CODE OF FEDERAL REGULATIONS
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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.
Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows:
Title 1 through Title 16
Title 17 through Title 27
Title 28 through Title 41
Title 42 through Title 50
The appropriate revision date is printed on the cover of each volume.
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Title 32—
The current regulations issued by the Department of Defense appear in the volumes containing parts 1-189 and parts 190-399; those issued by the Department of the Army appear in the volumes containing parts 400-629 and parts 630-699; those issued by the Department of the Navy appear in the volume containing parts 700-799, and those issued by the Department of the Air Force, Defense Logistics Agency, Selective Service System, National Counterintelligence Center, Central Intelligence Agency, Information Security Oversight Office, National Security Council, Office of Science and Technology Policy, Office for Micronesian Status Negotiations, and Office of the Vice President of the United States appear in the volume containing parts 800 to end.
For this volume, Melanie L. Marcec was Chief Editor. The Code of Federal Regulations is published under the direction of Frances D. McDonald, assisted by Alomha S. Morris.
(This book contains parts 400 to 629)
American Battle Monuments Commission: See Parks, Forests, and Public Property, 36 CFR, chapter IV.
Department of Veterans Affairs: See Pensions, Bonuses, and Veterans' Relief, 38 CFR, chapter I.
Federal Acquisition Regulations System, 48 CFR.
(Parts 400 to 629)
Other regulations issued by the Department of the Army appear in title 33, chapter II; and title 36, chapter III.
The following abbreviations are used in this chapter: AGCT=
Secs. 331, 332, 333, and 3012, 70A Stat. 15, 157; 10 U.S.C. 331, 332, 333, 3012.
(a) The protection of life and property and the maintenance of law and order within the territorial jurisdiction of any State are the primary responsibility of State and local civil authorities. Generally, Federal Armed Forces are committed after State and local civil authorities have utilized all of their own forces and are unable to control the situation, or when the situation is beyond the capabilities of State or local civil authorities, or when State and local civil authorities will not take appropriate action. Commitment of Federal Armed Forces will take place only—
(1) Under the provisions of this part, and
(2) When the Secretary of the Army, pursuant to the orders and policies of the Secretary of Defense and the President, has generally or specifically so ordered, except in cases of emergency (§ 501.2).
(b) The Secretary of the Army has been designated as the Executive Agent for the Department of Defense in all matters pertaining to the planning for, and deployment and employment of military resources in the event of civil disturbances. The Department of the Army is responsible for coordinating the functions of all the Military Services in this activity for the Executive Agent. The Secretaries of the other Military Services are responsible for providing such assistance as may be requested by the Executive Agent.
(c) Persons not normally subject to military law taken into custody by the military forces incident to the use of Armed Forces, as contemplated by this part, will be turned over, as soon as possible, to the civil authorities. The Army will not operate temporary confinement/detention facilities unless local facilities under the control of city, county, and State governments and the U.S. Department of Justice cannot accommodate the number of persons apprehended or detained. Further, this authority may be exercised only in the event Federal Armed Forces have been committed under the provisions of this part and only with the prior approval of the Department of the Army. When the requirement exists for the Army to operate such facilities, the provisions of Army confinement regulations will apply to the maximum extent feasible under the circumstances.
(d) Whenever military aid is requested by civil authorities in the event of civil disturbances within the States of Alaska, or Hawaii, the Commonwealth of Puerto Rico, or U.S. possessions and territories, the commander of the unified command concerned coordinates the provision of such aid.
(e) Units and members of the Army Reserve on active duty may be employed in civil disturbance operations in the same manner as active forces. Units and members of the Army Reserve may be ordered to active duty for this purpose by the President as provided by law. Members of the Army Reserve, with their consent, may be ordered to active duty for civil disturbance operations under the provisions of 10 U.S.C. 672.
(a) In cases of sudden and unexpected invasion or civil disturbance, including
(b) Emergency firefighting assistance may be provided pursuant to agreements with local authorities; emergency explosive ordnance disposal service may be provided in accordance with paragraph 18, AR 75-15.
(a) In the enforcement of the laws, Federal Armed Forces are employed as a part of the military power of the United States and act under the orders of the President as Commander in Chief. When commitment of Federal Armed Forces has taken place, the duly designated military commander at the objective area will act to the extent necessary to accomplish his mission. In the accomplishment of his mission, reasonable necessity is the measure of his authority, subject of course, to instructions he may receive from his superiors.
(b) Federal Armed Forces committed in aid of the civil authorities will be under the command of, and directly responsible to, their military and civilian superiors through the Department of the Army chain of command. They will not be placed under the command of an officer of the State Defense Forces or of the National Guard not in the Federal service, or of any local or State civil official; any unlawful or unauthorized act on the part of such troops would not be excusable on the ground that it was the result of an order received from any such officer or official. As directed by the Army Chief of Staff, military commanders will be responsive to authorized Federal civil officials.
It is unlikely that situations requiring the commitment of Federal Armed Forces will necessitate the declaration of martial law. When Federal Armed Forces are committed in the event of civil disturbances, their proper role is to support, not supplant, civil authority. Martial law depends for its justification upon public necessity. Necessity gives rise to its creation; necessity justifies its exercise; and necessity limits its duration. The extent of the military force used and the actual measures taken, consequently, will depend upon the actual threat to order and public safety which exists at the time. In most instances the decision to impose martial law is made by the President, who normally announces his decision by a proclamation, which usually contains his instructions concerning its exercise and any limitations thereon. However, the decision to impose martial law may be made by the local commander on the spot, if the circumstances demand immediate action, and time and available communications facilities do not permit obtaining prior approval from higher authority (§ 501.2). Whether or not a proclamation exists, it is incumbent upon commanders concerned to weigh every proposed action against the threat to public order and safety it is designed to meet, in order that the necessity therefor may be ascertained. When Federal Armed Forces have been committed in an objective area in a martial law situation, the population of the affected area will be informed of the rules of conduct and other restrictive measures the military is authorized to enforce. These will normally be announced by
The right of the United States to protect Federal property or functions by intervention with Federal Armed Forces is an accepted principle of our Government. This form of intervention is warranted only where the need for protection exists and the local civil authorities cannot or will not give adequate protection. This right is exercised by executive authority and extends to all Federal property and functions.
The use of Federal Armed Forces for civil disturbance operations should end as soon as the necessity therefor ceases and the normal civil processes can be restored. Determination of the end of the necessity will be made by the Department of the Army.
(a) The Department of the Army in certain limited situations can lend military equipment to civil law enforcement authorities in the event of civil disturbances. Such loans of equipment are limited to those necessary to meet an urgent need during an actual civil disturbance (except as provided in paragraph (b) of this section) and the loans are considered to be a temporary emergency action. Civil law enforcement authorities are to be encouraged to procure their own equipment for police use since, even though requests are handled expeditiously, normally some time will elapse before the military equipment can be in the hands of the civil law enforcement authorities. Law enforcement authorities are to be cautioned not to rely on the loan of military equipment in the event of a civil disturbance in their locality because the availability of military equipment for civilian use is contingent upon military requirements for the Department of the Army resources.
(b) A loan agreement will be executed with the civil authority in each case. The agreement will indicate that the property may be retained by the civil authorities only for the duration of the civil disturbance, but for not more than 15 days; however, should the civil disturbance exceed 15 days the approving authority may extend the agreement for another 15-day period. It is recognized that there is often a substantial leadtime before equipment procured by civil law enforcement authorities will be delivered to them. For this reason loans of equipment beyond the 15-day limit are authorized when a request is made in anticipation of imminent threatened civil disturbance and the civil authority requesting the loan has initiated procurement action for equipment substantially similar to the military property requested. Loans may be approved for terms of up to 90 days pending delivery to the civil authority of its own equipment and renewed by the approving authority for another 90-day period if necessary.
(c) Each loan agreement will contain provisions for a cash bond, performance bond, or the equivalent equal to the value of the loaned equipment, as a condition to making the loan; waiver of the requirement to post bond will be approved only by the Department of the Army. With the prior concurrence of the Department of the Army, the bond will be forfeited in the event the equipment is not returned at the time specified. However, the forfeiture of the bond will not constitute a sale of the equipment, and the borrower will not be relieved of his obligation to return the loaned equipment. Loan agreements will clearly state the expenses and obligations assumed by the civil authority.
Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012.
(a) Sections 502.1 through 502.5 contain Department of the Army policy and responsibilities for operations involving participation in natural disaster relief activities.
(b) Sections 502.1 through 502.5 are applicable in the 48 contiguous States and the District of Columbia, and where not in conflict with public law or other proper authority, have equal application to Alaska, Hawaii, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Trust Territory of the Pacific Islands. Within the latter areas, the commander of the unified command concerned is responsible for emergency employment of military resources in disaster relief.
(c) Policy and guidance for related type emergencies involving employment of Army resources are contained in AR 600-50 (Civil Disturbances), AR 500-70 (Civil Defense), and AR 420-90 (Fire Prevention and Protection).
(d) The provisions of §§ 502.1 through 502.5 apply generally except as otherwise covered in directives of Chief of Engineers pertinent to the Civil Works Program.
For the purpose of §§ 502.1 through 502.5 the following definitions apply:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
The following guidelines are pertinent to disaster relief action.
(a) Public Law 875, 81st Congress, as amended, 42 U.S.C. 1855-1855g (Federal Disaster Act of 30 September 1950), hereinafter referred to as Pub. L. 875, which provides for supplementary Federal assistance to State and local governments in major disasters, and for other purposes.
(b) Executive Order 10427 dated January 16, 1953, as amended, which delegates to the Director, OEP the authority to direct and coordinate other Federal agencies in rendering assistance to State and local governments under provisions of Pub. L. 875.
(c) Executive Order 10737, dated October 29, 1957, which amends Executive Order 10427 to include authority for the reimbursement of any Federal agency, subject to the concurrence of the Director of the Bureau of the Budget, for authorized expenditures for funds allocated by the President for use in assistance to a specific State.
(d) Executive Order 11051 dated September 27, 1962, which specifically prescribes the responsibility of the Director, OEP as set forth in Executive Orders 10427 and 10737.
(e) Federal assistance is authorized under provisions of Pub. L. 875 only after the President has declared the specific disaster as defined in the Act. Such declaration is made after a request for Federal assistance by the Governor of the State (or the Board of Commissioners of the District of Columbia), through the appropriate OEP Regional Office Director.
(f) Section 5 of the Act of August 18, 1941, ch. 377, as amended, 33 U.S.C. 701n; is commonly known and hereinafter referred to as Public Law 99 (Pub. L. 99). It provides basic guidance for the applicable emergency activities of the Corps of Engineers. The law provides discretionary authority for expenditures for flood emergency preparation; flood fighting and rescue operations, and emergency repair or restoration of flood control works and Federal shore protection or hurricane flood protection works. Administration of Pub. L. 99 is under the direction of the Secretary of the Army and the supervision of the Chief of Engineers. No declaration of a major disaster is required.
(g) Existing statutes and Executive orders do not in any way limit Federal agencies from taking necessary action in accordance with existing policy and statutory authority in the event of a disaster which will not brook delay in the commencement of Federal assistance or other Federal action and/or pending the designation by the President of a major disaster.
(h) The American National Red Cross is charged in accordance with its Charter, with continuing a system of national and international relief with voluntary service and financing, which in effect supports official disaster relief action.
(a) Responsibility for alleviating disaster conditions rests primarily with individuals, families, private industry, local and State governments, the American National Red Cross, and those Federal agencies having special statutory responsibilities.
(b) DOD components are authorized to assist civilian authorities as necessary or as directed by competent authority.
(c) Where the disaster is of such imminent seriousness that delay in awaiting instructions from higher authority is unwarranted, a military commander will take such action as may be required and justified under the circumstances to save human life, prevent immediate human suffering, or mitigate major property damage or destruction. The commander will immediately report to higher authority the action taken and request appropriate guidance.
(d) DOD components have been directed to develop, as appropriate, contingency plans for major disaster operations and insure that these are coordinated with appropriate civil authorities at State and local level.
(e) DOD components overseas will participate in foreign disaster relief operations as directed by unified commanders.
(f) The Department of the Army has been directed to assume responsibility for military support in disasters within the continental United States (48 contiguous States and the District of Columbia). This includes responsibility for effective utilization, coordination, and control of resources made available by the Department of the Navy, the Department of the Air Force, and other DOD components as appropriate.
(g) The Department of the Navy has been directed to coordinate with the Department of the Army in planning and supporting civil authorities in disaster relief operations.
(h) The Department of the Air Force has been directed to coordinate with the Department of the Army in planning and supporting civil authorities in disaster relief operations including activities of the Civil Air Patrol.
(i) The Joint Chiefs of Staff have been directed to issue instructions to appropriate unified commanders to insure proper planning and use of military resources for disaster relief operations in Alaska, Hawaii, Puerto Rico, the Virgin Islands, American Samoa, Guam, and the Trust Territory of the Pacific Islands.
(a) Military commanders will conduct relief operations in the event of emergency as described in § 502.4(c), or when directed by higher military authority or by direction of OEP under Pub. L. 875.
(b) Use of military resources and other military participation in disaster relief will be on a minimum essential basis and terminated at the earliest practicable time. Military assistance in rehabilitation following a disaster is not authorized, except as directed by the OEP, or in support of emergency operations conducted by the Corps of Engineers as authorized by law.
(c) Federal troops used in disaster relief activities will be under command of, and directly responsible to, their military superiors.
(d) National Guard forces, if not in active Federal service, will remain under control of the State governor and will be considered part of the local resources available to civil authorities. Federally owned National Guard equipment may accompany a unit when ordered into disaster relief operations by a governor.
(e) The Commanding General, U.S. Continental Army Command (CG -USCONARC) is delegated responsibility for the conduct of Army support activities. Specifically he—
(1) Is, under the provisions of §§ 502.1 through 502.5, assigned responsibility for the conduct of military disaster relief in the 48 contiguous States and the District of Columbia.
(2) Will be prepared to conduct disaster relief operations as appropriate in Mexico or Canada upon direction of the Department of the Army.
(3) Will coordinate and insure establishment of joint control of the disaster relief efforts of all DOD components. In local disasters not warranting a declaration of a major disaster, local civil authorities can be expected to make appeals for assistance direct to installations or activities other than those operated by the Department of the Army.
(4) Will report to the Deputy Chief of Staff for Military Operations by the fastest electrical means when resources of DOD components are committed to disaster relief or when disaster conditions prevail that make commitment of DOD resources imminent.
(5) Will, as appropriate, furnish available personnel and resources to District and Division Engineers of the Corps of Engineers prosecuting a flood fight under provisions of Pub. L. 99, or acting in response to a disaster relief directive from OEP under provisions of Pub. L. 875.
(6) Will establish and maintain liaison with the Directors of OEP and OCD, the American National Red Cross, and such other Federal, State, and local governmental agencies as are necessary to discharge responsibilities under §§ 502.1 through 502.5.
(7) Has full authority to approve or disapprove personal requests for military assistance made by a State governor or a member of Congress. This authority will not be delegated lower than ZI army commanders. Information on such requests and action taken will be furnished to Deputy Chief of Staff for Military Operations, Department of the Army, Washington, DC, 20310.
(8) Will insure that ZI army commanders have an effective natural disaster information plan for use in the event of military operations. The plan should provide for early dispatch of information personnel to the scene.
(f) ZI army commanders are specifically charged, under the overall direction of CG USCONARC, with supporting disaster relief operations, and they—
(1) Will establish and maintain, as appropriate, liaison with Regional Directors, OEP and OCD, area offices of the American National Red Cross and other Federal, State, and local governmental agencies.
(2) Will establish and maintain, as necessary, working relationships with appropriate DOD component headquarters, class II installations and Division/District Engineers to insure coordination of the overall military disaster relief effort within the Army area and will secure necessary information from such installations as required for reports.
(3) Will assume control of resources made available by class II installations and activities for disaster assistance. If class II installation or activity resources are required but have not been made available by the activity commander, the ZI army commander will forward a request with justification through command channels to the Deputy Chief of Staff for Military Operations, Department of the Army. In those cases where commanders are unable to communicate with Headquarters, Department of the Army, and where in the opinion of the ZI army commander concerned, the extreme emergency warrants the temporary use of such resources, he will direct their use and report this action through command channels to the Deputy Chief of Staff for Military Operations.
(4) Will, upon request, make resources available to District and Division Engineers performing a flood fight under provisions of Pub. L. 99 and/or support the Corps of Engineers response to directive from OEP under provisions of Pub. L. 875.
(5) Will coordinate the military relief effort with assistance provided by the Corps of Engineers under statutory authorities of the Chief of Engineers or as directed by the OEP under Pub. L. 875.
(g) Class II installation and activity commanders are responsible for supporting disaster relief efforts under the provisions of §§ 502.1 through 502.5, and they—
(1) Will take action in local disasters of imminent seriousness as appropriate. Such action will be reported concurrently to his headquarters and to the respective ZI army commander.
(2) Will, upon the request of the ZI army commander, designate those resources under their control which can be made immediately available for disaster relief operations. Only such resources will be placed under the operational control of the ZI army commander or Division/District Engineer conducting relief operations.
(h) The Chief of Engineers is responsible for the provision of disaster assistance by applicable Division and District Engineers when required by disaster of imminent seriousness and as authorized by statutory authorities or as directed by the OEP under Pub. L. 875. He will—
(1) Insure that Division and District Engineers establish and maintain appropriate liaison with ZI army commanders, regional Directors of OCD and OEP, the American National Red Cross, and other Federal, State and local governmental agencies as necessary to discharge assigned responsibilities.
(2) Furnish the ZI army commanders concerned all pertinent information on floods or other natural disas- ters including activities undertaken by the Corps of Engineers. Information furnished will be by the fastest electrical means and consistent with reporting requirements placed on ZI army commanders.
(3) Insure that Engineers preplanned procedures for disaster operations are
(a)
(b)
(1) The agency is registered with and recommended by the Committee to the Department of the Army;
(2) The supplies are within the general program and projects of the agency as previously submitted to and approved by the Committee, and are essential in support of such programs and proj-ects;
(3) The agency's representatives to whom the supplies are consigned for distribution abroad are acceptable to the Committee;
(4) The Committee has notified the Department of the Army that:
(i) The agency is not engaged in commercial or political activities;
(ii) Contributions to the agency are eligible for tax exemption under income tax laws;
(iii) The agency is directed by an active and responsible board of American citizens who serve without compensation;
(iv) The accounts of the agency are regularly audited by a certified public accountant;
(v) The agency currently reports its activities and operations to the Committee including its budget and reports of income and expenditures, its transfer of funds, and its exports of commodities and such other information as the Committee may deem necessary, and such reports are open for public inspection;
(vi) The general program and projects by countries of operation of the agency have been approved by the Committee to permit the coordination of private agency programs with each other and with the programs of the Department of the Army in the Ryukyu Islands;
(vii) The Government of the country in which the supplies are distributed affords appropriate facilities for the necessary and economic operation of the agency's general program and proj-ects;
(viii) The supplies are free of customs duties, other duties, tolls, and taxes;
(ix) The agency has assumed responsibility for noncommercial distribution of the supplies free of cost to the person or persons ultimately receiving them and distribution of the supplies is supervised by United States citizens, and such operations are appropriately identified as to their American character.
(c)
(2) The voluntary non-profit relief agencies which qualify under this section may apply to the Office of the Chief of Civil Affairs, Department of the Army, Washington, DC 20310, for authorization to make shipments via Military Sea Transportation Service vessels, in conformity with this section. Upon approval of the request, the Chief of Civil Affairs will issue a Department of Army Approved Part Program authorizing shipment from a designated Port of Embarkation to end of ship's tackle at port of discharge, and including fund citation for reimbursement of Chief of Transportation. All costs of inland transportation are to be borne by the voluntary agencies.
(d)
(e)
Persons not subject to military law may be apprehended or restrained by members of the Department of the Army, other than in foreign countries, as follows:
(a)
(b)
(c)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
12 U.S.C. 3401
(a)
(b)
(2) The provisions of 12 U.S.C. 3401 et seq. do not govern obtaining access to financial records maintained by financial institutions located outside of the states or territories of the United States, Puerto Rico, the District of Columbia, Guam, American Samoa, or the Virgin Islands. The procedures outlined in § 504.2(d)(4) will be followed in seeking access to financial information from these facilities.
(3) This regulation applies only to financial records maintained by financial institutions as defined in § 504.1(c)(1).
(c)
(1)
(i) Bank.
(ii) Savings bank.
(iii) Credit card issuer as defined in section 103 of the Consumers Credit Protection Act (15 U.S.C. 1602(n)).
(iv) Industrial loan company.
(v) Trust company.
(vi) Savings and loan association.
(vii) Building and loan association.
(viii) Homestead association (including cooperative banks).
(ix) Credit union.
(x) Consumer finance institution.
(xi) Military banking contractors located outside the States or territories of the United States or the District of Columbia, Puerto Rico, Guam, American Samoa, or the Virgin Islands.
(2)
(3)
(4)
(i) Who used or is using any service of a financial institution.
(ii) For whom a financial institution is acting or has acted as a fiduciary for an account maintained in the name of that person.
(5)
(6)
(7)
(i) Arise after adjudicative action, and
(ii) Require resolution to determine a person's current eligibility for access to classified information or assignment or retention in a sensitive position. Within DA, personnel security investigations are conducted by the Defense Investigative Service.
(d)
(2)
(i) Customer has authorized such disclosure (§ 504.2(b));
(ii) Financial records are disclosed in response to a search warrant which meets the requirements of § 504.2(d);
(iii) Financial records are disclosed in response to a judicial subpoena which meets the requirements of § 504.2(e); or
(iv) Financial records are disclosed in response to a formal written request which meets the requirements of § 504.2(f).
(3)
(e)
(2) The head of a law enforcement office, of field grade rank or higher (or an equivalent grade civilian official), is authorized to initiate requests for such records.
(f)
(i) Name.
(ii) Address.
(iii) Account number.
(iv) Type of account of any customer or ascertainable group of customers associated with a financial transaction or class of financial transactions.
(2) A request for disclosure of the above specified basic identifying data on a customer's account may be issued without complying with the customer notice, challenge, or transfer procedures described in § 504.2. However, if access to the financial records themselves is required, the procedures in § 504.2 must be followed. (A sample format for requesting basic identifying account data is in app. A.)
(3) No exceptions or waivers will be granted for those portions of this regulation required by law. Submit requests for exceptions or waivers of other aspects of this regulation to HQDA(DAPE-HRE), WASH, DC 20310.
(a)
(b)
(i) Be in writing, signed, and dated.
(ii) Identify the particular financial records being disclosed.
(iii) State that the customer may revoke the consent at any time before disclosure.
(iv) Specify the purpose of disclosure and to which agency the records may be disclosed.
(v) Authorize the disclosure for a period not over 3 months.
(vi) Contain a “Statement of Customer Rights Under the Right to Financial Privacy Act of 1978” (app. B).
(2) Any customer's consent not containing all of the elements listed in
(3) A copy of the customer's consent will be made a part of the law enforcement inquiry file.
(4) A certification of compliance with 12 U.S.C. 3401
(5) The annual reporting requirements of § 504.2(m) apply to requests made to a financial institution even with the customer's consent.
(c)
(d)
(2) No later than 90 days after the search warrant is served, unless a delay of notice is obtained under § 504.2(i), a copy of the search warrant and the following notice must be mailed to the customer's last known address:
Records or information concerning your transactions held by the financial institution named in the attached search warrant were obtained by this (office/agency/unit) on (date) for the following purpose: (state purpose). You may have rights under the Right to Financial Privacy Act of 1978.
(3) Search authorization signed by installation commanders or military judges will not be used to gain access to financial records from financial institutions in any State or territory of the United States.
(4) Access to financial records maintained by military banking contractors in oversea areas or by other financial institutions located on DOD installations outside the United States, Puerto Rico, the District of Columbia, Guam, American Samoa, or the Virgin Islands is preferably obtained by customer consent.
(i) In cases where it would not be appropriate to obtain this consent or such consent is refused and the financial institution is not otherwise willing to provide access to its records, the law enforcement activity may seek access by use of a search authorization. This authorization must be prepared and issued per AR 27-10, Legal Services.
(ii) Information obtained under this paragraph should be properly identified as financial information. It should be transferred only where an official need-to-know exists. Failure to do so, however, does not render the information inadmissable in courts-martial or other proceedings.
(iii) Law enforcement activities seeking access to financial records maintained by all other financial institutions overseas will comply with local foreign statutes or procedures governing such access.
(e)
(1) Are those subpoenas issued in connection with a pending judicial proceeding.
(2) Include subpoenas issued under paragraph 115 of the Manual for Courts-Martial and Article 46 of the Uniform Code of Military Justice. The servicing staff judge advocate will be consulted on the availability and use of judicial subpoenas. The notice and challenge provisions of 12 U.S.C. 3407 and 3410 will be followed.
(f)
(i) The customer has declined to consent to the disclosure of his or her rec-ords, or
(ii) Seeking consent from the customer would compromise or harmfully delay a legitimate law enforcement inquiry.
(2) A formal written request will be in a format set forth in appendix D and will—
(i) State that the request is issued under the Right to Financial Privacy Act of 1978 and this regulation.
(ii) Described the specific records to be examined.
(iii) State that access is sought in connection with a legitimate law enforcement inquiry.
(iv) Describe the nature of the inquiry.
(v) Be signed by the head of the law enforcement office or a designee (persons specified in § 504.1(e)(2)).
(3) At the same time or before a formal written request is issued to a financial institution, a copy of the request will be personally served upon or mailed to the customer's last known address unless a delay of customer notice has been obtained under § 504.2(i). The notice to the customer will be—
(i) In a format similar to appendix E.
(ii) Personally served at least 14 days or mailed at least 18 days before the date on which access is sought.
(4) The official who signs the customer notice is designated to receive any challenge from the customer.
(5) The customer will have 14 days to challenge a notice request when personal service is made, and 18 days when service is by mail.
(6) The head of the law enforcement office initiating the formal written request will set up procedures to insure that no access to financial records is attempted before expiration of the above time periods—
(i) While awaiting receipt of a potential customer challenge, or
(ii) While awaiting the filing of an application for an injunction by the customer.
(7) Proper preparation of the formal written request and notice to the customer requires preparation of motion papers and a statement suitable for court filing by the customer. Accordingly, the law enforcement office intending to initiate a formal written request will coordinate preparation of the request, the notice, motion papers, and sworn statement with the supporting staff judge advocate. These documents are required by statute; their preparation cannot be waived.
(8) The supporting staff judge advocate is responsible for liaison with the proper United States Attorney and United States District Court. The requesting official will coordinate with the supporting staff judge advocate to determine whether the customer has filed a motion to prevent disclosure of the financial records within the prescribed time limits.
(9) The head of the law enforcement office (§ 504.2(f)(2)) will certify in writing (see app. C) to the financial institution that such office has complied with the requirements of 12 U.S.C. 3401
(i) When a customer fails to file a challenge to access to financial records within the above time periods, or
(ii) When a challenge is adjudicated in favor of the law enforcement office.
(g)
(i) Physical injury to a person,
(ii) Serious property damage, or
(iii) Flight to avoid prosecution.
(2) When emergency access is made to financial records, the requesting official (§ 504.1(e)(2)) will—
(i) Certify in writing (in a format similar to that in app. C) to the financial institution that the provisions of 12 U.S.C. 3401
(ii) File with the proper court a signed, sworn statement setting forth the grounds for the emergency access within 5 days of obtaining access to financial records.
(3) After filing of the signed, sworn statement, the official who has obtained access to financial records under this paragraph will—
(i) Personally serve or mail to the customer a copy of the request to the financial institution and the following notice, unless a delay of notice has been obtained under § 504.2(i):
Records concerning your transactions held by the financial institution named in the attached request were obtained by (office/agency/unit) under the Right to Financial Privacy Act of 1978 on (date) for the following purpose: (state with reasonable detail the nature of the law enforcement inquiry). Emergency access to such records was obtained on the grounds that (state grounds).
(ii) Insure that mailings under this section will be by certified or registered mail to the last known address of the customer.
(4) The annual reporting requirements of § 504.2(m) apply to any request for access under this section.
(h)
This record was obtained pursuant to the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq., and may not be transferred to another Federal agency or department outside DOD without prior compliance with the transferring requirements of 12 U.S.C. 3412.
(2)
(ii) Unless a delay of customer notice has been obtained (§ 504.2(i)), the transferring law enforcement office will, within 14 days, personally serve or mail the following to the customer at his or her last known address—
(A) A copy of the certification made according to § 504.2(h)(2)(i) and
(B) The following notice, which will state the nature of the law enforcement inquiry with reasonable detail:
Copies of, or information contained in, your financial records lawfully in possession of the Department of the Army have been furnished to (state the receiving agency or department) pursuant to the Right to Financial Privacy Act of 1978 for (state the purpose). If you believe that this transfer has not been made to further a legitimate law enforcement inquiry, you may have legal rights under the Financial Privacy Act of 1978 or the Privacy Act of 1974.
(iii) If a request for release of information is from a Federal agency authorized to conduct foreign intelligence or foreign counterintelligence activities (Executive Order 12036) and is for puposes of conducting such activities by these agencies, the information will be released without notifying the customer, unless permission to provide notification is given in writing by the requesting agency.
(iv) Financial information obtained before the effective date of the Financial Privacy Act of 1978 (10 March 1978) may continue to be provided to other agencies according to existing procedures, to include applicable Privacy Act System Notices published in AR 340-21 series.
(3)
(i) The report or correspondence is not is not distributed outside of DOD except in compliance with paragraph (h)(2)(ii)(B) of this section.
(ii) The report or other correspondence contains the following warning restriction on the first page or cover:
Some of the information contained herein (cite specific paragraphs) is financial record information which was obtained pursuant to the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq. This information may not be released to another Federal agency or department outside the DOD without compliance with the specific requirements of 12 U.S.C. 3412 and AR 190-6.
(i)
(2)
(i) Endangering the life or physical safety of any person.
(ii) Flight from prosecution.
(iii) Destruction of or tampering with evidence.
(iv) Intimidation of potential witnesses.
(v) Otherwise seriously jeopardizing an investigation or official proceeding or unduly delaying a trial or ongoing official proceeding to the same degree as the circumstances in § 504.2(i)(2)(ii) through (iv).
(3)
(4)
(i) Section 504.2(d)(1), the law enforcement office obtaining financial records will mail to the customer a copy of the search warrant and the following notice.
Records or information concerning your transactions held by the financial institution named in the attached search warrant were obtained by this (agency or office) on (date). Notification was delayed beyond the statutory 90-day delay period pursuant to a determination by the court that such notice would seriously jeopardize an investigation concerning (state with reasonable detail). You may have rights under the Right to Financial Privacy Act of 1978.
(ii) Section 504.2(f)(3), the law enforcement office obtaining financial records will serve personally or mail to the customer a copy of the process or request and the following notice:
Records or information concerning your transactions which are held by the financial institution named in the attached process or request were supplied to or requested by the government authority named in the process or request on (date). Notification was withheld pursuant to a determination by the (title of the court so ordering) under the Right to Financial Privacy Act of 1978 that such notice might (state reason). The purpose of the investigation or official proceeding was (state purpose with reasonable detail).
(iii) Section 504.2(g)(3), the law enforcement office obtaining financial records will serve personally or mail to the customer a copy of the request and the notice required by § 504.2(g)(3).
(iv) Section 504.2(h)(2), the law enforcement office transferring financial records will serve personally or mail to the customer the notice required by § 504.2(f)(3). If the law enforcement office was responsible for obtaining the court order authoriziang the delay, such office shall also serve personally or by mail to the customer the notice required in § 504.2(f)(3).
(5)
(j)
(2) However, to comply with the Financial Privacy Act of 1978, the following guidance will be followed for such requests. When a request for financial records is made—
(i) A military intelligence group commander, the chief of an investigative control office, or the Commanding General (or Deputy CG), US Army Intelligence and Security Command, will certify to the financial institution that the requesting activity has complied with the provisions of 12 U.S.C. 3403(b).
(ii) The requesting official will notify the financial institution from which records are sought that 12 U.S.C. 3414(a)(3) prohibits disclosure to any person by the institution, its agents, or employees that financial rec-ords have been sought or obtained.
(3) The annual reporting requirements shown in § 504.2(m) apply to any request for access under this section.
(k)
(1) Customer consent (§ 504.2(b)).
(2) Search warrant (§ 504.2(d)).
(3) Judicial subpoena (§ 504.2(e)).
(4) Formal written request (§ 504.2(f)).
(5) Emergency access (§ 504.2(g)).
(6) Foreign intelligence and foreign counterintelligence activities (§ 504.2 -(j)).
(l)
(m)
(2) This report is to arrive at HQDA(DAPE-HRE), WASH, DC 20310, not later than 1 February following the calendar year reported.
(3) The annual report will contain the number of—
(i) Requests for access to financial institutions, specifying the types of access and any other information deemed relevant or useful.
(ii) Customer challenges to access and whether they were successful.
(iii) Transfers to agencies outside of the DOD of information obtained under this regulation.
(iv) Customer challenges to the transfer of information and whether they were successful.
(v) Applications for delay of notice, the number granted, and the names of the officials requesting such delays.
(vi) Delay of notice extensions sought and the number granted.
(vii) Refusals by financial institutions to grant access, by category of authorization, such as customer consent or formal written request.
(4) A consolidated Army report will be submitted by HQDA(DAPE-HRE) to the Defense Privacy Board, Office of the Deputy Assistant Secretary of Defense (Administration), by 15 February each year.
Dear Mr./Mrs. ______: In connection with a legitimate law enforcement inquiry and pursuant to section 3414(g) of the Right to Financial Privacy Act of 1978, section 3401 et seq., Title 12, United States Code, you are requested to provide the following account information: (name, address, account number, and type of account of any customer or ascertainable group of customers associated with a certain financial transaction or class of financial transactions as set forth in § 504.1(f)).
I hereby certify, pursuant to section 3403(b) of the Right to Financial Privacy Act of 1978, that the provisions of the Act have been complied with as to this request for account information.
Under section 3417(c) of the Act, good faith reliance upon this certification relieves your institution and its employees and agents of any possible liability to the subject in connection with the disclosure of the requested financial records.
Pursuant to section 3404(a) of the Right to Financial Privacy Act of 1978, I, (name of customer), having read the explanation of my rights on the reverse side, hereby authorize the (name and address of financial institution) to disclose these financial rec-ords: (list of particular financial records) to (Army law enforcement office) for the following purpose(s): (specify the purpose(s)).
I understand that this authorization may be revoked by me in writing at any time before my records, as described above, are disclosed, and that this authorization is valid for no more than 3 months from the date of my signature.
Federal law protects the privacy of your financial records. Before banks, savings and loan associations, credit unions, credit card issuers, or other financial institutions may give financial information about you to a Federal agency, certain procedures must be followed.
You may be asked to consent to the financial institution making your financial rec-ords available to the Government. You may withhold your consent, and your consent is not required as a condition of doing business with any financial institution. If you give your consent, it can be revoked in writing at any time before your records are disclosed. Futhermore, any consent you give is effective for only 3 months and your financial institution must keep a record of the instances in which it discloses your financial information.
Without your consent, a Federal agency that wants to see your financial records may do so ordinarily only by means of a lawful subpoena, summons, formal written request, or search warrant for that purpose. Generally, the Federal agency must give you advance notice of its request for your records explaining why the information is being sought and telling you how to object in court. The Federal agency must also send you copies of court documents to be prepared by you with instructions for filling them out. While these procedures will be kept as simple as possible, you may want to consult an attorney before making a challenge to a Federal agency's request.
In some circumstances, a Federal agency may obtain financial information about you without advance notice or your consent. In most of these cases, the Federal agency will be required to go to court for permission to obtain your records without giving you notice beforehand. In these instances, the court will make the Government show that its investigation and request for your records are proper. When the reason for the delay of notice no longer exists, you will usually be notified that your records were obtained.
Generally, a Federal agency that obtains your financial records is prohibited from transferring them to another Federal agency unless it certifies in writing the transfer is proper and sends a notice to you that your records have been sent to another agency.
If the Federal agency or financial institution violates the Right to Financial Privacy Act, you may sue for damages or seek compliance with the law. If you win, you may be repaid your attorney's fee and costs.
If you have any questions about your rights under this law, or about how to consent to release your financial records, please call the official whose name and telephone number appears below:
Dear Mr./Mrs. ______: I certify, pursuant to section 3403(b) of the Right to Financial Privacy Act of 1978, section 3401 et seq., Title 12, United States Code, that the applicable provisions of that statute have been complied with as to the (customer's consent, search warrant or judicial subpoena, formal written request, emergency access, as applicable) presented on (date), for the following financial records of (customer's name):
Pursuant to section 3417(c) of the Right to Financial Privacy Act of 1978, good faith reliance upon this certificate relieves your institution and its employees and agents of any possible liability to the customer in connection with the disclosure of these financial records.
Dear Mr./Mrs. ______: In connection with a legitimate law enforcement inquiry and pursuant to section 3402(5) and section 3408 of the Right to Financial Privacy Act of 1978, section 3401 et seq., Title 12, United States Code, and Army Regulation 190-6, you
The Army has no authority to issue an administrative summons or subpoena for access to these financial records which are required for (describe the nature or purpose of the inquiry).
A copy of this request was (personally served upon or mailed to) the subject on (date) who has (10 or 14) days in which to challenge this request by filing an application in an appropriate United States district court if the subject desires to do so.
Upon expiration of the above mentioned time period and in the absence of any filing or challenge by the subject, you will be furnished a certification certifying in writing that the applicable provisions of the Act have been complied with prior to obtaining the requested records. Upon your receipt of a Certificate of Compliance with the Right to Financial Privacy Act of 1978, you will be relieved of any possible liability to the subject in connection with the disclosure of the requested financial records.
Dear Mr./Ms. ______: Information or records concerning your transactions held by the financial institution named in the attached request are being sought by the (agency/department) in accordance with the Right to Financial Privacy Act of 1978, section 3401 et seq., Title 12, United States Code, and Army Regulation 190-6, for the following purpose(s):
If you desire that such records or information not be made available, you must do the following:
a. Fill out the accompanying motion paper and sworn statement or write one of your own—
(1) Stating that you are the customer whose records are being requested by the Government.
(2) Giving the reasons you believe that the records are not relevant or any other legal basis for objecting to the release of the records.
b. File the motion and statement by mailing or delivering them to the clerk of any one of the following United States District Courts:
c. Mail or deliver a copy of your motion and statement to the requesting authority: (give title and address).
d. Be prepared to come to court and pre-sent your position in further detail.
You do not need to have a lawyer, although you may wish to employ one to represent you and protect your rights.
If you do not follow the above procedures, upon the expiration of (10 days from the date of personal service) (14 days from the date of mailing) of this notice, the records or information requested therein may be made available.
These records may be transferred to other Government authorities for legitimate law enforcement inquiries, in which event you will be notified after the transfer if such transfer is made.
Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
(a)
(b)
(ii) AR 340-17, Release of Information and Records from Army Files. (Cited in §§ 505.2(h) and 505.4(d))
(iii) AR 430-21-8, The Army Privacy Program; System Notices and Exemption Rules for Civilian Personnel Functions. (Cited in § 505.2(i))
(iv) AR 380-380, Automated System Security. (Cited in § 505.4(d) and (f))
(2)
(i) DOD Directive 5400.11, DOD Privacy Program.
(ii) DOD Regulation 5400.11-R, DOD Privacy Program.
(iii) Treasury Fiscal Requirements Manual. This publication can be obtained from The Treasury Department, 15th and Pennsylvania Ave., NW, Washington, DC 20220
(c)
(d)
(2) The Commander, U.S. Army Information Systems Command is responsible for developing policy for and executing the Privacy Act Program under the policy and guidance of the DISC4.
(3) Heads of Joint Service agencies or commands for which the Army is the Executive Agent, or otherwise has responsibility for providing fiscal, logistical, or administrative support, will adhere to the policies and procedures in this regulation.
(4) Commander, Army and Air Force Exchange Service (AAFES), is responsible for the supervision and execution of the privacy program within that command pursuant to this regulation.
(e)
(1) Protect, as required by the Privacy Act of 1974 (5 U.S.C. 552a), as amended, the privacy of individuals from unwarranted intrusion. Individuals covered by this protection are living citizens of the United States and aliens lawfully admitted for permanent residence.
(2) Collect only the personal information about an individual that is legally authorized and necessary to support Army operations. Disclose this information only as authorized by the Privacy Act and this regulation.
(3) Keep only personal information that is timely, accurate, complete, and relevant to the purpose for which it was collected.
(4) Safeguard personal information to prevent unauthorized use, access, disclosure, alteration, or destruction.
(5) Let individuals know what records the Army keeps on them and let them review or get copies of these records, subject to exemptions authorized by law and approved by the Secretary of the Army. (See § 505.5.)
(6) Permit individuals to amend records about themselves contained in Army systems of records, which they can prove are factually in error, not up-to-date, not complete, or not relevant.
(7) Allow individuals to ask for an administrative review or decisions that deny them access to or the right to amend their records.
(8) Maintain only information about an individual that is relevant and necessary for Army purposes required to be accomplished by statute or Executive Order.
(9) Act on all requests promptly, accurately, and fairly.
(f)
(1) Overall Government-wide responsibilities for implementation to the Office of Management and Budget.
(2) Specific responsibilities to the Office of Personnel Management and the General Services Administration.
(g)
(1) The Administrative Assistant to the Secretary of the Army (AASA) for records of the Secretariat and its serviced activities, to include the personnel records maintained by the General Officer Management Office, personnel records pertaining to Senior Executive Service personnel serviced by the Office of the Secretary of the Army (OSA), and Equal Employment Opportunity (EEO) records from offices serviced by the OSA. The AASA will also serve as AARA for those records requiring the personal attention of the Secretary of the Army.
(2) The Inspector General (TIG) for TIG investigative records.
(3) The president or executive secretary of boards, councils, and similar bodies established by the Department of the Army to consider personnel matters, including the Army Board of Correction of Military Appeals, for records under their purview.
(4) The Deputy Chief of Staff for Personnel (DCSPER) for records of active and former non-appropriated fund employees (except those in the Army and Air Force Exchange Service), alcohol and drug abuse treatment records, behavioral science records, recruiting, Armed Services Vocational Aptitude Battery (ASVAB), equal opportunity, Junior Reserve Officers’ Training Corps (ROTC), Senior ROTC Instructor, military academy cadet, selection, promotion, and reduction boards; special review boards; professional staff informational records; and entrance processing records (when records pertain to those not entering active duty).
(5) The Deputy Chief of Staff for Operations and Plans (DCSOPS) for military police records and reports and prisoner confinement and correctional records.
(6) Chief of Engineers (COE) for records pertaining to civil work (including litigation), military construction, engineer procurement, other engineering matters not under the purview of another AARA, ecology, and contractor qualifications.
(7) The Surgeon General (TSG) for medical records, except properly part of the Official Personnel Folder (OPM/GOVT-1 system of records).
(8) Chief of Chaplains (CCH) for ecclesiastical records.
(9) The Judge Advocate General (TJAG) for legal records under TJAG responsibility.
(10) Chief, National Guard Bureau (NGB) for personnel records of the Army National Guard.
(11) Chief, Army Reserve (CAR) for personnel records of Army retired, separated and reserve military personnel members.
(12) Commander, United States Army Material Command (USAMC) for records of Army contractor personnel of the Army Material Command.
(13) Commander, United States Army Criminal Investigation Command (USACIDC) for criminal investigation reports and military police reports included therein.
(14) Commander, United States Total Army Personnel Command (PERSCOM) for personnel and personnel related records of Army members on active duty and current Federal appropriated fund civilian employees. (Requests from former civilian employees to amend a record in any OPM system of records such as the Official Personnel Folder should be sent to the Office of
(15) Commander, U.S. Army Community and Family Support Center (USACFSC) for records relating to morale, welfare and recreation activities; community life programs; family action programs, retired activities, club management, Army emergency relief, consumer protection, retiree survival benefits, and records dealing with Department of the Army relationships and social security veteran's affairs, United Service Organizations, U.S. Soldiers’ and Airmen's home and American Red Cross.
(16) Commander, U.S. Army Intelligence and Security Command (INSCOM) for intelligence, investigative and security records; foreign scientific and technological information; intelligence training, mapping and geodesy information; ground surveillance records; intelligence threat assessments; and missile intelligence data relating to tactical land warfare systems.
(17) Commander, Army and Air Force Exchange Service (AAFES) for records pertaining to employees, patrons, and other matters which are the responsibility of the Exchange Service.
(18) Commander, Military Traffic Management Command (MTMC) for transportation records.
(19) Director of Army Safety for safety records.
(20) Commander, U.S. Army Information Systems Command (USAISC) for records which do not fall within the functional area of another AARA.
(h)
(i)
(2) The privacy official will ensure that (i) requests are processed promptly and responsively, (ii) records subject to the Privacy Act in his/her command/agency are described properly by a published system notice, (iii) privacy statements are included on forms and questionnaires that seek personnel information from an individual, and (iv) procedures are in place to meet reporting requirements.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(i) Was compiled in reasonable anticipation of a civil action or proceeding, or
(ii) Is properly exempted by the Secretary of the Army from the disclosure provisions of the Privacy Act (see § 505.5), there is a legitimate governmental purpose for invoking the exemption, and it is not required to be disclosed under the Freedom of Information Act.
(2) Requests for records recommended to be denied will be forwarded to the appropriate AARA within 5 work days of receipt, together with the request, disputed records, and justification for withholding. The requester will be notified of the referral.
(3) Within the 30 work day period (see § 505.2(b)), the AARA will give the following information to the requester in writing if the decision is to deny the request for access:
(i) Official's name, position title, and business address;
(ii) Date of the denial;
(iii) Reasons for the denial, including citation of appropriate section(s) of the Privacy Act and this regulation;
(iv) The opportunity for further review of the denial by the General Counsel, Office, Secretary of the Army, The Pentagon, Washington, DC 20310, through the AARA within 60 calendar days. (For denials made by the Army when the record is maintained in one of OPM's government-wide systems of records, notices for which are described at appendix B, AR 340-21-8, an individual's request for further review must be addressed to the Assistant Director for Agency Compliance and Evaluation, Office of Personnel Management, 1900 E Street NW., Washington, DC 20415-0001.)
(j)
(2) The amendment procedures are not intended to permit challenge to a record that records an event that actually occurred nor are they designed to permit collateral attack upon that which has been the subject of a judicial or quasi-judicial action. Consideration of request for an amendment would be appropriate if it can be shown that circumstances leading up to the event that is recorded on the document were challenged through administrative procedures and found to be inaccurately described, that the document is not identical to the individual's copy, or that the document was not constructed in accordance with the applicable recordkeeping requirements prescribed. For example, the amendment provisions do not allow an individual to challenge the merits of an adverse action. However, if the form that documents the adverse action contains an error on the fact of the record (e.g., the individual's name is misspelled, an improper date of birth or SSN was recorded), the amendment procedures may be used to request correction of the record.
(3) US Army Criminal Investigations Command reports of investigation (records in system notices AO501.08e Informant Register, AO508.11b Criminal Information Reports and Cross Index Card Files, and AO508.25a Index to Criminal Investigative Case Files) have been exempted from the amendment provisions of the Privacy Act. Requests to amend these reports will be considered under AR 195-2 by the Commander, US Army Criminal Investigations Command, action by the Commander, US Army Criminal Investigation Commander will constitute final action on behalf of the Secretary of the Army under that regulation.
