised of the nature and circumstances of the compromise and be provided an opportunity to reply to the violation charged. If such person does not choose to make a statement, this fact shall be included in the report of investigation;
(e) An analysis and statement of the known or probable damage to the national security that has resulted or may result (See § 159a.15(k)), and the cause of the loss or compromise; or a statement that compromise did not occur or that there is minimal risk of damage to the national security;
(f) An assessment of the possible advantage to foreign powers resulting from the compromise; and
(g) A compilation of the data in paragraphs (a) through (f) of this section, in a report to the authority ordering the investigation to include an assessment of appropriate corrective, administrative, disciplinary, or legal actions. (Also see § 159a.100).
(a) The report of investigation shall be reviewed to ensure compliance with this part and instructions issued by DoD Components.
(b) The recommendations contained in the report of investigation shall be reviewed to determine sufficiency of remedial, administrative, disciplinary, or legal action proposed and, if adequate, the report of investigation shall be forwarded with recommendations through supervisory channels (See § 159a.98 and § 159a.99).
(c) Whenever an action is contemplated against any person believed responsible for the compromise of classified information, damage assessments shall be coordinated with the legal counsel of the DoD Component where the individual responsible is assigned or employed. Whenever a violation of criminal law appears to have occurred and a criminal prosecution is contemplated, the DoD Component responsible for the damage assessment shall apprise the General Counsel, Department of Defense. See § 159a.101.
The originator or an official higher in the originator's supervisory chain shall, upon receipt of notification of loss or probable compromise of classified information, take action as prescribed in § 159a.15(k).
Each DoD Component shall establish a system of controls and internal procedures to ensure that damage assessments are conducted when required and that records are maintained in a manner that facilitates their retrieval and use within the Component.
(a) Whenever a compromise involves the classified information or interests of more than one DoD Component or other agency, each such activity undertaking a damage assessment shall advise the others of the circumstances and findings that affect their information and interests. Whenever a damage assessment incorporating the product of two or more DoD Components or other agencies is needed, the affected activities shall agree upon the assignment of responsibility for the assessment.
(b) Whenever a compromise of U.S. classified information is the result of actions taken by foreign nationals, by foreign government officials, or by U.S. nationals employed by international organizations, the activity performing the damage assessment shall ensure, through appropriate intergovernmental liaison channels, that information pertinent to the assessment is obtained. Whenever more than one activity is responsible for the assessment, those activities shall coordinate the request prior to transmittal through appropriate channels.
Cases of espionage and deliberate unauthorized disclosure of classified information to the public shall be reported in accordance with DoD Instruction 5240.4 and DoD Directive 5210.50 and implementing issuances.
When an individual who has had access to classified information is on unauthorized absence, an inquiry as appropriate under the circumstances, to include consideration of the length of absence and the degree of sensitivity of the classified information involved, shall be conducted to detect if there are any indications of activities, behavior, or associations that may be inimical to the interest of national security. When such indications are detected, a report shall be made to the DoD Component counterintelligence organization.
(a)
(2) Because of the extreme importance to the national security of Top Secret information and information controlled within approved Special Access Programs, employees shall not be permitted to work alone in areas where such information is in use or stored and accessible by those employees. This general policy is an extra safeguarding measure for the nation's most vital classified information and it is
(b)
(1)
(2)
(3)
(4)
(ii) Contractor employees whose duties do not require access to classified information are not eligible for personnel security clearance and cannot be investigated under the DISP. In exceptional situations, when a military command is vulnerable to sabotage and its mission is of critical importance to national security, National Agency Checks may be conducted on such individuals with the approval of the DUSD(P).
(5)
(i) Makes a written determination that such access is clearly consistent with the interests of national security in view of the intended use of the material to which access is granted by certifying that the requester has been
(ii) Limits such access to specific categories of information over which that DoD Component has classification jurisdiction and to any other category of information for which the researcher obtains the written consent of a DoD Component or non-DoD department or agency that has classification jurisdiction over information contained in or revealed by documents within the scope of the proposed historical research;
(iii) Maintains custody of the classified material at a DoD installation or activity or authorizes access to documents in the custody of the NARA;
(iv) Obtains the researcher's agreement to safeguard the information and to submit any notes and manuscript for review by all DoD Components or non-DoD departments or agencies with classification jurisdiction for a determination that no classified information is contained therein by execution of a statement entitled, “Conditions Governing Access to Official Records for Historical Research Purposes”; and
(v) Issues an authorization for access valid for not more than 2 years from the date of issuance that may be renewed under regulations of the issuing DoD Component.
(6)
(i) Makes a written determination that such access is clearly consistent with the interests of national security in view of the intended use of the material to which access is granted and by certifying that the requester has been found to be trustworthy pursuant to paragraph (a)(1) of this section;
(ii) Limits such access to specific categories of information over which that DoD Component has classification jurisdiction and to any other category of information for which the former appointee obtains the written consent of a DoD Component or non-DoD department or agency that has classification jurisdiction over information contained in or revealed by documents with the scope of the proposed access;
(iii) Retains custody of the classified material at a DoD installation or activity or authorizes access to documents in the custody of the National Archives and Records Service; and
(iv) Obtains the former presidential appointee's agreement to safeguard the information and to submit any notes and manuscript for review by all DoD Components or non-DoD departments or agencies with classification jurisdiction for a determination that no classified information is contained therein.
(7)
(c)
(2) Access to COMSEC information by foreign persons and activities shall be in accordance with policy issuances of the National Telecommunications and Information Systems Security Committee (NTISSC).
(d)
(e)
(2) When the urgency or delicacy of a Federal Bureau of Investigation (FBI), Drug Enforcement Administration (DEA), or Secret Service investigation precludes use of established liaison or investigative channels, FBI, DEA, or Secret Service agents may obtain access to DoD information as required. However, this information shall be protected as required by its classification. Before any public release of the information so obtained the approval of the head of the activity or higher authority shall be obtained.
(f)
(1) Except when a continuing, frequent working relationship is established, through which current security clearance and need-to-know are determined, DoD personnel visiting other activities of the Department of Defense, its contractors, and other agencies shall provide advance notification of the pending visit that establishes the visitor's security clearance and the purpose of the visit. Visit requests shall be signed by an official other than the visitor who is in a position to verify the visitor's security clearance.
(2) Visit requests normally should include the following:
(i) Full name, date and place of birth, social security number, and rank or grade of visitor;
(ii) Security clearance of the visitor;
(iii) Employing activity of the visitor;
(iv) Name and address of activity to be visited;
(v) Date and duration of proposed visit;
(vi) Purpose of visit in sufficient detail to establish need-to-know; and
(vii) Names of persons to be contacted.
(3) Visit requests may remain valid for not more than 1 year.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(2) Top Secret information, whenever segregable from classified portions bearing lower classifications, shall be distributed separately.
(3) Standing distribution requirements for Top Secret information and materials, such as distribution lists, shall be reviewed at least annually to verify the recipients’ need-to-know.
(i)
(2) Standing distribution requirements for Secret and Confidential information and materials, such as distribution lists, shall be reviewed at least annually to verify the recipients’ need-to-know.
(j)
(k)
(l)
(1) Decentralized maintenance of disclosure listings, briefings concerning access limitations, and physical security restrictions limited to requirements such as placing the material in sealed envelopes within approved storage containers to avoid inadvertent disclosure and the commingling with other files;
(2) Using unclassified nicknames (no code words may be assigned to LIMDIS information);
(3) Marking the material as LIMDIS along with the assigned nickname;
(4) Marking inner envelopes containing designated LIMDIS information with the notation: “To be Opened Only By Personnel Authorized Access”;
(5) Requiring electronically transmitted messages containing designated information to be marked with the uniform caveat LIMDIS; and
(6) Prescribing unique oversight procedures to be accomplished by Component professional security personnel (industrial security inspections will be conducted in the normal manner by the Defense Investigative Service).
(a)
(1)
(2)
(A) Sufficient information to identify adequately the Top Secret document or material to include the title or appropriate short title, date of the document, and identification of the originator;
(B) The date the document or material was received;
(C) The number of copies received or later reproduced; and
(D) The disposition of the Top Secret document or material and all copies of such documents or material.
(ii)
(iii)
(3)
(4)
(5)
(b)
(1) It must provide a means to ensure that Secret material sent outside a major subordinate element (the activity) of the DoD Component concerned has been delivered to the intended recipient. Such delivery may be presumed where the material is sent electronically over secure voice or data circuits. Ensuring physical delivery may be accomplished by use of a receipt as provided in § 159.58(c)(2) or through hand-to-hand transfer when the receiving party acknowledges responsibility for the Secret material.
(2) It must provide a record of receipt and dispatch of Secret material by
(3) Records of receipt and dispatch for Secret material shall be retained for a minimum of 2 years.
(c)
(d)
(e)
(i) Dated when created;
(ii) Marked with the highest classification of any information contained therein;
(iii) Protected in accordance with the assigned classification;
(iv) Destroyed when no longer needed; and
(v) Accounted for, controlled, and marked in the manner prescribed for a finished document of the same classification when:
(A) Released by the originator outside the activity or transmitted electrically or through message center channels within the activity;
(B) Retained more than 90 days from date of origin;
(C) Filed permanently; or
(D) Top Secret information is contained therein.
(2) Heads of DoD Components, or their single designees, may approve waivers of accountability, control, and marking requirements for working papers containing Top Secret information for activities within their Components on a case-by-case basis provided a determination is made that:
(i) The conditions set forth in paragraph (e)(1)(v) (A), (B), or (C) of this section, will remain in effect;
(ii) The activity seeking a waiver routinely handles large volumes of Top Secret working papers and compliance with prescribed accountability, control, and marking requirements would have an adverse affect on the activity's mission or operations; and
(iii) Access to areas where Top Secret working papers are handled is restricted to personnel who have an appropriate level of clearance, and other safeguarding measures are adequate to preclude the possibility of unauthorized disclosure.
(3) In all cases in which a waiver is granted under paragraph (e)(2) of this section, the DUSD(P) shall be notified.
(f)
(1) Copying of documents containing classified information shall be minimized;
(2) Officials authorized to approve the reproduction of Top Secret and Secret information shall be designated by position title and shall review the need for reproduction of classified documents and material with a view toward minimizing reproduction.
(3) Specific reproduction equipment shall be designated for the reproduction of classified information. Rules for reproduction of classified information shall be posted on or near the designated equipment;
(4) Notices prohibiting reproduction of classified information shall be posted on equipment used only for the reproduction of unclassified information;
(5) DoD Components shall ensure that equipment used for reproduction of classified information does not leave latent images in the equipment or on other material;
(6) All copies of classified documents reproduced for any purpose including those incorporated in a working paper are subject to the same controls prescribed for the document from which the reproduction is made; and
(7) Records shall be maintained for 2 years to show the number and distribution of reproduced copies of all Top Secret documents, of all classified documents covered by special access programs distributed outside the originating agency, and of all Secret and Confidential documents that are marked with special dissemination and reproduction limitations.
(a)
(b)
(1) The Armed Forces Courier Service (ARFCOS);
(2) Authorized DoD Component Courier Services,
(3) If appropriate, the Department of State Courier System;
(4) Cleared and designated U.S. military personnel and Government civilian employees traveling on a conveyance owned, controlled, or chartered by the U.S. Government or DoD contractors;
(5) Cleared and designated U.S. Military personnel and government civilian employees by surface transportation;
(6) Cleared and designated U.S. Military personnel and government civilian employees on scheduled commercial passenger aircraft within and between the United States, its Territories, and Canada, when approved in accordance with § 159a.59(d)(1).
(7) Cleared and designated U.S. Military personnel and government civilian employees on scheduled commercial passenger aircraft on flights outside the United States, its territories, and Canada, when approved in accordance with § 159a.59(d)(2).
(8) Cleared and designated DoD contractor employees within and between the United States and its Territories provided that the transmission has been authorized in writing by the appropriate contracting officer or his designated representative, and the designated employees have been briefed on their responsibilities as couriers or escorts for the protection of Top Secret material. Complete guidance for Top Secret transmission is specified in DoD 5220.22-R and DoD 5220.22-M.
(9) A cryptographic system authorized by the Director, NSA, or via a protected distribution system designed and installed to meet the standards included in the National COMSEC and Emanations Security (EMSEC) Issuance System.
(c)
(1) Any of the means approved for the transmission of Top Secret information except that Secret information may be introduced into the ARFCOS only when the control of such information cannot be otherwise maintained in U.S. custody. This restriction does not apply to SCI and COMSEC information;
(2) Appropriately cleared contractor employees within and between the United States and its Territories provided that:
(i) The designated employees have been briefed in their responsibilities as couriers or escorts for protecting Secret information;
(ii) The classified information remains under the constant custody and protection of the contractor personnel at all times; and
(iii) The transmission otherwise meets the requirements specified in
(3) U.S. Postal Service registered mail within and between the United States and its Territories;
(4) U.S. Postal Service registered mail through Army, Navy, or Air Force Postal Service facilities outside the United States and its Territories, provided that the information does not at any time pass out of U.S. citizen control and does not pass through a foreign postal system or any foreign inspection;
(5) U.S. Postal Service and Canadian registered mail with registered mail receipt between U.S. Government and Canadian Government installations in the United States and Canada;
(6) Carriers authorized to transport Secret information by way of a Protective Security Service (PSS) under the DoD Industrial Security Program. This method is authorized only within the U.S. boundaries and only when the size, bulk, weight, and nature of the shipment, or escort considerations make the use of other methods impractical. Routings for these shipments will be obtained from the Military Traffic Management Command (MTMC);
(7) The following carriers under appropriate escort: government and government contract vehicles including aircraft, ships of the U.S. Navy, civil service-operated U.S. Naval ships, and ships of U.S. registry. Appropriately cleared operators of vehicles, officers of ships or pilots of aircraft who are U.S. citizens may be designated as escorts provided the control of the carrier is maintained on a 24-hour basis. The escort shall protect the shipment at all times, through personal observation or authorized storage to prevent inspection, tampering, pilferage, or unauthorized access. However, observation of the shipment is not required during the period it is stored in an aircraft or ship in connection with flight or sea transit, provided the shipment is loaded into a compartment that is not accessible to any unauthorized persons or in a specialized secure, safe-like container that is:
(i) Constructed of solid building material that provides a substantial resistance to forced entry;
(ii) Constructed in a manner that precludes surreptitious entry through disassembly or other means, and that attempts at surreptitious entry would be readily discernible through physical evidence of tampering; and
(iii) Secured by a numbered cable seal lock affixed to a substantial metal hasp in a manner that precludes surreptitious removal and provides substantial resistance to forced entry.
(8) Use of specialized containers aboard aircraft requires that:
(i) Appropriately cleared personnel maintain observation of the material as it is being loaded aboard the aircraft and that observation of the aircraft continues until it is airborne;
(ii) Observation by appropriately cleared personnel is maintained at the destination as the material is being off-loaded and at any intermediate stops. Observation will be continuous until custody of the material is assumed by appropriately cleared personnel.
(d)
(1) Means approved for the transmission of Secret information. However, U.S. Postal Service registered mail shall be used for Confidential only as indicated in paragraph (c)(2) of this section;
(2) U.S. Postal Service registered mail for:
(i) Confidential information of NATO;
(ii) Other Confidential material to and from FPO or APO addressees located outside the United States and its Territories;
(iii) Other addressees when the originator is uncertain that their location is within U.S. boundaries. Use of return postal receipts on a case-by-case basis is authorized.
(3) U.S. Postal Service first class mail between DoD Component locations anywhere in the United States and its Territories. However, the outer envelope or wrappers of such Confidential material shall be endorsed “POSTMASTER: Address Correction Requested/Do Not Forward.” Certified or,
(4) Within U.S. boundaries, commercial carriers that provide a Constant Surveillance Service (CSS). Information concerning commercial carriers that provide CSS may be obtained from the MTMC.
(5) In the custody of commanders or masters of ships of U.S. registry who are U.S. citizens. Confidential information shipped on ships of U.S. registry may not pass out of U.S. Government control. The commanders or masters must give and receive classified information receipts and agree to:
(i) Deny access to the Confidential material by unauthorized persons, including customs inspections, with the understanding that Confidential cargo that would be subject to customs inspection will not be unloaded; and
(ii) Maintain control of the cargo until a receipt is obtained from an authorized representative of the consignee.
(6) Such alternative or additional methods of transmission as the head of any DoD Component may establish by rule or regulation, provided those methods afford at least an equal degree of security.
(e)
(1) Classified material to be released directly to a foreign government representative shall be delivered or transmitted only to a person who has been designated in writing by the recipient government as its officer, agent, or employee (hereafter referred to as the designated representative). Foreign governments may designate a freight forwarder as their agent. This written designation shall contain assurances that such person has a security clearance at the appropriate level and that the person will assume full security responsibility for the material on behalf of the foreign government. The recipient will be required to execute a receipt for the material, regardless of the level of classification.
(2) Classified material that is suitable for transfer by courier or postal service, and which cannot be transferred directly to a foreign government's designated representative as specified in paragraph (e)(1) of this section, shall be transmitted by one of the methods specified in paragraph (b), (c), or (d) of this section, for the designated classification level to:
(i) An embassy, consulate, or other official agency of the recipient government having extraterritorial status in the United States, or to
(ii) A U.S. Embassy or a U.S. military organization in the recipient country or in a third-party country, if applicable, for delivery to a designated representative of the intended recipient government. In either case, the assurance in paragraph (e)(1) of this section, and a receipt, must be obtained.
(3) The shipment of classified material as freight via truck, rail, aircraft, or ship shall be in compliance with the following:
(i)
(ii)
(iii)
(A) An embassy, consulate, or other official agency under the control of the recipient government.
(B) Point of origin. When a designated representative of the recipient government accepts delivery of classified U.S. material at the point of origin (for example, a manufacturing facility or depot), the DoD official who transfers custody shall obtain a receipt for the classified material and assure that the recipient is cognizant or secure means of onward movement of the classified material to its final destination, consistent with the approved transportation plan.
(C) Military or commercial ports of embarkation (POE) that are recognized points of departure from the United States, its territories, or possessions, for onloading aboard a ship, aircraft, or other carrier authorized under paragraph (e)(3)(v) of this section. In these cases, the transportation plan shall provide for U.S.-controlled secure shipment to the CONUS transshipment point and the identification of a secure storage facility, government or commercial, at or in proximity to the POE. A DoD official authorized to transfer custody is to supervise or observe the onloading of FMS material being transported via the DTS and other onloading wherein physical and security custody of the material has yet to be transferred formally to the foreign recipient. In the event that transfer of physical and security custody cannot be accomplished promptly, the DoD official shall ensure that the classified material is either returned to a secure storage facility of the U.S. shipper (government or contractor); or segregated and placed under constant surveillance of a duly cleared U.S. security force at the POE; or held in the secure storage facility (government or commercial) designated in the transportation plan.
(D) Freight forwarder facility that is identified by the recipient government as its designated representative and that is cleared in accordance with paragraph (e)(3)(vi) of this section, to the level of the classified material to be received. In these cases, a person identified as a designated representative must be present to accept delivery of the classified material and receipt for it, to include full acceptance of security responsibility.
(iv)
(B)
(v)
(A) Owned or chartered by the U.S. Government or under U.S. registry,
(B) Owned or chartered by or under the registry of the recipient government, or
(C) Otherwise expressly authorized by the head of the DoD Component having classification jurisdiction over the material involved. Overseas shipments of classified material shall be escorted, prepared for shipment, packaged, and stored onboard as prescribed elsewhere in this subpart and in DoD 5220.22-R and DoD 5220.22-M.
(vi)
(f)
(1) Normally, select a carrier that will provide a single line service from the point of origin to destination, when such a service is available;
(2) Ship packages weighing less than 200 pounds in closed vehicles only;
(3) Notify the consignee, and military transshipping activities, of the nature of the shipment (including level of classification), the means of shipment, the number of seals, if used, and the anticipated time and date of arrival by separate communication at least 24 hours in advance of arrival of the shipment. Advise the first military transshipping activity that, in the event the material does not move on the conveyance originally anticipated, the transshipping activity should so advise the consignee with information of firm transshipping date and estimated time of arrival. Upon receipt of the advance notice of a shipment of classified material, consignees and transshipping activities shall take appropriate steps to receive the classified shipment and to protect it upon arrival.
(4) Annotate the bills of lading to require the carrier to notify the consignor immediately by the fastest means if the shipment is unduly delayed enroute. Such annotations shall not under any circumstances disclose the classified nature of the commodity. When seals are used, annotate substantially as follows:
DO NOT BREAK SEALS EXCEPT IN EMERGENCY OR UPON AUTHORITY OF CONSIGNOR OR CONSIGNEE. IF BROKEN APPLY CARRIER'S SEALS AS SOON AS
(5) Require the consignee to advise the consignor of any shipment not received more than 48 hours after the estmated time of arrival furnished by the consignor or transshipping activity. Upon receipt of such notice, the consignor shall immediately trace the shipment. If there is evidence that the classified material was subjected to compromise, the procedures set forth in subpart G of this part for reporting compromises shall apply.
(g)
(h)
(a)
(2) Whenever classified material is transmitted of a size not suitable for transmission in accordance with paragraph (a)(1) of this section, it shall be enclosed in two opaque sealed containers, such as boxes or heavy wrappings.
(i) If the classified information is an internal component of a packageable item of equipment, the outside shell or body may be considered as the inner enclosure provided it does not reveal classified information.
(ii) If the classified material is an inaccessible internal component of a bulky item of equipment that is not reasonably packageable, the outside or body of the item may be considered to be a sufficient enclosure provided the shell or body does not reveal classified information.
(iii) If the classified material is an item or equipment that is not reasonably packageable and the shell or body is classified, it shall be concealed with an opaque covering that will hide all classified features.
(iv) Specialized shipping containers, including closed cargo transporters, may be used instead of the above packaging requirements. In such cases, the container may be considered the outer wrapping or cover.
(3) Material used for packaging shall be of such strength and durability as to provide security protection while in transit, prevent items from breaking out of the container, and to facilitate the detection of any tampering with the container. The wrappings shall conceal all classified characteristics.
(4) Closed and locked vehicles, compartments, or cars shall be used for shipments of classified information except when another method is authorized by the consignor. Alternative methods authorized by the consignor must provide security equivalent to or better than the methods specified herein. In all instances, individual packages weighing less than 200 pounds gross shall be shipped only in a closed vehicle.
(5) To minimize the possibility of compromise of classified material caused by improper or inadequate packaging thereof, responsible officials shall ensure that proper wrappings are used for mailable bulky packages. Responsible officials shall require the inspection of bulky packages to determine whether the material is suitable for mailing or whether it should be transmitted by other approved means.
(6) When classified material is hand-carried outside an activity, a locked briefcase may serve as the outer wrapper. In such cases, the addressing requirements of paragraph (b)(4) of this section do not apply; however, the requirements of paragraph (b)(3) of this section are applicable.
(b)
(2) Classified written information shall be folded or packed in such a manner that the text will not be in direct contact with the inner envelope or container. A receipt form shall be attached to or enclosed in the inner envelope or container for all Secret and Top Secret information; Confidential information will require a receipt only if the originator deems it necessary. The mailing of written materials of different classifications in a single package should be avoided. However, when written materials of different classifications are transmitted in one package, they shall be wrapped in a single inner envelope or container. A receipt listing all classified information for which a receipt is requested shall be attached or enclosed. The inner envelope or container shall be marked with the highest classification of the contents.
(3) The inner envelope or container shall show the address of the receiving activity, classification, including, where appropriate, the “Restricted Data” marking, and any applicable special instructions. It shall be carefully sealed to minimize the possibility of access without leaving evidence of tampering.
(4) An outer or single envelope or container shall show the complete and correct address and the return address of the sender.
(5) An outer cover or single envelope or container shall not bear a classification marking, a listing of the contents divulging classified information, or any other unusual data or marks that might invite special attention to the fact that the contents are classified.
(6) Care must be taken to ensure that classified information intended only for U.S. elements of international staffs or other organizations is addressed specifically to those elements.
(c)
(2) Secret information shall be covered by a receipt when transmitted to a foreign government (including foreign government embassies located in the United States) and when transmitted between major subordinate elements of DoD Components and other authorized addressees except that a receipt is not required when there is a hand-to-hand transfer between U.S. personnel and the recipient acknowledges responsibility for the Secret information.
(3) Receipts for Confidential information are not required except when the information is transmitted to a foreign government (including foreign government embassies located in the United States) or upon request.
(4) Receipts shall be provided by the transmitter of the material and the forms shall be attached to the inner cover.
(i) Postcard receipt forms may be used.
(ii) Receipt forms shall be unclassified and contain only such information as is necessary to identify the material being transmitted.
(iii) Receipts shall be retained for at least 2 years.
(5) In those instances where a fly-leaf (page check) form is used with classified publications, the postcard receipt will not be required.
(d)
(a)
(1) The storage provisions of § 159a.37 and § 159a.38(g) of subpart F of this part shall apply at all stops enroute to the
(2) Classified material shall not be read, studied, displayed, or used in any manner in public conveyances or places.
(3) When classified material is carried in a private, public or government conveyance, it shall not be placed in any detachable storage compartment such as automobile trailers, luggage racks, aircraft travel pods, or drop tanks nor, under any circumstances, left unattended.
(4) Responsible officials shall provide a written statement to all individuals escorting or carrying classified material aboard commercial passenger aircraft authorizing such transmission. This authorization statement may be included in official travel orders and should ordinarily permit the individual to pass through passenger control points without the need for subjecting the classified material to inspection. Specific procedures for carrying classified documents aboard commercial aircraft are contained in paragraph (c) of this section.
(5) Each activity shall list all classified information carried or escorted by traveling personnel. All classified information shall be accounted for.
(6) Individuals authorized to hand-carry or escort classified material shall be fully informed of the provisions of this subpart, and shall sign a statement to that effect prior to the issuance of written authorization or identification media. This statement shall be retained for a minimum of 2 years; it need not be executed on each occasion that the individual is authorized to transport classified information provided a signed statement is on file.
(b)
(1) There is neither time nor means available to move the information in the time required to accomplish operational objectives or contract requirements.
(2) The handcarry has been authorized by an appropriate official in accordance with paragraph (d) of this section.
(3) In the case of the handcarry of classified information across international borders, arrangements have been made to ensure that such information will not be opened by customs, border, postal, or other inspectors, either U.S. or foreign.
(4) The handcarry is accomplished aboard a U.S. carrier. Foreign carriers will be utilized only when no U.S. carrier is available and then the approving official must ensure that the information will remain in the custody and physical control of the U.S. escort at all times.
(c)
(ii) The individual designated as courier shall be in possession of either DD Form 2, “Armed (or Uniformed) Services Identification Card” (any color), or other DoD or contractor picture identification card and written authorization to carry classified information.
(2)
(i) The classified information being carried shall contain no metal bindings and shall be contained in sealed envelopes. Should such envelopes be contained in a briefcase or other carry-on luggage, the briefcase or luggage shall be routinely offered for opening for inspection for weapons. The screening officials may check envelopes by X-ray machine, flexing, feel, and weight, without opening the envelopes themselves.
(ii) Opening or reading of the classified document by the screening official is not permitted.
(3)
(i) The government or contractor official who has authorized the transport of the classified information shall notify the appropriate air carrier in advance.
(ii) The passenger carrying the information shall report to the affected airline ticket counter before boarding, present his documentation, and the package or cartons to be exempt from screening. The airline representative will review the documentation and description of the containers to be exempt.
(iii) If satisfied with the identification of the passenger and his documentation, the official will provide the passenger with an escort to the screening station and authorize the screening personnel to exempt the container from physical or other type inspection.
(iv) If the airline official is not satisfied with the identification of the passenger or the authenticity of his documentation, the passenger will not be permitted to board, and not be subject to further screening for boarding purposes.
(v) The actual loading and unloading of the information will be under the supervision of a representative of the air carrier; however, appropriately cleared personnel shall accompany the material and keep it under surveillance during loading and unloading operations. In addition, appropriately cleared personnel must be available to conduct surveillance at any intermediate stops where the cargo compartment is to be opened.
(vi) DoD Components and contractor officials shall establish and maintain appropriate liaison with local FAA officials, airline representatives and airport terminal administrative and security officials. Prior notification is emphasized to ensure that the airline representative can make timely arrangements for courier screening.
(4)
(A) DoD personnel shall present an official identification issued by U.S. Government agency.
(B) Contractor personnel shall present identification issued by the contractor or the U.S. Government. Contractors’ identification cards shall carry the name of the employing contractor, or otherwise be marked to denote “contractor.”
(C) The courier shall have the original of the authorization letter. A reproduced copy is not acceptable; however, the traveler shall have sufficient authenticated copies to provide a copy to each airline involved. The letter shall be prepared on letterhead stationery of the agency or contractor authorizing the carrying of classified material in addition, the letter shall:
(
(
(
(
(
(
(
(ii) Information relating to the issuance of DoD identification cards is contained in DoD Instruction 1000.13
(iii) The Director, DIS, shall establish standards for the issuance of identification cards when required by contractor employees selected as couriers or whose duties will involve handcarrying of classified material.
(d)
(ii) The Director, DIS, may authorize contractor personnel to handcarry classified material in emergency or time-sensitive situations subject to adherence with the procedures and limitations specified in this section.
(2)
(i) The material is not present at the destination;
(ii) The material is needed urgently for a specified official purpose; and
(iii) There is a specified reason that the material could not be transmitted by other approved means to the destination in sufficient time for the stated purpose.
Documentary record information originated or received by a DoD Component in connection with the transaction of public business, and preserved as evidence of the organization, functions, policies, operations, decisions, procedures, or other activities of any U.S. Government department or agency or because of the informational value of the data contained therein, may be disposed of or destroyed only in accordance with DoD Component record management regulations. Nonrecord classified information, and other material of similar temporary nature, shall be destroyed when no longer needed under procedures established by the head of the cognizant DoD Component. These procedures shall incorporate means of verifying the destruction of classified information and material and be consistent with the following requirements.
Classified documents and material shall be destroyed by burning or, with the approval of the cognizant DoD Component head or designee, by melting, chemical decomposition, pulping, pulverizing, cross-cut shredding, or mutilation sufficient to preclude recognition or reconstruction of the classified information. (Strip shredders purchased prior to June 1, 1986 may continue to be used but only in circumstances where reconstruction of the residue is precluded. Shredding significant amounts of unclassified material together with classified material normally will meet this requirement.)
(a) Procedures shall be instituted that ensure all classified information intended for destruction actually is destroyed. Destruction records and imposition of a two-person rule, that is, having two cleared persons involved in the entire destruction process, will satisfy this requirement for Top Secret information. Imposition of a two-person
(b) When burn bags are used for the collection of classified material that is to be destroyed at central destruction facilities, such bags shall be controlled in a manner designed to minimize the possibility of their unauthorized removal and the unauthorized removal of their classified contents prior to actual destruction. When filled, burn bags shall be sealed in a manner that will facilitate the detection of any tampering with the bag.
(c) Procedures to ensure that all classified information intended for destruction actually is destroyed, other than those in paragraphs (a) and (b) of this section, shall be submitted to the DoD Component's senior official (§ 159a.93(b) and (c)) for approval.
(a) Records of destruction are required for Top Secret information. The record shall be dated and signed at the time of destruction by two persons cleared for access to Top Secret information. However, in the case of Top Secret information placed in burn bags for central disposal, the destruction record may be signed by the officials when the information is so placed and the bags are sealed. Top Secret burn bags shall be numbered serially and a record kept of all subsequent handling of the bags until they are destroyed. This record may be in lieu of actual burn bag receipts and shall be maintained for a minimum of 2 years.
(b) Records of destruction of Secret and Confidential information are not required except for NATO Secret and some limited categories of specially controlled Secret information. When records of destruction are used for Secret information, only one cleared person has to sign such records. (DoD Directive 5100.55 provides guidance on the destruction of NATO classified material.)
(c) Records of destruction shall be maintained for 2 years.
Waste material, such as handwritten notes, carbon paper, typewriter ribbons, and working papers that contains classified information must be protected to prevent unauthorized disclosure of the information. Classified waste shall be destroyed when no longer needed by a method described in § 159a.62. Destruction records are not required.
(a) Classified documents that are not permanently valuable records of the government shall not be retained more than 5 years from the date of origin, unless such retention is authorized by and in accordance with DoD Component record disposition schedules.
(b) Throughout the Department of Defense, the head of each activity shall establish at least one clean-out day each year where a portion of the work performed in every office with classified information stored is devoted to the destruction of unneeded classified holdings.
Heads of DoD Components shall establish security education programs for their personnel. Such programs shall stress the objectives of improving the protection of information that requires it. They shall also place emphasis on the balance between the need to release the maximum information appropriate under the Freedom of Information Act (32 CFR part 285) and the interest of the Government in protecting the national security.
The security education program shall include all personnel authorized or expected to be authorized access to classified information. Each DoD Component shall design its program to fit the requirements of different groups of personnel. Care must be exercised to assure that the program does not evolve into a perfunctory compliance with formal requirements without achieving
(a) Advise personnel of the adverse effects to the national security that could result from unauthorized disclosure and of their personal, moral, and legal responsibility to protect classified information within their knowledge, possession, or control;
(b) Indoctrinate personnel in the principles, criteria, and procedures for the classification, downgrading, declassification, marking, control and accountability, storage, destruction, and transmission of classified information and material, as prescribed in this Regulation, and alert them to the strict prohibitions against improper use and abuse of the classification system;
(c) Familiarize personnel with procedures for challenging classification descisions believed to be improper;
(d) Familiarize personnel with the security requirements of their particular assignment;
(e) Inform personnel of the techniques employed by foreign intelligence activities in attempting to obtain classified information, and their responsibility to report such attempts;
(f) Advise personnel of the penalties for engaging in espionage activities;
(g) Advise personnel of the strict prohibition against discussing classified information over an unsecure telephone or in any other manner that permits interception by unauthorized persons;
(h) Inform personnel of the penalties for violation or disregard of the provisions of this part (see § 159a.97(b));
(i) Instruct personnel that individuals having knowledge, possession, or control of classified information must determine, before disseminating such information, that the prospective recipient has been cleared for access by competent authority; needs the information in order to perform his or her official duties; and can properly protect (or store) the information.
DoD personnel granted a security clearance (see §159a.53) shall not be permitted to have access to classified information until they have received an initial security briefing and have signed Standard Form 189, “Classified Information Nondisclosure Agreement.” DoD 5200.1-PH-1
Programs shall be established to provide, at a minimum, annual security training for personnel having continued access to classified information. The elements outlined in § 159a.69 shall be tailored to fit the needs of experienced personnel.
(a) Personnel who have had access to classified information shall be given a foreign travel briefing, before travel, to alert them to their possible exploitation under the following conditions:
(1) Travel to or through communist-controlled countries; and
(2) Attendance at international scientific, technical, engineering or other professional meetings in the United States or in any country outside the United States where it can be anticipated that representatives of Communist-controlled countries will participate or be in attendance. (See also DoD Directive 5240.6
(b) Individuals who travel frequently, or attend or host meetings of foreign visitors as described in paragraph (a)(2) of this section, need not be briefed for each occasion, but shall be provided a thorough briefing at least once every 6 months and a general reminder of security responsibilities before each such activity.
(a) Upon termination of employment, administrative withdrawal of security clearance, or contemplated absence from duty or employment for 60 days or more, DoD military personnel and civilian employees shall be given a termination briefing, return all classified
(1) An acknowledgment that the individual has read the appropriate provisions of the Espionage Act, other criminal statutes, DoD regulations applicable to the safeguarding of classified information to which the individual has had access, and understands the implications thereof;
(2) A declaration that the individual no longer has any documents or material containing classified information in his or her possession;
(3) An acknowledgement that the individual will not communicate or transmit classified information to any unauthorized person or agency; and
(4) An acknowledgement that the individual will report without delay to the FBI or the DoD Component concerned any attempt by any unauthorized person to solicit classified information.
(b) When an individual refuses to execute a Security Termination Statement, that fact shall be reported immediately to the security manager of the cognizant organization concerned. In any such case, the individual involved shall be debriefed orally. The fact of a refusal to sign a Security Termination Statement shall be reported to the Director, Defense Investigative Service who shall assure that it is recorded in the Defense Central Index of Investigations.
(c) The security termination statement shall be retained by the DoD Component that authorized the individual access to classified information for the period specified in the Component's record retention schedules, but for a minimum of 2 years after the individual is given a termination briefing.
(a)
(2) Foreign government information that was not classified by a foreign entity but was provided with the expectation, expressed or implied, that the information, the source of the information, or both, are to be held in confidence must be classified by an original classification authority. The two-step procedure for classification prescribed in § 159a.15(c) does not apply to the classification of such foreign government information because E.O. 12356 states a presumption of damage to the national security in the event of unauthorized disclosure of such information. Therefore, foreign government information shall be classified at least Confidential, but higher whenever the damage criteria of § 159a.11 (b) or (c) are determined to be met.
(b)
(2) Foreign government information classified by the Department of Defense under this or previous regulations shall be protected for an indefinite period (see § 159a.77(e)).
(a)
(b)
(c)
(a)
(b)
(c)
(2) Certain foreign governments use a fourth classification designation as shown in the last column of Appendix A to this part. Such designations equate to the foreign classification RESTRICTED. If the foreign government documents are marked with any of the classification designations listed in the last column of Appendix A to this part, no other classification marking shall be applied. In all such cases, the notation, “This classified material is to be safeguarded in accordance with DoD 5200.1-R or DoD 5220.22-M,” shall be shown on the face of the document.