(4) Records accessioned into the National Archives are exempted from the Privacy Act provision allowing individuals to request amendment of records. Most provisions of the Privacy Act apply only to those systems of records which are under the legal control of the originating agency; e.g., an agency's current operating files or records stored at a Federal records center.
(k)
(2) The custodian or system manager will acknowledge the request within 10 work days and make final response within 30 work days.
(3) The record for which amendment is sought must be reviewed by the proper system manager or custodian for accuracy, relevance, timeliness, and completeness so as to assure fairness to the individual in any determination made about that individual on the basis of that record.
(4) If the amendment is proper, the custodian or system manager will physically amend the record by adding or deleting information, or destroying the record or a portion of it, and notify the requester of such action.
(5) If the amendment is not justified, the request and all relevant documents, including the reasons for not amending, will be forwarded to the appropriate AARA within 5 work days and the requester so notified.
(6) The AARA, on the basis of the evidence, either will amend the record and notify the requester and the custodian of that decision, or will deny the request and inform the requester:
(i) Of reasons for not amending; and
(ii) Of his/her right to seek further review by the DA Privacy Review Board (through the AARA).
(7) On receipt of an appeal from a denial to amend, the AARA will append any additional records or background information that substantiates the refusal or renders the case complete and, within 5 work days of receipt, forward the appeal to the DA Privacy Review Board.
(8) The DA Privacy Review Board, on behalf of the Secretary of the Army,
(i) If the Board determines that amendment is justified, it will amend the record and notify the requester, the AARA, the custodian of the record, and any prior recipients of the record.
(ii) If the Board denies the request, it will obtain the General Counsel's concurrence. Response to the appellant will include reasons for denial and the appellant's right to file a statement of disagreement with the Board's action and to seek judicial review of the Army's refusal to amend.
(9) Statements of disagreement will be an integral part of the record to which it pertains so the fact that the record is disputed is apparent to anyone who may have access to, use of, or need to disclose from it. The disclosing authority may include a brief summary of the Board's reasons for not amending the disputed record. The summary will be limited to the reasons stated to the individual by the Board.
(l)
(a)
(1) To those officers and employees of the Department of Defense who have a need for the record in the performance of their duties;
(2) Required under the Freedom of Information Act (see § 505.3(c) for information normally releasable);
(3) Permitted by a routine use that has been published in the
(4) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to title 13 of the United States Code;
(5) To a recipient who has provided the Army with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;
(6) To the National Archives of the United States as a record that has sufficient historical or other value to warrant its continued preservation by the U.S. Government, or for determination of such value by the Administrator of the General Services Administration (GSA), or designee. (Records sent to Federal Records Centers for storage remain under Army control; these transfers are not disclosures and do not therefore need an accounting.)
(7) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the Army element which maintains the record. The request must specify the particular portion desired and the law enforcement activity for which the record is sought;
(8) To a person pursuant to a showing of compelling circumstances affecting the health and safety of an individual. Upon such disclosure, notification will be transmitted to the last known address of such individual;
(9) To either House of Congress, or to a committee or subcommittee to the extent that the subject matter falls within the jurisdiction of the committee or subcommittee;
(10) To the Comptroller General, or any authorized representative in the
(11) Pursuant to the order signed by a judge of a court of competent jurisidiction. (Reasonable efforts must be made to notify the individual if the legal process is a matter of public record); or
(12) To a consumer reporting agency in accordance with section 3(d) of the Federal Claims Collection Act of 1966 (originally codified at 31 U.S.C. 952(d); recodified at 31 U.S.C. 3711(f), the name, address, SSN, other information identifying the individual; amount, status, and history of the claim, and the agency or program under which the case arose may be disclosed in this instance.
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(i) The agency, or any component there of, or
(ii) Any employee of the agency in his or her official capacity, or
(iii) Any employee of the agency in his or her individual capacity where the Department of Justice has agreed to represent the employee, or
(iv) The United States, where the agency determines that litigation is likely to affect the agency or any of its components, is a party to litigation or has an interest in such litigation, and the use of such records by the Department of Justice is deemed by the agency to be relevant and necessary to the litigation, provided, however, that in each case, the agency determines that disclosure of the records to the Department of Justice is a use of the information contained in the records that is compatible with the purpose for which it is collected.
(11)
(i) The agency, or any component there of, or
(ii) Any employee of the agency in his or her official capacity, or
(iii) Any employee of the agency in his or her official capacity where the Department of Justice has agreed to represent the employee, or
(iv) The United States, where the agency determines that litigation is likely to affect the agency or any of its components, is a party to litigation or has an interest in such litigation, and the agency determines that their use of such records is relevant and necessary to the litigation, provided; however, that in each case, the agency determines that disclosure of the records to the court or adjudicative body is a use of the information contained in the records that is compatible with the purpose for which it is collected.
(c)
(1) On military personnel: Name, rank, date of rank, gross salary, present and past duty assignments, future assignments that are officially established, office or duty telephone number, source of commission, promotion sequence number, awards and decorations, military and civilian educational level, duty status at any given time.
(2) On civilian employees: Name, present and past position titles, grades, salaries, duty stations that include office or duty telephone numbers. However, disclosure of this information will not be made where the information requested is a list of present or past position titles, grades, salaries, and/or duty stations and, as such, is:
(i) Selected to constitute a clearly unwarranted invasion of personal privacy. For example, the nature of the request calls for a response that would reveal more about the employee than the five enumerated items;
(ii) Would be protected from mandatory disclosure under an exemption of the Freedom of Information Act.
(iii) In addition to the information in § 505.3(c)(2) above, the following information may be made available to a prospective employer of a current or former Army employee: Tenure of employment, civil service status, length of service in the Army and the Government and, date and reason for separation shown on the Notification of Personnel Action, SF 50.
(d)
(i) Is disclosed to officials within the Department of Defense who have a need for it in the performance of official business;
(ii) Is required to be disclosed under the Freedom of Information Act.
(2) Since the characteristics of records maintained within the Army vary widely, no uniform method for keeping the disclosure of accounting is prescribed. For most paper records, the accounting may be affixed to the record being disclosed. It must be a written record and consist of:
(i) Description of the record disclosed;
(ii) Name, position title, and address of the person to whom disclosure was made;
(iii) Date, method, and purpose of the disclosure; and
(iv) Name and position title of the person making the disclosure.
(3) Purpose of the accounting of disclosure is to enable an individual:
(i) To ascertain those persons/agencies that have received information about the individual, and
(ii) To provide a basis for informing recipients of subsequent amendments or statements of dispute concerning the record.
(4) When an individual requests such an accounting, the system manager or designee shall respond within 10 work days and inform the individual of the items in § 505.3(d)(2) above.
(5) The only basis for not furnishing the data subject an accounting of disclosures are if disclosure was made for law enforcement purposes under 5 U.S.C. 552a(b)(7), or the disclosure was from a system of records for which an exemption from 5 U.S.C. 552a(c)(3) has been claimed (see appendix C to this part).
(a)
(2) Uncirculated personal notes, papers and records which are retained at the author's discretion and over which the Army exercises no control or dominion are not considered Army records within the meaning of the Privacy Act. Individuals who maintain such notes must restrict their use of memory aids. Disclosure from personal notes, either intentional or through carelessness, remove the information from the category of memory aids and the notes then become subject to the provisions of the Act.
(3) Only personal information as is relevant and necessary to accomplish a purpose or mission of the Army, required by Federal statue or Executive Order of the President, will be maintained in Army systems of records. Statutory authority, or regulatory authority to establish and maintain a system of records does not convey unlimited authority to collect and maintain all information which may be useful or convenient. The authority is limited to relevant and necessary information.
(4) Except for statistical records, most records could be used to determine an individual's rights, benefits, or privileges. To ensure accuracy, personal information to be included in a system of records will be collected directly from the individual if possible. Collection of information from third parties should be limited to verifying information for security or employment suitability or obtaining performance data or opinion-type evaluations.
(b)
(1) Cite the specific statute or Executive Order, including a brief title or
(2) Cite the principal purpose(s) for which the information will be used; and
(3) Cite the probable routine uses for which the information may be used.
(c)
(d)
(2) At each location, and for each system of records, an official will be designated to safeguard the information in that system. Consideration must be given to sensitivity of the data, need for accuracy and reliability in operations, general security of the area, cost of safeguards, etc. See AR 380-380.
(3) Ordinarily, personal information must be afforded at least the protection required for information designated “For Official Use Only” (see Chapter IV, AR 340-17). Privacy Act data will be afforded reasonable safeguards to prevent inadvertent or unauthorized disclosure of record content during processing, storage, transmission, and disposal.
(4) No comparisons of Army records systems with systems of other Federal or commerical agencies (known as “matching” or “computer matching” programs) will be accomplished without prior approval of the Assistant Chief of Staff for Information Managment (DAIM-RMS-S), Alex, VA 22331-0301.
(e) First Amendment rights. No record describing how an individual exercises rights guaranteed by the First Amendment will be kept unless expressly authorized by Federal statue, by the individual about whom the record pertains, or unless pertinent to and within the scope of an authorized law enforcement activity. Exercise of these rights includes, but is not limited to, religious and political beliefs, freedom of speech and the press, and the right of assembly and to petition.
(f)
(i) Name and location(s) of the records;
(ii) Categories of individuals on whom records are maintained;
(iii) Categories of records in the sytem;
(iv) Authority (statutory or Executive Order) authorizing the system;
(v) Purpose(s) of the system;
(vi) Routine uses of the records, including the categories of users and the purposes of such uses;
(vii) Policies and practices for storing, retrieving, accessing, retaining, and disposing of the records;
(viii) Position title and business address of the responsible official;
(ix) Procedures an individual must follow to learn if a system of records contains a record about the individual;
(x) Procedures an individual must follow to gain access to a record about that individual in a system of records, to contest contents, and to appeal initial determinations;
(xi) Categories of sources of records in the system;
(xii) Exemptions from the Privacy Act claimed for the system. (See example notice at appendix A to this part.)
(2) New, or altered, systems which meet the requirements below, require a report to the Congress and the Office of Management and Budget. A new system is one for which no system notice is published in the
(i) Increases or changes the number or types of individuals on whom records are kept so that it significantly alters the character and purpose of the system of records.
(ii) Expands the types of categories of information maintained.
(iii) Alters the manner in which records are organized, indexed, or retrieved so as to change the nature or scope of those records.
(iv) Alters the purposes for which the information is used, or adds a routine use that is not compatible with the purpose for which the system is maintained.
(v) Changes the equipment configuration on which the system is operated so as to create potential for either greater or easier access.
(3) Report of a new or altered system must be sent to HQDA (DAIM-RMS-S) at least 120 days before the system or changes become operational, and include a narrative statement and supporting documentation.
(i) The narrative statement must contain the following items:
(A) System identification and name:
(B) Responsible official;
(C) Purpose(s) of the system, or nature of changes proposed (if an altered system);
(D) Authority for the system;
(E) Number (or estimate) of individuals on whom records will be kept;
(F) Information of First Amendment activities;
(G) Measure to assure information accuracy;
(H) Other measures to assure system security; (Automated systems require risk assessment under AR 380-380.)
(I) Relations to State/local government activities. (See example at appendix B to this part.)
(4) Supporting documentation consists of system notice for the proposed new or altered system, and proposed exemption rule, if applicable.
(g)
(i) Information describing the exercise of individuals’ rights of access to and amendment of records.
(ii) Changes in, or additions to, systems of records.
(2) Specific reporting requirements will be disseminated each year by The Assistant Chief of Staff for Information Management (DAIM-RMS-S) in a letter to reporting elements.
(h)
(i)
(1) Civil remedies: An individual may file a civil suit against the Army if Army personnel fail to comply with the Privacy Act.
(2) Criminal penalties: A member or employee of the Army may be guilty of a misdemeanor and fined not more than $5,000 for willfully:
(i) Maintaining a system of records without first meeting the public notice requirements of publishing in the
(ii) Disclosing individually identifiable personal information to one not entitled to have it;
(iii) Asking for or getting another's record under false pretense.
(a)
(b)
(1) Information compiled to identify individual criminals and alleged criminals, which consists only of identifying data and arrest records; type and disposition of charges; sentencing, confinement, and release records; and parole and probation status;
(2) Information compiled for the purpose of criminal investigation including efforts to prevent, reduce, or control crime and reports of informants and investigators associated with an identifiable individual; or
(3) Reports identifiable to an individual, compile at any stage of the process of enforcement of the criminal laws, from arrest or indictment through release from supervision.
(c)
(1) Classified information in every Army system of records. This exemption is not limited to the systems listed in Sec. 505.5(d). Before denying as individual access to classified information, the Access and Amendment Refusal Authority must make sure that it was properly classified under the standards of Executive Orders 11652, 12065, or 12958 and that it must remain so in the interest of national defense of foreign policy.
(2) Investigatory data for law enforcement purposes (other than that claimed under the general exemption). However, if this information has been used to deny someone a right, privilege or benefit to which the individual is entitled by Federal law, it must be released, unless doing so would reveal the identity of a confidential source.
(3) Records maintained in connection with providing protective services to the President of the United States or other individuals protected pursuant to Title 18 U.S.C., section 3056.
(4) Statistical data required by statute and used only for statistical purposes and not to make decisions on the rights, benefits, or entitlements of individuals, except for census records which may be disclosed under Title 13 U.S.C., section 8.
(5) Data compiled to determine suitability, eligibility, or qualifications for Federal service, Federal contracts, or access to classified information. This information may be withheld only to the extent that disclosure would reveal the identify of a confidential source.
(6) Testing material used to determine if a person is qualified for appointment or promotion in the Federal service. This information may be withheld only if disclosure would compromise the objectivity or fairness of the examination process.
(7) Information to determine promotion potential in the Armed Forces. Information may be withheld, but only to the extent that disclosure would reveal the identity of a confidential source.
(d)
(e)
(1)
(i)
(ii)
(iii)
(iv)
(2)
(i)
(ii)
(iii)
(iv)
(3)
(i)
(ii)
(B) All portions of the system maintained by offices of Initial Denying Authorities which do not have a law enforcement mission and which fall within the scope of 5 U.S.C. 552a(k)(1) through (k)(7) may be exempt from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f).
(iii)
(iv)
(4)
(i)
(ii)
(iii)
(iv)
(5)
(i)
(ii)
(iii)
(iv)
(B) From subsection (c)(3) because the release of accounting of disclosure would place the subject of an investigation on notice that he is under investigation and provide him with significant information concerning the nature of the investigation, thus resulting in a serious impediment to law enforcement investigations.
(C) From subsection (e)(2) because in a criminal or other law enforcement investigation, the requirement that information be collected to the greatest extent practicable from the subject individual would alert the subject as to the nature or existence of the investigation and thereby present a serious impediment to effective law enforcement.
(D) From subsection (e)(3) because compliance would constitute a serious impediment to law enforcement in that it could compromise the existence of a confidential investigation or reveal the identity of witnesses or confidential informants.
(E) From subsection (e)(8) because compliance with this provision would provide an impediment to law enforcement by interfering with the ability to issue warrants or subpoenas and by revealing investigative techniques, procedures or evidence.
(6)
(i)
(ii)
(iii)
(iv)
(7)
(i)
(ii)
(iii)
(iv)
(B) From subsection (c)(3) because the release of accounting of disclosure would place the subject of an investigation on notice that he is under investigation and provide him with significant information concerning the nature of the investigation, thus resulting in a serious impediment to law enforcement investigations.
(C) From subsection (e)(2) because in a criminal or other law enforcement investigation, the requirement that information be collected to the greatest extent practicable from the subject individual would alert the subject as to
(D) From subsection (e)(3) because compliance would constitute a serious impediment to law enforcement in that it could compromise the existence of a confidential investigation or reveal the identity of witnesses or confidential informants.
(E) From subsection (e)(8) because compliance with this provision would provide an impediment to law enforcement by interfering with the ability to issue warrants or subpoenas and by revealing investigative techniques, procedures or evidence.
(8)
(i)
(ii)
(iii)
(iv)
(B) From subsection (c)(3) because the release of accounting of disclosure would place the subject of an investigation on notice that he is under investigation and provide him with significant information concerning the nature of the investigation, thus resulting in a serious impediment to law enforcement investigations.
(C) From subsection (e)(2) because in a criminal or other law enforcement investigation, the requirement that information be collected to the greatest extent practicable from the subject individual would alert the subject as to the nature or existence of the investigation and thereby present a serious impediment to effective law enforcement.
(D) From subsection (e)(3) because compliance would constitute a serious impediment to law enforcement in that it could compromise the existence of a confidential investigation or reveal the identity of witnesses or confidential informants.
(E) From subsection (e)(8) because compliance with this provision would provide an impediment to law enforcement by interfering with the ability to issue warrants or subpoenas and by revealing investigative techniques, procedures or evidence.
(9)
(i)
(ii)
(iii)
(iv)
(10)
(i)
(ii)
(iii)
(iv)
(11)
(i)
(ii)
(iii)
(iv)
(B) From subsection (c)(3) because of the release of accounting of disclosure would place the subject of an investigation on notice that he is under investigation and provide him with significant information concerning the nature of the investigation, thus resulting in a serious impediment to law enforcement investigations.
(C) From subsection (e)(2) because in a criminal or other law enforcement investigation, they require that information be collected to the greatest extent practicable from the subject individual would alert the subject as to the nature or existence of the investigation and thereby present a serious impediment to effective law enforcement.
(D) From subsection (e)(3) because compliance would constitute a serious impediment to law enforcement in that it could compromise the existence of a confidential investigation or reveal the identity of witnesses or confidential informants.
(E) From subsection (e)(8) because compliance with this provision would provide an impediment to law enforcement by interfering with the ability to issue warrants or subpoenas and be revealing investigative techniques, procedures or evidence.
(12)
(i)
(ii)
(iii)
(iv)
(B) From subsection (c)(3) because of the release of accounting of disclosure would place the subject of an investigation on notice that he is under investigation and provide him with significant information concerning the nature of the investigation, thus resulting in a serious impediment to law enforcement investigations.
(C) From subsection (e)(2) because in a criminal or other law enforcement investigation, they require that information be collected to the greatest extent practicable from the subject individual would alert the subject as to the nature or existence of the investigation and thereby present a serious impediment to effective law enforcement.
(D) From subsection (e)(3) because compliance would constitute a serious impediment to law enforcement in that it could compromise the existence of a confidential investigation or reveal the identity of witnesses or confidential informants.
(E) From subsection (e)(8) because compliance with this provision would provide an impediment to law enforcement by interfering with the ability to issue warrants or subpoenas and be revealing investigative techniques, procedures or evidence.
(13)
(i)
(ii)
Consistent with the legislative purpose of the Privacy Act of 1974, the Department of the Army will grant access to nonexempt material in the records being maintained. Disclosure will be governed by the Department of the Army's Privacy Regulation, but will be limited to the extent that the identity of confidential sources will not be compromised; subjects of an investigation of an actual or potential criminal violation will not be alerted to the investigation; the physical safety of witnesses, informants and law enforcement personnel will not be endangered, the privacy of third parties will not be violated; and that the disclosure would not otherwise impede effective law enforcement. Whenever possible, information of the above nature will be deleted from the requested documents and the balance made available. The controlling principle behind this limited access is to allow disclosures except those indicated above. The decisions to release information from these systems will be made on a case-by-case basis necessary for effective law enforcement.
(iii)
(iv)
(B) From subsection (c)(4) because an exemption is being claimed for subsection (d), this subsection will not be applicable.
(C) From subsection (d) because access to the records contained in this system would inform the subject of a criminal investigation of the existence of that investigation, provide the subject of the investigation with information that might enable him to avoid detection or apprehension, and would present a serious impediment to law enforcement.
(D) From subsection (e)(3) would constitute a serious impediment to law enforcement in that it could compromise the existence of a confidential investigation, reveal the identity of confidential sources of information and endanger the life and physical safety of confidential informants.
(E) From subsections (e)(4)(G) and (H) because this system of records is
(F) From subsection (e)(4)(I) because the identity of specific sources must be withheld in order to protect the confidentiality of the sources of criminal and other law enforcement information. This exemption is further necessary to protect the privacy and physical safety of witnesses and informants.
(G) From subsection (e)(5) because in the collection of information for law enforcement purposes it is impossible to determine in advance what information is accurate, relevant, timely, and complete. With the passage of time, seemingly irrelevant or untimely information may acquire new significance as further investigation brings new details to light and the accuracy of such information can only be determined in a court of law. The restrictions of subsection (e) (5) would restrict the ability of trained investigators and intelligence analysts to exercise their judgment reporting on investigations and impede the development of intelligence necessary for effective law enforcement.
(H) From subsection (e)(8) because the individual notice requirements of subsection (e)(8) could present a serious impediment to law enforcement as this could interfere with the ability to issue search authorizations and could reveal investigative techniques and procedures.
(I) From subsection (f) because this system of records has been exempted from the access provisions of subsection (d).
(J) From subsection (g) because this system of records compiled for lawenforcement purposes and has been exempted from the access provisions of subsections (d) and (f).
(14)
(i)
(ii)
(iii)
(iv)
(B) From subsection (c)(4), (d), (e)(4)(G), (e)(4)(H), (f), and (g) because disclosure of portions of the information in this system of records would seriously impair the prudent and efficient handling of these uniquely functioning individuals; hamper the inclusion of comments and evaluations concerning the performance qualification, character, identity, and propensities of the informant; and prematurely compromise criminal investigations which either concern the conduct of the informant himself or investigations wherein he/she is intergrally or only peripherally involved. Additionally, the exemption from access necessarily includes exemption from amendment, certain agency requirements relating to access and amendment of records and civil liability predicated upon agency compliance with specific provisions of the Privacy Act.
(C) From subsection (d), (e)(4)(G), (e)(4)(H), and (f) are also necessary to protect the security of information properly classified in the interest of national defense and foreign policy.
(D) From subsection (e)(1) because the nature of the criminal investigative function creates unique problems in prescribing what information concerning informants is relevant or necessary. Due to close liaison and existing relationships with other Federal, state, local and foreign law enforcement agencies, information about informants may be received which may relate to a case then under the investigative jurisdiction of another Government agency but it is necessary to maintain this information in order to provide leads for appropriate law enforcement purposes and to establish patterns of activity which may relate to the jurisdiction of both the USACIDC and other agencies. Additionally, the failure to maintain all known information about informants could affect the effective utilization of
(E) From subsection (e)(2) because collecting information from the information would potentially thwart both the crminal investigtive process and the required management control over these individuals by appraising the informant of investigations or management actions concerning his involvement in criminal activity or with USACIDC personnel.
(F) From subsection (e)(3) because supplying an informant with a form containing the information specified could result in the compromise of an investigation, tend to inhibit the cooperation of the informant, and render ineffectual investigative techniques and methods utilized by USACIDC in the performance of its criminal law enforcement duties.
(G) From subsection (e)(5) because this requirement would unduly hamper the criminal investigative process due to type of records maintained an necessity for rapid information retrieval and dissemination. Also, in the collection of information about informants, it is impossible to determine what information is then accurate, relevant, timely and complete. With the passage of time, seemingly irrevelant or untimely information may acquire new significance as further investigation or contact brings new details to light. In the criminal investigative process, accuracy and relevance of information concerning informants can only be determined in a court of law. The restrictions imposed by subsection (e)(5) would restrict the ability of trained investigators to exercise their judgment in reporting information relating to informant's actions and would impede the development of criminal intelligence necessary for effective law enforcement.
(H) From subsection (e)(8) because the notice requirements of this provision could present a serious impediment to criminal law enforcement by revealing investigative techniques, procedures, and the existence of confidential investigations.
(15)
(i)
(ii)
(iii)
(iv)
(B) From subsections (c)(4), (d), (e)(4)(G), (e)(4)(H), (f), and (g) because access might compromise on-going investigations, reveal classified information, investigatory techniques or the identity of confidential informants, or invade the privacy of persons who provide information in connection with a particular investigation. The exemption from access necessarily includes exemption from amendment, certain agency requirements relating to access and amendment of records, and civil liability predicated upon agency compliance with those specific provisions of the Privacy Act. The exemption from access necessarily includes exemption from other requirements.
(C)From subsection (e)(1) because the nature of the investigative function creates unique problems in prescribed specific perimeters in a particular case as to what information is relevant or necessary. Also, due to close liaisons and working relationships with other Federal, state, local, and foreign law enforcement agencies, information may be received which may relate to a case then under the investigative jurisdiction of another Government agency but it is necessary to maintain this information in order to provide leads for appropriate law enforcement purposes and to establish patterns of activity which may relate to the jurisdiction of both the USACIDC and other agencies.
(D) From subsection (e)(2) because collecting information from the subject of criminal investigations would thwart the investigative process by placing the subject of the investigation on notice thereof.
(E) From subsection (e)(3) because supplying an individual with a form containing the information specified could result in the compromise of an investigation, tend to inhibit the cooperation of the individual queried, and render ineffectual investigation techniques and methods utilized by USACIDC in the performance of their criminal law enforcement duties.
(F) From subsection (e)(5) because this requirment would unduly hamper the criminal investigative process due to the great volume of records maintained and the necessity for rapid information retrieval and dissemination. Also, in the collection of information for law enforcement purposes, it is impossible to determine what information is then accurate, relevant, timely, and complete. With the passage of time, seemingly irrelevant or untimely information may acquire new significance as further investigation brings new details to light. In the criminal investigation process, accuracy and relevance of information can only be determine in a court of law. The restrictions imposed by subsection (e)(5) would restrict the ability of trained investigators to exercise their judgment in reporting on investigations and impede the development of criminal intelligence necessary for effective law enforcement.
(G) From subsection (e)(8) because the notice requirements of this provision could present a serious impediment to criminal law enforcement by revealing investigative techniques, procedures, and the existence of confidential investigations.
(16)
(i)
(ii)
(iii)
(iv)
(B) From subsection (e)(1) because the failure to maintain all known information about agents could affect the effective utilization of the individual and substantially increase the operational hazards incumbent in the employment of agents in very compromising and sensitive situations.
(17)
(i)
(ii)
(iii)
(iv)
(B) From subsection (c)(3) because of the release of accounting of disclosure would place the subject of an investigation on notice that he is under investigation and provide him with significant information concerning the nature of the investigation, thus resulting in a serious impediment to law enforcement investigations.
(C) From subsection (e)(2) because in a criminal or other law enforcement investigation, they require that information be collected to the greatest extent practicable from the subject individual would alert the subject as to the nature or existence of the investigation and thereby present a serious impediment to effective law enforcement.
(D) From subsection (e)(3) because compliance would constitute a serious impediment to law enforcement in that it could compromise the existence of a confidential investigation or reveal the identity of witnesses or confidential informants.
(E) From subsection (e)(8) because compliance with this provision would provide an impediment to law enforcement by interfering with the ability to issue warrants or subpoenas and be revealing investigative techniques, procedures or evidence.
(18)
(i)
(ii)
(A) Information specifically authorized to be classified under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).
(B) Investigatory material compiled for law enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.
(C) Records maintained in connection with providing protective services to the President and other individuals under 18 U.S.C. 3506, may be exempt pursuant to 5 U.S.C. 552a(k)(3).
(D) Records maintained solely for statistical research or program evaluation purposes and which are not used to make decisions on the rights, benefits, or entitlement of an individual except for census records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant to 5 U.S.C. 552a(k)(4).
(E) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.
(F) Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure would compromise the objectivity or fairness of the test or examination process.
(G) Evaluation material used to determine potential for promotion in the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but only to the extent that the disclosure of such material would reveal the identity of a confidential source.
(H) Portions of this system of records may be exempt pursuant to 5 U.S.C. 552a (k)(1) through (k)(7) from subsections (c)(3), (d), (e)(1), (e)(4)(G) and (H), and (f).
(iii)
(iv)
(B) From subsection (d) because access to the records contained in this system would inform the subject of an investigation of the existence of that investigation, provide the subject of the investigation with information that might enable him to avoid detection of apprehension, and would present a serious impediment to law enforcement.
(C) From subsection (e)(1) because in the course of criminal investigations information is often obtained concerning the violation of laws or civil obligations of others not relating to active case or matter. In the interest of effective law enforcement, it is necessary that this information be retained since it can aid in establishing patterns of activity and provide valuable leads for other agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (H) because this system of records is exempt from individual access pursuant to subsections (k)(2) of the Privacy Act of 1974.
(E) From subsection (f) because this system of records has been exempted from the access provisions of subsection (d).
(19)
(i)
(ii)
(B) All portions of this system maintained by the DA Privacy Review Board and those Access and Amendment Refusal Authorities which do not have a law enforcement mission and which fall within the scope of 5 U.S.C. 552a(k)(1) through (k)(7) may be exempt from the provisions of 5 U.S.C. 552a(c)(3)(d), (e)(1), (e)(4)(G), (e)(4)(H), and (f).
(iii)
(iv)
(20) [Reserved]
(21)
(i)
(ii)
(iii)
(iv)
(22)
(i)
(ii)
(iii)
(iv)
(B) Exemption is necessary to protect the identity of individuals who furnished information to the United States Military Academy which is used in determining suitability, eligibility, or qualifications for military service and which was provided under an express promise of confidentiality.
(C) Exemption is needed for the portion of records compiled within the Academy which pertain to testing or examination material used to rate individual qualifications, the disclosure of which would compromise the objectivity or fairness of the testing or examination process.
(D) Exemption is required for evaluation material used by the Academy in determining potential for promotion in the Armed Services, to protect the identity of a source who furnished information to the Academy under an express promise of confidentiality.
(23)
(i)
(ii)
(iii)
(iv)
(24)
(i)
(ii)
(iii)
(iv)
(B) From subsection (c)(3) because the release of accounting of disclosure would place the subject of an investigation on notice that he is under investigation and provide him with significant information concerning the nature of the investigation, thus resulting in a serious impediment to law enforcement investigations.
(C) From subsection (e)(2) because, in a criminal or other law enforcement investigation, the requirement that information be collected to the greatest extent practicable from the subject individual would alert the subject as to the nature or existence of the investigation and thereby present a serious impediment to effective law enforcement.
(D) From subsection (e)(3) because compliance would constitute a serious
(E) From subsection (e)(8) because compliance with this provision would provide an impediment to law enforcement by interfering with the ability to issue warrants or subpoenas and by revealing investigative techniques, procedures or evidence.
(25)
(i)
(ii)
(iii)
(iv)
(26)
(i)
(ii)
(iii)
(iv)
(B) From subsection (d)(1) through (d)(5) because granting access to records in this system of records could inform the subject of a counterintelligence operation or investigation of an actual or potential criminal violation or the existence of that operation or investigation; of the nature and scope of the information and evidence obtained as to his/her activities; or of the identity of confidential sources, witnesses and intelligence personnel and could provide information to enable the subject to avoid detection or apprehension. Granting access to such information could seriously impede or compromise an operation or investigation; endanger the physical safety of confidential sources, witnesses, intelligence personnel and their families; lead to the improper influencing of witnesses; the destruction of evidence or the fabrication of testimony and disclose investigative techniques and procedures. In addition, the agency is required to protect the confidentiality of sources who furnished information to the Government under an expressed promise of confidentiality or, prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence. This confidentiality is needed to maintain the Government's continued access to information from persons who otherwise might refuse to give it.
(C) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of specific information in the early stages of an investigation or operation. Relevance and necessity are often questions of judgement and timing, an it is only after the information is evaluated that the relevance and necessity of such information can be established. In addition, during the course of the investigation or operation, the investigator may obtain information which is incidental to the main purpose of the investigative jurisdiction of another agency. Such information cannot readily be segregated. Furthermore, during the course of the investigation or operation, the investigator may obtain information concerning violations of laws other than those which are within the scope of his/her jurisdiction. In the interest of effective intelligence operations and law enforcement, military intelligence agents should retain information, since it an aid in establishing patterns of criminal or intelligence activity and provide valuable leads for other law enforcement or intelligence agencies.
(D) From subsection (e)(4)(G), (e)(4)(H), and (f) because this system or records is being exempt from subsections (d) of the Act, concerning access to records. These requirements are inapplicable to the extent that this system of records will be exempt from subsections (d)(1) through (d)(5) of the Act. Although the system would be exempt from these requirements, the Deputy Chief of Staff for Intelligence has published information concerning its notification, access, and contest procedures because under certain circumstances, the Deputy Chief of Staff for Intelligence could decide it is appropriate for an individual to have access to all or a portion os his/her records in this system of records.
(E) From subsection (e)(4)(I) because it is necessary to protect the confidentiality of the sources of information, to protect the privacy and physical safety of confidential sources and witnesses and to avoid the disclosure of investigative techniques and procedures. Although the system will be exempt from this requirement, the Deputy Chief of Staff for Intelligence has published such a notice in broad, generic terms.
(27)
(i)
(ii)
(iii)
(iv)
(B) From subsection (d)(1) through (d)(5) because granting access to records could inform the subject of an intelligence or counterintelligence operation or investigation of an actual or potential criminal violation or the existence of that operation or investigation; or the nature and scope of the information and evidence obtained, or of the identity of confidential sources, witnesses and intelligence personnel. Granting access to such information could seriously impede or compromise an operation or investigation; endanger the physical safety of confidential sources, witnesses, intelligence personnel and their families; lead to the improper influencing of witnesses; the destruction of evidence or the fabrication of testimony; disclose investigative techniques and procedures; invade the privacy of those individuals involved in intelligence programs and
(C) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of specific information in the early stages of an investigation or operation. Relevance and necessity are often questions of judgment and timing, and it is only after the information is evaluated that the relevance and necessity of such information can be established. In addition, during the course of the investigation or operation, the investigator or operative may obtain information which is incidental to the main purpose of the investigative jurisdiction of another agency. Such information cannot readily be segregated. Furthermore, during the course of the investigation or operation, the investigator may obtain information concerning violations of law other than those which are within the scope of his/her jurisdiction. In the interest of effective intelligence operations and law enforcement, military intelligence agents should retain information, since it is an aid in establishing patterns of criminal or intelligence activity and provides valuable leads for other law enforcement or intelligence agencies.
(D) From subsection (e)(4)(G), (e)(4)(H), and (f) because this system of records is being exempt from subsection (d) of the Act concerning access to records. These requirements are inapplicable to the extent that this system of records will be exempt from subsections (d)(1) through (d)(5) of the Act. Although the system would be exempt from these requirements, the Deputy Chief of Staff for Intelligence has published information concerning its notification, access, and contest procedures because under certain circumstances, the Deputy Chief of staff for Intelligence could decide it is appropriate for an individual to have access to all or a portion of his/her records in this system of records.
(E) From subsection (e)(4)(I) because it is necessary to protect the confidentiality of sources of information, to protect the privacy and physical safety of participants and their families, confidential sources, and witnesses and to avoid the disclosure of specialized techniques and procedures. Although the system will be exempt from this requirement, the Deputy Chief of Staff for Intelligence has published such a notice in broad generic terms.
(28)
(i)
(ii)
(iii)
(iv)
(B) From subsection (d)(1) through (d)(5) because granting access to records in this system of records could inform the subject of an investigation of an actual or potential criminal violation; of the existence of that investigation; of the nature and scope of the information and evidence obtained as to his/her activities; or of the identity of confidential sources, witnesses and intelligence or law enforcement personnel and could provide information to enable the subject to avoid detection or apprehension. Granting access to such information could seriously impede or compromise an investigation; endanger the physical safety of confidential sources, witnesses, intelligence or law enforcement personnel and their families; lead to the improper influencing of witnesses; the destruction of evidence or the fabrication of testimony and disclose investigative techniques and procedures. In addition, granting access to such information could disclose classified, sensitive sources and operational methods and could constitute an unwarranted invasion of the personal privacy of others.
(C) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of specific information in the early stages of an investigation or operation. Relevance and necessity are often questions of judgment and timing, and it is only after the information is evaluated that the relevance and necessity of such information can be established. In addition, during the course of the investigation or operation, the investigator may obtain information which is incidental to the main purpose of the investigative jurisdiction of another agency. Such information cannot readily be segregated. Furthermore, during the course of the investigation or operation, the investigator may obtain information concerning violation of laws other than those which are within the scope of his/her jurisdiction. In the interest of effective intelligence operations and law enforcement, criminal law enforcement investigators and military intelligence agents should retain this information, since it can aid in establishing patterns of criminal or intelligence activity and can provide valuable leads for other law enforcement or intelligence agencies.
(D) From subsections (e)(4)(G) and (e)(4)(H) because this system of records is being exempt from subsections (d) of the Act, concerning access to records, these requirements are inapplicable to the extent that this system of records will be exempt from subsections (d)(1) through (d)(5) of the Act. Although the system would be exempt from these requirements, the Deputy Chief of Staff for Intelligence and the U.S. Army Criminal Investigations Command have published information concerning its notification, access, and contest procedures for their respective areas because, under certain circumstances, the Deputy Chief of Staff for Intelligence or the U.S. Army Criminal Investigations Command could decide it is appropriate for an individual to have access to all or a portion of his/her records in this system of records.
(E) From subsection (e)(4)(I) because it is necessary to protect the confidentiality of the sources of information, to protect the privacy and physical safety of confidential sources and witnesses and to avoid the disclosure of investigative techniques and procedures. Although the system will be exempt from this requirement, the Deputy Chief of Staff for Intelligence and the U.S. Army Criminal Investigations Command have published such a notice in broad, generic terms.
(29)
(i)
(ii)
(iii)
(iv)
(30)
(i)
(ii)
(iii)
(iv)
(31)
(i)
(ii)
(iii)
(iv)
(32)
(i)
(ii)
(iii)
(iv)
(33)
(i)
(ii)
(iii)
(iv)
(B) From subsection (d)(1) through (d)(5) because granting access to records could inform the subject of an intelligence or counterintelligence operation or investigation of an actual or potential criminal violation or the existence of that operation or investigation; of the nature and scope of the information and evidence obtained, or of
(C) From subsection (e)(1) because it is not always possible to detect the relevance of specific information in the early stages of an investigation or operation. Relevance and necessity are often questions of judgment and timing, and it is only after the information is evaluated that the relevance and necessity of such information can be established. In addition, during the course of the investigation or operation, the investigator or operative may obtain information which is incidental to the main purpose of the investigative jurisdiction of another agency. Such information cannot readily be segregated. Furthermore, during the course of the investigation or operation, the investigator may obtain information concerning violations of law other than those which are within the scope of his/her jurisdiction. In the interest of effective intelligence operations and law enforcement, military intelligence agents should retain information, since it is an aid in establishing patterns of criminal or intelligence activity and provides valuable leads for other law enforcement or intelligence agencies.
(D) From subsection (e)(4)(G), (e)(4)(H), and (f) because this system or records is being exempt from subsections (d) of the Act, concerning access to records. These requirements are inapplicable to the extent that this system of records will be exempt from subsections (d)(1) through (d)(5) of the Act. Although the system would be exempt from these requirements, the Deputy Chief of Staff for Intelligence has published information concerning its notification, access, and contest procedures because under certain circumstances, the Deputy Chief of Staff for Intelligence could decide it is appropriate for an individual to have access to all or a portion os his/her records in this system of records.
(E) From subsection (e)(4)(I) because it is necessary to protect the confidentiality of sources of information, to protectthe privacy and physical safety of participants and their families, confidential sources, and witnesses and to avoid the disclosure of specialized techniques and procedures. Although the system will be exempt from this requirement, the Deputy Chief of Staff for Intelligence has published such a notice in broad, generic terms.
(1)
(i) Personnel investigations may obtain from another Federal agency properly classified information which pertains to national defense and foreign policy. Application of exemption (k)(1) may be necessary to preclude the data subject's access to and amendment of such classified information under 5 U.S.C. 552a(d).
(ii) Personnel investigations may contain investigatory material compiled for law enforcement purposes other than material within the scope of 5 U.S.C. 552a(j)(2), e.g., investigations into the administration of the merit system. Application of exemption (k)(2) may be necessary to preclude the data subject's access to or amendment of such records, under 552a(c)(3) and (d).
(iii) Personnel investigations may obtain from another Federal agency information that relates to providing protective services to the President of the United States or other individuals pursuant to section 3056 of title 18. Application of exemption (k)(3) may be necessary to preclude the data subject's access to and amendment of such records under 5 U.S.C. 552a(d).
(iv) All information about individuals in these records that meets the criteria stated in 5 U.S.C. 552a(k)(5) is exempt from the requirements of 5 U.S.C. 552a(c)(3) and (4). These provisions of the Privacy Act relate to making accountings of disclosures available to the data subject, and access to and amendment of records. These exemptions are claimed because this system contains investigatory material compiled solely for the purpose of determining suitability, eligibility, and qualifications for Federal civilian employment. To the extent that the disclosure of material would reveal the identity of source who furnished information to the Government under an express promise that the identity of the source would held in confidence, or, prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence, the application of exemption (k)(5) will be required to honor such a promise should the data subject request access to or amendment of the record, or access to the accounting of disclosures of the record.
(v) All material and information in the records that meets the criteria stated in 5 U.S.C. 552a(k)(6) is exempt from the requirements of 5 U.S.C. 552a(d), relating to access to and amendment of records by the data subject. This exemption is claimed because portions of this system relate to testing or examination materials used solely to determine individual qualifications for appointment or promotion in the Federal service. Access to or amendment of this information by the data subject would compromise the objectivity and fairness of the testing or exemption process.
(i) All information about individuals in these records that meets the criteria stated in 5 U.S.C. 552a(k)(5) is exempt from the requirements of 5 U.S.C. 552a(c)(3) and (d). These provisions of the Privacy Act relate to making accountings of disclosures available to the data subject and access to and amendment of records. These exemptions are claimed because this system contains investigative material compiled solely for the purpose of determining the appropriateness of a request for approval of an objection to an eligible's qualification for employment in the Federal service. To the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, the application of exemption (k)(5) will be required to honor such a promise should the data subject request access to the accounting of disclosures of the record.
(ii) All material and information in these records that meets the criteria stated in 5 U.S.C. 552a(k)(6) are exempt from the requirements of 5 U.S.C. 552a(d), relating to access to and amendment of records by the subject. The exemption is claimed because portions of this system relate to testing or examination materials used solely to determine individual qualification for appointment or promotion in the Federal service and access to or amendment of this information by the data
Out-of-Service Accounts Receivables.
US Army Finance and Accounting Center, Ft Benjamin Harrison, IN 46249.
Separated and retired military/civilian personnel and others indebted to the US Army.
Records of current and former military members and civilian employees’ pay accounts showing entitlements, deductions, payments made, and any indebtedness resulting from deductions and payments exceeding entitlements. These records include, but are not limited to:
a. Individual military pay records, substantiating documents such as military pay orders, pay adjustment authorizations, military master pay account printouts from the Joint Uniform Military Pay System (JUMPS), records of travel payments, financial record data folders, miscellaneous vouchers, personal financial records, credit reports, promissory notes, individual financial statements, and correspondence;
b. Application for waiver of erroneous payments or for remission of indebtedness with supporting documents, including, but not limited to statements of financial status (personal income and expenses), statements of commanders and/or accounting and finance officers, correspondence with members and employees;
c. Claims of individuals requesting additional payments for service rendered with supporting documents including, but not limited to, time and attendance reports, leave and earnings statements, travel orders and/or vouchers, and correspondence with members and employees;
d. Delinquent accounts receivable from field accounting and finance officers including, but not limited to, returned checks, medical services billings, collection records, and summaries of the Army Criminal Investigations Command and/or Federal Bureau of Investigation reports:
e. Reports from probate courts regarding estates of deceased debtors;
f. Reports from bankruptcy courts regarding claims of the United States against debtors.
31 U.S.C., section 3711; 10 U.S.C., section 2774; and 12 U.S.C., section 1715.
To process, monitor, and post-audit accounts receivable, to administer the Federal Claims Collection Act, and to answer inquiries pertaining thereto.
Information may be disclosed to:
US Department of Justice/US Attorneys: For legal action and/or final disposition of the debt claims. The litigation briefs (comprehensive, written referral recommendations) will restructure the entire scope of the collection cases.
Internal Revenue Service: To obtain locator status for delinquent accounts receivables; (Automated controls exist to preclude redisclosure of solicited IRS address data); and/or to report write-off amounts as taxable income as pertains to amounts compromised and accounts barred from litigation due to age.
Private Collection Agencies: For collection action when the Army has exhausted its internal collection efforts.
Disclosures pursuant to 5 U.S.C. 552a(b)(12) may be made to “consumer reporting agencies” as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)) when an individual is responsible for a debt to the US Army, provided the debt has been validated, is overdue, and the debtor has
Paper records in collection file folders and bulk storage; card files, computer magnetic tapes and printouts; microfiche.
By Social Security Number, name, and substantiating document number; conventional indexing is used to retrieve data.
The US Army Finance and Accounting Center employs security guards. An employee badge and visitor registration system is in effect. Hard copy records are maintained in areas accessible only to authorized personnel who are properly screened, cleared and trained. Computerized records are accessed by custodian of the records system and by persons responsible for servicing the record system in the performance of their official duties. Certifying finance and accounting officers of debts have access to debt information to confirm if the debt is valid and collection action is to be continued. Computer equipment and files are located in a separate secured area.
Individual military pay records and accounts receivables are converted to microfiche and retained for 6 years. Destruction is by shredding. Retention periods for other records vary according to category, but total retention does not exceed 56 years; these records are sent to the Federal Records Center, General Services Administration at Dayton, Ohio; destruction is by burning or salvage as waste paper.
Commander, US Army Finance and Accounting Center Indianapolis, IN 46249.
Individuals desiring to know whether this system of records contains information about them should contact the System Manager, ATTN: FINCP-F, furnishing full name, Social Security Number, and military status or other information verifiable from the record itself.
Individuals seeking access to records in this system pertaining to them should submit a written request as indicated in “Notification procedure” and furnish information required therein.
The Army's rules for access to records and for contesting and appealing initial determinations are contained in Army Regulation 340-21 (32 CFR part 505).
Information is received from Department of Defense staff and field installations, Social Security Administration, Treasury Department, financial organizations, and automated system interface.
None.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
a. Is kept by the Government including, but not limited to, an individual's home address, home telephone number, SSN, education, financial transactions, medical history, and criminal or employment history.
b. Contains an individual's name, identifying number, symbol, or other individual identifier such as a finger, voice print, or a photograph.
10 U.S.C. 3012, 18 U.S.C. 701, 18 U.S.C. 702
This part prescribes the Department of the Army and the Air Force policy governing the manufacture, sale, reproduction, possession, and wearing of military decorations, medals, badges, and insignia. It also establishes the Heraldic Item Quality Control Program to improve the appearance of the Army and Air Force by controlling the quality of heraldic items purchased from commercial sources.
Related publications are listed in paragraphs (a) through (f) of this section. (A related publication is merely a source of additional information. The user does not have to read it to understand this part). Copies of referenced publications may be reviewed at Army and Air Force Libraries or may be purchased from the National Technical Information Services, U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161.
(a) AFI 36-2903, Dress and Personal Appearance of Air Force Personnel.
(b) AR 360-5, Public Information.
(c) AR 670-1, Wear and Appearance of Army Uniforms and Insignia.
(d) AR 840-1, Department of the Army Seal, and Department of the Army Emblem and Branch of Service Plaques.
(e) AR 840-10, Heraldic Activities, Flags, Guidons, Streamers, Tabards and Automobile Plates.