(3) Other marking requirements prescribed by this Regulation for U.S. classified documents are not applicable to documents of foreign governments or international organizations of governments.
(d)
(e)
(2) When foreign RESTRICTED or NATO RESTRICTED information is included in an otherwise unclassified DoD document, the DoD document shall be marked CONFIDENTIAL. All requirements of § 159a.31(d) apply to such documents. Portion markings on such a document include, for example “(U),” “(NR),” and “(FRG-R).” In addition, the appropriate caveat from paragraph (a) of this section, shall be included on the face of the document.
(3) The “Classified by” line of DoD documents containing only foreign government information normally shall be completed with the identity of the foreign government or international organization involved, for example, “Classified by Government of Australia” or “Classfied by NATO,” provided that other requirements of § 159a.31(e) do not pertain to such documents.
(4) The “Declassify on” line of DoD documents containing foreign government information normally shall be completed with the notation “Originating Agency's Determination Required” or “OADR” (see § 159a.36 and § 159a.75(b)).
(a)
(b)
(2) Foreign government information, unless it is NATO information, that is marked under § 159a.77(c)(2) or § 159a.77(e)(2) shall be protected as U.S. CONFIDENTIAL, except that such information may be stored in locked filing cabinets, desks, or other similar closed spaces that will prevent access by unauthorized persons.
It is the policy of the Department of Defense to use the security classification categories and the applicable sections of E.O. 12356 and its implementing ISOO Directive, to limit access to classified information on a “need-to-know” basis to personnel who have been determined to be trustworthy. It is further policy to apply the “need-to-know” principle in the regular system so that there will be no need to resort to formal Special Access Programs. Also, need-to-know control principles shall be applied within Special Access Programs. In this context, Special Access Programs may be created or continued only on specific showing that:
(a) Normal management and safeguarding procedures are not sufficient to limit “need-to-know” or access; and
(b) The number of persons who will need access will be reasonably small and commensurate with the objective of providing extra protection for the information invoved.
(a) Procedures for the establishment of Special Access Programs involving NATO classified information are based on international treaty requirements (see DoD Directive 5100.55).
(b) The policies and procedures for access to and dissemination of Restricted Data and Critical Nuclear Weapon Design Information are contained in DoD Directive 5210.2.
(c) Special Access Programs for foreign intelligence information under the cognizance of the Director of Central Intelligence, or those of the National Telecommunications and Information Systems Security Committee originate outside the Department of Defense. However, coordination with the DUSD(P) and the Component's central point of contact is necessary before the establishment or implementation of any such Programs by any DoD Component. The information required by § 159a.80(f)(1) will be provided.
(d) Excluding those Programs and that information specified in paragraphs (a)(1), (2), and (3) of this section, Special Access Programs shall be established within the Military Departments by:
(1) Submitting to the Secretary of the Department the information required under § 159a.80(f)(1).
(2) Obtaining written approval from the Secretary of the Department;
(3) Providing to the DUSD(P) notice of the approval; and
(4) Maintaining the information and rationale upon which approval was granted within the Military Department's central office.
(e) Excluding those Programs and that information in paragraphs (d)(1), (2), and (3) of this section, Special Access Programs that are desired to be established in any DoD Component other than the Military Departments shall be submitted with the information referred to in § 159a.80(f)(1) to the DUSD(P) for approval.
(f) Upon specific written notice to one of the appropriate DoD Special Access Program approval officials, receipt of their written concurrence, protective Special Access Program controls may be applied to a prospective Special Access Program for up to a 6-month period from the date of such notice. However, in all instances, the Program must be terminated as a prospective Special Access Program or formally approved as a Special Access Program by the end of the 6-month time period.
(g) Unless under DoD Directive S-5210.36
(a) Excluding those Programs specified in § 159a.81 (a), (b), or (c), each Special Access Program shall be reviewed annually by the DoD Component responsible for establishment of the Program. To accommodate such reviews, DoD Components shall institute procedures to ensure the conduct of annual security inspections, with or without prior notice, and regularly scheduled audits by security, contract administration, and audit organizations. Also, Program managers shall ensure that Special Access Program activities have undergone a current review by legal counsel for compliance with law, executive order, regulation, and national policy. To accomplish such reviews, specially cleared pools of attorneys may be utilized, but in all cases legal counsel shall be provided with all information necessary to perform such reviews.
(b) Special Access Programs, excluding those specified in § 159a.81 (a), (b), or (c), or those required by treaty or international agreement, shall terminate automatically every 5 years unless reestablished in accordance with the procedures contained in § 159a.81.
(a) Special Access Programs shall be controlled and managed in accordance with DoD Directive 5205.7
(1) The establishment of a Special Access Program as required by § 159a.81(d)(3); and
(2) Changes in Program status as required by § 159a.85 (b) or (c).
(b) Officials serving as single points of contact, as well as members of their respective staffs and other persons providing support to Special Access Programs who require access to multiple sets of particularly sensitive information, shall be subject to a counterintelligence-scope polygraph examination
Excluding those Programs specified in § 159a.81 (a), (b), and (c), each Special Access Program will be assigned a classified code word, or an unclassified nickname, or both. DoD Components other than Military Departments may request codewords and nicknames from the DUSD(P) individually or in block. If codewords or nicknames are obtained in block, however, the issuing Component shall promptly notify the DUSD(P) upon activitation and assignment.
(a)
(1) The responsible department, agency, or DoD Component, including office identification;
(2) The codeword and/or nickname of the Program;
(3) The relationship, if any, to other Special Access Programs in the Department of Defense or other government agencies;
(4) The rationale for establishing the Special Access Program including the reason why normal management and safeguarding procedures for classified information are inadequate;
(5) The estimated number of persons granted special access in the responsible DoD Component; other DoD Components; other government agencies; contractors; and the total of such personnel;
(6) A summary statement pertaining to the Program security requirements with particular emphasis upon those personnel security requirements governing access to Program information;
(7) The date of Program establishment;
(8) The estimated number and approximate dollar value, if known, of carve-out contracts that will be or are required to support the Program; and
(9) The DoD Component official who is the point of contact (last name, first name, middle initial; position or title; mailing address; and telephone number).
(10) A security plan and appropriate security classification guide and notification that a proper DD Form 254, “Contract Security Classification Specification,” has been issued to contractors participating in the Program.
(b)
(c)
Each of the central offices which must be identified in accordance with § 159a.83(a) shall maintain a complete
Access to data reported under this subpart shall be limited to the DUSD(P) and the minimum number of properly indoctrinated staff necessary to perform the functions assigned the DUSD(P) herein. Access may not be granted to any other person for any purpose without the approval of the DoD Components sponsoring the Special Access Programs concerned.
(a) The Secretaries of the Military Departments and the DUSD(P), or their designees, shall ensure that, in those Special Access Programs involving contractors, special access controls are made applicable by legally binding instruments.
(b) To the extent necessary for DIS to execute its security responsibilities with respect to Special Access Programs under its security cognizance, DIS personnel shall have access to all information relating to the administration of these Programs.
(c) Excluding those Programs specified in § 159a.81(c), the use of “carve-out” contracts that relieve the DIS from inspection responsibility under the Defense Industrial Security Program is prohibited unless:
(1) Such contract supports a Special Access Program approved and administered under § 159a.81;
(2) Mere knowledge of the existence of a contract or of its affiliation with the Special Access Program is classified information; and
(3) Carve-out status is approved for each contract by the Secretary of a Military Department, the Director, NSA, the DUSD(P), or their designees.
(d) Approval to establish a “carve-out” contract must be requested from the Secretary of a Military Department, or designee(s), the Director, NSA, or designee(s), or in the case of other DoD Components, from the DUSD(P). Approved “carve-out” contracts shall be assured the support necessary for the requisite protection of the classified information involved. The support shall be specified through a system of controls that shall provide for:
(1) A written security plan, oral waivers of which are prohibited except in critical situations that must be documented as soon as possible after the fact.
The plan must identify that DD Forms 254 have been distributed to the Defense Investigative Service as outlined in DoD Directive 5205.7.
(2) Professional security personnel at the sponsoring DoD Component performing security inspections at each contractor's facility which shall be conducted, at a minimum, with the frequency prescribed by paragraph 4-103 of DoD 5220.22-R;
(3) “Carve-out” contracting procedures;
(4) A central office of record; and
(5) An official to be the single point of contact for security control and administration. DoD Components other than the Military Departments and NSA shall submit such appropriate rationale and security plan along with requests for approval to the DUSD(P).
(e) An annual inventory of carve-out contracts shall be conducted by each DoD Component which participates in Special Access Programs.
(f) This subsection relates back to the date of execution for each contract to which carve-out contracting techniques are applied. The carve-out status of any contract expires upon termination of the Special Access Program which it supports.
(a) DUSD(P) shall conduct oversight reviews, as required, to determine compliance with this subpart.
(b) Pursuant to statutory authority, the Inspector General, Department of Defense, shall conduct oversight of Special Access Programs.
(a)
(b)
(c)
(2)
(i) Oversee DoD actions to ensure compliance with E.O. 12356 implementing directives, for example, the ISOO Directive No. 1 and this part;
(ii) Consider and take action on complaints and suggestions from persons within or outside the government with respect to the administration of the Information Security Program;
(iii) Report annually to the President through the NSC on the implementation of E.O. 12356;
(iv) Review this Regulation and DoD guidelines for systematic declassification review; and
(v) Conduct on-site reviews of the Information Security Program of each DoD Component that generates or handles classified information.
(3)
(4)
(a)
(2) The heads of DoD Components may approve waivers to the provisions of this part only as specifically provided for herein.
(3) The Director, NSA/Chief, Central Security Service, under 32 CFR part 159, is authorized to impose special requirements with respect to the marking, reproduction, distribution, accounting, and protection of and access to classified cryptologic information. In this regard, the Director, NSA, may approve waivers or exceptions to these special requirements. Except as provided in § 159a.6 the authority to lower any COMSEC security standards rests with the Secretary of Defense. Requests for approval of such waivers or exceptions to established COMSEC security standards which, if adopted, will have the effect of lowering such standards, shall be submitted to the DUSD(P) for approval by the Secretary of Defense.
(a)
(b)
(c)
(d)
(e)
(2) Activity heads shall ensure that officials appointed as security managers either possess, or obtain within a reasonable time after appointment, knowledge of and training in the Information Security Program commensurate with the needs of their positions. The Director of Security Plans and Programs, ODUSD(P) shall, with the assistance of the Director, Defense Security Institute, develop minimum standards for training of activity security managers. Such training should result in appropriate certifications to be recorded in the personnel files of the individuals involved.
(3) Activity heads shall ensure that officials appointed as security managers are authorized direct and ready access to the appointing official on matters concerning the Information Security Program. They also shall provide sufficient resources of time, staff, and funds to permit accomplishment of the security manager's responsibilities, to include meaningful oversight of the Information Security Program at all levels of the activity.
(a)
(a)
(b)
All personnel, civilian or military, of the Department of Defense are responsible individually for complying with the provisions of this part.
(a) DoD Military and civilian personnel are subject to administrative sanctions if they:
(1) Knowingly and willfully classify or continue the classification of information in violation of E.O. 12356, any implementing issuances, or this part.
(2) Knowingly, willfully, or negligently disclose to unauthorized persons information properly classified under E.O. 12356 or prior orders; or
(3) Knowingly and willfully violate any other provision of E.O. 12356, any implementing issuances or this part.
(b) Sanctions include but are not limited to a warning notice, reprimand, termination of classification authority, suspension without pay, forfeiture of pay, removal or discharge, and will be imposed upon any person, regardless of office or level of employment, who is responsible for a violation specified under this paragraph as determined appropriate under applicable law and DoD regulations. Nothing in this part prohibits or limits action under the Uniform Code of Military Justice based upon violations of that Code.
The Secretary of Defense, the Secretaries of the Military Departments, and the heads of other DoD Components shall ensure that appropriate and prompt corrective action is taken whenever a violation under § 159a.98(a) occurs or repeated administrative discrepancies or repeated disregard of requirements of this Regulation occur (see § 159a.100). Commanders and supervisors, in consultation with appropriate legal counsel, shall utilize all appropriate criminal, civil, and administative enforcement remedies against employees who violate the law and security requirements as set forth in this part and other pertinent DoD issuances.
Repeated administrative discrepancies in the marking and handling of classified information and material such as failure to show classification authority; failure to apply internal classification markings; failure to adhere to the requirements of this part that pertain to dissemination, storage, accountability, and destruction, and that are determined not to constitute a violation under § 159a.98(a) may be grounds for adverse administrative action including warning, admonition, reprimand or termination of classification authority as determined appropriate under applicable policies and procedures.
(a) Whenever a violation under § 159a.98(a)(2) occurs, the Director of Counterintelligence and Investigative Programs, ODUSD(P) shall be informed of the date and general nature of the occurrence including the relevent parts of this part, the sanctions imposed, and the corrective action taken. Whenever a violation under § 159a.98(a) (1) or (3) occurs, the Director of Security Plans and Programs, OSUSD(P) shall be provided the same information. Notification of such violations shall be furnished to the Director of the ISOO in accordance with § 5.4(d) of E.O. 12356 by the ODUSD(P).
(b) Any action resulting in unauthorized disclosure of properly classified information that constitutes a violation of the criminal statutes and evidence reflected in classified information of possible violations of Federal criminal law by a DoD employee and of possible violations by any other person of those Federal criminal laws specified in guidelines adopted by the Attorney General shall be the subject of a report processed in accordance with DoD Directive 5210.50 and DoD Instruction 5240.4.
(c) Any action reported under paragraph (b) of this section, shall be reported to the Attorney General by the General Counsel, Department of Defense.
(d) Reports shall be made to appropriate counterintelligence, investigative, and personnel security authorities
The Comptroller General, Deputy Comptroller General and Assistant Comptroller General and Assistants to the Comptroller General
The General Counsel and Deputy General Counsel
The Director and Deputy Director, Personnel; the Security Officer
The Director and Deputy Director, Office of Internal Review
The Director and Assistants to the Director of the Office of Program Planning and the Office of Policy
The Director and Deputy Directors of the Community and Economic Development Division
The Director, and Deputy Directors, Associate Directors, Deputy Associate Directors, Senior Group Directors, and the Assistant to the Director for Planning and Administration of the Energy and Minerals Division
The Director, Deputy Directors, Associate Directors and Division Personnel Security Officer of the Human Resources Division
The Directors, Deputy Directors, and Associate Directors, of the following Divisions:
Directors and Managers of International Division Overseas Offices as follows:
Regional Managers and Assistsant Regional Managers of the Field Operations Division's Regional Offices as follows:
a.
b.
(1)
(2)
(3)
c.
d.
a.
(1) A permanent record of all code words shall be maintained by the Joint Chiefs of Staff.
(2) The using Component shall account for available code words and maintain a record of each active code word. Upon being canceled, the using component shall maintain
b.
(1) Nicknames may be assigned to actual events, projects, movement of forces, or other nonexercise activities involving elements of information of any classification category, but the nickname, the description or meaning it represents, and the relationship of the nickname and its meaning must be unclassified. A nickname is not designed to achieve a security objective.
(2) Nicknames, improperly selected, can be counterproductive. A nickname must be chosen with sufficient care to ensure that it does not:
(a) Express a degree of bellicosity inconsistent with traditional American ideals or current foreign policy;
(b) Convey connotations offensive to good taste or derogatory to a particular group, sect, or creed; or,
(c) Convey connotations offensive to our allies or other Free World nations.
(3) The following shall not be used as nicknames:
(a) Any two-word combination voice call sign found in JANAP 119 or ACP 110. (However, single words in JANAP 119 or ACP 110 may be used as part of a nickname if the first word of the nickname does not appear in JANAP 299 and later volumes.)
(b) Combination of words including word “project,” “exercise,” or “operation.” (The word “project” often is used as the first or second word with an unclassified nickname originating outside the Department of Defense.)
(c) Words that may be used correctly either as a single word or as two words, such as “moonlight.”
(d) Exotic words, trite expressions, or well-known commercial trademarks.
(4) The Joint Chiefs of Staff shall:
(a) Establish a procedure by which nicknames may be authorized for use by DoD Components.
(b) Prescribe a method for the using Components to report nicknames used.
(5) The heads of DoD Components shall:
(a) Establish controls within their Components for the assignment of nicknames authorized under subparagraph 2.b.(4)(a), above.
(b) Under the procedures established, advise the Joint Chiefs of Staff of nicknames as they are assigned.
c.
(1) Unclassified exercise terms may be assigned only to tests, drills, or exercises for the purpose of emphasizing that the event is a test, drill, or exercise and not an actual operation. However, the description or meaning it represents, and the relationship of the exercise term and its meaning can be classified or unclassified. A classified exercise term is not authorized.
(2) Selection of exercise terms will follow the same guidance as contained in subparagraphs 2.b.(2) and (3), above.
(3) The Joint Chiefs of Staff shall:
(a) Establish a procedure by which exercise terms may be authorized for use by DoD Components.
(b) Prescribe a method for using Components to report exercise terms used.
(4) The heads of DoD Components shall:
(a) Establish controls within their Component for the assignment of exercise terms authorized under subparagraph 2.c.(3), above.
(b) Under the procedures established, advise the Joint Chiefs of Staff of exercise terms as they are assigned.
a. The DoD Component responsible for the development of a plan or the execution of an operation shall be responsible for determining whether to assign a code word.
b. Code words shall be activated for the following purposes only:
(1) To designate a classified military plan or operation;
(2) To designate classified geographic locations in conjunction with plans or operations referred to in subparagraph 3.b.(1), above; or,
(3) To cancel intentions in discussions and messages or other documents pertaining to plans, operations, or geographic locations referred to in subparagraphs 3.b.(1) and (2), above.
c. The using Component shall assign to a code word a specific meaning classified Secret or Confidential. Code words shall not be used to cover unclassified meanings. The assigned meaning need not in all cases be classified as high as the overall classification assigned to the plan or operation. Top Secret code words may be issued only with DUSD(P) or DoD Component head approval.
d. Code words shall be selected by each using Component in such manner that the word used does not suggest the nature of its meaning.
e. A code word shall not be used repeatedly for similar purposes; that is, if the initial phase of an operation is designated “Meaning,” succeeding phases shall not be designated “Meaning II” and “Meaning III,” but should have different code words.
f. Each DoD Component shall establish policies and procedures for the control and assignment of classified meanings to code words, subject to applicable rules set forth herein.
a. The using Component shall promptly notify the Joint Chiefs of Staff when a code
b. The using Component is responsible for further dissemination of active code words and meanings to all concerned activities, to include classification of each.
c. The using Component is responsible for notifying the Joint Chiefs of Staff of canceled code words. This cancellation report is considered final action, and no further reporting or accounting of the status of the canceled code word will be required.
a. During the development of a plan, or the planning of an operation by the headquarters of the using Component, the code word and its meaning shall have the same classification. When dissemination of the plan to other DoD Components or to subordinate echelons of the using Component is required, the using Component may downgrade the code words assigned below the classification assigned to their meanings in order to facilitate additional planning implementation, and execution by such other Components or echelons, but code words shall, at a minimum, be classified Confidential.
b. A code word which is replaced by another code word due to a compromise or suspected compromise, or for any other reason, shall be canceled, and classified Confidential for a period of 2 years, after which the code word will become unclassified.
c. When a plan or operation is discontinued or completed, and is not replaced by a similar plan or operation but the meaning cannot be declassified, the code word assigned thereto shall be canceled and classified Confidential for a period of 2 years, or until the meaning is declassified, whichever is sooner, after which the code word will become unclassified.
d. In every case, whenever a code word is referred to in documents, the security classification of the code word shall be placed in parentheses immediately following the code word, for example, “Label (C).”
e. When the meaning of a code word no longer requires a classification, the using Component shall declassify the meaning and the code word and return the code word to the available inventory.
a. The meaning of a code word may be used in a message or other document, together with the code word, only when it is essential to do so. Active code words may be used in correspondence or other documents forwarded to addresses who may or may not have knowledge of the meaning. If the context of a document contains detailed instructions or similar information which indicates the purpose or nature of the related meaning, the active code word shall not be used.
b. In handling correspondence pertaining to active code words, care shall be used to avoid bringing the code words and their meanings together. They should be handled in separate card files, catalogs, indexes, or lists, enveloped separately, and dispatched at different times so they do not travel through mail or courier channels together.
c. Code words shall not be used for addresses, return addresses, shipping designators, file indicators, call signs, identification signals, or for other similar purposes.
All code words formerly categorized as “inactive” or “obsolete” shall be placed in the current canceled category and classified Confidential. Unless otherwise restricted, all code words formerly categorized as “canceled” or “available” shall be individually declassified. All records associated with such code words may be disposed of in accordance with current practices, provided such records have been retained at least 2 years after the code words were placed in the former categories of “inactive,” “obsolete,” or “canceled.”
Nicknames or code words originating outside of the Department of Defense that are jointly used by the originating organization and the Department of Defense shall be registered with the DUSD(P) to prevent confusion with DoD-originated words.
The provisions of § 159a.57(e) of this part require that transmission instructions or a separate transportation plan be included with any contract, agreement or other arrangement involving the release of classified material to foreign entities. The transportation plan is to be submitted to and approved by applicable DoD authorities. As a minimum, the transportation plan shall include the following provisions:
a. A description of the classified material together with a brief narrative as to where and under what circumstances transfer of custody will occur;
b. Identification, by name or title, of the designated representative of the foreign recipient government or international organization who will receipt for and assume security responsibility for the U.S. classified material (person(s) so identified must be cleared for access to the level of the classified material to be shipped);
c. Identification and specific location of delivery points and any transfer points;
d. Identification of commercial carriers and freight forwarders or transportation agents who will be involved in the shipping process, the extent of their involvement, and their security clearance status;
e. Identification of any storage or processing facilities to be used and, relative thereto, certification that such facilities are authorized by competent government authority to receive, store, or process the level of classified material to be shipped;
f. When applicable, the identification, by name or title, of couriers and escorts to be used and details as to their responsibilities and security clearance status;
g. Description of shipping methods to be used as authorized by the provisions of subpart I, together with the identification of carriers (foreign and domestic);
h. In those cases when it is anticipated that the U.S. classified material or parts thereof may be returned to the United States for repair, service, modification, or other reasons, the plan must require that shipment shall be via a carrier of U.S. or recipient government registry, handled only by authorized personnel, and that the applicable Military Department (for foreign military sales (FMS)) or Defense Investigative Service (for commercial sales) will be given advance notification of estimated time and place of arrival and will be consulted concerning inland shipment;
i. The plan shall require the recipient government or international organization to examine shipping documents upon receipt of the classified material in its own territory and advise the responsible Military Department in the case of FMS, or Defense Investigative Service in the case of commercial sales, if the material has been transferred enroute to any carrier not authorized by the transportation plan; and
j. The recipient government or international organization also will be required to inform the responsible Military Department or the Defense Investigative Service promptly and fully of any known or suspected compromise of U.S. classified material while such material is in its custody or under its cognizance during shipment.
5 U.S.C. 301; 10 U.S.C. 137.
This part establishes policy and procedures for the management and operation of the Department of Defense acquisition regulatory system.
The provisions of this part apply to the Office of the Secretary of Defense, the Organization of the Joint Chiefs of Staff, the Military Departments and the Defense Agencies. These provisions also apply to other Federal agencies that are directed by the Office of Federal Procurement Policy (OFPP), Office of Management and Budget, to comply with the provisions of this part.
(a)
(b)
(c)
(a)
(1) The DARS shall be managed as a system of integrated, coordinated policies and regulations, responsive to the needs of the Department of Defense and to the provisions of the Federal Procurement Regulatory System. Where feasible, the DARS will achieve uniform policies with the Federal Procurement Regulation.
(2) The Deputy Under Secretary of Defense for Research and Engineering (Acquisition Policy), OUSD/R&E, is responsible for the DARS and for the development and implementation of the necessary policy and procedures of the regulatory system.
(b)
(c)
(1)
(2)
(3)
(d)
(1) Council activities shall be conducted according to rules and procedures established by the Council Director within the policy guidance issued by the Director (Contracts and Systems Acquisition), OUSD/R&E.
(2) The DARC shall consider all matters determined by the Council Director to be within the scope of the Council's responsibilities.
(3) Substantive changes to DARS policy and procedures may be proposed by submitting appropriate recommendations to include specific regulatory language to the Director (Contracts and System Acquisition), through the following officials. Proposed routine administrative changes may be submitted directly to the Council Director.
(i)
(ii)
(iii)
(4) The Council Director is authorized to establish working groups to support the Council in dealing with issues in specialized areas. The Council Director will request the participation of representatives with the required expertise from OSD staff elements, Military
(5) The Council Director is authorized to designate a Military Department of DLA to be the lead agency in developing a specific policy or procedure for the DARS. The Council Director shall make the assignment through the Policy member of the designated lead agency. The lead agency shall develop the proposed language for the DARS, complete the coordination requested by the Council Director, document nonconcurrences together with the position of the lead agency, and submit the completed action to the Council Director through the lead agency's Policy member. The procedure for accomplishing the task shall be determined by the lead agency. DOD activities shall provide support as requested by the lead agency.
(6) The Council Director shall establish schedules for the completion of each case before the Council based on the needs and urgency of the individual cases. Schedules shall require completion of the Council's action in a period not to exceed 120 days independent of industry coordination, except in specific cases where the Council Director determines an extended schedule is required. In such cases, the schedule will be approved by the Deputy Under Secretary of Defense (Acquisition Policy) or his designated representative.
(7) On matters of major policy or issues where a consensus of the Policy members has not been achieved after a reasonable period of debate, the Council Director shall present the Departmental and Agency positions to the Deputy Under Secretary (Acquisition Policy), or his designated representative for resolution after consultation with the appropriate senior officials of the Military Departments and DLA. The decision of the Deputy Under Secretary of Defense (Acquisition Policy), or his designated representative shall be implemented without further coordination.
(8) The Council Director shall require summary minutes of Council meetings to be maintained as a permanent record by the Executive Secretary. Minutes will clearly document the positions of the participating organizations on matters before the Council. The positions stated by other organizations shall be documented when in disagreement with the final decision.
(9) The Council Director shall report periodically to the Deputy Under Secretary of Defense (Acquisition Policy) on specific activities of the Council.
(e)
10 U.S.C. 136: E.O. 12367, 3 CFR, 1988 Comp., p. 566.
This part:
(a) Updates policy, responsibilities, procedures, and guidance for the PECI process under DoD Directive 5010.31.
(b) Authorizes the publication of DoD 5010.36 36-H-
This part.
(a) Applies to the Office of the Secretary of Defense (OSD); the Military Departments; Chairman, Joint Chiefs
(b) Encompasses the acquisition of equipment and facilities to improve the following:
(1) Productivity, quality, and processes of DoD Components including major facilities, equipment, or process modernization.
(2) Performance of individual jobs, tasks, procedures, operations, and processes.
(c) Encompasses PIF investments at appropriated and industrially funded activities, if they are not participating in the Defense Business Operations Fund. For industrially funded activities, projects may be submitted for PIF on an exception basis; primarily, this includes facilities, multi-function projects, prototypes, demonstrations, and cross-service initiatives. Investments at Government-owned, contractor-operated (GOCO) facilities are limited to those for which the Department of Defense has responsibility to provide equipment or facilities and from which productivity benefits can be recovered within existing contractual provisions.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(1)
(2)
(i)
(j)
(k)
(l)
(1)
(2)
(3)
(m)
It is DoD Policy that:
(a) The PECI program shall be an integral part of DoD Component investment planning and of the Defense Planning, Programming, and Budgeting System (PPBS) DoD Instruction 7045.7.
(b) PECI projects shall be selected to improve quality and productivity, or to reduce unit cost of outputs in defense operations. PECI projects shall be evaluated and approved for funding based on recognized principles of economic analysis. Each PECI project shall be subject to all restrictions established by public law, DoD policy, and other regulatory constraints.
(c) DoD personnel at all levels shall be encouraged to seek out and identify opportunities for quality and productivity improvement. Those efforts shall be supported by using the PECI as a means of financing the improvements. The PECI Program shall provide incentives for participation, supported by the financial management system and policies.
(d) Individuals or groups who successfully identify PECI opportunities that result in significant savings or improvements in quality or productivity or who aggressively promote PECI incentives within their organizations should be recognized through the DoD Incentive Awards Program, DoD Instruction 5120.16,
(e) Funds provided through FY 1993 from the centrally managed OSD PIF may not be reprogrammed for non-PIF purposes without prior approval of the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)). The Heads of DoD Components shall monitor obligation rates to ensure PIF projects are executed quickly. If project funding cannot be obligated within the specified fiscal year(s) for the type of funding, the Head of the DoD Component must reprogram PIF funds to alternate approved PIF projects. The PIF projects shall be monitored to ensure timely implementation and to validate savings through the amortization period. The PECIs are subject to audit as established by DoD Instruction 7600.2
(a) The Assistant Secretary of Defense (Force Management and Personnel (ASD (FM&P)) shall:
(1) Develop policies and guidance for the overall DoD PECI program.
(2) Maintain oversight of the PECI program to ensure implementation of this instruction. Through FY 1993 that oversight includes total process control and coordination of PIF actions to identify, select and approve, reprogram, and disapprove projects. Starting FY 1994 and ASD (FM&P) shall retain central oversight of the PECI program which is decentralized to the Components.
(3) Evaluate program results and training requirements and provide additional guidance, as necessary.
(4) Develop, maintain, and publish a DoD 5010.36-H consistent with DoD 5025.1-M
(5) Coordinate PECI efforts with the Heads of the DoD Components on matters that affect their particular areas of responsibility.
(6) Use the Defense Productivity Program Office (DPPO) to:
(i) Provide technical guidance and support for PECI efforts.
(ii) Monitor and evaluate DoD Component PECI efforts.
(iii) Ensure compliance with DoD Directive 7750.5
(b) The Inspector General of the Department of Defense (IG, DoD) shall provide policy and guidance for the audit of the PECI and incorporate the requirement for audit into audit planning and program documents.
(c) The Heads of the DoD Components shall:
(1) Develop and sustain a formal PECI program that:
(i) Emphasizes and encourages the improvement of day-to-day operations through PECI funding.
(ii) Provides motivation and opportunities for personnel, at all levels, to participate in the identification, documentation, and implementation of PECI proposals.
(iii) Includes PIF, PEIF, and CSI efforts, as appropriate.
(iv) Reviews and approves submitted projects, broadens project applicability when reasonable, applies off-the-shelf technology, and integrates capital investment planning into the PPBS.
(2) Designate an official to be the central point of contact (POC) who shall oversee and monitor the PECI program.
(3) Establish procedures ensuring that the policies contained in § 162.4, above, are adhered to.
The following procedures shall be followed by the DoD Components in the identification, documentation, selection, and financing of PECI projects:
(a) Document each PECI project to ensure that it is:
(1) A desirable action in accordance with the DoD Component's long-range planning and programing objectives, quality objectives, and customer and/or user satisfaction.
(2) Needed to perform and improve valid operations, functions, or services (as established by assigned missions and taskings) that cannot be performed as effectively or economically by other means, such as the use of existing facilities, methods, processes, or procedures.
(3) Justified on the basis of a valid economic analysis done in accordance with DoD Instruction 7041.3.
(4) Validated as to reasonableness, completeness, and correct appropriation.
(5) Classified properly as having savings or cost avoidance benefits
(b) Include resources for PECI in programming documents and budget submissions. The level of funding shall be established under quality and productivity plans and goals established by the Component.
(c) Use guidelines for project documentation, pre-investment analysis, financing, and post-investment accountability of PECI projects, when DoD 5010.36-H is published.
(d) Classify PECI projects for financing and aggregated reporting as follows:
(1)
(2)
(3)
(a) DoD Components shall submit to the ASD (FM&P), by December 15th of each year, an annual status report on all PECI programs as outlined in appendix A to this part. The DoD Components shall maintain the data at a central point to support reporting requirements.
(b) The Summary Report, “PECI Program Status,” is assigned Report Control Symbol FM&P (A) 1561, in accordance with DoD Directive 7750.5.
The PECI reporting requirements provide the OSD with summary information required to provide program accountability, and satisfy the congressional concerns on program management. Information may be submitted in memorandum, letter, or other acceptable form.
1.
a.
(1) A92BAxxxxxx
(a) “A” is for an Army project.
(b) “92” is for a FY92 project.
(c) “BA” is an Approved PIF project.
(d) “xxxxxx” is a DoD Component identifier.
(2) DoD Component PECI points of contact should establish identifiers to ensure each project is unique.
b.
c.
d.
e.
f.
2.
a.
b.
c.
d.
e.
3.
a.
b.
c.
d.
e.
4.
31 U.S.C. 9701.
This part updates policy to conform with Public Law 90-629, “Arms Export
(a) This part applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Unified and Specified Commands, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”).
(b) The provisions of this part do not apply to sales of excess property when accountability has been transferred to property disposal activities and the property is sold in open competition to the highest bidder.
(c) The policies and procedures provided for in this part shall apply to all sales on or after January 13, 1993, and supersede application thresholds and charges previously established. Previous versions continue to govern sales made during applicable effective dates. Such previously established nonrecurring cost recoupment thresholds and charges shall be eliminated or revised in accordance with this part.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(1) A new calculation shows a change of 30 percent of the current system nonrecurring cost charge.
(2) The nonrecurring cost unit charge increases or decreases by 50,000 dollars or more; or
(3) Where the potential for a 5 million dollars change in recoupment exists. The total collections may be estimated based on the projected sales quantities. When potential collections increase or decrease by 5 million dollars, a significant change occurs.
(i)
It is DoD policy that:
(a) A nonrecurring cost recoupment charge shall be imposed for sales of major defense equipment only as required by Act of Congress (e.g., Arms Export Control Act).
(b) The Under Secretary of Defense for Policy may grant a waiver to recoupment charges in accordance with § 165.7.
(c) Nonrecurring cost charges shall be based on the amount of the DoD nonrecurring investment in an item.
(a) The Comptroller of the Department of Defense shall provide necessary financial management guidance.
(b) The Under Secretary of Defense (Acquisition) shall take appropriate action to revise the DoD Federal Acquisition Regulation Supplement in accordance with this part.
(c) The Under Secretary of Defense for Policy shall:
(1) Monitor the application of this part.
(2) Review and approve nonrecurring cost recoupment charges and nonrecurring cost recoupment charge waiver requests received from foreign countries and international organizations for foreign military sales.
(3) Ensure publication of a listing of items developed for or by the Department of Defense to which nonrecurring cost recoupment charges are applicable.
(d) The Secretaries of the Military Departments and the Directors of the Defense Agencies shall:
(1) Determine the DoD nonrecurring investment in items developed for or by the Department of Defense and perform required pro rata calculations in accordance with this part and financial management guidance from the Comptroller of the Department of Defense.
(2) Validate and provide recommended charges to the Under Secretary of Defense for Policy. Supporting documentation will be retained until the item has been eliminated from the nonrecurring cost recoupment charge listing.
(3) Review approved nonrecurring cost recoupment charges on a biennial basis to determine if there has been a change in factors or assumptions used to compute a nonrecurring cost recoupment charge and, if there is a significant change in a nonrecurring cost recoupment charge, provide a recommended change to the Under Secretary of Defense for Policy.
(4) Collect charges on foreign military sales in accordance with DoD 7290.3-M,
(5) Deposit collections to accounts as prescribed by the Comptroller, DoD.
(6) Request guidance from the Under Secretary of Defense for Policy, within 90 days, if an issue concerning a recoupment charge cannot be resolved.
(a) The nonrecurring cost recoupment charge to be reimbursed shall be a pro rata recovery of nonrecurring cost for the applicable major defense equipment. Recovery of nonrecurring cost recoupment charges shall cease upon the recovery of total DoD costs. Such charges shall be based on a cost pool as defined in § 165.3. For a system that includes more than one component, a “building block” approach (i.e., the sum of nonrecurring cost recoupment charges for individual components) shall be used to determine the nonrecurring cost recoupment charge for the sale of the entire system.
(b) A nonrecurring cost recoupment charge shall not apply when a waiver has been approved by the Under Secretary of Defense for Policy in accordance with § 165.7 or when sales are financed with U.S. Government funds made available on a nonrepayable basis. Approved revised nonrecurring cost recoupment charges shall not be applied retroactively to accepted foreign military sales agreements.
(c) When major defense equipment are sold at a reduced price due to age or condition, the nonrecurring cost recoupment charge shall be reduced by the same percentage reduction.
(d) The full amount of “special” research, development, test, and evaluation and nonrecurring production costs incurred for the benefit of particular customers shall be paid by those customers. However, when a subsequent purchaser requests the same specialized features that resulted from the added “special” research, development, test, and evaluation and nonrecurring production costs, a pro rata share of those costs may be paid by the subsequent purchaser and transferred to the original customer if those special nonrecurring costs exceed 50 million dollars. The pro rata share may be a unit charge determined by the DoD Component as a result of distribution of the total costs divided by the total production. Such reimbursements shall not be collected after 10 years have elapsed since acceptance of DD Form 1513, “U.S. DoD Offer and Acceptance,” by the original customer, unless otherwise authorized by the Under Secretary of Defense for Policy. The U.S. Government shall not be charged any nonrecurring costs recoupment charge if it adopts the features for its own use or provides equipment with such features under a U.S. Grant Aid or similar program.