(f) AFR 900-3, Department of the Air Force Seal, Organizational Emblems, Use and Display of Flags, Guidons, Streamers, and Automobile and Aircraft Plates.
(a)
(1) AFB—Air Force Base.
(2) DA—Department of the Army.
(3) DCSPER—Deputy Chief of Staff for Personnel.
(4) DSCP—Defense Supply Center Philadelphia.
(5) DUI—distinctive unit insignia.
(6) ROTC—Reserve Officers’ Training Corps.
(7) SSI—shoulder sleeve insignia.
(8) TIOH—The Institute of Heraldry.
(9) USAF—United States Air Force.
(b)
(2)
(3)
(4)
(5)
(6)
(7)
(a)
(b)
(1) Monitor the overall operation of the Heraldic Quality Control Program.
(2) Authorize the use of insignia designs in commercial items.
(3) Certify insignia manufacturers.
(4) Inspect the quality of heraldic items.
(c)
(d)
(e)
(f)
(a) The wear, manufacture, and sale of military decorations, medals, badges, their components and appurtenances, or colorable imitations of them, are governed by section 704, title 18, United States Code (18 U.S.C. 704).
(b) The manufacture, sale, possession, and reproduction of badges, identification cards, insignia, or other designs, prescribed by the head of a U.S. department or agency, or colorable imitations of them, are governed by Title 18, United States Code, Section 701 (18 U.S.C. 701).
(c) This part incorporates the statutory provisions.
(a) A certificate of authority to manufacture heraldic articles may be granted by the Institute of Heraldry.
(1) Certificates of authority will be issued only to companies who have manufacturing capability and agree to manufacture heraldic items according to applicable specifications or purchase descriptions.
(2) The certificate of authority is valid only for the individual or corporation indicated.
(3) A hallmark will be assigned to each certified manufacturer. All insignia manufactured will bear the manufacturer's hallmark.
(b) A certificate of authority may be revoked or suspended under the procedures prescribed in subpart D of this part.
(c) Manufacturers will submit a preproduction sample to TIOH of each item they manufacture for certification under the Heraldic Quality Control Program. A letter of certification authorizing manufacture of each specific item will be issued provided the sample meets quality assurance standards.
(d) A copy of the certified manufactures list will be furnished to the Army and Air Force Exchange Service and, upon request, to Army and Air Force commanders.
No certificate of authority to manufacture is required to sell articles listed in § 507.8 of this part; however, sellers are responsible for insuring that any article they sell is manufactured in accordance with Government specifications using government furnished tools, bears a hallmark assigned by TIOH, and that the manufacturer has received a certification to manufacture that specific item prior to sale.
(a) The articles listed in paragraphs (a) (1) through (10) of this section are authorized for manufacture and sale when made in accordance with approved specifications, purchase descriptions or drawings.
(1) All authorized insignia (AR 670-1 and AFI 36-2903).
(2) Appurtenances and devices for decorations, medals, and ribbons such as oak leaf clusters, service stars, arrowheads, V-devices, and clasps.
(3) Combat, special skill, occupational and qualification badges and bars.
(4) Identification badges.
(5) Fourrageres and lanyards.
(6) Lapel buttons.
(7) Decorations, service medals, and ribbons, except for the Medal of Honor.
(8) Replicas of decorations and service medals for grave markers. Replicas are to be at least twice the size prescribed for decorations and service medals.
(9) Service ribbons for decorations, service medals, and unit awards.
(10) Rosettes.
(11) Army emblem and branch of service plaques.
(b) Variations from the prescribed specifications for the items listed in paragraph (a) of this section are not permitted without prior approval, in writing, by TIOH.
The following articles are not authorized for manufacture and sale, except under contract with DSCP:
(a) The Medal of Honor.
(b) Service ribbon for the Medal of Honor.
(c) Rosette for the Medal of Honor.
(d) Service flags (prescribed in AR 840-10 or AFR 900-3).
(e) Army seal.
(f) Commercial articles for public sale that incorporate designs or likenesses of decorations, service medals, and service ribbons.
(g) Commercial articles for public sale that incorporate designs or likenesses of designs of insignia listed in § 507.8 of this part, except when authorized by the Service concerned.
The policy of the Department of the Army and the Department of the Air Force is to restrict the use of military designs for the needs or the benefit of personnel of their Services.
(a) Except as authorized in writing by the Department of the Army or the Department of the Air Force, as applicable, the manufacture of commercial articles incorporating designs or likenesses of official Army/Air Force heraldic items is prohibited. However, certain designs or likenesses of insignia such as badges or organizational insignia may be incorporated in articles manufactured for sale provided that permission has been granted as specified in paragraphs (a) (1) and (2) of this section.
(1)
(2)
(b) In the case of the Honorable Service lapel button, a general exception is made to permit the incorporation of that design in articles manufactured for public sale provided that such articles are not suitable for wear as lapel buttons or pins.
(a) The photographing, printing, or, in any manner making or executing any engraving, photograph, print, or impression in the likeness of any decoration, service medal, service ribbon, badge, lapel button, insignia, or other device, or the colorable imitation thereof, of a design prescribed by the Secretary of the Army or the Secretary of the Air Force for use by members of the Army or the Air Force is authorized provided that such reproduction does not bring discredit upon the military service and is not used to defraud or to misrepresent the identification or status of an individual, organization, society, or other group of persons.
(b) The use for advertising purposes of any engraving, photograph, print, or impression of the likeness of any Department of the Army or Department of the Air Force decoration, service medal, service ribbon, badge, lapel button, insignia, or other device (except the Honorable Service lapel button) is prohibited without prior approval, in writing, by the Secretary of the Army or the Secretary of the Air Force except when used to illustrate a particular article that is offered for sale. Request for use of Army insignia in advertisements or promotional materials will be processed through public affairs channels in accordance with AR 360-5, paragraph 3-37.
(c) The reproduction in any manner of the likeness of any identification card prescribed by Department of the Army or Department of the Air Force is prohibited without prior approval in writing by the Secretary of the Army or Secretary of the Air Force.
(a) The wearing of any decoration, service medal, badge, service ribbon, lapel button, or insignia prescribed or authorized by the Department of the Army and the Department of the Air Force by any person not properly authorized to wear such device, or the use of any decoration, service medal, badge, service ribbon, lapel button, or insignia to misrepresent the identification or status of the person by whom such is worn is prohibited. Any person who violates the provision of this section is subject to punishment as prescribed in the statutes referred to in § 507.5 of this part.
(b) Mere possession by a person of any of the articles prescribed in § 507.8 of this part is authorized provided that such possession is not used to defraud or misrepresent the identification or status of the individual concerned.
(c) Articles specified in § 507.8 of this part, or any distinctive parts including suspension ribbons and service ribbons) or colorable imitations thereof, will not be used by any organization, society, or other group of persons without prior approval in writing by the Secretary of the Army or the Secretary of the Air Force.
The heraldic quality control program provides a method of ensuring that insignia items are manufactured with tools and specifications provided by TIOH.
The articles listed in § 507.8 of this part are controlled heraldic items and will be manufactured in accordance with Government specifications using
(a) Shoulder loop insignia, ROTC, U.S. Army.
(b) Institutional SSI, ROTC, U.S. Army.
(c) Background trimming/flashes, U.S. Army.
(d) U.S. Air Force organizational emblems for other than major commands.
(e) Hand embroidered bullion insignia.
A letter of certification to manufacture each heraldic item, except those listed in § 507.14 (a) through (e) of this part, will be provided to the manufacturer upon submission of a preproduction sample. Manufacture and sale of these items is not authorized until the manufacturer receives a certification letter from TIOH.
A certificate of authority to manufacture will be revoked by TIOH upon intentional violation by the holder thereof of any of the provisions of this part, or as a result of not complying with the agreement signed by the manufacturer in order to receive a certificate. Such violations are also subject to penalties prescribed in the Acts of Congress (§ 507.5 of this part). A repetition or continuation of violations after official notice thereof will be deemed prima facie evidence of intentional violation.
(a) The provisions of this part do not apply to contracts awarded by the Defense Personnel Support Center for manufacture and sale to the U.S. Government.
(b) All Army and Air Force service personnel who wear quality controlled heraldic items that were purchased from commercial sources will be responsible for ensuring that the items were produced by a certified manufacturer. Items manufactured by certified manufacturers will be identified by a hallmark and/or a certificate label certifying the item was produced in accordance with specifications.
(c) Commanders will ensure that only those heraldic items that are of the quality and design covered in the specifications and that have been produced by certified manufacturers are worn by personnel under their command. Controlled heraldic items will be procured only from manufacturers certified by TIOH. Commanders procuring controlled heraldic items, when authorized by local procurement procedures, may forward a sample insignia to TIOH for quality assurance inspection if the commander feels the quality does not meet standards.
The Institute of Heraldry may revoke or suspend the certificate of authority to manufacture if there are breaches of quality control policies by the manufacturer. As used in this paragraph, the term quality control policies include the obligation of a manufacturer under his or her “Agreement to Manufacture,” the quality control provisions of this part, and other applicable instructions provided by TIOH.
(a)
(2) The Director may direct that an informal investigation of the complaint or report be conducted.
(3) If such investigation is initiated, it will be the duty of the investigator to ascertain the facts in an impartial manner. Upon conclusion of the investigation, the investigator will submit a report to the appointing authority containing a summarized record of the investigation together with such findings and recommendations as may be appropriate and warranted by the facts.
(4) The report of investigation will be forwarded to the Director for review. If it is determined that a possible breach of quality control policies has occurred, the Director will follow the
(b)
(c)
(2) A hearing examiner will be appointed by appropriate orders. The examiner may be either a commissioned officer or a civilian employee above the grade of GS-7.
(3) The specific written allegations, together with other pertinent material, will be transmitted to the hearing examiner for introduction as evidence at the hearing.
(4) Manufacturers may be suspended for failure to return a loaned tool without referral to a hearing specified in paragraph (c)(1) of this section; however, the manufacturer will be advised, in writing, that tools are overdue and suspension will take effect if not returned within the specified time.
(d)
(1) Specific allegations.
(2) Directive of the Director requiring the holding of a public hearing on the allegations.
(3) Examiner's decision to hold the public hearing at a specific time, date, and place that will be not earlier than 30 days from the date of the letter of notification.
(4) Ultimate authority of the Director to suspend or revoke the certificate of authority should the record developed at the hearing so warrant.
(5) Right to—
(i) A full and fair public hearing.
(ii) Be represented by counsel at the hearing.
(iii) Request a change in the date, time, or place of the hearing for purposes of having reasonable time in which to prepare the case.
(iv) Submit evidence and present witnesses in his or her own behalf.
(v) Obtain, upon written request filed before the commencement of the hearing, at no cost, a verbatim transcript of the proceedings.
(e)
(i) A verbatim record of the proceeding will be maintained.
(ii) All previous material received by the examiner will be introduced into evidence and made part of the record.
(iii) The Government may be represented by counsel at the hearing.
(2) Subsequent to the conclusion of the hearing, the examiner will make specific findings on the record before him or her concerning each allegation.
(3) The complete record of the case will be forwarded to the Director.
(f)
(2) Upon arrival of a finding of breach of quality control policies, the manufacturer will be so advised.
(3) After review of the findings, the certificate of authority may be revoked or suspended. If the certificate of authority is revoked or suspended, the Director will—
(i) Notify the manufacturer of the revocation or suspension.
(ii) Remove the manufacturer from the list of certified manufacturers.
(iii) Inform the Army and Air Force Exchange Service of the action.
(g)
Secs. 3012, 3634, 70A Stat. 157, 207; 10 U.S.C. 3012, 3634.
(a)
(b)
(1) When participation is an appropriate part of official occasions attended by the senior officers of the Government or the Department of Defense in their official capacities and in the performance of official duties.
(2) For parades and ceremonies which are incident to gatherings of personnel of the Armed Forces, veterans, and patriotic organizations.
(3) At public rallies and parades intended to stimulate national interest in the Armed Forces and/or to further the community relation program.
(4) For fund drives for officially recognized Armed Forces relief agencies or charitable organizations such as the Red Cross when the proceeds are donated to such agencies.
(5) For athletic contests in which one or more Armed Forces teams are participating.
(6) In connection with recruiting activities for the Armed Forces.
(7) At official occasions and free social and entertainment activities held on or off Armed Forces installations, provided that such free social entertainment activities are conducted exclusively for the benefit of personnel of the Armed Forces and their guests.
R.S. 1125; 10 U.S.C. 238.
Chaplains will conduct or arrange for appropriate burial services at the interment of members of the military service, active and retired, and for members of their families upon request. A chaplain may perform the marriage rite, provided he complies with the civil law of the place where the marriage is to be solemnized and provided all parties concerned have complied with the requirements of the denomination the chaplain represents and with any directives which may have been issued by the military command or higher headquarters. The scope of the chaplains’ work will include such ministrations as are held by some denominations or religious bodies as sacraments and by others as rites or ordinances. Chaplains will administer or arrange for rites and sacraments for military personnel and civilians under military jurisdiction according to the respective beliefs and conscientious practices of all concerned.
10 U.S.C. 3012.
(a)
(b)
(c)
(d)
(2) The Commanding General, U.S. Army Community and Family Support Center (CG, USACFSC) will—
(i) Set procedures for processing debt claims against soldiers.
(ii) Process debt claims received at USACFSC regarding soldiers.
(iii) Carry out the objectives of this regulation to protect the rights of the soldier, his or her family members, and the interests of the Army.
(iv) Advise and assist the directors of Headquarters, Department of the Army (HQDA) agencies, commanders of the major Army commands, and other commanders on matters pertaining to indebtedness of soldiers.
(3) Officers having general court-martial jurisdiction will—
(i) Ensure special emphasis on the indebtedness issue is given in command information programs. This includes soldiers being informed of their responsibility to manage their personal affairs satisfactorily and pay their debts promptly. Also, inform soldiers of the possible consequences of failure to pay their debts.
(ii) Take action on requests to file unfavorable information in a soldier's official personnel file. (See § 513.3.)
(4) First level field grade commanders will monitor instances of soldiers’ repeated failure to pay debts that are brought to their attention. These commanders will take action, when proper.
(5) Immediate commanders will—
(i) Ensure that soldiers are informed of the following:
(A) DA policy on indebtedness.
(B) The possible consequences of failure to pay their debts.
(ii) Manage the processing of debt claims per the terms of this regulation.
(iii) Answer all correspondence received from CG, USACFSC and other DA officials.
(iv) Answer all correspondence received directly from claimants and third parties (for example, Members of Congress). The commander will not include unreleasable information without the soldier's written consent. This complies with the Privacy Act of 1974. (See AR 340-21.) Commanders should ask the Staff Judge Advocate (SJA) for guidance in unusual or difficult situations.
(v) Inform the first level field grade commander of instances of soldiers’ repeated failure to pay their debts. Also, point out actions taken or contemplated to correct the situation.
(vi) Refer correspondence or queries received from news media organizations to the unit, installation, or command public affairs officer for response.
(6) The unit, installation, or command public affairs officer will—
(i) Answer correspondence and queries received from news media organizations.
(ii) Coordinate with the SJA before making any response.
(e)
(2) Debt claims against corporations and organizations to which a soldier belongs, or of which a soldier is an officer, will not be processed under this regulation. In this situation, the matter should be pursued in civil court. If a judgment is received specifically against the soldier, then this regulation will apply.
(3) Creditors who follow § 513.4 will have their debt complaints processed.
(4) Requests for help that do not follow § 513.4 will be returned without action with an explanation as discussed in § 513.4(d).
(5) The Army will revoke debt processing privileges for creditors who—
(i) Refuse to abide by this regulation.
(ii) Try to use the Army as a debt collection agency. (See § 513.4(e)).
(6) The Army does not try to judge or settle disputed debts, or admit or deny whether claims are valid. The Army will not tell claimants whether any adverse action has been taken against a soldier as a result of the claim.
(7) If a soldier is not trying to resolve unpaid debts promptly or complaints of repeated failure to pay debts are received, commanders will consider the actions shown below. (See §§ 513.2(a)(3)(xv) and 513.3.)
(i) Making the failure a matter of permanent record.
(ii) Denial of reenlistment (enlisted personnel).
(iii) Administrative separation from the Service.
(iv) Punishment under the Uniform Code of Military Justice (UCMJ). When proper, such misconduct may be charged under articles 92, 123, 133, or 134 of the UCMJ.
(8) Checks that are dishonored for any reason remain proof of indebtedness until—
(i) Made good.
(ii) Proven to be the error of the financial institution on which drawn, or the error of any other person or institution; such action then absolves the soldier of fault. (See § 513.2(c).)
(9) When necessary, commanders and soldiers are urged to seek help from the SJA.
(f)
(2) If soldiers are referred to off-base branches of an on-post bank or credit union, the branches also must comply with the Standards of Fairness before making loans or credit agreements.
(3) Interest rates and service charges for loans made by oversea military banking facilities are set by DOD.
(g)
(2) Debt collectors who have obtained the needed written consent or court order and who have followed § 513.4 will have their debt complaints processed.
(3) Creditors who collect only on their own behalf are exempt from the Act.
(h)
(i)
(2) Current military addresses for all soldiers may be obtained by writing the Commander, U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, IN 46249-5301. All requests must include the soldier's full name, rank, and social security number (SSN). They should include the date and place of birth if the SSN is not known. A check or money order for $3.50 payable to the Treasurer of the United States must be enclosed with each request. (See AR 37-60.)
(3) A debt collector should not write to the U.S. Army Enlisted Records and Evaluation Center (USAEREC) if he or she knows the soldier is represented by a civilian lawyer or military legal counsel. However, the debt collector may write to USAEREC if he or she—
(i) Does not know or cannot easily find out the name and address of the lawyer or legal counsel.
(ii) Does not receive a response from the lawyer or legal counsel.
(4) If a debt collector writes to USAEREC, a postcard cannot be used. Also, the request cannot state that the locator service is being sought in order to collect a debt. These actions would violate the Fair Debt Collection Practices Act (§ 513.1(g)).
(a)
(1) Review the case to ensure that the terms of this regulation have been met.
(2) Consult the SJA if needed.
(3) Take the following actions:
(i) If any of the terms of § 513.4(c) have not been met by the creditor, return the complaint. Tell the writer that no action will be taken until those terms are met.
(ii) Upon receipt of subsequent inquiries from USACFSC, Members of Congress, or any other source, inform the writer that—
(A) The creditor has been told that his or her request lacked data or documentation.
(B) The commander regrets that he or she cannot process the complaint until the creditor supplies the necessary data.
(C) A reply previously has been made to the creditor. Enclose a copy of the reply.
(iii) If the creditor refuses or repeatedly fails to comply with any of these requirements, refer the complete case through channels to the Commander, USACFSC, ATTN: DACF-IS-PA, ALEX VA 22231-0522. If it is believed the creditor's debt processing privileges should be revoked, include a recommendation stating the reasons.
(iv) If the soldier was not given full disclosure information when the debt was incurred, refer him or her to the SJA office. The SJA office will advise if the soldier has a right to file suit against the creditor. The soldier may be entitled to twice the amount of the finance charge, for a minimum of $100 up to a maximum of $1,000, plus court costs and lawyer fees. This does not apply to debts incurred before 30 June 1969.
(v) If in doubt as to the legality of the contract, consult the SJA. This action is to ensure that the contract terms do not violate Federal and State laws.
(vi) Accept as valid proof, claims based on court judgments, orders, or decrees.
(vii) If the debt or the amount of the debt is disputed or denied by the soldier, reply directly to the creditor. Tell him or her that Army policy requires that disputed debts be settled by civil courts. Do not, in the reply, try to judge or settle any disputed debts, or admit or deny the validity of the claim.
(viii) If the creditor has met all the requirements discussed in § 513.4, interview the soldier.
(A) Ensure that the soldier is properly advised of his or her rights under the Privacy Act of 1974. DA Form 4817-R (Consent/Nonconsent To Disclose Personal Information) will be completed.
(B) Notify the soldier of the debt complaint.
(C) Explain that the Army requires that soldiers pay their debts promptly.
(D) Tell the soldier of his or her legal rights and duties. If appropriate, advise the soldier of his or her rights under article 31, UCMJ. Also, inform the soldier that counseling service is available under the Legal Assistance Program (AR 27-3).
(E) Review all available facts including the soldier's defenses, rights, and counterclaims.
(F) Urge the soldier to seek budget counseling and consumer protection advice, if proper. These services may be obtained from on-post credit unions, Army Community Service Program Counselors (AR 608-1), or through financial management seminars or workshops.
(G) Help the soldier in settling or in liquidating the debt. Give the soldier a copy of DA Pam 360-520 if proper. Answer any questions that he or she might have.
(H) Have the soldier sign a statement allowing or forbidding release of information to the claimant (DA Form 4817-R). AR 340-17 and AR 340-21, paragraph 3-3 govern this.
(I) Ask the soldier about his or her intentions. Give the soldier the chance to furnish a voluntarily signed statement admitting or denying the complaint or declining to do either.
(ix) Advise the claimant promptly that the soldier has been told of the complaint.
(x) Summarize the soldier's intentions if the soldier allows release of the information.
(xi) If proper, advise the claimant that indebtedness disputes must be resolved in a civil court of competent jurisdiction.
(xii) Ask the claimant to write, if necessary, directly to the soldier or his or her commander.
(xiii) Retain the statement allowing or forbidding release of information to the claimant with the case file for future reference. (See § 513.3)
(xiv) Monitor actions closely to ensure promises made to claimants are being met.
(xv) Consider administrative or punitive action, if proper (See §§ 513.1(e)(7) and 513.3.)
(xvi) Inform the first level field grade commander of instances of soldiers’ repeated failure to pay their debts. Also, point out actions taken or contemplated to correct the situation.
(b)
(2) If the soldier is a patient attached to a medical holding detachment (MHD), the complaint will be sent there for action. The commander of the MHD will take action per this regulation.
(3) The command receiving the complaint will acknowledge the letter and tell the writer of the referral. DA Form 209 (Delay, Referral, or Follow-Up Notice) may be used for this purpose.
(4) All correspondence to the President, received from outside of DOD, will be processed per AR 1-9.
(5) Send complaints to the soldier's new duty station if the soldier has been reassigned. Advise the claimant of the soldier's reporting date and the unit address to which correspondence should be sent.
(6) See § 513.5 for procedures governing processing of claims for nonactive duty or discharged personnel.
(c)
(2) Commanders must answer all check complaints, other than those discussed in § 513.2(c)(3), even if such complaints concerns checks errors caused by oversight or negligence. (AR 210-60 outlines ways for handling dishonored
(3) Checks made good within 5 days of notice do not require any action if the complaint is based on—
(i) Bank or Government error.
(ii) Failure to date the check.
(iii) Inconsistent or not legible amounts shown on the check.
(iv) Lack of legible signature.
(4) Bad checks written by family members are not processed under this regulation except in the following instance. The SJA finds that these checks stand for debts for which the soldier may be held personally liable under Federal or State laws (for example, checks written for necessities such as rent, utilities, or food).
(d)
(1) Give USACFSC or DA officials complete data on all inquiries.
(2) Seek the advice of the SJA before replying to a court order if necessary.
(3) State “not applicable” to items that do not apply.
(4) If applicable, advise USACFSC or DA officials—
(i) Whether the soldier acknowledges the debt.
(ii) Of the corrective action taken (to include the amounts and dates payments will be made).
(iii) Of the method of payment (for example, personal check).
(iv) Whether the soldier allowed or forbade release of the information given. (See DA Form 4817-R.)
(v) Whether the soldier is following the terms of a court order.
(vi) Whether the soldier's actions follow Army policy as stated in this regulation.
(vii) In the reply, include your name, unit address, and your automatic voice network (AUTOVON) number. If no AUTOVON Number is available, include a commercial or other number where the unit can be reached.
(5) Return to USACFSC or DA officials inquiries received after the soldier has been transferred. Include a copy of his or her permanent change of station orders.
(a)
(1) Making it a matter of permanent record (§ 513.3(b)).
(2) Denial of reenlistment (enlisted members) (AR 601-280).
(3) Administrative separation from the Service (AR 635-100 or AR 635-200).
(4) Punishment under the UCMJ. (See § 513.1(e)(7).)
(b)
(2) Documents/records created or received in connection with debt complaints will be filed per AR 600-37 and the Army Functional Files System (AR 340-2 and AR 340-18).
(3) The soldier may show his or her negligence, disregard, or unwillingness to resolve the matter by repeatedly failing to pay his or her debts. In these cases, the commander will decide whether to place a letter of reprimand, admonition, or censure in the soldier's official personnel files. AR 600-37, chapter 2, governs action taken to file unfavorable information.
(4) If information does not merit filing in the soldier's official personnel files, the commander will—
(i) Continue to monitor the situation.
(ii) Furnish further guidance and help.
(iii) Consider later action (§ 513.3(b)(3)) if warranted by further evidence.
(a)
(2) Federal Reserve Board Regulation Z (12 CFR part 226) lists specific disclosure rules for all credit transactions under the Truth-in-Lending Act.
(3) Certain States have rules that may apply to credit transactions in lieu of Federal Reserve Board Regulation Z. However, the Federal Reserve Board must first decide if the State sets largely the same rules and enforcement measures. States currently exempted from Regulation Z are Connecticut, Maine, Massachusetts, Oklahoma, and Wyoming.
(4) DOD Standards of Fairness (app B) define fair and just dealings with soldiers. DA Pam 360-520, chapter 4, contains simplified explanations of these standards. Note that certain debt complaints are exempt (§ 513.4(f)).
(5) Certificate of Compliance certifies the creditor has complied with the full disclosure requirements of Federal or State laws and regulations, State laws regarding contact with the employer of the debtor, and the application of the Standards of Fairness to the consumer credit transaction.
(6) Full disclosure information shows what the soldier should know about contract terms.
(7) The Fair Debt Collection Practices Act contains other conditions a creditor must meet. (See § 513.1(g)).
(b)
(c)
(i) A signed copy of the Certificate of Compliance with DOD Standards of Fairness (app B) showing compliance with one of the following:
(A) The Truth-in-Lending Act.
(B) Federal Reserve Board Regulation Z.
(C) State regulations.
(ii) A true copy of the signed contract.
(iii) The general and specific disclosure information given the soldier before signing the contract.
(iv) A copy of a judgment or written permission from the soldier allowing the creditor to contact his or her employer about the debt, if applicable. (See § 513.4(b)).
(v) Photocopies of actual correspondence or documentary proof showing that every effort has been made to get payment by direct contact with the soldier. The creditor must give the soldier a chance to answer each inquiry. (Forty-five days for those in the contiguous 48 States and the District of Columbia; 60 days for all others.)
(2) Foreign-owned companies having debt complaints must send—
(i) A true copy of the terms of the debt.
(ii) A certification that they have met the DOD Standards of Fairness.
(iii) An English translation of the above (if not already in English).
(iv) Documentation as in §§ 513.4(c)(1) (iv) and (v).
(3) Creditors not subject to Regulation Z, such as public utility companies, will send a certification with their request. It must state that no interest, finance charge, or other fee exceeds that permitted by the laws of the State in which the service was requested.
(4) Creditors not subject to the Truth-in-Lending Act must send—
(i) Legible copies of actual correspondence. (See § 513.4(c)(1)(v)).
(ii) Documentary proof showing that every effort has been made to get the payment by direct contact with the soldier.
(5) Creditors who have followed these terms may contact the soldier's commander for help. If the commander is contacted, the creditor must give the commander a chance to answer the inquiry. (Forty-five days for those in the contiguous 48 States and the District of Columbia; 60 days for all others.) If unsuccessful, after reasonable efforts to collect the debt, creditors may request help from USACFSC. In such cases, the information must be the same as that sent the commander. (See § 513.4(c)(6)). The request should be sent to the Commander, USACFSC, ATTN: DACF-IS-PA, ALEX VA 22331-0522.
(6) All requests for help must include—
(i) The soldier's full name, rank, and SSN.
(ii) Date and place of birth, if SSN is not known.
(iii) The amount and date of the original debt.
(iv) The terms of payment.
(v) The balance due.
(vi) Documents described in § 513.4(c) (1) through (4) which apply.
(7) Separate letters should be written on each account for prompt and efficient processing.
(8) Letters lacking data will be returned for added documents.
(d)
(1) Creditors did not enclose the following:
(i) Documents showing compliance with the Truth-in-Lending Act, Federal Reserve Board Regulation Z, or State regulation.
(ii) Signed copies of the Certificate of Compliance with DOD Standards of Fairness.
(iii) A completed copy of form with the Full Disclosure Information. (See § 513.4(a)(6).)
(iv) Signed copies of the contract.
(v) Legible copies of actual correspondence or documentary proof showing that every effort has been made to get the payment by direct contact with the soldier. (See § 513.4(c)(1)(v).)
(2) The soldier is located in a State whose laws forbid creditors from contacting employers.
(3) The claim is obviously false or misleading.
(4) The finance charge does not conform to the State law where the contract is signed.
(5) A U.S. company operating overseas exceeds the lowest interest rate of the State or States where chartered or doing business in the United States.
(6) The contract or loan agreement provides that the debtor must pay the creditor's attorney fees, unless the following limitations in § 513.4(d)(6) (i) through (iii) are included. No attorney's fee may be charged for services done by a salaried employee of the creditor.
(i) The fees will have to be paid only in the event of a default by the soldier.
(ii) The fees will have to be paid only if a lawsuit is filed.
(iii) The fees will not exceed 20 percent of the amount found due.
(7) A penalty for prepayment has been charged.
(8) A charge has been made for an insurance premium without satisfactory proof of—
(i) A policy or insurance certificate having been issued.
(ii) Delivery of a policy or certificate to the soldier within 30 days of issuance.
(9) The late charge is in excess of 5 percent of the late payment, or $5, whichever is the lesser amount. Only one late charge may be made for any late installment. Late charges will not be made where an allotment has been timely filed, but payment has been delayed.
(10) The creditor has not given the soldier a chance to answer a previous inquiry. (Forty-five days for those in the contiguous 48 States and the District of Columbia; 60 days for all others.)
(11) The claimant is a debt collector without a court order or a signed letter of consent by the soldier. (See § 513.1(g).)
(12) The debt is covered by an order of a bankruptcy court.
(e)
(2) The CG, USACFSC will—
(i) Cancel debt processing privileges if the queries clearly show that the creditor is—
(A) Not conforming with this regulation.
(B) Trying to make unreasonable use of the debt processing privilege.
(C) Trying to use the Army as a collection agency.
(ii) Inform commanders worldwide by electrical message that the debt processing privilege of a specific creditor has been revoked.
(iii) Inform the creditor that his or her debt processing privilege has been revoked and state the reasons for this action.
(f)
(1) Claims from private parties selling personal items (for example, car, furniture, appliances) on a one-time basis.
(2) Claims from companies or individuals giving services in which credit is given only to help the soldier (for example, utilities, milk, laundry, medical, and related services).
(3) Claims by endorsers, comakers, or lenders who intend only to help the soldier in getting credit. These claims, however, may not benefit the above through receipt of interest or otherwise.
(4) Contract for the purchase, sale, or rental of real estate.
(5) Claims in which the total unpaid amount does not exceed $50.
(6) Claims based on a revolving or open-end credit account. The account must show—
(i) The periodic interest rate and the equivalent annual rate.
(ii) The balance to which the interest is applied to compute the charge.
(7) Claims as security liens on real property (for example, a house). This does not include improvements or repairs.
(8) Attorneys representing parties under § 513.4(f) (1) through (7).
(a)
(2) After ARPERCEN verifies the status, the following officials will act as prescribed below.
(i) Chief, National Guard Bureau, Wash DC 20310-2500, for soldiers of the Army National Guard.
(ii) The area commander concerned for Ready Reservists assigned to troop program units under their control. (See AR 140-1, para 1-6.)
(iii) ARPERCEN for nonunit soldiers assigned to Control Groups of the Ready Reserve, Standby Reserve, and Retired Reserve.
(3) The officials cited in § 513.5(a)(2) will ensure that debt complaints are delivered to the person concerned, using military channels. When the complaint cannot be delivered through military channels, it will be sent to the last known mailing address of the person by certified mail, using PS Form 3811 (Return Receipt, Registered, Insured, and Certified Mail). It should be marked Return Receipt Requested—Deliver to Addressee Only. This form is available at U.S. post offices.
(4) After delivery of correspondence, the responsible official will advise the claimant—
(i) Of the date and method of delivery.
(ii) That the military department does not control the personal affairs of nonactive duty personnel. These personnel usually are in a civilian status and are not subject to military discipline. Therefore, the matter has been left to the person's discretion.
(iii) Of the person's mailing address only if the conditions in § 513.5(c) are met.
(b)
(2) ARPERCEN will return the correspondence, and all accompanying documentation, and advise the claimaint—
(i) That the person is no longer a member of the Army or the Reserve Components.
(ii) Of the date of discharge.
(iii) That the Army no longer has control or authority over the discharged personnel. Therefore, the Army can take no further action in this matter.
(iv) Of the person's mailing address only if the conditions in § 513.5(c) are met.
(c)
(1) The person consents in writing to the release of his or her address.
(2) The claimant sends a court order directing the release of the address.
(3) Any other reason that does not constitute a violation of the Privacy Act of 1974.
(d)
(i) Place correspondence in a stamped envelope with the retired person's name typed or printed on the envelope.
(ii) Place a stamped envelope in a second envelope and mail to Commander, ARPERCEN, Attn: DARP-PSE-VS, 9700 Page Boulevard, St. Louis, MO 63131-5200.
(2) ARPERCEN will forward the correspondence to the retired person, but cannot release the address per provisions of the Privacy Act of 1974.
Required Publications.
Maintenance and Dispostion of Records in TOE Units of the Active Army, the Army Reserve and the National Guard. (Cited in § 513.3(b)(2)).
Release of Information and Records from Army Files. (Cited in § 513.2(a)(3)(viii)(H)).
The Army Functional Files System. (Cited in § 513.3(b)(2)).
The Army Privacy Program. (Cited in §§ 513.1(d)(5)(iv) and 513.2(a)(3)(viii)(H)).
Unfavorable Information. (Cited in § 513.3(b) (2) and (3)).
Soldiers’ and Sailors’ Civil Relief Act. (Cited in §513.4(b)).
Credit: Master or Servant. (Cited in §§ 513.2(a)(3)(viii)(G) and 513.4(a)(4)).
Uniform Code of Military Justice. (Cited in §§ 513.1(e)(7)(iv), 513.2(a)(3)(viii)(D) and 513.3(a)(4)).
Related Publications.
A related publication is merely a source of additional information. The user does not have to read it to understand this regulation.
White House Liaison, Communications, and Inspections.
Internal Control Systems.
Legal Assistance.
Pricing for Materiel and Services.
USAR—Mission, Organization, and Training.
Credit Unions.
Control and Prevention of Abuse of Check Cashing Privileges.
Banking Service on Army Installations.
Army Reenlistment Program.
Army Community Service Program.
Family Support, Child Custody, and Paternity.
Officer Personnel (Separations).
Enlisted Personnel (Separations).
Indebtedness of Military Personnel.
Federal Reserve Board Regulation Z Truth in Lending.
Prescribed Forms.
Consent/Nonconsent to Disclose Personal Information. (Cited in §§ 513.2(a)(3)(viii) (A) and (H), and 513.2(d)(4)(iv)).
Referenced Forms.
Delay, Referral, or Follow-Up Notice.
Return Receipt, Registered, Insured, and Certified Mail.
a. In the event a contract is signed with a U.S. company in a foreign country, the lowest interest rate of the State or States in which the company is chartered or does business shall apply.
b. However, interest rates and service charges applicable to overseas military banking facilities will be established by the Department of Defense.
a. No termination charge will be made in excess of this amount. Contracts for delivery at future intervals may be terminated as to the undelivered portion.
b. The purchaser shall be chargeable only for that proportion of the total cost which the goods or services delivered bear to the total goods called for by the contract. (This is in addition to the right to rescind certain credit transactions involving a security interest in real estate provided by Pub. L. 90-321, “Truth-in-Lending Act,” section 125 (15 U.S.C. 1601 (1976)) and the Federal Reserve Board Regulation Z (12 CFR part 226 and §§ 226.3, 226.9 (1978)).
5 U.S.C. 552; 10 U.S.C. 218, 1037, 1089, 1552, 1553, 2036; 18 U.S.C. 219, 3401; 28 U.S.C. 50, 513, 515, 543; 31 U.S.C. 3729 and 41 U.S.C. 51; 42 U.S.C. 290, 2651; 43 U.S.C. 666
(a) This part prescribes policies and procedures for the following:
(1) Defensive and affirmative litigation in Federal and state civilian courts where the Army or DOD has an interest in the matter.
(2) Proceedings before Federal or state administrative bodies, such as utility rate commissions.
(3) Release of official information and testimony by DA personnel with regard to litigation.
(4) Remedies for procurement fraud and corruption.
(5) Environmental civil litigation and administrative proceedings.
(6) Proceedings before the Office of Special Counsel.
(b) This regulation does not apply to DA or DOD proceedings such as courts-martial or administrative boards.
Applicable publications and forms are listed in appendix A to this part.
(a) The Glossary contains explanations of abbreviations and terms.
(b) The masculine gender has been used throughout this regulation for simplicity and consistency. Any reference to the masculine gender is intended to include women.
(a) United States Department of Justice (DOJ). DOJ will defend litigation in domestic and foreign courts, against the United States, its agencies and instrumentalities, and employees whose official conduct is involved. The various U.S. Attorney Offices, under the oversight of the Attorney General, will conduct much of the representation.
(b) The Judge Advocate General (TJAG). Subject to the ultimate control of litigation by DOJ (including the various U.S. Attorney Offices), and to the general oversight of litigation by the Army General Counsel, TJAG is responsible for litigation in which the Army has an interest except with respect to proceedings addressed in paragraph (i) of this section, only TJAG (or Chief, Litigation Division) will communicate to DOJ the army's position with regard to settlement of a case.
(c) Assistant Judge Advocate General For Civil Law and Litigation (AJAG-CL). Responsible to TJAG for litigation issues; supervises Chief, Litigation Division.
(d) Chief, Litigation Division. Reports to AJAG-CL and is responsible for the following:
(1) Supervising litigation in which the Army has an interest.
(2) Acting for TJAG and Secretary of the Army on litigation issues, including the authority to settle or compromise cases, subject to the supervision of TJAG and AJAG-CL.
(3) Delegating cases if appropriate.
(4) Serving as primary contact with DOJ on litigation.
(5) Accepting service of process for DA and for the Secretary of the Army in his official capacity. See 32 CFR § 257.5).
(e) Special Assistant U.S. Attorneys (SAUSAs) and DOJ Special Attorneys. Army judge advocates and civilian attorneys, when appointed as SAUSAs under 28 U.S.C. 543, will represent the Army's interests in either criminal or civil matters in Federal court under the following circumstances:
(1) Felony and misdemeanor prosecutions in Federal court. Army attorneys, at the installation level, after being duly appointed (See AR 27-10), will prosecute cases, in which the Army has an interest, in Federal court. Army attorneys who prosecute criminal cases will not represent the United States in civil litigation without authorization from Chief, Litigation Division.
(2) SAUSAs for civil litigation. By assignment of TJAG and upon the approval of the U.S. Attorney, Judge Advocates will serve within a U.S. Attorney's office to represent the government in litigation in which the Army or DOD has an interest. These Judge Advocates have the same general authority and responsibility as an Assistant U.S. Attorney.
(3) Special Attorneys assigned to DOJ. By assignment of TJAG and with the concurrence of the appropriate DOJ official, Judge Advocates will work as Special Attorneys for DOJ. Special Attorneys are authorized to represent the United States in civil litigation in which the Army or DOD has an interest.
(f) Attorneys at Army activities or commands. SJAs or legal advisers, or attorneys assigned to them, will represent the United States in litigation only if authorized by this regulation or delegated authority in individual cases by the Chief, Litigation Division.
(g) Commander, U.S. Army Claims Service (USARCS). The Commander, USARCS, and USARCS attorneys, subject to AR 27-20, Chapter 4, will maintain direct liaison with DOJ in regard to administrative settlement of claims under the Federal Tort Claims Act.
(h) Chief, Contract Law Division, OTJAG. The Chief, Contract Law Division, attorneys assigned to the Contract Law Division, and other attorneys designated by the Chief, Contract Law Division, in litigation involving taxation, will represent DA in negotiation, administrative proceedings, and litigation, and maintain liaison with DOJ and other governmental authorities.
(i) Legal Representatives of the Chief of Engineers. The Office of Chief Counsel, attorneys assigned thereto, and other attorneys designated by the Chief Counsel will maintain direct liaison with DOJ and represent DA in litigation and administrative proceedings a rising from the navigation, civil works, Clean Water Act 404 permit authority, environmental response activities, and real property functions of the U.S. Army Corps of Engineers.
(j) Chief Trial Attorney, Contract Appeals Division, USALSA. The Chief Trial Attorney, attorneys assigned to the Contract Appeals Division, and attorneys designated by the Chief Trial Attorney will represent the government before the Armed Services Board of Contract Appeals and the General Services Board of Contract Appeals. They will maintain direct liaison with DOJ concerning appeals from ASBCA and GSBCA decisions. The Chief Trial Attorney has designated COE attorneys to act as trial attorneys in connection with COE contract appeals.
(k) Chief, Regulatory Law Office, USALSA. The Chief, Regulatory Law Office, attorneys assigned to the Regulatory Law Office, and other attorneys designated by the Chief, will represent DA consumer interests in regulatory matters before state and Federal administrative agencies and commissions, including but not limited to proceedings involving rates and conditions for the purchase of services for communications (except long-distance telephone), transportation, and utilities (gas, electric, water and sewer). They will maintain direct liaison with DOJ for communications, transportation, and utilities litigation.
(l) Chief, Intellectual Property Law Division, USALSA. The Chief, Intellectual Property Law Division, and the attorneys assigned thereto will represent DA in matters pertaining to patents, copyrights, and trademarks. They will maintain direct liaison with DOJ concerning intellectual property issues.
(m) Chief, Labor and Employment Law Office, OTJAG. The Chief, Labor and Employment Law Office, attorneys assigned thereto, and attorneys identified as labor counselors will represent DA in matters pertaining to labor relations, civilian personnel, and Federal labor standards enforcement before the following: Federal Labor Relations Authority; Merit Systems Protection Board; Equal Employment Opportunity Commission; Department of Labor; National Labor Relations Board; and, state workmen's compensation commissions. In the event any individual mentioned in this subparagraph intends to make a recommendation to DOJ concerning an appeal of any case to a U.S. Court of Appeals, such recommendation will first be coordinated with Litigation Division.
(n) Chief, Procurement Fraud Division, USALSA. The Chief, Procurement Fraud Division, attorneys assigned thereto, and other attorneys designated by the Chief will represent DA in all procurement fraud and corruption matters before the Army suspension and debarment authority and before any civil fraud recovery administrative body. They will maintain liaison and coordinate remedies with DOJ and other agencies in matters of procurement fraud and corruption.
(o) Chief, Environmental Law Division, USALSA. The Chief, Environmental Law Division, attorneys assigned thereto, and other attorneys designated by the Chief, ELD, will maintain direct liaison with DOJ and represent DA in all environmental and natural resources civil litigation and administrative proceedings involving missions and functions of DA, its major and subordinate commands, installations presently or previously managed by DA, and other sites or issues in which DA has a substantial interest, except as otherwise specifically provided in this part.
(p) Chief, Criminal Law Division, OTJAG. The Chief, Criminal Law Division, will have general oversight of felony and magistrate court prosecutions conducted by Army lawyers acting as Special Assistant U.S. Attorneys. (See subpart G of this part). The Chief will coordinate with DOJ and other governmental agencies concerning the overall conduct of these prosecutions.
(a) General rule. Except as authorized by TJAG, the General Counsel, the Chief of Litigation Division, or this regulation, no Army personnel will confer or correspond with DOJ concerning legal proceedings in which the Army has an interest.
(b) Exceptions. This prohibition does not preclude contact with DOJ required by the Memorandum of Understanding between DOJ and DOD relating to the investigation and prosecution of certain crimes. (See AR 27-10, para 2-7). In addition, an installation SJA or legal adviser is expected to maintain a working relationship with the U.S. Attorney in each district within his geographical area. An SJA or legal adviser should request the U.S. Attorney to advise him immediately when litigation involving DA or its personnel is served on the U.S. Attorney.
(a) General. Military personnel on active duty and DA civilian personnel will not appear as counsel before any civilian court or in any preliminary proceeding, for example, deposition, in litigation in which the Army has an interest without the prior written approval of TJAG, except under the following conditions:
(1) The appearance is authorized by this regulation.
(2) The individual is a party to the proceeding.
(3) The appearance is authorized under an expanded legal assistance program (See AR 27-3).
(4) The individual is a judge advocate assigned or detailed by TJAG to DOJ to represent the United States in civil or criminal cases, for example, a Special Assistant U.S. Attorney, or an attorney assigned to Litigation Division.
(b) Procedure. All requests for appearance as counsel will be made through Litigation Division to the Personnel, Plans and Training Office, OTJAG. Requests for DA military or civilian attorneys to appear in any civilian court or proceeding on behalf of a soldier who is also facing UCMJ action will be delivered to the SJA, legal adviser, or Regional Defense Counsel, as appropriate. The SJA or legal adviser will forward the request to Litigation Division with an evaluation of the case and recommendation. Regional Defense Counsel should send requests for USATDS counsel to Chief, USATDS, who will forward the request to Litigation Division. Privileged or otherwise sensitive client information should only be submitted through USATDS channels.
Mailing addresses for organizations referenced in this regulation are in appendix B to this part.
(a) Defined. Process is a legal document that compels a defendant in an action to appear in court or to comply with the court's demands, for example, in a civil case a summons or subpoena, or in a criminal case, a warrant for arrest, indictment, contempt order, subpoena, or summons. Service of process is the delivery of the document to a defendant to notify him of a claim or charge against him.
(b) Policy. DA personnel will follow the guidance of this chapter when civil officials attempt to serve civil or criminal process on individuals on Federal property.
(c) Procedures. Provost marshals shall ensure that installation law enforcement personnel are adequately trained to respond to situations which arise with regard to service of civil and criminal process. SJAs or legal advisers shall provide guidance to law enforcement personnel in these matters.
(a) Surrender of personnel. Guidance for surrender of military personnel to civilian law enforcement officials is in Chapter 7 of AR 630-10 and AR l90-9. Army officials will cooperate with civilian law enforcement authorities who seek the surrender of a soldier in connection with criminal charges. Special rules apply when a bail bondsman or other surety seeks custody of a soldier.
(b) Requests for witnesses or evidence in criminal proceedings. See subpart G to this part.
(a) Policy. DA officials will not prevent or evade the service or process in legal actions brought against the United States or against themselves in their official capacities. If acceptance of service of process would interfere with the performance of military duties, Army officials may designate a representative to accept service. DA personnel sued in their individual capacity should seek legal counsel concerning voluntary acceptance of process.
(b) Request for witnesses or evidence in civil proceedings. See subpart G to this part.
(c) Process of Federal courts. Subject to reasonable restrictions imposed by the commander, civil officials will be permitted to serve Federal process. (See Fed. R. Civ. P. 4, 45).
(d) Process of state courts.
(1) In areas of exclusive Federal jurisdiction that are not subject to the right to serve state process, the commander or supervisor will determine whether the individual to be served wishes to accept service voluntarily. A JA or other DA attorney will inform the individual of the legal effect of voluntary acceptance. If the individual does not desire to accept service, the party requesting service will be notified that the nature of the exclusive Federal jurisdiction precludes service by state authorities on the military installation.
(2) On Federal property where the right to serve process is reserved by or granted to the state, in areas of concurrent jurisdiction, or where the United States has only a proprietary interest, Army officials asked to facilitate service of process will initially proceed as provided in the preceding subparagraph. If the individual declines to accept service, the requesting party will be allowed to serve the process in accordance with applicable state law, subject to reasonable restrictions imposed by the commander.
(e) Process of foreign courts. A U.S. District Court may order service upon a person who resides in the judicial district of any document issued in connection with a proceeding in a foreign or international tribunal. (28 U.S.C. 1696). In addition, the U.S. State Department has the power to receive a letter rogatory issued by a foreign or international tribunal, to transmit it to a tribunal, officer or agency in the United States, and to return it after execution. (28 U.S.C. 1781). Absent a
(f) Seizure of personal property. State and Federal courts issue orders (for example, writ of attachment) authorizing a levy (seizure) of property to secure satisfaction of a judgment. DA personnel will comply with valid state or Federal court orders commanding or authorizing the seizure of private property to the same extent that state or Federal process is served.
Army Regulation 630-10 and international treaties, such as status of forces agreements, govern the service of criminal process of foreign courts and the surrender of soldiers to foreign civilian law enforcement officials.
(a) Process of foreign courts. In foreign countries service of process issued by foreign courts will be made under the law of the place of service, as modified by status of forces agreements, treaties or other agreements. In foreign areas under exclusive U.S. jurisdiction, service of process issued by foreign courts will be made under the law specified by appropriate U.S. authority.
(b) Process of Federal courts. Service of process on U.S. citizens or residents may be accomplished under the following provisions: The Hague Convention, reprinted in 28 USCA Federal Rules of Civil Procedure, following Rule 4; Fed. R. Civ. P. 4(i); 28 USC 1781 and 1783; and, the rules of the Federal court concerned. If a DA official receives a request to serve Federal process on a person overseas, he will determine if the individual wishes to accept service voluntarily. Individuals will be permitted to seek counsel. If the person will not accept service voluntarily, the party requesting service will be notified and advised to follow procedures prescribed by the law of the foreign country concerned.
(c) Process of state courts. If a DA official receives a request to serve state court process on a person overseas, he will determine if the individual wishes to accept service voluntarily. Individuals will be permitted to seek counsel. If the person will not accept service voluntarily, the party requesting service will be notified and advised to follow procedures prescribed by the law of the foreign country concerned. (See, for example, The Hague Convention, reprinted in 28 USCA Federal Rules of Civil Procedure, following Rule 4).
(d) Suits against the United States. DA personnel served with foreign civil process will notify the appropriate SJA or legal adviser, who will return the document to the issuing authority explaining the lack of authority to accept service for the United States. Service on the United States must be made upon DOJ through established diplomatic channels.
(a) Europe. For information and assistance concerning service of process of persons assigned to or accompanying U.S. Forces in Europe, contact the Foreign Law Branch, International Law Division, Office of The Judge Advocate, Headquarters U.S. Army, Europe, and Seventh Army, Unit 29351, (Heidelberg, Germany) APO AE 09014.
(b) Korea. For information and assistance concerning service of process of persons assigned to or accompanying U.S. Forces in Korea, contact Staff Judge Advocate, US Forces Korea (Seoul, Republic of Korea), APO AP 96205.
(c) Panama, Central and South America. For information and assistance concerning service of process of persons assigned to or accompanying forces in the U.S. Army Southern Command, contact Staff Judge Advocate, HQ, US Army South, Fort Clayton, Panama, APO AA 34004-5000.
The Chief, Litigation Division, shall accept service of process for Department of the Army or for the Secretary of the Army in his official capacity.
(a) Legal proceedings requiring reporting. Actions must be taken upon commencement of litigation or administrative proceedings in which the United States has an interest. Typically, the Secretary of the Army, DA, the United States, or DA personnel are named as defendant in a lawsuit or as respondent in an administrative proceeding. A nonexclusive listing of cases in which the United States has an interest include the following:
(1) Suits for damages, injunctive relief, or other action filed against the government or against DA personnel in their official capacity.
(2) Suits alleging individual liability arising from performance of official duties by DA personnel.
(3) Actions affecting DA operations or activities or which might require official action by DA personnel.
(4) Actions arising out of DA contracts, subcontracts, or purchase orders wherein the government might be required to reimburse a contractor for litigation expenses.
(5) Bankruptcy proceedings in which the United States or its instrumentalities may have an interest, including bankruptcies involving government contractors.
(b) Command and agency responsibility. Commanders and supervisors of Army units, installations, or organizations will ensure reports required by this section are promptly submitted.
(c) Reports to HQDA. Reports required by this regulation will be made telephonically or mailed to the responsible organization at DA. Appendix B to this part contains mailing addresses for these offices. Except in the situations described below, reports required by this chapter will be made to Litigation Division:
(1) Actual or potential litigation (or administrative infringement claims) involving patents, copyrights, or trademarks will be made to Intellectual Property Law Division.
(2) Reports of pending or prospective litigation involving taxation will be made to Contract Law Division.
(3) Communications, transportation, and utility services reports will be made to Regulatory Law Office.
(4) Reports involving environmental and natural resource litigation and administrative proceedings will be made to Environmental Law Division.
(5) Potential civil recovery reports in cases of procurement fraud and corruption will be made to Procurement Fraud Division.
(6) Reports involving the felony prosecution program and magistrate court prosecutions will be made to Criminal Law Division, OTJAG.
(7) Cases before the Armed Services Board of Contract Appeals and the General Services Board of Contract Appeals will be made to Contract Appeals Division.
(d) Classified information. Information required by this regulation will be submitted in an unclassified form if possible. If downgrading or declassification is not feasible, the classified material should be separated from the report and forwarded under separate cover.
(e) Other reporting requirements. Reports required by this chapter are in addition to and do not satisfy any other reporting requirement, such as the following: notifying the FBI of offenses pursuant to AR 27-10; submitting serious incident reports pursuant to AR 190-40; reporting procurement fraud or other irregularities per Defense Federal Acquisition Regulation Supplement, section 209.406-3 (48 CFR 209.406-3); reporting the exercise of criminal jurisdiction by foreign tribunals over U.S. personnel pursuant to AR 27-50; or, reporting bankruptcies per AR 37-103.
(f) Reports control exemption. The reports required herein are exempt from reports control under AR 335-15, paragraphs 3-3a(5) and 5-2e(4).
(a) Individual procedures. DA personnel served with civil or criminal process concerning a proceeding in which the United States has an interest (§ 516.15) will immediately inform their supervisor and furnish copies of
(b) Supervisory procedures. When supervisors learn that legal proceedings in which the United States has an interest have commenced, the supervisor will forward a copy of all process and pleadings, along with other readily available information, to the SJA or legal adviser. If no legal officer is available locally, the documents will be forwarded to the SJA or legal adviser of the next higher headquarters.
(a) Immediate notice to HQDA. When an SJA or legal adviser learns of litigation in which the United States has an interest, and it appears that HQDA is not aware of the action, the SJA or legal adviser will telephonically notify the responsible HQDA office. (See § 516.15(c)). Immediate notice is particularly important when litigation involves one of the following: a lawsuit against an employee in his individual capacity; a motion for a temporary restraining order or preliminary injunction; a habeas corpus proceeding; a judicial or administrative proceeding involving less than 60 days to file an answer; and, actions with possible Congressional, Secretarial, or Army Staff interest. For legal proceedings instituted in foreign tribunals, the SJA or legal adviser will also notify the major overseas commander concerned and the appropriate U.S. Embassy or Legation. A telephonic report to HQDA should include the following:
(1) Title or style of the proceeding.
(2) Full names and addresses of the parties.
(3) Tribunal in which the action is filed, date filed, docket number, when and on whom service of process was made, and date by which pleading or response is required.
(4) Nature of the action, amount claimed or relief sought.
(5) Reasons for immediate action.
(b) Transmission of process, pleadings, and related papers. Unless instructed otherwise by HQDA, the SJA or legal adviser will FAX or mail HQDA a copy of all process, pleadings, and related papers. Use of express mail or overnight delivery service is authorized.
(c) Notice to U.S. Attorney. If the legal proceeding is instituted in the United States, the SJA or legal adviser, unless instructed otherwise by HQDA, will notify the appropriate U.S. Attorney and render assistance as required.
See subpart D for procedures to follow when DA personnel, as a result of performance of official duties, are either sued in their individual capacities or face criminal charges.
(a) General. Plaintiffs may attempt to force government action or restraint in important operational matters or pending personnel actions through motions for temporary restraining orders (TRO) or preliminary injunctions (PI). Because these actions can quickly impede military functions, immediate and decisive action must be taken.
(b) Notification to HQDA and U.S. Attorney. The SJA or legal adviser will immediately notify Litigation Division or other appropriate office at HQDA when a motion for TRO or PI has been, or is about to be, filed. The SJA or legal adviser will also notify the responsible U.S. Attorney.
(c) Actions by SJA or legal adviser. The SJA or legal adviser will assist the DOJ or DA attorney responsible for the litigation. Installation attorneys or support personnel should begin accumulating relevant documentary evidence and identifying witnesses. If requested, installation attorneys will prepare a legal memorandum concerning the motion, giving particular attention to the following issues relevant to a court granting injunctive relief:
(1) Plaintiff's likelihood of success on the merits.
(2) Whether plaintiff will be irreparably harmed if injunctive relief is not granted.
(3) Harm to defendant and other parties if injunctive relief is granted.
(4) The public interest.
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(e)
SJAs or legal advisers will comply with the directives cited below concerning actual or prospective litigation involving the following types of cases:
(a) Taxation.
(1) Contractor transactions. (FAR and DFARS, 48 CFR parts 29 and 229).
(2) Army and Air Force Exchange Service (AAFES) activities. (AR 60-20).
(3) Purchase or sale of alcoholic beverages. (AR 215-2).
(4) Nonappropriated fund and related activities. (AR 215-1).
(b) Tort and contract claims, insurance and litigation involving nonappropriated fund activities. (AR 215-1).
(c) Annexation of Army lands. (AR 405-25).
(d) Communications, transportation, and utility services administrative proceedings. Any contracting officer or other Army official responsible for the acquisition of communications, transportation, utilities (gas, electric, water and sewer), or military mail services, who becomes aware of any action or proceeding of interest to the Army, will promptly refer the matter to the SJA or legal adviser, who will take the actions prescribed in § 516.17 of this part. Examples of actions requiring referral follow: new or amended rates, regulations, or conditions of service; applications for authority to discontinue or initiate service; changes in electromagnetic patterns causing adverse communications interference; or, zoning proposals affecting historic or aesthetic preservation. In addition, the SJA or legal adviser will transmit the following to Regulatory Law Office:
(1) The names and addresses of any parties intervening and the substance of their positions.
(2) Names of government users affected by any change.
(3) Copy of any proposed rates, rules, or regulations.
(4) A recommendation whether the Army should intervene in the action or proceeding. If intervention is recommended, provide a memorandum to support the recommendation.
(e) Legal proceedings overseas. Foreign communications, transportation, and utility service proceedings need not be reported. In other legal proceedings instituted in a foreign country, the SJA or legal adviser will take the actions prescribed in § 516.17 of this part.
(f) Maritime claims. Admiralty and maritime claims within the purview of Chapter 8, AR 27-20, which have been investigated and processed under AR 55-19 or other applicable regulations, will be referred to USARCS.
(g) Army and Air Force Exchange Service litigation. The SJA or legal adviser will send a copy of all documents relating to litigation against AAFES to General Counsel, AAFES, P.O. Box 660202, Dallas, TX 75266-0202.
(h) Bankruptcy. Reports of bankruptcy or insolvency proceedings shall be made in accordance with this regulation and AR 37-103.
The SJA or legal adviser will prepare a litigation report when directed by HQDA. The report will contain the following sections: Statement of Facts; Setoff or Counterclaim; Responses to Pleadings; Memorandum of Law; Witness List; and, Exhibits.
(a) Statement of Facts. Include a complete statement of the facts upon which the action and any defense thereto are based. Where possible, support facts by reference to documents or
(b) Setoff or Counterclaim. Discuss whether setoff or counterclaim exists. If so, highlight the supportive facts.
(c) Responses to Pleadings. Prepare a draft answer or other appropriate response to the pleadings. (See figure C-1, to this part). Discuss whether allegations of fact are well-founded. Refer to evidence that refutes factual allegations.
(d) Memorandum of Law. Include a brief statement of the applicable law with citations to legal authority. Discussions of local law, if applicable, should cover relevant issues such as measure of damages, scope of employment, effect of contributory negligence, or limitations upon death and survival actions. Do not unduly delay submission of a litigation report to prepare a comprehensive memorandum of law.
(e) Potential witness information. List each person having information relevant to the case and provide an office address and telephone number. If there is no objection, provide the individual's social security account number, home address, and telephone number. This is “core information” required by Executive Order No. 12778 (Civil Justice Reform). Finally, summarize the information or potential testimony that each person listed could provide.
(f) Exhibits.
(1) Attach a copy of all relevant documents. This is “core information” required by Executive Order No. 12778 (Civil Justice Reform). Unless otherwise directed by HQDA, each exhibit should be tabbed and internally paginated. References to exhibits in the litigation report should be to page numbers of particular exhibits.
(2) Copies of relevant reports of claims officers, investigating officers, boards or similar data should be attached, although such reports will not obviate the requirement for preparation of a complete litigation report.
(3) Prepare an index of tabs and exhibits.
(4) Where a relevant document has been released pursuant to a FOIA request, provide a copy of the response, or otherwise identify the requestor and the records released.
(g) Distribution and number of copies. Unless HQDA directs otherwise, SJAs or legal advisers will mail (first class) an original and one copy of the litigation report to the responsible HQDA office (See § 516.15 of this part) and one copy to the U.S. Attorney's Office handling the case. If possible, record the litigation report onto a magnetic diskette, using either WordPerfect, Enable, or ACSII, and send it to Litigation Division.
Because documents needed for litigation or administrative proceedings are subject to routine destruction, the SJA or legal adviser will ensure that all relevant documents are preserved.
(a)
(b)
(c)
(a) General. Under the provisions of 28 U.S.C. l746, whenever any matter is required or permitted to be established or proven by a sworn statement, oath or affidavit, such matter may also be established or proven by an unsworn written declaration under penalty of perjury. Because such declaration does not require a notary or other official to administer oaths, individuals preparing statements for use in litigation should consider using this format. (See figure C-3, appendix G, of this part).
(b) When executed within the United States. Place the following at the end of the witness statement:
I declare under penalty of perjury that the foregoing is true and correct. (28 U.S.C. 1746).
(c) When executed outside the United States. Place the following at the end of the witness statement:
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. (28 U.S.C. 1746).
This subpart guidance when DA personnel, as a result of the performance of their official duties, are either sued in their personal capacity, or are charged in a criminal proceeding. Examples of civil actions alleging individual liability include the following: a medical malpractice lawsuit against health care providers; suits resulting from motor vehicle accidents; constitutional torts; or, common law torts such as assault, libel, or intentional infliction of emotional distress. Likewise, state or Federal criminal charges can arise from the performance of official duties, including environmental crimes or motor vehicle accidents.
(a) General. Commanders, supervisors, and SJAs or legal advisers will give highest priority to compliance with the requirements of this chapter with regard to current or former DA personnel who face criminal charges or civil litigation in their individual capacity as a result of performance of their official duties.
(b) DOJ policy on representation. If in the best interest of the United States, upon request of the individual concerned, and upon certification by his agency that he was acting within the scope of his employment, DOJ may represent present and former DA personnel sued individually as a result of actions taken within the scope of their employment. Representation can be declined for a variety of reasons, including but not limited to the following: the employee was not acting within the scope of his office; there is a conflict of interest; or, actions were not taken in a good faith effort to conform to law.
(a) Federal Tort Claims Act (FTCA). (28 U.S.C. 1346(b), 2671-2680). A waiver of sovereign immunity which, with certain exceptions, makes the United States liable for tort claims in the same manner as a private individual.
(b) Federal Employees Liability Reform and Tort Compensation Act of l988 (FELRTCA or the Westfall Act, Pub. L. No. 100-694, 102 Stat. 4563 (1988) (codified at and amending 28 U.S.C. 2671, 2674, 2679). FELRTCA, by amending the Federal Tort Claims Act, makes the FTCA the exclusive remedy for common law tort claims arising from actions taken by Federal employees acting within the scope of employment. The law was passed to eliminate problems caused by
(c) 10 U.S.C. 1089 (Defense of certain suits arising out of medical malpractice). This provision, commonly referred to as the Gonzales Act, makes the FTCA the exclusive remedy for
(d) 28 CFR 50.15 (Representation of Federal officials and employees by Department of Justice attorneys [. . .] in civil, criminal, and congressional proceedings in which Federal employees are sued, subpoenaed, or charged in their individual capacities). These DOJ regulations set out the policy and procedures for requesting representation in individual liability cases. See also 28 CFR part 15 (Defense of Certain Suits Against Federal Employees, etc.).
(e) 28 CFR 50.16 (Representation of Federal employees by private counsel at Federal expense).
(a) SJA or legal adviser procedures. When an SJA or legal adviser learns of a criminal charge or of a lawsuit alleging individual liability against DA personnel as a result of performance of official duties, he will take the following actions:
(1) Immediately notify Litigation Division and the appropriate U.S. Attorney and FAX or express deliver copies of process and pleadings to each office. Where time for response is limited, request that the U.S. Attorney either petition the court for an extension of time, or provide temporary counsel and representation pending formal approval.
(2) Investigate whether the employee was acting within the scope of his office or employment. Obtain, if possible, statements from the defendant, supervisors, and witnesses.
(3) Advise the individual defendant of the rights and conditions set out in 28 CFR 50.15, which include the following:
(i) His right to request representation by a DOJ attorney and, in appropriate cases, certification that he was acting within the scope of employment. (See 28 U.S.C. 2679; 28 CFR 50.15).
(ii) The right to request private counsel at government expense, subject to the availability of funds. (See 28 CFR 50.16).
(iii) That the United States is not obligated to pay or indemnify defendant for any judgment rendered against him in his individual capacity.
(4) If the defendant desires certification or DOJ representation, have him sign a request. (See figure D-1, appendix G, of this part). Obtain a signed scope of employment statement from the defendant's supervisor. (Figure D-2, appendix G, of this part).
(5) Prepare a report with, at a minimum, the following information: facts surrounding the incident for which defendant is being sued and those relating to scope of employment; the SJA's or legal adviser's conclusions concerning scope of employment; and, a recommendation whether certification by the Attorney General or representation by a DOJ attorney should be granted.
(6) In cases involving National Guard personnel, address also the following: whether defendant was acting in a state (Title 32 U.S.C.) or Federal (Title 10 U.S.C.) capacity during relevant periods (include orders); if defendant was acting under state authority, is it nevertheless in the interest of the United States to represent the individual; any impact on policies or practices of DA, the National Guard Bureau, or DOD; whether the relief requested can be granted only by a Federal officer or agency; and, whether Federal law or regulation required actions by state officials.
(7) Send the report, request for representation, and scope of employment statements to Chief, Litigation Division.
(b) Chief, Litigation Division, procedures. The Chief, Litigation Division, will review the report and evidence regarding representation and scope of employment and will determine whether certification and representation are appropriate. He will send his recommendation to the appropriate U.S. Attorney or office within DOJ. The Chief, Litigation Division, will notify the defendant of DOJ's decision.
(a) General. DA personnel, sued in their individual capacity or facing criminal charges as a result of performance of official duties, have no right to employ a private sector counsel at government expense or to expect
(b) Individual request procedures. The individual will prepare a request that private counsel be employed for him at government expense. The request must also contain the following statement: “I understand that the United States is not required to employ private counsel on my behalf, and that I may be responsible for expenses incurred prior to proper authorization by the Department of the Army or the Department of Justice.”
(c) Supervisory and legal adviser procedures. The request will be submitted through the individual's supervisors, who will make a recommendation and forward the packet to the local SJA or legal adviser. The SJA or legal adviser will prepare his own recommendation and forward the matter to Litigation Division.
(d) Chief, Litigation Division, procedures. If the Chief, Litigation Division, determines that the request for private counsel is meritorious, he will prepare an appropriate recommendation and forward the packet to Civil Division, DOJ, for final approval.
(e) Special actions in foreign countries. Employment of private counsel in foreign proceedings is governed by AR 27-50 (Status of Forces Policies, Procedures, and Information). Under the authority of 10 U.S.C. 1037, soldiers, as well as employees or those accompanying the armed forces overseas, may be granted individual counsel in civil and criminal proceedings, under the criteria of AR 27-50.
(a)
(b)
(c)
(d)
(a) Authorities.
(1) Federal Medical Care Recovery Act (42 U.S.C. 2651). The act provides for the recovery of medical care expenses incurred because of a tortfeasor's actions.
(2) Federal Claims Collection Act (31 U.S.C. 3711). The act provides for the collection of claims for money or property arising from the activities of Federal agencies.
(3) Third-party Collection Program (10 U.S.C. 1095). The statute provides for collection of reasonable costs of health-care services, provided in facilities of the uniformed services to covered beneficiaries, from private insurers or third-party payers. In accordance with DOD Instruction 6010.15, “Third Party Collection (TPC) Program,” 7 March 1991, the authority to settle or waive a DOD claim under the act is delegated to TJAG or to his designee.
(4) Executive Order No. 12778, (56 FR 55195; 3 CFR, 1991 Comp. p. 359), Civil Justice Reform. This order establishes several requirements on Federal agencies involved in litigation or contemplating filing an action on behalf of the United States.
(5) AR 27-20, Claims. Chapter l4 (Affirmative Claims) contains comprehensive guidance for Recovery Judge Advocates (RJAs) in the administrative determination, assertion, collection, settlement, and waiver of claims in favor of the U.S. for property damage and for medical care claims.
(b) Duties and Procedures. In accordance with Chapter 14, AR 27-20, Commander, USARCS, has supervisory responsibility over the administrative processing of property and medical care claims by RJAs. The Commander, U.S. Army Health Services Command (HSC), has supervisory responsibility over the Third Party Collection Program (TPCP). The HSC TPCP Implementation Plan effects DOD Instruction 6010.15 and establishes procedures for processing TPC claims. Litigation Division, in conjunction with DOJ and U.S. Attorneys, is responsible for pursuing, through litigation, claims not resolved administratively. DOJ is ultimately responsible for initiating litigation for the United States. (28 U.S.C. 515).
(c) Assertion of claims on behalf of the United States by private attorneys. The Army incurs potentially recoverable expenses when it provides medical care to soldiers or dependents injured by tortfeasors (for example, a soldier is hospitalized after an automobile accident). When injured personnel employ a private attorney to sue the tortfeasor, it may be in the Government's best interests to enter into an agreement with the private attorney to include the Army's medical care claim.
(d) Statute of limitations. There is a three year statute of limitations for actions in favor of the U.S. for money damages founded upon tort. (28 U.S.C. 2415(b)). Limitations periods can vary, however, depending upon the theory of liability and the jurisdiction involved. RJAs must be alert to the applicable period of limitations. A case referred for litigation should arrive at Litigation Division at least 6 months before the expiration of the limitations period.
(e) Reporting of recoveries. Amounts recovered through litigation will be reported to USARCS by Tort Branch, Litigation Division, or, where referred directly to a U.S. Attorney or the Nationwide Central Intake Facility (NCIF), by the responsible RJA.
(a)
(1) The claim exceeds $5,000;
(2) It involves collection from the injured party or his attorney;
(3) The claim raises an important question of policy; or,
(4) There is potential for a significant precedent.
(b)
(c)
(a)
(1) A litigation report (See § 516.23 of this part) that demonstrates a factual basis for the claim and a theory of recovery under applicable state law. (See Fed. R. Civ. P. 11)
(2) Copies of all medical records and bills reflecting the reasonable value of the medical care furnished to the injured party, including DA Form 2631-R (Medical Care-Third Party Liability Notification), and DA Form 3154 (MSA Invoice and Receipt). These documents should be authenticated as necessary on a DA Form 4.
(3) Copies of all documents necessary to establish the value of lost or damaged property.
(b)
(a)
(b)
(a)
(b)
This subpart contains guidance, policies, and procedures applicable to all environmental and natural resources civil litigation and administrative proceedings involving missions and functions of DA, its major and subordinate commands, all installations presently or previously managed by DA, and all other sites or issues in which DA has a substantial interest. In this chapter,
(a) Water rights. Environmental Law Division will conduct direct liaison with DOJ and will represent DA in State and Federal litigation relating to availability and allocation of surface and ground water and the establishment and protection of water rights for Army military installations and activities. This will include litigation in State general adjudications of water rights under the McCarran Amendment, 43 U.S.C. 666, for Army military installations and activities. Such litigation relating solely to COE civil works projects or activities will be handled by attorneys under the technical supervision of the Chief Counsel, COE. With respect to any general adjudication which could affect the civil works or real property functions of COE, The Judge Advocate General, acting through the Chief, Environmental Law Division, and Chief Counsel, COE, will jointly determine which office should maintain primary direct liaison with DOJ and will scope and execute appropriate coordination with each other and with the General Counsel with respect to that litigation.
(b) Navigable waters. The Chief Counsel, COE, will conduct direct liaison with DOJ and represent DA in civil litigation involving activities in or across navigable waters of the United States or other activities regulated under the Rivers and Harbors Act of 1899, 33 U.S.C. 401 et seq.
(c) Waters of the United States. The Chief Counsel, COE, will conduct direct liaison with DOJ and represent DA in civil litigation involving The Clean Water Act section 404 (See 33 U.S.C. 1344) permit authority of COE over the discharge of dredged or fill material into waters of the United States.
(d) Enforcement. Environmental Law Division will conduct direct liaison with DOJ and represent DA in all civil litigation involving citizen or State enforcement of applicable State, Federal and local requirements respecting the control or abatement of pollution and involving the management of hazardous wastes, with respect to the missions and functions of, and Federal facilities owned or controlled by, DA, except for civil works facilities.
(e) Environmental response.
(1) Except as provided in (a)(2) of this section. Environmental Law Division will conduct direct liaison with DOJ and represent DA in all civil litigation seeking declaratory or injunctive relief or involving claims of Army liability for the costs of response at Federal facilities currently owned or controlled by DA and at other sites where the Army is a potentially responsible party.
(2) The Chief Counsel, COE, will conduct direct liaison with DOJ and represent DA in all civil litigation seeking declaratory or injunctive relief or involving claims of Army liability for the costs of response at civil works facilities, at former defense sites or at other sites where the Army is a potentially responsible party due to the response actions of the COE or its contractors.
(f) Fish and Wildlife, and Plants. Environmental Law Division will conduct direct liaison with DOJ and represent DA in civil litigation involving citizen or State enforcement of applicable State, Federal, and local laws governing conservation of plant, fish, and wildlife resources at Federal facilities owned or controlled by DA, except that such litigation relating solely to the real estate, civil works, navigation and Clean Water Act section 404 (See 33 U.S.C. 1344) permit functions and activities of the COE will be handled by attorneys under the technical supervision of the Chief Counsel, COE.
(g) Toxic torts.
(1) Except as otherwise provided in this part, Environmental Law Division will conduct direct liaison with DOJ and represent DA in all civil litigation involving claims of tort liability for exposure to environmental contamination emanating from Federal facilities owned or controlled by DA.
(2) Litigation Division will conduct liaison with DOJ and represent DA in civil litigation involving claims of tort liability for singular and discrete incidents of exposure to environmental contamination emanating from any Federal facility owned or controlled by DA.
(3) The Chief Counsel, COE, will conduct direct liaison with DOJ and will represent DA in civil litigation involving claims of tort liability for exposure to environmental contamination (including singular and discrete incidents) emanating from any civil works activities under the jurisdiction of the Secretary of the Army.
(4) The Chief Counsel, COE, and Chief, Environmental Law Division, will confer and jointly determine which office will conduct direct liaison with DOJ and represent DA in civil litigation involving all other claims of toxic tort liability.
(a) Introduction. This subpart implements DOD Directive 5405.2 (See appendix C to this part and 32 CFR part 97). It governs the release of official information and the appearance of present and former DA personnel as witnesses in response to requests for interviews, notices of depositions, subpoenas, and other requests or orders related to judicial or quasi-judicial proceedings. Requests for records, if not in the nature of legal process, should be processed under AR 25-55 (The Department of the Army Freedom of Information Act Program) or AR 340-21 (The Army Privacy Program). This subpart pertains to any request for witnesses, documents, or information for all types of litigation, including requests by private litigants, requests by State or U.S. attorneys, requests by foreign officials or tribunals, subpoenas for records or testimony, notices of depositions, interview requests, civil cases, criminal proceedings, private litigation, or litigation in which the United States has an interest.
(b) Definitions. (See appendix F to this part).
(a)
(b)
(c)
(d)
(e)
(f)
(1) Furnish the court or tribunal a copy of this regulation (32 CFR part 516, subpart G) and applicable case law
(2) Inform the court or tribunal that the requesting individual has not complied with this Chapter, as set out in 32 CFR 97 & 516, or that the subpoena or order is being reviewed;
(3) Seek to stay the subpoena or order pending the requestor's compliance with this chapter or final determination by Litigation Division; and,
(4) If the court or other tribunal declines to quash or stay the subpoena or order, inform Litigation Division immediately so a decision can be made whether to challenge the subpoena or order. If Litigation Division decides not to challenge the subpoena or order, the affected personnel will comply with the subpoena or order. If Litigation Division decides to challenge the subpoena or order, it will direct the affected personnel to respectfully decline to comply with the subpoena or order. (See United States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951)).
(g)
(h)
(a)
(1) Those involving a case assigned to another branch of Litigation Division will be submitted to that branch (appendix B to this part).
(2) Those involving affirmative litigation (for example, medical care recovery or Army property damage or loss cases) under subpart E will be submitted to Tort Branch.
(3) Those involving patents, copyrights, privately developed technical information, or trademarks will be submitted to Intellectual Property Law Division.
(4) Those involving taxation will be submitted to Contract Law Division.
(5) Those involving communication, transportation, or utility service proceedings will be submitted to the Regulatory Law Office.
(6) Those involving environmental matters will be submitted to the Environmental Law Division.
(7) Those involving contract appeals cases before the ASBCA will be submitted to the Contract Appeals Division.
(8) Those involving procurement fraud, including Qui Tam cases, will be submitted to the Procurement Fraud Division.
(b)
(1) Parties (named or prospective) to the proceeding, their attorneys, and case number, where appropriate.
(2) Party making the request (if a subpoena, indicate moving party) and his attorney.
(3) Name of tribunal in which the proceeding is pending.
(4) Nature of the proceeding.
(5) Date of receipt of request or date and place of service of subpoena.
(6) Name, grade, position, and organization of person receiving request or served with subpoena.
(7) Date, time, and place designated in request or subpoena for production of information or appearance of witness.
(8) Nature of information sought or document requested, and place where document is maintained.
(9) A copy of each document requested. Contact the appropriate office at HQDA if this would be burdensome and unnecessary to a decision whether to release, redact, or withhold a particular document.
(10) Name of requested witness, expected testimony, requested appearance time and date, and whether witness is reasonably available.
(11) Analysis of the problem with recommendations.
(a)
(b)
(1) Records maintained in U.S. Army Engineer Districts and Divisions will be forwarded to HQDA(CECC-K), WASH DC 20314-1000.
(2) All other records will be forwarded to the appropriate office at HQDA (See § 516.42).
(c)
(d)
(a)
(b)
(1) Has the requester complied with DA policy governing the release of official documents in § 516.41(d) of this part.
(2) Is the request unduly burdensome or otherwise inappropriate under the applicable court rules?
(3) Is the disclosure appropriate under the rules of procedure governing the matter in which the request arose?
(4) Would the disclosure violate a statute, executive order, regulation, or directive?
(5) Is the disclosure appropriate under the relevant substantive law concerning privilege?
(6) Would the disclosure reveal information properly classified pursuant to the DOD Information Security Program under AR 380-5, unclassified technical data withheld from public release pursuant to 32 CFR § 250, or other matters exempt from unrestricted disclosure?
(7) Would disclosure interfere with ongoing enforcement proceedings, compromise constitutional rights, reveal the identity of an intelligence source or confidential informant, disclose trade secrets or confidential commercial or financial information, or, otherwise be inappropriate under the circumstances?
(8) Would the disclosure violate any person's expectation of confidentiality or privacy?
If the deciding official, after considering the factors set forth in § 536.44,
(a) General. If the deciding official, after considering the factors in § 516.44, determines that all or part of requested official records should not be released, he will promptly communicate directly with the attorney or individual who caused the issuance of the subpoena, order, or request and seek to resolve the matter informally. If the subpoena or order is invalid, he should explain the basis of the invalidity. The deciding official should also explain why the records requested are privileged from release. The deciding official should attempt to obtain the agreement of the requester to withdraw the subpoena, order, or request or to modify the subpoena, order, or request so that it pertains only to records which may be released. (See figure G-1, appendix G, of this part.)
(b) Information protected by the Privacy Act.
(1) A subpoena duces tecum or other legal process signed by an attorney or clerk of court for records protected by the Privacy Act, 5 U.S.C. 552a, does not justify the release of the protected records. The deciding official should explain to the requester that the Privacy Act precludes disclosure of records in a system of records without the written consent of the subject of the records or “pursuant to the order of a court of competent jurisdiction.” (See 5 U.S.C. 552a(b)(11)). An “order of the court” for the purpose of subsection 5 U.S.C. 552a(b)(11) is an order or writ requiring the production of the records, signed by a judge or magistrate.
(2) Unclassified records otherwise privileged from release under 5 U.S.C. 552a may be released to the court under either of the following conditions:
(i) The subpoena is accompanied by an order signed by a judge or magistrate, or such order is separately served, that orders the person to whom the records pertain to release the specific records, or that orders copies of the records be delivered to the clerk of court, and indicates that the court has determined the materiality of the records and the nonavailability of a claim of privilege.
(ii) The clerk of the court is empowered by local statute or practice to receive the records under seal subject to request that they be withheld from the parties until the court determines whether the records are material to the issues and until any question of privilege is resolved.
(iii) Subpoenas for alcohol abuse or drug abuse treatment records must be processed under 42 U.S.C. 290dd-3 and 290ee-3, and Public Health Service regulations published at 42 CFR 2.1—2.67.
(iv) Upon request, SJAs and legal advisers may furnish to the attorney for the injured party or the tortfeasor's attorney or insurance company a copy of the narrative summary of medical care that relates to a claim under subpart E of this part. If additional medical records are requested, only those that directly pertain to the pending action will be furnished. If furnishing copies of medical records would prejudice the cause of action, the matter will be reported to Litigation Division.
(c) Referral to Litigation Division. If the SJA or legal adviser is not able to resolve a request for Army records informally, he should contact Litigation Division.
(1) Litigation Division may respond to subpoenas or orders for records privileged from release by informing the local U.S. Attorney about the subpoena and requesting that office file a motion to quash the subpoena or a motion for a protective order. The records privileged from release should be retained by the custodian pending the court's ruling upon the government's motion.
(2) When a motion to quash or for a protective order is not filed, or the motion is unsuccessful, and the appropriate DA official has determined that no further efforts will be made to protect the records, copies of the records (authenticated if necessary) will be submitted to the court (or to the clerk of court) in response to the subpoena or order.
(d) Classified and privileged materials. Requests from DOJ, U.S. Attorneys, or attorneys for other governmental entities for records which are
(a)
(1) The testimony involves official information. (See appendix F—Glossary to this part).
(2) The witness is to testify as an expert.
(3) The absence of the witness from duty will seriously interfere with the accomplishment of a military mission.
(b)
(c)
(d)
(a) In instances involving § 516.47(a)(1), the matter will be referred to the SJA or legal adviser serving the organization of the individual whose testimony is requested, or to HQDA pursuant to § 516.47(a). The deciding official will determine whether to release the information sought under the principles established in § 516.44. If funding by the United States is requested, see § 516.55(d).
(b) If the deciding official determines that the information may be released, the individual will be permitted to be interviewed, deposed, or to appear as a witness in court provided such interview or appearance is consistent with the requirements of §§ 516.49 and 516.50. (See, for example, figure G-2, appendix G, to this part). A JA or DA civilian attorney should be present during any interview or testimony to act as legal representative of the Army. If a question seeks information not previously authorized for release, the legal representative will advise the witness not to answer. If necessary to avoid release of the information, the legal representative will advise the witness to terminate the interview or deposition, or in the case of testimony in court, advise the judge that DOD directives and Army regulations preclude the witness from answering without HQDA approval. Every effort should be made, however, to substitute releasable information and to continue the interview or testimony.
(a)
(b)
(c)
(1) The litigation involves patients they have treated, investigations they have made, laboratory tests they have conducted, or other actions taken in the regular course of their duties.
(2) They limit their testimony to factual matters such as the following: their observations of the patient or other operative facts; the treatment prescribed or corrective action taken; course of recovery or steps required for repair of damage suffered; and, contemplated future treatment.
(3) Their testimony may not extend to expert or opinion testimony, to hypothetical questions, or to a prognosis.
(d)
(e)
If the absence of a witness from duty will seriously interfere with the accomplishment of a military mission, the SJA or legal adviser will advise the requesting party and attempt to make alternative arrangements. If these efforts fail, the SJA or legal adviser will refer the matter to Litigation Division.
(a) Referral to a deciding official. Requests, subpoenas, or orders for official information, interviews or testimony of present or former DA personnel in litigation or potential litigation in which the United States has an interest, including requests from DOJ, will be resolved by the SJA or legal adviser pursuant to the principles of this subpart. Litigation Division will be consulted on issues that cannot be resolved by the SJA or legal adviser.
(b) Reassignment of witnesses. When requested by the U.S. Attorney, the SJA or legal adviser will ensure that no witnesses are reassigned from the judicial district without advising the DOJ attorney. If a witness is vital to the government's case and trial is imminent, the SJA or legal adviser should make informal arrangements to retain the witness in the command until trial. If this is not feasible, or if a satisfactory arrangement cannot be reached with the DOJ attorney, the SJA or legal adviser should notify Litigation Division.
Requests for present or former DA personnel as expert or opinion witnesses from DOJ or other attorneys representing the United States will be referred to Litigation Division unless the request involves a matter that has been delegated by Litigation Division to an SJA or legal adviser. In no event, may present or former DA personnel furnish expert or opinion testimony in a case in which the United States has an interest for a party whose interests are adverse to the interests of the United States.
News media inquiries regarding litigation or potential litigation will be referred to the appropriate public affairs office. DA personnel will not comment on any matter presently or potentially in litigation without proper clearance. Local public affairs officers will refer press inquiries to HQDA
(a) Status of witness. A military member authorized to appear as a witness for the United States, including those authorized to appear under § 516.55(d), will be placed on temporary duty. If USAR or NG personnel are requested as witnesses for the United States, and if their testimony arises from their active duty service, they should be placed on active duty to testify. The status of a civilian employee will be determined under Federal Personnel Manual 630, subchapter 10. DA personnel who appear as necessary witnesses for a party asserting the government's claim for medical care expenses are witnesses for the United States.
(b) Travel arrangements. Travel arrangements for witnesses for the United States normally are made by DOJ through Litigation Division for other than local travel. Litigation Division will issue instructions for this travel, including fund citation, to the appropriate commander. A U.S. Attorney, or an attorney asserting the government's medical care claim under subpart E, may make arrangements for local travel through the SJA or legal adviser for attendance of a witness who is stationed at an installation within the same judicial district, or not more than 100 miles from the place where testifying. Other requests, including those under § 516.55(d), will be referred to Litigation Division. The instructions from Litigation Division, or the request from the U.S. Attorney or the attorney asserting the government's claim, will serve as a basis for the issuance of appropriate travel orders by the local commander.
(c) Travel and per diem expenses. The witness’ commander or supervisor should ensure the witness has sufficient funds to defray expenses. The SJA or legal adviser will provide assistance.
(1) Where local travel is performed at the request of a U.S. Attorney and the testimony does not involve information acquired in the performance of duties, transportation arrangements and any per diem expenses are the responsibility of the U.S. Attorney.
(2) An attorney asserting the government's medical care or property claim may be required to advance local travel expense money to the witness requested and to include these in recoverable costs where the government's claim is not large enough to justify expenditures of government travel funds.
(3) Other local travel and per diem expense for cases involving Army activities or claims are proper expenses of the command issuing the orders.
(4) Litigation Division will furnish travel expense and per diem funds for other than local travel and will receive reimbursement from DOJ or other government agencies as appropriate.
(a)
(b)
(c)
(d)
(a)
(1) Whether a consideration listed in § 516.47(a)(1) through (a)(3) applies.
(2) Whether the information requested is releasable under the principles established in § 516.43 through § 516.46.
(3) Whether the approval of the American Embassy should be obtained because the person is attached to the Embassy staff or a question of diplomatic immunity may be involved.
(b)
(c)
(d)
This subpart delineates the policies, procedures, and responsibilities for reporting and resolving allegations of procurement fraud or irregularities (PFI) within DA. It implements DOD Directive 7050.5. (See appendix D to this part.)
(a) Procurement fraud and irregularities will be promptly and thoroughly addressed whenever encountered. Reports will be initiated in a timely manner and will be supplemented as appropriate.
(b) Investigations will be monitored to see that interim corrective action is taken and that final action is taken as expeditiously as possible.
(c) This regulation establishes the Procurement Fraud Division (PFD), U.S. Army Legal Services Agency, as the single centralized organization within the Army to coordinate and monitor criminal, civil, contractual, and administrative remedies in significant cases of fraud or corruption relating to Army procurement.
(d) The key elements of the Army's procurement fraud program follow:
(e) Remedies for PFI will be pursued in a timely manner and properly coordinated with other agencies. Every effort will be made to support criminal investigation and prosecution of fraudulent activity.
(f) A specific remedies plan will be formulated for each significant case of fraud or corruption involving procurement.
(g) Coordination on the status and disposition of cases will be maintained between PFD, OTJAG, PFI Coordinators at MACOMs, and Procurement Fraud Advisers at subordinate commands. Coordination of procurement and personnel actions will be accomplished with investigative agencies as required by those agencies.
(h) Training which relates to fraud and corruption in the procurement process is a significant element of this program.
(a) TJAG has overall responsibility for the coordination of remedies in procurement fraud and corruption within the Army. This responsibility has been delegated to PFD. Functions of PFD will include the following:
(1) Serving as the single centralized organization in the Army to monitor the status of, and ensure the coordination of, criminal, civil, contractual, and administrative remedies for each significant case of fraud or corruption.
(2) Receiving reports of procurement fraud and corruption from any source including, but not limited to the following: DOD criminal investigative organizations; audit agencies; contracting officers; inspectors general of the executive branch; correspondence from the public; and, commanders. This provision does not repeal any other reporting requirement but establishes PFD as a recipient of PFI information at the earliest possible time.
(3) Establishing a monitoring system within OTJAG for all cases of fraud and corruption that relate to Army procurement.
(4) Discussing regularly with the U.S. Army Criminal Investigation Command (USACIDC) or the assigned DOD criminal investigative organization the current status of significant fraud or corruption cases and their coordination with prosecutive authorities.
(5) Ensuring that all criminal, civil, contractual, and administrative remedies are considered in each significant fraud or corruption case and that timely and applicable remedies are undertaken by commanders, contracting officers, and suspension and debarment authorities. For example, consideration of suspension or debarment of a contractor or individual should normally be initiated within 30 days of indictment or conviction.
(6) Coordinating, as appropriate, with other DOD components affected by a significant fraud or corruption case being monitored by the Army.
(7) Developing, with the responsible DOD investigative organization, Procurement Fraud Coordinators and Advisers, and other involved agencies, a specific comprehensive remedies plan for each significant fraud or corruption case.
(8) Coordinating remedies with DOJ. In the case of ongoing criminal investigations, coordinate remedies through, or with the prior knowledge of, the DOD criminal investigative organization responsible for the case.
(9) In significant fraud or corruption cases, identifying and documenting any known adverse impact on a DOD mission, and including the information in any remedies plan.
(10) Providing the appropriate DOD criminal investigative organization with information concerning final remedies as a result of an investigation by that organization.
(11) Receiving notifications from criminal investigative agencies concerning substituted, defective, and counterfeit hardware in which a serious hazard to health, safety or operational readiness is indicated; ensuring that appropriate safety, procurement and program officials are informed in
(b) The Commanding General, USACIDC, will take the following actions:
(1) Notify PFD of any investigations involving fraud or corruption related to procurement activities.
(2) Notify other DOD component criminal investigative organizations when investigations involving fraud or corruption affect that component. This includes evidence of fraud by a contractor, subcontractor, or employee of either, on current or past contracts with, or affecting, that component.
(3) Notify the Defense Investigative Service of any investigations that develop evidence which affects DOD cleared industrial facilities or personnel.
(4) Determine the effect on any ongoing investigations or prosecutions of any criminal, civil, contractual, or administrative actions being considered by a centralized organization and advise of any adverse impact.
(5) Promptly provide commanders, contracting officers, Procurement Fraud Advisers, and suspension and debarment authorities, when needed to allow consideration of applicable remedies, any court records, documents, or other evidence of fraud or corruption from ongoing or completed criminal investigations. In cases of indictment or conviction of a contractor or individual, the information will be provided in time for initiation, if appropriate, of suspension or debarment action within 30 days of the indictment or conviction.
(6) Provide prosecutive authorities and centralized organizations with timely information on the adverse impact on a DOD mission of fraud or corruption that relates to DOD procurement activities. This information will be obtained from individuals such as the head of the contracting agency, appropriate commanders, and staff agencies. Some examples of adverse impact on a DOD mission are endangerment of personnel or property, monetary loss, compromise of the procurement process, or reduction or loss of mission readiness.
(7) Discuss regularly with Procurement Fraud Advisers the status of significant investigations of fraud or corruption and their coordination with prosecutive authorities and provide documents and reports resulting from the investigations.
(c) Commanders of service schools conducting procurement or procurement-related training (such as The Judge Advocate General's School, the U.S. Military Police School, and the U.S. Army Logistics Management Center) will ensure the following:
(1) All procurement and procurement-related training includes a period of instruction on fraud and corruption in the procurement process. The length of the period of instruction will be appropriate to the duration and nature of the training.
(2) Training materials are developed to support that training.
(3) Training materials developed will be sent to MACOM PFI Coordinators.
(d) MACOM commanders and heads of contracting activities will ensure the following:
(1) Substantial indications of fraud or corruption relating to Army contracts or Army administered contracts are reported promptly to the supporting USACIDC element and the Procurement Fraud Division.
(2) Information provided includes reports by contracting officers under DFARS 209.406-3.
(a) Command counsel and SJAs at MACOMs will develop a program and appoint an attorney as PFI Coordinator for their command. Chief counsel and SJAs at commands with procurement advisory responsibility will appoint an attorney as a Procurement Fraud Adviser (PFA) to manage the
(b) Provision may be made for activities not having sufficient attorney assets to obtain assistance from nearby installations that have a PFA.