(e) For coproduction, codevelopment and cooperative development, or cooperative production DoD agreements, the policy set forth in this part shall determine the allocation basis for recouping from the third party purchasers the investment costs of the participants. Such DoD agreements shall provide for the application of the policies in this part to sales to third parties by any of the parties to the agreement and for the distribution of recoupments among the parties to the agreement.
(a) The “Arms Export Control Act,” Public Law No. 90-629, as amended, requires the recoupment of a proportionate amount of nonrecurring cost of major defense equipment from foreign military sales customers but authorizes consideration of reductions or waivers for particular sales which, if made, significantly advance U.S. Government interests and the furtherance of mutual defense treaties between the United States and certain countries.
(b) Requests for waivers should originate with the foreign government and shall provide information on the extent of standardization to be derived as a result of the waiver.
(c) Blanket waiver requests should not be submitted and shall not be considered. The term “blanket waiver” refers to a nonrecurring cost recoupment charge waiver that is not related to a particular sale; for example, waivers for all sales to a country or all sales of a weapon system.
(d) A waiver request shall not be considered for a sale that was accepted without a nonrecurring cost recoupment charge waiver, unless the acceptance was conditional on consideration of the waiver request.
(e) Requests for waivers shall be processed expeditiously, and a decision normally made to either approve or disapprove the request within 60 days after receipt. A waiver in whole or in part of the recoupment charge or a denial of the request shall be provided in writing to the appropriate DoD Component.
10 U.S.C. 2191.
This part:
(a) Establishes guidelines for the award of National Defense Science and Engineering Graduate (NDSEG) Fellowships, as required by 10 U.S.C. 2191.
(b) Authorizes, in accordance with 10 U.S.C. 2191 and consistent with DoD 5025.1, the publication of a regulation which will be codified at 32 CFR part 168b.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, and the Defense Agencies (hereafter referred to collectively as “DoD Components”).
(a) Sponsoring Agencies, in awarding NDSEG fellowships, shall award:
(1) Solely to U.S. citizens and nationals who agree to pursue graduate degrees in science, engineering, or other fields of study that are designated, in accordance with § 168a.5(b)(2), to be of priority interest to the Department of Defense.
(2) Through a nationwide competition in which all appropriate actions have been taken to encourage applications from members of groups (including minorities, women, and disabled persons) that historically have been underrepresented in science and engineering.
(3) Without regard to the geographic region in which the applicant lives or the geographic region in which the applicant intends to pursue an advanced degree.
(b) The criteria for award of NDSEG fellowships shall be:
(1) The applicant's academic ability relative to other persons applying in the applicant's proposed field of study.
(2) The priority of the applicant's proposed field of study to the Department of Defense.
(a) The Deputy Director, Defense Research and Engineering (Research and Advanced Technology) [DDDR&E(R&AT)], shall:
(1) Administer this part and issue DoD guidance, as needed, for NDSEG fellowships.
(2) Designate those DoD Components that will award NDSEG fellowships, consistent with relevant statutory authority.
(3) Issue a regulation in accordance with 10 U.S.C. 2191 and DoD 5025.1-M.
(b) The Heads of Sponsoring Agencies, or their designees, in coordination with a representative of the Deputy Director, Defense Research and Engineering (Research and Advanced Technology) [DDDR&E(R&AT)], shall:
(1) Oversee the nationwide competition to select NDSEG fellowship recipients.
(2) Determine those science, engineering and other fields of priority interest to the Department of Defense in which NDSEG fellowships are to be awarded.
(3) Prepare a regulation, in accordance with 10 U.S.C. 2191, that prescribes.
(i) Procedures for selecting NDSEG fellows.
(ii) The basis for determining the amounts of NDSEG fellowships.
(iii) The maximum NDSEG fellowship amount that may be awarded to an individual during an academic year.
5 U.S.C. 301 and 552 and Pub. L. 93-400.
This document:
(a) Revises 32 CFR part 169.
(b) Updates DoD policies and assigns responsibilities for commercial activities (CAs) as required by E.O. 12615, Pub. L. 100-180, sec. 1111, and OMB Circular A-76.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the Military Departments, and the Defense Agencies (hereafter referred to collectively as “DoD Components”).
(b) Encompasses DoD policy for CAs in the United States, its territories and possessions, the District of Columbia, and the Commonwealth of Puerto Rico.
(c) Is not mandatory for CAs staffed solely with DoD civilian personnel paid by nonappropriated funds, such as military exchanges. However, this part is mandatory for CAs when they are staffed partially with DoD civilian personnel paid by or reimbursed from appropriated funds, such as libraries, open messes, and other morale, welfare, and recreation (MWR) activities. When related installation support functions are being cost-compared under a single solicitation, a DoD Component may decide that it is practical to include activities staffed solely with DoD civilian personnel paid by nonappropriated funds.
(d) Does not apply to DoD governmental functions as defined § 169.3.
(e) Does not apply when contrary to law, Executive orders, or any treaty or international agreement.
(f) Does not apply in times of a declared war or military mobilization.
(g) Does not provide authority to enter into contracts.
(h) Does not apply to the conduct of research and development, except for severable in-house CAs that support research and development, such as those listed in enclosure 3 of DoD Instruction 4100.33
(i) Does not justify conversion to contract solely to avoid personnel ceilings or salary limitations.
(j) Does not authorize contracts that establish an employer-employee relationship between the Department of Defense and contractor employees, as described in FAR 37.104.
(a) Contract CA. A DoD CA managed by a DoD Component, but operated with contractor personnel.
(b) In-House CA. A DoD CA operated by a DoD Component with DoD personnel.
(a)
(b)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a) The
(1) Formulate and develop policy consistent with this part for the DoD CA program.
(2) Issue Instructions to implement the policies of this part.
(3) Maintain an inventory of in-house DoD CAs and the Commercial Activities Management Information System (CAMIS).
(4) Establish criteria for determining whether a CA is required to be retained in-house for national defense.
(5) Approve or disapprove core logistics waiver requests.
(b) The
(c) The
(1) Comply with this part and DoD Instruction 4100.33.
(2) Designate an official at the Military Service Assistant Secretary level, or equivalent, to implement this part.
(3) Establish an office as a central point of contact for implementing this part.
(4) Encourage and facilitate CA competitions.
(5) Delegate, as much as practicable, broad authority to installation commanders to decide how best to use the CA program to accomplish the mission. Minimally, as prescribed by P.L. 100-180, section 1111 and E.O. 12615, installation commanders shall have the authority and responsibility to carry out the following:
(i) Prepare an inventory each fiscal year of commercial activities carried out by Government personnel on the military installation in accordance with DoD Instruction 4100.33.
(ii) Decide which commercial activities shall be reviewed under the procedures and requirements of E.O. 12615, OMB Circular A-76, and DoD Instruction 4100.33. This authority shall not be applied retroactively. Cost comparisons and direct conversions initiated, as of December 4, 1987, shall be continued.
(iii) Conduct a cost comparison of those commercial activities selected for conversion to contractor performance under OMB Circular A-76.
(iv) To the maximum extent practicable, assist in finding suitable employment for any DoD employee displaced because of a contract entered into with a contractor for performance of a commercial activity on the military installation.
(6) Develop specific national defense guidance consistent with DoD Instruction 4100.33.
(7) Establish administrative appeal procedures consistent with DoD Instruction 4100.33.
(8) Ensure that contracts resulting from cost comparisons conducted under this part are solicited and awarded in accordance with the FAR and the DFARS.
(9) Ensure that all notification and reporting requirements established in DoD Instruction 4100.33 are satisfied.
(10) Ensure that the Freedom of Information Act Program is complied with in responding to requests for disclosure of contractor-supplied information obtained in the course of procurement.
(11) Ensure that high standards of objectivity and consistency are maintained in compiling and maintaining the CA inventory and conducting the reviews and cost comparisons.
(12) Provide, when requested, assistance to installation commanders to ensure effective CA program implementation and technical competence in management and implementation of the CA program.
(13) Ensure that maximum efforts are exerted to assist displaced DoD employees in finding suitable employment, to include, as appropriate:
(i) Providing priority placement assistance for other Federal jobs.
(ii) Training and relocation when these shall contribute directly to placement.
(iii) Providing outplacement assistance for employment in other sectors of the economy with particular attention to assisting eligible employees to exercise their right of first refusal with the successful contractor.
(14) Maintain the technical competence necessary to ensure effective and efficient management of the CA program.
(15) Ensure, once the cost comparison is initiated, that the milestones are met, and completion of the cost comparison is without unreasonable delay.
5 U.S.C. 301 and 552.
This part:
(a) Reissues DoD Instruction 4100.33
(b) Cancels DoD 4100.33-H,
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Defense Agencies and DoD Field Activities (hereafter referred to collectively as the “DoD Components”).
(b) Contains DoD procedures for CAs in the United States, its territories and possessions, the District of Columbia, and the Commonwealth of Puerto Rico.
(c) Is not mandatory for CAs staffed solely with DoD civilian personnel paid by nonappropriated funds, such as military exchanges. However, this part is mandatory for CAs when they are
(d) Does not apply to DoD governmental functions are defined in § 169a.3.
(e) Does not apply when contrary to law, Executive orders, or any treaty or international agreement.
(f) Does not apply in times of a declared war or military mobilization.
(g) Does not provide authority to enter into contracts.
(h) Does not apply to the conduct of research and development, except for severable in-house CAs that support research and development, such as those listed in appendix A to this part.
(i) Does not justify conversion to contract solely to avoid personnel ceilings or salary limitations.
(j) Doe not authorize contracts that establish employer-employee relations between the Department of Defense and contractor employees as described in the Federal Acquisition Regulation (FAR), 48 CFR 37.104.
(k) Does not establish and shall not be construed to create any substantive or procedural basis for anyone to challenge any DoD action or inaction on the basis that such action or inaction was not in accordance with this part except as specifically set forth in § 169a.15(d).
(a)
(b)
Services or products in support of Governmental functions such as those listed in enclosure 3 of DoD Instruction 4100.33 are normally subject to this part and its implementing instructions. Governmental functions normally fall into two categories:
(a) The act of governing; that is, the discretionary exercise of Governmental authority. Examples include criminal investigations, prosecutions, and other judicial functions; management of Governmental programs requiring value judgments, as in direction of the national defense; management and direction of the Armed Services; activities performed exclusively by military personnel who are subject to deployment in a combat, combat support, or combat service support role; conduct of foreign relations; selection of program priorities; direction of Federal employees; regulation of the use of space, oceans, navigable rivers, and other natural resources; direction of intelligence and counterintelligence operations; and regulation of industry and commerce, including food and drugs.
(b) Monetary transactions and entitlements, such as tax collection and revenue disbursements; control of the money supply treasury accounts; and the administration of public trusts.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(a) Information in each DoD Component's inventory shall be used to assess DoD implementation of OMB Circular A-76 and for other purposes. Each Component's inventory shall be updated at least annually to reflect changes to their review schedule and the results of reviews, cost comparisons, and direct conversions. Updated inventories for all DoD Components except National Security Agency/Central Security Service (NSA/CSS) and the Defense Intelligence Agency (DIA) Shall be submitted to the Assistant Secretary of Defense Production and Logistics) (ASD(P&L)) within 90 days after the end of each fiscal year. Inventory data pertaining to NSA/CSS and DIA shall be held at the specific Agency concerned for subsequent review by properly cleared personnel. Appendix A to this part provides the codes and explanations for functional areas and Appendix B to this part provides procedures for submitting the inventory.
(b) DoD component's review schedules should be coordinated with the DoD Component's Efficiency Review Program and the Defense Regional Interservice Support (DRIS) Program to preclude duplication of efforts and to make use of information already available.
(c) Review of CAs that provide interservice support shall be scheduled by the supplying DoD Component. Subsequent cost comparisons, when appropriate, shall be executed by the same DoD Component. All affected DoD Components shall be notified of the intent to perform a review.
(a) DoD components shall conduct reviews of in-house CAs in accordance with their established review schedules. Existing in-house CAs, once reviewed shall be retained in-house without a cost comparison only when certain conditions are satisfied. (Detailed documentation will be maintained to support the decision to continue in-house performance). These conditions are as follows:
(1)
(i) A CA, staffed with military personnel who are assigned to the activity, may be retained in-house for national defense reason when the following apply.
(A) The CA is essential for training or experience in required military skills;
(B) The CA is needed to provide appropriate work assignments for a rotation base for overseas or sea-to-shore assignments; or
(C) The CA is necessary to provide career progression to needed military skill levels.
(ii)
(iii) If the DoD Component has a larger number of similar CAs with a small number of essential military personnel in each CA, action shall be taken, when appropriate, to consolidate the military positions consistent with military requirements so that economical performance by either DoD civilian employees or by contract can be explored for accomplishing a portion of the work.
(iv) The DoD Components may propose to the ASD (P&L) other criteria for exempting CAs for national defense reasons.
(2)
(i) There is no satisfactory commercial source capable of providing the product or service that is needed. Before concluding that there is no satisfactory commercial source available, the DoD Component shall make all reasonable efforts to identify available sources.
(A) DoD Components’ efforts to find satisfactory commercial sources shall be carried out in accordance with the FAR and Defense FAR Supplement (DFAS) including review of bidders lists and inventories of contractors, consideration of preferential procurement programs, and requests for help from Government agencies such as the Small Business Administration.
(B) Where the availability of commercial sources is uncertain, the DoD Component will place up to three notices of the requirement in the
(ii) Use of a commercial source would cause an unacceptable delay or disruption of an essential program. In-house operation of a commercial activity on the basis that use of a commercial source would cause an unacceptable delay or disrupt an essential DoD program requires a specific documented explanation.
(A) The delay or disruption must be specific as to cost, time, and performance measures.
(B) The disruption must be shown to be a lasting or unacceptable nature. Temporary disruption caused by conversion to contract is not sufficient support for the use of this criteria.
(C) The fact that a DoD commercial activity involves a classified program, or is part of a DoD Component's basic mission, or that there is the possibility of a strike by contract employees is
(D) Use of an exemption due to an unacceptable delay or disruption of an essential program shall be approved by the DoD Component's central point of contact office. This authority may be redelegated.
(3)
When contract cost becomes unreasonable or performance becomes unsatisfactory, the requirement must be resolicited. If the DoD Component competes in the resolicitation, then a cost comparison of a contracted CA shall be performed in accordance with part III of the Supplement to OMB Circular A-76 (Office of Federal Procurement Policy pamphlet No. 4)
In cases where expansion of an in-house commercial activity is anticipated, a review of the entire commercial activity, including the proposed expansion, shall be conducted to determine if performance by DoD personnel is authorized for national defense reasons, because no commercial source is available, or because it is in the best interest of direct patient care. If performance by DoD personnel is not justified under these criteria, a cost comparison of the entire activity shall be performed. Government facilities and equipment normally will not be expanded to accommodate expansions if adequate and cost effective contractor facilities and equipment are available.
(a) In cases where a new requirement for a commercial product or service is anticipated, a review shall be conducted to determine if performance by DoD personnel is authorized for national defense reasons, because no commercial source is available, or because it is in the best interest of direct patient care. If performance by DoD personnel is not justified under these criteria, then the new requirement normally shall be performed by contract.
(b) If there is reason to believe that commercial prices may be unreasonable, a preliminary cost analysis shall be conducted to determine whether it is likely that the work can be performed in-house at a cost that is less than anticipated for contract performance. If in-house performance appears to be more economical, a cost comparison shall be scheduled. The appropriate conversion differentials will be added to the preliminary in-house cost before it is determined that in-house performance is likely to be more economical.
(c) Government facilities and equipment normally will not be expanded to accommodate new requirements if adequate and cost-effective contractor facilities are available. The requirement for Government ownership of facilities does not obviate the possibility of contract operation. If justification for in-house operation is dependent on relative cost, the cost comparison may be delayed to accommodate the lead time necessary for acquiring the facilities.
(d) Approval or disapproval of in-house performance of new requirements involving a capital investment of $500,000 or more will not be redelegated below the level of DAS or equivalent.
(e) Approval to budget for a major capital investment associated with a new requirement will not constitute OSD approval to perform the new requirement with DoD personnel. Government performance shall be determined in accordance with this part.
(a) When adequately justified under the criteria required in Appendix C to this part, CAs involving 11 to 45 DoD civilian employees may be competed based on simplified cost comparison procedures and 10 or fewer DoD civilian employees may be directly converted to contract without the use of a simplified cost comparison. Such conversion shall be approved by the DoD Component's central point of contact office having the responsibility for implementation of this part. Part IV of the Supplement to OMB Circular A-76 and Appendix C to this part shall be utilized to define the specific elements of costs to be estimated in the simplified cost comparison.
(b) In no case shall any CA involving more than forty-five employees be modified, reorganized, divided, or in any way changed for the purpose of circumventing the requirement to perform a full cost comparison.
(c) The decision to perform a simplified cost comparison on a CA involving military personnel and 11 to 45 DoD Civilian employees reflects a management decision that the work need not be performed in-house. Therefore, all direct military personnel costs will be estimated in the simplified cost comparison (see Appendix C to this part) on the basis of civilian performance.
(d) A most efficient and cost-effective organization analysis certification is required for studies involving 11 to 45 DoD civilian employees (see Appendix C to this part).
Commercial activities performed exclusively by military personnel not subject to deployment in a combat, combat support, or combat service support role may be converted to contract without a cost comparison, when adequate competition is available and reasonable prices can be obtained from qualified commercial sources.
(a) Signals Intelligence, Telecommunications (SIGINT) and Automated Information System (AIS) security.
(1) Before making a determination that an activity involving SIGINT as prescribed in Executive Order 12333, and AIS, security should be subjected to a cost comparison, the DoD Component shall specifically identify the risk to national security and complete a risk assessment to determine if the use of commercial resources poses a potential threat to national security. Information copies of the risk assessment and a decision memorandum containing data on the acceptable and/or unacceptable risk will be maintained within the requesting DoD Component's contracting office.
(2) The National Security Agency (NSA) considers the polygraph program an effective means to enhance security protection for special access type information. The risk to national security is of an acceptable level if contractor personnel assigned to the maintenance and operation of SIGINT, Computer Security (COMPUSEC) and Communications Security (COMSEC) equipment agree to an aperiodic counter-intelligence scope polygraph examination. The following clause should be included in every potential contract involving SIGINT, Telecommunications, and AIS systems:
(b)
(c)
(2) Contractors can perform functions in support of the Accountable Officer and functions where they are performing in accordance with criteria defined by the Government. For instance, contractors can process requisitions, maintain stock control records, perform storage and warehousing, and make local procurements of items specified as deliverables in the contract.
(3) The responsibility for administrative fund control must be retained in-house. The contractor can process all required paperwork up to funds obligation which must be done by the Government employee designated as responsible for funds control. The contractor can also process such documents as reports of survey and adjustments to stockage levels, but approval must rest with the Accountable Officer. In all cases, the administrative control of funds must be retained by the Government since contractors or their employees cannot be held responsible for violations of the United States Code.
(d)
(1)
(ii)
(iii)
(2)
(ii) Each DoD Component shall:
(A) Prepare PWSs that are based on accurate and timely historical or projected workload data and that provide measurable and verifiable performance standards.
(B) Monitor the development and use of prototype PWSs.
(C) Review and initiate action to correct disagreements on PWS discrepancies.
(D) Approve prototype PWSs for Component-wide use.
(E) Coordinate these efforts with the other DoD Components to avoid duplication and to provide mutual assistance.
(iii) Guidance on Government Property:
(A) For the purposes of this instruction, Government property is defined in accordance with the 48 CFR part 45.
(B) The decision to offer or not to offer Government property to a contractor shall be determined by a cost-benefit analysis justifying that the decision is in the government's best interest. The determination on Government property must be supported by current, accurate, complete information and be readily available for the independent reviewing activity. The design of this analysis shall not give a decided advantage or disadvantage to either in-house or contract competitors. The management of Government property offered to the contractor shall also be in compliance with 48 CFR part 45.
(iv) If a commercial activity provides critical or sensitive services, the PWS shall include sufficient data for the in-house organization and commercial sources to prepare a plan for expansion in emergency situations.
(v) DoD Components that provide interservice support to other DoD Components or Federal agencies through interservice support agreements or other arrangements shall ensure that the PWS includes this work load and is coordinated with all affected Dod Components and Federal Agencies.
(vi) If there is a requirement for the commercial source to have access to
(vii) Employees of commercial sources who do not require access to classified information for work performance, but require entry into restricted areas of the installation, may be authorized unescorted entry only when the provisions of DoD Regulation 5200.2-R
(3)
(i) The commercial activity management study is mandatory. Part III of the Supplement to OMB Circular No. A-76 provides guidance on how to conduct the management study. The study shall identify essential functions to be performed, determine performance factors, organization structure, staffing, and operating procedures for the most efficient and cost effective in-house performance of the commercial activity. The MEO becomes the basis of the Government estimate for the cost comparison with potential contractors. In this context, “efficient” (or cost-effective) means that the required level of workload (output, as described in the performance work statement) is accomplished with as little resource consumption (input) as possible without degradation in the required quality level of products or services.
(ii) DoD Components have formal programs and training for the performance of management studies, and those programs are appropriate for teaching how to conduct commercial activity management studies. Part III of the Supplement to OMB Circular No. A-76 does not purport to replace the DoD Component's own management techniques, but merely to establish the basic criteria and the interrelationship between the management study and the PWS.
(iii) If a commercial activity provides critical or sensitive services, the management study shall include a plan for expansion in emergency situations.
(iv) Early in the management study, management will solicit the views of the employees in the commercial activity under review, and/or their representatives for their recommendations as to the MEO or ways to improve the method of operation.
(v) The management study will be the basis on which the DoD Component certifies that the Government cost estimate is based on the most efficient and cost effective organization practicable.
(vi) Implementation of the MEO shall be initiated no later than 1 month after cancellation of the soliciation and completed within 6 months. DoD Components shall take action, within 1 month, to schedule and conduct a subsequent cost comparison when the MEO is not initiated and completed as prescribed above. Subsequent cost comparisons may be delayed by the DoD Component's central point of contact office, when situations outside the control of the DoD Component prevent timely or full implementation of the MEO. This authority may not be redelegated.
(vii) DoD Components shall establish procedures to ensure that the in-house operation, as specified in the MEO, is capable of performing in accordance with the requirements of the PWS. The procedures also shall ensure that the resources (facilities, equipment, and personnel) specified in the MEO are available to the in-house operation and that in-house performance remains
(viii) A management study is not required for simplified cost comparisons however, a MEO analysis and certification is required.
(4)
(i)
(B) Heads of DoD Components or their designees shall certify that the in-house cost estimate is based on the most efficient and cost-effective operation practicable. Such certification shall be made before the bid opening or the date for receipt of initial proposals.
(C) The ASD(P&L) shall provide inflation factors for adjusting costs for the first and subsequent performance periods. These factors shall be the only acceptable factors for use in cost comparisons. Inflation factors for outyear (second and subsequent) performance periods will not be applied to portions of the in-house estimate that are comparable with those portions of the contract estimate subject to economic price adjustment clauses.
(D) Military positions in the organization under cost comparison shall be converted to civilian positions for costing purposes. Civilian grades and series shall be based on the work described in the PWS and the MEO, determined by the management study rather than on the current organization structure.
(E) DoD Components shall not use the DLA Wholesale Stock Fund Rate and/or the DLA Direct Delivery rate for supplies and materials as reflected in paragraph 3.a. (1) and (2) of part IV of the Supplement to OMB Circular No. A-76. The current standard and pricing formula includes full cost under the Defense Business Operations Fund (DBOF). No further mark-up is required.
(F) DoD Components shall assume for the purpose of depreciation computations that residual value is equal to the disposal values listed in Appendix C of part IV of the Supplemental to OMB Circular No. 76 (Cost Comparison Handbook) if more precise figures are not available from the official accounting records or other knowledgeable authority. Therefore, the basis for depreciation shall be the original cost plus the cost of capital improvements (if any) less the residual value. The original cost plus the cost of capital improvements less the residual value shall be divided by the useful life (as projected for the commercial activity cost comparison) to determine the annual depreciation.
(G) Purchased services which augment the current in-house work effort and that are included in the PWS should be included in line 3 (other specifically attributable costs). When these purchased services are long-term and contain labor costs subject to economic price adjustment clauses, then the applicable labor portion will not be escalated by outyear inflation factors. In addition, purchased services shall be offset for potential Federal income tax revenue by applying the appropriate rate in Appendix D of part IV of the Supplement to OMB Circular A-76 (Cost Comparison Handbook) to total cost of purchased services.
(H) Overhead costs shall be computed only when such costs will not continue in the event of contract performance. This includes the cost of any position (full time, part time, or intermittent) that is dedicated to providing support
(ii)
(B) Standby costs are costs incurred for the upkeep of property in standby status. Such costs neither add to the value of the property nor prolong its life, but keep it in efficient operating condition or available for use. When an in-house activity is terminated in favor of contract performance and an agency elects to hold Government equipment and facilities on standby solely to maintain performance capability, this is a management decision, and such standby costs will not be charged to the cost of contracting.
(C) A specific waiver is required to use contract administration factors that exceed the limits established in Table 3-1 of part IV of the Supplement to OMB
(D) The following guidance pertains to one-time conversion costs:
(E)
If a cost-benefit analysis, as prescribed in § 169a.12(B)(iii), indicates that the retention of Government-owned facilities, equipment, or real property for use elsewhere in the Government is cost advantageous to the Government, then the cost comparison form shall reflect a gain to the Government and therefore a decrease to the cost of contracting on line 11 or line 13 of the cost comparison form as appropriate.
(a) The estimates of in-house and contracting costs that can be computed before the cost comparison shall be reviewed by a qualified activity, independent of the Task Group preparing the cost comparison. This review shall be completed far enough in advance of the bid or initial proposal opening date to allow the DoD Component to correct any discrepancies found before sealing the in-house cost estimate.
(b) The independent review shall substantiate the currency, reasonableness, accuracy, and completeness of the inhouse estimate. The review shall ensure that the in-house cost estimate is based on the same required services, performance standards, and workload contained in the solicitation. The reviewer shall scrutinize and attest to the adequacy and authenticity of the supporting documentation. Supporting documentation shall be sufficient to require no additional interpretation.
(c) The purpose of the independent review is to ensure costs have been estimated and supported in accordance with provisions of this Instruction. If no (or only minor) discrepancies are noted during this review, the reviewer indicates the minor discrepancies, signs, dates, and returns the CCF to the preparer. If significant discrepancies are noted during the review, the discrepancies shall be reported to the preparer for recommended correction and resubmission.
(d) The independent review is not required for simplified cost comparisons.
(a) Every effort must be made to avoid postponement or cancellation of CA solicitations even if there are significant changes, omissions, or defects in the Government's in-house cost estimate. Such corrections shall be made before the expiration of bids or proposals and may require the extensions of bids or proposals. When there is no alternative, contracting officers must clearly document the reason(s).
(b) Bidders or offerers shall be informed that an in-house cost estimate is being developed and that a contract may or may not result.
(c) Bids or proposals shall be on at least a 3-year multi-year basis (when appropriate) or shall include prepriced renewal options to cover 2 fiscal years after the initial period.
(d) All contracts awarded as a result of a conversion (whether or not a cost comparison was performed) shall comply with all requirements of the FAR and DFARS.
(e) Solicitations shall be restricted for preferential procurement when the requirements applicable to such programs (such as, small business set-asides or other required sources of supplies and services) are met, in accordance with the FAR.
(f) Solicitations will not be restricted for preferential procurement unless the contracting officer determines that there is a reasonable expectation that the commercial prices will be fair and reasonable, in accordance with the FAR.
(g) Contract defaults may result in temporary performance by Government personnel or other suitable means; such as, an interim contract source. Personnel detailed to such a temporary assignment should be clearly informed that they will return to their permanent assignment when a new contract is awarded. If the default occurs within the first year of contract performance, the following procedures apply:
(1) If the Government was the next lowest bidder/offerer, and in-house performance is still feasible, the function
(2) If the contract wage rates are no longer valid or if the contracting officer, after a review of the availability of the next lowest responsible and responsive bidders/offerers, determines that resolicitation is appropriate, the Government may submit a bid for comparison with other bids/offers from the private sector. Submission of a Government bid requires a determination by the DoD Component that performance by DoD employees is still feasible and that a likelihood exists that such performance may be more economical than performance by contract. In such cost comparisons, the conversion differentials will not be applied to the costs of either in-house or contract performance.
(h) If contract default occurs during the second or subsequent year of contract performance, the procedures of § 169a.8(b)(2)(i) of this part apply.
(1)
(i) The installation commander shall determine carefully which CAs should be grouped in a single solicitation. The installation commander should keep in mind that the grouping of commercial activities can influence the amount of competition (number of commercial firms that will bid or submit proposals) and the eventual cost to the Government.
(ii) [Reserved]
(2) The installation commander shall consider the adverse impacts that the grouping of commercial activities into a single solicitation may have on small and small disadvantaged business concerns. Commercial activities being performed wholly by small or small disadvantaged businesses will not be incorporated into a cost comparison unless consolidation is necessary to meet mission requirements. Actions must be taken to ensure that such contractors are not displaced merely to accomplish consolidation. Similarly, care must be taken so that nonincumbent small and small disadvantaged business contractors are not handicapped or prejudiced unduly from competing effectively at the prime contractor level.
(3) In developing solicitations for commercial activities, the procurement plan should reflect an analysis of the advantages and disadvantages to the Government that might result from making more than one award. The decision to group commercial activities should reflect an analysis of all relevant factors including the following:
(A) The effect on competition.
(B) The duplicative management functions and costs to be eliminated through grouping.
(C) The economies of administering multifunction vs. single function contracts, including cost risks associated with the pricing structure of each.
(D) The feasibility of separating unrelated functional tasks or groupings.
(E) The effect grouping will have on the performance of the functions.
(4) When the solicitation package includes totally independent functions which are clearly divisible, severable, limited in number, and not price interrelated, they shall be solicited on the basis of an “any or all” bid or offer. Commerical bidders or offerors shall be permitted to submit bids or offers on one or any combination of the functions being solicited. These bids or offers shall be evaluated to determine the lowest aggregate contract cost to the Government. This lowest aggregate contract cost then will be compared to the in-house cost estimate based on the MEO for performance of the functions in the single solicitation. The procedures in part IV of the Supplement to OMB Circular No. A-76 (Cost Comparison Handbook) apply.
(5) There are instances when this approach to contracting for CAs may not apply; such as, situations when physical limitations of site (where the activities are to be performed) preclude allowing more than one contractor to perform, when the function cannot be divided for purposes of performance accountability, or for other national security considerations. However, if an “all or none” solicitation is issued, the
(6) It is recognized that in some cases, decisions will result in the elimination of prime contracting opportunities for small business. In such cases special measures shall be taken. At a minimum, small and small disadvantaged business concerns shall be given preferential consideration by all competing prime contractors in the award of subcontracts. For negotiated procurements the degree to which this is accomplished will be a weighted factor in the evaluation and source selection process leading to contract award.
(7) The contract files shall be documented fully to demonstrate compliance with these procedures.
(i) If no bids or proposals, or no responsive or responsible bids or proposals are received in response to a solicitation, the in-house cost estimate shall remain unopened. The contracting officer shall examine the solicitation to ascertain why no responses were received. Depending on the results of this review, the contracting officer shall consider restructuring the requirement, if feasible and reissue it under restricted or unrestricted solicitation procedures, as appropriate.
(j) Continuation of an in-house CA for lack of a satisfactory commercial source will not be based upon lack of response to a restricted solicitation.
(k) The guidance of subparagraph E.3.f. applies to sumplified cost comparisons and direct conversions of military personnel CAs.
(l) To ensure that bonds and/or insurance requirements are being used in the best interest of the Government, as a general rule, requirements (for other than construction related services) above the levels established in the FAR and DFARS should not be included in acquisitions.
(a)
(i) Award to one contractor in preference to another;
(ii) DoD management decisions.
(2) The appeals procedure is to provide an administrative safeguard to ensure that DoD Component decisions are fair, equitable, and in accordance with procedures in this part. The procedure does not authorize an appeal outside the DoD Component or a judicial review.
(3) The appeals procedure shall be independent and objective and provide for a decision on the appeal within 30 calendar days of receipt of the appeal. The decision shall be made by an impartial official at a level organizationally higher than the official who approved the cost comparison decision. The appeal decision shall be final, unless the DoD Component procedures provide for further discretionary review within the DoD Component.
(4) All detailed documentation supporting the initial cost comparison decision shall be made available to directly affected parties upon request when the initial decision is announced. The detailed documentation shall include, at a minimum, the following: the in-house cost estimate with detailed supporting documentation (see § 169a.5(c)(ii) of this part), the completed CCF, name of the tentative winning contractor (if the decision is to contract), or the price of the bidder whose bid or proposal would have been most advantageous to the Government (if the decision is to perform in-house). If the documentation is not available when the initial decision is announced, the time alloted for submission of appeals shall be extended the number of days equal to the delay.
(5) To be considered eligible for review under the DoD Component appeals procedures, appeals shall:
(i) Be received by the DoD Component in writing within 15 working days
(ii) Address specific line items on the CCF and the rationale for questioning those items.
(iii) Demonstrate that the result of the appeal may change the decision.
(b)
(1) Directly affected parties may appeal decision to convert to contract based on a simplified cost comparison involving 11-45 DoD civilian employees or a direct conversion involving 10 or fewer DoD civilian employees. The appeal must address reasons why fair and reasonable prices will not be obtainable.
(2) Each DoD Component shall establish an administrative appeal procedure that is independent and objective; Installation Commanders must make available, upon request, the documentation supporting the decision to directly convert activities; appeals of direct conversions must be filed within 30 calendar days after the decision is announced in the Commerce Business Daily and/or
(c) Since the appeal procedure is intended to protect the rights of all directly affected parties, the DoD Component's procedures, as well as the decision upon appeal, will not be subject to negotiation, arbitration, or agreement.
(d) DoD Components shall include administrative appeal procedures as part of their implementing documents.
No DoD funds shall be available to perform any cost study pursuant to the provisions of OMB Circular A-76 if the study being performed exceeds a period of 24 months after initiation of such study with respect to a single function activity or 48 months after initiation of such study for a multi-function activity.
(a)
(b)
(2) The CAMIS report shall be submitted in accordance with the procedures in Appendix C.
(c) Congressional Data Reports on CA (Report Control Symbol DD-A&T(A&AR) 1949) and Reports on savings on Costs from Increased Use of DoD Civilian Personnel (Report Control Symbol DD-A&T(AR) 1950). To insure consistent application of the requirements stated in 10 U.S.C. 2461 and 2463, the following guidance is provided:
(1) The geographic scope of section 10 U.S.C. 2461 applies to the United States, its territories and possessions, the District of Columbia, and the Commonwealth of Puerto Rico.
(2) Section 10 U.S.C. 2461 applies to proposed conversions of DoD CAs that on October 1, 1980, were being performed by more than forty-five DoD civilian employees. 10 U.S.C. 2463 applies to conversions from contract to in-house involving 50 or more contractor employees.
(3) DoD Components must not proceed with a CA study until notification to Congress, as required by 10 U.S.C.
(4) DoD Components shall annotate announcements to Congress when a cost comparison is planned at an activity listed in the report to Congress on Core Logistics (see § 169a.8(b)(1)(i)(2) of this part).
(5) The DoD Components shall notify Congress, at least 5 working days before sending the detailed summary report required by 10 U.S.C. 2461 to Congress. The detailed summary of the cost shall include: the amount of the offer accepted for the performance of the activity by the private contractor; the costs and expenditures that the Government will incur because of the contract; the estimated cost of performance of the activity by the most efficient Government organization; a statement indicating the life of the contract; and certifications that the entire cost comparison is available, and that the Government calculation for the cost of performance of such function by DoD employees is based on an estimate of the most efficient and cost-effective organization for performance of such function by DoD employees.
(6) The potential economic effect on the employees affected, the local community, and the Federal Government of contracting for performance of the function shall be included in the report to accompany the above certifications, if more than 75 total employees (including military and civilian, both permanent and temporary) are potentially affected. It is suggested that the Army Corps of Engineers’ model (or equivalent) be used to generate this information. The potential impact on affected employees shall be included in the report, regardless of the number of employees involved. Also include in the report a statement that the decision was made to convert to contractor performance, the projected date of contract award, the projected contract start date, and the effect of contracting the function on the military mission of that function.
(7) By December 15th of each year, each DoD Component shall submit to the ASD(P&L) the data required by 10 U.S.C. 2461(c). In describing the extent to which CA functions were performed by DoD contractors during the preceding fiscal year, include the estimated number of work years for the in-house operation as well as for contract operation (including percentages) by major OSD functional areas in Appendix A to this part; such as, Social Services, Health Services, Installation Services, etc. For the estimate of the percentage of CA functions that will be performed in-house and those that will be performed by contract during the fiscal year during which the report is submitted, include the estimated work years for in-house CAs as well as for contracted CAs and the rationale for significant changes when compared to the previous year's data. Also, include the number of studies you expect to complete in the next fiscal year showing total civilian and military FTEs.
The responsibilities for implementing the policies and procedures of the DoD CA Program are prescribed in DoD Directive 4100.15 (32 CFR part 169) and appropriate paragraphs of this part.
This list of functional codes and their definitions does not restrict the applicability or scope of the commerical activity Program within DoD. Section B. of DoD Directive 4100.15 defines the applicability and scope of the program. The commerical activity program still applies to CAs not defined in this listing. These codes and definitions are a guide to assist reporting. As new functions are identified, codes will be added or existing definitions will be expanded.