(c) Reports and recommendations will be transmitted through command channels to the PFI coordinator for the affected MACOM.
(d) Command counsel, chief counsel, and SJAs will exercise supervisory authority to ensure effective operation of the fraud program and coordination of remedies within their organizations.
(e) The MACOM PFI Coordinator will have overall responsibility for the design and implementation of the MACOM's procurement fraud program.
(f) PFAs and PFI Coordinators will coordinate with the appropriate local CID or Defense Criminal Investigative Service (DCIS) activity to assure the prompt notification and coordination of all Procurement Fraud cases.
(a) Typical fraud indicators during the procurement cycle are listed in figure D-1, appendix G, to this part. The mere presence of one or more of these indicators does not, by itself, require reporting under paragraph b of this section. Reports should be submitted if there is a reasonable suspicion of procurement fraud or irregularity or the procuring agency refers the matter for investigation.
(b) “Procurement Flash Reports” will be transmitted by FAX directly to PFD whenever a PFI Coordinator or PFA receives notice of a PFI involving the Army. To facilitate filing, a separate sheet should be used for each case reported. These reports will provide a succinct summary of the following available information:
(1) Name and address of contractor.
(2) Known subsidiaries of parent firms.
(3) Contracts involved in potential fraud.
(4) Nature of potential fraud.
(5) Summary of pertinent facts.
(6) Possible damages.
(7) Investigative agencies involved.
(8) Local PFAs (name and phone numbers).
(c) When a report is required by DFARS or is requested by PFD, the provisions of DFARS 209.406-3 (48 CFR 209.406-3) will be followed. That paragraph provides the basic content and format for PFI reports.
(d) All personnel will cooperate to ensure that investigations and prosecutions of procurement fraud are completed in a timely and thorough manner. Requests for assistance from federal prosecutors should be processed through the local PFA whenever possible. Requests for federal investigators will be processed through the supporting USACIDC and the PFA will be notified. When the conduct of criminal investigations and prosecutions conflict with the progress of procurements, reasonable deference will be given to criminal investigators and prosecutors whenever possible. Any serious conflict that cannot be resolved at a local level will be immediately reported to the PFI Coordinator or PFD for action.
(e) PFI Coordinators and PFAs may request access to information obtained during criminal investigations that is not protected by Fed. R. Crim. P. 6(e) and use this information to assist them in taking appropriate administrative, contractual, and civil remedies. Requests for this information should be made directly to the appropriate federal investigative agency. The investigative organization may withhold requested information if release would compromise an investigation. Difficulties in obtaining information which cannot be resolved locally will be referred to PFD for appropriate action.
(f) USACIDC will notify, in writing, local PFAs as well as PFD within 30 days, of initiation of a significant investigation of fraud or corruption related to Army procurement activities. Such notification will include the following:
(1) Case title.
(2) USACIDC Report of Investigation number.
(3) Responsible investigative agency or agencies.
(4) Office of primary responsibility.
(5) Date opened.
(6) Summary of facts.
(7) Suspected offense.
(g) The transmission of the information in f above may be delayed if the Commanding General, USACIDC, or the head of another DOD criminal investigation organization determines the transmission would compromise the success of any case or its prosecution. The prosecutive authorities dealing with the case will be consulted, when appropriate, in making such determinations.
(h) USACIDC will obtain the following information at the earliest possible point in an investigation of fraud or corruption that relates to DOD procurement activities, whenever possible without reliance on grand jury subpoenas:
(1) The individuals suspected to be responsible.
(2) The suspected firm's organizational structure.
(3) The firm's financial and contract history.
(4) The firm's organizational documents and records.
(5) Statements of witnesses.
(6) Monetary loss to the government.
(7) Other relevant information.
This information will be provided to PFD or other cognizant DOD centralized organization.
(i) PFD will provide written notification to the Defense Investigative Service of all suspension or debarment actions taken by the Army.
PFD and HQ USACIDC will coordinate as follows:
(a) Discuss the status of significant procurement fraud or corruption investigations being conducted by USACIDC and possible remedies. These discussions should take place on a regular basis.
(b) Discuss the coordination of possible criminal, civil, contractual, or administrative remedies with prosecutive authorities.
(c) PFD will maintain liaison with other DOD centralized organizations and will coordinate remedies with those centralized organizations affected by a significant investigation of fraud or corruption that relates to DOD procurement activities.
(d) Ascertain the effect on any ongoing investigation of the initiation of civil, contractual, or administrative remedies as follows:
(1) PFD will maintain liaison with USACIDC and other DOD criminal investigative organizations in order to determine the advisability of initiating any civil, contractual, or administrative actions.
(2) USACIDC will advise PFD of any adverse effect on an investigation or prosecution by the initiation of civil, contractual, or administrative actions.
(a) PFD will establish and maintain liaison with DOJ and the Defense Procurement Fraud Unit on significant fraud and corruption cases to accomplish the following:
(1) Monitor criminal prosecutions.
(2) Initiate litigation for civil recovery.
(3) Coordinate administrative or contractual actions while criminal or civil proceedings are pending.
(4) Coordinate settlement agreements or proposed settlements of criminal, civil, and administrative actions.
(5) Respond to DOJ requests for information and assistance.
(b) In cases where there is an ongoing criminal investigation, coordination with DOJ by any member of the Army normally will be accomplished by or through USACIDC or the cognizant DOD criminal investigative organization, or with the investigative organization's advance knowledge. This does not apply to the routine exchange of information between government attorneys in the course of civil litigation or the routine referral of cases to DOJ for civil recovery.
(c) Initial contact by any attorney associated with the U.S. Army with a U.S. Attorney's office or DOJ, whether initiated by the Army attorney or not, will be reported to PFD. Activity after the initial contact will only be reported to PFD when the Army attorney feels there has been a significant event in the case. If the Army attorney is not a PFI Coordinator or a PFA, the matter should be referred to one of these
(a) A specific, comprehensive remedies plan will be developed in each significant investigation involving fraud or corruption that relates to Army procurement activities. When possible, these plans should be forwarded with the DFARS 209.406-3 reports. In no case, however, should the report be delayed an appreciable time pending completion of the plan. The format for a remedies plan is at figure H-2, appendix G, to this part.
(b) The plan will be developed initially by the PFA with the participation of the appropriate criminal investigators and other relevant personnel such as the contracting officer. In significant cases the PFA should also coordinate a remedies plan early with PFD. Defective product/product substitution remedies plans must comply with the requirements of appendix D to this part.
(c) A comprehensive remedies plan will include at a minimum the following information and considerations:
(1) Summary of allegations and investigative results.
(2) Statement of any adverse impact on a DOD mission. DOD investigative organizations, commanders, or procurement officials will also provide this information to prosecutive authorities to enhance prosecution of offenses or to prepare a victim impact statement pursuant to Fed. R. Crim. P. 32(c)(2).
(3) The impact upon combat readiness and safety.
(4) Consideration of each criminal, civil, contractual, and administrative remedy available, and documentation of those remedies, either planned, in progress, or completed.
(5) Restrictions on the pursuit of any remedies such as grand jury information or possible compromise of the investigation.
(d) When remedies plans are received by PFD they will be coordinated with the headquarters of the appropriate DOD criminal investigative organization involved.
(e) Testing necessary to support the investigation and remedies plan should comply with figure H-3, appendix G, to this part.
(a) All substantiated PFI cases will be evaluated by PFAs to determine whether it is appropriate to recommend civil recovery proceedings.
(b) Recovery should be considered under both statutory and common law theories, including but not limited to the following:
(1) False Claims Act, 31 USC 3729.
(2) Anti-Kickback Act, 41 USC 51.
(3) Sherman Act, 15 USC 1-7.
(4) Racketeer Influenced and Corrupt Organizations Act, 18 USC 1961-1968.
(5) Common law fraud.
(6) Unjust enrichment.
(7) Constructive trust.
(8) Cases where contracts have been procured in violation of the conflict of interest statute, 18 USC 218. See
(c) When civil recovery appears possible, PFD should be consulted to determine if a litigation report is necessary. If requested by PFD, the report should summarize the available evidence and applicable theories of recovery and be prepared under § 516.23 of this part. To avoid unnecessary duplication of effort, recovery reports may include and make liberal references to other reports previously prepared on a given case such as the DFARS 209.406-3 (48 CFR 209.406-3) report.
(d) The MACOM PFI coordinator and PFA will monitor all civil fraud recovery efforts throughout the command and will provide training and technical assistance as required. Status reports of all civil fraud recovery efforts will be provided through channels as required by PFD.
(a) The following remedial options should be considered in response to confirmed fraudulent activity:
(1) Contractual.
(i) Termination of contract for default.
(ii) Nonaward of contract based upon a finding of contractor nonresponsibility. (If this appears to be a valid option, a DFARS 209.406-3 (48 CFR 209.406-3) report must be prepared where contractor nonresponsibility is based on lack of integrity).
(iii) Rescission of contract.
(iv) Revocation of acceptance.
(v) Use of contract warranties.
(vi) Withholding of payments to contractor. In the case of withholding pursuant to DFARS 2032.173, the Chief, PFD, is the Army Remedy Coordinating Official.
(vii) Offset of payments due to contractor from other contracts.
(viii) Revocation of facility security clearances.
(ix) Increased level of quality assurance.
(x) Refusal to accept nonconforming goods.
(xi) Denial of claims submitted by contractors.
(xii) Removal of contract from automated solicitation or payment system.
(2) Administrative.
(i) Change in contracting forms and procedures.
(ii) Removal or reassignment of government personnel.
(iii) Review of contract administration and payment controls.
(iv) Revocation of warrant of contracting officer.
(v) Suspension of contractor.
(vi) Debarment of contractor.
(b) In cases which are pending review or action by DOJ, PFAs should coordinate with the DOJ attorney handling the case prior to initiating any contractual or administrative remedy. In the case of ongoing criminal investigations, this coordination will be accomplished through the appropriate DOD criminal investigation organization.
(a) Commanders of overseas major commands will establish procedures, similar to this regulation and consistent with the DFARS, and regulations and directives of their respective unified commands, for reporting and coordination of available remedies in overseas procurement fraud and corruption cases involving foreign firms and individuals. Overseas major commands will also maintain liaison with PFD and provide periodic reports of remedies coordination results.
(b) Overseas suspension and debarment actions are governed by DFARS 209.403 (48 CFR 209.403). The names of all firms and individuals suspended or debarred will be expeditiously forwarded to PFD for inclusion on the List of Parties Excluded From Federal Procurement or NonProcurement Programs.
(c) Overseas cases of fraud or corruption related to the procurement process that involve U.S. firms or U.S. citizens may be referred to PFD for coordination of remedies under this regulation.
(a) PFCRA was enacted on 21 October 1986 (Public Law 99-509) and implemented by DOD on 30 August 1988 (DOD Directive 5505.5). (See appendix E to this part.)
(b) PFCRA expands the capability of the government to deter and recover losses from false, fictitious or fraudulent claims and statements. It is also applicable to program fraud and provides an administrative remedy in addition to those otherwise available to the Army in procurement fraud or pay and entitlements fraud cases.
(c) As part of the Army implementation, the Secretary of the Army's duties and responsibilities under PFCRA as Authority Head are delegated to the Army General Counsel. The Chief, Intellectual Property Law Division, is the Army's Reviewing Official within the meaning of PFCRA. Army implementation also requires DA to follow the policies and procedures prescribed in enclosure 2 of DOD Directive 5505.5. (See appendix E to this part.)
(d) The DOD Inspector General (IG) is the Investigating Official within DOD. The duties of this position will be performed by the Assistant IG For Investigations. This individual is vested with the authority to investigate all allegations of liability under PFCRA. That authority includes the power to
(e) Pursuant to DOD IG guidance, USACIDC will forward appropriate cases that appear to qualify for resolution under PFCRA to the Investigating Official in a timely manner. Additionally, USACIDC will forward current information regarding the status of remedies pending or concluded. USACIDC may obtain remedies information by coordinating with PFD and the cognizant command.
(f) In pay and entitlement or transportation operation fraud cases, USACIDC will coordinate with the Office of the Secretary of the Army, Financial Management, Review and Oversight Directorate (SAFM-RO), to determine the status of any pending or proposed action under the Debt Collection Act. This information, in addition to information obtained under § 517.68(e), will be forwarded with appropriate cases to the Investigating Official.
(g) In those cases where the Investigating Official has submitted a report to the Army Reviewing Official for action under PFCRA, PFD will, at the direction of the Reviewing Official, prepare all legal memoranda as necessary to transmit the Reviewing Official's intention to issue a complaint. As part of this responsibility PFD will do the following: coordinate with the affected command or agency to ensure that all appropriate remedies have been considered; evaluate the overall potential benefits to the Army; and, ensure that action under PFCRA is not duplicative of other remedies already taken. In order to fully supplement the Reviewing Official's file, PFD may request a litigation report.
(h) PFD will coordinate all cases involving transportation operations emanating from Military Traffic Management Command (MTMC) activity, under the military transportation exception to the FAR, and all cases involving pay and entitlements fraud with SAFM-RO, for comments and recommendations. These matters will be forwarded with the case file to the Reviewing Official.
(i) If the Attorney General approves the issuance of a complaint, PFD, at the direction of the Army Reviewing Official, shall prepare the complaint and all necessary memoranda as required. PFD shall also designate attorneys to represent the Authority in hearings under PFCRA.
This subpart prescribes procedures for cooperation with the Office of Special Counsel (OSC) when OSC is investigating alleged prohibited personnel practices or other allegations of improper or illegal conduct within DA activities.
(a) DA policy follows:
(1) Civilian personnel actions taken by management officials, civilian and military, will conform to laws and regulations implementing established merit system principles and will be free of any prohibited personnel practices.
(2) Management officials will take vigorous corrective action when prohibited personnel practices occur. Disciplinary measures under AR 690-700, Chapter 751, may be initiated after consultation and coordination with appropriate civilian personnel office and labor counselor.
(b) DA activities will cooperate with OSC in the following ways:
(1) Promoting merit system principles in civilian employment programs within DA.
(2) Investigating and reporting allegations of improper or illegal conduct forwarded to the activity by HQDA.
(3) Facilitating orderly investigations by the OSC of alleged prohibited personnel practices and other matters assigned for investigation to the OSC, such as violations of the Whistleblower Protection Act of 1989, the Freedom of Information Act, or the Hatch Act.
(a)
(1) Provide overall guidance on all issues concerning cooperation with OSC, including the investigation of alleged prohibited personnel practices and allegations of improper or illegal conduct.
(2) Review for adequacy and legal sufficiency each OSC report of investigation that must be personally reviewed by the Secretary of the Army.
(3) Ensure compliance with the Civil Service Reform Act of 1978 by obtaining a suitable investigation of allegations of improper or illegal conduct received from OSC. This includes compliance with time limits for reporting results of the investigation and personal review of the report by the Secretary of the Army when required.
(4) Forward to the DOD Inspector General (DODIG) copies of each allegation of improper or illegal conduct referred to DA by OSC.
(5) Delegate to The Judge Advocate General the authority to act on behalf of the DA General Counsel in all OSC investigations of prohibited personnel practices.
(6) Act upon requests for counsel from “accused” or “suspected” employees.
(b)
(1) Act for TJAG as the Senior Management Official in cooperating with OSC. As Senior Management Official, the Chief, DAJA-LE, through TJAG, will be responsible to the DA General Counsel for administration of the policies and procedures contained in this chapter.
(2) Promptly inform the DA General Counsel of any OSC investigation and consult with the DA General Counsel on any legal or policy issue arising from an OSC investigation.
(3) Serve as the HQDA point of contact in providing assistance to OSC.
(4) Act as DA attorney-of-record in administrative matters initiated by OSC before the MSPB which arise from an OSC investigation. As DA attorney-of-record, the Chief, DAJA-LE, will file necessary pleadings and make necessary appearances before the MSPB to represent DA interests.
(5) Monitor ongoing OSC investigations within DA.
(6) Ensure that appropriate DA personnel are fully apprised of their rights, duties and the nature and basis for an OSC investigation.
(7) Review and prepare recommendations to the General Counsel concerning any OSC recommended corrective action referred to DA. Such review and recommendations will address whether disciplinary action should be taken against DA civilian employees or military members, and whether the information warrants referral to appropriate authorities for corrective and disciplinary action.
(8) Seek OSC approval of DA proposed disciplinary action against an employee for an alleged prohibited personnel practice or other misconduct which is the subject of or related to any OSC investigation.
(9) Review and prepare recommendations for DA General Counsel concerning requests for counsel, to include identifying available DA attorneys to act as individual representatives. Upon approval of DA General Counsel, appoint DA civilian and military attorneys, to include attorneys from the U.S. Army Materiel Command and the Corps of Engineers, to represent individual military members or employees.
(10) Determine, to the extent practicable, whether an investigation is being or has been conducted which duplicates, in whole or in part, a proposed or incomplete OSC investigation, and convey that information to the OSC whenever it might avoid redundant investigative efforts.
(11) Provide guidance and assistance to activity Labor Counselors in fulfilling their duties as Liaison Officers.
(c)
(1) Act as Liaison Officer for OSC investigations arising within the command, activity or installation serviced by the Labor Counselor's client Employment Office.
(2) Promptly inform the MACOM labor counselor and the Chief, DAJA-
(3) Act as the legal representative of the command, activity, or installation.
(4) Assist the OSC investigator with administrative matters related to the investigation, such as requests for witnesses and documents.
(5) Process all OSC requests for documents.
(6) Make appropriate arrangements for OSC requests to interview civilian employees and military members.
(7) Ensure that personnel involved are advised of the nature and basis for an OSC investigation, the authority of the OSC, and their rights and duties.
(8) Consult with the Chief, DAJA-LE, on policy and legal issues arising from the OSC investigation.
(9) Keep the Chief, DAJA-LE, informed of the status of the OSC investigation.
(l0) Act as agency representative before the MSPB in actions initiated by employees (individual right of action appeals).
(a) Witnesses and counsel for consultation.
(1) DA military and civilian managers, supervisors, and employees who are requested by OSC for an interview will be made available in accordance with arrangements the Labor Counselor will establish. Requests for the testimony of IGs will be coordinated with the Inspector General Legal Office, SAIG-ZXL, DSN 227-9734 or Commercial (703) 697-9734.
(2) The Labor Counselor will ensure that witnesses are aware of their obligation to answer OSC questions, their potential to be considered “suspects” in OSC investigations, and their right to the assistance of counsel during interviews with OSC representatives. If the requested witness is not an “accused” or “suspected” individual and the witness asks for assistance of counsel, a DA attorney will be made available for the limited purpose of consultation regarding the witness’ rights and obligations. An attorney-client relationship will not be established. (See appendix F to this part).
(3) The Labor Counselor will arrange for individual counsel for consultation from local assets. If local assets are not sufficient, assistance may be requested from other DOD activities in the area or from HQDA, DAJA-LE. DA attorneys tasked to consult with one or more witnesses individually will not be tasked to represent the DA activity concerned.
(4) The Labor Counselor, as the legal representative of the activity, is precluded from assisting or representing individual witnesses during OSC interviews.
(b) “Accused” or “suspected” DA personnel and counsel for representation.
(1) If the OSC identifies a DA civilian employee or a military member as an “accused” or “suspected” individual, or if the Labor Counselor concludes that an individual is a “suspect,” the Labor Counselor will inform the individual. The Labor Counselor also will advise the individual of the availability of counsel for representation upon approval by DA General Counsel. (See Glossary, Counsel for Representation).
(2) If the “suspected” individual desires legal representation by DA, the individual must request counsel by submitting a written request through DAJA-LE to DA General Counsel. (See figure I-1, appendix G, to this part).
(3) During the investigation but prior to DA General Counsel approval of the request for counsel, an “accused” or “suspected” individual will be provided the assistance of counsel for consultation in the same manner as any other OSC requested witness. “Accused” or “suspected” individuals who do not request counsel for representation will be provided counsel for consultation in the same manner as any other OSC requested witness.
(4) If the DA General Counsel approves the request for counsel, the Chief, DAJA-LE, will appoint a DA attorney to represent the individual. This appointment may be made telephonically but will be confirmed in writing. The Chief, DAJA-LE, will make appropriate coordination with MACOM SJAs and command counsel to confirm availability of the attorney.
(5) An attorney appointed by DA may represent a civilian employee in any proceeding initiated by OSC before the MSPB. However, counsel provided by
(6) OSC may not bring a disciplinary action before the MSPB against a military member. Accordingly, DA counsel will not be required to represent the military member in any MSPB disciplinary proceeding. However, counsel may represent the member during the OSC investigation with the understanding that the evidence obtained by OSC may be referred to the member's command for possible disciplinary action under the UCMJ or appropriate regulations. If DA initiates action against the military member for misconduct disclosed in the OSC investigation, the member will obtain counsel as provided under the UCMJ or relevant regulations.
(c) Records.
(1) OSC requests for records must be in writing. The Labor Counselor will assist OSC representatives in identifying the custodian of specific records sought during the inquiry.
(2) Generally, requested records should be furnished to OSC representatives if such records would be released under AR 25-55 or AR 340-21 to other government agencies in the normal course of official business. Records constituting attorney work product should not be released without approval of the Chief, DAJA-LE. IG records will not be released without the approval of the Inspector General. (AR 20-1). The Labor Counselor should seek guidance from the Chief, DAJA-LE, if there is any doubt concerning the release of records.
(3) If, after completion of the OSC investigation, the OSC files a complaint against DA or a DA employee, release of records and other information will be accomplished pursuant to MSPB rules of discovery (5 CFR part 1201, subpart B).
(d) Funding. The command, activity, or installation within which the allegations of misconduct arose will provide funding for travel, per diem and other necessary expenses related to the OSC investigation. These expenses may include appropriate funding for witnesses, counsel for consultation and DA General Counsel approved counsel for representation.
Labor Counselors may seek guidance on questions arising from implementation of this chapter by calling the Chief, DAJA-LE, DSN 225-9476/9481 or Commercial (703) 695-9476/9481.
(a) This subpart implements 10 U.S.C. § 982 and DOD Directive 5525.8. It establishes Army policy concerning soldiers on active duty who are summoned to serve on state and local juries.
(b) This subpart does not apply to Army National Guard soldiers in an annual training or full-time AGR (Active Guard Reserve) status under Title 32, U.S. Code. Soldiers in a Title 32 status must refer to their respective state law for relief from state or local jury duty.
(a) Active duty soldiers should fulfill their civic responsibility by serving on state and local juries, so long as it does not interfere with military duties.
(b) The following active duty soldiers are exempt from complying with summons to serve on state and local juries:
(1) General officers.
(2) Commanders.
(3) Active duty soldiers stationed outside the United States, Puerto Rico, Guam, the Northern Mariana Islands, American Samoa, and the Virgin Islands.
(4) Active duty soldiers in a training status.
(5) Active duty soldiers assigned to forces engaged in operations.
(c) Other active duty soldiers may be exempted from serving on local juries if compliance with such summons would have either of the following effects:
(1) It would unreasonably interfere with performance of the soldier's military duties; or,
(2) It would adversely affect the readiness of a summoned soldier's unit, command, or activity.
(a) The commander exercising special court-martial convening authority (SPCMCA) over a unit has the authority to determine whether a soldier of that unit, who has been served with a summons, is exempt from serving on a state or local jury unless that authority has been limited or withheld in accordance with paragraph (b) or (c) of this section. This authority may not be delegated to a subordinate commander who does not exercise SPCMCA.
(b) A commander superior to the SPCMCA, who also exercises SPCMCA or general court-martial convening authority (GCMCA) over a unit, may limit or withhold the exemption determination authority of subordinate commanders.
(c) A GCMCA, who orders a unit or soldier assigned to one command to be attached or detailed to another command for disciplinary purposes (for example, “for administration” or “for administration of military justice”), may reserve exemption determination authority to the commander exercising SPCMCA in the chain of command to which the unit or soldier is assigned rather than the chain of command to which the unit or soldier is attached or detailed.
(a) Active duty soldiers served with a summons to serve on a state or local jury will promptly advise their commander and provide copies of pertinent documents.
(b) Unit commanders will evaluate the summons considering both the individual soldier's duties and the unit mission. Coordination with the servicing judge advocate or legal adviser and with the appropriate state or local official may be necessary to determine any impact on the soldier's duties or on unit readiness.
(1) If the soldier is not exempt under § 516.75 (b) or (c), the commander will process the soldier for permissive TDY in accordance with AR 630-5, Leaves and Passes.
(2) If the soldier is exempt under § 516.75 (b) or (c), the commander will forward the summons and any related documentation, with recommendations, through the chain of command to the commander with exemption determination authority over the soldier concerned.
(c) The commander with exemption determination authority over the soldier concerned will determine whether the soldier is exempt. His determination is final.
(d) The exemption determination authority will notify responsible state or local officials whenever a soldier summoned for jury duty is exempt. The notification will cite 10 U.S.C. 982 as authority.
(a) Soldiers who are required to comply with summons to serve on state or local juries will be placed on permissive TDY under the provisions of AR 630-5.
(b) Jury fees accruing to soldiers for complying with the summons to serve on state and local juries must be turned over to the appropriate finance office for deposit into the U.S. Treasury. Commands will establish procedures with local authorities and their servicing finance and accounting activity to ensure that such jury fees are so deposited. Soldiers, however, may keep any reimbursement from state or local authority for expenses incurred in the performance of jury duty, including transportation, meals, and parking.
Publications referenced in this part can be obtained at the National Technical Information Services, U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161.
A related publication is merely a source of additional information. The user does not have to read it to understand the regulation.
The following is a list of frequently referred to Department of the Army Services/Divisions/Offices and their mailing addresses:
Under Section 301 reference (a) and reference (b), this Directive establishes policy, assigns responsibilities, and prescribes procedures for the release of official DoD information in litigation and for testimony by DoD personnel as witnesses during litigation.
1. This Directive applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Organization of the Joint Chiefs of Staff (OJCS), the Unified and Specified Commands, and the Defense Agencies (hereafter referred to as “DoD Components”), and to all personnel of such DoD Components.
2. This Directive does not apply to the release of official information or testimony by DoD personnel in the following situations:
a. Before courts-martial convened by the authority of the Military Departments or in administrative proceedings conducted by or on behalf of a DoD Component;
b. Pursuant to administrative proceedings conducted by or on behalf of the Equal Employment Opportunity Commission (EEOC) or the Merit Systems Protection Board (MSPB), or pursuant to a negotiated grievance procedure under a collective bargaining agreement to which the Government is a party;
c. In response to requests by Federal Government counsel in litigation conducted on behalf of the United States;
d. As part of the assistance required in accordance with the Defense Industrial Personnel Security Clearance Program under DoD Directive 5220.6 (reference (c)); or
e. Pursuant to disclosure of information to Federal, State, and local prosecuting and law enforcement authorities, in conjunction with an investigation conducted by a DoD criminal investigative organization.
3. This Directive does not supersede or modify existing laws or DoD programs governing the testimony of DoD personnel or the release of official DoD information during grand jury proceedings, the release of official information not involved in litigation, or the release of official information pursuant to the Freedom of Information Act, 5 U.S.C. Section 552 (reference (a)) or the Privacy Act, 5 U.S.C. Section 552a (reference (a)), nor does this Directive preclude treating any written request for agency records that is not in the nature of legal process as a request under the Freedom of Information or Privacy Acts.
4. This Directive is not intended to infringe upon or displace the responsibilities committed to the Department of Justice in conducting litigation on behalf of the United States in appropriate cases.
5. This Directive does not preclude official comment on matters in litigation in appropriate cases.
6. This Directive is intended only to provide guidance for the internal operation of the Department of Defense and is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law against the United States or the Department of Defense.
1. Demand. Subpoena, order, or other demand of a court of competent jurisdiction, or
2. DoD Personnel. Present and former U.S. military personnel; Service Academy cadets and midshipmen; and present and former civilian employees of any Component of the Department of Defense, including nonappropriated fund activity employees; non-U.S. nationals who perform services overseas, under the provisions of status of forces agreements, for the United States Armed Forces; and other specific individuals hired through contractual agreements by or on behalf of the Department of Defense.
3. Litigation. All pretrial, trial, and post-trial stages of all existing or reasonably anticipated judicial or administrative actions, hearings, investigations, or similar proceedings before civilian courts, commissions, boards (including the Armed Services Board of Contract Appeals), or other tribunals, foreign and domestic. This term includes responses to discovery requests, depositions, and other pretrial proceedings, as well as responses to formal or informal requests by attorneys or others in situations involving litigation.
4. Official Information. All information of any kind, however stored, that is in the custody and control of the Department of Defense, relates to information in the custody and control of the Department, or was acquired by DoD personnel as part of their official duties or because of their official status within the Department while such personnel were employed by or on behalf of the Department or on active duty with the United States Armed Forces.
It is DoD policy that official information should generally be made reasonably available for use in Federal and state courts and by other governmental bodies unless the information is classified, privileged, or otherwise protected from public disclosure.
1. The General Counsel, Department of Defense (GC, DoD), shall provide general policy and procedural guidance by the issuance of supplemental instructions or specific orders concerning the release of official DoD information in litigation and the testimony of DoD personnel as witnesses during litigation.
2. The Heads of DoD Components shall issue appropriate regulations to implement this Directive and to identify official information that is involved in litigation.
a. In response to a litigation request or demand for official DoD information or the testimony of DoD personnel as witnesses, the General Counsels of DoD, Navy, and the Defense Agencies; the Judge Advocates General of the Military Departments; and the Chief Legal Advisors to the JCS and the Unified and Specified Commands, with regard to their respective Components, are authorized—after consulting and coordinating with the appropriate Department of Justice litigation attorneys, as required—to determine whether official information originated by the Component may be released in litigation; whether DoD personnel assigned to or affiliated with the Component may be interviewed, contacted, or used as witnesses concerning official DoD information or as expert witnesses; and what, if any, conditions will be imposed upon such release, interview, contact, or testimony. Delegation of this authority, to include the authority to invoke appropriate claims of privilege before any tribunal, is permitted.
b. In the event that a DoD Component receives a litigation request or demand for official information originated by another Component, the receiving Component shall forward the appropriate portions of the request or demand to the originating Component for action in accordance with this Directive. The receiving Component shall also notify the requestor, court, or other authority of its transfer of the request or demand.
c. Notwithstanding the provisions of paragraphs F.1.a. and b., the GC, DoD, in litigation involving terrorism, espionage, nuclear weapons, intelligence means or sources, or otherwise as deemed necessary, may notify Components that GC, DoD, will assume primary responsibility for coordinating all litigation requests and demands for official DoD information or the testimony of DoD personnel, or both; consulting with the Department of Justice, as required; and taking final action on such requests and demands.
In deciding whether to authorize the release of official DoD information or the testimony of DoD personnel concerning official information (hereinafter referred to as “the disclosure”) pursuant to paragraph F.1., DoD officials should consider the following types of factors:
a. Whether the request or demand is unduly burdensome or otherwise inappropriate under the applicable court rules;
b. Whether the disclosure, including release in camera, is appropriate under the rules of procedure governing the case or matter in which the request or demand arose;
c. Whether the disclosure would violate a statute, executive order, regulation, or directive;
d. Whether the disclosure, including release in camera, is appropriate or necessary under the relevant substantive law concerning privilege;
e. Whether the disclosure, except when in camera and necessary to assert a claim of privilege, would reveal information properly classified pursuant to the DoD Information Security Program under DoD 5200.1-R (reference (d)), unclassified technical data withheld from public release pursuant to DoD Directive 5230.25 (reference (e)), or other matters exempt from unrestricted disclosure; and
f. Whether disclosure would interfere with ongoing enforcement proceedings, compromise constitutional rights, reveal the identity of an intelligence source or confidential informant, disclose trade secrets or similarly confidential commercial or financial information, or otherwise be inappropriate under the circumstances.
a. Subject to paragraph F.3.e., DoD personnel shall not, in response to a litigation request or demand, produce, disclose, release, comment upon, or testify concerning any official DoD information without the prior written approval of the appropriate DoD official designated in paragraph F.1. Oral approval may be granted, but a record of such approval shall be made and retained in accordance with the applicable implementing regulations.
b. If official DoD information is sought, through testimony or otherwise, by a litigation request or demand, the individual seeking such release or testimony must set forth, in writing and with as much specificity as possible, the nature and relevance of the official information sought. Subject to paragraph F.3.e., DoD personnel may only produce, disclose, release, comment upon, or testify concerning those matters that were specified in writing and properly approved by the appropriate DoD official designated in paragraph F.1. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
c. Whenever a litigation request or demand is made upon DoD personnel for official DoD information or for testimony concerning such information, the personnel upon whom the request or demand was made shall immediately notify the DoD official designated in paragraph F.1. for the Component to which the individual contacted is or, for former personnel, was last assigned. In appropriate cases, the responsible DoD official shall thereupon notify the Department of Justice of the request or demands. After due consultation and coordination with the Department of Justice, as required, the DoD official shall determine whether the individual is required to comply with the request or demand and shall notify the requestor or the court or other authority of the determination reached.
d. If, after DoD personnel have received a litigation request or demand and have in turn notified the appropriate DoD official in accordance with paragraph F.3.c., a response to the request or demand is required before instructions from the responsible official are received, the responsible official designated in paragraph F.1. shall furnish the requestor or the court or other authority with a copy of this Directive and applicable implementing regulations, inform the requestor or the court or other authority that the request or demand is being reviewed, and seek a stay of the request or demand pending a final determination by the Component concerned.
e. If a court of competent jurisdiction or other appropriate authority declines to stay the effect of the request or demand in response to action taken pursuant to paragraph F.3.d., or if such court or other authority orders that the request or demand must be complied with notwithstanding the final decision of the appropriate DoD official, the DoD personnel upon whom the request or demand was made shall notify the responsible DoD official of such ruling or order. If the DoD official determines that no further legal review of or challenge to the court's ruling or order will be sought, the affected DoD personnel shall comply with the request, demand, or order. If directed by the appropriate DoD official, however, the affected DoD personnel shall respectfully decline to comply with the demand. See United States ex rel.
Consistent with the guidelines in DoD Instruction 7230.7 (reference (f)), the appropriate officials designated in paragraph F.1. are authorized to charge reasonable fees, as established by regulation and to the extent not prohibited by law, to parties seeking, by request or demand, official DoD information not otherwise available under the DoD Freedom of Information Act Program (reference (g)). Such fees, in amounts calculated to reimburse the Government for the expense of providing such information, may include the costs of time expended by DoD employees to process and respond to the request or demand; attorney time for reviewing the request or demand and any information located in response thereto and for related legal work in connection with the request or demand; and expenses generated by materials and equipment used to search for, produce, and copy the responsive information. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978).
DoD personnel shall not provide, with or without compensation, opinion or expert testimony concerning official DoD information, subjects, or activities, except on behalf of the United States or a party represented by the Department of Justice. Upon a showing by the requestor of exceptional need or unique circumstances and that the anticipated testimony will not be adverse to the interests of the Department of Defense or the United States, the appropriate DoD official designated in paragraph F.1. may, in writing, grant special authorization for DoD personnel to appear and testify at no expense to the United States. If, despite the final determination of the responsible DoD official, a court of competent jurisdiction, or other appropriate authority, orders the appearance and expert or opinion testimony of DoD personnel, the personnel shall notify the responsible DoD official of such order. If the DoD official determines that no further legal review of or challenge to the court's order will be sought, the affected DoD personnel shall comply with the order. If directed by the appropriate DoD official, however, the affected DoD personnel shall respectfully decline to comply with the demand. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
This Directive is effective immediately. Forward two copies of implementing documents to the General Counsel, DoD, within 120 days.
This Directive reissues reference (a) to update policies, procedures, and responsibilities for the coordination of criminal, civil, administrative, and contractual remedies stemming from investigation of fraud or corruption related to procurement activities. More effective and timely communication of information developed during such investigations will enable the Department of Defense to take the most appropriate of the available measures.
This Directive applies to the Office of the Secretary of Defense (OSD); the Inspector General, Department of Defense (IG, DoD); the Military Departments; the Defense Agencies; and the DoD Field Activities (hereafter referred to collectively as “DoD Components”).
1.
2.
It is DoD policy that:
1. Each of the DoD Components shall monitor, from its inception, all significant investigations of fraud or corruption related to procurement activities affecting its organizations, for the purpose of ensuring that all possible criminal, civil, administrative, and contractual remedies in such cases are identified to cognizant procurement and command officials and that appropriate remedies are pursued expeditiously. This process shall include appropriate coordination with all other affected DoD Components.
2. All investigations of fraud or corruption related to procurement activities shall be reviewed to determine and implement the appropriate contractual and administrative actions that are necessary to recover funds lost through fraud or corruption and to ensure the integrity of DoD programs and operations.
3. Appropriate civil, contractual, and administrative actions, including those set forth in enclosure 1, shall be taken expeditiously. During an investigation and before
1. The
a. Establish a centralized organization (hereafter referred to as “the centralized organization”) to monitor and ensure the coordination of criminal, civil, administrative, and contractual remedies for each significant investigation of fraud or corruption related to procurement activities affecting the DoD Component.
b. Establish procedures requiring the centralized organization to discuss regularly with the assigned DoD criminal investigative organization(s) such issues as the current status of significant investigations and their coordination with prosecutive authorities.
c. Establish procedures requiring that all coordination involving the DoJ, during the pendency of a criminal investigation, is accomplished by or with the advance knowledge of the appropriate DoD criminal investigative organization(s).
d. Establish procedures to ensure appropriate coordination of actions between the centralized organizations of any DoD Components affected by a significant investigation of fraud or corruption related to procurement activities.
e. Establish procedures to ensure that all proper and effective civil, administrative, and contractual remedies available to the Department of Defense are, when found applicable and appropriate, considered and undertaken promptly by the necessary DoD officials (e.g., commanders, programs officials, and contracting officers). This includes initiation of any suspension and debarment action within 30 days of an indictment or conviction. The centralized organization shall ensure that all proposed actions are coordinated with appropriate investigative organization.
f. Establish procedures to ensure that a specific comprehensive remedies plan is developed for each significant investigation involving fraud or corruption related to procurement activities. These procedures shall include the participation of the appropriate DoD criminal investigative organization in the development of the plan.
g. Establish procedures to ensure that in those significant investigations of fraud or corruption related to procurement activities when adverse impact on a DoD mission can be determined, such adverse impact is identified and documented by the centralized organization. This information is to be used by the centralized organization of the DoD Component concerned in development of the remedies plan required in paragraph E.1.f., above, and shall be furnished to prosecutors as stated in paragraph E.2.e., below. The information shall also be used by the centralized organizations in development and preparation of “Victim Impact Statements” for use in sentencing proceedings, as provided for P.L. 97-291 (reference (b)). Some examples of adverse impact on a DoD mission are as follows:
(1) Endangerment of personnel or property.
(2) Monetary loss.
(3) Denigration of program or personnel integrity.
(4) Compromise of the procurement process.
(5) Reduction or loss of mission readiness.
h. Ensure training materials are developed on fraud and corruption in the procurement process, and that all procurement and procurement-related training includes a period of such instruction appropriate to the duration and nature of the training.
i. Establish procedures enabling the centralized organization to ensure that safety and readiness issues are examined and appropriately dealt with for all cases in which a notice is required under paragraph E.2.i., below. The minimum procedures to be followed by the centralized organization are in enclosure 3.
j. Ensure that appropriate command, procurement, and investigative organizations are provided sufficient information to determine if further inquiry is warranted on their part to prevent reoccurrence and detect other possible fraud within their activity.
2. The
a. Notify, in writing, the centralized organization for the affected DoD Component of the start of all significant investigations involving fraud or corruption that are related to procurement activities. Initial notification shall include the following elements:
(1) Case title.
(2) Case control number.
(3) Investigative agency and office of primary responsibility.
(4) Date opened.
(5) Predication.
(6) Suspected offense(s).
b. Notify expeditiously the Defense Investigative Service (DIS) of any investigations that develop evidence that would impact on DoD-cleared industrial facilities or personnel.
c. Discuss regularly with the centralized organization such issues as the current status of significant investigations and their coordination with prosecutive authorities. If the DoD criminal investigative organization has prepared any documents summarizing the current status of the investigation, such documents shall be provided to the centralized organization. Completed reports of significant investigations also should be provided to the centralized organization.
d. Provide to the appropriate procurement officials, commanders, and suspension and debarment authorities, when needed to allow consideration of applicable remedies, any court records, documents, or other evidence of fraud or corruption related to procurement activities. Such information shall be provided in a timely manner to enable the suspension and debarment authority to initiate suspension and debarment action within 30 days of an indictment or conviction.
e. Provide expeditiously to prosecutive authorities the information regarding any adverse impact on a DoD mission, that is gathered under paragraph E.1.g., above, for the purpose of enhancing the prosecutability of a case. Such information also should be used in preparing a victim impact statement for use in sentencing proceedings as provided for in Public Law 97-291.
f. Gather, at the earliest practical point in the investigation, without reliance on grand jury subpoenas whenever possible, relevant information concerning responsible individuals, the organizational structure, finances, and contract history of DoD contractors under investigation for fraud or corruption related to procurement activities, to facilitate the criminal investigation as well as any civil, administrative, or contractual actions or remedies that may be taken. Some available sources of such information are listed in enclosure 2.
g. Provide timely notice to other cognizant DoD criminal investigative organizations of evidence of fraud by a contractor, subcontractor, or employees of either, on current or past contracts with, or affecting, other DoD Components.
h. Ascertain the impact upon any ongoing investigation or prosecution of civil, contractual, and administrative actions being considered and advise the appropriate centralized organization of any adverse impact.
i. Obtain a DD 350 report in every investigation into defective products or product substitution in which a SERIOUS HAZARD to health, safety, or operational readiness is indicated. Timely notification shall be made to the centralized organization of each DoD Component that is identified as having contract actions with the subject of the investigation.
j. Obtain a DD 350 report in all significant fraud investigations, as defined in subsection C.2. above, whether or not the case involved defective products or product substitution. Timely notification shall be made to the centralized organization of each DoD Component that is identified as having contract actions with the subject of the investigation.
3. The
a. Develop training materials relating to fraud and corruption in procurement related activities which shall be utilized in all procurement related training in conjunction with training materials developed by the DoD Components. (See paragraph E.1.h., above.)
b. Establish procedures for providing to the DoD criminal investigative organizations, through the Office of the Assistant Inspector General for Auditing (OAIG-AUD), reports of data contained in the Individual Procurement Action Report (DD Form 350) System.
Transmissions of information by DoD criminal investigative organizations required by subsection E.2., above, shall be made as expeditiously as possible, consistent with efforts not to compromise any ongoing criminal investigation. The transmission of the information may be delayed when, in the judgment of the head of the DoD criminal investigative organization, failure to delay would compromise the success of any investigation or prosecution. The prosecutive authorities dealing with the investigation shall be consulted, when appropriate, in making such determinations.
This Directive is effective immediately. Forward two copies of implementing documents to the Inspector General, Department of Defense, within 120 days.
1. Civil Contractual and Administrative Actions That Can Be Taken in Response to Evidence of Procurement Fraud
2. Sources of Information Relating to Government Contractors
3. Actions to be Taken in Product Substitution Investigations
a. False Claims Act (31 USC 3729 et seq.).
b. Anti-Kickback Act (41 USC 51 et seq.).
c. Voiding Contracts (18 USC 218).
d. Truth in Negotiations Act (10 USC 2306(f)).
e. Fraudulent Claims-Contract Disputes Act (41 USC 604)
a. Breach of contract.
b. Breach of warranty.
c. Money paid under mistake of fact.
d. Unjust enrichment.
e. Fraud and/or Deceit.
f. Conversion.
g. Recision and/or Cancellation.
h. Reformation.
i. Enforcement of performance bond/guarantee agreement.
a. Termination of contract for default.
b. Termination of contract for convenience of Government.
c. Termination for default and exemplary damages under the gratuities clause.
d. Recision of contract.
e. Contract warranties.
f. Withholding of payments to contractor.
g. Offset of payments due to contractor from other contracts.
h. Price reduction.
i. Correction of defects (or cost of correction).
j. Refusal to accept nonconforming goods.
k. Revocation of acceptance.
l. Denial of claims submitted by contractors.
m. Disallowance of contract costs.
n. Removal of the contractor from automated solicitation or payment system.
a. Change in contracting forms and procedures.
b. Removal or reassignment of Government personnel.
c. Review of contract administration and payment controls.
d. Revocation of warrant contracting officer.
e. Suspension of contractor and contractor employees.
f. Debarment of contractor and contractor employees.
g. Revocation of facility security clearances.
h. Nonaward of contract based upon a finding of contractor nonresponsibility.
i. Voluntary refunds.
A. The centralized organization, in all cases involving allegations of product substitution in which a SERIOUS HAZARD to health, safety, or operational readiness is indicated shall:
1. Review the notice of the case immediately after receiving it from the Defense criminal investigative organization. Review the notice to determine any potential safety
2. Notify all appropriate safety, procurement, and program officials of the existence of the case.
3. Obtain a complete assessment from safety, procurement, and program officials of the adverse impact of the fraud on DoD programs and operations.
4. Ensure that the DoD Component provides the Defense criminal investigative organization with full testing support to completely identify the defective nature of the substituted products. Costs associated with the testing shall be assumed by the appropriate procurement program.
5. Prepare a comprehensive impact statement describing the adverse impact of the fraud on DoD programs for use in any criminal, civil, or contractual action related to the case.
B. In all cases involving allegations of product substitution that affect more than one DoD Component, that centralized organizations of the affected DoD Components shall identify a lead Agency. The lead centralized organization shall ensure that information on the fraud is provided to the centralized organization of all other affected DoD Components. The lead centralized organization shall ensure compliance with the requirements of section A., above. The lead centralized organization shall then be responsible for preparing a comprehensive “Victim Impact Statement” as required by paragraph E.1.g. of this Directive.
C. In all cases involving allegations of product substitution, the Defense Criminal Investigative Organization shall:
1. Immediately notify the appropriate centralized organization of the beginning of the case.
2. Continue to provide to the centralized organization any information developed during the course of the investigation that indicates substituted products have been, or might be, provided to the Department of Defense.
3. Ensure that any request for testing of substituted products is provided to the centralized organization.
DOD Directive 5505.5 is contained in 32 CFR part 277.
Full-time duty in the active military service of the United States. Includes: full-time training duty; annual training duty; active
Activities of or under the control of the Army, one of its instrumentalities, or the Army National Guard, including activities for which the Army has been designated the administrative agency, and those designated activities located in an area in which the Army has been assigned single service claims responsibility by DOD directive.
Real or personal property of the United States or its instrumentalities and, if the United States is responsible therefore, real or personal property of a foreign government which is in the possession or control of the Army, one of its instrumentalities, or the Army National Guard, including property of an activity for which the Army has been designated the administrative agency, and property located in an area in which the Army has been assigned single service claims responsibility.
That organization of a DOD component responsible for coordinating and monitoring of criminal, civil, contractual, and administrative remedies relating to contract fraud. For DOD components other than the Army, the Centralized organizations are as follows: the Office of General Counsel, Department of the Air Force; the Office of the Inspector General, Department of the Navy; and the Office of General Counsel, Defense Logistics Agency.
The Government's right to recover money or property from any individual, partnership, association, corporation, governmental body, or other legal entity (foreign and domestic) except an instrumentality of the United States. A claim against several joint debtors or tortfeasors arising from a single transaction or incident will be considered one claim.
A commissioned officer, warrant officer, or qualified civilian employee designated by the responsible commander and trained or experienced in the conduct of investigations and the processing of claims.
Practices that include, but are not limited to, solicitation, offer, payment, or acceptance of bribes or gratuities; kickbacks; conflicts of interest; or unauthorized disclosure of official information related to procurement matters.
An attorney, provided by DA at no expense to the military member or civilian employee, who will provide legal advice to the witness concerning the authority of OSC, the nature of an OSC interview and their individual rights and obligations. The counsel may accompany the witness to the interview and advise the witness during the interview. No attorney-client relationship is established in this procedure.
An attorney, provided by DA at no expense to the military member or civilian employee, who will act as the individual's lawyer in all contacts with the MSPB and the OSC during the pendancy of the OSC investigation and any subsequent OSC initiated action before the MSPB. An attorney-client relationship will be established between the individual and counsel for representation.
DA personnel includes the following:
a. Military and civilian personnel of the Active Army and The U.S. Army Reserve.
b. Soldiers of the Army National Guard of the United States (Title 10, U.S.C.) and, when specified by statute or where a Federal interest is involved, soldiers in the Army National Guard (Title 32, U.S.C.). It also includes technicians under 32 U.S.C. 709(a)(d).
c. USMA cadets.
d. Nonappropriated fund employees.
e. Foreign nationals who perform services for DA overseas.
f. Other individuals hired by or for the Army.
Administrative action taken by a debarring authority to exclude a contractor from Government contracting and Government-approved subcontracting for a specified period.
SJA, legal adviser, or Litigation Division attorney who makes the final determination concerning release of official information.
Refers to the USACIDC; the Naval Investigative Service; the U.S. Air Force Office of Special Investigations; and the Defense
Any intentional deception of DOD (including attempts and conspiracies to effect such deception) for the purpose of inducing DOD action or reliance on that deception. Such practices include, but are not limited to, the following: bid-rigging; making or submitting false statements; submission of false claims; use of false weights or measures; submission of false testing certificates; adulterating or substituting materials; or conspiring to use any of these devices.
a. A violation of any law, rule, or regulation in connection with Government misconduct; or
b. Mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
Those categories of information which may be withheld from the public under one or more provisions of law.
An officer so designated (AR 27-1).
A civilian attorney who is the principal legal adviser to the commander or operating head of any Army command or agency.
Legal action or process involving civil proceedings, i.e., noncriminal.
a. A suit in which the United States or one of its agencies or instrumentalities has been, or probably will be, named as a party.
b. A suit against DA personnel and arises out of the individual's performance of official duties.
c. A suit concerning an Army contract, subcontract, or purchase order under the terms of which the United States may be required to reimburse the contractor for recoveries, fees, or costs of the litigation.
d. A suit involving administrative proceedings before Federal, state, municipal, or foreign tribunals or regulatory bodies that may have a financial impact upon the Army.
e. A suit affecting Army operations or which might require, limit, or interfere with official action.
f. A suit in which the United States has a financial interest in the plaintiff's recovery.
g. Foreign litigation in which the United States is bound by treaty or agreement to ensure attendance by military personnel or civilian employees.
Includes hospitalization, outpatient treatment, dental care, nursing service, drugs, and other adjuncts such as prostheses and medical appliances furnished by or at the expense of the United States.
An offense for which the maximum penalty does not exceed imprisonment for 1 year. Misdemeanors include those offenses categorized as petty offenses (18 USC § 3559).
All information of any kind, however stored, that is in the custody and control of the Department of Defense, relates to information in the custody and control of the Department, or was acquired by DoD personnel as part of their official duties or because of their official status within the Department while such personnel were employed by or on behalf of the Department or on active duty with the United States Armed Forces.
Those forces whose primary missions are to participate in combat and the integral supporting elements thereof. Within DA, the operating forces consist of tactical units organized to conform to tables of organization and equipment (TOE).
These include—
a. Appointment.
b. Promotion.
c. Adverse action under 5 U.S.C. 7501 et seq. or other disciplinary or corrective action.
d. Detail, transfer, or reassignment.
e. Reinstatement.
f. Restoration.
g. Reemployment.
h. Performance evaluation under 5 U.S.C. 4301 et seq.
i. Decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other personnel action.
j. Any other significant change in duties or responsibilities that is inconsistent with the employee's salary or grade level.
Litigation other than that in which the United States has an interest.
The legal document that compels a defendant in an action to appear in court; e.g., in a civil case a summons or subpoena, or in a criminal case, a warrant for arrest, subpoena or summons.
Action taken, or the failure to take action, by a person who has authority to take, direct others to take, recommend, or approve any personnel action—
a. That discriminates for or against any employee or applicant for employment on the basis of race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation, as prohibited by certain specified laws.
b. To solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests, or is under consideration for, any personnel action, unless the recommendation or statement is based on the personal knowledge or records of the person furnishing it, and consists of an evaluation of the work performance, ability, aptitude, or general qualifications of the individual, or an evaluation of the character, loyalty, or suitability of such individual.
c. To coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity.
d. To deceive or willfully obstruct any person with respect to such person's right to compete for employment.
e. To influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment.
f. To grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment.
g. To appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in 5 U.S.C. 3110) of the employee, if the position is in the agency in which the employee is serving as a public official or over which the employee exercises jurisdiction or control as an official.
h. To take or fail to take a personnel action with respect to any employee or applicant for employment as a reprisal for being a whistleblower, as defined below.
i. To take or fail to take a personnel action against an employee or applicant for employment as a reprisal for the exercise of any appeal right granted by law, rule, or regulation.
j. To discriminate for or against any employee or applicant for employment on the basis of conduct that does not adversely affect the performance of the employee or applicant or the performance of others.
k. To take or fail to take any other personnel action if the taking of, or failure to take, such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in 5 U.S.C. 2301.
These include—
a. A U.S. Attorney;
b. A prosecuting attorney of a State or other political subdivision when the U.S. Attorney has declined to exercise jurisdiction over a particular case or class of cases; and
c. An SJA of a general court-martial convening authority considering taking action against a person subject to the UCMJ.
A JA or legal adviser responsible for assertion and collection of claims in favor of the United States for property claims and medical expenses.
A procurement fraud case involving an alleged loss of $100,000 or more; all corruption cases related to procurement that involve bribery, gratuities, or conflicts of interest; any defective products or product substitution in which a serious hazard to health, safety or operational readiness is indicated, regardless of loss value; and, any procurement fraud case that has received or is expected to receive significant media coverage.
An officer so designated (AR 27-1). The SJA of an installation, a command or agency reporting directly to HQDA, or of a major subordinate command of the U.S. Army Materiel Command, and the senior Army JA assigned to a joint or unified command.
A process to cause a witness to appear and give testimony, e.g., at a trial, hearing, or deposition.
Administrative action taken by a suspending authority to temporarily exclude a contractor from Government contracting and Government-approved subcontracting.
Officials designated in DFARS, section 9.403, as the authorized representative of the Secretary concerned.
A wrongdoer; one who commits a tort.
This appendix contains figures cited or quoted throughout the text of this part.
In the United States District Court for the Southern District of Texas Corpus Christi Division, No. C-90-100
The Complaint is barred by laches.
Figure C-3. Sample Answer to Judicial Complaint, with attached Certificate of Service. This is intended to be used as a guide in preparing a draft Answer as part of a Litigation Report.
For its answer to the complaint, defendant admits, denies and alleges as follows:
1. Admits.
2. Denies.
3. Denies.
4. The allegations contained in paragraph 4 are conclusions of law to which no response is required; to the extent they may be deemed allegations of fact, they are denied.
5. Denies the allegations contained in the first sentence of paragraph 5; admits the allegations contained in the second sentence of paragraph 5; denies the remainder of the allegations in paragraph 5.
6. Denies the allegations in paragraph 6 for lack of knowledge or information sufficient to form a belief as to their truth.
7. Denies each allegation in the complaint not specifically admitted or otherwise qualified.
The remainder of plaintiff's Complaint contains his prayer for relief, to which no answer is required. Insofar as an answer is required, denies that plaintiff is entitled to any relief whatsoever.
Defendant respectfully prays that the Court dismiss plaintiff's Complaint and award to defendant costs and such further relief as the Court deems proper.
Respectfully submitted,
I hereby certify that a true and correct copy of Defendant's Answer has been placed in the mail, postage prepaid, this
I am Private Paul Jones, currently assigned to Company B, 4th Battalion, 325th Parachute Infantry Regiment, Fort Bragg, North Carolina. I have personal knowledge of the following matters.
On the evening of 3 June 1970, I was present at the company party at Lake Popolopen when the accident occurred. I saw a bright, full moon that evening.
I declare under penalty of perjury that the foregoing is true and correct. (28 U.S.C. § 1746).
Executed on:
I request that the Attorney General of the United States, or his agent, designate counsel to defend me in my official and individual capacities in the case of
I understand the following: if my request for representation is approved, I will be represented by a U.S. Department of Justice attorney; that the United States is not required to pay any final adverse money judgment rendered against me personally, although I can request indemnification; that I am entitled to retain private counsel at my own expense; and, that the Army expresses no opinion whether I should or should not retain private counsel.
I declare under penalty of perjury that the foregoing is true and correct. (28 U.S.C. § 1746).
Executed on:
I am currently the Commander of HHC, 6th Armored Division, Bad Vilbel, Germany. I have read the allegations concerning Private Paul Jones in the complaint of
At all times relevant to the complaint, I was Private Jones’ company commander. His actions relevant to this case were performed within the scope of his official duties as Assistant Charge of Quarters, Company B, 4th Battalion, 325th Parachute Infantry Regiment, Fort Bragg, North Carolina.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. (28 U.S.C. § 1746).
Executed on:
I am the President of the XYZ Corporation. I request the Attorney General of the United States designate counsel to defend me and my company in
I understand that the assumption by the Attorney General of the defense of this case does not alter or increase the obligations of the United States under United States Contract No. WP-70-660415.
I further agree that such representation will not be construed as waiver or estoppel to assert any rights which any interested party may have under said contract.
Executed on:
Dear Mr. Taylor: We have learned that you subpoenaed Captain Roberta Selby to testify at a deposition in the case
Under 32 CFR §§ 97.6(c), 516.35, and 516.40, the Army must authorize the appearance of its personnel or the production of official documents in private litigation. In this case, the Army cannot authorize Captain Selby to appear or produce the requested file absent the following:
You must request in writing her appearance and the production of the file in accordance with Department of Defense directives, 32 CFR § 97.6(c), and Army regulations, 32 CFR §§ 516-34—516.40. The request must include the nature of the proceeding, 32 CFR § 516.34(b), and the nature and relevance of the official information sought.
To overcome Federal statutory restrictions on the disclosure of the requested file imposed by the Privacy Act, 5 U.S.C. § 552a, you must provide either a written release authorization signed by the individual to whom the file pertains (that is, SSG Kramer) or a court ordered release signed by a judge of a court of competent jurisdiction. A subpoena signed by a clerk of court, notary, or other official is insufficient.
In this case, because of the attorney-client relationship between Captain Selby and SSG Kramer, you must produce a written waiver of the attorney-client privilege from SSG Kramer. Because the privilege may protect both documents and testimony, Captain Selby may not divulge such information without SSG Kramer's consent.
In addition to the above requirements, Captain Selby's supervisor must approve her absence from duty.
Finally, if Captain Selby does appear as a witness, she may only give factual testimony. She may not testify as an opinion or expert witness. This limitation is based on Department of Defense and Army policy that generally prohibits Government employees from appearing as expert witnesses in private litigation.
Our sole concern in this matter is to protect the interests of the United States Army; the Army will not block access to witnesses or documents to which you are lawfully entitled. So that the Army can adequately protect its interests in this matter, I request that you respond to this letter by 27 April 1993. If you have any questions, please call CPT Taylor at 919-882-4500.
Sincerely,
Dear Mr. Taylor: This letter responds to your request to interview and depose Captain Buzz Sawyer as a witness in
This grant of authority is limited to factual testimony only. Captain Sawyer may not testify as an expert witness. This limitation is based on Army policy prohibiting Government employees from appearing as expert witnesses in private litigation.
The decision whether to testify in private litigation is within the discretion of the prospective witness. This authorization is also subject to the approval of the witness’ supervisors to be absent during the period involved. Finally, because this is private litigation, the witness’ participation must be at no expense to the United States.
If you have any questions, please call CPT Taylor at 919-882-4500.
Sincerely,
Dear Mr. Taylor: This responds to your request for Mr. Charles Montrose to appear as an expert witness in private litigation:
Army Regulation 27-40 forbids Army personnel from providing expert testimony in private litigation, with or without compensation, except under the most extraordinary circumstances. See 32 CFR §§ 97.6(e), 516.42. Several reasons support the exercise of strict control over such witness appearances.
The Army policy is one of strict impartiality in litigation in which the Army is not a named party, a real party in interest, or in which the Army does not have a significant interest. When a witness with an official connection with the Army testifies, a natural tendency exists to assume that the testimony represents the official view of the Army, despite express disclaimers to the contrary.
The Army is also interested in preventing the unnecessary loss of the services of its personnel in connection with matters unrelated to their official responsibilities. If Army personnel testify as expert witnesses in private litigation, their official duties are invariably disrupted, often at the expense of the Army's mission and the Federal taxpayer.
Finally, the Army is concerned about the potential for conflict of interest inherent in the unrestricted appearance of its personnel as expert witnesses on behalf of parties other than the United States. Even the appearance of such conflicts of interest seriously undermines the public trust and confidence in the integrity of our Government.
This case does not present the extraordinary circumstances necessary to justify the requested witness’ expert testimony. You have demonstrated no exceptional need or unique circumstances that would warrant (his or her) appearance. The expert testimony desired can be secured from non-Army sources. Consequently, we are unable to grant you an exception to the Army's policy.
If you have any questions, please call me or CPT Taylor at 919-882-4500.
Sincerely,
Dear Mr. Taylor: This responds to your request to depose Dr. (MAJ) J. McDonald, Fort Smith Medical Treatment Facility. Pursuant to 32 CFR §§ 516.33-516.49, you may depose him subject to the following conditions:
He may testify as to his treatment of his patient, Sergeant Rock, as to related laboratory tests he may have conducted, or other actions he took in the regular course of his duties.
He must limit his testimony to factual matters such as his observations of the patient or other operative facts, the treatment prescribed or corrective action taken, course of recovery or steps required for treatment of injuries suffered, or contemplated future treatment.
His testimony may not extend to hypothetical questions or to a prognosis. He may not testify as an “expert.” This limitation is based on Department of Defense and Army policy prohibiting present or former military personnel and Army civilian employees from providing opinion or expert testimony concerning official information, subjects, or activities in private litigation.
The witnesses may not provide official information that is classified, privileged, or otherwise protected from public disclosure. To protect the Army's interests, CPT Taylor or another Army attorney will be present during the depositions.
To overcome restrictions imposed by the Privacy Act, 5 U.S.C. § 552a, Dr. McDonald may not discuss matters derived from the patient's medical records absent the patient's written consent or a court order signed by a judge. A subpoena issued by someone other than a judge or magistrate is insufficient.
The decision whether to testify in private litigation is within the discretion of the witness, subject to the approval of his supervisors to be absent during the period involved.
Finally, because this is private litigation, the witnesses’ participation must be at no expense to the United States.
If you have any questions, please call me or CPT Taylor at 919-882-4500.
Sincerely,
1. During the identification of the government and services.
a. Need determinations for items currently scheduled for disposal or reprocurement, or which have predetermined reorder levels.
b. Excessive purchase of “expendables” such as drugs or auto parts.
c. Inadequate or vague need assessment.
d. Frequent changes in the need assessment or determination.
e. Mandatory stock levels and inventory requirements appear excessive.
f. Items appear to be unnecessarily declared excess or sold as surplus, while same items are being reprocured.
g. It appears that an item or service is being purchased more as a result of aggressive marketing efforts rather than in response to a valid requirement.
h. Need determination appears to be unnecessarily tailored in ways that can only be met by certain contractors.
i. Items and services are continually obtained from the same source due to an unwarranted lack of effort to develop second sources.
2. During the development of the statements of work and specifications.
a. Statements of work and specifications appear to be intentionally written to fit the products or capabilities of a single contractor.
b. Statements of work, specifications, or sole source justifications developed by or in consultation with a preferred contractor.
c. Information concerning requirements and pending contracts is released only to preferred contractors.
d. Allowing companies and industry personnel who participated in the preparation of bid packages to perform on subsequent contracts in either a prime or subcontractor capacity.
e. Release of information by firms or personnel participating in design or engineering to companies competing for prime contract.
f. Prequalification standards or specifications appear designed to exclude otherwise qualified contractors or their productions.
g. Requirements appear split up to allow for rotating bids, giving each contractor his or her “fair share.”
h. Requirements appear split up to meet small purchase requirements (that is, $25,000) or to avoid higher levels of approval that would be otherwise required.
i. Bid specifications or statement of work appear inconsistent with the items described in the general requirements.
j. Specifications appear so vague that reasonable comparisons of estimate would be difficult.
k. Specifications appear inconsistent with previous procurements of similar items of services.
3. During the presolicitation phase.
a. Sole source justifications appear unnecessary or poorly supported.
b. Statements justifying sole source or negotiated procurements appear inadequate or incredible.
c. Solicitation documents appear to contain unnecessary requirements which tend to restrict competition.
d. Contractors or their representatives appear to have received advanced information related to the proposed procurement on a preferential basis.
4. During the solicitation phase.
a. Procurement appears to be processed so as to exclude or impede certain contractors.
b. The time for submission of bids appears to be unnecessarily limited so that only those with advance information have adequate time to prepare bids or proposals.
c. It appears that information concerning the procurement has been revealed only to certain contractors, without being revealed to all prospective competitors.
d. Bidders conferences are conducted in a way that apparently invites bid rigging, price fixing, or other improper collusion between contractors.
e. There is an apparent intentional failure to fairly publish notice of the solicitation.
f. Solicitation appears vague as to the details such as time, place and manner, of submitting acceptable bids.
g. There is evidence of improper communications or social contract between contractors and government personnel.
h. Controls over the number and destination of bid packages sent to interested bidders appear inadequate.
i. Indications that government personnel or their families may own stock or have some other financial interest in either a contractor or subcontractor.
j. Indications that government personnel are discussing possible employment for themselves or a family member with a contractor or subcontractor or indications that a proposal for future employment from a contractor or subcontractor to a government employee or his or her family members has not been firmly rejected.
k. Indications that any contractor has received special assistance in preparation of his or her bid or proposal.
l. It appears that a contract is given an expressed or implied reference to a specific subcontractor.
m. Failure to amend solicitation to reflect necessary changes or modifications.
5. During the submission of bids and proposals.
a. Improper acceptance of a late bid.
b. Documents, such as receipts, appear falsified to obtain acceptance of a late bid.
c. Improperly attempting to change a bid after other bidders prices are known.
d. Indications that mistakes have been deliberately planted in a bid to support correction after bid opening.
e. Withdrawal by a low bidder who may later become a subcontractor to a higher bidder who gets the contract.
f. Apparent collusion or bid rigging among the bidders.
g. Bidders apparently revealing their prices to each other.
h. Required contractor certifications appear falsified.
i. Information concerning contractor's qualifications, finances, and capabilities appears falsified.
6. During the evaluation of bids and proposals.
a. Deliberately losing or discarding bids of certain contractors.
b. Improperly disqualifying the bids or proposals of certain contractors.
c. Accepting apparently nonresponsive bids from preferred contractors.
d. Unusual or unnecessary contacts between government personnel and contractors during solicitation, evaluation, and negotiation.
e. Any apparently unauthorized release of procurement information to a contractor or to non-government personnel.
f. Any apparent favoritism in the evaluation of the bid or proposal of a particular contractor.
g. Apparent bias in the evaluation criteria or in the attitude or actions of the members of the evaluation panel.
7. During contract formation and administration.
a. Defective pricing by the contractor usually associated with submitting false cost and pricing data under the Truth in Negotiation Act.
b. Cost/Labor mischarging.
c. Product substitution.
d. Progress payment fraud. For more details on these subjects see DA PAM 27-153, Contract Law, paragraph 23-5.
(Provide sufficient detail for reviewers of the plan to evaluate the appropriateness of the planned remedies. If information is “close-hold” or if grand jury secrecy applies, so state.)
(Describe any adverse impact on the DA/DOD mission. Adverse impact is described in DOD Directive 7050.5, paragraph E.1.g. Identify impact as actual or potential. Describe the impact in terms of monetary loss, endangerment to personnel or property, mission readiness, etc. This information should be considered in formulating your remedies as described below and provided to prosecutors for their use in prosecution of the offenses.)
A. Criminal Sanctions. (As a minimum, address the following: Are criminal sanctions appropriate? If so, which ones? If not, why not? Has the local U.S. Attorney or other civilian prosecutor been notified and briefed? What actions have been taken or are intended? If and when action is complete, describe action and final results of the action. Other pertinent comments should be included.)
B. Civil Remedies. (As a minimum address the following: Which civil remedies are appropriate? Has the local U.S. Attorney or other civilian prosecutor been notified and briefed? How, when, where and by whom are the appropriate civil remedies implemented? If and when action is completed, describe action and final results. Other pertinent comments should be included.)
C. Contractual/Administrative Remedies. (As a minimum, address the following: Are contractual and administrative remedies appropriate: If so, which ones? If not, Why? If contractual or administrative remedies are considered appropriate, describe how, when, and by whom the remedies are implemented. If and when action is completed, describe action and results of the action. Other pertinent comments should be included.)
D. Restrictions on Remedies Action. (Comment as to why obvious remedies are not being pursued. For example, the U.S. Attorney requests suspension action held in abeyance pending criminal action.)
1. Under no circumstances is testing to proceed unless the command has committed sufficient funding to cover the entire cost of the projected testing.
2. No testing will be initiated unless there has been a written request for the testing to the appropriate Procurement Fraud Advisor from a criminal investigator or Assistant United States Attorney or Department of Justice Attorney (AUSA is used in these procedures to indicate either an AUSA or Department of Justice attorney). If they have not already done so, criminal investigators should be requested to coordinate their testing requests with the AUSA overseeing the investigation.
3. Barring extraordinary circumstances, only one test will be conducted to support the criminal and civil recovery efforts of a procurement fraud/irregularity matter. Early coordination with the Civil Division of Department of Justice or the local United States Attorneys Office is necessary to ensure that testing funds are not wasted.
4. The request for testing should include a clear, concise statement of the purpose of the testing to include a statement of the allegations made and the contact number(s) involved.
5. No testing will be initiated unless a test plan has been developed which states the following:
6. The test plan shall be coordinated with the concurrence received in advance from the appropriate personnel in the Procurement Directorate, Product Assurance and Test Directorate, the Procurement Fraud Advisor, and the investigator/AUSA requesting the test. No testing will be initiated until the criminal investigator/AUSA who requested the testing has approved the test plan.
7. If the items tested are to be retained as evidence, the criminal investigator should arrange for retention of the evidence. While the Command will support evidence retention, this is primarily the responsibility of the criminal investigators. Agents should be advised that putting items in Code L or similar non-use status is insufficient to protect it from being released to the field.
8. All items to be tested should be from a statistically valid random sample. The sample should conform with the inspection requirements of the contract or be in conformance with a random sample specifically developed for the instant test plan. It is recommended that a statistician be consulted to determine the feasibility of a random sample specifically created to support the test plan.
9. Results of testing should be available to Command and DA personnel for appropriate contractual and administrative remedies. Any request for testing results that indicates that dissemination of the testing results will be limited by Rule 6(e) of the Federal Rules of Criminal Procedure is to be forwarded through the MACOM or AMC Procurement Fraud Coordinator to DA Procurement Fraud Division prior to the initiation of any testing.
10. Resolution of problems associated with testing requests should be conducted at the local level. In AMC the authority to refuse a testing request resides with the Office of Command Counsel. Any disputes which cannot be resolved at the local level will be forwarded to the AMC or MACOM Procurement Fraud Coordinator for resolution. This includes disputes regarding funding or any time sensitive issues.
11. Second requests for testing of the same item due to a change in the investigative plan require coordination by the PFA with the investigator
a. DA employees or military members asked to provide information (testimonial or documentary) to OSC may obtain legal advice through the Labor Counselor from DA attorneys concerning their rights and obligations. This includes assistance at any interviews with OSC investigators. However, an attorney-client relationship will not be established unless the employee or military member—
(1) Is suspected or accused by the OSC of committing a prohibited personnel practice or other illegal or improper act; and
(2) Has been assigned counsel by the DA General Counsel.
b. Any military member or employee who reasonably believes that he or she is suspected or has been accused by OSC of committing a prohibited personnel practice or other illegal or improper act may obtain legal representation from DA. The counsel assigned will be from another DOD component whenever a DA attorney is likely to face a conflict between the attorney's ethical obligation to the client and DA, or when
c. The DA General Counsel will determine whether a conflict is likely to occur if a DA attorney is assigned to represent a military member or civilian. If the DA General Counsel determines a conflict may occur, or if the suspected or accused employee has requested representation from another DOD component, the DA General Counsel will seek the assistance of another General Counsel in obtaining representation outside DA.
2. Requests for Representation
a. To obtain legal representation, military members or civilian employees must—
(1) Submit a written request for legal representation through the Labor and Employment Law Office, Office of the Judge Advocate General, Department of the Army, to DA General Counsel, explaining the circumstances that justify legal representation. Copies of all process and pleadings served should accompany the request.
(2) Indicate whether private counsel, at personal expense, has been retained.
(3) Obtain written certification from their supervisor that—
(a) They were acting within the scope of official duties; and
(b) DA has not initiated any adverse or disciplinary action against them for the conduct being investigated by the OSC.
b. Requests for DA legal representation must be approved by the DA General Counsel.
c. The conditions of legal representation must be explained and accepted in writing by the member or employee.
a. DA will not provide legal representation with respect to a DA initiated disciplinary action against a civilian employee for committing or participating in a prohibited personnel practice or for engaging in illegal or improper conduct. This prohibition applies regardless of whether the participation or conduct is also the basis for the disciplinary action proposed by the OSC.
b. In certain situations, counsel provided by DA may be limited to representing the individual only with respect to some of the pending matters, if other specific matters of concern to the OSC or MSPB do not satisfy the requirements contained in this regulation.
a. An attorney-client relationship will be established and continued between the suspected or accused individual and assigned DA counsel.
b. In representing a DA employee or military member, the DA attorney designated as counsel will act as a vigorous advocate of the individual's legal interests before the OSC or MSPB. The attorney's professional responsibility to DA will be satisfied by fulfilling this responsibility to the employee or military member. Legal representation may be terminated only with the approval of the DA General Counsel and normally only on the basis of information not available at the time the attorney was assigned.
c. The attorney-client relationship may be terminated if the assigned DA counsel determines, with the approval of the DA General Counsel, that—
(1) The military member or civilian employee was acting outside the scope of his or her official duties when engaging in the conduct that is the basis for the OSC investigation or charge; and
(2) Termination is not in violation of the rules of professional conduct applicable to the assigned counsel.
d. The DA attorney designated as counsel may request relief from the duties of representation or counseling without being required to furnish explanatory information that might compromise confidential communications between the client and the attorney.
This regulation authorizes cognizant DA officials to approve requests from military members or civilian employees for travel, per diem, witness appearances, or other departmental support necessary to ensure effective legal representation by the designated counsel.
A military member's or civilian employee's participation in OSC investigations, MSPB hearings, and other related proceedings will be considered official departmental business for time and attendance requirements and similar purposes.
The following advice to military members and civilian employees questioned during the course of an OSC investigation may be appropriate in response to these frequent inquiries:
a. A witness may decline to provide a “yes” or “no” answer in favor of a more qualified answer when this is necessary to ensure accuracy in responding to an OSC interviewer's question.
b. Requests for clarification of both questions and answers are appropriate to avoid misinterpretation.
c. Means to ensure verifications of an interview by OSC investigators are appropriate, whether or not the military member or civilian employee is accompanied by counsel. Tape recorders may only be used for this purpose when—
(1) The recorder is used in full view.
(2) All attendees are informed.
(3) The OSC investigator agrees to record the proceeding.
d. Any errors that appear in a written summary of an interview prepared by the investigator should be corrected before the member or employee signs the statement. The military member or civilian employee is not required to sign any written summary that is not completely accurate. A military member or civilian employee may receive a copy of the summary as a condition of signing.
5 U.S.C. 551, 552, 552a, 5101-5108, 5110-5113, 5115, 5332-5334, 5341-42, 5504-5509, 7154; 10 U.S.C. 130, 1102, 2320-2321, 2328, 18 U.S.C. 798, 3500; 31 U.S.C. 3710; 35 U.S.C. 181-188; 42 U.S.C. 2162; 44 U.S.C. 33; and Executive Order 12600.
(a) Title 5, United States Code, section 552.
(b) DoD Directive 5400.7, “DoD Freedom of Information Act Program,” May 13, 1988.
(c) Public Law 86-36, “National Security Information Exemption.”
(d) DoD Directive 5400.11, “Department of Defense Privacy Program,” June 9, 1982.
(e) DoD 5400.11-R, “Department of Defense Privacy Program,” August 1983, authorized by DoD Directive 5400.11, June 9, 1982.
(f) DoD Directive 5100.3, “Support of the Headquarters of Unified, Specified and Subordinate Commands,” November 1, 1988.
(g) Title 5, United States Code, section 551, “Administrative Procedures Act.”
(h) DoD 5200.1-R, “DoD Information Security Program Regulation,” January 1987, authorized by DoD Directive 5200.1, June 7, 1982.
(i) Title 35, United States Code, section 181-188, “Patent Secrecy.”
(j) Title 42, United States Code, section 2162, “Restricted Data and Formerly Restricted Data.”
(k) Title 18, United States Code, section 98, “Communication Intelligence.”
(l) Title 18, United States Code, section 3500, “The Jencks Act.”
(m) DoD Directive 5230.24, “Distribution Statements on Technical Documents,” March 18, 1987.
(n) DoD Directive 5400.4, “Provision of Information to Congress,” January 30, 1978.
(o) DoD Directive 7650.1, “General Accounting Office Access to Records,” August 26, 1982.
(p) ACP-121 (United States Supplement 1).
(q) Title 44, United States Code, chapter 33, “Disposal of Records.”
(r) DoD Instruction 7230.7, “User Charges,” January 29, 1985.
(s) DoD Directive 5000.11, “Data Elements and Data Codes Standardization Program,” December 7, 1964.
(t) DoD Directive 7750.5, “Management and Control of Information Requirements,” August 7, 1986.
(u) DoD 7220.9-M, “Department of Defense Accounting Manual,” 1983, authorized by DOD Instruction 7220.9, October 22, 1981.
(v) DoD Directive 5230.25, “Withholding of Unclassified Technical Data From Public Disclosure,” November 6, 1984.
(w) DoD Directive 5230.9, “Clearance of DoD Information for Public Release,” April 2, 1982.
(x) DoD Directive 7650.2, “General Accounting Office Audits and Reports,” July 19, 1985.
(y) Title 10, United States Code, section 2328, “Release of Technical Data under Freedom of Information Act: Recovery of Costs”.
(z) Title 10, United States Code, section 130, “Authority to Withhold from Public Disclosure Certain Technical Data.”
(aa) Title 10, United States Code, section 2320-2321, “Rights in Technical Data.”
(bb) Title 10, United States Code, section 1102, “Confidentiality of Medical Quality Records: Qualified Immunity Participants.”
(cc) DoD Federal Acquisition Regulation Supplement (DFARS), subpart 227.4, “Technical Data, Other Data, Computer Software and Copyrights,” October 28, 1988.
(dd) Executive Order 12600, “Predisclosure Procedures for Confidential Commercial Information,” June 23, 1987.
(ee) Title 31, United States Code, section 3717, “Interest and Penalty on Claims.”
(ff) Title 5, United States Code, section 552a, as amended, “The Privacy Act of 1974.”
(gg) DoD 5000.12-M, “DoD Manual for Standard Data Elements,” October 1986, authorized by DoD Instruction 5000.12, July 1989.
(hh) DoD Instruction 5400.10, “OSD Implementation of DoD Freedom of Information Act Program,” January 24, 1991.
(ii) Title 32, Code of Federal Regulations, part 518, The Army Freedom of Information Act Program.
(jj) Title 10, United States Code, section 128, “Physical Protection of Special Nuclear Material: Limitation on Dissemination of Unclassified Information”.
(kk) Public Law 101-189, National Defense Authorization Act, November 1989, 103 Stat. 1352.
(a) Required publications.
(1) AR 1-20 (Legislative Liaison) (cited in §§ 518.44 and 518.46).
(2) AR 20-1 (Inspector General Activities and Procedures) (cited in §§ 518.4, 518.58 and appendix B).
(3) AR 25-1 (The Army Information Resource Management Program) (cited in §§ 518.3 and 518.29).
(4) AR 25-9 (Army Data Management and Standards Program) (cited in § 518.98).
(5) AR 25-400-2 (The Modern Army Recordkeeping System (MARKS)) (cited in §§ 518.30, 518.51, 518.66, and appendix B).
(6) AR 27-20 (Claims) (cited in § 518.4 and 518.51).
(7) AR 36-2 (Processing Internal and External Audit Reports and Follow-up on Findings and Recommendations) (cited in § 518.4).
(8) AR 40-66 (Medical Record and Quality Assurance Administration) (cited in § 518.17).
(9) AR 40-400 (Patient Administration) (cited in § 518.4).
(10) AR 25-11 (Record Communications) (cited in § 518.46).
(11) AR 195-2 (Criminal Investigation Activities) (cited in §§ 519.4-519.56).
(12) AR 340-21 (The Army Privacy Program) (cited in §§ 518.22, 518.37 and 518.56).
(13) AR 360-5 (Public Information) (cited in §§ 518.4 and 518.54).
(14) AR 380-5 (Department of the Army Information Security Program) (cited in §§ 518.4, 518.37, 518.53 and 518.56).
(15) AR 530-1 (Operations Security (OPSEC)) (cited in §§ 518.53 and 518.54).
(16) AR 600-85 (Alcohol and Drug Abuse Prevention and Control Program) (cited in § 518.4 and 518.54).
(b) Related publications. A related publication is merely a source of additional information. The user does not have to read it to understand this regulation.
(1) AR 5-13 (Installation Management and Organization).
(2) AR 10-series (Organization and Functions).
(3) AR 25-3 (Army Life Cycle Management of Information Systems).
(4) AR 27-10 (Military Justice).
(5) AR 27-40 (Litigation).
(6) AR 27-60 (Patents, Inventions, and Copyrights).
(7) AR 60-20 (Army and Air Force Exchange Service (AAFES) Operating Policies) (AFR 147-14).
(8) AR 70-31 (Standards for Technical Reporting).
(9) AR 190-45 (Military Police Law Enforcement Reporting).
(10) AR 380-10 (Department of the Army Policy for Disclosure of Information, Visits, and Accreditation of Foreign Nationals (U)).
(11) AR 381-45 (Investigative Records Repository (IRR)).
(12) AR 385-40 (Accident Reporting and Records).
(13) AR 640-10 (Individual Military Personnel Records).
(14) DA Pam 25-30 (Consolidated Index of Army Publications and Blank Forms).
(15) DA Pam 25-51 (The Army Privacy Program-Systems Notices and Exemption Rules).
(16) DA Pam 385-95 (Aircraft Accident Investigation and Reporting).
(17) DoD 4500.11-PH (Defense Privacy Board Advisory Opinions).
(18) Title 10, United States Code, section 128, “Physical Protection of Special Nuclear Material: Limitation on Dissemination of Unclassified Information”.
(c) Prescribed forms.
(1) DA Form 4948-R (Freedom of Information Act (FOIA/Operations Security) (OPSEC) Desktop Guide) (prescribed in §§ 518.50 and 518.49).
(2) DA Label 87 (For Official Use Only Cover Sheet) (prescribed in §§ 518.41 and 518.44).
(3) DD Form 2086 (Record of Freedom of Information (FOI) Processing Cost) (prescribed in § 518.81).
(4) DD Form 2086-1 (Record of Freedom of Information (FOI) Processing Cost for Technical Data) (prescribed in § 518.92a).
The purpose of this Regulation is to provide policies and procedures for the Department of Defense (DoD) implementation of the Freedom of Information Act and DoD Directive 5400.7 (references (a) and (b)) and to promote uniformity in the DoD Freedom of Information Act (FOIA) Program. This Army regulation implements provisions for access and release of information from all Army information systems (automated and manual) in support of the Information Resources Management Program (AR 25-1).
(a) This Regulation applies to the Office of the Secretary of Defense (OSD), which includes for the purpose of this Regulation the Joint Staff, Unified Commands, the Military Departments, the Defense Agencies, and the DoD Field Activities (hereafter referred to as “DoD Components”), and takes
(b) The National Security Agency records are subject to the provisions of this Regulation, only to the extent the records are not exempt under Public Law 86-36 (reference (c)).
(c) This part applies to—
(1) Active Army.
(2) Army National Guard.
(3) U.S. Army Reserve.
(4) Organizations for which the Department of the Army (DA) is the Executive Agent.
(d) This regulation governs written FOIA requests from members of the public. It does not preclude release of personnel or other records to agencies or individuals in the Federal Government for use in official work. Section 518.52(a) gives procedures for release of personnel information to Government agencies outside DOD.
(e) Soldiers and civilian employees of the Department of the Army may, as private citizens, request DA or other agencies’ records under the FOIA. They must prepare requests at their own expense and on their own time. They may not use Government equipment, supplies, or postage to prepare personal FOIA requests. It is not necessary for soldiers or civilian employees to go through the chain of command to request information under the FOIA.
(f) Requests for DA records processed under the FOIA may be denied only in accordance with the FOIA (5 U.S.C. 552(b)), as implemented by this regulation. Guidance on the applicability of the FOIA is also found in the Federal Acquisition Regulation (FAR) and in the Federal Personnel Manual (FPM).
(g) Release of some records may also be affected by the programs that created them. They are discussed in the following regulations:
(1) AR 20-1 (Inspector General reports).
(2) AR 27-10 (military justice).
(3) AR 27-20 (claims reports).
(4) AR 27-60 (patents, inventions, and copyrights).
(5) AR 27-40 (litigation: release of information and appearance of witnesses).
(6) AR 36-2 (GAO audits).
(7) AR 40-66 and AR 40-400 (medical records).
(8) AR 70-31 (technical reports).
(9) AR 20-1, AR 385-40, and DA Pam 385-95 (aircraft accident investigations).
(10) AR 195-2 (criminal investigation activities).
(11) AR 190-45 (Military Police records and reports).
(12) AR 360-5 (Army public affairs: public information, general policies on release of information to the public).
(13) AR 380-10 (release of information on foreign nationals).
(14) AR 381-45 (U.S. Army Intelligence and Security Command investigation files).
(15) AR 385-40 (safety reports and records).
(16) AR 600-85 (alcohol and drug abuse records).
(17) AR 640-10 (military personnel records).
(18) AR 690 series, FPM Supplement 293-31; FPM chapters 293, 294, and 339 (civilian personnel records).
(19) AR 380-5 and DOD 5200.1-R (national security classified information).
(20) Federal Acquisition Regulation (FAR), DOD Federal Acquisition Regulation Supplement (DFARS), and the Army Federal Acquisition Regulation Supplement (AFARS) (procurement matters).
(21) AR 380-5, paragraph 7-101e (policies and procedures for allowing persons outside the Executive Branch to do unofficial historical research in classified Army records.
The ODISC4 has the authority to approve exceptions to this part which are consistent with controlling law and regulation. The ODISC4 may delegate this authority in writing to a division chief within the proponent agency who holds the rank of colonel or the civilian equivalent. The approval authority coordinate all questions regarding the scope of authority to approve exceptions with Headquarters Department of
The public has a right to information concerning the activities of its Government. DoD policy is to conduct its activities in an open manner and provide the public with a maximum amount of accurate and timely information concerning its activities, consistent always with the legitimate public and private interests of the American people. A DoD record requested by a member of the public who follows rules established by proper authority in the Department of Defense shall be withheld only when it is exempt from mandatory public disclosure under the FOIA. In the event a requested record is exempt under the FOIA, it may nonetheless be released when it is determined that no governmental interest will be jeopardized by the release of the record. (See § 518.36 for clarification.) In order that the public may have timely information concerning DoD activities, records requested through public information channels by news media representatives that would not be withheld if requested under the FOIA should be released upon request unless the requested records are in a Privacy Act system of records; such records in a Privacy Act system of records will not be released absent a written request under the FOIA, unless otherwise releasable under the Privacy Act. Prompt responses to requests for information from news media representatives should be encouraged to eliminate the need for these requesters to invoke the provisions of the FOIA and thereby assist in providing timely information to the public. Similarly, requests from other members of the public for information should continue to be honored through appropriate means even though the request does not qualify under FOIA requirements.
A request for records that invokes the FOIA shall enter a formal control system designed to ensure compliance with the FOIA. A release determination must be made and the requester informed within the time limits specified in this Regulation. Any request for DoD records that either explicitly or implicitly cites the FOIA shall be processed under the provisions of this Regulation, unless otherwise required by § 518.31.
As used in this regulation, definitions and terms are listed in appendix F to this part.
A written request for DoD records, made by any person, including a member of the public (U.S. or foreign citizen), an organization, or a business, but not including a Federal agency or a fugitive from the law that either explicitly or implicitly invokes the FOIA, DoD Directive 5400.7 (reference b), this part, or DoD Component supplementing regulations or instructions. This part is the Department of the Army's supplementing regulation.
(a) The products of data compilation, such as all books, papers, maps, and photographs, machine readable materials or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law in connection with the transaction of public business and in DoD's possession and control at the time the FOIA request is made.
(b) The following are not included within the definition of the word “record”:
(1) Objects or articles, such as structures, furniture, vehicles and equipment, whatever their historical value, or value as evidence.
(2) Administrative tools by which records are created, stored, and retrieved, if not created or used as sources of information about organizations, policies, functions, decisions, or procedures of a DoD Component. Normally, computer software, including source code, object code, and listings of source and object codes, regardless of
(3) Anything that is not a tangible or documentary record, such as an individual's memory or oral communication.
(4) Personal records of an individual not subject to agency creation or retention requirements, created and maintained primarily for the convenience of an agency employee, and not distributed to other agency employees for their official use.
(5) Information stored within a computer for which there is no existing computer program for retrieval of the requested information.
(c) In some instances, computer software may have to be treated as an agency record and processed under the FOIA. These situations are rare, and shall be treated on a case-by-case basis. Examples of when computer software may have to be treated as an agency record are:
(1) When the data is embedded within the software and cannot be extracted without the software. In this situation, both the data and the software must be reviewed for release or denial under the FOIA.
(2) Where the software itself reveals information about organizations, policies, functions, decisions, or procedures of a DoD Component, such as computer models used to forecast budget outlays, calculate retirement system costs, or optimization models on travel costs.
(3) See subpart C of this part for guidance on release determinations of computer software.
(d) A record must exist and be in the possession and control of the Department of Defense at the time of the request to be considered subject to this Regulation and the FOIA. There is no obligation to create, compile, or obtain a record to satisfy an FOIA request.
(e) If unaltered publications and processed documents, such as regulations, manuals, maps, charts, and related geophysical materials are available to the public through an established distribution system with or without charge, the provisions of 5 U.S.C. 552(a)(3) normally do not apply and they need not be processed under the FOIA. Normally, documents disclosed to the public by publication in the
An element of the Department of Defense, as defined in § 518.4, authorized to receive and act independently on FOIA requests. A DoD Component has its own initial denial authority (IDA) or appellate authority, and general counsel. The Department of the Army is a DOD Component.
An official who has been granted authority by the head of a DoD Component to withhold records requested under the FOIA for one or more of the nine categories of records exempt from mandatory disclosure. The Department of the Army's Initial Denial Authorities are designated in § 518.58(d).
The Head of the DoD Component or the Component head's designee having jurisdiction of this purpose over the record. The Department of the Army's appellate authority is the Office of General Counsel.
A request by a member of the general public, made under the FOIA, asking the appellate authority of a DoD Component to reverse an IDA decision to withhold all or part of a requested record or to deny a request for waiver or reduction of fees.
Public interest is official information that sheds light on an agency's performance of its statutory duties because the information falls within the
Electronic data are those records and information which are created, stored, and retrievable by electronic means. This does not include computer software, which is the tool by which to create, store, or retrieve electronic data. See § 518.10 (b)(2) and (c) for a discussion of computer software.
An investigation conducted by a command or agency for law enforcement purposes relating to crime, waste, or fraud or for national security reasons. Such investigations may include gathering evidence for criminal prosecutions and for civil or regulatory proceedings.
DoD personnel are expected to comply with the provisions of the FOIA and this Regulation in both letter and spirit. This strict adherence is necessary to provide uniformity in the implementation of the DoD FOIA Program and to create conditions that will promote public trust.
The Department of Defense shall conduct its activities in an open manner consistent with the need for security and adherence to other requirements of law and regulation. Records not specifically exempt from disclosure under the Act shall, upon request, be made readily accessible to the public in accordance with rules promulgated by competent authority, whether or not the Act is invoked.
(a) Operations Security (OPSEC). DA officials who release records under the FOIA must also consider OPSEC. The Army implementing directive is AR 530-1. Section 518.53 of this publication gives the procedure for FOIA personnel and the IDA to follow when a FOIA request appears to involve OPSEC.
(b) DA Form 4948-R. This form lists references and information frequently used for FOIA requests related to OPSEC. Persons who routinely deal with the public (by telephone or letter) on such requests should keep the form on their desks as a guide. DA Form 4948-R (Freedom of Information Act (FOIA)/Operations Security (OPSEC) Desk Top Guide) will be locally reproduced on 8
DoD Components shall ensure that procedural matters do not unnecessarily impede a requester from obtaining DoD records promptly. Components shall provide assistance to requesters to help them understand and comply with procedures established by this regulation and any supplemental regulations published by the DoD Components.
When a member of the public complies with the procedures established in this part for obtaining DoD records, the request shall receive prompt attention; a reply shall be dispatched within 10 working days, unless a delay is authorized. When a Component has a significant number of requests, e.g., 10 or more, the requests shall be processed in order of receipt. However, this does not preclude a Component from completing action on a request which can be easily answered, regardless of its ranking within the order of receipt. A DoD Component may expedite action on a request regardless of its ranking within the order of receipt upon a showing of exceptional need or urgency. Exceptional need or urgency is determined at the discretion of the compliment processing the request.
(a) The 10-day period prescribed for review of initial requests under the
(1) Is in writing.
(2) Reasonably describes the record requested.
(3) Is received by the proper official designated to answer the request (see appendix B to this part).
(4) Meets the procedural requirements of this part (see § 518.85(b)(9)).
(b) All requests shall refer explicitly or implicitly to the Freedom of Information Act, to ensure their prompt recognition as FOIA actions.
(c) Members of the public who make FOIA requests should carefully follow the guidance in this part. They should send requests to the office that has the desired record or to a specific agency FOIA official for referral. The Army Freedom of Information and Privacy Act Division, Information Systems Command, Attn: ASQNS-OF-F, room 1146, Hoffman Building I, Alexandria, VA 22331-0301 can supply correct addresses.
(d) See Army Regulation 340-21 for Privacy Act procedures.