G008A: Shelf Stocking.
G008B: Check Out.
G008C: Meat Processing.
G008D: Produce Processing.
G008E: Storage and Issue.
G008F: Other.
G008G: Troop Subsistance Issue Point.
G011A: All Category II Nonappropriated Fund Instrumentalities (NAFIs), except Package Beverage Branch.
G011B: Package Beverage Branch.
G011C: All Category IIIa NAFIs.
G011D: All Category IIIb1, except Libraries.
G011E: Category IIIb2 Arts and Crafts.
G011F: Category IIIb2 Music & Theatre.
G011G: Category IIIb2 Outdoor Recreation.
G011H: Category IIIb2 Youth Activities.
G011I: Category IIIb2 Child Development Service.
G011J: Category IIIb2 Sports—Competitive.
G011K: All Category IIIb3 except Armed Forces Recreation Center (AFRC) Golf Bowling, and membership associations converted from Category VI.
G011L: Category IIIb3 AFRC.
G011M: Category IIIb3 Golf.
G011N: Category IIIb3 Bowling.
G011O: Category IIIb3 membership associations converted from Category VI.
G011P: Category III Information Tour and Travel (ITT).
G011Q: All Category IV.
G011R: All Category V.
G011S: All Category VI, except those converted to Category IIIb3.
G011T: All Category VII.
G011U: All Category VIII, except billeting and hotels.
G011V: Category VIII Billeting.
G011W: Category VIII Hotels.
G012A: Information and Referral.
G012B: Relocation Assistance.
G012C: Exceptionl Family Member.
G012D: Family Advocacy (Domestic Violence).
G012E: Foster Care.
G012F: Family Member Employment.
G012G: Installation Volunteer Coordination.
G012H: Outreach.
G012I: Volunteer Management.
G012J: Office Management.
G012K: Consumer Affairs/Financial Assistance.
G012L: General and Emergency Family Assistance.
S706AScheduled Bus Services.
S716A:Taxi Service.
S716B:Bus Service (unless in S706).
S716C:Motor Pool Operations.
S716D:Crane Operation (includes rigging, excludes those listed in T800G).
S716E:Heavy Truck Operation.
S716F:Construction Equipment Operation.
S716I:Driver/Operator Licensing & Test.
S716J:Other Vehicle Operations (Light Truck/Auto).
S716K:Fuel Truck Operations.
S716M:Tow Truck Operations.
S717A:Upholstery Maintenance and Repair.
S717B:Glass Replacement and Window Repair.
S717C:Body Repair and Painting.
S717D:Accessory Overhaul.
S717E:General Repairs/Minor Maintenance.
S717F:Battery Maintenance and Repair.
S717G:Tire Maintenance and Repair.
S717H:Major Component Overhaul.
S717I:Material Handling Equipment Maintenance.
S717J:Crane Maintenance.
S717K:Construction Equipment Maintenance.
S717L:Frame and Wheel Alignment.
S717M:Other Motor Vehicle Maintenance.
S718A:Fire Protection Engineering.
S718B:Fire Station Administration.
S718C:Fire Prevention.
S718D:Fire Station Operations.
S718E:Crash and Rescue.
S718F:Structural Fire Suppression.
S718G:Fire & Crash/Rescue Equipment Major Maintenance.
S718H:Other Fire Prevention and Protection.
S724A:Ingress and egress control. Regulation of persons, material, and vehicles entering or exiting a designated area to provide protection of the installation and Government property.
S724B:Physical security patrols and posts. Mobile and static physical security guard activities that provide protection of installation or Government property.
S724C:Conventional arms, ammunition, and explosives (CAAE) security. Dedicated security guards for CAAE.
S724D:Animal control. Patrolling for, capture of, and response to complaints about uncontrolled, dangerous, and disabled animals on military installations.
S724E:Visitor information services. Providing information to installation resident and visitors about street, agency, unit, and activity locations.
S724F: Vehicle impoundment. Removal, accountability, security, and processing of vehicles impounded on military installations.
S724G: Registration functions. Administration, filing, processing, and retrieval information about privately owned items that must be registered on military installations.
S724S: Other guard service.
S740A: Installation Transportation Management and Administration.
S740B: Materiel Movements.
S740C: Personnel Movements.
S740D: Personal Property Activities.
S740E: Quality Control and Inspection.
S740F: Unit Movements.
T800A: Pier Operations. Includes commercial activities that provide stevedore and shipwright carpentry operations supporting the loading, stowage, and discharge of cargo
T800B: Cargo Handling Equipment. Includes commercial activities that operate and maintain barge derricks, gantries, cranes, forklifts, and other materiel handling equipment used to handle cargo within the terminal area.
T800C: Port Cargo Operations. Includes commercial activities that load and unload railcars and trucks, pack, repack, crate, warehouse, and store cargo moving through the terminal, and stuff and unstuff containers.
T800D: Vehicle Preparation. Includes commercial activites that prepare Government and privately owned vehicles (POVs) for ocean shipment, inspection, stowage in containers, transportation to pier, processing, and issue of import vehicles to owners.
T800E: Lumber Operations. Includes commercial activities that segregate reclaimable lumber from dunnage removed from ships, railcars, and trucks; remove nails; even lengths; inspect; and return the lumber to inventory for reuse. Includes receipt, storage, and issue of new lumber.
T800F: Materiel Handling Equipment (MHE) Operations. Includes commercial activities that deliver MHE to user agencies, perform onsite fueling, and operate special purpose and heavy capacity equipment.
T800G: Crane Operations. Includes commercial activities that operate and perform first-echelon maintenance of barge derricks, gantries, and truck-mounted cranes in support of vessels and terminal cargo activities.
T800H: Breakbulk Cargo Operations. Includes commercial activities that provide stevedoring, shipwright carpentry, stevedore transportation, and the loading and unloading of noncontainerized cargo.
T800I: Other Ocean Terminal Operations.
T801A: Receipt. Includes commercial activities that receive supplies and related documents and information. This includes materiel handling and related actions, such as materials segregation and checking, and tallying incident to receipt.
T801B: Packing and Crating of Household Goods. Includes commercial activities performing packing and crating operations described in T801H, incident to the movement or storage of household goods.
T801C: Shipping. Includes commercial activities that deliver stocks withdrawn from storage to shipping. Includes onloading and offloading of stocks from transportation carriers, blocking, bracing, dunnage, checking, tallying, and materiel handling in central shipping area and related documentation and information operations.
T801D: Care, Rewarehousing, and Support of Materiel. Includes commercial activities that provide for actions that must be taken to protect stocks in storage, including physical handling, temperature control, assembly placement and preventive maintenance of storage aids, and realigning stock configuration; provide for movement of stocks from one storage location to another and related checking, tallying, and handling; and provide for any work being performed within general storage support that cannot be identified clearly as one of the subfunctions described above.
T801E: Preservation and Packaging. Includes commercial activities that preserve, represerve, and pack materiel to be placed in storage or to be shipped. Excludes application of final (exterior) shipping containers.
T801F: Unit and Set Assembly and Disassembly. Includes commercial activities that gather or bring together items of various nomenclature (parts, components, and basic issue items) and group, assemble, or restore them to or with an item of another nomenclature (such as parent end item or assemblage) to permit shipment under a single document. This also includes blocking, bracing, and packing preparations within the inner shipping container; physical handling and loading; and reverse operation of assembling such units.
T801G: Special Processing of Non Stock Fund-Owned Materiel. Includes commercial activities performing special processing actions described below that must be performed on Inventory Control Point (ICP)-controlled, nonstock fund-owned materiel by technically qualified depot maintenance personnel, using regular or special maintenance tools or equipment. Includes disassembly or reassembly or reserviceable ICP-controlled materiel being readied for movement, in-house storage, or out-of-house location such as a port to a commercial or DoD-operated maintenance or storage facility, property disposal or demilitarization activity, including blocking, bracing, cushioning, and packing.
T801H: Packing and Crating. Includes commercial activities that place supplies in their final, exterior containers ready for shipment. Includes the nailing, strapping, sealing, stapling, masking, marking, and weighing of the exterior container. Also, includes all physical handling, unloading, and loading of materiel, within the packing and shipping area; checking and tallying material in and out; all operations incident to packing, repacking, or recrating for shipment, including on-line fabrication of tailored boxes, crates, bit inserts, blocking,
T801I: Other Storage and Warehousing.
T803A: Inspection and Testing of Oil and Fuel.
T803B: Other Acceptance Testing.
T807A: Base VI Support. Includes commercial activities that provide production activities that provide general support to all installation, base, facility or site, organizations or activities. Typically, they supply motion picture, still photography, television, and audio recording for nonproduction documentary purposes, their laboratory support, graphic arts, VI libraries, and presentation services.
T807B: AV Production. Includes commercial activities that provide a self-contained, complete presentation, developed according to a plan or script, combining sound with motion media (film, tape or disc) for the purpose of conveying information to, or communicating with, an audience. (An AV production is distinguished from a VI production by the absence of combined sound and motion media in the latter.)
T807C: VI Depositories. Includes commercial activities that are especially designed and constructed for the low-cost and efficient storage and furnishing of reference service on semicurrent records pending their ultimate disposition. Includes records centers.
T807D: VI Technical Documentation. Includes commercial activities that provide a technical documentation (TECDOC) which is a continuous visual recording (with or without sound as an integral documentation component) of an actual event made for purposes of evaluation. Typically, TECDOC contributes to the study of human or mechanical factors, procedures and processes in the context of medicine, science logistics, research, development, test and evaluation, intelligence, investigations and armament delivery.
T807E: Electronic Media Transmission. Includes commercial activities that transmit and receive audio and video signals for closed circuit local and long distance multi-station networking and broadcast operations.
T807F: VI Documentation. Includes commercial activities that provide motion media (film or tape) still photography and audio recording of technical and nontechnical events, as they occur, usually not controlled by the recording crew. VI documentation (VIDOC) encompasses Operational Documentation (OPDOC) and TECDOC. OPDOC is VI (photographic or electronic) recording of activities, or multiple perspectives of the same activity, to convey information about people, places and things.
T807G: AV Central Library (Inventory Control Point). Includes commercial activities that receive, store, issue, and maintain AV products at the central library level. May or may not include records center operations for AV products.
T807K: AV or VI Design Service. Includes commercial activities that provide professional consultation services involving the selection, design, and development of AV or VI equipment or facilities.
T811A: Water Transportation Services (except tug operations).
T811B: Tug Operations.
These services include transmitting the technical skill capability to DoD personnel in order for them to install, maintain, and operate such equipment and keep it in a high state of military readiness.
T813A: Contractor Plant Services. Includes commercial manufacturers of military equipment contracted to provide technical and engineering services to DoD personnel. Qualified employees of the manufacturer furnish these services in the manufacturer plants and facilities. Through this program, the special skills, knowledge, experience, and technical data of the manufacturer are provided for use in training, training aid programs, and other essential services directly related to the development of the technical capability required to install, operate, maintain, supply, and store such equipment.
T813B: Contract Field Services (CFS). Includes commercial activities that provide services of qualified contractor personnel who provide onsite technical and engineering services to DoD personnel.
T813C: In-house Engineering and Technical Services. Includes commercial activities that provide technical and engineering services described in codes T813A and T813B above that are provided by Government employees.
T813D: Other Engineering and Technical Services.
T820A: Word Processing Centers.
T820B: Reference and Technical Libraries.
T820C: Microfilming.
T820D: Internal Mail and Messenger Services.
T820E: Translation Services.
T820F: Publication Distribution Centers.
T820G: Field Printing and Publication. Includes those activities that print or reproduce official publications, regulations, and orders. Includes management and operation of the printing facility.
T820H: Compliance Auditing.
T820I: Court Reporting.
Such activities may be temporary or permanent in nature.
T821A: Cost Benefit Analyses.
T821B: Statistical Analyses.
T821C: Scientific Data Studies.
T821D: Regulatory Studies.
T821E: Defense, Education, Energy Studies.
T821F: Legal/Litigation Studies.
T821G: Management Studies.
T900A: Training Aids, Devices, and Simulator Support. Includes commercial activities that design, fabricate, stock, store, issue, receive, and account for and maintain training aids, devices, and simulators (does not include audiovisual production and associated services or audiovisual support).
T900B: Training Device and Simulator Operation. Includes commercial activities that operate and maintain training device and simulator systems.
Includes commercial activities that conduct courses of instruction attended by civilian or military personnel of the Department of Defense. Terminology of categories and subcategories primarily for military personnel (marked by an asterisk) follows the definitions of the statutory
W824A: Operation of ADP Equipment.
W824B: Production Control and Customer Services.
W824C: ADP Magnetic Media Library.
W824D: Data Transcription/Data Entry Services.
W824E: Transmission and Teleprocessing Equipment Services.
W824F: Acceptance Testing and Recovery Systems.
W824G: Punch Card Processing Services.
W824H: Other ADP Operations and Support.
W826A: Development and Maintenance of Applications Software.
W826B: Development and Maintenance of Systems Software.
Commercial activities that manufacture and/or fabricate products in-house are grouped according to the products predominantly handled as follows:
Z991A: Rehabilitation—Tenant Change.
Z991B: Roofing.
Z991C: Glazing.
Z991D: Tiling.
Z991E: Exterior Painting.
Z991F: Interior Painting
Z991G: Flooring.
Z991H: Screens, Blinds, etc.
Z991I: Appliance Repair.
Z991J: Electrical Repair. Includes elevators, escalators, and moving walks.
Z991K: Plumbing.
Z991L: Heating Maintenance.
Z991M: Air Conditioning Maintenance.
Z991N: Emergency/Service Work.
Z991T: Other Work.
Z992A: Rehabilitation—Tenant Change.
Z992B: Roofing.
Z992C: Glazing.
Z992D: Tiling.
Z992E: Exterior Painting.
Z992F: Interior Painting.
Z992G: Flooring.
Z992H: Screens, Blinds, etc.
Z992I: Appliance Repair.
Z992J: Electrical Repair. Includes elevators, escalators, and moving walkways.
Z992K: Plumbing.
Z992L: Heating Maintenance.
Z992M: Air Conditioning Maintenance.
Z992N: Emergency/Service Work.
Z992T: Other Work.
Z993A: Grounds (Improved). Includes improved grounds, including lawns, drill fields, parade grounds, athletic and recreational facilities, cemeteries, other ground areas, landscape and windbreak plants, and accessory drainage systems.
Z993B: Grounds (Other than Improved). Small arms ranges, antenna fields, drop
Z993C: Surfaced Areas. Includes airfield pavement, roads, walks, parking and open storage areas, traffic signs and markings, storm sewers, culverts, ditches, and bridges. Includes sweeping and snow removal from streets and airfields.
A. General Instructions
1. Forward your inventory report before January 1 to the Director, Installations Management, 400 Army Navy Drive, Room 206, Arlington, VA 22202-2884. Use Report Control Symbol “DD-A&T(A) 1540” as your authority to collect this data.
2. Transmit by use of floppy diskette. Data files must be in American Standard Code Information Interchange text file format on a MicroSoft-Disk Operating System formatted 3.5 inch floppy diskette. Provide submissions in the Defense Utility Energy Reporting System format as specified below.
3.
4. When definite coding instructions are not provided, reference must be made to DoD 5000.12-M.
1. PERFORMANCE (for entry in field A8)
2. USE OF OTHER CODES. Other codes may be assigned as designated by the ODASD (I).
A. This appendix provides guidance on procedures to be followed in order to convert a commercial activity employing 45 or fewer DoD civilian employees to contract performance without a full cost comparison. DoD Components may directly convert functions with 10 or fewer civilian employees without conducting a simplified cost comparison. Simplified cost comparisons may only be conducted on activities with 45 or fewer DoD civilian employees.
B. Direct conversions with 10 or fewer DoD civilian employees must meet the following criteria:
1. The activity is currently performed by 10 or fewer civilian employees.
2. The direct conversion makes sense from a management or performance standpoint.
3. The direct conversion is cost effective.
4. The installation commander should attempt to place or retrain displaced DoD civilian employees by
a. Placing or retraining employees in available permanent vacant positions, or
b. Assigning displaced employees to valid temporary or over-hire positions in similar activities for gainful employment until permanent vacancies are available. The type of employee appointment (e.g., career, career-conditional, etc., or change from competitive to excepted service or vice versa) must not change, or
c. Where no vacancies exist or are projected, offer employees retraining opportunities under the Job Training Partnership Act or similar retraining programs for transitioning into the private sector.
5. The function to be directly converted does not include any DoD civilian positions that were as a result of DoD Component streamlining plans and/or were removed with buyout offers that satisfied Section 5 of the Federal Workforce Restructuring Act requirements.
C. The following provides general guidance for completion of a simplified cost comparison:
1. Estimated contractor costs should be based on either the past history of similar contracts at other installations or on the contracting officer's best estimate of what would constitute a fair and reasonable price.
2. For activities small in total size (45 or fewer civilian and military personnel):
a. Estimated in-house cost generally should not include overhead costs, as it is unlikely that they would be a factor for a small activity.
b. Similarly, estimated contractor costs generally should not include contract administration, on-time conversion costs, or other contract price add-ons associated with full cost comparisons.
3. For activities large in total size (including those with a mix of civilian and military personnel) all cost elements should be considered for both in-house and contractor estimated costs.
4. In either case, large or small, the 10 percent conversion differential contained in part IV of the Supplement to OMB Circular No. A-76 should be applied.
5. Part IV of the Supplement to OMB Circular No. A-76 shall be utilized to define the specific elements of cost to be estimated.
6. Clearance for CA simplified cost comparison decisions are required for Agencies without their own Legislative Affairs (LA) and Public Affairs (PA) offices. Those Agencies shall submit their draft decision brief to the Deputy Assistant Secretary of Defense (Installations) room 3E813, the Pentagon, Washington, DC 20301 for release to Congress.
7. Provide CA simplified cost comparison approvals containing a certification of the MEO analysis, a copy of the approval to convert, a copy of the cost comparison, with back-up data, before conversion to the following:
a. Committee on Appropriations of the House of Representatives and the Senate (11-45 civilian employees only).
b. Copies of the following:
(1) Assistant Secretary of Defense (LA), room 3D918, the Pentagon, Washington, DC 20301.
(2) Assistant Secretary of Defense (PA), room 2E757, the Pentagon, Washington, DC 20301.
(3) Office of Economic Adjustment, room 4C767, the Pentagon, Washington, DC 20301.
(4) Deputy Assistant Secretary of Defense, (Installations), room 3E813, the Pentagon, Washington, DC 20301. (exception—no copies required from Agencies that do not have legislative and public affairs offices).
8. Most Efficient and Cost-Effective Analysis for Contractor Performance of an Activity (Report Control Symbol DD-A&T(AR)
Each DoD Component shall create and manage their CAMIS data base. The CAMIS data base shall have a comprehensive edit check on all input data in the computerized system. All data errors in the CAMIS data base shall be corrected as they are found by the established edit check program. The data elements described in this appendix represents the DoD minimum requirements.
On approval of a full cost comparison, a simplified cost comparison, or a direct conversion CA, the DoD Component shall create the initial entry using the data elements in part I for full cost comparisons and data elements in part II for all other conversions. Within 30 days of the end of each quarter the DoD Component shall submit a floppy diskette. Data files must be in American Standard Code Information Interchange text file format on a MicroSoft-Disk Operating System formatted 3.5 inch floppy diskette. Provide submissions in the Defense Utility Energy Reporting System format. The data shall be submitted in the Director, Installations Management (D,IM), 400 Army Navy Drive, Room 206, Arlington, VA 22202-2884 at least 60 days prior to the end of the quarter. The D,IM shall use the automated data to update the CAMIS. If the DoD Component is unable to provide data in an automated format, the D,IM shall provide quarterly printouts of cost comparison records (CCR) and conversion and/or comparison records (DCSCCR) that may be annotated and returned within 30 days of the end of each quarter to the D,IM. The D,IM then shall use the annotated printouts to update the CAMIS.
The record for each cost comparison is divided into six sections. Each of these sections contains information provided by the DoD Components. The first five sections are arranged in a sequence of milestone events occurring during a cost comparison. Each section is completed immediately following the completion of the milestone event. These events are as follows:
1. Cost comparison is approved by DoD Component.
2. Solicitation is issued.
3. In-house and contractor costs are compared.
4. Contract is awarded/solicitation is canceled.
5. Contract starts.
The events are used as milestones because upon their completion some elements of significant information concerning the cost comparison become known.
A sixth section is utilized for CCRs that result in award of a contract. This section contains data elements on contract cost and information on subsequent contract actions during the second and third year of contract operation.
The data elements that comprise these six sections are defined in this enclosure.
The record for each direct conversion and simplified cost comparison is divided into six sections. Each of the first five sections is completed immediately following the completion of the following events:
1. DoD Component approves CA action.
2. The solicitation is issued.
3. In-house and contractor costs are compared.
4. Contract is awarded or solicitation is canceled.
5. Contract starts.
A sixth section is utilized for tracking historical data after the direct conversion or simplified cost comparison is completed. This section contains data elements on contracts and cost information during the second and third performance period. The data elements that comprise the six sections in part II, of this Appendix, are defined in the CAMIS Entry and Update Instruction, Part II—Direct Conversions and Simplified Cost Comparisons.
The bracketed number preceding each definition in sections one through five is the DoD data element number. All date fields should be in the format MMDDYY (such as, June 30, 1983 = 063083).
All entries in this section of CCR shall be submitted by DoD Components on the first quarter update after approving the start of a cost comparison.
These entries shall be used to establish the CCR and to identify the geographical, organizational, political, and functional attributes of the activity (or activities) undergoing cost comparison as well as to provide an initial estimate of the manpower associated with the activity (or activities). The initial estimate of the manpower in this section of the CCR will be in all cases those manpower figures identified in the correspondence approving the start of the cost comparison.
DoD Components shall enter the following data elements to establish a CCR:
[1] Cost Comparison Number. The number assigned by the DoD Component to uniquely identify a specific cost comparison. The first character of the cost comparison number must be a letter designating DoD Component as noted in data element [3], below. The cost comparison number may vary in length from five to ten characters, of which the second and subsequent may be alpha or numeric and assigned under any system desired by the DoD Component.
[2] Announcement and/or approval date. Date Congress is notified when required by 10 U.S.C. 2461, of this part or date DoD Component approves studies being performed by 45 or fewer DoD civilian employees.
[3] DOD Component Code. Use the following codes to identify the Military Service or Defense Agency conducting the cost comparison:
[4] Command code. The code established by the DoD Component headquarters to identify the command responsible for operating the commercial activity undergoing cost comparison.
[5] Installation code. The code established by the DoD Component headquarters to identify the installation where the CA(s) under cost comparison is and/or are located physically. Two or more codes (for cost comparison packages encompassing more than one installation) should be separated by commas.
[6] State code. A two-position numeric code for the State (Data element reference ST-GA.) or U.S. Territory (FIPS 55-2), as shown in attachment 1 to appendix B to this part, where element [5] is located. Two or more codes shall be separated by commas.
[7] Congressional District (CD). Number of the congressional district(s) where [5] is located. If representatives are elected “at large,” enter “01” in this data element; for a delegate or resident commissioner (such as, District of Columbia or Puerto Rico) enter “98.” If the installation is located in two or more CDs, all CDs should be entered and separated by commas.
[8] [Reserved]
[9] Title of Cost Comparison. The title that describes the commercial activity(s) under cost comparision (for instance, “Facilities Engineering Package,” “Installation Bus Service,” or “Motor Pool”). Use a clear title, not acronyms of function codes in this data element.
[10] DOD Functional Area Code(s). The four of five alpha/numeric character designators listed in Appendix A of this part that describe the type of CA undergoing cost comparison. There would be one code for a single CA or possible several codes for a large cost comparison package. A series of codes shall be separated by commas.
[11] Prior Operation Code. A single alpha character that identifies the mode of operation for the activity at the time the cost comparison is started. Despite the outcome of the cost comparison, this code does not change. The coding as as follows:
[12] Cost Comparison Status Code. A single alpha character that identifies the current status of the cost comparison. Enter one of the following codes:
[13] Announcement—personnel estimate civilian, and [14] announcement—personnel estimate military. The number of civilian and military personnel allocated to the CAs undergoing cost comparison when the cost comparison is approved by the DoD Component or announced to Congress. This number in all cases shall be those personnel figures identified in the correspondence announcing the start of a cost comparison and will include authorized positions, temporaries, and borrowed labor. The number is used to give a preliminary estimate of the size of the activity.
[15] Revised and/or original cost comparison number. When a consolidation occurs, create a new CCR containing the attributes of the consolidated cost comparison. In the CCR of each cost comparison being consolidated, enter the cost comparison number of the new CCR in this data element and code “Z” in data element [12] of this attachment. In the new CCR, this data element should be blank and data element [12] of this attachment should denote the current status of the cost comparison. Once the consolidation has occurred, only the new CCR requires future updates. When a single cost comparison is being broken into multiple cost comparisons, create a new CCR for each cost comparison broken out from the original cost comparison. Each new CCR shall contain its own unique set of attributes; in data element [15] of this attachment enter the cost comparison number of the original cost comparison from which each was derived, and in data element [12] of this attachment enter the current status of each cost comparison. For the original cost comparison, data element [15] of this attachment, should be blank and data element [12] of this attachment should have a code “B” entry. Only the derivative record entries require future updates. When a consolidation or a breakout occurs, an explanatory remark shall be entered in data element [57] of this attachment (such as, “part of SW region cost comparison,” or, “separated into three cost comparisons”).
The entries in this section of the CCR provide information on the personnel authorized to perform the workload in the PWS, the number of workyears used to accomplish the workload in the PWS, and the type and kind of solicitation.
The DoD Component shall enter the following data elements at the first quarterly update subsequent to the issuance of the solicitation:
[17] [Reserved]
[18] Solicitation-Type Code. A one-character alpha designator that identifies the type of solicitation used to obtain contract bids or offers. Use either the CBD as the source document or information received from the contracting officer for this entry. Solicitations under section 8(a) of the Small Business Act are negotiated. Enter one of the following codes:
[19] Solicitation Kind Code. A one-character (or two-character, if “W” suffix is used) alpha designator indicating whether the competition for the contract has been limited to a specific class of bidders or offerors. Use either the CBD as the source document or information received from the contracting officer to enter one of the following codes:
[20] Current Authorized Civilians and [21] Current Authorized Military. The number of civilian and military authorizations allocated on the DoD Component's manpower documents to perform the work described in the PWS. This number refines the initial authorization estimate (section one, data elements [13] and [14]).
[22] Baseline Annual Workyears Civilian and [23] Baseline Annual Workyears Military. The number of annual workyears it has taken to perform the work described by the PWS before the DoD Component conducts the MEO study of the in-house organizations; do not include contract monitor requirements. Military workyears include assigned, borrowed, diverted, and detailed personnel.
An annual workyear is the use of 2,087 hours (including authorized leave and paid time off for training). For example, when full-time employees whose work is completely within the PWS are concerned, “one workyear” normally is comparable to “one employee” or two part-time employees, each working 1,043 hours in a fiscal year. Also include in this total the workyears for full-time employees who do not work on a full-time basis on the work described by the PWS. For example, some portion of the
These workyear figures shall be the baseline for determining the manpower savings identified by the management study.
The entries in this section provide information on the date of the cost comparison (initial decision), the preliminary results, the number of bids or offers received, and the costing method used in the cost comparison.
The DoD Component shall enter the following data elements in the first quarterly update subsequent to the date of the comparison of in-house and contractor costs (date of initial decision):
[24] Scheduled Initial Decision Date. Date the initial decision is scheduled at the start of a cost comparison.
[24A] Actual Initial Decision Date. Date the initial decision is announced. The initial decision is based on the apparent low bid or offer and is subject to preaward surveys and resolution of all appeals and protests. In a sealed bid procurement, the initial decision is announced at bid opening. In a negotiated procurement, the initial decision is announced when the cost comparison is made between the in-house estimate and the proposal of the selected offeror.
[25] Cost Comparison Preliminary Results Code. A one-character alpha designator indicating the results of the cost comparison as announced by the contracting officer at the time the bids or offers are compared. The entries are limited to two possibilities:
[26]—[27] [Reserved]
The entries in this section identify the final result, information on the contract, the in-house bid, and costing information from the cost comparison record.
The DoD Component shall enter the following data elements in the first quarterly update subsequent to the date the contracting officer either awards a contract or cancels the solicitation:
[28] Contract Award/Solicitation Commercial Activity Cancellation Date. For conversions to contract, this is the date a contract was awarded in a sealed bid solicitation or the date the contractor was authorized to proceed on a conditional award contract in a negotiated solicitation. For retentions in-house, this is the date the solicitation was canceled (when the contracting officer publishes an amendment to the solicitation canceling it).
[29] Cost Comparison Final Result Code. A one-character alpha designator identifying the final result of the comparison between in-house and contractor costs; the contracting officer either awards the contract or cancels the solicitation. Enter one of the following codes:
[30] Decision Rationale Code. A one-character alpha designator that identifies the rationale for awarding a contract or canceling the solicitation. The work shall be performed in-house or by contractor, based on cost, or the work shall be performed in-house because no satisfactory commercial source was available (no bids or offers were received or the preaward survey resulted in the determination that no commercial sources were responsive or responsible). Enter one of the following codes:
[31] [Reserved]
[31a] Prime Contractor Size. Enter one of the following
[32] MEO Workyears. The number of annual workyears it takes to perform the work described in the PWS after the MEO study has been conducted. Do not include the minimum cost differential (line 14 in CCF or line 16 in the ENCR CCF) in the computation of any of these data elements.
For data elements [33] through [36], enter all data after all adjustments required by appeals board decisions. Do not include the minimum cost differential (line 31 old CCF or line 14 new CCF or line 16 new ENRC form) in the computation of any of these data elements. If a valid cost comparison was not conducted (that is, all bidders or offerors disqualified, no bids or offers received, etc.) do not complete data elements [33] through [36]. Explain lack of valid cost data in data element [57], DOD Component Comments.
[33] First Performance Period. Expressed in months, the length of time covered by the contract. Do not include any option periods.
[34] Cost Comparison Period. Expressed in months, the total period of operation covered by the cost comparison; this is the period used as the basis for data elements [35] and [36], below.
[35] Total in-house Cost ($000). Enter the total cost of in-house performance in thousands of dollars, rounded to the nearest thousand. This is the total of line 6 of the new CCF or line 8 of the ENCR CCF. An entry is required although the activity remains in-house due to absence of a satisfactory commercial source.
[36] Total Contract Cost ($000). Enter the total cost of contract performance in thousands of dollars, rounded to the nearest thousand. This is the total of line 13 of the CCF or line 15 of the ENCR CCF.
[37] Scheduled Contract or MEO Start Date. Date the contract and/or MEO was scheduled to start at the beginning of a cost comparison.
The entries in this section identify the contract or MEO start date and the personnel actions taken as a result of the cost comparison.
The DoD Component shall enter the following data elements in the first quarterly update subsequent to the start of the contract:
[38] Contract/MEO Start Date. The actual date the contractor began operation of the contract or the Government implements the MEO.
[39] Permanent Employees Reassigned to Equivalent Positions. The number of permanent employees who were reassigned to positions of equivalent grade as of the contract start date.
[40] Permanent Employee Changed To Lower Positions. The number of permanent employees who were reassigned to lower grade positions as of the contract start date.
[41] Employees Taking Early Retirement. The number of employees who took early retirement as of the contract start date.
[42] Employees Taking Normal Retirement. The number of employees who took normal retirement as of the contract start date.
[43] Permanent Employees Separated. The number of permanent employees who were separated from Federal employment as of the contract start date.
[44] Temporary Employees Separated. The number of temporary employees who were separated from Federal employment as of the contract start date.
[45] Employees Entitled To Severance Pay. The estimated number of employees entitled to severance pay on their separation from Federal employment as of the contract start date.
[46] Total Amount of Severance Entitlements ($000). The total estimated amount of severance to be paid to all employees, in thousands of dollars, rounded to the nearest thousand, as of the contract start date.
[47] Number Of Employees Hired by The Contractor. The number of estimated DoD civilian employees (full-time or otherwise) that will be hired by the contractors, or their subcontractors, at the contract start date.
[48] Filed. Were administrative appeals filed?
[49] Source. Who filed the appeal?
[50] Result. Were the appeals finally upheld? (If both appealed, explain result in data element [57], of this section).
[51] Filed. Was a protest filed with GAO?
[52] Source. Who filed the protest?
[53] Result. Was the protest finally upheld? (Explain result in data element [57], below).
[54] Requested. Was there a request for arbitration?
[55] Result. Was the case found arbitrable? (Explain result in data element [57], below).
+[56] Total Staff-Hours Expended. Enter the estimated number of staff-hours expended by the installation for the cost comparison. Include direct and indirect hours expended from the time of PWS until a final decision is made.
+[56a] Estimated Cost Of Conducting The Cost Comparison. Enter the estimated cost of the total staff-hours identified in data element [56] of this section non-labor (travel, reproduction costs, etc.) associated with the cost comparision.
+Data elements [56] and [56A] will only be completed by DoD Components that are participating in the pilot test of these data elements.
[57] DoD Component Comments. Enter comments, as required, to explain situations that affect the conduct of the cost comparision. Where appropriate, precede each comment with the CAMIS data element being referenced.
[58] Effective Date. “As of” date of the most current update for the cost comparison. This data element will be completed by the DMDC.
[59] (Leave blank, for DoD computer program use).
The entries in this section identify original costs, savings, information on subsequent performance periods and miscellaneous contract data. The DoD Component shall enter the following data elements in the first quarterly update annually.
[60] Original Cost of Function(s) ($000). The estimated total cost of functions before to development of an MEO in thousands of dollars, rounded to the nearest thousand for the base year and option years. (Begin entry when study began for data element [2] after 1 October 1989).
[60A] Estimated Dollar Savings ($000). The DoD Component's estimated savings from the cost comparison for the base year plus option years, in thousands of dollars, rounded to the nearest thousand, for either in-house or contract performance. Documentation will be available at the DoD Component level. (Begin entry after 1 October 1989).
[61] Contract Or In-House Bid First Performance Period ($000). For studies resulting in continued in-house performance, enter the total in-house cost (Line 6 from the CCF) for the first performance period. For studies resulting in conversion to contract performance, enter the contract price (Line 7 from the CCF) for the first performance period. Figures shall be shown in thousands of dollars, rounded to the nearest thousand.
[61A] Actual Contract or In-House Costs First Performance Period ($000). Enter the actual first performance period contract cost including all change orders (Plus changes in the scope of work) or actual in-house performance cost including changes in the scope of work, in thousands of dollars, rounded to the nearest thousand. No entry is required for actual in-house performance during the second and third performance periods.
[61B] Adjusted Contract Costs First Performance Period ($000). Enter an adjusted first performance period contract cost that includes actual DoL wage increases and costs for omissions and/or errors in the original PWS, but exclude new requirement costs and their associated wage increases, in thousands of dollars, rounded to the nearest thousand. (Begin entry after 1 October 1989).
[61C] Adjusted In-House Costs First Performance Period ($000). Enter the total first performance period in-house cost of the MEO, including civil service pay increases, but excluding increases associated with new mission requirements not included in the original scope of work of the function. Show costs in thousands of dollars, rounded to the nearest thousand. Entry is required even if the function went to contract. (Begin entry after 1 October 1989).
[62] Contract Or In-House Bid Second Performance Period ($000). For studies resulting in continued in-house performance, enter the total in-house cost (Line 6 from the CCF) for the second performance period. For studies resulting in conversion to contract performance, enter the contract price (Line 7 from the CCF) for the second performance period. Figures shall be shown in thousands of dollars, rounded to the nearest thousand.
[62A] Actual Contract Costs Second Performance Period ($000). Enter the actual second performance period contract cost including all change orders (Plus changes in the scope of work), in thousands of dollars, rounded to the nearest thousand. No entry is required when the function remained in-house.
[62B] Adjusted Contract Costs Second Performance Period ($000). Enter an adjusted second performance period contract cost that includes actual DoL wage increases and costs for omissions and/or errors in the original PWS, but exclude new requirement costs and their associated wage increases, in thousands of dollars, rounded to the nearest thousand. (Begin entry after 1 October 1989).
[62] Adjusted In-House Costs Second Performance Period ($000). Enter the total second performance period in-house cost of the MEO, including civil service pay increases, but excluding increases associated with new mission requirements not included in the original scope of work of the function. Show costs in thousands of dollars, rounded to the nearest thousand. Entry is required even if the function went to contract. (Begin entry after 1 October 1989).
[63] Contract Or In-house Bid Third Performance Period ($000). For studies resulting in continued in-house performance, enter the total in-house cost (Line 6 from the CCF) for the third performance period. For studies resulting in conversion to contract performance, enter the contract price (Line 7 from the CCF) for the third performance period. Figures shall be shown in thousands of dollars, rounded to the nearest thousand.
[63A] Actual Contract Costs Third Performance Period ($000). Enter the actual third performance period contract cost including all change orders (Plus changes in
[63B] Adjusted Contract Costs Third Performance Period ($000). Enter an adjusted third performance period contract cost that includes actual DoL wage increases and costs for omissions and/or errors in the original PWS, but exclude new requirement costs and their associated wage increases, in thousands of dollars, rounded to the nearest thousand (Begin entry after 1 October 1989).