(a) It is the DoD policy to make records publicly available, unless they qualify for exemption under one or more of the nine exemptions. Components (IDA) may elect to make a discretionary release, however, a discretionary release is generally not appropriate for records exempt under exemptions 1, 3, 4, 6, and 7(c). Exemptions 4, 6, and 7(c) cannot be claimed when the requester is the submitter of the information.
(b) Parts of a requested record may be exempt from disclosure under the FOIA. The proper DA official may delete exempt information and release the remainder to the requester. The proper official also has the discretion under the FOIA to release exempt information; he or she must exercise this discretion in a reasonable manner, within regulations. The excised copies shall reflect the denied information by means of Blackened areas, which are Sufficiently Blackened as to reveal no information. The best means to ensure illegibility is to cut out the information from a copy of the document and reproduce the appropriate pages. If the document is classified, all classification markings shall be lined through with a single black line, which still allows the marking to be read. The document shall then be stamped “Unclassified”.
Nonexempt records released under the authority of this part are considered to be in the public domain. Such records may also be made available in Components’ reading rooms to facilitate public access. Exempt records released pursuant to this part or other statutory or regulatory authority, however, may be considered to be in the public domain only when their release constitutes a waiver of the FOIA exemption. When the release does not constitute such a waiver, such as when disclosure is made to a properly constituted advisory committee or to a Congressional Committee, the released records do not lose their exempt status. Also, while authority may exist to disclose records to individuals in their official capacity, the provisions of this part apply if the same individual seeks the records in a private or personal capacity.
(a) A record must exist and be in the possession and control of the Department of Defense at the time of the search to be considered subject to this part and the FOIA. Mere possession of a record does not presume departmental control and such records, or identifiable portions thereof, would be referred to the originating Agency for direct response to the requester. There is no obligation to create not compile a record to satisfy an FOIA request. A DoD Component, however, may compile a new record when so doing would result in a more useful response to the requester, or be less burdensome to the agency than providing existing records, and the requester does not object. Cost of creating or compiling such a record may not be charged to the requester unless the fee for creating the record is equal to or less than the fee which
(b) With respect to electronic data, the issue of whether records are actually created or merely extracted from an existing database is not always readily apparent. Consequently, when responding to FOIA requests for electronic data where creation of record, programming, or particular format are questionable, components should apply a standard of reasonableness. In other words, if the capability exists to respond to the request, and the effort would be a business as usual approach, then the request should be processed. However, the request need not be processed where the capability to respond does not exist without a significant expenditure of resources, thus not being a normal business as usual approach.
(c) Requested records, or portions thereof, may be located at several Army offices. The official receiving the FOIA request will refer it to those other offices for a direct reply if—
(1) The information must be reviewed for release under the FOIA; and
(2) Assembling the information would interfere materially with DA operations at the site first receiving the request.
(a) Identification of the record desired is the responsibility of the member of the public who requests a record. The requester must provide a description of the desired record, that enables the Government to locate the record with a reasonable amount of effort. The Act does not authorize “fishing expeditions.” When a DoD Component receives a request that does not “reasonably describe” the requested record, it shall notify the requester of the defect. The defect should be highlighted in a specificity letter, asking the requester to provide the type of information outlined below in § 518.61(b) of this publication. Components are not obligated to act on the request until the requester responds to the specificity letter. When practicable, Components shall offer assistance to the requester in identifying the records sought and in reformulating the request to reduce the burden on the agency in complying with the Act. DA officials will reply to unclear requests by letter. The letter will—
(1) Describe the defects in the request.
(2) Explain the types of information in paragraph (b) of this section, and ask the requester for such information.
(3) Explain that no action will be taken on the request until the requester replies to the letter.
(b) The following guidelines are provided to deal with “fishing expedition” requests and are based on the principle of reasonable effort. Descriptive information about a record may be divided into two broad categories.
(1) Category I is file-related and includes information such as type of record (for example, memorandum), title, index citation, subject area, date the record was created, and originator.
(2) Category II is event-related and includes the circumstances that resulted in the record being created or the date and circumstances surrounding the event the record covers.
(c) Generally, a record is not reasonably described unless the description contains sufficient Category I information to permit the conduct of an organized, nonrandom search based on the Component's filing arrangements and existing retrieval systems, or unless the record contains sufficient Category II information to permit inference of the Category I elements needed to conduct such a search.
(d) The following guidelines deal with requests for personal records. Ordinarily, when personal identifiers are provided only in connection with a request for records concerning the requester, only records retrievable by personal identifiers need be searched. Search for such records may be conducted under Privacy Act procedures. No record may be denied that is releasable under the FOIA.
(e) The above guidelines notwithstanding, the decision of the DoD Component concerning reasonableness of description must be based on knowledge of its files. If the description enables DoD Component personnel with
(a) A request received by a DoD Component having no records responsive to a request shall be referred routinely to another DoD Component, if the other Component confirms that it has the requested record, and this belief can be confirmed by the other DoD Component. In cases where the Component receiving the request has reason to believe that the existence or nonexistence of the record may in itself be classified, that Component will consult the DoD Component having cognizance over the record in question before referring the request. If the DoD Component that is consulted determines that the existence or nonexistence of the record is in itself classified, the requester shall be so notified by the DoD Component originally receiving the request, and no referral shall take place. Otherwise, the request shall be referred to the other DoD Component, and the requester shall be notified of any such referral. Any DoD Component receiving a request that has been misaddressed shall refer the request to the proper address and advise the requester. Within the Army, referrals will be made directly to offices that may have custody of requested records. If the office receiving the FOIA request does not know where the requested records are located, the request and an explanatory cover letter will be forwarded to The Army Freedom of Information and Privacy Act Division, Information Systems Command, Attn: ASQNS-OP-F, room 1146, Hoffman Building I, Alexandria, VA 22331-0301.
(b) Whenever a record or a portion of a record is, after prior consultation, referred to another DoD Component or to a Government agency outside of the Department of Defense for a release determination and direct response, the requester shall be informed of the referral. Referred records shall only be identified to the extent consistent with security requirements.
(c) A DoD Component shall refer an FOIA request for a classified record that it holds to another DoD Component or agency outside the Department of Defense, if the record originated in the other DoD Component or outside agency or if the classification is derivative. In this situation, provide the record and a release recommendation on the record with the referral action.
(d) A DoD Component may also refer a request for a record that it originated to another DoD Component or agency when the record was created for the use of the other DoD Component or agency. The DoD Component or agency for which the record was created may have an equally valid interest in withholding the record as the DoD Component that created the record. In such situations, provide the record and a release recommendation on the record with the referral action. An example of such a situation is a request for audit reports prepared by the Defense Contract Audit Agency. These advisory reports are prepared for the use of contracting officers and their release to the audited contractor shall be at the discretion of the contracting officer. Any FOIA request shall be referred to the appropriate contracting officer and the requester shall be notified of the referral.
(e) Within the Department of Defense, a Component shall ordinarily refer an FOIA request for a record that it holds, but that was originated by another DoD Component or that contains substantial information obtained from another DoD Component, to that Component for direct response, after direct coordination and obtaining concurrence from the Component. The requester then shall be notified of such referral. DoD Components shall not, in any case, release or deny such records without prior consultation with the other DoD Component.
(f) DoD Components that receive referred requests shall answer them in accordance with the time limits established by the FOIA and this Regulation. Those time limits shall begin to run upon receipt of the referral by the official designated to respond.
(g) Agencies outside the Department of Defense that are subject to the FOIA:
(1) A Component may refer as FOIA request for any record that originated in an agency outside the DoD or that is based on information obtained from an outside agency to the agency for direct
(2) A DoD Component shall refer to the agency that provided the record any FOIA request for investigative, intelligence, or any other type of records that are on loan to the Department of Defense for a specific purpose, if the records are restricted from further release and so marked. However, if for investigative or intelligence purposes, the outside agency desires anonymity, a Component may only respond directly to the requester after coordination with the outside agency.
(3) Notwithstanding anything to the contrary in § 518.26, a Component shall notify requesters seeking National Security Council (NSC) or White House documents that they should write directly to the NSC or White House for such documents. DoD documents in which the NSC or White House has a concurrent reviewing interest shall be forwarded to the Office of the Assistant Secretary of Defense (Public Affairs) (OASD(PA)), Attn: Directorate For Freedom of Information and Security Review (DFOISR), which shall effect coordination with the NSC or White House, and return the documents to the originating agency after NSC review and determination. NSC or White House documents discovered in Components’ files which are responsive to the FOIA request shall be forwarded to OASD(PA), Attn: DFOISR, for subsequent coordination with the NSC or White House, and returned to the Component with a release determination.
(h) To the extent referrals are consistent with the policies expressed by this paragraph, referrals between offices of the same DoD Component are authorized.
(i) On occasion, the Department of Defense receives FOIA requests for General Accounting Office (GAO) documents containing DoD information. Even though the GAO is outside the Executive Branch, and not subject to the FOIA, all FOIA requests for GAO documents containing DoD information received either from the public, or on referral from the GAO, will be processed under the provisions of the FOIA. In DA, requests received for GAO documents that contain classified Army information will be handled by the Army Inspector General's Office.
Records provided under this part shall be authenticated with an appropriate seal, whenever necessary, to fulfill an official Government or other legal function. This service, however, is in addition to that required under the FOIA and is not included in the FOIA fee schedule. DoD Components may charge for the service at a rate of $5.20 for each authentication.
(a) The Unified Commands are placed under the jurisdiction of the OSD, instead of the administering Military Department, only for the purpose of administering the DoD FOIA Program. This policy represents an exception to the policies directed in DoD Directive 5100.3 (reference (f)); it authorizes and requires the Unified Commands to process Freedom of Information (FOI) requests in accordance with DoD Directive 5400.7 (reference (b)) and this Regulation. The Unified Commands shall forward directly to the OASD(PA), all correspondence associated with the appeal of an initial denial for records under the provisions of the FOIA. Procedures to effect this administrative requirement are outlined in appendix A. For Army components of unified commands, if the requested records are joint documents, process the FOIA request through unified command channels. If the requested documents are Army-unique, process the FOIA request through Army channels.
(b) The Specified Commands remain under the jurisdiction of the administering Military Department. The Commands shall designate IDAs within their headquarters; however, the appellate authority shall reside with the Military Department.
Not all requesters are knowledgeable of the appropriate statutory authority to cite when requesting records. In some instances, they may cite neither
(a) Requesters who seek records about themselves contained in a PA system of records and who cite or imply the PA, will have their requests processed under the provisions of the PA.
(b) Requesters who seek records about themselves which are not contained in a PA system of records and who cite or imply the PA, will have their requests processed under the provisions of the FOIA, since they have no access under the PA.
(c) Requesters who seek records about themselves which are contained in a PA system of records and who cite or imply the FOIA or both Acts will have their requests processed under the time limits of the FOIA and the exemptions and fees of the PA. This is appropriate since greater access will be received under the PA.
(d) Requesters who seek access to agency records and who cite or imply the PA and FOIA, will have their requests processed under the FOIA.
(e) Requesters who seek access to agency records and who cite or imply the FOIA, will have their requests processed under the FOIA.
(f) Requesters should be advised in final responses why their request was processed under a particular Act.
FOIA records shall be maintained and disposed of in accordance with DoD Component Disposition instructions and schedules. See AR 25-400-2. AR 25-1 contains Army policy for records management requirements in the life cycle management of information. Information access and release, to include potential electronic access by the public, will be considered during information systems design.
Each Component shall provide an appropriate facility or facilities where the public may inspect and copy or have copied the materials described below. In addition to the materials described below, Components may elect to place other documents in their reading room as a means to provide public access to such documents. DoD Components may share reading room facilities if the public is not unduly inconvenienced. When appropriate, the cost of copying may be imposed on the person requesting the material in accordance with the provisions of subpart F of this part. The Army FOIA Reading Room is operated by The Freedom of Information and Privacy Act Division, Information Systems Command. It is located in room 1146, Hoffman Building I, 2461 Eisenhower Avenue, Alexandria, VA 22331-0301. It is open from 0800 to 1530 Monday through Friday, except holidays.
The FOIA requires that so-called “(a)(2)” materials shall be made available in the FOIA reading room for inspection and copying, unless such materials are published and copies are offered for sale. Identifying details that, if revealed, would create a clearly unwarranted invasion of personal privacy may be deleted from “(a)(2)” materials made available for inspection and copying. In every case, justification for the deletion must be fully explained in writing. However, a DoD Component may publish in the
(a) Final opinions, including concurring and dissenting opinions, and orders made in the adjudication of cases, as defined in 5 U.S.C. 551 (reference (g)), that may be cited, used, or relied upon as precedents in future adjudications.
(b) Statements of policy and interpretations that have been adopted by the agency and are not published in the
(c) Administrative staff manuals and instructions, or portions thereof, that establish DoD policy or interpretations of policy that affect a member of the public. This provision does not apply to instructions for employees on tactics and techniques to be used in performing their duties, or to instructions relating only to the internal management of the DoD Component. Examples of manuals and instructions not normally made available are:
(1) Those issued for audit, investigation, and inspection purposes, or those that prescribe operational tactics, standards of performance, or criteria for defense, prosecution, or settlement of cases.
(2) Operations and maintenance manuals and technical information concerning munitions, equipment, systems, and foreign intelligence operations.
(a) Each DoD Component shall maintain in each facility prescribed in § 518.31, an index of materials described in § 518.4, that are issued, adopted, or promulgated, after July 4, 1967. No “(a)(2)” materials issued, promulgated, or adopted after July 4, 1967 that are not indexed and either made available or published may be relied upon, used or cited as precedent against any individual unless such individual has actual and timely notice of the contents of such materials. Such materials issued, promulgated, or adopted before July 4, 1967, need not be indexed, but must be made available upon request if not exempted under this Regulation.
(b) Each DoD Component shall promptly publish quarterly or more frequently, and distribute, by sale or otherwise, copies of each index of “(a)(2)” materials or supplements thereto unless it publishes in the
(c) Each index of “(a)(2)” materials or supplement thereto shall be arranged topically or by descriptive words rather than by case name or numbering system so that members of the public can readily locate material. Case name and numbering arrangements, however, may also be included for DoD Component convenience.
(a) Any available index of DoD Component material published in the
(b) Although not required to be made available in response to FOIA requests or made available in FOIA Reading Rooms, “(a)(1)” materials shall, when feasible, be made available in FOIA reading rooms for inspection and copying. Examples of “(a)(1)” materials are: descriptions of an agency's central and field organization, and to the extent they affect the public, rules of procedures, descriptions of forms available, instruction as to the scope and contents of papers, reports, or examinations, and any amendment, revision, or report of the aforementioned.
Records that meet the exemption criteria in the exemption part of subpart C may be withheld from public disclosure and need not be published in the
An exempted record, other than those being withheld pursuant to Exemptions 1, 3 or 6, shall be made available upon the request of any individual when, in the judgment of the releasing DoD Component or higher authority, no jeopardy to government interest would be served by release. It is appropriate for DoD Components to use their discretionary authority on a case-by-case basis in the release of given records. If a DoD Component determines that a record requested under the FOIA meets the Exemption 4 withholding criteria set forth in this publication, the DoD Component shall not ordinarily exercise its discretionary power to release, absent circumstances in which a compelling public interest will be served by release of that record. Further guidance on this issue may be found in § 518.37, Number 4. and § 518.65.
The following types of records may be withheld by the IDA in whole or in part from public disclosure under the FOIA, unless otherwise prescribed by law. A discretionary release (also see § 518.23) to one requester may preclude the withholding of the same record under a FOIA exemption if the record is subsequently requested by someone else. In applying exemptions, the identity of the requester and the purpose for which the record is sought are irrelevant with the exception that an exemption may not be invoked where the particular interest to be protected is the requester's privacy interest.
(a)
(1) The fact of the existence or nonexistence of a record would itself reveal classified information. In this situation, Components shall neither confirm nor deny the existence or nonexistence of the record being requested. A “refusal to confirm or deny” response must be used consistently, not only when a record exists, but also when a record does not exist. Otherwise, the pattern of using a “no record” response when a record does not exist, and a “refusal to confirm or deny” when a record does exist will itself disclose national security information.
(2) Information that concerns one or more of the classification categories established by executive order and DoD 5200.1-R (reference (h)) shall be classified if its unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security.
(b)
(1) Records qualifying under high b2 are those containing or constituting statitutes, rules, regulations, orders, manuals, directives, and instructions the release of which would allow circumvention of these records thereby substantially hindering the effective performance of a significant function of the DoD. Examples include:
(i) Those operating rules, guidelines, and manuals for DoD investigators, inspectors, auditors, or examiners that must remain privileged in order for the DoD Component to fulfill a legal requirement.
(ii) Personnel and other administrative matters, such as examination questions and answers used in training courses or in the determination of the qualification of candidates for employment, entrance on duty, advancement, or promotion.
(iii) Computer software meeting the standards of § 518.10(c), the release of which would allow circumvention of statute or DoD rules, regulations, orders, directives, or instructions. In this situation, the use of the software must
(2) Records qualifying under the low b2 profile are those that are trivial and housekeeping in nature for which there is no legitimate public interest or benefit to be gained by release, and it would constitute an administrative burden to process the request in order to disclose these records. Examples include: Rules of personnel's use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and trivial administrative data such as file numbers, mail routing stamps, initials, data processing notations, brief references to previous communications, and other like administrative markings.
(3) Negotiation and bargaining techniques, practices, and limitations.
(c)
(1) National Security Agency Information Exemption, Pub. L. 86-36, Section 6 (reference (c)).
(2) Patent Secrecy, 35 U.S.C. 181-188 (reference (i)). Any records containing information relating to inventions that are the subject of patent applications on which Patent Secrecy Orders have been issued.
(3) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162 (reference (j)).
(4) Communication Intelligence, 18 U.S.C. 798 (reference (k)).
(5) Authority to Withhold From Public Disclosure Certain Technical Data, 10 U.S.C. 130 and DoD Directive 5230.25 (reference (w) and (aa)).
(6) Confidentiality of Medical Quality Records: Qualified Immunity Participants, 10 U.S.C. 1102 (reference (cc)).
(7) Physical Protection of Special Nuclear Material: Limitation on Dissemination of Unclassified Information, 10 U.S.C. 128 (reference ii).
(8) Protection of Intelligence Sources and Methods, 50 U.S.C. 403(d)(3).
(d)
(1) Commercial or financial information received in confidence in connection with loans, bids, contracts, or proposals, as well as other information received in confidence or privileged, such as trade secrets, inventions, discoveries, or other proprietary data. See Public Law 101-189, National Defense Authorization Act, November 1989, 103 Stat. 1352 (§ 518.1(k)).
(2) Statistical data and commercial or financial information concerning contract performance, income, profits, losses, and expenditures, if offered and received in confidence from a contractor or potential contractor.
(3) Personal statements given in the course of inspections, investigations, or audits, when such statements are received in confidence from the individual and retained in confidence because they reveal trade secrets or commercial or financial information normally considered confidential or privileged.
(4) Financial data provided in confidence by private employers in connection with locality wage surveys that are used to fix and adjust pay schedules applicable to the prevailing wage rate of employees within the Department of Defense.
(5) Scientific and manufacturing processes or developments concerning technical or scientific data or other information submitted with an application for a research grant, or with a report while research is in progress.
(6) Technical or scientific data developed by a contractor or subcontractor exclusively at private expense, and technical or scientific data developed
(7) Computer software meeting the conditions of section 518.10(c), which is copyrighted under the Copyright Act of 1976 (17 U.S.C. 106), the disclosure of which would have an adverse impact on the potential market value of a copyrighted work.
(e)
(1) Examples include:
(i) The nonfactual portions of staff papers, to include after-action reports and situation reports containing staff evaluations, advice, opinions or suggestions.
(ii) Advice, suggestions, or evaluations prepared on behalf of the Department of Defense by individual consultants or by boards, committees, councils, groups, panels, conferences, commissions, task forces, or other similar groups that are formed for the purpose of obtaining advice and recommendations.
(iii) Those nonfactual portions of evaluations by DoD Component personnel of contractors and their products.
(iv) Information of a speculative, tentative, or evaluative nature or such matters as proposed plans to procure, lease or otherwise acquire and dispose of materials, real estate, facilities or functions, when such information would provide undue or unfair competitive advantage to private personal interests or would impede legitimate Government functions.
(v) Trade secret or other confidential research development, or commercial information owned by the Government, where premature release is likely to affect the Government's negotiating position or other commercial interests.
(vi) Records that are exchanged among agency personnel and within and among DoD Components or agencies as part of the preparation for anticipated administrative proceeding by an agency or litigation before any Federal, State, or military court, as well as records that qualify for the attorney-client privilege.
(vii) Those portions of official reports of inspection, reports of the Inspector Generals, audits, investigations, or surveys pertaining to safety, security, or the internal management, administration, or operation of one or more DoD Components, when these records have traditionally been treated by the courts as privileged against disclosure in litigation.
(viii) Computer software meeting the standards of § 518.10(c), which is deliberative in nature, the disclosure of which would inhibit or chill the decision making process. In this situation, the use of software must be closely examined to ensure its deliberative nature.
(ix) Planning, programming, and budgetary information which is involved in the defense planning and resource allocation process (see reference (kk)).
(2) If any such intra or interagency record or reasonably segregable portion of such record hypothetically would be made available routinely through the “discovery process” in the course of litigation with the agency, i.e., the process by which litigants obtain information from each other that is relevant to the issues in a trial or hearing, then it should not be withheld from the general public even though discovery has not been sought in actual litigation. If, however, the information hypothetically would only be made available through the discovery process by special order of the court based on
(3) Intra or interagency memoranda or letters that are factual, or those reasonably segregable portions that are factual, are routinely made available through “discovery,” and shall be made available to a requester, unless the factual material is otherwise exempt from release, inextricably intertwined with the exempt information, so fragmented as to be uninformative, or so redundant of information already available to the requester as to provide no new substantive information.
(4) A direction or order from a superior to a subordinate, though contained in an internal communication, generally cannot be withheld from a requester if it constitutes policy guidance or a decision, as distinguished from a discussion of preliminary matters or a request for information or advice that would compromise the decision-making process.
(5) An internal communication concerning a decision that subsequently has been made a matter of public record must be made available to a requester when the rationale for the decision is expressly adopted or referenced in the record containing the decision.
(f)
(1) Examples of other files containing personal information similar to that contained in personnel and medical files include:
(i) Those compiled to evaluate or adjudicate the suitability of candidates for civilian employment or membership in the Armed Forces, and the eligibility of individuals (civilian, military, or contractor employees) for security clearances, or for access to particularly sensitive classified information.
(ii) Files containing reports, records, and other material pertaining to personnel matters in which administratve action, including disciplinary action, may be taken.
(2) Home addresses are normally not releasable without the consent of the individuals concerned. In addition, the release of lists of DoD military and civilian personnel's names and duty addresses who are assigned to units that are sensitive, routinely deployable, or stationed in foreign territories can constitute a clearly unwarranted invasion of personal privacy.
(i) A privacy interest may exist in personal information even though the information has been disclosed at some place and time. If personal information is not freely available from sources other than the Federal Government a privacy interest exists in its nondisclosure. The fact that the Government expended funds to prepare, index and maintain records on personal information, and the fact that a requester invokes FOIA to obtain these records indicated the information is not freely available.
(ii) Published telephone directories, organizational charts, rosters and similar materials for personnel assigned to units that are sensitive, routinely deployable, or stationed in foreign territories are withholdable under this exemption.
(3) This exemption shall not be used in an attempt to protect the privacy of a deceased person, but it may be used to protect the privacy of the deceased person's family.
(4) Individuals’ personnel, medical, or similar file may be withheld from them or their designated legal representative only to the extent consistent with DoD Directive 5400.11 (reference (d)).
(5) A clearly unwarranted invasion of the privacy of the persons indentified in a personnel, medical or similar record may constitute a basis for deleting those reasonably segregable portions of that record, even when providing it to the subject of the record.
(6) Requests for access to or release of records, before appellate review, of courts-martial or special courts-martial involving a bad conduct discharge should be addressed as in appendix B, paragraph 5. This guidance does not preclude furnishing records of a trial to an accused.
(g)
(1) This exemption applies, however, only to the extent that production of such law enforcement records or information could result in the following:
(i) Could reasonably be expected to interfere with enforcement proceedings.
(ii) Would deprive a person of the right to a fair trial or to an impartial adjudication.
(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy of a living person, including surviving family members of an individual identified in such a record.
(A) This exemption also applies when the fact of the existence or nonexistence of a responsive record would itself reveal personally private information, and the public interest in disclosure is not sufficient to outweigh the privacy interest. In this situation, Components shall neither confirm nor deny the existence or nonexistence of the record being requested.
(B) A “refusal to confirm or deny” response must be used consistently, not only when a record exists, but also when a record does not exist. Otherwise, the pattern of using a “no records” response when a record does not exist and a “refusal to confirm or deny” when a record does exist will itself disclose personally private information.
(C) Refusal to confirm or deny should not be used when (
(iv) Could reasonably be expected to disclose the identity of a confidential source, including a source within the Department of Defense, a State, local, or foreign agency or authority, or any private institution which furnishes the information on a confidential basis.
(v) Could disclose information furnished from a confidential source and obtained by a criminal law enforcement authority in a criminal investigation or by an agency conducting a lawful national security intelligence investigation.
(vi) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.
(vii) Could reasonably be expected to endanger the life or physical safety of any individual.
(2) Examples include:
(i) Statements of witnesses and other material developed during the course of the investigation and all materials prepared in connection with related government litigation or adjudicative proceedings.
(ii) The identity of firms or individuals being investigated for alleged irregularities involving contracting with the Department of Defense (Army) when no indictment has been obtained nor any civil action filed against them by the United States.
(iii) Information obtained in confidence, expressed or implied, in the course of a criminal investigation by a criminal law enforcement agency or office within a DoD Component, or a lawful national security intelligence investigation conducted by an authorized
(3) The right of individual litigants to investigative records currently available by law (such as, the Jencks Act, 18 U.S.C. 3500, reference (l)) is not diminished.
(4) When the subject of an investigative record is the requester of the record, it may be withheld only as authorized by DoD Directive 5400.11 (reference (d)). The Army implementing directive is AR 340-21.
(5) Exclusions. Excluded from the above exemption are the following two situations applicable to the Department of Defense:
(i) Whenever a request is made which involves access to records or information compiled for law enforcement purposes, and the investigation or proceeding involves a possible violation of criminal law where there is reason to believe that the subject of the investigation or proceeding is unaware of its pendency, and the disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, Components may, during only such times as that circumstance continues, treat the records or information as not subject to the FOIA. In such situation, the response to the requester will state that no records were found.
(ii) Whenever informant records maintained by a criminal law enforcement organization within a DoD Component under the informant's name or personal identifier are requested by a third party using the informant's name or personal identifier, the Component may treat the records as not subject to the FOIA, unless the informant's status as an informant has been officially confirmed. If it is determined that the records are not subject to the FOIA, the response to the requester will state that no records were found.
(h)
(i)
Information that has not been given a security classification pursuant to the criteria of an Executive Order, but which may be withheld from the public for one or more of the reasons cited in FOIA exemptions 2 through 9 shall be considered as being for official use only. No other material shall be considered or marked “For Official Use Only” (FOUO), and FOUO is not authorized as an anemic form of classification to protect national security interests.
The prior application of FOUO markings is not a conclusive basis for withholding a record that is requested under the FOIA. When such a record is requested, the information in it shall be evaluated to determine whether, under current circumstances, FOIA exemptions apply in withholding the record or portions of it. If any exemption or exemptions apply or applies, it may nonetheless be released when it is determined that no governmental interest will be jeopardized by its release.
Records such as notes, working papers, and drafts retained as historical evidence of DoD Component actions enjoy no special status apart from the exemptions under the FOIA (reference (a)).
The marking of records at the time of their creation provides notice of FOUO content and facilitates review when a record is requested under the FOIA. Records requested under the
Information in a technical document that requires a distribution statement pursuant to DoD Directive 5230.24 (reference (m)), shall bear that statement and may be marked FOUO as appropriate.
(a) An unclassified document containing FOUO information shall be marked “For Official Use Only” in bold letters at least
(b) Within a classified document, an individual page that contains both FOUO and classified information shall be marked at the top and bottom with the highest security classification of information appearing on the page.
(c) Within a classified document, an individual page that contains FOUO information but no classified information shall be marked “For Official Use Only” at the bottom of the page. The paragraphs containing the “For Official Use Only” information should also be marked with the initials FOUO.
(d) Other records, such as, photographs, films, tapes, or slides, shall be marked “For Official Use Only” or “FOUO” in a manner that ensures that a recipient or viewer is aware of the status of the information therein. Markings on microform will conform to the requirements of paragraphs (b) and (c) of this section. As a minimum, each frame of a microform containing FOUO information will be marked “FOR OFFICIAL USE ONLY” at the bottom center of the appropriate page or frame. Classified or protective markings placed by a software program at both top and bottom of a page or frame of a computer-generated report are acceptable. Storage media (disk packs or magnetic tapes) containing personal information subject to the Privacy Act will be labeled “FOR OFFICIAL USE ONLY-Privacy Act Information.”
(e) FOUO material transmitted outside the Department of Defense requires application of an expanded marking to explain the significance of the FOUO marking. This may be accomplished by typing or stamping the following statement on the record prior to transfer: “This document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA. Exemptions * * * apply.”
(f) Permanently bound volumes need to be marked only on the outside of the front and back covers, title page, and first and last pages. Volumes stapled by office-type hand or electric staples are not considered permanently bound.
Until FOUO status is terminated, the release and transmission instructions that follow apply:
(a) FOUO information may be disseminated within DoD Components and between officials of DoD Components and DoD contractors, consultants, and grantees to conduct official business for the Department of Defense. Recipients shall be made aware of the status of such information, and transmission shall be by means that preclude unauthorized public disclosure. Transmittal documents shall call attention to the presence of FOUO attachments.
(b) DoD holders of FOUO information are authorized to convey such information to officials in other departments and agencies of the executive and judicial branches to fulfill a government function, except to the extent prohibited by the Privacy Act. Records thus transmitted shall be marked “For Official Use Only,” and the recipient shall be advised that the information has been exempted from public disclosure, pursuant to the FOIA, and that special handling instructions do or do not apply.
(c) Release of FOUO information to Members of Congress is governed by DoD Directive 5400.4 (reference (n)). Army implementing instructions are in § 518.52 and in AR 1-20. Release to the GAO is governed by DoD Directive
Records containing FOUO information shall be transported in a manner that precludes disclosure of the contents. When not commingled with classified information, FOUO information may be sent via first-class mail or parcel post. Bulky shipments, such as distributions of FOUO Directives or testing materials, that otherwise qualify under postal regulations may be sent by fourth-class mail. When material marked FOUO is removed from storage, attach DA Label 87 (For Official Use Only Cover Sheet).
Each part of electrically transmitted messages containing FOUO information shall be marked appropriately. Unclassified messages containing FOUO information shall contain the abbreviation “FOUO” before the beginning of the text. Such messages shall be transmitted in accordance with communications security procedures in ACP[EN]121 (U.S. Supp 1) (reference (p)) for FOUO information. Army follows the procedures in AR 25-11.
(a) FOUO information may be discussed over the telephone lines with DoD, other Government agencies, and Government support contractors for official purposes.
(b) Facsimile communications marked FOUO may be transmitted by nonsecure terminals with the FOUO markings intact between U.S. DoD, other U.S. Government agencies, and U.S. Government support contractors for official purposes.
During normal working hours, records determined to be FOUO shall be placed in an out-of-sight location if the work area is accessible to non-governmental personnel. When material marked FOUO is removed from storage, attach DA Label 87.
At the close of business, FOUO records shall be stored so as to preclude unauthorized access. Filing such material with other unclassified records in unlocked files or desks, etc., is adequate when normal U.S. Government or government-contractor internal building security is provided during nonduty hours. When such internal security control is not exercised, locked buildings or rooms normally provide adequate after-hours protection. If such protection is not considered adequate, FOUO material shall be stored in locked receptacles such as file cabinets, desks, or bookcases. FOUO records that are subject to the provisions of Public Law 86-36 (reference (c)) shall meet the safeguards outlined for that group of records. Army personnel handling National Security Agency (NSA) records will follow NSA instructions on storing and safeguarding those records.
The originator or other competent authority, e.g., initial denial and appellate authorities, shall terminate “For Official Use Only” markings or status when circumstances indicate that the information no longer requires protection from public disclosure. When FOUO status is terminated, all known holders shall be notified, to the extent practical. Upon notification, holders shall efface or remove the “For Official Use Only” markings, but records in file
(a) Nonrecord copies of FOUO materials may be destroyed by tearing each copy into pieces to preclude reconstructing, and placing them in regular trash containers. When local circumstances or experience indicates that this destruction method is not sufficiently protective of FOUO information, local authorities may direct other methods but must give due consideration to the additional expense balanced against the degree of sensitivity of the type of FOUO information contained in the records.
(b) Record copies of FOUO documents shall be disposed of in accordance with the disposal standards established under 44 U.S.C. chapter 33 (reference (q)), as implemented by DoD Component instructions concerning records disposal. Army implementing disposition instructions are in AR 5-400-2.
The unauthorized disclosure of FOUO records does not constitute an unauthorized disclosure of DoD information classified for security purposes. Appropriate administrative action shall be taken, however, to fix responsibility for unauthorized disclosure whenever feasible, and appropriate disciplinary action shall be taken against those responsible. Unauthorized disclosure of FOUO information that is protected by the Privacy Act (reference (gg)) may also result in civil and criminal sanctions against responsible persons. The DoD Component that originated the FOUO information shall be informed of its unauthorized disclosure.
(a) Since the policy of the Department of Defense is to make the maximum amount of information available to the public consistent with its other responsibilities, written requests for a DoD or Department of the Army record made under the FOIA may be denied only when:
(1) The record is subject to one or more of the exemptions in subpart C of this part.
(2) The record has not been described well enough to enable the DoD Component to locate it with a reasonable amount of effort by an employee familiar with the files.
(3) The requester has failed to comply with the procedural requirements, including the written agreement to pay or payment of any required fee imposed by the instructions of the DoD Component concerned. When personally identifiable information in a record is requested by the subject of the record or his attorney, notarization of the request may be required.
(b) Individuals seeking DoD information should address their FOIA requests to one of the addresses listed in appendix B.
(c) Release of information under the FOIA can have an adverse impact on OPSEC. The Army implementing directive for OPSEC is AR 530-1. It requires that OPSEC points of contact be named for all HQDA staff agencies and for all commands down to battalion level. The FOIA official for the staff agency or command will use DA Form 4948-R to announce the OPSEC/FOIA advisor for the command. Persons named as OPSEC points of contact will be OPSEC/FOIA advisors. Command OPSEC/FOIA advisors should implement the policies and procedures in AR 530-1, consistent with this regulation and with the following considerations:
(1) Documents or parts of documents properly classified in the interest of national security must be protected. Classified documents may be released in response to a FOIA request only under AR 380-5, chapter III. AR 380-5 provides that if parts of a document are not classified and can be segregated with reasonable ease, they may be released, but parts requiring continued protection must be clearly identified.
(2) The release of unclassified documents could violate national security. When this appears possible, OPSEC-FOIA advisors should request a classification evaluation of the document by
(3) A combination of unclassified documents, or parts of them, could combine to supply information that might violate national security if released. When this appears possible, OPSEC/FOIA advisors should consider classifying the combined information per AR 380-5, paragraph 2-211.
(4) A document or information may not be properly or currently classified when a FOIA request for it is received. In this case, the request may not be denied on the grounds that the document or information is classified except in accordance with Executive Order 12356, § 1.6(d), and AR 380-5, paragraph 2-204, and with approval of the Army General Counsel.
(d) OPSEC/FOIA advisors will—
(1) Advise persons processing FOIA requests on related OPSEC requirements.
(2) Help custodians of requested documents prepare requests for classification evaluations.
(3) Help custodians of requested documents identify the parts of documents that must remain classified under this paragraph and AR 380-5.
(e) OPSEC/FOIA advisors do not, by their actions, relieve FOIA personnel and custodians processing FOIA requests of their responsibility to protect classified or exempted information.
The provisions of the FOIA are reserved for persons with private interests as opposed to federal or foreign governments seeking official information. Requests from private persons will be made in writing, and will clearly show all other addresses within the Federal Government to whom the request was sent. This procedure will reduce processing time requirements, and ensure better inter and intra-agency coordination. Components are under no obligation to establish procedures to receive hand delivered requests. Foreign governments seeking information from DoD Components should use established official channels for obtaining information. Release of records to individuals under the FOIA is considered public release of information, except as provided for in §§ 518.24 and 518.32. DA officials will release the following records, upon request, to the persons specified below, even though these records are exempt from release to the general public. The 10-day limit (§ 518.22) applies.
(a)
(1) On the condition of sick or injured patients to the patient's relatives.
(2) That a patient's condition has become critical to the nearest known relative or to the person the patient has named to be informed in an emergency.
(3) That a diagnosis of psychosis has been made to the nearest known relative or to the person named by the patient.
(4) On births, deaths, and cases of communicable diseases to local officials (if required by local laws).
(5) Copies of records of present or former soldiers, dependents, civilian employees, or patients in DA medical facilities will be released to the patient or to the patient's representative on written request. The attending physician can withhold records if he or she thinks that release may injure the patient's mental or physical health; in that case, copies of records will be released to the patient's next of kin or legal representative or to the doctor assuming the patient's treatment. If the patient is adjudged insane, or is dead, the copies will be released, on written request, to the patient's next of kin or legal representative.
(6) Copies of records may be given to a Federal or State hospital or penal institution if the person concerned is an inmate or patient there.
(7) Copies of records or information from them may be given to authorized representatives of certain agencies. The National Academy of Sciences, the National Research Council, and other accredited agencies are eligible to receive such information when they are engaged in cooperative studies, with the approval of The Surgeon General of the Army. However, certain information on drug and alcohol use cannot be released. AR 600-85 covers the Army's alcohol and drug abuse prevention and control program.
(8) Copies of pertinent parts of a patient's records can be furnished to the staff judge advocate or legal officer of the command in connection with the Government's collection of a claim. If proper, the legal officer can release this information to the tortfeasor's insurer without the patient's consent.
Information released to third parties under paragraphs (a) (5), (6), and (7) of this section must be accompanied by a statement of the conditions of release. The statement will specify that the information not be disclosed to other persons except as privileged communication between doctor and patient.
(b)
(1) DA must provide specific information about a person's military service (statement of military service) in response to a request by that person or with that person's written consent to his or her legal representative.
(2) Papers relating to applications for, designation of beneficiaries under, and allotments to pay premiums for, National Service Life Insurance or Serviceman's Group Life Insurance will be released to the applicant or to the insured. If the insured is adjudged insane (evidence of an insanity judgment must be included) or dies, the records will be released, on request, to designated beneficiaries or to the next of kin.
(3) Copies of DA documents that record the death of a soldier, a dependent, or a civilian employee will be released, on request, to that person's next of kin, life insurance carrier, and legal representative. A person acting on behalf of someone else concerned with the death (e.g., the executor of a will) may also obtain copies by submitting a written request that includes evidence of his or her representative capacity. That representative may give written consent for release to others.
(4) Papers relating to the pay and allowances or allotments of a present or former soldier will be released to the soldier or his or her authorized representative. If the soldier is deceased, these papers will be released to the next of kin or legal representatives.
(c)
(d)
(1)
(i) The accused's name, grade or rank, unit, regular assigned duties, and other information as allowed by AR 340-21, paragraph 3-3a.
(ii) The substance or text of the offense of which the person is accused.
(iii) The identity of the apprehending or investigating agency and the length or scope of the investigation before apprehension. The factual circumstances immediately surrounding the apprehension, including the time and place of apprehension, resistance, or pursuit.
(iv) The type and place of custody, if any.
(2)
(i) Observations or comments on an accused's character and demeanor, including those at the time of apprehension and arrest or during pretrial custody.
(ii) Statements, admissions, confessions, or alibis attributable to an accused, or the fact of refusal or failure of the accused to make a statement.
(iii) Reference to confidential sources, investigative techniques and procedures, investigator notes, and activity files. This includes reference to fingerprint tests, polygraph examinations, blood tests, firearms identification tests, or similar laboratory tests or examinations.
(iv) Statements as to the identity, credibility, or testimony of prospective witnesses.
(v) Statements concerning evidence or argument in the case, whether or not that evidence or argument may be used at the trial.
(vi) Any opinion on the accused's guilt.
(vii) Any opinion on the possibility of a plea of guilty to the offense charged, or of a plea to a lesser offense.
(3) Other considerations.
(i) Photographing or televising the accused. DA personnel should not encourage or volunteer assistance to news media in photographing or televising an accused or suspected person being held or transported in military custody. DA representatives should not make photographs of an accused or suspect available unless a law enforcement function is served. Requests from news media to take photographs during courts-martial are governed by AR 360-5.
(ii) Fugitives from justice. This paragraph does not restrict the release of information to enlist public aid in apprehending a fugitive from justice.
(iii) Exceptional cases. Permission to release information from military personnel records other than as outlined in paragraph (b) of this section to public news agencies or media may be requested from The Judge Advocate General (TJAG). Requests for information from military personnel records other than as outlined in paragraph (b) of this section above will be processed according to this regulation.
(e)
(1)
(ii) If information is released for use in litigation involving the United States, the official responsible for investigative reports (AR 27-40, para 2-4) must be advised of the release. He or she will note the release in such investigative reports.
(iii) Information or records normally exempted from release (i.e., personnel and medical records) may be releasable to the judge or court concerned, for use in litigation to which the United States is not a party. Refer such requests to the local staff judge advocate or legal officer, who will coordinate it with the Litigation Division, OTJAG paragraph ((a)of this section).
(2)
(ii) A potential claimant or his or her attorney may request information under circumstances clearly indicating that it will be used to file a tort claim, though none has yet been filed. Refer such requests to the staff judge advocate or legal officer of the command.
(iii) DA officials listed in § 518.54(d) who receive requests under (a) or (b) of this section will refer them directly to the Chief, U.S. Army Claims Service. They will also advise the requesters of the referral and the basis for it.
(iv) The Chief, U.S. Army Claims Service, will process requests according to this regulation and AR 27-20, paragraph 1-10.
(3)
(i) Treated as involving a contract dispute; and
(ii) Referred to the U.S. Army Legal Services Agency. (For address and phone number, see paragraph (e)(3) of this section.)
(f)
(2) This prohibition shall be applied by the Deputy Chief of Staff for Operations and Plans as the IDA, to prohibit the dissemination of any such information only if and to the extent that it is determined that the unauthorized dissemination of such information could reasonably be expected to have a significant adverse effect on the health and safety of the public or the common defense and security by significantly increasing the likelihood of—
(i) Illegal production of nuclear weapons; or
(ii) Theft, diversion, or sabotage of special nuclear materials, equipment, or facilities.
(3) In making such a determination, DOD personnel may consider what the likelihood of an illegal production, theft, diversion, or sabotage would be if the information proposed to be prohibited from dissemination were at no time available for dissemination.
(4) DOD personnel shall exercise the foregoing authority to prohibit the dissemination of any information described:
(i) So as to apply the minimum restrictions needed to protect the health and safety of the public or the common defense and security; and
(ii) Upon a determination that the unauthorized dissemination of such information could reasonably be expected to result in a significant adverse effect on the health and safety of the public or the common defense and security by significantly increasing the likelihood of—
(A) Illegal production of nuclear weapons; or
(B) Theft, diversion, or sabotage of special nuclear materials, equipment, or facilities.
(5) DOD employees shall not use this authority to withhold information from the appropriate committees of Congress.
(g)
(2) Public Affairs Offices may release information determined to have legitimate news value, such as notices of personnel reassignments to new units or installations within the continental United States, results of selection/promotion boards, school graduations/completions, and awards and similar personal achievements. They may release the names and duty addresses of key officials, if such release is determined to be in the interests of advancing official community relations functions.
Requests from officials of State, or local Governments for DoD Component records shall be considered the same as any other requester. Requests from members of Congress not seeking records on behalf of a Congressional Committee, Subcommittee, either House sitting as a whole, or made on behalf of their constituents shall be considered the same as any other requester (see §§ 518.24 and 518.56). Requests from officials of foreign governments shall be considered the same as any other requester. Requests from officials of foreign governments that do not invoke the FOIA shall be referred to appropriate foreign disclosure channels and the requester so notified.
(a) Subject to DoD 5200.1-R (reference (h)), and AR 380-5 applicable to classified information, DoD Directive 5400.11 (reference (d)), and AR 340-21 applicable to personal privacy, or other applicable law, records exempt from release under subpart C, Exemptions, of this part may be authenticated and released, without requiring release to other FOIA requesters, in accordance with DoD Component regulations to U.S. Government officials requesting them on behalf of Federal government bodies, whether legislative, executive, administrative, or judicial, as follows:
(1) To a Committee or Subcommittee of Congress, or to either House sitting as a whole in accordance with DoD Directive 5400.4 (reference (n)). The Army implementing directive is AR 1-20. Commanders or chiefs will notify the Chief of Legislative Liaison of all releases of information to members of Congress or staffs of congressional committees. Organizations that in the normal course of business are required to provide information to Congress may be excepted. Handle requests by members of Congress (or staffs of congressional committees) for inspection of copies of official records as follows:
(i) National security classified records. Follow AR 380-5.
(ii) Civilian personnel records. Members of Congress may examine offical personnel folders as permitted by 5 CFR 297.503(i).
(iii) Information related to disciplinary action. This subparagraph refers to records of trial by courts-martial; nonjudicial punishment of military personnel under the Uniform Code of Military Justice, Article 15; nonpunitive measures such as administrative reprimands and admonitions; suspensions of civilian employees; and similar documents. If the Department of the Army has not issued specific instructions on the request, the following instructions will apply. Subordinate commanders will not release any information without securing the consent of the proper installation commander. The installation commander may release the information unless the request is for a classified or “For Official Use Only” document. In that case the commander will refer the request promptly to the Chief of Legislative Liaison (see paragraph (d) of this section for action, including the recommendations of the transmitting agency and copies of the requested records with the referral.
(iv) Military personnel records. Only HQDA can release information from these records. Custodians will refer all requests from Congress directly and promptly to the Chief of Legislative Liaison, Department of the Army, HQDA (SALL) WASH DC 20310-1600.
(v) Criminal investigation records. Only the Commanding General, U.S. Army Criminal Investigation Command (USACIDC), can release any USACIDC-originated criminal investigation file. For further information, see AR 195-2, Criminal Investigation Activities.
(vi) Other exempt records. Commanders or chiefs will refer requests for all other categories of exempt information under § 518.33 directly to the Chief of Legislative Liaison per paragraph (d) of this section. They will include a copy of the material requested and, as appropriate, recommendations concerning release or denial.
(vii) All other records. The commander or chief with custody of the records will furnish all other information promptly.
(2) To the Federal courts, whenever ordered by officers of the court as necessary for the proper administration of justice.
(3) To other Federal Agencies, both executive and administrative, as determined by the head of a DoD Component or designee.
(i) Disciplinary actions and criminal investigations. Requests for access to, or information from, the records of disciplinary actions or criminal investigations will be honored if proper credentials are presented. Representatives of the Office of Personnel Management may be given information from personnel files of employees actually employed at organizations or activities. Each such request will be considered on its merits. The information released will be the minimum required in connection with the investigation being conducted.