[63C] Adjusted In-House Costs Third Performance Period ($000). Enter the total third performance period in-house cost of the MEO, including civil service pay increases, but excluding increases associated with new mission requirements not included in the original scope of work of the function. Show costs in thousands of dollars, rounded to the nearest thousand. Entry is required even if the function went to contract (Begin entry after 1 October 1989).
[64] Contractor Change. Enter one of the following alpha designators to indicate whether the contract for the second or third performance period has changed from the original contractor.
Y—Yes, the contractor has changed.
Data elements [65] through [66] of this section are not required if the answer to [64] of this section is no (N).
[65] New Contractor Size (If data element [66] of this section contains the alpha designator “I” or “R,” no entry is required).
[66] Reason For Change. DoD Components shall enter one of the following designators listed in this section, followed by the last two digits of the fiscal year which the change occurred.
[67] Contract Administration Staffing. The actual number of contract administration personnel hired to administer the contract.
The bracketed number preceding each definition in sections One through six of this section, is the DoD data element number. All date fields should be in the format YYMMDD (Data element reference DA-FA).
All entries in this section of the DCSCCR record shall be submitted by DoD Components on the first quarter update after approving the start of a cost comparison. These entries shall be used to establish the DCSCCR and to identify the geographical, organizational, political, and functional attributes of the activity (or activities) undergoing conversion and/or comparison as well as to provide an initial estimate of the manpower associated with the activity (or activities). The initial estimate of the personnel in this section of the DCSCCR will be, in all cases, those personnel figures identified in the correspondence approving the start of the conversion and/or comparison. DoD Components shall enter the following data elements to establish a DCSCCR:
[1] Direct Conversion/Simplified Cost Comparison Number. The number assigned by the DoD Component to uniquely identify a specific conversion and/or comparison. The first character of the conversion and/or comparison number must be a letter designating the DoD Component as noted in data element [3] of this section. The conversion and/or comparison number may vary in length from five to ten characters, of which the second and subsequent may be alpha or numeric and assigned under any system desired by the DoD Component.
[2] Approval Date. The date has simplified cost comparison or direct conversion was approved.
[3] DoD Component Code. Use the following codes to identify the Military Service or Defense Agency and/or Field Activity conducting the cost comparison:
[4] Command code. The code established by the DoD Component headquarters to identify the command responsible for operating the commercial activity undergoing cost comparison.
[5] Installation code. The code established by the DoD Component headquarters to identify the installation where the CA(s) under cost comparison is and/or are located physically. Two or more codes (for cost comparison packages encompassing more than one installation) should be separated by commas.
[6] State Code. A two-position numeric code for the State (Data element reference ST-GA.) or U.S. Territory (FIPS 55-2), as shown in attachment 1 to appendix B of this part, where element [5] is located. Two or more codes shall be separated by commas.
[7] Congressional District (CD). Number of the CDs where [5] of this section, is located. If representatives are elected “at large,” enter “01” in this data element; for a delegate or resident commissioner (i.e., District of Columbia or Puerto Rico) enter “98.” If the installation is located in two or more CDs, all CDs should be entered and separated by commas.
[8] (Leave blank)
[9] Title of Conversion and/or Comparison. The title that describes the CA(s) under conversion/comparison (for instance, “Facilities Engineering Package”, “Installation Bus Service,” or “Motor Pool”). Use a clear title, not acronyms or function codes in this data element.
[10] DoD Functional Area Code(s). The four- or five-alpha and/or numeric character designators listed in appendix A of this part that describes the type of CA undergoing conversion and/or comparison. This would be one code for a single CA or possibly several codes for a large cost comparison package. A series of codes shall be separated by commas.
[11] Prior Operation Code. A single alpha character that identifies the mode of operation for the activity at the time the conversion and/or comparison is started. Despite the outcome of the conversion and/or comparison, this code does not change. The coding is as follows:
[12] Conversion and/or Comparison Status Code. A single alpha character that identifies the current status of the conversion and/or comparison. Enter one of the following codes:
[13] Announcement—personnel estimate civilian, and [14] announcement—personnel estimate military. The number of civilian and military personnel allocated to the CAs undergoing conversion and/or comparison at the time the start of the conversion and/or comparison is approved. This number is all cases shall be those personnel figures identified when the conversion and/or comparison was approved and will include authorized positions, temporaries, and borrowed labor. The number is used to give a preliminary estimate of the size of the activity.
[15] Revised and/or original cost comparison number. When a consolidation occurs, create a new DCSCCR containing the attributes of the consolidated conversion and/or comparison. In the DCSCCR of each conversion and/or comparison being consolidated, enter the conversion and/or comparison number of the new DCSCCR in this data element and code “Z” in data element [12] of this section. In the new DCSCCR, this data element should be blank and data element [12] of this section should denote the current status of the conversion and/or comparison. Once the consolidation has occurred, only the new DCSCCR requires future updates.
When a single conversion and/or comparison is being broken into multiple conversion and/or comparisons, create a new DCSCCR for each conversion and/or comparison broken out from the original conversion and/or
When a consolidation or a breakout occurs, an explanatory remark shall be entered in data element [56] of this section (such as, “part of SW region cost comparison,” or, “separated into three cost comparisons”).
[16] (Leave blank)
The entries in this section of the DCSCCR provide information on the personnel authorized to perform the workload in the PWS, the number of workyears used to accomplish the workload in the PWS, and the type and kind of solicitation.
The DoD Component shall enter the following data elements at the first quarterly update subsequent to the issuance of the solicitation:
[17] (Leave blank)
[18] Solicitation-Type code. A one-character alpha designator that identifies the type of solicitation used to obtain contract bids or offers. Use either the CBD as the source document or information received from the contracting officer for this entry. Solicitations under section 8(a) of “The Small Business Act” are negotiated. Enter one of the following codes:
[19] Solicitation-Kind code. A one-character (or two-character, if “W” suffix is used) alpha designator indicating whether the competition for the contract has been limited to a specific class of bidders or offerors. Use either the CBD as the source document or information received from the contracting officer to enter one of the following codes:
[20] Current Authorized Civilians, and [21] Current Authorized Military. The number of civilian and military authorizations allocated on the DoD Component's manpower documents to perform the work described in the PWS. This number refines the initial authorization estimate (section one, data elements [13] and [14] of this section).
[22] Baseline Annual Workyears Civilian, and [23] Baseline Annual Workyears Military. The number of annual workyears it has taken to perform the work described by the PWS before the DoD Component conducts the MEO analysis of the in-house organization. Do not include contract monitor requirements. Military workyears include assigned, borrowed, diverted, and detailed personnel. Less than one-half a year of effort should be rounded down, and one-half a year or more should be rounded up. These workyear figures shall be the baseline for determining the personnel savings identified by the most efficient organization analysis.
The entries in this section provide information on the date of the conversion and/or comparison (initial decision), the preliminary results, the number of bids or offers received, and the costing method used in the conversion and/or comparison.
The DoD Component shall enter the following data elements in the first quarterly update subsequent to the date of the comparison of in-house and contractor costs (date of initial decision):
[24] Scheduled Initial Decision Date. Date the initial decision is scheduled at the start of a conversion and/or comparison
[24A] Actual Initial Decision Date. Date the initial decision is announced. The initial decision is based on the apparent low bid or offer and is subject to preaward surveys and resolution of all appeals and protests. In a sealed bid procurement, the initial decision is announced at bid opening. In a negotiated procurement, the initial decision is announced when the cost comparison is made between the in-house estimate and the proposal of the selected offeror. In a conversion, the initial decision is announced when the in-house cost estimate is evaluated against proposed contractor proposals.
[25] Cost Comparison Preliminary Results Code. A one-character alpha designator indicating the results of the cost comparison as announced by the contracting officer at the time of the comparison (No entry required for a direct conversion). The entries are limited to two possibilities:
[26] (Leave blank)
[27] (Leave blank)
The entries in this section identify the final result, information on the contract, the in-house bid, and costing information from the direct conversion and/or simplified cost comparison fact sheet.
The DoD Component shall enter the following data elements in the first quarterly update subsequent to the date the contracting officer either awards a contract or cancels the solicitation:
[28] Contract Award or Solicitation Cancellation Date. For conversions to contract, this is the date a contract was awarded in a sealed bid solicitation or the date the contractor was authorized to proceed on a conditional award contract in a negotiated solicitation. For retentions in-house, this is the date the solicitation was canceled (when the contracting officer publishes an amendment to cancel the solicitation).
[29] Cost Comparison Final Result Code. A one-character alpha designator identifying the final result of the comparison between in-house and contractor costs; the contracting officer either awards the contract or cancels the solicitation. Enter one of the following codes:
[30] Decision Rationale Code. A one-character alpha designator that identifies the rationale for awarding a contract or canceling the solicitation. The work shall be performed in-house or by contractor based on cost, for other than cost, or the work shall be performed in-house because no satisfactory commercial source was available (no bids or offers were received or the pre-award survey resulted in the determination that no commercial sources were responsive or responsible). Enter one of the following codes:
[31] (Leave blank)
[31A] Prime Contractor Size. Enter one of the following:
[32] MEO Workyears. The number of annual workyears it takes to perform the work described in the PWS after the MEO analysis has been conducted. This entry will be equal to the number of annual workyears in the in-house bid (No entry required for a direct conversion).
For data elements [33] through [36] of this section enter all data after all adjustments required by appeal board decisions. Do not include minimum cost differential in the computation of any of these data elements. If a valid conversion and/or comparison was not conducted (i.e., all bidders or offerors disqualified, no bids or offers received, etc.) do not complete data elements [33], [34] and [36] of this section. Explain lack of valid cost data in data element [56], “DoD Component Comments” of this section.
[33] First Performance Period. Expressed in months, the length of time covered by the contract. Do not include any option periods.
[34] Conversion and/or Comparison Period. Expressed in months, the total period of operation covered by the conversion or cost comparison; this is the period used as the basis for data elements [35] and [36] of this section.
[35] Total In-House Cost ($000). Enter the total estimated cost of in-house performance for the base year plus option years, in thousands of dollars, rounded to the nearest thousand. An entry is required although the activity remains in-house due to absence of a satisfactory commercial source (No entry required for a direct conversion).
[36] Total Contract Cost ($000). Enter the total estimated cost of contract performance for the base year plus option years, in thousands of dollars, rounded to the nearest thousand.
[37] Scheduled Contract or MEO Start Date. Date the contract and/or MEO was scheduled to start at the beginning of a conversion and/or comparison.
The entries in this section identify the contract or MEO start date and the personnel actions taken as a result of the conversion and/or comparison.
The DoD Component shall enter the following data elements in the first quarterly update subsequent to the start of the contract:
[38] Contract and/or MEO Start Date. The actual date the contractor began operation of the contract or the Government implements the MEO.
[39] Permanent Employees Reassigned to Equivalent Positions. The number of permanent employees who were reassigned to positions of equivalent grade as of the contract start date.
[40] Permanent Employees Changed to Lower Positions. The number of permanent employees who were reassigned to lower grade positions as of the contract start date.
[41] Employees Taking Early Retirement. The number of employees who took early retirement as of the contract start date.
[42] Employees Taking Normal Retirement. The number of employees who took normal retirement as of the contract start date.
[43] Permanent Employees Separated. The number of permanent employees who were
[44] Temporary Employees Separated. The number of temporary employees who were separated from Federal employment as of the contract start date.
[45] Employees Entitled to Severance Pay. The estimated number of employees entitled to severance pay on their separation from Federal employment as of the contract start date.
[46] Total Amount of Severance Entitlements ($000). The total estimated amount of severance to be paid to all employees, in thousands of dollars, rounded to the nearest thousand, as of the contract start date.
[47] Number of Employees Hired by the Contractor. The number of estimated DoD civilian employees (full-time or otherwise) that will be hired by the contractors, or their subcontractors, at the contract start date.
[48] Filed. Were administrative appeals filed?
[49] Source. Who filed the appeal?
[50] Result. Were the appeals finally upheld? (if both appealed, explain result in data element [56] of this section).
[51] Filed. Was a protest filed with GAO?
[52] Source. Who filed the protest?
[53] Result. Was the protest finally upheld? (explain result in data element [56], of this section).
[54] Requested. Was there a request for arbitration?
[55] Result. Was the case found arbitrable? (explain result in data element [56], of this section).
[56] DoD Component Comments. Enter comments, as required, to explain situations that affect the conduct of the conversion and/or comparison. Where appropriate, precede each comment with the CAMIS data element being referenced.
[57] Effective Date. “As of” date of the most current update for the conversion and/or comparison. This data element will be completed by the DMDC.
[58] (Leave blank, for DoD computer program use).
The entries in this section identify information on subsequent performance periods and miscellaneous contract data. The DoD Component shall enter the following data elements in the first quarterly update annually:
[59] Actual Contract Cost First Performance Period ($000). Enter the actual contractor cost for the first performance period, in thousands of dollars, rounded to the nearest thousand.
[60] Actual Contract Cost Second Performance Period ($000). Enter the actual contractor cost for the second performance period, in thousands of dollars, rounded to the nearest thousand.
[61] Actual Contract Cost Third Performance Period ($000). Enter the actual contractor cost for the third performance period, in thousands of dollars, rounded to the nearest thousand.
[62] Contractor Change. Enter one of the following alpha designators to indicate whether the contractor for the second or third performance period has changed from the original contractor.
Data elements [63] through [64] of this section are not required if the answer to [62] of this section is no (N).
[63] New Contractor Size. (If data element [64] of this section contains the alpha designator “I” or “R,” no entry is required)
[64] Reason For Change. DoD Components shall enter one of the following designators listed in the following, followed by the last two digits of the FY in which the change occurred.
[65] Contract Administration Staffing. The actual number of contract administration personnel hired to administer the contract.
40 U.S.C. 484 and 485, 10 U.S.C. 2577.
This document provides revised and expanded instructions on the collection and disposition of cash and cash equivalents received by the DoD Components for the DoD sale of surplus personal property.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Joint Chiefs of Staff (JCS) and the Joint Staff, the Unified and Specified Commands, the Inspector General of the Department of Defense (IG, DoD), the Defense Agencies, and DoD Field Activities (hereafter referred to collectively as “DoD Components”).
(b) Applies to the proceeds resulting from sales made under authority of Public Law 152 and to the following:
(1) Personal property governed by DoD 4160.21-M.
(2) Surplus Government-owned personal property in the possession of contractors, as described in FAR subpart 45.6.
(3) Recyclable material governed by 10 U.S.C. 2577. Such materials would otherwise be sold as scrap or discarded as waste, but are capable of being reused after undergoing some type of physical or chemical processing. The recycling of hazardous materials or hazardous waste shall be accomplished with due recognition of the types of materials being processed and the applicable regulation governing the handling and disposal of such materials. Qualified recyclable materials do not include the following:
(i) Precious metal-bearing scrap and those items that may be used again for their original purposes or functions without any special processing; e.g., used vehicles, vehicle or machine parts, bottles (not scrap glass), electrical components, and unopened containers of oil or solvent.
(ii) Ships, planes, or weapons that must undergo demilitarization or mutilation before sale.
(iii) Scrap generated from DoD industrial fund (IF) operations that has been routinely sold with the proceeds being used to offset customer costs.
(iv) Bones, fats, and meat trimmings generated by a commissary store or exchange.
(a) Cash or cash equivalents in the prescribed amounts shall accompany bid deposits for a bid to be considered responsive. Similarly, cash or cash equivalents for the total sales price shall be received by the DoD Components or, in authorized cases, by contractors before the transfer of physical possession to the successful bidder.
(b) Amounts collected by the DoD Components in connection with the sale of excess and surplus property shall be deposited promptly to the U.S.
(c) The Secretary of each Military Department shall establish qualified recycling programs. The effort associated with the collecting, processing and selling of recyclable material is in appendix A to this part.
(1) Proceeds from the sale of recyclable material shall be used to reimburse installation-level costs incurred in operation of the recyclable program.
(2) After reimbursement of the cost incurred by the installation to operate the recycling program, installation commanders may use up to 50 percent of remaining sale proceeds for pollution abatement, energy conservation, and occupational safety and health activities. A project may not be carried out for an amount greater than 50 percent of the amount established by law as the maximum amount for a minor construction project.
(3) Any sale proceeds remaining after paragraphs (c)(1) and (2) of this section may be transferred to installation morale or welfare activities.
The
(a)
(1)
(2)
(b)
(c)
(2)
(i) If a bidder intends to use a bond or letter of credit without an accompanying personal check, the claim against the performance bond or letter of credit shall be made for any amounts due.
(ii) If personal checks are used, the bond or letter of credit shall be returned intact after the applicable personal checks are honored, unless other instructions have been received from the bidder.
(2)
(i) Before initiating any credit card transactions, the selling DoD Component shall enter into an agreement
(ii) If a credit card is used for the bid deposit and authorization is declined, the bid shall be rejected as nonresponsive and other bidders considered.
(iii) Approval for charges against credit cards shall be processed as follows:
(A) The credit card presented shall be passed through the DoD installation's credit card swiper. The swiper is connected electronically with the network commercial bank selected by the DoD Component, and keys are provided to enter the proposed charge amount. If the charge is approved, the swiper will provide an approval number that shall be recorded on the charge slip.
A swiper is an electronic device that is used to capture the magentic information contained on a credit card and transmit it to the network commercial bank for validation and authorization of a sale. The information captured normally includes the account number, issuing bank, date of expiration of the card, and any credit restrictions that may apply.
(B) The bidder shall sign a standard credit card charge form at the sale contracting office. A copy of this form shall be returned to the card holder at that time. A copy of the charge slip shall be retained by the selling DoD activity as a record of the sale. On the following business day, the installation finance and accounting officer or the activity providing accounting support shall submit the signed credit card forms with a supporting cover sheet showing the total charges to the network commercial bank. Accounting control must be maintained over such in-transit deposits.
(C) On receipt of the credit card charge forms, the network commercial bank shall charge the bidder's credit card account and deposit the funds to the Treasury general account. The network commercial bank also is required to forward a copy of the deposit slip to the DoD installation making the sale within 1 business day. On receipt of the deposit slip, the in-transit account shall be cleared and appropriate accounts credited following the procedures in paragraph (d) of this section:
(iv) If a contractor's bid is provided by message, mail, or telephone to the U.S. Government using a credit card instead of other forms of payment, the following information is required:
(A) Account number.
(B) Bidders name, as it appears on the credit card.
(C) Date of expiration of the card.
(D) Issuing bank.
(E) Type of card.
(d)
(2) See paragraph (f) of this section for special instructions on the processing of proceeds resulting from the sale of recyclable material.
(e)
(2) Normally, noncash bid deposits shall be returned to unsuccessful bidders by DoD Components through the mail. However, when a bidder has requested expedited return and has provided the name of a carrier and a charge account number, the designated carrier shall be called to pick up the
(f)
(1) Proceeds from the sale of recyclable material shall be deposited in F3875, “Budget Clearing Account (Suspense).” The deposit to F3875 shall identify the fiscal station and the name of the installation (use the full name and do not abbreviate) that is to receive the proceeds. Deposits that do not provide the necessary information shall be referred formally to the property disposal cashier for the required information.
(2) The Military Department's finance and accounting office receiving the sales proceeds shall mail a copy of the cash collection voucher to the fiscal station shown on the collection voucher. This advance copy shall be used by the fiscal station to record the collection of proceeds to its account and shall be used for followup purposes, as necessary. The copy received through the financial network shall be used to clear the undistributed collection. These vouchers shall be mailed in the weekly TFO cycle.
(3) The Military Department's finance and accounting office shall:
(i) Report weekly transactions to the responsible fiscal station cited on the collection voucher.
(ii) Report the collections within the same month in the “Statement of Transactions” to the Treasury.
(g)
(2) The contractor making the sale may follow normal company policy on bid deposits and form of payment. However, any loss associated with dishonored payment shall be the contractor's responsibility.
(3) The plant clearance officer (PLCO) is responsible for notifying the appropriate accounting office of the amounts collected by the contractor. The PLCO shall also notify the accounting office whether such collections:
(i) Represent an increase in the dollar value of the applicable contract(s).
(ii) Were made instead of disbursements on the applicable contract(s).
(iii) Were returned to miscellaneous receipt account 972651, “Sale of Scrap and Salvage, Materials, Defense.”
(4) The accounting office for the contract is identified in the accounting classification code. See DoD 7220.9-M, chapter 17 for additional information.
(5) The accounting office shall prepare the source documents necessary to account properly for the transaction. The value of applicable Government property general-ledger-asset accounts shall be reduced for each alternative set forth in paragraph (g)(3) of this section. Additionally, for alternatives (addressed in paragraph (g)(3)(i) or (g)(3)(ii) of this section, an accounting entry shall be made to reflect the creation of reimbursable obligational authority and the use of such authority.
The reports cited in §§ 172.5(f)(3) (i) and (ii) of this part are exempt from licensing in accordance with paragraph E.4g. of DoD 7750.5-M.
10 U.S.C. 2202.
(a) The purpose of the Competitive Information Certificate is to provide the Contracting Officer sufficient information and assurance to support award of a contract in those circumstances where certification is required.
(b) Although a Competitive Information Certificate provides reasonable assurance to the Government, the possibility remains that even a diligent internal review by the contractor may fail to identify illegal or improper actions. The purpose of the Profit Reduction Clause is to ensure effective protection of the Government's interest in making contract awards when a Competitive Information Certification is required. The Profit Reduction Clause is required in all competitively awarded new contracts over $100,000 when a Competitive Information Certificate is required prior to award.
(a) The Competitive Information Certificate is required prior to award of all competitively awarded new contracts of a value exceeding $100,000 to contractors subject to the requirement.
(1) Corporate activities required to provide the Certificate are corporations or corporate divisions which have been the subject of search warrants, or as to which other official information indicates such certification should be required, and their subsidiaries and affiliates. A list of contractors from whom certification is required is maintained and published as required under authority of the Department of Defense Procurement Task Force.
(2) The requirement to provide the Certificate may be further limited to certain divisions or subsidiaries, contracts or programs upon the basis of official information, furnished by the contractor or otherwise, sufficient to establish to the satisfaction of the Department of Defense that the investigation is so limited. Such information may include copies of search warrants, subpoenas and affidavits from corporate officials concerning the scope and conduct of the investigation. The sufficiency of such information is solely within the discretion of the Department of Defense.
(3) Contractors from whom certification in certain instances is required will be relieved of the certification requirement when the Department of Defense determines that information developed in the “Ill Wind” investigation has been resolved in such a manner that certification is no longer required to protect the interests of the Government.
(4) A Certificate will not be required prior to the exercise of options or noncompetitive award of contracts. This does not limit in any manner the Government's ability to inquire into, or require information concerning, the circumstances surrounding an underlying competitive award.
(b) With respect to information disclosed under paragraph (1) of the Certificate, the offeror must attach to the Certificate a written statement detailing what information was obtained, and how, when, and from whom it was obtained. This information shall be evaluated at the levels prescribed by the contracting component to determine whether award of the contract should be made to the offeror. If during this review it is determined that the offeror may have obtained an unfair competitive advantage from the information and that there is no other reason for denying award to the offeror, the reviewing authority shall consider whether action may be taken to neutralize the potential unfair competitive advantage. Any decision to deny award to an offeror based upon information disclosed in the Certificate shall be reviewed and approved by the Service Acquisition Executive.
(c) This certificate and any accompanying statements required, must be executed by the offeror's corporate president or his designee at no more than one level below the president's level.
(d) If a contractor from whom certification is required is uncertain as to whether competitive information otherwise required to be disclosed was generally available to offerors, the uncertainty should be resolved by disclosure.
(e) Contracting Officers may continue to accept Certificates of Business Ethics and Integrity complying with the Interim rule in lieu of Competitive Information Certificates.
(f) The Competitive Information Certificate shall be in the following form:
(1) (Name of the offeror) certifies, to the best of its knowledge and belief, that
(i) With the exception of any information described in an attachment to this certificate, and any information the offeror reasonably believes was made generally available to prospective offerors, the offeror has not knowingly obtained, directly or indirectly from the Government, any written information or oral extract or account thereof relating to this solicitation which was
(A) Submitted to the Government by offerors or potential offerors in response to the Government's solicitation for bid or proposal;
(B) Marked by an offeror or potential offeror to indicate the information was submitted to the Government subject to an assertion of privilege against disclosure;
(C) Marked or otherwise identified by the Government pursuant to law or regulation as classified, source selection sensitive, or for official use only; or
(D) The disclosure of which to the offeror or potential offeror by a Government employee would, under the circumstances, otherwise violate law or regulation.
(ii) The offeror named above
(A) Determined the prices in its offer independently, without, for the purpose of restricting competition, any consultation, communications, or agreement, directly or indirectly, with any other offeror or competitor relating to (
(B) Has not knowingly disclosed the prices in its offer, directly or indirectly, to any other offeror or competitor before bid opening (in the case of a sealed bid solicitation) or contract award (in the case of a negotiated solicitation) unless otherwise required by law;
(C) Has not attempted to induce any other concern to submit or not to submit an offer for the purpose of restricting competition.
(iii) The offeror has attached an accurate description of the internal review forming the basis for the certifications provided herein.
The following profit reduction clause is required in all competitively awarded new contracts over $100,000 when a Competitive Information Certificate is required prior to award.
Profit Reduction for Illegal or Improper Activity
(a) The government, at its election, may reduce the contract price by the amount of any anticipated profit determined as set forth in paragraph (b) of this section; if
(1) A person or business entity is convicted for violating 18 U.S.C. 201-224 (bribery, graft, and conflicts of interest), 18 U.S.C. 371 (conspiracy), 18 U.S.C. 641 (theft of public money, property, or records), 18 U.S.C. 1001 (false statements), 18 U.S.C. 1341 (fraud), 18 U.S.C. 1343 (fraud by wire) for any act in connection with or related to the obtaining of this contract; or
(2) The Secretary of Defense, or his designee, determines that the Competitive Information Certificate submitted by the offeror in connection with award of this contract
(i) Was materially false at the time it was filed, or
(ii) Notwithstanding the offeror's best knowledge and belief, was materially incomplete or inaccurate.
(b) The amount of anticipated profits referred to in § 173.3(a) shall be:
(1) In the case of a cost-plus-fixed-fee contract, the amount of the fee specified in the contract at the time of award;
(2) In the case of fixed-price-incentive-profit or cost-plus-incentive-fee contract, the amount of the target profit or fee specified in the contract at the time of award; or
(3) In the case of a firm-fixed-price contract, the amount of anticipated profit determined by the contracting officer, after notice to the contractor and opportunity to comment, from records or documents in existence prior to the date of the award of the contract.
(c) The rights and remedies of the government provided in this cluase shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract.
*Firm suspended as of July 6, 1988.
10 U.S.C. 2687 note.
This part:
(a) Establishes policy and assigns responsibilities under the President's Five-Part Plan, “A Program to Revitalize Base Closure Communities,” July 2, 1993,
(b) Implements 107 Stat. 1909, National Defense Authorization Act for Fiscal Year 1994, Title XXIX and The Base Closure Community Redevelopment and Homeless Assistance Act of 1994 (Pub. L. 103-421).
(c) Authorizes the publication of DoD 4165.66-M, “Base Reuse Implementation Manual,” in accordance with DoD 5025.1-M, “DoD Directive System Procedures,” August 1994.
This part applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Unified Combatant Commands, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”).
(a)
(b)
It is DoD policy to:
(a) Help communities impacted by base closures and realignments achieve rapid economic recovery through effective reuse of the assets of closing and realigning bases—more quickly, more effectively and in ways based on local market conditions and locally developed reuse plans. This will be accomplished by quickly insuring that communities and the Military Departments communicate effectively and work together to accomplish mutual goals of quick property disposal and rapid job generation.
(b) This part does not create any rights or remedies and may not be relied upon by any person, organization, or other entity to allege a denial of any rights or remedies other than those provided by Title XXIX of Pub. L. 103-160, or Pub. L. 103-421.
(a) The Under Secretary of Defense for Acquisition and Technology shall issue DoD Instructions as necessary, to further implement applicable public laws effecting base closure implementation, and shall monitor compliance with this part. All authorities of the Secretary of Defense in Public Law 103-421 (108 Stat. 4326
(b) The Heads of the DoD Components shall advise their personnel with responsibilities related to base closures of the policies set forth in this part.
10 U.S.C. 2687 note.
This part prescribes procedures to implement “Revitalizing Base Closure Communities” (32 CFR part 174), the President's five-part community reinvestment program, and real and personal property disposal to assist the economic recovery of communities impacted by base closures and realignments. The expeditious disposal of real and personal property will help communities get started with reuse early and is therefore critical to timely economic recovery.
This part applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the United Combatant Commands, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”).
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
It is DoD policy to help communities impacted by base closures and realignments achieve rapid economic recovery through effective reuse of the assets of closing and realigning bases-more quickly, more efficiently, and in ways based on local market conditions and locally developed reuse plans. This will be accomplished by quickly ensuring that communities and the Military Departments communicate effectively and work together to accomplish mutual goals of quick property disposal and rapid job generation. This regulation does not create any rights of remedies and may not be relied upon by any person, organization, or other entity to allege a denial of any rights or remedies other than those provided by Title XXIX of Public Law 103-160, Public Law 103-421, or Title XXVII of Public Law 104-106.
(a) The Deputy Under Secretary of Defense (Industrial Affairs and Installations), after coordination with the General Counsel of the Department of Defense and other officials as appropriate, may issue guidance through the publication of a Manual or other such document necessary to implement laws, Directives and Instructions on the retention or disposal of real and personal property at closing or realigning bases.
(b) The Heads of the DoD Components shall ensure compliance with this part and guidance issued by the Assistant Secretary of Defense for Economic Security and the Deputy Under Secretary of Defense (Industrial Affairs and Installations) on revitalizing base closure communities.
(a) The authority provided by sections 202 and 203 of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 483 and 484) for the utilization and disposal of excess and surplus property at closing and realigning bases has been delegated by the Administrator, GSA, to the Secretary of Defense by delegations dated March 1, 1989; October 9, 1990; September 13, 1991; and, September 1, 1995.
(b) Authorities delegated to the Deputy Under Secretary of Defense (Industrial Affairs and Installations)
(a) Identification of interest in real property. (1) To speed the economy recovery of communities affected by closures and realignments, it is DoD policy to identify DoD and federal interests in real property at closing and realigning military bases as quickly as possible. The Military Department having responsibility for the closing or realigning base shall identify such interests. The Military Department will keep the Local Redevelopment Authority (LRA) informed of these interests. This section establishes a uniform process, with specified timelines, for identifying real property which is excess to the Military Department for use by other Departments of Defense (DoD) Components and other federal agencies, and for the disposal of surplus property for various purposes.
(2) Upon the President's submission of the recommendations for base closures and realignments to the Congress in accordance with the Defense Base Closure and Realignment Act of 1990 (Pub. L. 101-510), the Military Department shall send out a notice of potential availability to the other DoD Components, and other federal agencies. The notice of potential availability is a public document and should be made available in a timely basis, upon request. Federal agencies are encouraged to review this list, and to evaluate whether they may have a requirement for the listed properties. The notice of potential availability should describe the property and buildings that may be available for transfer. Installations which wholly or in part are comprised of withdrawn and reserved public domain lands should implement paragraph (a)(12) of this section at the same time.
(3) Military Departments should consider LRA input in making determinations on the retention of property (size of cantonment area), if provided. Generally, determinations on the retention of property (or size of the cantonment area) should be completed prior to the date of approval of the closure or realignment.
(4) Within one week of the date of approval of the closure or realignment, the Military Department shall issue a formal notice of availability to other DoD Components and federal agencies covering closing and realigning installation buildings and property available for transfer to other DoD Components and federal agencies. Withdrawn public domain lands, which the Secretary of the Interior has determined are suitable for return to his jurisdiction, will not be included in the notice of availability.
(5) Within 30 days of date of the notice of availability, any DoD Component or federal agency is required to provide a written, firm expression of interest for buildings and property. An expression of interest must explain the intended use and the corresponding requirement for the buildings and property.
(6) Within 60 days of the date of the notice of availability, the DoD Component or federal agency expressing interest in buildings or property must submit an application for transfer of such property to the Military Department or federal agency.
(i) Within 90 days of the notice of availability, the FAA should survey the air traffic control and air navigation equipment at the installation to determine what is needed to support the air traffic control, surveillance, and communications functions supported by the Military Department, and to identify the facilities needed to support the National Airspace System. FAA requests for property to manage the National Airspace System will not be governed by paragraph (a)(9) of this section. Instead, such requests will be governed by the requirements of 41 CFR 101-47.308-2, to determine the transfer of property necessary for control of the airspace being relinquished by the Military Department.
(7) The Military Department will keep the LRA informed of the progress in identifying interests. At the same time, the LRA is encouraged to contact federal agencies which sponsor public benefit transfers for information and
(8) Federal agencies and DoD Components are encouraged to discuss their plans and needs with the LRA, if an LRA exists. DoD Components and federal agencies are encouraged to notify the Military Department of the results of this non-binding consultation. The Military Departments, the Base Transition Coordinator, and the Office of Economic Adjustment Project Manager are available to help facilitate communication between the federal agencies, DoD Components, and the LRA.
(9) A request for property from a DoD Component or federal agency must contain the following information:
(i) A completed GSA Form 1334, Request for Transfer (for requests from other DoD Components a DD Form 1354 is required). This must be signed by the head of the Component of the Department or Agency requesting the property. If the authority to acquire property has been delegation, a copy of the delegation must accompany the form;
(ii) A statement from the head of the requesting Component or agency that the request does not establish a new program (i.e., one that has never been reflected in a previous budget submission or Congressional action);
(iii) A statement that the requesting Component or agency has reviewed its real property holdings and cannot satisfy this requirement with existing property. This review must include all property under the requester's accountability, including permits to other federal agencies and outleases to other organizations;
(iv) A statement that the requested property would provide greater long-term economic benefits than acquisition of a new facility or other property for the program;
(v) A statement that the program for which the property is requested has long-term viability;
(vi) A statement that considerations of design, layout, geographic location, age, state of repair, and expected maintenance costs of the requested property clearly demonstrate that the transfer will prove more economical over a sustained period of time than acquiring a new facility;
(vii) A statement that the size of the property requested is consistent with the actual requirement;
(viii) A statement that fair market value reimbursement to the Military Department will be made within two years of the initial request for the property, unless this obligation is waived by the Office of Management and Budget and the Secretary of the Military Department or a public law specifically provides for a non-reimbursable transfer. However, requests from the Military Departments or DoD Components do not need an Office of Management and Budget waiver; and
(ix) A statement that the requesting DoD Component or federal agency agrees to accept the care and custody costs for the property on the date the property is available for transfer, as determined by the Military Department.
(10) The Military Department will make it decision on a request from a federal agency, Military Department, or DoD Component based upon the following factors, from the Federal Property Management Regulations (41 CFR 101-47.201-2):
(i) The paramount consideration shall be the validity and appropriateness of the requirement upon which the proposal is based;
(ii) The proposed federal use is consistent with the highest and best use of the property;
(iii) The requested transfer will not have an adverse impact on the transfer of any remaining portion of the base;
(iv) The proposed transfer will not establish a new program or substantially increase the level of an agency's existing programs;
(v) The application offers fair market value for the property, unless waived;
(vi) The proposed transfer addresses applicable environmental responsibilities to the satisfaction of the Military Department; and
(vii) The proposed transfer is in the best interest of the Government.
(11) When there are more than one acceptable applications for the same building or property, the Military Department responsible for the installation should first consider the needs of the military to carry out its mission. The Military Department should then
(12) Closing or realigning installations may contain “public domain lands” which have been withdrawn by the Secretary of the Interior from operation of the public land laws and reserved for the Defense Department's use. Lands deemed suitable for return to the public domain are not real property governed by the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 472), and are not governed by the property management and disposal provisions of the Base Closure and Realignment Act of 1988 (Pub. L. 100-526) and Defense Base Closure and Realignment Act of 1990 (Pub. L. 101-510). Public domain lands are under the jurisdiction of the Secretary of the Interior and administered by the Bureau of Land Management (BLM) unless the Secretary of the Interior has withdrawn the lands and reserved them for another federal agency's use.
(i) The Military Department responsible for a closing or realigning installation will provide the BLM with the notice of potential availability, as well as information about which, if any, public domain lands will be affected by the installation's closing.
(ii) The BLM will review the notice of potential availability to determine if any installations contain withdrawn public domain lands. Before the date of approval of the closure or realignment, the BLM will review its land records to identify any withdrawn public domain lands at the closing installations. Any records discrepancies between the BLM and Military Departments should be resolved within this time period. The BLM will notify the Military Departments as to the final agreed upon withdrawn and reserved public domain lands at installations.
(iii) Upon agreement as to what withdrawn and reserved public domain lands are affected at closing installations, the BLM will initiate a screening of DOI agencies to determine if these lands are suitable for programs of the Secretary of the Interior.
(iv) Military Departments will transmit a Notice of Intent to Relinquish (see 43 CFR part 2372) to the BLM as soon as it is known that there is no DoD Component interest in reusing the public domain lands. The BLM will complete the suitability determination screening process within 30 days of receipt of the Military Department's Notice of Intent to Relinquish. If a DoD Component is approved to reuse the public domain lands, the BLM will be notified and BLM will determine if the current authority for military use of these lands needs to be modified/amended.
(v) If BLM determines the land is suitable for return, they shall notify the Military Department that the intent of the Secretary of the Interior is to accept the relinquishment of the Military Department.
(vi) If BLM determines the land is not suitable, the land should be disposed of pursuant to base closure law.
(13) The Military Department should make its surplus determination within 100 days of the issuance of the notice of availability, and shall inform the LRA of the determination. If requested by the LRA, the Military Department may postpone the surplus determination for a period of no more than six months after the date of approval of the closure of realignment.
(i) In unusual circumstances, extensions beyond six months can be granted by the Deputy Under Secretary of Defense (Industrial Affairs and Installations).
(ii) Extensions of the surplus determination should be limited to the portions of the installation where there is an outstanding interest, and every effort should be made to make decisions on as much of the installation as possible, within the specified timeframes.
(14) Once the surplus determination has been made, the Military Department shall:
(i) Follow the procedures outlined in paragraph (b) of this section, if applicable.
(ii) Or, for installations approved for closure or realignment after October 25, 1994, and installations approved for closure or realignment prior to October 25, 1994, that have elected, prior to December 24, 1994, to come under the
(15) Following the surplus determination, but prior to the disposal of property, the Military Department may, at its discretion, withdraw the surplus determination and evaluate a federal agency's late request for excess property.
(i) Transfers under this paragraph shall be limited to special cases, as determined by the Secretary of the Military Department.
(ii) Requests shall be made to the Military Department, as specified under paragraphs (a)(8) and (a)(9) of this section, and the Military Department shall notify the LRA of such late request.
(iii) Comments received from the LRA and the time and effort invested by the LRA in the planning process should be considered when the Military Department is reviewing a late request.
(b) Homeless screening for properties not covered by the Base Closure Community Redevelopment and Homeless Assistance Act of 1994. (1) This section outlines the procedure created for the identification of real property to fulfill the needs of the homeless by section 2905(b)(6) of Pub. L. 101-510, as amended by Public Law 103-160 (referred to as the Pryor Amendment). It applies to BRAC 88, 91 and 93 bases if the LRA did not elect to be subject to the alternate homeless assistance screening procedure contained in the Base Closure Community Redevelopment and Homeless Assistance Act of 1994.
(2) The Military Department shall sponsor a workshop or seminar in the communities which have closing or realigning bases, unless such a workshop or seminar has already been held. These workshops or seminars will be conducted prior to the
(i) Not later than the date upon which the determination of surplus is made, the Military Department shall complete any determinations or surveys necessary to determine whether any building is available to assist the homeless. The Military Department shall then submit the list of properties available to assist the homeless to HUD.
(ii) HUD shall make a determination of the suitability of each property to assist the homeless in accordance with the Stewart B. McKinney Homeless Assistance Act, 42 U.S.C. 11411, (the McKinney Act). Within 60 days from the date of receipt of the information from the Department of Defense, HUD shall publish a list of suitable properties that shall become available when the base closes or realigns.
(iii) The listing of properties in the
The properties contained in this listing are closing and realigning military installations. This report is being accomplished pursuant to section 2905(b)(6) of Public Law 101-510, as amended by Public Law 103-160. In accordance with section 2905(b)(6), this property is subject to a one-time publication under the McKinney Act after which property not provided to homeless assistance providers will not be published again unless there is no expression of interest submitted by the local redevelopment authority in the one-year period following the end of the McKinney screening process pursuant to this publication.
(3) Providers of assistance to the homeless shall then have 60 days in which to submit expressions of interest to HHS in any of the listed properties. If a provider indicates an interest in a listed property, it shall have an additional 90 days after submission of its written expression of interest to submit a formal application to HHS, a period which HHS can extend. HHS shall then have 25 days after receipt of a completed application to review and complete all actions on such applications.
(4) During this screening process (from 60 to 175 days following the
(i) No timely expressions of interest from providers are received by HHS;
(ii) No timely applications from providers expressing interest are received by HHS; or,
(iii) HHS rejects all applications received for a specific property.
(5) The Military Department should promptly inform the affected LRA, the Governor of the State, local governments, and agencies which support public benefit conveyances of the date the surplus property will be available for community reuse if:
(i) No provider expresses an interest to HHS in a property with the allotted 60 days;
(ii) There are expressions of interest by homeless assistance providers, but no application is received by HHS from such a provider within the subsequent 90-day application period (or within the longer application period if HHS has granted an extension); or
(iii) HHS rejects all applications for a specific property at any time during the 25 day HHS review period.
(6) The LRA shall have 1 year from the date of notification under paragraph (b)(5) of this section to submit a written expression of interest to incorporate the remainder of the property into a redevelopment plan.
(7) During the allotted 1-year period for the LRA to submit a written expression of interest for the property, surplus properties not already approved for homeless reuse shall not be available for homeless assistance. The surplus properties will also not be advertised by HUD as suitable during these 1-year periods. The surplus property may be available for interim leases consistent with paragraph (g) of this section.
(8) If the LRA does not express in writing its interest in a specific property during the allotted 1-year period or it notifies the Military Department it is not interested in the property, the disposal agency shall again notify HUD of the date of availability of the property for homeless assistance. HUD may then list the property in the
(c)
(d)
(2) The LRA should focus primarily on developing a comprehensive redevelopment plan based upon local needs. The plan should recommend land uses based upon an exploration of feasible reuse alternatives. If applicable, the plan should consider notices of interest received under the provisions of the Base Closure Community Redevelopment and Homeless Assistance Act of 1994 (Pub. L. 103-421). This section shall not be construed to require a plan that is enforceable under state and local land use laws, nor is it intended to create any exemption from such laws.
(3) The Military Department will develop a disposal plan and complete the appropriate environmental documentation no later than 12 months from receipt of the redevelopment plan. The local redevelopment plan will generally be used as the basis for the proposed action in conducting environmental analyses required by under the National Environmental Policy Act of 1969 (NEPA), (42 U.S.C. 4332
(i) In the event there is no LRA recognized by DoD and/or if a redevelopment plan is not received from the LRA within 15 months from the determination of surplus under paragraph (a)(13) of this section, (unless an extension of time has been granted by the Deputy Under Secretary of Defense (Industrial Affairs and Installations)), the applicable Military Department shall proceed with the disposal of property
(ii) [Reserved]
(e) Economic development conveyances. (1) Section 2903 of Public Law 103-160 gives the Secretary of Defense the authority to transfer property to local redevelopment authorities for consideration in cash or in kind, with or without initial payment, or with only partial payment at time of transfer, at or below the estimated present fair market value of the property. This authority creates an additional tool for local communities to help spur economic opportunity through a new real property conveyance method specifically designed for economic development, referred to as the “Economic Development Conveyance” (EDC).
(2) The EDC can only be used when other surplus federal property disposal authorities for the intended land use cannot be used to accomplish the necessary economic redevelopment.
(3) An LRA is the only entity able to receive property under an EDC.
(4) A properly completed application will be the basis for a decision on whether an LRA will be eligible for an EDC. An application should be submitted by the LRA after a Redevelopment Plan is adopted by the LRA. The Secretary of the Military Departments shall establish a reasonable time period for submission of the EDC application after consultation with the LRA. The Military Departments will review the applications and make a decision whether to make an EDC based on the criteria specified in paragraph (e)(7) of this section. The terms and conditions of the EDC will be negotiated between the Military Departments and the LRA. Bases in rural areas shall be conveyed with no consideration if they meet the standards in paragraph (f)(5) of this section.
(5) The application should explain why an EDC is necessary for economic redevelopment and job creation. In addition to the elements in paragraph (e)(5) of this section, after Military Department review of the application, additional information may be requested to allow for a better evaluation of the application. The application should also contain the following elements:
(i) A copy of the adopted redevelopment plan.
(ii) A project narrative including the following:
(
(
(
(
(
(iii) A description of how the EDC will contribute to short- and long-term job creation and economic redevelopment of the base and community, including projected number, and type of new jobs it will assist in creating.
(iv) A business/operational plan for the EDC parcel, including such elements as:
(v) A statement describing why other authorities—such as public or negotiated sale and public benefit transfers for education, parks, public health, aviation, historic monuments, prisons, and wildlife conservation—cannot be used to accomplish the economic development and job creation goals.
(vi) If a transfer is requested for less than the estimated present fair market value (“FMV”), with or without initial payment at the time of transfer, then a statement should be provided justifying the discount. The statement should include the amount and form of the
(vii) A statement of the LRA's legal authority to acquire and dispose of the property.
(6) Upon receipt of an application for an EDC, the Secretary of the Military Department will determine whether an EDC is needed to spur economic development and job creation and examine whether the terms and conditions proposed are fair and reasonable. The Military Department may also consider information independent of the application, such as views of other federal agencies, appraisals, caretaker costs and other relevant material. The Military Department may propose and negotiate any alternative terms or conditions that it considers necessary.
(7) The following factors will be considered, as appropriate, in evaluating the application and the terms and conditions of the proposed transfer, including price, time of payment and other relevant methods of compensation to the federal government.
(i) Adverse economic impact of closure or realignment on the region and potential for economic recovery after an EDC.
(ii) Extent of short- and long-term job generation.
(iii) Consistency with overall Redevelopment Plan.
(iv) Financial feasibility of the development, including market analysis and need and extent of proposed infrastructure and other investments.
(v) Extent of state and local investment, level of risk incurred, and the LRA's ability to implement the plan.
(vi) Current local and regional real estate market conditions.
(vii) Incorporation of other federal agency interests and concerns, and applicability of, and conflicts with, other federal surplus property disposal authorities.
(viii) Relationship to the overall Military Department disposal plan for the installation.
(ix) Economic benefit to the federal government, including protection and maintenance cost savings and anticipated consideration from the transfer.
(x) Compliance with applicable federal, state, and local laws and regulations.
(8) Before making an EDC, the Military Department must prepare an estimate of the present fair market value of the property, which may be expressed as a range of values. The Military Department shall consult with the LRA on valuation assumptions, guidelines and on instructions given to the person(s) making the estimation of value. The Military Department is fully responsible for completion of the valuation. The Military Department, in preparing the estimate of present fair market value shall include, to the extent practicable, the uses identified in the local redevelopment plan.
(f)
(2) An EDC must be one of the two following types of agreements:
(i) Consideration within the estimated range of present fair market value, as determined by the Secretary of the Military Department.
(ii) Consideration below the estimated range of present fair market value, when proper justification is provided and when the Secretary of the Military Department determines that a discount is necessary for economic redevelopment and job creation.
(3) If the consideration under an EDC is within the range of value listed in paragraph (f)(2)(i) of this section, the amount paid in the future should take into account the time value of money and include repayment of interest. Any transaction that waives or delays interest payments will be considered as a transaction below the present fair market value under paragraph (f)(2)(ii) of
(4) Additional provisions may be incorporated in the conveyance documents to protect the Department's interest in obtaining the agreed upon compensation, including such items as predetermined release prices, or other appropriate clauses designed to ensure payment and protect against fraudulent transactions.
(5) In a rural area, as defined by this rule, any EDC approved by the Secretary of the Military Department shall be made without consideration if the base closure will have a substantial adverse impact on the economy of the communities in the vicinity of the installation and on the prospect for their economic recovery.
(6) In those instances in which an EDC is made for consideration below the range of the estimated present fair market value of the property—or if the estimated present fair market value is expressed as a range of values, below the lowest value in that range—the Military Department shall prepare a written explanation of why the estimated present fair market value was not obtained. Additionally, the Military Departments must prepare a written statement explaining why other federal property transfer authorities could not be used to generate economic redevelopment and job creation.
(g)
(2) In addition to leasing property at fair market value, to assist local redevelopment efforts the Secretaries of the Military Departments may also lease real and personal property located at a military installation to be closed or realigned under a base closure law, pending final disposition, for less than fair market value if the Secretary concerned determines that:
(i) A public interest will be served as a result of the lease; and
(ii) The fair market value of the lease is unobtainable, or not compatible with such public benefit.
(3) Pending final disposition of an installation, the Military Departments may grant interim leases which are short-term leases that make no commitment for future use or ultimate disposal. When granting an interim lease, the Military Department will generally lease to the LRA but can lease property directly to other entities. If the interim lease is entered into prior to completion of the final disposal decisions under the National Environmental Policy Act (NEPA) process, the term may be for up to five years, including options to renew, and may contain restrictions on use. Leasing should not delay the final disposal of the property. After completion of the final disposal decisions, the term of the lease may be longer than five years.
(4) If the property is leased for less than fair market value to the LRA and the interim lease permits the property to be subleased, the interim lease shall provide that rents from the subleases will be applied by the lessee to the protection, maintenance, repair, improvement and costs related to the property at the installation consistent with 10 U.S.C. 2667.
(h)
(2) Each Military Department and DoD Component, as appropriate, will take an inventory of the personal property, including its condition, within 6 months after the date of approval of closure or realignment. This inventory will be limited to the personal property located on the real property to be disposed of by the Military Department or DoD Component. The inventory will be taken in consultation with LRA officials. If there is no LRA, the Military Department will offer to provide a consultation for the local government in whose jurisdiction the installation is wholly located or for a local government agency or a state government agency designated for that purpose by the chief executive officer of the state. Based on these consultations, the base commander will determine the items or category of items that have the potential to enhance the reuse of the real property.
(3) Except for property subject to the exemptions in paragraph (h)(5) of this section, personal property with potential to enhance the reuse of the real estate shall remain at a base being closed or realigned until disposition is otherwise determined by the Military Department. This determination will be made no earlier than 90 days after the Military Department receives an adopted redevelopment plan or when notified by the LRA that there will be no redevelopment plan.
(4) National Guard property demonstrably identified as being purchased with state funds is not available for reuse planning or subject to transfer for redevelopment purposes, unless so identified by the state property officer. National Guard property purchased with federal funds is subject to inventory and may be made available for redevelopment planning purposes.
(5) Personal property may be removed upon approval of the base commander or higher authority, within and as prescribed by the Military Department, after the inventory required in paragraph (h)(2) of this section has been sent to the redevelopment authority, when:
(i) The property, other than ordinary fixtures, is required for the operation of a transferring unit, function, component, weapon, or weapons system;
(ii) The property is required for the operation of a unit, function, component, weapon, or weapon system at another installation within the Military Department, subject to the following conditions:
(
(
(iii) The property is uniquely military in character and is likely to have no civilian use (other than use for its material content or as a source of commonly used components). This property consists of classified items; nuclear, biological, chemical items; weapons and munitions; museum property or items of significant historic value that are maintained or displayed on loan; and similar military items;
(iv) The property is not required for the reutilization or redevelopment of the installation (as jointly determined by the Military Department concerned and the redevelopment authority);
(v) The property is stored at the installation for distribution (including spare parts or stock items). This property includes materials or parts used in a manufacturing or repair function but does not include maintenance spares for equipment to be left in place;
(vi) The property meets known requirements of an authorized program of another federal department or agency that would have to purchase similar items, and the property is the subject of a written request received from the head of the other Department or Agency. If the authority to acquire personal property has been delegated, a copy of the delegation must accompany the request. In this context,
(vii) The property belongs to nonappropriated fund instrumentalities (NAFI) and other non-Defense Department activities. Such property may be removed at the Military Departments’ discretion because it does not belong to the Defense Department and, therefore, it may not be transferred to the redevelopment authority under this section. For NAFI property, separate arrangements for communities to purchase such property are possible and may be negotiated with the Military Department concerned; and,
(viii) The property is needed elsewhere in the national security interest of the United States as determined by the Secretary of the Military Department concerned. This authority may not be redelegated below the level of an Assistant Secretary. In exercising this authority, the Secretary may transfer
(6) In addition to the exemptions in paragraph (h)(5) of this section, the Military Department or DoD Component is authorized to substitute an item similar to one requested by the redevelopment authority.
(7) Personal property not subject to the exemptions in paragraph (h)(5) of this section may be conveyed to the redevelopment authority as part of an economic development conveyance for the real property if the Military Department makes a finding that the personal property is necessary for the effective implementation of the redevelopment plan.
(8) Personal property may also be conveyed separately to the LRA under an economic development conveyance for personal property. This type of economic development conveyance can be made if the Military Department determines that the transfer is necessary for the effective implementation of a redevelopment plan with respect to the installation. Such determination shall be based on the LRA's timely application for the property, which should be submitted to the Military Department upon completion of the redevelopment plan. The application must include the LRA's agreement to accept the personal property after a reasonable period. The transfer will be subject to reasonable limitations and conditions on use.
(i) The Military Department will restrict the LRA's ability to acquire personal property at less than fair market value solely for the purpose of releasing or reselling it, unless the LRA will lease or sell the personal property to entities which will place it into productive use in accordance with the redevelopment plan. The LRA must retain personal property conveyed under an EDC for less than fair market value for at least one year if it is valued at less than $5,000, or at least two years if valued at more than $5,000. Any proceeds from such leases or sales must be used to pay for protection, maintenance, repair or redevelopment of the installation. The LRA will be required to certify its compliance with the provisions of this section at the end of each fiscal year for no more than two years after transfer. The certification may be subject to random audits by the Government.
(9) Personal property that is not needed by the Military Department or a federal agency or conveyed to a redevelopment authority (or a state or local jurisdiction in lieu of a local redevelopment authority) will be transferred to the Defense Reutilization and Marketing Office for processing in accordance with 41 CFR parts 101-43 through 101-45, “Federal Property Management Regulations,” and DoD 4160.21-M.
(10) Useful personal property determined to be surplus to the needs of the federal government by the Defense Reutilization and Marketing Office and not qualifying for transfer to the redevelopment authority under an economic conveyance may be donated to the community or redevelopment authority through the appropriate State Agency for Surplus Property (SASP). Personal property donated under this procedure must meet the usage and control requirements of the applicable SASP. Property subsequently not needed by the community or redevelopment authority shall be disposed of as required by its SASP.
(i)
(2) In order to ensure quick reuse, the Military Department, in consultation with the LRA, will establish initial levels of maintenance and repair needed to aid redevelopment and to protect the property for the time periods set forth below. Where agreement between the Military Department and the LRA cannot be reached, the Secretary of the Military Department will determine the required levels of maintenance and repair and its duration. In no case will these initial levels of maintenance:
(i) Exceed the standard of maintenance and repair in effect on the date of closure or realignment approval;
(ii) Be less than maintenance and repair required to be consistent with federal government standards for excess and surplus properties (i.e., 41 CFR 101-47.402 and 41 CFR 101-47.4913); or,
(iii) Require any property improvements, including construction, alteration, or demolition, except when the demolition is required for health, safety, or environmental purposes, or is economically justified in lieu of continued maintenance expenditures.
(3) The initial levels of maintenance and repair shall be tailored to the redevelopment plan, and shall include the following provisions:
(i) The facilities and equipment that are likely to be utilized in the near term will be maintained at levels that shall prevent undue deterioration and allow transfer to the LRA.
(ii) The scheduled closure or realignment date of the installation will not be delayed.
(4) The Military Department will not reduce the agreed upon initial maintenance and repair levels unless it establishes a new arrangement (e.g., termination of caretaking upon leasing of property) in consultation with the LRA.
(5) The Military Department will determine the length of time it will maintain the initial levels of maintenance and repair for each closing or realigning base. This determination will be based on factors such as the closure/realignment date and the timing of the completion of the National Environmental Policy Act (NEPA) documentation on the proposed disposal (such as a finding of no significant impact and disposal decision following an environmental assessment or the record of decision following an environmental impact statement).
(i) For a base that has not closed prior to the publication of this rule, and where the Military Department has completed the NEPA analysis on the proposed disposal before the operational closure of that base, the time period for the initial levels of maintenance and repair normally will extend no longer than one year after operational closure of the base.
(ii) For a base that has not closed prior to the publication of this rule, and where the base's operational closure precedes the completion of the NEPA analysis on the proposed disposal, the time period for the initial levels of maintenance and repair will normally extend no longer than one year after operational closure or 180 days after the Secretary of the Military Department approves the NEPA analysis.
(iii) For a based that closed prior to the publication of this rule, the time period for the existing levels of maintenance will normally extend no longer than one year from the date of the publication of this rule or six years after the date of approval of the closure or realignment (whichever comes first).
(6) The Military Department may extend the time period for the initial levels of maintenance and repair for property still under its control for an additional period, if the Secretary of the Military Department determines that the Local Redevelopment Authority is actively implementing its redevelopment plan, and such levels of maintenance are justified.
(7) Once the time period for the initial or extended levels of maintenance and repair elapses, the Military Department will reduce the levels of maintenance and repair to levels consistent with federal government standards for excess and surplus properties (i.e., 41 CFR 101-47.402 and 41 CFR 101-47.4913).
(j) [Reserved]
(k)
(2) Subject to BRAC 1990 and this part, the decision whether to transfer property pursuant to a leaseback rests with the relevant military department. However, a military department may only transfer property via a leaseback if the Federal entity that needs the property agrees to the leaseback arrangement.
(3) If for any reason property cannot be transferred pursuant to a leaseback (e.g., the relevant Federal Agency prefers ownership, the LRA and the Federal entity cannot agree on terms of the lease, or the military department determines that a leaseback would not be in the Federal interest), such property shall remain in Federal ownership unless and until the relevant landholding entity determines that it is surplus pursuant to the Federal Property Management Regulations.
(4) If a building or structure is proposed for transfer under this authority, that which is leased back to the Federal Department or Agency may be all or a portion of that building or structure.
(5) The leaseback authority may be used at all installations approved for closure or realignment under BRAC 1990.
(6) Transfers under this authority must be to an LRA.
(7) Transfers under this authority may be by lease in furtherance of conveyance or deed. A lease in furtherance of conveyance is appropriate only in those circumstances where deed transfer cannot be accomplished because the requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601,
(8) The leaseback authority can be used to transfer property that is needed either by existing Federal tenants or by Federal Departments or Agencies desiring to locate onto the property after operational closure. The Military Department that is closing or realigning the installation may not transfer property to an LRA under this authority and lease it back unless:
(i) The Military Department is acting in an Executive Agent capacity on behalf of a Defense Agency that certifies that a leaseback is in the interest of that Defense Agency; or,
(ii) The Secretary of the Military Department certifies that a leaseback is in the best interest of the Military Department and that use of the property by the Military Department is consistent with the obligation to close or realign the installation in accordance with the recommendations of the Defense Base Closure and Realignment Commission.
(9) Property eligible for a leaseback is not surplus because it is still needed by a Federal entity. However, notwithstanding that the property is not surplus and that the LRA would not otherwise have to include such property in its redevelopment plan, the LRA should include the proposed leaseback of property in its redevelopment plan, taking into account the planned Federal use of such property.
(10) The terms of the LRA's lease to the Federal entity should afford the Federal Department or Agency rights as close to those associated with ownership of the property as is practicable. The requirements of the General Services Acquisition Regulation (GSAR) (48 CFR Part 570) are not applicable to the lease, but provisions in the GSAR may be used to the extent they are consistent with this part. The terms of the lease are negotiable subject to the following:
(i) The lease shall be for a term of no more than 50 years, but may provide for options for renewal or extension of the term at the request of the Federal Department or Agency concerned. The lease term should be based on the needs of the Federal entity.
(ii) The lease, or any renewals or extensions thereof, shall not require rental payments.
(iii) The lease shall not require the Federal Government to pay the LRA or other local government entity for municipal services including fire and police protection.
(iv) The Federal Department or Agency concerned may be responsible for services such as janitorial, grounds
(v) The lease shall include a provision prohibiting the LRA from transferring fee title to another entity during the term of the lease, other than one of the political jurisdictions that comprise the LRA, without the written consent of the Federal Department or Agency occupying the leaseback property.
(vi) The lease shall include a provision specifying that if the Federal Department or Agency concerned no longer needs the property before the expiration of the term of the lease, the remainder of the lease term may be satisfied by the same or another Federal Department or Agency that needs property for a similar use.
(A) Prior to exercising this option, the Federal tenant shall consult with the LRA concerned or other property owner if the property has been conveyed by the LRA to another entity in accordance with § 175.7(k)(10)(v) of this part.
(B) If the Federal tenant decides to exercise this option after consulting with the LRA or other property owner, it shall notify the appropriate General Services Administration regional office that the property is available for use by a Federal Department or Agency. The General Services Administration regional office shall have 60 days from the date of notification in which to identify a Federal Department or Agency to serve out the term of the lease and to notify the LRA or other property owner of the new tenant. If the regional office does not notify the LRA or other property owner of a new tenant within 60 days from the date of notification, the property is available for use by the LRA or other property owner.
(C) If the Federal tenant decides not to exercise this option after consulting with the LRA or other property owner, the property is available for use by the LRA or other property owner.
(vii) The terms of the lease shall provide that the Federal Department or Agency may repair and improve the property at its expense after consultation with the LRA.
(11) Conveyance to an LRA under this authority shall be in one of the following ways:
(i) Lease back property that will be conveyed under an Economic Development Conveyance (EDC) shall be conveyed as part of the EDC in accordance with the existing EDC procedures and § 175.7(k)(11)(ii)(B)(
(A) A description of the parcel or parcels the LRA proposes to have transferred to it and then to lease back to a Federal Department or Agency;
(B) A written statement signed by an authorized representative of the Federal entity that it agrees to accept a leaseback of the property; and,
(C) A statement explaining why a leaseback is necessary for the long-term economic redevelopment of the installation property.
(ii) Leaseback property not associated with property to be conveyed under an EDC shall be conveyed in accordance with the following procedures:
(A) As soon as possible after the LRA's submission of its redevelopment plan to the DoD and HUD, the LRA shall submit a request for a leaseback to the Military department. The Military Department may impose additional requirements as necessary, but at a minimum, the request shall contain the following:
(
(
(
(B) The transfer may be for consideration at or below the estimated present fair market value. In those instances in
(
(
(
(
10 U.S.C. 2687 note.
This part implements the Base Closure Community Redevelopment and Homeless Assistance Act, as amended (10 U.S.C. 2687 note), which instituted a new community-based process for addressing the needs of the homeless at base closure and realignment sites. In this process, Local Redevelopment Authorities (LRAs) identify interest from homeless providers in installation property and develop a redevelopment plan for the installation that balances the economic redevelopment and other development needs of the communities in the vicinity of the installation with the needs of the homeless in those communities. The Department of Housing and Urban Development (HUD) reviews the LRA's plan to see that an appropriate balance is achieved. This part also implements the process for identifying interest from State and local entities for property under a public benefit transfer. The LRA is responsible for concurrently identifying interest from homeless providers and State and local entities interested in property under a public benefit transfer.
As used in this part:
(1) A comprehensive homeless assistance system that includes:
(i) A system of outreach and assessment for determining the needs and condition of an individual or family who is homeless, or whether assistance is necessary to prevent an individual or family from becoming homeless;
(ii) Emergency shelters with appropriate supportive services to help ensure that homeless individuals and families receive adequate emergency shelter and referral to necessary service providers or housing finders;
(iii) Transitional housing with appropriate supportive services to help those homeless individuals and families who are not prepared to make the transition to independent living;
(iv) Housing with or without supportive services that has no established limitation on the amount of time of residence to help meet long-term needs
(v) Any other activity that clearly meets an identified need of the homeless and fills a gap in the continuum of care.
(2) Supportive services are services that enable homeless persons and families to move through the continuum of care toward independent living. These services include, but are not limited to, case management, housing counseling, job training and placement, primary health care, mental health services, substance abuse treatment, child care, transportation, emergency food and clothing family violence services, education services, moving services, assistance in obtaining entitlements, and referral to veterans services and legal services.
(1) An individual or family who lacks a fixed, regular, and adequate nighttime residence; and
(2) An individual or family who has a primary nighttime residence that is:
(i) A supervised publicly or privately operated shelter designed to provide temporary living accommodations (including welfare hotels, congregate shelters and transitional housing for the mentally ill);
(ii) An institution that provides a temporary residence for individuals intended to be institutionalized; or,
(iii) A public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.
(3) This term does not include any individual imprisoned or otherwise detained under an Act of the Congress or a State law.
(a)
(b)
(1) For installations with Title V applications pending but not approved before October 25, 1994, the LRA shall consider and specifically address any application for use of buildings and property to assist the homeless that were received by HHS prior to October 25, 1994, and were spending with the Secretary of HHS on that date. These pending requests shall be addressed in the LRA's homeless assistance submission.
(2) For installations with Title V applications approved before October 25, 1994 where there is an approved Title V application, but property has not been assigned or otherwise disposed of by the Military Department, the LRA must ensure that its homeless assistance submission provides the Title V applicant with:
(i) The property requested;
(ii) Properties, on or off the installation, that are substantially equivalent to those requested;
(iii) Sufficient funding to acquire such substantially equivalent properties;
(iv) Services and activities that meet the needs identified in the application; or,
(v) A combination of the properties, funding, and services and activities described in § 176.10(b)(2)(i)-(iv) of this part.
(c)
(a) After consultation with the LRA and HUD, and upon a finding that it is in the interest of the communities affected by the closure/realignment of the installation, DoD, through the Director of the Office of Economic Adjustment, may extend or postpone any deadline contained in this part.
(b) Upon completion of a determination and finding of good cause, and except for deadlines and actions required on the part of DoD, HUD may waive any provision of §§ 176.20 through 176.45 of this part in any particular case, subject only to statutory limitations.
(a)
(b)
(c)
(1) Publish, within 30 days, in a newspaper of general circulation in the communities in the vicinity of the installation, the time period during which the LRA will receive notices of interest from State and local governments, representatives of the homeless, and other interested parties. This publication shall include the name, address, telephone number and the point of contact for the LRA who can provide information on the prescribed form and contents of the notices of interest. The LRA shall notify DoD of the deadline specified for receipt of notices of interest. LRAs are strongly encouraged to make this publication as soon as possible within the permissible 30 day period in order to expedite the closure process.
(i) In addition, the LRA has the option to conduct an informal solicitation of notices of interest from public and non-profit entities interested in obtaining property via a public benefit transfer other than a homeless assistance conveyance under either 40 U.S.C. 471
(ii) For all installations selected for closure or realignment prior to 1995 that elected to proceed under Public Law 103-421, the LRA shall accept notices of interest for not less than 30 days.
(iii) For installations selected for closure or realignment in 1995 or thereafter, notices of interest shall be accepted for a minimum of 90 days and not more than 180 days after the LRA's publication under § 176.20(c)(1).
(2) Prescribe the form and contents of notices of interest.
(i) The LRA may not release to the public any information regarding the capacity of the representative of the homeless to carry out its program, a description of the organization, or its financial plan for implementing the program, without the consent of the representative of the homeless concerned, unless such release is authorized under Federal law and under the law of the State and communities in which the installation concerned is located. The identity of the representative of the homeless may be disclosed.
(ii) The notices of interest from representatives of the homeless must include:
(A) A description of the homeless assistance program proposed, including the purposes to which the property or facility will be put, which may include uses such as supportive services, job and skills training, employment programs, shelters, transitional housing or housing with no established limitation on the amount of time of residence, food and clothing banks, treatment facilities, or any other activity which clearly meets an identified need
(B) A description of the need for the program;
(C) A description of the extent to which the program is or will be coordinated with other homeless assistance programs in the communities in the vicinity of the installation;
(D) Information about the physical requirements necessary to carry out the program including a description of the buildings and property at the installation that are necessary to carry out the program;
(E) A description of the financial plan, the organization, and the organizational capacity of the representative of the homeless to carry out the program; and,
(F) An assessment of the time required to start carrying out the program.
(iii) The notices of interest from entities other than representatives of the homeless should specify the name of the entity and specific interest in property or facilities along with a description of the planned use.
(3) In addition to the notice required under § 176.20(c)(1), undertake outreach efforts to representatives of the homeless by contacting local government officials and other persons or entities that may be interested in assisting the homeless within the vicinity of the installation.
(i) The LRA may invite persons and organizations identified on the HUD list of representatives of the homeless and any other representatives of the homeless with which the LRA is familiar, operating in the vicinity of the installation, to the workshop described in § 176.20(c)(3)(ii).
(ii) The LRA, in coordination with the Military Department and HUD, shall conduct at least one workshop where representatives of the homeless have an opportunity to:
(A) Learn about the closure/realignment and disposal process;
(B) Tour the buildings and properties available either on or off the installation;
(C) Learn about the LRA's process and schedule for receiving notices of interest as guided by § 176.20(c)(2); and,
(D) Learn about any known land use constraints affecting the available property and buildings.
(iii) The LRA should meet with representatives of the homeless that express interest in discussing possible uses for these properties to alleviate gaps in the continuum of care.
(4) Consider various properties in response to the notices of interest. The LRA may consider property that is located off the installation.
(5) Develop an application, including the redevelopment plan and homeless assistance submission, explaining how the LRA proposes to address the needs of the homeless. This application shall consider the notices of interest received from State and local governments, representatives of the homeless, and other interested parties. This shall include, but not be limited to, entities eligible for public benefit transfers under either 40 U.S.C. 471
(6) Make the draft application available to the public for review and comment periodically during the process of developing the application. The LRA must conduct at least one public hearing on the application prior to its submission to HUD and the appropriate Military Department. A summary of the public comments received during the process of developing the application shall be included in the application when it is submitted.
(d)
HUD may negotiate and consult with the LRA before and during the course of preparation of the LRA's application and during HUD's review thereof with a view toward avoiding any preliminary determination that the application does not meet any requirement of this part. LRAs are encouraged to contact HUD for a list of persons and organizations that are representatives of the homeless operating in the vicinity of the installation.
(a)
(b)
(1) Information about homelessness in the communities in the vicinity of the installation.
(i) A list of all the political jurisdictions which comprise the LRA.
(ii) A description of the unmet need in the continuum of care system within each political jurisdiction, which should include information about any gaps that exist in the continuum of care for particular homeless subpopulations. The source for this information shall depend upon the size and nature of the political jurisdictions(s) that comprise the LRA. LRAs representing:
(A) Political jurisdictions that are required to submit a Consolidated Plan shall include a copy of their Homeless and Special Needs Population Table (Table 1), Priority Homeless Needs Assessment Table (Table 2), and narrative description thereof from that Consolidated Plan, including the inventory of facilities and services that assist the homeless in the jurisdiction.
(B) Political jurisdictions that are part of an urban county that is required to submit a Consolidated Plan shall include a copy of their Homeless and Special Needs Population Table (Table 1), Priority Homeless Needs Assessment Table (Table 2), and narrative description thereof from that Consolidated Plan, including the inventory of facilities and services that assist the homeless in the jurisdiction. In addition, the LRA shall explain what portion of the homeless population and subpopulations described in the Consolidated Plan are attributable to the political jurisdiction it represents.
(C) A political jurisdiction not described by § 176.30(b)(1)(ii)(A) or § 176.30(b)(1)(ii)(B) shall submit a narrative description of what it perceives to be the homeless population within the jurisdiction and a brief inventory of the facilities and services that assist homeless persons and families within the jurisdiction. LRAs that represent these jurisdictions are not required to conduct surveys of the homeless population.
(2) Notices of interest proposing assistance to homeless persons and/or families.
(i) A description of the proposed activities to be carried out on or off the installation and a discussion of how these activities meet a portion or all of the needs of the homeless by addressing the gaps in the continuum of care. The activities need not be limited to expressions of interest in property, but may also include discussions of how economic redevelopment may benefit the homeless;
(ii) A copy of each notice of interest from representatives of the homeless for use of buildings and property and a description of the manner in which the LRA's application addresses the need expressed in each notice of interest. If the LRA determines that a particular notice of interest should not be awarded property, an explanation of why the LRA determined not to support that notice of interest, the reasons for which may include the impact of the program contained in the notice of interest on the community as described in § 176.30(b)(2)(iii); and,
(iii) A description of the impact that the implemented redevelopment plan will have on the community. This shall include information on how the LRA's redevelopment plan might impact the character of existing neighborhoods adjacent to the properties proposed to be used to assist the homeless and should discuss alternative plans. Impact on schools, social services, transportation, infrastructure, and concentration of minorities and/or low income persons shall also be discussed.
(3) Legally binding agreements for buildings, property, funding, and/or services.
(i) A copy of the legally binding agreements that the LRA proposes to enter into with the representative(s) of the homeless selected by the LRA to implement homeless programs that fill gaps in the existing continuum of care. The legally binding agreements shall provide for a process for negotiating alternative arrangements in the event that an environmental analysis conducted under § 176.45(b) indicates that any property identified for transfer in the agreement is not suitable for the intended purpose. Where the balance determined in accordance with § 176.30(b)(4) provides for the use of installation property as a homeless assistance facility, legally binding agreements must provide for the reversion or transfer, either to the LRA or to another entity or entities, of the buildings and property in the event they cease to be used for the homeless. In cases where the balance proposed by the LRA does not include the use of buildings or property on the installation, the legally binding agreements need not be tied to the use of specific real property and need not include a reverter clause. Legally binding agreements shall be accompanied by a legal opinion of the chief legal advisor of the LRA or political jurisdiction or jurisdictions which will be executing the legally binding agreements that the legally binding agreements, when executed, will constitute legal, valid, binding, and enforceable obligations on the parties thereto;
(ii) A description of how buildings, property, funding, and/or services either on or off the installation will be used to fill some of the gaps in the current continuum of care system and an explanation of the suitability of the buildings and property for that use; and,
(iii) Information on the availability of general services such as transportation, police, and fire protection, and a discussion of infrastructure such as water, sewer, and electricity in the vicinity of the proposed homeless activity at the installation.
(4) An assessment of the balance with economic and other development needs.
(i) An assessment of the manner in which the application balances the expressed needs of the homeless and the needs of the communities comprising the LRA for economic redevelopment and other development; and
(ii) An explanation of how the LRA's application is consistent with the appropriate Consolidated Plan(s) or any other existing housing, social service, community, economic, or other development plans adopted by the jurisdictions in the vicinity of the installation.
(5) A description of the outreach undertaken by the LRA. The LRA shall explain how the outreach requirements described at § 176.20(c)(1) and § 176.20(c)(3) have been fulfilled. This explanation shall include a list of the representatives of the homeless the LRA contacted during the outreach process.
(c)
(a)
(b)
(1)
(2) Impact of notices of interest. Takes into consideration any economic impact of the homeless assistance under the plan on the communities in the vicinity of the installation, including:
(i) Whether the plan is feasible in light of demands that would be placed on available social services, police and fire protection, and infrastructure in the community; and,
(ii) Whether the selected notices of interest are consistent with the Consolidated Plan(s) of any other existing housing, social service, community economic, or other development plans adopted by the political jurisdictions in the vicinity of the installation.
(3) Legally binding agreements. Specifies the manner in which the buildings, property, funding, and/or services on or off the installation will be made available for homeless assistance purposes. HUD will review each legally binding agreement to verify that:
(i) They include all the documents legally required to complete the transactions necessary to realize the homeless use(s) described in the application;
(ii) They include all appropriate terms and conditions;
(iii) They address the full range of contingencies including those described at § 176.30(b)(3)(i);
(iv) They stipulate that the buildings, property, funding, and/or services will be made available to the representatives of the homeless in a timely fashion; and,
(v) They are accompanied by a legal opinion of the chief legal advisor of the LRA or political jurisdiction or jurisdictions which will be executing the legally binding agreements that the legally binding agreements will, when executed, constitute legal, valid, binding, and enforceable obligations on the parties thereto.
(4)
(5)
(c)
(i) A summary of the deficiencies in the application;
(ii) An explanation of the determination; and,
(iii) A statement of how the LRA must address the determinations.
(2) In the event that no application is submitted and no extension is requested as of the deadline specified in § 176.20(c)(5), and the State does not accept within 30 days a DoD written request to become recognized as the LRA, the absence of such application will trigger an adverse determination by HUD effective on the date of the lapsed deadline. Under these conditions, HUD will follow the process described at § 176.40.
(d)
(2) HUD shall, within 30 days of its receipt of the LRA's resubmission send written notification of its final determination of whether the application meets the requirements of § 176.35(b) to both DOD and the LRA.
(a)
(1) Shall consult with the representatives of the homeless, if any, for purposes of evaluation the continuing interest of such representatives in the use of buildings or property at the installation to assist the homeless;
(2) May consult with the applicable Military Department regarding the suitability of the buildings and property at the installation for use to assist the homeless; and,
(3) May consult with representatives of the homeless and other parties as necessary.
(b)
(i) Notify DoD and the LRA of the buildings and property at the installation that HUD determines are suitable for use to assist the homeless, and;
(ii) Notify DoD and the LRA of the extent to which the revised redevelopment plan meets the criteria set forth in § 176.35(b).
(2) In the event that an LRA does not submit a revised redevelopment plan under § 176.35(d), HUD shall, based upon its reviews and consultations under § 176.40(a), notify DoD and the LRA of the buildings and property at the installation that HUD determines are suitable for use to assist the homeless, either
(i) Within 190 days after HUD sends its notice of preliminary adverse determination under § 176.35(c)(1), if an LRA has not submitted a revised redevelopment plan; or
(ii) Within 390 days after the Military Department's Federal Register publication of available property under § 176.20(b), if no redevelopment plan has been received and no extension has been approved.
(a)
(b)
(c)
(d)
(e)
50 U.S.C. 2251, as amended; E.O. 12148, 3 CFR 1979 Comp. p. 412.
This part:
(a) Consolidates all policy and responsibilities previously known as “Military Assistance to Civil Authorities (MACA),” applicable to disaster-related civil emergencies within the United States, its territories, and possessions under DoD Directive 3025.1
(b) Provides for continuation of the DoD Regional Military Emergency Coordinator (RMEC) teams, previously developed under DoD Directive 5030.45
(c) Constitutes a single system for MSCA, by which DoD Components (as defined in § 185.2) shall plan for, and respond to, requests from civil government agencies for military support in dealing with the actual or anticipated consequences of civil emergencies requiring Federal response, or attacks, including national security emergencies as defined in E.O. 12656, 53 FR 47491, 3 CFR 1988 Comp., p. 585.
(d) States the policy and responsibilities by which the Department of Defense responds to major disasters or emergencies in accordance with the Stafford Act, as amended, and supports the national civil defense policy and Federal or State civil defense programs, in cooperation with the Federal Emergency Management Agency (FEMA), under the authority of The Federal Civil Defense Act of 1950.
(e) Designates the Secretary of the Army as the DoD Executive Agent for MSCA.
(f) Authorizes the publication of DoD 3025.1-M, “DoD Manual for Civil Emergencies,” consistent with DoD 5025.1-M.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Unified and Specified Commands, the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, the Marine Corps, and the Coast Guard (when it is operating, or planning for operations, as a Service in the Navy).
(b) Shall govern MSCA activities of all DoD Components in the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and U.S. territories and possessions.
(c) Does not apply to foreign disasters covered by DoD Directive 5100.46.
(d) Focuses on the assignment and allocation of DoD resources to support civilian authorities during civil emergencies arising during peace, war, or transition to war.
(e) Does not integrate contingency war planning as a subelement of MSCA,
(f) Does not include military support to civil law enforcement. (See § 185.4(b).)
(1) Minimize the effects upon the civilian population caused, or that would be caused, by an attack upon the United States or by a natural or technological disaster;
(2) Deal with the immediate emergency conditions that would be created by any such attack or natural or technological disaster; and
(3) Effectuate emergency repairs to, or the emergency restoration of, vital utilities and facilities destroyed or damaged by any such attack or natural or technological disaster.
(a)
(2) Under the Stafford Act, as amended, it is the policy of the Federal Government to provide an orderly and continuing means of supplemental assistance to State and local governments in their responsibilities to alleviate the suffering and damage that result from major disasters or emergencies. Upon
(3) In accordance with the Federal Civil Defense Act of 1950, as amended, the national civil defense policy is to have a civil defense program to develop capabilities common to all catastrophic emergencies and those unique to attack emergencies, which will support all-hazard emergency management at State and local levels, in order to protect the population and vital infrastructure. Under the national civil defense policy, the Department of Defense will support civil authorities in civil defense, to include facilitating the use of the National Guard in each State for response in both peacetime disasters and national security emergencies.
(4) Under E.O. 12656, it is the policy of the Federal Government to have sufficient capabilities at all levels of government to meet essential defense and civilian needs during any national security emergency.
(b)
(c)
(1) The Secretary of the Army shall be the DoD Executive Agent and shall act for the Secretary of Defense in accordance with this part and any supplemental direction or guidance received from the Secretary of Defense. In that capacity, the DoD Executive Agent will develop planning guidance, plans, and procedures for MSCA in accordance with this part. The DoD Executive Agent has the authority of the Secretary of Defense to task the DoD Components to plan for and to commit DoD resources, in response to requests from civil authorities under MSCA. The Secretary of the Army shall coordinate with the Chairman of the Joint Chiefs of Staff any commitment of military forces assigned to the Unified and Specified Commands.
(2) The Chairman of the Joint Chiefs of Staff shall communicate to the Commanders of the Unified and Specified Commands appropriate guidance issued by the Secretary of the Army for their compliance with this part, and also shall assist the DoD Executive Agent in developing MSCA planning guidance for all conditions of war or attacks on the United States or its territories.
(3) The Commander in Chief, Forces Command (CINCFOR); the Commander in Chief, U.S. Atlantic Command (USCINCLANT); and the Commander in Chief, U.S. Pacific Command (USCINCPAC), shall serve as “DoD Planning Agents” for MSCA. Pursuant to guidance issued by the DoD Executive Agent, after coordination with the Chairman of the Joint Chiefs of Staff, the DoD Planning Agents shall conduct MSCA planning, and shall lead MSCA planning activities of all DoD Components within the following geographic areas:
(i) CINCFOR (48 contiguous States and the District of Columbia).
(ii) USCINCLANT (Puerto Rico and the U.S. Virgin Islands).
(iii) USCINCPAC (Alaska, Hawaii, and U.S. possessions and territories in the Pacific area).
(4) The Commanders of the Unified and Specified Commands shall provide MSCA response, as directed by the DoD Executive Agent.
(5) The Secretary of Defense reserves the authority to modify or terminate the executive agency established by this part if operational needs so require in a particular situation.
(d)
(1) MSCA shall include (but not be limited to) support similar to that described for immediate response (paragraph (e) of this section), in either civil emergencies or attacks, during any period of peace, war, or transition to war.
(i) DoD Directive 3025.12 governs use of military resources in the event of civil disturbances, which may include providing physical security for DoD Key Assets, as defined in DoD Directive 5160.54.
(ii) Material, logistic, communications, and other assistance to law enforcement (especially during enforcement operations) is provided under DoD Directive 5525.5
(2) The DoD Components shall respond to requirements of the DoD Executive Agent and DoD Planning Agents for MSCA, as authorized by this part.
(3) To ensure sound management of DoD resources, MSCA planning will stress centralized direction of peacetime planning with civil authorities, with decentralized planning by DoD Components with civil agencies, where appropriate, and decentralized execution of approved plans in time of emergency.
(4) Subject to priorities established by the President or the Secretary of Defense, all DoD resources are potentially available for MSCA. MSCA planning and execution will encourage and adhere to the following premises:
(i) That civil resources are applied first in meeting requirements of civil authorities.
(ii) That DoD resources are provided only when response or recovery requirements are beyond the capabilities of civil authorities (as determined by FEMA or another lead Federal agency for emergency response).
(iii) That specialized DoD capabilities requested for MSCA (e.g., airlift and airborne reconnaissance) are used efficiently.
(iv) Generally, military operations other than MSCA will have priority over MSCA, unless otherwise directed by the Secretary of Defense.
(5) MSCA shall provide a mechanism to facilitate continuous and cooperative civil and military planning and preparedness to mobilize all appropriate resources and capabilities of the civil sector and the Department of Defense, whenever required for any form of national security emergency.
(6) DoD planning shall recognize that:
(i) Army and Air National Guard forces, acting under State orders (i.e., not in Federal service), have primary responsibility for providing military assistance to State and local government agencies in civil emergencies.
(ii) The Army National Guard State Area Command (STARC), when ordered to Federal Active Duty, will be the DoD focal point for delivery of MSCA at State and local levels in time of war.
(iii) Plans and preparedness measures of MSCA must foster close and continuous coordination for efficient employment of DoD resources of the National Guard (whether employed under State or Federal authority), as well as resources of the DoD Components, in time of peace, war, or transition to war.
(iv) In the event of an attack on the United States, its territories, or possessions, the scope of MSCA in each geographical area will depend upon the commitment of military resources to military operations, the extent of damage sustained by the civilian communities, and the status of Active and Reserve Component forces.
(7) DoD Components shall augment staffs responsible for MSCA, as appropriate, with personnel from Reserve components of all Military Services who are specifically trained for civil-military planning and emergency liaison duties. (See enclosure 3 in DoD Directive 1215.6.)
(8) The DoD Components ordinarily shall provide DoD resources in response to civil emergencies on a cost reimbursable basis. However, see paragraph (e)(2) of this section for circumstances in which an inability or unwillingness
(i) The DoD Components shall comply with legal and accounting requirements for the loan, grant, or consumption of DoD resources for MSCA, as necessary, to ensure reimbursement of costs to the DoD Components under the Stafford Act, as amended; the Defense Emergency Response Fund established by Public Law 101-165 (1989); or other applicable authority.
(ii) The DoD Components shall not procure or maintain any supplies, material, or equipment exclusively for providing MSCA in civil emergencies, unless otherwise directed by the Secretary of Defense.
(iii) Planning for MSCA during any time of attack on the United States shall assume that financial requirements will be met through appropriate legal processes.
(9) Military forces employed in MSCA activities shall remain under military command and control under the authority of the DoD Executive Agent at all times.
(10) The DoD Components shall not perform any function of civil government unless absolutely necessary on a temporary basis under conditions of Immediate Response. Any commander who is directed, or undertakes, to perform such functions shall facilitate the reestablishment of civil responsibility at the earliest time possible.
(e)
(2) While Immediate Response should be provided to civil agencies on a cost-reimbursable basis if possible, it should not be delayed or denied because of the inability or unwillingness of the requester to make a commitment to reimburse the Department of Defense.
(3) Any commander or official acting under the Immediate Response authority of this Directive shall advise the DoD Executive Agent through command channels, by the most expeditious means available, and shall seek approval or additional authorizations as needed.
(4) Immediate Response may include DoD assistance to civil agencies in meeting the following types of need:
(i) Rescue, evacuation, and emergency medical treatment of casualties, maintenance or restoration of emergency medical capabilities, and safeguarding the public health.
(ii) Emergency restoration of essential public services (including fire-fighting, water, communications, transportation, power, and fuel).
(iii) Emergency clearance of debris, rubble, and explosive ordnance from public facilities and other areas to permit rescue or movement of people and restoration of essential services.
(iv) Recovery, identification, registration, and disposal of the dead.
(v) Monitoring and decontaminating radiological, chemical, and biological effects; controlling contaminated areas; and reporting through national warning and hazard control systems.
(vi) Roadway movement control and planning.
(vii) Safeguarding, collecting, and distributing food, essential supplies, and material on the basis of critical priorities.
(viii) Damage assessment.
(ix) Interim emergency communications.
(x) Facilitating the reestablishment of civil government functions.
(f)
(i) Coordination of MSCA plans and procedures with FEMA, and with other civil agencies as appropriate, at the national and Federal Region level.
(ii) Facilitation of direct planning for MSCA by DoD facilities and installations with their local communities, and with their respective STARCs, as appropriate.
(2) The DoD Executive Agent also shall provide appropriate guidance to facilitate MSCA planning and response with the American Red Cross and other civilian disaster and emergency assistance organizations where authorized by law.
(g)
(1) The U.S. Coast Guard (USCG) or the U.S. Environmental Protection Agency (EPA) will coordinate Federal response to oil or hazardous material spills, other than those occurring within DoD jurisdictions. The DoD Executive Agent will provide MSCA to the USCG or the EPA; but responsibilities of DoD Components in areas under DoD jurisdiction are covered by DoD Directive 5030.41
(2) Emergencies or other incidents involving radiological materials shall be handled in accordance with DoD Directive 5100.52
(3) The Secretary of the Army shall ensure the implementation of DoD responsibilities for emergency water requirements, as specified in E.O. 12656, and response to flooding, as provided in Public Law 84-99 (1941), as amended.
(4) Forest fire emergencies are responsibilities of the U.S. Department of Agriculture or Interior. The Boise Interagency Fire Center (BIFC) may request DoD assistance; and specific details regarding DoD support are covered by agreements between the Department of Defense and the BIFC that are administered by the DoD Executive Agent.
(5) The DoD Executive Agent is delegated the authority to direct DoD Components in planning for and responding to any civil emergency that may arise out of any mass immigration by aliens into the land territory of the United States, its territories and possessions, consistent with applicable law and this part. The DoD Executive Agent should ensure appropriate coordination with Federal law enforcement authorities in exercising this authority.
(6) Use of DoD transportation resources in response to a non-declared civil emergency shall be directed by the DoD Executive Agent under this part. (See also DoD Directive 4500.9
(h)
(1) Authorizations by the DoD Executive Agent under this paragraph shall include (but not be limited to) commitment of funds from the Defense Emergency Response Fund in anticipation of reimbursements to that fund.
(2) The DoD Executive Agent shall obtain authorization from the Secretary of Defense or Deputy Secretary of Defense to provide support in those cases in which DoD response is not clearly required by Federal law or by DoD plans approved by the DoD Executive Agent.
(i)
(1) To save human life and mitigate human suffering, and to protect essential U.S. Government capabilities, including:
(i) Continuity of the U.S. Government.
(ii) Protection of U.S. Government officials.
(iii) Prevention of loss or destruction to Federal property.
(iv) Restoration of essential Federal functions.
(2) To preserve or restore services of State and local government.
(a) The
(1) Exercise policy oversight of MSCA for the Secretary of Defense, and ensure compatibility of MSCA with National Security Emergency Preparedness, in accordance with DoD Directive 3020.36
(2) Coordinate DoD policy governing plans and operations with FEMA; and assist the DoD Executive Agent, the Chairman of the Joint Chiefs of Staff, and others, as appropriate, in their coordination with FEMA.
(b) The
(c) The
(d) The
(1) Facilitate accounting procedures that will enable the Department of Defense to respond on a timely basis to all emergency requirements for MSCA; and
(2) In conjunction with the DoD Executive Agent, provide for accounting and other procedures necessary to manage expenditures for MSCA from the Defense Emergency Response Fund.
(e) The
(1) Advise the Secretary of Defense and the DoD Executive Agent on policies, responsibilities, and programs bearing on MSCA.
(2) In coordination with the DoD Executive Agent, facilitate communications by the DoD Executive Agent with commanders, as appropriate.
(3) Ensure the compatibility of MSCA plans with other military plans.
(4) Facilitate CINCFOR's development of an MSCA data base and emergency reporting system, as described in paragraph (j) of this section.
(5) Facilitate coordinated evaluation of MSCA plans and capabilities by the Commanders of the Unified and Specified Commands through exercises or other means, as appropriate.
(f) The
(1) Provide for participation by the Military Services in MSCA planning, in accordance with this part and with guidance of the DoD Executive Agent; and ensure readiness of Active and Reserve components to execute plans for MSCA.
(2) Ensure the designation of a principal planning agent and regional planning agents of MSCA for each Military Service, and advise the DoD Executive Agent and the Chairman of the Joint Chiefs of Staff of such agents.
(3) Ensure effective and efficient coordination of MSCA planning by Service installations with Federal Regions, STARCs, and State and local civil authorities, through the DoD Planning Agents, as directed by the DoD Executive Agent.
(4) Furnish available resources for MSCA when directed by the DoD Executive Agent.
(5) Identify to the DoD Executive Agent the resources of their respective Military Services that are potentially available for MSCA within the parameters of the DoD Resources Data Base (DODRDB) for MSCA, which is described in paragraph (n) of this section.
(6) Prepare to support civil requests for damage and residual capability assessment following civil emergencies or attacks, to include providing aerial reconnaissance as appropriate.
(7) Provide Military Department representatives to serve on RMEC teams, as requested by the DoD Executive Agent.
(8) Based on validated military planning and operational requirements, assign individual Reservists from Military Services to FEMA and other appropriate civil government offices and headquarters to provide liaison for planning and emergency operations for MSCA. (See enclosure 3 in DoD Directive 1215.6.)
(9) Provide available Military Service personnel for MSCA training, including courses conducted by CINCFOR and FEMA.
(10) Provide for application of critical emergency capabilities of the Services (such as disposal of explosive ordnance and nuclear devices) for MSCA, as required.
(g) In addition to the responsibilities assigned under paragraph (f) of this section, the
(1) Coordinate with the Chairman of the Joint Chiefs of Staff, in advance, for the employment of forces assigned to the Unified and Specified Commands in MSCA missions.
(2) Establish a single headquarters element (to be denominated the “Directorate of Military Support (DOMS)”) under the Secretary of the Army, through which the Secretary of the Army issues orders necessary to perform the duties of the DoD Executive Agent under this part. The Secretary of the Army shall ensure that the staff element includes specially qualified and trained officers of all Military Services, including those at senior levels within the element.
(3) Manage expenditures for MSCA from the Defense Emergency Response Fund. (See § 185.4(d)(8).)
(4) Direct and coordinate the development of both generic and incident-specific plans for MSCA through the DoD Planning Agents designated in § 185.4(c)(3), and through the DoD Components, as appropriate.
(5) Establish appropriate guidance, through the National Guard Bureau, for the Adjutants General of the 50 States, District of Columbia, Guam, Puerto Rico, and the Virgin Islands to ensure compliance by the Army National Guard with this part. Such guidance shall provide for the following, as appropriate:
(i) Resourcing the STARCs for MSCA planning and response tasks.
(ii) STARC interfaces with commands and installations of all Services, including the DoD Planning Agents, and with State civil agencies.
(iii) STARC acceptance, support, and utilization of liaison and augmentation from all Military Services, as appropriate.
(6) Provide for the manning and operation of RMEC teams to coordinate the interface between the Defense Components and all Federal regional emergency management structures established by FEMA that may affect MSCA.
(7) Provide for effective utilization in MSCA planning of the U.S. Army Corps of Engineers, the Naval Construction Force, and the U.S. Air Force Civil Engineers, to include all civil works authorities and other unique civil emergency capabilities, as permitted by law.
(8) Delegate as appropriate authority under this part to the DoD Planning Agents, to Defense Coordinating Officers (DCOs) appointed for response to civil emergencies under the Stafford Act, as amended, or to other DoD officials to accomplish any requirement for MSCA planning or operations under this part.
(9) Provide guidance to CINCFOR for content, dissemination, and use of the DODRDB for MSCA, which is described in paragraph (j) of this section and ensure opportunity for input by the Chairman of the Joint Chiefs of Staff in the continuing development of that data base.
(10) Maintain national-level liaison with FEMA for MSCA.
(11) Provide Army Reserve support to FEMA, on a reimbursable basis, for emergency communications, security
(12) Provide full-time Army personnel, as required, to manage the Military Support Liaison Office established by agreement between the Secretary of Defense and the Director of FEMA. Utilize that office to facilitate requirements and communications of the DoD Executive Agent under this part.
(13) Develop training courses for MSCA, including specialized training for Reserve component emergency preparedness liaison officers of all Military Services who will work with civilian communities and agencies as authorized for MSCA missions.
(14) Provide authorizations to DoD Components to perform emergency work under Section 403(c) of the Stafford Act, as amended. That statute provides that, when authorized by the President at the request of a State Governor, under certain conditions, the Department of Defense may perform on public or private lands emergency work that is essential for the preservation of life or property. Emergency work by the Department of Defense under that provision may be carried out only for a period not to exceed 10 days, and is only 75 percent funded by Federal funds.
(h) In addition to the responsibilities assigned under paragraph (f) of this section, the Secretary of the Navy shall:
(1) Maintain liaison and coordinate planning with the Department of Transportation for participation by USCG forces in MSCA.
(2) Furnish technical advice and support for MSCA planning and implementation in areas that are uniquely within the competence of the Navy, Marine Corps, or USCG (e.g., nuclear material disposal for coastal and maritime areas, and emergency protection or restoration of seaport capabilities).
(i) In addition to the responsibilities assigned under paragraph (f) of this section, the Secretary of the Air Force shall:
(1) Establish appropriate guidance, through the National Guard Bureau, for the Adjutants General of the 50 States, District of Columbia, Guam, Puerto Rico, and the Virgin Islands to ensure compliance by the Air National Guard with this part.
(2) Facilitate planning by the Civil Air Patrol for participation in MSCA.
(3) Furnish technical advice and support for MSCA planning and implementation in areas that are uniquely within the competence of the Air Force and its wartime augmentation elements (e.g., coordination with the Federal Aviation Administration, the National Aeronautics and Space Administration, and the National Oceanic and Atmospheric Administration).
(4) Facilitate the conduct and coordination of aerial reconnaissance missions to perform damage assessment in support of MSCA.
(j) In addition to serving as a DoD Planning Agent under paragraph (k) of this section, the Commander in Chief, Forces Command (CINCFOR), subject to the direction of the DoD Executive Agent, shall:
(1) Maintain liaison with FEMA to facilitate cooperative civil and military planning and training for MSCA.
(2) Lead DoD liaison with FEMA and other Federal Agencies at the Federal Regions, including utilization of the RMEC Teams.
(3) Continue to develop, maintain, and disseminate the DODRDB.
(i) The DODRDB shall support MSCA planning for civil emergencies or attacks, as well as post-disaster and post-attack damage and residual capability assessment by field elements of the DoD Components. It shall include essential information on resources routinely held by the DoD Components and directly applicable to lifesaving, survival, and immediate recovery aspects of MSCA.
(ii) Forces to be included in the DODRDB are those that are based in the United States and its territories and most capable of supporting civil emergency functions. Those forces include (but are not limited to) construction, airlift, medical, signal, transportation, and military police elements, and training base forces of all Services. The DODRDB will not include strategic
(iii) The DODRDB shall serve as the basis for emergency reports under continuity of operations, damage assessment, and residual capabilities, and shall include (but not be limited to) reports through the STARCs required by subsection F.2. of DoD Directive 3020.26.
(4) Plan and conduct civil-military training courses and exercises in conjunction with FEMA.
(k) The Commander in Chief, Forces Command; the Commander in Chief, U.S. Atlantic Command; and the Commander in Chief, U.S. Pacific Command, shall:
(1) In accordance with guidance from the DoD Executive Agent communicated through the Chairman of the Joint Chiefs of Staff—
(i) Serve as DoD Planning Agents for MSCA for the areas specified in § 185.4(b)(3); and develop MSCA plans and preparedness measures for their MSCA areas of responsibility.
(ii) Ensure cooperative planning for MSCA operations between DoD Components, FEMA, and other Federal or State civil agencies, as required.
(iii) Utilize RMEC teams to assist in plan development.
(iv) Coordinate with the STARCs through channels established by the Secretary of the Army; and utilize liaison officers provided for in DoD Directive 1215.6 and others, as appropriate, to facilitate coordination of emergency planning.
(v) Plan to perform any designated function of the DoD Executive Agent under this part, if ordered by the Secretary of Defense in time of war or attack on the United States.
(vi) Evaluate MSCA plans, preparedness measures, and training in joint civil military exercises.
(2) Furnish MSCA as directed by the DoD Executive Agent. Employ RMEC Teams and liaison officers, as appropriate, to coordinate emergency response operations with civil agencies, the National Guard, the Military Departments and the CINCs.
(3) Furnish assistance to civil authorities in non-declared emergency situations when directed by the DoD Executive Agent.
(l) The Directors of the Defense Agencies shall:
(1) Designate a principal planning agent and regional planning agents for MSCA, and advise the DoD Executive Agent of such designated agents.
(2) Ensure effective and efficient coordination of planning by subordinate elements with Federal Regions, STARCs, and State and local civil authorities, through the DoD Planning Agents, as directed by the DoD Executive Agent.
(3) Furnish resources for MSCA when directed by the DoD Executive Agent.
(4) Make DoD resources available for technical support to the other DoD Components for MSCA, when required.
(5) Respond to requests by the DoD Executive Agent to identify resources for the DODRDB.
(6) Provide representatives to serve on RMEC teams, as requested by the DoD Executive Agent.
The reporting requirements in § 185.5 are exempt from licensing in accordance with paragraph E.4.b. of DoD 8910.1-M.
10 U.S.C. 172.
(a) This part is reissued and establishes the DoD Explosives Safety Board (DDESB) as a joint activity of the Department of Defense under title 10, United States Code, assigns responsibilities, and prescribes procedures.
(b) This part authorizes publication of DoD 6055.9-STD, “DoD Ammunition and Explosives Safety Standards,” consistent with DoD 5025.1-M, “DoD Directives System Procedures,” April 1981.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Defense Nuclear Agency (DNA), and the Defense Logistics Agency (DLA) (hereafter referred to collectively as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
(a) The DDESB shall be composed of a chairman, a member from each Military Department, and be supported by a permanent civilian and military secretariat. The normal tour of duty for military personnel is 3 years.
(1) The Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) (ASD(MRA&L)) shall select and appoint the chairman from officers in the grade of 0-6 or higher, nominated by a Military Department Secretary or designee. The chairmanship will rotate among the Military Department every 3 years. The ASD(MRA&L), or designee, shall evaluate the chairman's performance.
(2) The Secretary of each Military Department shall (i) select one qualified officer in the grade of 0-6 or higher to serve as a member of the DDESB in addition to his or her assigned duties, and one alternate of equivalent grade who shall act for his or her principal, if absent, with plenary powers. The alternate may be a qualified civilian employee of the Military Department concerned; and (ii) assign one qualified officer in the grade of 0-6 to the DDESB secretariat to advise the chairman on the Department's policies and procedures concerning explosives safety matters.
(3) The Directors of the DNA and DLA shall designate a knowledgeable official from each of their Agencies who, in addition to assigned duties, shall serve as a nonvoting member of the DDESB when the business before the DDESB concerns that agency.
(a) The
(b) The
(1) Consistent with DoD Directive 5000.19, “Policies for the Management and Control of Information Requirements,” March 12, 1976, provide the DDESB with information and support necessary to discharge its assigned responsibilities and functions.
(2) Submit plans for construction or modification of pertinent facilities, outlining the type, character, and siting of the proposed construction or modification to the chairman, DDESB, for review and approval before inclusion of the project in proposed legislation for the current budget year, or before NATO or host country approval of funds. If plans provide less than prescribed safety, they shall be accompanied by a certification letter from the head of the DoD Component concerned that such siting is essential because of operational necessity or other compelling reasons.
(3) Submit to the chairman, DDESB, for review and approval, plans for leasing, transferring, or disposing of DoD real property where ammunition and explosives contamination exists or is suspected to exist.
(4) Set interim safety standards for the manufacture, storage, and handling of ammunition and explosives pending the publication of DoD 6055.9-STD.
(5) Keep the DDESB informed on safety problems related to ammunition
(6) Comply with DoD 6055.9-STD. With respect to explosives to which the United States holds title, but that are located in overseas areas and are not in U.S. custody and under effective U.S. control, carry out this function to the extent consistent with agreements or arrangements with the host country concerned. However, since both local law and DoD 6055.9-STD apply, the more restrictive sets the minimum standards for DoD compliance. Waive or exempt compliance with DoD 6055.9-STD when justified by strategic or other compelling reasons.
(7) Provide qualified personnel for DDESB working groups when requested by the chairman, DDESB.
(8) Perform those tests and evaluations necessary for the assignment of explosives hazard classifications in accordance with Department of Defense Explosives Hazard Classification Procedures, September 1982 (Joint Regulation, TB 700-2).
(i) Military hazard classification and compatibility group.
(ii) Transportation hazard class, commodity description, and markings.
(9) Appeal to the ASD(MRA&L) any DDESB decision with which they disagree.
(c) The
(d) The
(1) Preside at DDESB meetings.
(2) Establish and maintain a system, consistent with the provisions of DoD Directive 5000.19, that will provide the Secretary of Defense and DoD Components with current information on all DDESB matters.
(3) Resolve conflicts within DDESB jurisdiction.
(4) Manage and evaluate the activities and personnel of the secretariat.
(5) Establish and direct the activities of temporary working groups to assist the DDESB.
(6) Provide an annual report to the Secretaries of the Military Departments and the ASD(MRA&L) on the status of explosives safety within the DoD Components.
The DoD Explosives Safety Board shall:
(a) Provide impartial and objective advice to the Secretary of Defense, the Secretaries of the Military Departments, and the Directors of the Defense Agencies on ammunition and explosives manufacturing, testing, handling, maintenance, developing, demilitarization, disposal, transportation, and storage and on the construction and siting of facilities within the United States and overseas when under U.S. jurisdiction, or when planned or intended for U.S-titled ammunition and explosives. This advice shall be structured to prevent conditions that will endanger life and property both inside and outside DoD or host country installations.
(b) Develop and submit to the ASD(MRA&L), for approval, DoD safety standards, to be published as DoD 6055.9-STD, designed to prevent or eliminate hazardous conditions associated with ammunition and explosives.
(c) In coordination with DoD Components, establish joint procedures for explosives hazard classification and arbitrate or otherwise resolve differences resulting from or pertinent to the assignment of hazard classification.
(d) Maintain liaison with other Federal and State agencies, allied governments, and industry having mutual interests or responsibilities in ammunition and explosives safety.
(e) Keep informed on safety problems within the DoD Components relating to ammunition and explosives development, manufacture, testing, handling, transportation, storage, maintenance, demilitarization, and disposal; and within its capability, provide advice and assistance on request.
(f) Survey, study, and evaluate DoD Components’ performance on explosives safety procedures to ensure their
(g) Review and analyze reports, data, and information on ammunition and explosives hazards and accidents, except nuclear.
(h) Review and approve the explosives safety aspects of all plans for siting and construction or modification of fixed or movable ammunition and explosives facilities, including facilities in their proximity. Facilities being constructed during combat conditions or the immediate expectations of combat conditions are exempted from this requirement. With respect to plans for new construction providing less than prescribed safety, a certification by the head of the DoD Component concerned justifying that such siting is essential because of operational necessity or other compelling reason shall be required.
(i) Review and approve plans for leasing, transferring, or disposing of DoD real property where ammunition and explosives contamination exist or is suspected to exist.
(j) Conduct programs for investigation, research, study, and tests concerning explosives hazards required to develop and maintain safety standards.
The chairman and DDESB members are authorized and expected to communicate freely with all DoD offices and other U.S. governmental, foreign, and private organizations having a mutual interest or responsibility in safety matters that involve ammunition and explosives. In technical relationships with foreign governments, agencies, or organizations, the chairman and DDESB members shall observe such policy and procedural guidance as may be prescribed by the chief of a diplomatic mission and the senior U.S. military representative in the country. With regard to nuclear weapons, access and communication shall be in accordance with the established procedures of the DNA and the Department of Energy.
Title 10 U.S.C. 131.
Executive Order 12114 provides the exclusive and complete requirement for taking account of considerations with respect to actions that do significant harm to the environment of places
The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to as “DoD components”).
(a)
(b)
(c)
(d)
(e)
(f)
(a) Executive Order 12114 is based on the authority vested in the President by the Constitution and the laws of the United States. The objective of the Order is to further foreign policy and national security interests while at the same time taking into consideration important environmental concerns.
(b) The Department of Defense acts with care in the global commons because the stewardship of these areas is shared by all the nations of the world. The Department of Defense will take account of environmental considerations when it acts in the global commons in accordance with procedures set out in Enclosure 1 and its attachment.
(c) The Department of Defense also acts with care within the jurisdiction of a foreign nation. Treaty obligations and the sovereignty of other nations must be respected, and restraint must be exercised in applying United States laws within foreign nations unless Congress has expressly provided otherwise. The Department of Defense will take account of environmental considerations in accordance with Enclosure 2 and its attachments when it acts in a foreign nation.
(d) Foreign policy considerations require coordination with the Department of State on communications with foreign governments concerning environmental agreements and other formal arrangements with foreign governments concerning environmental matters under this part.
(e) Executive Order 12114, implemented by this part prescribes the exclusive and complete procedural measures and other actions to be taken by the Department of Defense to further the purpose of the National Environmental Policy Act with respect to the environment outside the United States.
(a) The
(1) Serve as the responsible Department of Defense official for policy matters under Executive Order 12114 and this part;
(2) Modify or supplement any of the enclosures to this part in a manner consistent with the policies set forth in this part;
(3) Maintain liaison with the Council on Environmental Quality with respect to environmental documents;
(4) Participate in determining whether a recommendation should be made to the President that a natural or ecological resource of global importance be designated for protection; and
(5) Consult with the Assistant Secretary of Defense (International Security Affairs) on significant or sensitive actions or decisions affecting relations with another nation.
(b) The
(1) Maintain liaison and conduct consultations with the Department of State as required under this part; and
(2) Serve as the responsible official, in consultation with the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics), for monitoring the continuing cooperation and the exchange of information with other nations concerning the environment.
(c) The
(d) The
(1) Prepare and consider environmental documents when required by this directive for proposed actions within their respective DoD component (this reporting requirement has been assigned Report Control Symbol DD-M(AR) 1327 (§ 187.6));
(2) Insure that regulations and other major policy issuances are reviewed for consistency with Executive Order 12114 and this part;
(3) Designate a single point-of-contact for matters pertaining to this part; and
(4) Consult with the Assistant Secretary of Defense (International Security Affairs) on significant or sensitive actions or decisions affecting relations with another nation.
The documents to be prepared under § 187.5(d) and Enclosures 1 and 2, “Requirements for Environmental Considerations—Global Commons,” and “Requirements for Environmental Considerations—Foreign Nations and Protected Global Resources,” respectively, are assigned Report Control Symbol DD-M(AR) 1327.
A.
B.
C.
2.
3.
4.
5.
6.
7.
a. The magnitude of agency involvement;
b. Which agency or agencies have project approval and disapproval authority;
c. The expert capabilities concerning the environmental effects of the action;
d. The duration of agency involvement; and
e. The sequence of agency involvement.
8.
9.
D.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
A.
B.
a. Major Federal actions that significantly harm the environment of a foreign nation that is not involved in the action. The involvement of the foreign nation may be directly by participation with the United States in the action, or it may be in conjunction with another participating nation. The focus of this category is on the geographical location of the environmental harm and not on the location of the action.
b. Major Federal actions that are determined to do significant harm to the environment of a foreign nation because they provide to that nation: (1) A product, or involve a physical project that produces a principal product, emission, or effluent, that is prohibited or strictly regulated by Federal law in the United States because its toxic effects on the environment create a serious public health risk; or (2) a physical project that is prohibited or strictly regulated in the United States by Federal law to protect the environment against radioactive substances. Included in the category of “prohibited or strictly regulated” are the following: asbestos, vinyl chloride, acrylonitrile, isocyanates, polychlorinated biphenyls, mercury, beryllium, arsenic, cadmium, and benzene.
c. Major Federal actions outside the United States that significantly harm natural or ecological resources of global importance designated for protection by the President or, in the case of such a resource protected by international agreement binding on the United States, designated for protection by the Secretary of State. Such determinations by the President or the Secretary of State to be listed in Attachment 1 to this enclosure, entitled, “Protected Global Resources”.
2. The actions prescribed by this enclosure are the exclusive and complete requirement
C.
1.
(1) Environmental studies—bilateral or multilateral environmental studies, relevant or related to the proposed action, by the United States and one or more foreign nations or by an international body or organization in which the United States is a member or participant; and
(2) Environmental reviews—concise reviews of the environmental issues involved that are prepared unilaterally by the United States.
b. This section identifies the procedures for the preparation of environmental studies or reviews when required by this enclosure and the exceptions from the requirement to prepare environmental studies or reviews. If an environmental document already exists for a particular action, regardless of what Federal agency prepared it, no new document is required by this enclosure.
2.
a. The magnitude of agency involvement;
b. Which agency or agencies have project approval and disapproval authority;
c. The expert capabilities concerning the environmental effects of the action;
d. The duration of agency involvement; and
e. The sequence of agency involvement.
3.
a.
(1) Actions that the DoD component concerned determines do not do significant harm to the environment outside the United States or to a designated resource of global importance.
(2) Actions taken by the President. These include: Signing bills into law; signing treaties and other international agreements; the promulgation of Executive Orders; Presidential proclamations; and the issuance of Presidental decisions, instructions, and memoranda. This includes actions taken within the Department of Defense to prepare or assist in preparing recommendations, advice, or information for the President in connection with one of these actions by the President. It does not include actions taken within the Department of Defense to implement or carry out these instruments and issuances after they are promulgated by the President.
(3) Actions taken by or pursuant to the direction of the President or a cabinet officer in the course of armed conflict. The term “armed conflict” refers to: hostilities for which Congress has declared war or enacted a specific authorization for the use of armed forces; hostilities or situations for which a report is prescribed by section 4(a)(1) of the War Powers Resolution, 50 U.S.C.A. 1543(a)(1) (Supp. 1978); and other actions by the armed forces that involve defensive use or introduction of weapons in situations where hostilities occur or are expected. This exemption applies as long as the armed conflict continues.
(4) Actions taken by or pursuant to the direction of the President or a cabinet officer when the national security or national interest is involved. The determination that the national security or national interest is involved in actions by the Department of Defense must be made in writing by the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics).
(5) The activities of the intelligence components utilized by the Secretary of Defense under Executive Order 12036, 43 FR 3674 (1978). These components include the Defense Intelligence Agency, the National Security Agency, the offices for the collection of specialized intelligence through reconnaissance programs, the Army Office of the Assistant Chief of Staff for Intelligence, the Office of Naval Intelligence, and the Air Force Office of the Assistant Chief of Staff for Intelligence.
(6) The decisions and actions of the Office of the Assistant Secretary of Defense (International Security Affairs), the Defense Security Assistance Agency, and the other responsible offices within DoD components with respect to arms transfers to foreign nations. The term “arms transfers” includes the grant, loan, lease, exchange, or sale of
(7) Votes and other actions in international conferences and organizations. This includes all decisions and actions of the United States with respect to representation of its interests at international organizations, and at multilateral conferences, negotiations, and meetings.
(8) Disaster and emergency relief actions.
(9) Actions involving export licenses, export permits, or export approvals, other than those relating to nuclear activities. This includes: Advice provided by DoD components to the Department of State with respect to the issuance of munitions export licenses under section 38 of the Arms Export Control Act, 22 U.S.C. 2778 (1976); advice provided by DoD components to the Department of Commerce with respect to the granting of export licenses under the Export Administration Act of 1969, 50 U.S.C. App. 2401-2413 (1970 & Supp. V 1975); and direct exports by the Department of Defense of defense articles and services to foreign governments and international organizations that are exempt from munitions export licenses under section 38 of the Arms Export Control Act, 22 U.S.C. 2778 (1976). The term “export approvals” does not mean or include direct loans to finance exports.
(10) Actions relating to nuclear activities and nuclear material, except actions providing to a foreign nation a nuclear production or utilization facility, as defined in the Atomic Energy Act of 1954, as amended, or a nuclear waste management facility.
b.
(1)
(a)
(b)
(2)
4.
D.
a. An environmental study is an analysis of the likely environmental consequences of the action that is to be considered by DoD components in the decision-making process. It includes a review of the affected environment, significant actions taken to avoid environmental harm or otherwise to better the environment, and significant environmental considerations and actions by the other participating nations, bodies, or organizations.
b. An environmental study is a cooperative action and not a unilateral action undertaken by the United States. It may be bilateral or multilateral, and it is prepared by the United States in conjunction with one or more foreign nations, or by an international body or organization in which the United States is a member or participant. The environmental study, because it is prepared as a cooperative undertaking, may be best suited for use with respect to actions that provide strictly regulated or prohibited products or projects to a foreign nation (B.l.b.) and actions that affect a protected global resource (B.l.c.).
2.
3.
4.
a. A general review of the affected environment;
b. The predicted effect of the action on the environment;
c. Significant known actions taken by governmental entities with respect to the proposed action to protect or improve the environment; and
d. If no actions are being taken to protect or enhance the environment, whether the decision not to do so was made by the affected foreign government or international organization.
5.
6.
a. Enable the component to act promptly. Considerations such as national security and foreign government involvement may require prompt action that must take precedence in the environmental review process;
b. Avoid adverse impacts on relations between the United States and foreign governments and international organizations;
c. Avoid infringement or the appearance of infringement on the sovereign responsibilities of another government. The collection of information and the preparation and distribution of environmental documentation for actions in which another nation is involved, or with respect to the environment and resources of another nation, unless done with proper regard to the sovereign authority of that nation, may be viewed by that nation as an interference in its internal affairs
d. Ensure consideration of:
(1) Requirements of governmental confidentiality. This refers to the need to protect sensitive foreign affairs information and information received from another government with the understanding that it will be protected from disclosure regardless of its classification;
(2) National security requirements. This refers to the protection of classified information and other national security interests;
(3) Availability of meaningful information. Information on the environment of foreign nations may be unavailable, incomplete, or not susceptible to meaningful evaluation, particularly where the affected foreign nation is not a participant in the analysis. This may reduce or change substantially the normal content of the environmental study;
(4) The extent of the participation of the DoD component concerned and its ability to affect the decision made. The utility of the environmental analysis and the need for an in-depth review diminishes as DoD's role and control over the decision lessens; and
(5) International commercial, commercial confidentiality, competitive, and export promotion factors. This refers to the requirement to protect domestic and foreign trade secrets and confidential business information from disclosure. Export promotion factors includes the concept of not unnecessarily hindering United States exports.
7.
E.
a. An environmental review is a survey of the important environmental issues involved. It includes identification of these issues, and a review of what if any consideration has been or can be given to the environmental aspects by the United States and by any foreign government involved in taking the action.
b. An environmental review is prepared by the DoD component concerned either unilaterally or in conjunction with another Federal agency. While an environmental review may be used for any of the actions identified by section B., it may be uniquely suitable, because it is prepared unilaterally by the United States, to actions that affect the environment of a nation not involved in the undertaking (B.l.a.).
2.
3.
4.
a. A statement of the action to be taken including its timetable, physical features, general operating plan, and other similar broad-guage descriptive factors;
b. Identification of the important environmental issues involved;
c. The aspects of the actions taken or to be taken by the DoD component that ameliorate or minimize the impact on the environment; and
d. The actions known to have been taken or to be planned by the government of any participating and affected foreign nations that will affect environmental considerations.
5.
6.
a. Enable the component to act promptly. Considerations such as national security and foreign government involvement may require prompt action that must take precedence in the environmental review process;
b. Avoid adverse impacts on relations between the United States and foreign governments and international organizations;
c. Avoid infringement or the appearance of infringement on the sovereign responsibilities of another government. The collection of information and the preparation and distribution of environmental documentation for actions in which another nation is involved or with respect to the environment and resources of another nation, unless done with proper regard to the sovereign authority of that nation, may be viewed by that nation as an interference in its internal affairs and its prerogative to evaluate requirements with respect to the environment; and
d. Ensure consideration of:
(1) Requirements of governmental confidentiality. This refers to the need to protect sensitive foreign affairs information and information received from another government with the understanding that it will be protected from disclosure regardless of its classification;
(2) National security requirements. This refers to the protection of classified information;
(3) Availability of meaningful information. Information on the environment of foreign nations may be unavailable, incomplete, or not susceptable to meaningful evaluation, and this may reduce or change substantially the normal content of the environmental review;
(4) The extent of the participation of the DoD component concerned and its ability to affect the decision made. The utility of the environmental analysis and the need for an in-depth review diminishes as the role of the Department of Defense and control over the decision lessens; and
(5) International commercial, commercial confidentiality, competitive, and export promotion factors. This refers to the requirements to protect domestic and foreign trade secrets and confidential business information from disclosure. Export promotion factors includes the concept of not unnecessarily hindering United States exports.
7.
42 U.S.C. 4321.
This part implements the Council on Environmental Quality (CEQ) regulations (40 CFR parts 1500-1508), and provides policy and procedures to enable DoD officials to be informed of and take into account environmental considerations when considering the authorization or approval of major DoD actions in the United States. The CEQ regulations implement section 102(2) of the National Environmental Policy Act (NEPA) of 1969, Pub. L. No. 91-190 (1970), 42 U.S.C. 4321, 4331-4335, 4341-4347 (1976) (and Executive Order 11514, as amended.
(a) This part applies to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to as “DoD Components”).
(b) This part is limited to DoD actions with environmental effects in the United States.
(c) The civil works activities under the jurisdiction of the Secretary of the Army and the Chief of Engineers are excluded from this part.
(a)
(b) Other terms used in this part are defined in 40 CFR part 1508 of the CEQ regulations.
(a) The Department of Defense must act with care to ensure to the maximum extent possible that, in carrying out its mission of providing for the national defense, it does so in a manner consistent with national environmental policies. Care must be taken to ensure that, consistent with other considerations of national policy and with national security requirements, practical means and measures are used to protect, restore, and enhance the quality of the environment, to avoid or minimize adverse environmental consequences, and to attain the objectives of:
(1) Achieving the widest range of beneficial uses of the environment without degradation, risk to health and safety, or other consequences that are undesirable and unintended;
(2) Preserving important historic, cultural, and natural aspects of our national heritage, and maintaining, where possible, an environment that supports diversity and variety of individual choice;
(3) Achieving a balance between resource use and development within the sustained carrying capacity of the ecosystem involved; and
(4) Enhancing the quality of renewable resources and working toward the maximum attainable recycling of depletable resources.
(b) The Department of Defense shall: (1) Assess environmental consequences of proposed DoD actions that could affect the quality of the environment in the United States in accordance with enclosure 1 and 40 CFR parts 1500-1508.
(2) Use a systematic, interdisciplinary approach that will ensure the integrated use of the natural and social sciences and environmental considerations in planning and decisionmaking where there may be an impact on man's environment.
(3) Ensure that presently unmeasured environmental amenities are considered in the decisionmaking process;
(4) Consider reasonable alternatives to recommended actions in any proposal that would involve unresolved conflicts concerning alternative uses of available resources;
(5) Make available to States, counties, municipalities, institutions, and individuals advice and information useful in restoring, maintaining, and enhancing the quality of the environment; and
(6) Utilize ecological information in planning and developing resource-oriented projects.
(a) The
(2) Modify or supplement enclosure 1 of this part, when required, in a manner consistent with the policies set forth here;
(3) Provide assistance in the preparation of environmental assessments and statements, and assign, in consultation with appropriate Assistant Secretaries of Defense and heads of DoD Components, lead agency responsibility to prepare environmental documentation when more than one DoD Component is involved and agreement among the Components cannot be reached;
(4) Direct the preparation of environmental documents for specific proposed actions, when required;
(5) Provide, when appropriate, consolidated Department of Defense comments requested by other Federal agencies on draft and final environmental impact statements;
(6) Review proposed issuances of the Office of the Secretary of Defense that may have environmental implications; and
(7) Maintain liaison with the Council on Environmental Quality, the Environmental Protection Agency, the Office of Management and Budget, other Federal agencies, and State and local groups with respect to environmental analyses for proposed DoD actions affecting the quality of the environment in the United States.
(b) The
(c) The
(1) Assess environmental consequences of proposed programs and actions within their respective DoD Component;
(2) Prepare and process environmental documents as required by this part;
(3) Integrate environmental considerations into their decisionmaking processes;
(4) Ensure that regulations and other major policy issuances are reviewed for consistency with the requirements of this part;
(5) Provide comments on environmental impact statements for actions within their area of expertness of concern; and
(6) Designate a single point of contact for matters pertaining to this part.
The environmental documents to be prepared under § 188.5, Enclosure 1, and 40 CFR parts 1500-1508 are assigned Report Control Symbol DD-M(AR)1327 (formerly DD-H&E(AR)1327).
1. Section 1507.3, Council on Environmental Quality regulations directs that Federal agencies shall as necessary adopt procedures to supplement the CEQ regulations. This enclosure provides those DoD implementing procedures.
2. This enclosure must be read together with the CEQ regulations and the Act when applying the NEPA process.
3. This enclosure is organized sequentially from early planning to final implementation of an action. Throughout this enclosure, references to the CEQ regulations identify the applicable section of those regulations; e.g., CEQ 1501.2.
1.
2.
b. When another Federal agency is involved and there is disagreement in lead agency determination, the ASD(MRA&L) shall attempt to resolve the differences. If unsuccessful, the ASD(MRA&L) shall file a request with CEQ for lead agency determination.
3.
a. The following are types of actions initiated by private persons, State or local agencies, and other non-Federal entities for which DoD involvement may be reasonably foreseeable:
(1) Requests for easements and rights-of-way on DoD lands,
(2) Grazing and agricultural leases, and
(3) Requests for permits, licenses, or other agreements for use of DoD real property by non-DoD entities.
b. When DoD involvement is reasonably foreseeable, DoD Components shall consult early with appropriate State and local agencies and Indian tribes and with interested private persons and organizations.
c. Public notices or other means used to inform or solicit applicants for permits, leases, or related actions shall describe the studies or information foreseeably required for later DoD Component action.
d. When considering leasing or otherwise providing real property to non-DoD entities, DoD Components shall initiate the NEPA process, when required, as early as possible.
4.
a. Normally requires an environmental impact statement,
b. Normally does not require either an environmental impact statement or an environmental assessment (categorical exclusion), or
c. Normally requires an environmental assessment but not necessarily an environmental impact statement.
5.
(1) Potential for significant degradation of environmental quality,
(2) Potential for threat or hazard to the public,
(3) Potential for significant impact on protected natural or historic resources.
b. DoD component procedures will identify those typical classes of actions that normally require the preparation of environmental impact statements.
c. In any case involving a proposed action of the sort that normally does require an environmental impact statement, a DoD Component may still prepare an environmental assessment to determine if an environmental impact statement is required based on the particular facts. If a determination is made based on the assessment that no environmental impact statement is required on the particular facts, a finding of no significant impact will be prepared and made available to the public in accordance with paragraph C.4. of this enclosure.
6.
a.
(1) Minimal or no significant effect on environmental quality,
(2) No significant change to existing environmental conditions,
(3) No significant cumulative environmental impact,
(4) Social and economic effects only,
(5) Similarly to actions previously assessed and found to have no significant environmental impact.
b.
c.
(2) DoD Components are encouraged to include in their regulations to implement this Directive addition categorical exclusions that they identify. Categorical exclusions that one DoD Component identifies that may be applicable to other DoD Coponents should be brought to the attention of the ASD(MRA&L).
d.
(1) Greater scope or size than normally experienced for a particular category of action,
(2) Potential for degradation, even though slight, of already existing poor environmental conditions,
(3) Presence of endangered species, archeological remains, or other cultural, historic, or protected resources, and
(4) Use of hazardous or toxic substances.
7.
1.
2.
a. Need for the proposed action,
b. Alternatives considered when the proposed action involves unresolved conflicts concerning alternative uses of available resources,
c. Environmental impacts of the proposed action and alternatives,
d. Listing of agencies and persons consulted, and
e. Conclusion of whether to prepare an environmental impact statement or a finding of no significant impact.
3.
a. Magnitude of the proposal,
b. Likelihood of public interest,
c. Need to act quickly, and
d. National security classification issues.
4.
1.
2.
3.
4.
5.
6.
7.
8.
a. Each DoD Component shall designate in its regulation implementing this part where interested persons can obtain information.
b. For those actions relating to the Office of the Secretary of Defense, information is available by writing the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics), Washington, D.C. 20301.
9.
10.
1.
a. Major decision points are designated for principal programs and proposals likely to have a significant effect on the quality of the human environment, and steps are taken to ensure that the NEPA process coincides with these decision points.
b. Relevant environmental documents, comments, and responses accompany a proposal through existing DoD Component review processes so that they can be considered by DoD Component decisionmakers.
c. The alternatives considered by the decisionmaker are encompassed by the range of alternatives discussed in relevant environmental documents, and the decisionmaker considers all the alternatives described in the environmental impact statement.
2.
3.
4.
5.
1. Preparation of regulations, directives, manuals, or other guidance documents that implement, without substantial change, the regulations, directives, manuals, or other guidance documents from higher headquarters or another Federal agency.
2. Preparation of regulations, directives, manuals, and other guidance documents related to actions that qualify for categorical exclusion.
3. Routine installation maintenance and grounds-keeping activities.
4. Minor construction conducted in accordance with an approved installation master plan that does not significantly alter land use, provided that the operation of the completed project would not of itself have a significant environmental impact.
5. Studies that involve no commitment of resources other than manpower and funding.
6. Proposed actions that, based on sound judgment, are of such an environmentally insignificant nature as clearly not to meet the threshold for requiring an environmental assessment or environmental impact statement.
7. Other categories as identified by DoD Components in their regulations implementing this part.
30 U.S.C. 21a, 22, 181
Under 30 U.S.C. 21a, 22, 181
(a) This Directive applies to the Office of the Secretary of Defense and the Military Departments (including their National Guard and reserve components).
(b) It applies to DoD-controlled lands acquired or withdrawn from the public domain (including Army civil works lands) within the United States and its territories and possessions for which the mineral rights are owned by the United States, with the following exceptions:
(1) Mineral leasing of lands situated within incorporated cities, towns, and villages (30 U.S.C. 351
(2) Mineral leasing of tidelands or submerged lands (30 U.S.C. 351).
(3) Certain hardrock minerals known as locatables (30 U.S.C. 22).
(4) A class of minerals composed of sand and gravel known as saleables (30 U.S.C. 601
(a)
(b)
(c)
(d)
(e)
(f)
In accordance with established DoD policy to promote optimal use of real property under the multiple-use principle (DoD Directive 4700.1), DoD lands shall be made available for mineral exploration and extraction to the maximum extent possible consistent with military operations, national defense activities, and Army civil works activities.
(a) The
(1) Have primary responsibility for developing DoD policy for mineral exploration and extraction on DoD lands.
(2) Ensure that the Military Departments issue regulatory documents implementing this Directive.
(b) The
(1) Review and approve or disapprove requests from the Department of the Interior (DoI), the Federal mineral leasing agency, to lease DoD lands under 43 U.S.C. 155
(2) Issue regulatory documents implementing this Directive to prescribe procedures relating to the issuance of permits and leases and the approval of plans of operations for mineral exploration and extraction.
(3) Formulate a system for maintaining records of land status to assist the DoI in mineral leasing. This system shall be established in accordance with DoD Directive 5000.11 and shall use existing standard data elements from DoD 5000.12-M, whenever possible.
(a) If a Military Department cannot consent to exploration or extraction, it also may not approve testing or leasing. Exclusion of lands from exploration and extraction shall be justified and supported. Availability of lands is subject to certain conditions and stipulations that also shall be justified. Granting approval for leasing usually shall be construed as consent ultimately to allow drilling or other forms of mineral extraction. Accordingly, initial approval clearly shall indicate the conditions, if known, under which further exploration or extraction shall be allowed. For example, classified operations, ammunition and explosives operational storage requirements, and contaminated lands may restrict or exclude leasing or may require no surface disturbance stipulations (DoD 5154.4-S).
(b) The Military Departments may issue permits to parties interested in conducting seismic or other geophysical tests on DoD lands. In unusual circumstances, the Military Departments may refer permit applications to the DoI for issuance. Permits are subject to the approval of, and conditions imposed by, the Military Department concerned. The issuing agency shall make any required environmental and cultural studies. For permits issued by the DoI, the Military Department concerned shall provide, upon request, environmental and cultural information held by the Department.
(c)
(1)
(2)
(3)
(4) The DoI has the responsibility for the collection and disposition of proceeds derived from mineral leasing.
(a) 30 U.S.C. 351
(b) 30 U.S.C. 351
16 U.S.C. 1531 et seq., 16 U.S.C. 670 et seq., 10 U.S.C. 2665, 10 U.S.C. 2667(d), 10 U.S.C. 2671 and 16 U.S.C. 460(l).
This part.
(a) Replaces DoD Directive 4700.1.
(b) Supersedes 32 CFR parts 232, 233, 234, and 217.
(c) Implements 16 U.S.C. 1531 et seq., 16 U.S.C. 670 et seq., 10 U.S.C. 2665, 10 U.S.C. 2667(d), 10 U.S.C. 2671, and 16 U.S.C. 460(l).
(d) Prescribes policies and procedures for an integrated program for multiple-use management of natural resources on property under DoD control.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the Military Departments (including their National Guard and Reserve components), the Joint Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to collectively as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
(b) Governs DoD management of natural resources in the United States and its territories and possessions for both
(c) Does not govern natural resources management at State-owned National Guard installations. Nothing contained in this part nor in implementing documents or agreements shall modify rights granted by treaty to Indian tribes or their members.
(d) Does not apply to the civil works functions of the Army.
(a) Fish and wildlife habitat improvements or modifications.
(b) Range rehabilitation where necessary for support of wildlife.
(c) Control of off-road vehicle traffic.
(d) Specific habitat improvement projects and related activities and adequate protection for species of fish, wildlife, and plants considered threatened or endangered.
(a) The Department of Defense shall act responsibly in the public interest in managing its lands and natural resources. There shall be a conscious and active concern for the inherent value of natural resources in all DoD plans, actions, and programs.
(b) Natural resources under control of the Department of Defense shall be managed to support the military mission, while practicing the principles of multiple use and sustained yield, using scientific methods and an interdisciplinary approach. The conservation of natural resources and the military mission need not and shall not be mutually exclusive.
(c) Watersheds and natural landscapes, soils, forests, fish and wildlife, and protected species shall be conserved and managed as vital elements of DoD's natural resources program.
(d) DoD actions that affect natural resources in the United States shall comply with the policy and requirements of 32 CFR part 188 and the more stringent of applicable Federal or local laws. DoD actions that influence natural resources in foreign countries or global commons shall conform to requirements of 32 CFR part 187 applicable laws, treaties, and agreements.
(e) Integrated natural resources management plans that incorporate applicable provisions of the Appendix to this part shall be maintained for DoD lands.
(f) DoD decisionmakers and commanders shall keep informed of the conditions of natural resources, the objectives of natural resources management plans, and potential or actual conflicts between DoD actions and management plans and the policies and procedures herein.
(g) DoD lands shall be available to the public and DoD employees for enjoyment and use of natural resources, except when a specific determination has been made that a military mission prevents such access for safety or security reasons or that the natural resources will not support such usage. The determination shall be addressed in the applicable natural resources management plan. To assist in the management, study, or monitoring of natural resources, Federal, State and local officials and natural resources management professionals shall be permitted access to natural resources after proper safety and security measures are taken.
(h) The management and conservation of natural resources under DoD stewardship is an inherently governmental function. Therefore, 32 CFR part 169 does not apply to the management, implementation, planning, or enforcement of DoD natural resources programs. However, support to the natural resources program when it is severable from management of natural resources may be subject to 32 CFR part 169.
(i) If natural resources under DoD control are damaged by a hazardous substance released by another party, that party is potentially liable. The funds recovered by the Department of Defense as a result of natural resources damage claims shall be used for restoration, replacement, or acquisition of equivalent natural resources.
(j) Enforcement of laws primarily aimed at protecting natural resources and recreation activities that depend on natural resources is an integral part of a natural resources progam and shall be coordinated with or under the direction of the natural resources manager for the affected area.
(a) The
(1) Establish and monitor implementation of natural resources management policies for DoD properties and actions.
(2) Coordinate the DoD natural resources program with other Federal Agencies.
(3) Maintain the Secretary of Defense Natural Resources Conservation Awards Program established herein and described in DoD Instruction 4700.2
(4) Designate a chairperson for the DoD Natural Resources Council (DNRC) established in paragraph (b) of this section.
(5) Establish policy and direction for the DoD reserve account established by 10 U.S.C. 2665.
(b) The
(c) The
(1) Maintain an organizational capability and program resources necessary to establish and maintain integrated natural resources management programs as prescribed in this part.
(2) Maintain at all levels of command the interdisciplinary natural resources expertise necessary to implement this program and provide for their continued professional training.
(3) Ensure that effective natural resources management is an identifiable function and is specifically accountable in performance evaluations at each command level.
(4) Provide for technical reviews and onsite assessments of installations’ natural resources programs at least each 3 years by natural resources management professionals, take necessary corrective actions, and include natural resources programs in management reviews.
(5) Develop criteria and procedures for cooperative planning and integrated natural resources management planning processes.
(6) Act as trustees for natural resources under their jurisdiction.
(7) Maintain records necessary to monitor and evaluate natural resources under their management and provide requested information to the ASD(P&L), other agencies with jurisdiction, and the public.
(d) The
(e)
(1) Conduct integrated natural resources management programs to comply with this part.
(2) Enter into cooperative plans that may be developed on behalf of the Secretary of Defense pursuant to the Sikes Act.
(a) Procedures shall be established by DoD Components to ensure that current and planned mission activities (e.g., master planning, construction requests, site approval requests, and training exercise plans) are effectively coordinated in a timely manner with appropriate natural resources managers.
(b) The DNRC shall advise the ASD(P&L) regarding natural resources issues and shall meet at least quarterly. DoD Components shall participate to carry out this Directive and goals of the DoD natural resources program. The Heads of the Military Services each shall appoint one representative and one alternate to the DNRC. The DNRC shall:
(1) Provide technical support to the ASD(P&L) in natural resources areas.
(2) Recommend policy and program improvements.
(3) Assist in conducting the Secretary of Defense Natural Resources Conservation Awards Program.
(4) Coordinate the natural resources management program among DoD Components.
(5) Conduct periodic natural resources conferences or training opportunities for DoD employees.
(6) Identify and coordinate natural resources research activities and needs and present them to the DUSD(R&AT) each year.
Information requirements of the ASD(P&L) shall be met by the Heads of the Military Services each year by January 15 under Report Control Symbol DD-P&L(A)1485.
1. Integrated natural resources management plans shall be maintained for properties under DoD control. These plans shall guide planners and implementors of mission activities as well as natural resources managers.
2. The plans shall be coordinated with appropriate Federal, State, and local officials with interest or jurisdiction in accordance with 32 CFR part 243 and with planners of DoD activities that impact on the natural resources. Conversely, new and continuing mission activities that impact on natural resources shall be coordinated with appropriate natural resources managers.
3. Natural resources management plans shall be continually monitored, reviewed annually, and revised by DoD natural resources management professionals. They shall be approved in accordance with DoD Components’ procedures at least every 5 years.
4. The natural resources management planning process shall invite public participation.
5. An integrated natural resources management plan shall meet the following criteria:
a. Natural resources and areas of critical or special concern are adequately addressed from both technical and policy standpoints.
b. The natural resources management methodologies shall sustain the capabilities of the natural resources to support military requirements.
c. The plan includes current inventories and conditions of natural resources; goals; management methods; schedules of activities and projects; priorities; responsibilties of installation planners and decisionmakers; monitoring systems; protection and enforcement systems; and land use restrictions, limitations, and capabilities.
d. Each plan segment or component (i.e., land, forest, fish and wildlife, and outdoor recreation) exhibits compatible methodologies and goals.
e. The plan is compatible with the installation's master plan and pest management program under DoD Directive 4150.7.
6. A determination that the public may not have access to use natural resources under DoD control shall be included and explained in the applicable integrated natural resources management plan.
7. The environmental impact analysis for any proposed activity or project shall include an analysis of the compatibility of the proposal's impacts with affected natural resources management plans and objectives. Only after necessary revisions to management plans are made shall the new activity begin.
8. The planning requirements of DoD Directive 4710.1
9. Integrated natural resources management plans shall be a primary consideration during the master planning process and for land use and development decisions.
The integrated natural resources plan shall implement the following policies and requirements for each applicable program area:
a. DoD lands shall be managed to support military activities, improve the quality of land and water resources, protect wetlands and floodplains and their functions, abate nonpoint sources of water pollution, conserve lands suitable for agriculture, control noxious weeds, and control erosion.
b. Costs for maintaining grounds shall be minimized by providing the least amount of mowed areas and special plantings necessary to accomplish management objectives and by the use of low maintenance species, agricultural outleases, wildlife habitat, and tree plantings.
c. Land management is an important use of appropriated funds. Also, pursuant to 10 U.S.C. 2667(d) revenues from the agriculture and grazing outlease program are available for:
(1) Administrative expenses of agricultural leases.
(2) Initiation, improvement, and perpetuation of agricultural outleases.
(3) Preparation and revisions of natural resources management plans.
(4) Implementation of integrated natural resources management plans.
d. When appropriate, land management plans shall address soils, water resources, soil and water conservation, wetlands and floodplains, grounds maintenance, landscaping, agricultural uses and potential, fire management, rangeland conditions and trends, areas of special interest, and management for multiple use.
e. Soil capabilities, water management, landscaping, erosion control, and conservation of natural resources shall be included in all site feasibility studies and in project planning, design, and construction. Appropriate conservation work and associated costs shall be included in project proposals and construction contracts and specifications. Such studies and work shall be coordinated with appropriate natural resources management professionals and plans.
f. Irrigation shall be limited to areas where it is essential to establish and maintain required vegetation or when an agricultural outlease contract allows it.
g. Appropriate natural resources conservation measures shall be included in outlease provisions.
h. Landscaping shall be functional in nature, simple and informal in design, compatible with adjacent surroundings, and complimentary to the overall natural setting of the area.
i. Land conditions, soil capability, and erosion status shall be monitored for all lands subject to disturbance (e.g., maneuver areas, commercial forest areas, and agricultural outleased areas). The data and analyses obtained shall be used in planning, environmental analyses, and decisionmaking at all levels of command.
a. DoD forest lands shall be managed for sustained yield of quality forest products, watershed protection, wildlife habitat, and other uses that can be made compatible with mission activities.
b. Commercial forestry activities shall be commensurate with potential financial returns.
c. Forest products shall not be given away, abandoned, carelessly destroyed, used to offset costs of contracts, or traded for products, supplies, or services. Forest products may be used for military training. Individuals may be allowed to collect noncommercial or edible forest products if that use is addressed in the management plan for the areas involved. Forest products may be harvested to generate electricity or heat only if the Military Department's forestry account is paid fair market value.
d. Planned forest products sales shall continue on land reported as excess until actual disposal or transfer occurs. When forested areas are slated to be public parks or used for outdoor recreation, clearcutting is prohibited. However, thinning, intermediate cuttings, and salvage cuttings shall be accomplished if the management plan calls for such activity within the next 5 years. That portion of the proceeds from sales of land that is attributable to the value of standing timber on the land sold shall be deposited in the Military Department's forestry account.
e. Accounting and reporting for the proceeds and costs of the commercial forestry program are contained in DoD Instruction 7310.5.
f. When appropriate, natural resources management plans shall include current forest inventories, conditions, trends, and potential uses; analysis of soil data for forest potential; goals; protection and enforcement methods; maintenance of forested areas and access roads; improvement methods; harvesting and reforestation methods and schedules; and management for multiple use.
a. Lands and waters suitable for management of fish and wildlife resources shall be managed to conserve wildlife resources for the benefit of the public. Nongame as well as game species shall be considered when planning activities.
b. Endangered and threatened species and their habitats shall be protected and managed according to the Endangered Species Act and implementing U.S. Fish and Wildlife Service (FWS) regulations and agreements. Management plans for installations with endangered species shall include:
(1) Coordinated protection and mitigation measures.
(2) Appropriate affirmative methods and procedures necessary to enhance the population of endangered species.
(3) Procedures and responsibilities for consulting with the FWS prior to funding or conducting any action likely to affect a listed species or its critical habitat.
c. The Sikes Act provides a mechanism whereby the Departments of Defense and the Interior and host States cooperate to plan, maintain, and manage fish and wildlife on military installations. Agreement by all 3 parties regarding the fish and wildlife management plan for an installation makes that plan a cooperative plan pursuant to 16 U.S.C. 670
d. Hunting, fishing, and trapping may be permitted within the carrying capacity of wildlife habitats. Harvesting of wildlife from DoD installations or facilities shall be done according to the fish and game laws of the State or territory in which it is located and under 10 U.S.C. 2671. Special permits shall be issued, in addition to required State and Federal permits or licenses, for fishing, hunting, or trapping on DoD property.
e. Hunting, fishing, and trapping fees may be collected under the authority of the Sikes Act to recover expenses of implementing a cooperation plan. The same Sikes Act fee shall be charged for a particular use to all users at a particular installation except senior citizens, children, and the physically handicapped. Exceptions to this policy may be granted by the Heads of Military Services. Additional recreation fees may be collected
f. Criteria and procedures for hunting, fishing, and trapping permits and fees shall be included in management plans. Fees collected under the authority of 16 U.S.C. 670
g. Whenever hunting, fishing, or trapping is allowed on DoD installations, enforcement of wildlife laws shall be addressed in the fish and wildlife management plan and carried out by trained enforcement officials under the direction of or in coordination with the wildlife manager.
h. The suitability of a military installation for fish and wildlife management shall be determined after consulting with the FWS and host State. Each installation shall be classified as one of the following:
(1) Category I—Installations with land and water resources suitable for fish and wildlife conservation. Each Category I installation shall maintain a wildlife management plan according to this part.
(2) Category II—Installations that lack adequate land and water resources for feasible fish and wildlife conservation.
i. The number of users of fish and wildlife resources may be limited on a daily or seasonal basis. Membership in an organization, including rod and gun clubs, shall not be a prerequisite for or get priority in receiving permits.
j. Habitat management is the basic means of improving wildlife resources. Introduction and reintroduction of species shall occur only in coordination with appropriate agencies and in accordance with a cooperative plan. When predator or animal damage control is a necessary part of natural resources management or mission performance, it shall be accomplished according to the cooperative plan, relevant laws and regulations, and in coordination with adjoining land managers.
k. Fish and wildlife conservation shall be considered in all site feasibility studies and project planning, design, and construction. Appropriate conservation work and associated funding shall be included in project proposals and construction contracts and specifications.
l. Priority shall be given to entering into contracts for services that implement wildlife management or enforce wildlife laws with Federal and State Agencies with responsibility for wildlife conservation.
m. Where appropriate, natural resources management plans shall address habitat management and enhancement, current wildlife and fish inventories and population trends, endangered and other special species management, game and nongame species management, access policy and user program, administration of user fee program, law enforcement, cooperating agencies’ responsibilities, and multiple use management.
a. Whenever practicable, DoD lands with suitable resources shall be managed to conserve and use natural resources for the outdoor recreation opportunities of present and future generations. The policies and procedures herein apply to outdoor recreation programs as defined in § 190.3 and supersedes those in DoD Directive 1015.6 and DoD Instruction 1015.2.
b. Conservation of outdoor recreation resources shall be considered in all plans, programs, site feasibility studies, and project planning and design.
c. Installations having resources suitable for outdoor recreation other than hunting, fishing, and trapping are encouraged to develop cooperative agreements or plans with other Federal Agencies and appropriate State Agencies to facilitate the development and management of those programs.
d. Public access to DoD properties for outdoor recreation shall be allowed whenever compatible with public safety and mission activities. User fees may be collected to recover expenses of managing natural resources for outdoor recreation, and access quotas may be established to reflect the carrying capacity of the areas involved. Public outdoor recreation opportunities shall be equitably distributed by impartial procedures, such as a first-come, first-served basis or by drawing lots. When public access must be withheld, that determination shall be explained in the natural resources management plan.
e. Off-road vehicle use shall be managed to protect natural resources, promote safety, and avoid conflicts with other uses of DoD properties. Use of off-road vehicles shall be monitored and evaluated regularly by natural resources management professionals. All land and water areas shall be closed to such use unless an environmental impact analysis in accordance with 32 CFR part 188 has been completed and the use is specifically approved and regulated. Specific areas that
(1) Restricted for security or safety purposes.
(2) Containing fragile geological and soil conditions, flora or fauna, or other natural characteristics.
(3) With significant archeological, historical, paleontological resources.
(4) Designated as wilderness or scenic areas.
(5) Where noise would adversely affect other users, wildlife, or adjacent communities.
f. Whenever appropriate, outdoor recreation plans shall address inventories, trends, and management of resources suitable for outdoor recreation; aesthetics; development of opportunities and potential uses; potential user groups and access policy; user fee program; user ethics programs; and multiple use management.
Areas on DoD installations that contain natural resources that warrant special conservation efforts shall be identified. After appropriate study and coordination, such areas may be designated as Special Interest Areas. Upon such designation, the integrated natural resources management plan for the installation shall address the special management necessary for the area.
A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabetical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published separately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations which were made by documents published in the
For the period before January 1, 1986, see the “List of CFR Sections Affected, 1949-1963, 1964-1972, and 1973-1985”, published in seven separate volumes.