(ii) Other types of requests. All other official requests received by DA elements from agencies of the executive branch (including other military departments) will be honored, if there are no compelling reasons to the contrary. If there are reasons to withhold the records, the requests will be submitted for determination of the propriety of release to the appropriate addresses shown in appendix B.
(4) To State and local officials, as determined by the head of a DoD Component or designee.
(b) DoD Components shall inform officials receiving records under the provisions of § 518.56(a), that those records are exempt from public release under the FOIA and are privileged. DOD Components shall also advise officials of any special handling instructions.
Before forwarding a FOIA request to an IDA for action, records custodians will obtain an opinion from their servicing judge advocate concerning the releasability of the requested records. A copy of that legal review, the original FOIA request, two copies of the requested information (with one copy clearly indicating which portions are recommended for withholding, which FOIA exemptions support such withholding, and which portions, if any, have already been released), a copy of the interim response acknowledging receipt and notifying the requester of the referral to the IDA, and a cover letter containing a telephone point of contact will be forwarded to the IDA with the command's recommendation to deny a request in whole or in part.
(a) Components shall limit the number of IDAs appointed. In designating its IDAs, a DoD Component shall balance the goals of centralization of authority to promote uniform decisions and decentralization to facilitate responding to each request within the time limitations of the FOIA. The DA officials in paragraph (d) of this section are designated as the Army's only IDAs. Only an IDA, his or her delegate, or the Secretary of the Army can deny FOIA requests for DA records. Each IDA will act on direct and referred requests for records within his or her area of functional responsibility. (See the proper AR in the 10-series for full discussions of these areas; they are outlined in paragraph (d) of this section.) Included are records created or
(b) The initial determination of whether to make a record available or grant a fee waiver upon request may be made by any suitable official designated by the DoD Component in published regulations. The presence of the marking “For Official Use Only” does not relieve the designated official of the responsibility to review the requested record for the purpose of determining whether an exemption under this Regulation is applicable and should be invoked. DAs may delegate all or part of their authority to an office chief or subordinate commander. Such delegations must not slow FOIA actions. If an IDA's delegate denies a FOIA or fee waiver request, the delegate must clearly state that he or she is acting for the IDA and identify the IDA by name and position in the written response to the requester. IDAs will send the names, offices, and telephone numbers of their delegates to the Director of Information Systems for Command, Control, Communications, and Computers. IDAs will keep this information current. (The mailing address is HQDA (SAIS-PS), WASH DC 20310-0107.
(c) The officials designated by DoD Components to make initial determinations should consult with public affairs officers (PAOs) to become familiar with subject matter that is considered to be newsworthy, and advise PAOs of all requests from news media representatives. In addition, the officials should inform PAOs in advance when they intend to withhold or partially withhold a record, if it appears that the withholding action may be challenged in the media. A FOIA release or denial action, appeal, or court review may generate public or press interest. In such case, the IDA (or delegate) should consult the Chief of Public Affairs or the command or organization PAO. The IDA should inform the PAO contacted of the issue and obtain advice and recommendations on handling its public affairs aspect. Any advice or recommendations requested or obtained should be limited to this aspect. Coordination must be completed within the 10-day FOIA response limit. (The point of contact for the Army Chief of Public Affairs is HQDA (SAPA-OSR), WASH DC 20310-1500; telephone, AUTOVON 227-4122 or commercial (202) 697-4122.) If the request involves actual or potential litigation against the United States, release must be coordinated with The Judge Advocate General. (See § 518.54(e).)
(d) The following officials are designated IDAs for the areas of responsibility outlined below:
(1) The Administrative Assistant to the Secretary of the Army is authorized to act for the Secretary of the Army on requests for all records maintained by the Office of the Secretary of the Army and its serviced activities, except those specified in paragraphs (d)(2) through (d)(6) of this section, as well as requests requiring the personal attention of the Secretary of the Army.
(2) The Assistant Secretary of the Army (Financial Management) is authorized to act on requests for finance and accounting records.
(3) The Assistant Secretary of the Army (Research, Development, and Acquisition) is authorized to act on requests for procurement records other than those under the purview of the Chief of Engineers and the Commander, U.S. Army Materiel Command.
(4) The Director of Information Systems for Command, Control, Communications, and Computers (DISC4) is authorized to act on requests for records pertaining to the Army Information Resources Management Program (automation, telecommunications, visual information, records management, publications and printing, and libraries).
(5) The Inspector General is authorized to act on requests for all Inspector General records under AR 20-1.
(6) The Auditor General is authorized to act on requests for records relating to audits done by the U.S. Army Audit Agency under AR 10-2. This includes requests for related records developed by the Audit agency.
(7) The Deputy Chief of Staff for Operations and Plans is authorized to act on requests for records relating to strategy formulation; force development; individual and unit training policy; strategic and tactical command and control systems; nuclear and chemical matters; use of DA forces; and military police records and reports, prisoner confinement, and correctional records.
(8) The Deputy Chief of Staff for Personnel is authorized to act on requests for case summaries, letters of instruction to boards, behavioral science records, general education records, and alcohol and drug prevention and control records. Excluded are individual treatment/test records, which are a responsibility of The Surgeon General.
(9) The Deputy Chief of Staff for Logistics is authorized to act on requests for records relating to DA logistical requirements and determinations, policy concerning materiel maintenance and use, equipment standards, and logistical readiness.
(10) The Chief of Engineers is authorized to act on requests for records involving civil works, military construction, engineer procurement, and ecology; and the records of the U.S. Army Engineer divisions, districts, laboratories, and field operating agencies.
(11) The Surgeon General is authorized to act on requests for medical research and development records, and the medical records of active duty military personnel, dependents, and persons given physical examination or treatment at DA medical facilities, to include alcohol and drug treatment/test records.
(12) The Chief of Chaplains is authorized to act on requests for records involving ecclesiastical relationships, rites performed by DA chaplains, and nonprivileged communications relating to clergy and active duty chaplains’ military personnel files.
(13) The Judge Advocate General (TJAG) is authorized to act on requests for records relating to claims, courts-martial, legal services, and similar legal records. TJAG is also authorized to act on requests for records described elsewhere in this regulation, if those records relate to litigation in which the United States has an interest. In addition, TJAG is authorized to act on requests for records that are not within the functional areas of responsibility of any other IDA.
(14) The Chief, National Guard Bureau, is authorized to act on requests for all personnel and medical records of retired, separated, discharged, deceased, and active Army National Guard military personnel, including technician personnel, unless such records clearly fall within another IDA's responsibility. This authority includes, but is not limited to, National Guard organization and training files; plans, operations, and readiness files; policy files; historical files; files relating to National Guard military support, drug interdiction, and civil disturbances; construction, civil works, and ecology records dealing with armories, facilities within the States, ranges, etc.; Equal Opportunity investigative records; aviation program records and financial records dealing with personnel, operation and maintenance, and equipment budgets.
(15) The Chief of Army Reserve is authorized to act on requests for all personnel and medical records of retired, separated, discharged, deceased, and reserve component military personnel, and all U.S. Army Reserve (USAR) records, unless such records clearly fall within another IDA's responsibility. Records under the responsibility of the Chief of Army Reserve include records relating to USAR plans, policies, and operations; changes in the organizational status of USAR units; mobilization and demobilization policies; active duty tours; and the Individual Mobilization Augmentation program.
(16) The Commander, United States Army Materiel Command (AMC) is authorized to act on requests for the records of AMC headquarters and its
(17) The Commander, USACIDC, is authorized to act on requests for criminal investigative records of USACIDC headquarters and its subordinate activities. This includes criminal investigation records, investigation-in-progress records, and military police reports that result in criminal investigation reports.
(18) The Commander, United States Total Army Personnel Command, is authorized to act on requests for military personnel files relating to active duty (other than those of reserve and retired personnel) military personnel matters, personnel locator, physical disability determinations, and other military personnel administration records; records relating to military casualty and memorialization activities; heraldic activities; voting; records relating to identification cards; naturalization and citizenship; commercial solicitation; Military Postal Service Agency and Army postal and unofficial mail service; civilian personnel records and other civilian personnel matters; and personnel administration records.
(19) The Commander, United States Army Community and Family Support Center, is authorized to act on requests for records relating to morale, welfare, and recreation activities; nonappropriated funds; child development centers, community life programs, and family action programs; retired activities; club management; Army emergency relief; consumer protection; retiree survival benefits; and records dealing with DA relationships with Social Security, Veterans' Affairs, United Service Organization, U.S. Soldiers’ and Airmen's Home, and American Red Cross.
(20) The Commander, United States Army Intelligence and Security Command, is authorized to act on requests for intelligence investigation and security records, foreign scientific and technological information, intelligence training, mapping and geodesy information, ground surveillance records, intelligence threat assessment, and missile intelligence data relating to tactical land warfare systems.
(21) The Commander, U.S. Army Safety Center, is authorized to act on requests for Army safety records.
(22) The General Counsel, Army and Air Force Exchange Service (AAFES), is authorized to act on requests for AAFES records, under AR 60-20/AFR 147-14.
(23) The Commander, Forces Command (FORSCOM), as a specified commander, is authorized to act on requests for specified command records that are unique to FORSCOM under § 518.29.
(24) Special IDA authority for time-event related records may be designated on a case-by-case basis. These will be published in the
There are seven reasons for not complying with a request for a record:
(a) The request is transferred to another DoD Component, or to another federal agency.
(b) The DoD Component determines through knowledge of its files and reasonable search efforts that it neither controls nor otherwise possesses the requested record.
(c) A record has not been described with sufficient particularity to enable the DoD Component to locate it by conducting a reasonable search.
(d) The requester has failed unreasonably to comply with procedural requirements, including payment of fees imposed by this part or DoD Component supplementing regulations.
(e) The request is withdrawn by the requester.
(f) The information requested is not a record within the meaning of the FOIA and this Regulation.
(g) The record is denied in accordance with procedures set forth in the FOIA and this part.
To deny a requested record that is in the possession and control of a DoD Component, it must be determined that
Although portions of some records may be denied, the remaining reasonably segregable portions must be released to the requester when it reasonably can be assumed that a skillful and knowledgeable person could not reconstruct the excised information. When a record is denied in whole, the response advising the requester of that determination will specifically state that it is not too reasonable to segregate portions of the records for release. The excised copies shall reflect the denied information by means of Blackened areas, which are Sufficiently Blackened as to reveal no information. The best means to ensure illegibility is to cut out the information from a copy of the document and reproduce the appropriate pages. If the document is classified, all classification markings shall be lined through with a single black line, which still allows the marking to be read. The document shall then be stamped “Unclassified”.
(a) Initial determinations to release or deny a record normally shall be made and the decision reported to the requester within 10 working days after receipt of the request by the official designated to respond. The action command or office holding the records will date- and time-stamp each request on receipt. The 10-day limit will start from the date stamped.
(b) When a decision is made to release a record, a copy should be made available promptly to the requester once he has complied with preliminary procedural requirements.
(c) When a request for a record is denied in whole or in part, the official designated to respond shall inform the requester in writing of the name and title or position of the official who made the determination, and shall explain to the requester the basis for the determination in sufficient detail to permit the requester to make a decision concerning appeal. The requester specifically shall be informed of the exemptions on which the denial is based. When the initial denial is based in whole or in part on a security classification, the explanation should include a summary of the applicable criteria for classification, as well as an explanation, to the extent reasonably feasible, of how those criteria apply to the particular record in question. The requester shall also be advised of the opportunity and procedures for appealing an unfavorable determination to a higher final authority within the DoD Component. The IDA will inform the requester of his or her right to appeal, in whole or part, the denial of the FOIA or fee waiver request and that the appeal must be sent through the IDA to the Secretary of the Army (Attn: General Counsel). (See § 518.69).
(d) The response to the requester should contain information concerning the fee status of the request, consistent with the provisions of subpart F, this regulation. Generally, the information shall reflect one or more of the following conditions:
(1) All fees due have been received.
(2) Fees have been waived because they fall below the automatic fee waiver threshold.
(3) Fees have been waived or reduced from a specified amount to another specified amount because the rationale provided in support of a request for waiver was accepted.
(4) A request for waiver has been denied.
(5) Fees due in a specified amount have not been received.
(e) The explanation of the substantive basis for a denial shall include specific citation of the statutory exemption applied under provisions of this Regulation. Merely referring to a classification or to a “For Official Use Only” marking on the requested record does not constitute a proper citation or explanation of the basis for invoking an exemption.
(f) When the time for response becomes an issue, the official responsible for replying shall acknowledge to the
(a) In unusual circumstances, when additional time is needed to respond, the DoD Component shall acknowledge the request in writing within the 10-day period, describe the circumstances requiring the delay, and indicate the anticipated date for substantive response that may not exceed 10 additional working days. Unusual circumstances that may justify delay are:
(1) The requested record is located in whole or in part at places other than the office processing the request.
(2) The request requires the collection and evaluation of a substantial number of records.
(3) Consultation is required with other DoD Components or agencies having substantial interest in the subject matter to determine whether the records requested are exempt from disclosure in whole or in part under provisions of this Regulation or should be released as a matter of discretion.
(b) The statutory extension of time for responding to an initial request must be approved on a case-by-case basis by the final appellate authority for the DoD Component, or in accordance with regulations of the DoD Component, or in accordance with regulations of the DoD Component that establish guidance governing the circumstances in which such extensions may be granted. The time may be extended only once during the initial consideration period. Only the responsible IDA can extend it, and the IDA must first coordinate with the Office of the Army General Counsel.
(c) In these unusual cases where the statutory time limits cannot be met and no informal extension of time has been agreed to, the inability to process any part of the request within the specified time should be explained to the requester with notification that he or she may treat the delay as an initial denial with a right to appeal, or with a request that he agree to await a substantive response by an anticipated date. It should be made clear that any such agreement does not prejudice the right of the requester to appeal the initial decision after it is made. Components are reminded that the requester still retains the right to treat this delay as a de facto denial with full administrative remedies.
(d) As an alternative to the taking of formal extensions of time as described in § 518.63 (a), (b), and (c), the negotiation by the cognizant FOIA coordinating office of informal extensions in time with requesters is encouraged where appropriate.
Misdirected requests shall be forwarded promptly to the DoD Component with the responsibility for the records requested. The period allowed for responding to the request misdirected by the requester shall not begin until the request is received by the DoD Component that manages the records requested.
(a) When a request is received for a record that was obtained from a non-U.S. Government source, or for a record containing information clearly identified as having been provided by a non-U.S. Government source, the source of the record or information (also known as “the submitter” for matters pertaining to proprietary data under 5 U.S.C. 552 (reference (a) Exemption (b)(4) subpart C, exemptions, § 518.37, paragraph (d) and reference (dd), this part) will be notified promptly of that request and afforded reasonable time (e.g., 30 calendar days) to present any objections concerning the release, unless it is clear that there can be no valid basis for objection. This practice is required for those FOIA requests for data not deemed clearly exempt from disclosure under Exemption (b)(4). If, for example, the record or information was provided with actual or presumptive knowledge of the non-U.S. Government source and estalished that it would be made available to the public upon request, there is no obligation to notify the source. Any objections shall be evaluated. The final decision to disclose information claimed to be exempt under Exemption (b)(4) shall be made by an official equivalent in rank to the official who would make the decision to withhold that information
(b) The coordination provisions of this paragraph also apply to any non-U.S. Government record in the possession and control of the Department of Defense from multi-national organizations, such as the North American Treaty Organization (NATO) and North American Aerospace Defense Command (NORAD), or foreign governments. Coordination with foreign governments under the provisions of this paragraph shall be made through Department of State.
Copies of all initial denials shall be maintained by each DoD Component in a form suitable for rapid retrieval, periodic statistical compilation, and management evaluation. Records will be maintained in accordance with AR 25-400-2.
DoD Components are authorized to use registered mail, certified mail, certificates of mailing and return receipts. However, their use should be limited to instances where it appears advisable to establish proof of dispatch or receipt of FOIA correspondence.
The Treasurer of the United States has established two accounts for FOIA receipts. These accounts, which are described below, shall be used for depositing all FOIA receipts, except receipts for industrially-funded and non-appropriated funded activities. Components are reminded that the below account numbers must be preceded by the appropriate disbursing office two digit prefix. Industrially-funded and nonappropriated funded activity FOIA receipts shall be deposited to the applicable fund.
(a) Receipt Account 3210 Sale of Publications and Reproductions, Freedom of Information Act. This account shall be used when depositing funds received from providing existing publications and forms that meet the Receipt Account Series description found in Federal Account Symbols and Titles. Deliver collections within 30 calendar days to the servicing finance and accounting office.
(b) Receipt Account 3210 Fees and Other Charges for Services, Freedom of Information Act. This account is used to deposit search fees, fees for duplicating and reviewing (in the case of commercial requesters) records to satisfy requests that could not be filled with existing publications or forms.
(a) If the official designated by the DoD Component to make initial determinations on requests for records (IDA) declines to provide a record because the official considers it exempt, that decision may be appealed by the requester, in writing, to a designated appellate authority. The appeal should be accompanied by a copy of the letter denying the initial request. Such appeals should contain the basis for disagreement with the initial refusal. Appeal procedures also apply to the disapproval of a request for a waiver or reduction of fees, and for no record determinations when the requester considers such a response adverse in nature. Appeals of denials of Office of the Secretary of Defense and Joint Staff documents or fee waivers may be sent to the address in appendix B, paragraph 2a to this part.
(b) Appeals of adverse determinations made by Army IDAs must be made through the denying IDA to the Secretary of the Army (Attn: General Counsel). On receipt of an appeal, the IDA will—
(1) Send the appeal to the Office of the Secretary of the Army, Office of the General Counsel, together with a copy of the documents that are the subject of the appeal, marked to show the portions withheld; the initial denial letter; and any other relevant material.
(2) Assist the General Counsel as requested during his or her consideration of the appeal.
(c) Appeals of denial of records made by the General Counsel, AAFES, shall be made to the Secretary of the Army when the Commander, AAFES, is an Army officer.
An FOIA appeal has been received by a DoD Component when it reaches the office of an appellate authority having jurisdiction. Misdirected appeals should be referred expeditiously to the proper appellate authority.
(a) The requester shall be advised to file an appeal so that it reaches the appellate authority no later than 60 calendar days after the date of the initial denial letter. At the conclusion of this period, the case may be considered closed; however, such closure does not preclude the requester from filing litigation. In cases where the requester is provided several incremental determinations for a single request, the time for the appeal shall not begin until the requester receives the last such notification. Records which are denied shall be retained for a period of six years to meet the statute of limitations of claims requirement.
(b) Final determinations on appeals normally shall be made within 20 working days after receipt.
(a) If additional time is needed due to the unusual circumstances described in § 518.63, of this part, the final decision may be delayed for the number of working days (not to exceed 10), that were not used as additional time for responding to the initial request.
(b) If a determination cannot be made and the requester notified within 20 working days, the appellate authority shall acknowledge to the requester, in writing, the date of receipt of the appeal, the circumstances surrounding the delay, and the anticipated date for substantive response. Requests shall be advised that, if the delay exceeds the statutory extension provision or is for reasons other than the unusual circumstances identified in § 518.63, they may consider their administrative remedies exhausted. They may, however, without prejudicing their right of judicial remedy, await a substantive response. The DoD Component shall continue to process the case expeditiously, whether or not the requester seeks a court order for release of the records, but a copy of any response provided subsequent to filing of a complaint shall be forwarded to the Department of Justice.
(a) When an appellate authority makes a determination to release all or a portion of records withheld by an IDA, a copy of the records so released should be forwarded promptly to the requester after compliance with any preliminary procedural requirements, such as payment of fees.
(b) Final refusal to provide a requested record or to approve a request for waiver or reduction of fees must be made in writing by the head of the DoD Component or by a designated representative. The response, at a minimum, shall include the following:
(1) The basis for the refusal shall be explained to the requester, in writing, both with regard to the applicable statutory exemptions or exemption invoked under provisions of this regulation.
(2) When the final refusal is based in whole or in part on a security classification, the explanation shall include a determination that the record meets the cited criteria and rationale of the governing Executive Order, and that this determination is based on a declassification review, with the explanation of how that review confirmed the continuing validity of the security classification.
(3) The final denial shall include the name and title or position of the official responsible for the denial.
(4) The response shall advise the requester that the material being denied does not contain meaningful portions that are reasonably segregable.
(5) The response shall advise the requester of the right to judicial review.
(a) Final refusal, involving issues not previously resolved or that the DoD Component knows to be inconsistent with rulings of other DoD Components, ordinarily should not be made before consultation with the Office of the General Counsel of the Department of Defense.
(b) Tentative decisions to deny records that raise new or significant legal issues of potential significance to other agencies of the government shall be provided to the Department of Justice, ATTN: Office of Legal Policy, Office of Information and Policy, Washington, DC 20530.
(a) This section states current legal and procedural rules for the convenience of the reader. The statements of rules do not create rights or remedies not otherwise available, nor do they bind the Department of Defense to particular judicial interpretations or procedures.
(b) A requester may seek an order from a United States District Court to compel release of a record after administrative remedies have been exhausted; i.e., when refused a record by the head of a Component or an appellate designee or when the DoD Component has failed to respond within the time limits prescribed by the FOIA and in this Regulation.
The requester may bring suit in the United States District Court in the district in which the requester resides or is the requester's place of business, in the district in which the record is located, or in the District of Columbia.
The burden of proof is on the DoD Component to justify its refusal to provide a record. The court shall evaluate the case de novo (anew) and may elect to examine any requested record in camera (in private) to determine whether the denial was justified.
(a) When a DoD Component has failed to make a determination within the statutory time limits but can demonstrate due diligence in exceptional circumstances, the court may retain jurisdiction and allow the Component additional time to complete its review of the records.
(b) If the court determines that the requester's complaint is substantially correct, it may require the United States to pay reasonable attorney fees and other litigation costs.
(c) When the court orders the release of denied records, it may also issue a written finding that the circumstances surrounding the withholding raise questions whether DoD Component personnel acted arbitrarily and capriciously. In these cases, the special counsel of the Merit Systems Protection Board shall conduct an investigation to determine whether or not disciplinary action is warranted. The DoD Component is obligated to take the action recommended by the special counsel.
(d) The court may punish the responsible official for contempt when a DoD Component fails to comply with the court order to produce records that it determines have been withheld improperly.
A requester may bring suit in a U.S. District Court to compel the release of records obtained from a nongovernment source or records based on information obtained from a nongovernment source. Such source shall be notified promptly of the court action. When the source advises that it is seeking court action to prevent release, the DoD Component shall defer answering or otherwise pleading to the complainant as long as permitted by the Court or until a decision is rendered in the court action of the source, whichever is sooner.
FOIA managers at DoD Component level shall be aware of litigation under the FOIA. Such information will provide management insights into the use of the nine exemptions by Component personnel. The Litigation Status Sheet at appendix C provides a standard format for recording information concerning FOIA litigation and forwarding that information to the Office of the Secretary of Defense. Whenever a complaint under the FOIA is filed in a U.S. District Court, the DoD Component named in the complaint shall forward a Ligitation Status Sheet, with items 1 through 6 completed, and a copy of the complaint to the OASD(PA), Attn: DFOISR, with an information copy to the General Counsel, Department of Defense, Attn: Office of Legal Counsel. A revised Litigation Status Sheet shall be provided at each stage of the litigation. In the Department of the Army, HQDA TJAG (DAJA-LT), WASH DC 20310-2210 is responsible for preparing this report.
The Freedom of Information Act (5 U.S.C. 552), as amended; by the Freedom of Information Reform Act of 1986; the Paperwork Reduction Act (44 U.S.C. 35); the Privacy Act of 1974 (5 U.S.C. 552a); the Budget and Accounting Act of 1921 (31 U.S.C. 1 et seq.); the Budget and Accounting Procedures Act (31 U.S.C. 67 et seq.); the Defense Authorization Act for FY 87, Section 954, (Pub. L. 99-661); as amended by the Defense Technical Corrections Act of 1987 (Pub. L. 100-26).
(a) The fees described in this subpart apply to FOIA requests, and conform to the Office of Management and Budget Uniform Freedom of Information Act Fee Schedule and Guidelines. They reflect direct costs for search, review (in the case of commercial requesters), and duplication of documents, collection of which is permitted by the FOIA. They are neither intended to imply that fees must be charged in connection with providing information to the public in the routine course of business, nor are they meant as a substitute for any other schedule of fees, such as DoD Instruction 7230.7 (reference (r)) (AR 37-60), which does not supersede the collection of fees under the FOIA. Nothing in this Chapter shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records. A “statute specifically providing for setting the level of fees for particular types of records” (5 U.S.C. 552 (a)(4)(A)(vi)) means any statute that enables a Government Agency such as the Government Printing Office (GPO) or the National Technical Information Service (NTIS), to set and collect fees. Components should ensure that when documents that would be responsive to a request are maintained for distribution by agencies operating statutory-based fee schedule programs such as the GPO or NTIS, they inform requesters of the steps necessary to obtain records from those sources.
(b) The term “direct costs” means those expenditures a Component actually makes in searching for, reviewing (in the case of commercial requesters), and duplicating documents to respond to an FOIA request. Direct costs include, or example, the salary of the employee performing the work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits), and the costs of operating duplicating machinery. These factors have been included in the fee rates prescribed in the Collection of Fees and Fee Rates portions of this subpart. Not included in direct costs are overhead expenses such as costs of space, heating or lighting the facility in which the records are stored.
(c) The term “search” includes all time spent looking for material that is responsive to a request. Search also includes a page-by-page or line-by-line identification (if necessary) of material in the document to determine if it, or portions thereof are responsive to the request. Components should ensure that searches are done in the most efficient and least expensive manner so as to minimize costs for both the Component and the requester. For example, Components should not engage in line-
(d) The term “duplication” refers to the process of making a copy of a document in response to an FOIA request. Such copies can take the form of paper copy, microfiche, audiovisual, or machine readable documentation (e.g., magnetic tape or disc), among others. Every effort will be made to ensure that the copy provided is in a form that is reasonably usable by requesters. If it is not possible to provide copies which are clearly usable, the requester shall be notified that their copy is the best available and that the agency's master copy shall be made available for review upon appointment. For duplication of computer tapes and audiovisual, the actual cost, including the operator's time, shall be charged. In practice, if a Component estimates that assessable duplication charges are likely to exceed $25.00, it shall notify the requester of the estimate, unless the requester has indicated in advance his or her willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with Component personnel with the object of reformulating the request to meet his or her needs at a lower cost.
(e) The term “review” refers to the process of examining documents located in response to an FOIA request to determine whether one or more of the statutory exemptions permit withholding. It also includes processing the documents for disclosure, such as excising them for release. Review does not include the time spent resolving general legal or policy issues regarding the application of exemptions. It should be noted that charges for commercial requesters may be assessed only for the initial review. Components may not charge for reviews required at the administrative appeal level of an exemption already applied. However, records or portions of records withheld in full under an exemption which is subsequently determined not to apply may be reviewed again to determine the applicability of other exemptions not previously considered. The costs for such a subsequent review would be properly assessable.
(a) No fees may be charged by any DoD Component if the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee. With the exception of requesters seeking documents for a commercial use, Components shall provide the first two hours of search time, and the first one hundred pages of duplication without charge. For example, for a request (other than one from a commercial requester) that involved two hours and ten minutes of search time, and resulted in one hundred and five pages of documents, a Component would determine the cost of only ten minutes of search time, and only five pages of reproduction. If this processing cost was equal to, or less than the cost to the Component for billing the requester and processing the fee collected, no charges would result.
(b) Requesters receiving the first two hours of search and the first one hundred pages of duplication without charge are entitled to such only once per request. Consequently, if a Component, after completing its portion of a request, finds it necessary to refer the request to a subordinate office, another DoD Component, or another Federal Agency to action their portion of the request, the referring Component shall inform the recipient of the referral of the expended amount of search time and duplication cost to date.
(c) The elements to be considered in determining the “cost of collecting a fee” are the administrative costs to the Component of receiving and recording a remittance, and processing the fee for deposit in the Department of Treasury's special account. The cost to the Department of Treasury to handle such remittance is negligible and shall not be considered in Components’ determinations.
(d) For the purposes of these restrictions, the word “pages” refers to paper copies of a standard size, which will normally be “8
(e) In the case of computer searches, the first two free hours will be determined against the salary scale of the individual operating the computer for the purposes of the search. As an example, when the direct costs of the computer central processing unit, input-output devices, and memory capacity equal $24.00 (two hours of equivalent search at the clerical level), amounts of computer costs in excess of that amount are chargeable as computer search time.
(a) Documents shall be furnished without charge, or at a charge reduced below fees assessed to the categories of requesters in § 518.81 when the Component determines that waiver or reduction of the fees is in the public interest because furnishing the information is likely to contribute significantly to public understanding of the operations or activities of the Department of Defense and is not primarily in the commercial interest of the requester.
(b) When assessable costs for an FOIA request total $15.00 or less, fees shall be waived automatically for all requesters, regardless of category.
(c) Decisions to waive or reduce fees that exceed the automatic waiver threshold shall be made on a case-by-case basis, consistent with the following factors:
(1) Disclosure of the information “is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government.”
(i) The subject of the request. Components should analyze whether the subject matter of the request involves issues which will significantly contribute to the public understanding of the operations or activities of the Department of Defense. Requests for records in the possession of the Department of Defense which were originated by non-government organizations and are sought for their intrinsic content, rather than informative value will likely not contribute to public understanding of the operations or activities of the Department of Defense. An example of such records might be press clippings, magazine articles, or records forwarding a particular opinion or concern from a member of the public regarding a DoD activity. Similarly, disclosures of records of considerable age may or may not bear directly on the current activities of the Department of Defense; however, the age of a particular record shall not be the sole criteria for denying relative significance under this factor. It is possible to envisage an informative issue concerning the current activities of the Department of Defense, based upon historical documentation. Requests of this nature must be closely reviewed consistent with the requester's stated purpose for desiring the records and the potential for public understanding of the operations and activities of the Department of Defense.
(ii) The informative value of the Information to be disclosed. This factor requires a close analysis of the substantive contents of a record, or portion of the record, to determine whether disclosure is meaningful, and shall inform the public on the operations or activities of the Department of Defense. While the subject of a request may contain information which concerns operations or activities of the Department of Defense, it may not always hold great potential for contributing to a meaningful understanding of these operations or activities. An example of such would be a heavily redacted record, the balance of which may contain only random words, fragmented sentences, or paragraph headings. A determination as to whether a record in this situation will contribute to the public understanding of the operations or activities of the Department of Defense must be approached with caution, and carefully weighed against the arguments offered by the requester. Another example is information already known to be in the public domain. Disclosure of duplicative, or nearly identical information already
(iii) The contribution to an understanding of the subject by the general public likely to result from disclosure. The key element in determining the applicability of this factor is whether disclosure will inform, or have the potential to inform the public, rather than simply the individual requester or small segment of interested persons.The identity of the requester is essential in this situation in order to determine whether such requester has the capability and intention to disseminate the information to the public. Mere assertions of plans to author a book, researching a particular subject, doing doctoral dissertation work, or indigency are insufficient without demonstrating the capacity to further disclose the information in a manner which will be informative to the general public. Requesters should be asked to describe their qualifications, the nature of their research, the purpose of the requested information, and their intended means of dissemination to the public.
(iv) The significance of the contribution to public understanding. In applying this factor, Components must differentiate the relative significance or impact of the disclosure against the current level of public knowledge, or understanding which exists before the disclosure. In other words, will disclosure on a current subject of wide public interest be unique in contributing previously unknown facts, thereby enhancing public knowledge, or will it basically duplicate what is already known by the general public. A decision regarding significance requires objective judgment, rather than subjective determination, and must be applied carefully to determine whether disclosure will likely lead to a significant public understanding of the issue. Components shall not make value judgments as to whether the information is important enough to be made public.
(2) Disclosure of the information “is not primarily in the commercial interest of the requester.”
(i) The existence and magnitude of a commercial interest. If the request is determined to be of a commercial interest, Components should address the magnitude of that interest to determine if the requester's commercial interest is primary, as opposed to any secondary personal or non-commercial interest. In addition to profit-making organizations, individual persons or other organizations may have a commercial interest in obtaining certain records. Where it is difficult to determine whether the requester is of a commercial nature, Components may draw inference from the requester's identity and circumstances of the request. In such situations, the provisions of § 518.85 apply. Components are reminded that in order to apply the commercial standards of the FOIA, the requester's commercial benefits must clearly override any personal or non-profit interest.
(ii) The primary interest in disclosure. Once a requester's commercial interest has been determined, Components should then determine if the disclosure would be primarily in that interest. This requires a balancing test between the commercial interest of the request against any public benefit to be derived as a result of that disclosure. Where the public interest is served above and beyond that of the requester's commercial interest, a waiver or reduction of fees would be appropriate. Conversely, even if a significant public interest exists, and the relative commercial interest of the requester is determined to be greater than the public interest, then a waiver or reduction of fees would be inappropriate. As examples, news media organizations have a commercial interest as business organizations; however, their inherent role of disseminating news to the general public can ordinarily be presumed to be of a primary interest. Therefore, any commercial interest becomes secondary to the primary interest in serving the public. Similarly, scholars writing books or engaged in other forms of academic research, may recognize a commercial benefit, either directly, or indirectly (through the institution they represent); however, normally such pursuits are primarily undertaken for educational purposes, and the application of a fee charge would
(d) Components are reminded that the above factors and examples are not all inclusive. Each fee decision must be considered on a case-by-case basis and upon the merits of the information provided in each request. When the element of doubt as to whether to charge or waive the fee cannot be clearly resolved, Components should rule in favor of the requester.
(e) In addition, the following additional circumstances describe situations where waiver or reduction of fees are most likely to be warranted:
(1) A record is voluntarily created to preclude an otherwise burdensome effort to provide voluminous amounts of available records, including additional information not requested.
(2) A previous denial of records is reversed in total, or in part, and the assessable costs are not substantial (e.g. $15.00—$30.00).
(a) Fees may not be used to discourage requesters, and to this end, FOIA fees are limited to standard charges for direct document search, review (in the case of commercial requesters) and duplication.
(b) In order to be as responsive as possible to FOIA requests while minimizing unwarranted costs to the taxpayer, Components shall adhere to the following procedures:
(1) Analyze each request to determine the category of the requester. If the Component determination regarding the category of the requester is different than that claimed by the requester, the component will:
(i) Notify the requester that he should provide additional justification to warrant the category claimed, and that a search for responsive records will not be initiated until agreement has been attained relative to the category of the requester. Absent further category justification from the requester, and within a reasonable period of time (i.e., 30 calendar days), the Component shall render a final category determination, and notify the requester of such determination, to include normal administrative appeal rights of the determination.
(ii) Advise the requester that, notwithstanding any appeal, a search for responsive records will not be initiated until the requester indicates a willingness to pay assessable costs appropriate for the category determined by the Component.
(2) Requesters must submit a fee declaration appropriate for the below categories.
(i)
(ii)
(iii)
(3) If the above conditions are not met, then the request need not be processed and the requester shall be so informed.
(4) In the situation described by § 518.81(b) (1) and (2). Components must be prepared to provide an estimate of assessable fees if desired by the requester. While it is recognized that search situations will vary among Components, and that an estimate is often difficult to obtain prior to an actual search, requesters who desire estimates are entitled to such before committing to a willingness to pay. Should Component estimates exceed the actual amount of the estimate or the amount agreed to by the requester, the amount in excess of the estimate or the requester's agreed amount shall not be charged without the requester's agreement.
(5) No DoD Component may require advance payment of any fee; i.e., payment before work is commenced or continued on a request, unless the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250.00. As used in this sense, a timely fashion is 30 calendar days from the
(6) Where a Component estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250.00, the Component shall notify the requester of the likely cost and obtain satisfactory assurance of full payment where the requester has a history of prompt payments, or require an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment.
(7) Where a requester has previously failed to pay a fee charged in a timely fashion (i.e., within 30 calendar days from the date of the billing), the Component may require the requester to pay the full amount owed, plus any applicable interest, or demonstrate that he has paid the fee, and to make an advance payment of the full amount of the estimated fee before the Component begins to process a new or pending request from the requester. Interest will be at the rate prescribed in 31 U.S.C. 3717 (reference (ff)), and confirmed with respective Finance and Accounting Offices.
(8) After all work is completed on a request, and the documents are ready for release, Components may request payment prior to forwarding the documents if there is no payment history on the requester, or if the requester has previously failed to pay a fee in a timely fashion (i.e., within 30 calendar days from the date of the billing). In the case of the latter, the provisions of § 518.85(b)(7), apply. Components may not hold documents ready for release pending payment from requesters with a history of prompt payment.
(9) When Components act under § 518.85, (a)(1) through (a)(7), of this part, the administrative time limits of the FOIA (i.e., 10 working days from receipt of initial requests, and 20 working days from receipt of appeals, plus permissible extensions of these time limits) will begin only after the Component has received a willingness to pay fees and satisfaction as to category determination, or fee payments (if appropriate).
(10) Components may charge for time spent searching for records, even if that search fails to locate records responsive to the request. Components may also charge search and review (in the case of commercial requesters) time if records located are determined to be search charges are likely to exceed $25,000 it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his or her willingness to pay fees as high as those anticipated. Such a notice shall offer the requester the opportunity to confer with Component personnel with the object of reformulating the request to meet his or her needs at a lower cost.
(c) Commercial Requesters. Fees shall be limited to reasonable standard charges for document search, review and duplication when records are requested for commercial use. Requesters must reasonably describe the records sought (see § 518.26).
(1) the term “commercial use” request refers to a request from, or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interest of the requester or the person on whose behalf the request is made. In determining whether a requester properly belongs in this category, Component must determine the use to which a requester will put the documents requested. Moreover, where a Components has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, Components should seek additional clarification before assigning the request to a specific category.
(2) When Components receive a request for documents for commercial use, they should assess charges which recover the full direct costs of searching for, reviewing for release, and duplicating the record sought. Commercial requesters (unlike other requesters) are not entitled to two hours of free search time, nor 100 free pages of reproduction of documents. Moreover, commercial requesters are not normally entitled to a waiver or reduction of fees based upon an assertion that disclosure would be in the public interest. However, because use is the exclusive determining criteria, it is possible to envision a commercial enterprise
(d) Educational Institution Requesters. Fees shall be limited to only reasonable standard charges for document duplication (excluding charges for the first 100 pages) when the request is made by an educational institution whose purpose is scholarly research. Requesters must reasonably describe the record sought (see § 518.26). The term “educational institution” refers to a pre-school, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, which operates a program or programs of scholarly research.
(e) Non-Commercial Scientific Institution Requesters. Fees shall be limited to only reasonable standard charges for document duplication (excluding charges for the first 100 pages) when the request is made by a non-commercial scientific institution whose purpose is scientific research. Requesters must reasonably describe the records sought (see § 518.26). The term “non-commercial scientific institution” refers to an institution that is not operated on a “commercial” basis as defined in § 518.81(c) and which is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry.
(f) Components shall provide documents to requesters in § 518.85 (d) and (e), for the cost of duplication alone, excluding charges for the first 100 pages. To be eligible for inclusion in these categories, requesters must show that the request is being made under the auspices of a qualifying institution and that the records are not sought for commercial use, but in furtherance of scholarly (from an educational institution) or scientific (from a non-commercial scientific institution) research.
(g) Representatives of the news media. Fees shall be limited to only reasonable standard charges for document duplication (excluding charges for the first 100 pages) when the request is made by a representative of the news media. Requesters must reasonably describe the records sought (see § 518.26).
(1) The term “representative of the news media” refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term “news” means information that is about current events or that would be of current interest to the public. Example of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public. These examples are not meant to be all-inclusive. Moreover, as traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through telecommunications services), such alternative media would be included in this category. In the case of “freelance” journalists, they may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but Components may also look to the past publication record of a requester in making this determination.
(2) To be eligible for inclusion in this category, a requester must meet the criteria in § 518.85(g)(1) and his or her request must not be made for commercial use. A request for records supporting the news dissemination function of the requester shall not be considered to be a request that is for a commercial use. For example, a document request by a newspaper for records relating to the investigation of a defendant in a current criminal trial of public interest could be presumed to be a request from an entity eligible for inclusion in this category, and entitled to records at the cost of reproduction alone (excluding charges for the first 100 pages).
(3) “Representative of the news media” does not include private libraries, private repositories of Government records, or middlemen, such as information vendors or data brokers.
(h) All Other Requesters. Components shall charge requesters who do not fit into any of the above categories, fees which recover the full direct cost of searching for and duplicating records, except that the first two hours of search time and the first 100 pages of duplication shall be furnished without charge. Requesters must reasonably describe the records sought (see § 518.26). Requests from subjects about themselves will continue to be treated under the fee provisions of the Privacy Act of 1974 (reference (ff)), which permit fees only for duplication. Components are reminded that this category of requester may also be eligible for a waiver or reduction of fees if disclosure of the information is in the public interest as defined under § 518.84(a). (See also § 518.85(c)(2).DD Form 2086 (Record of Freedom of Information (FOI) Processing Cost) will be used to annotate fees for processing FOIA information. The form is available through normal publications channels.
Except for requests that are for a commercial use, a Component may not charge for the first two hours of search time or for the first 100 pages of reproduction. However, a requester may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees. When a Component reasonably believes that a requester or, on rare occasions, a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of avoiding the assessment of fees, the agency may aggregate any such requests and charge accordingly. One element to be considered in determining whether a belief would be reasonable is the time period in which the requests have occurred. For example, it would be reasonable to presume that multiple requests of this type made within a 30 day period had been made to avoid fees. For requests made over a longer period, however, such a presumption becomes harder to sustain and Components should have a solid basis for determining that aggregation is warranted in such cases. Components are cautioned that before aggregating requests from more than one requester, they must have a concrete basis on which to conclude that the requesters are acting in concert and are acting specifically to avoid payment of fees. In no case may Components aggregate multiple requests on unrelated subjects from one requester.
The Debt Collection Act of 1982 (Pub. L. 97-365) provides for a minimum annual rate of interest to be charged on overdue debts owed the Federal Government. Components may levy this interest penalty for any fees that remain outstanding 30 calendar days from the date of billing (the first demand notice) to the requester of the amount owed. The interest rate shall be as prescribed in 31 U.S.C. 3717 (reference (ff)). Components should verify the current interest rate with respective Finance and Accounting Offices. After one demand letter has been sent, and 30 calendar days have lapsed with no payment, Components may submit the debt to respective Finance and Accounting Offices for collection pursuant to the Debt Collection Act of 1982.
The fee schedule in this chapter shall be used to compute the search, review (in the case of commercial requesters) and duplication costs associated with processing a given FOIA request. Costs shall be computed on time actually spent. Neither time-based nor dollar-based minimum charges for search, review and duplication are authorized.
Collection of fees will be made at the time of providing the documents to the requester or recipient when the requester specifically states that the costs involved shall be acceptable or
(a) Manual search.
(b)
Search costs are computed as for any other record. Duplication cost is the actual direct cost of reproducing the material, including the wage of the person doing the work. Audiovisual materials provided to a requester need not be in reproducible format or quality. Army audiovisual materials are referred to as “visual information.”
Direct search and duplication cost for any record not described above shall be computed in the manner described for audiovisual documentary material.
Complying with requests for special services is at the discretion of the Components. Neither the FOIA, nor its fee structure cover these kinds of services. Therefore, Components may recover the costs of special services requested by the requester after agreement has been obtained in writing from the requester to pay for one or more of the following services:
(a) Certifying that records are true copies.
(b) Sending records by special methods such as express mail, etc.
(a) Technical data, other than technical data that discloses critical technology with military or space application, if required to be released under the FOIA, shall be released after the person requesting such technical data pays all reasonable costs attributed to search, duplication and review of the records to be released. Technical data, as used in this Section, means recorded information, regardless of the form or method of the recording of a scientific or technical nature (including computer software documentation). This term does not include computer software, or data incidental to contract administration, such as financial and/or management information. DoD Components shall retain the amounts received by such a release, and it shall be merged with and available for the same purpose and the same time period as the appropriation from which the costs were incurred in complying with request. All reasonable costs as used in this sense are the full costs to the Federal Government of rendering the service, or fair market value of the service, whichever is higher. Fair market value shall be determined in accordance with commercial rates in the local geographical area. In the absence of a
(b) Waiver. Components shall waive the payment of costs required in § 518.96(a), which are greater than the costs that would be required for release of this same information under the Collection of Fees and Fee Rates portion of this subpart if:
(1) The request is made by a citizen of the United States or a United States corporation, and such citizen or corporation certifies that the technical data requested is required to enable it to submit an offer, or determine whether it is capable of submitting an offer to provide the product to which the technical data relates to the United States or a contractor with the United States. However, Components may require the citizen or corporation to pay a deposit in an amount equal to not more than the cost of complying with the request, which will be refunded upon submission of an offer by the citizen or corporation;
(2) The release of technical data is requested in order to comply with the terms of an international agreement; or,
(3) The Component determines in accordance with § 518.80(a), that such a waiver is in the interest of the United States.
(c) Fee Rates.
(1) Search time. (i) Manual Search.
Professional and Executive (To be established at actual hourly rate prior to search. A minimum charge will be established at
(ii) Computer search is based on the total cost of the central processing unit, input-output devices, and memory capacity of the actual computer configuration. The wage (based upon the scale in § 518.96(c)(1)(i), for the computer operator and/or programmer determining how to conduct, and subsequently executing the search will be recorded as part of the computer search.
(2) Duplication.
(3) Review time.
Professional and Executive (To be established at actual hourly rate prior to review. A minimum charge will be established at
(d) Other technical data records. Charges for additional services not specifically provided in § 518.96(c), consistent with DoD Instruction 7230.7 (reference (r)), shall be made by Components at the following rates:
The reporting requirement outlined in this subpart is assigned Report Control Symbol DD-PA(A) 1365. See appendix F for DD Form 2564, Annual Report Freedom of Information Act.
Each DoD Component shall prepare statistics and accumulate paperwork for the preceding calendar year on those times prescribed for the annual report and submit them in duplicate to the ASD(PA) on or before each February 1. Existing DoD standards and registered data elements are to be used for all data requirements to the greatest extent possible in accordance with the provisions of DoD Directive 5000.11 (reference(s)) AR 25-9. The standard data elements are contained in DoD Directive 5000.12-M (reference (99)). The Army will follow guidelines below and submit the information to the Army Freedom of Information and Privacy Act Division, Information Systems Command, Attn: ASQNS-OP-F, Room 1146, Hoffman Building I, Alexandria, VA 22331-0301 by the second week of each January.
(a) Each reporting activity will submit the information requested in § 518.99, items (a)(1), (a)(2), (a)(5), (a)(6), (b)(3), (i), (j)(l), (j)(2) and (j)(2)(i). Data will be collected throughout the year on DD Form 2086.
(b) Each IDA will submit the information requested in § 518.99, excluding items (d) through (h).
(c) The Judge Advocate General, Army, will submit the information requested in § 518.99, item (9).
(d) The Army General Counsel will submit the information requested in § 518.99, items (d) through (f).
(e) The Information Systems Command will compile the data submitted in the Department of the Army's annual Reporting of Freedom of Information Processing Costs (RCS DD-PA(A) 1365). This report will be coordinated through the DISC4 (SAIS-PDC), WASH DC 20310-0107, to the Director of Freedom of Information and Security Review by 31 January each year.
The following instructions shall be used in preparing the annual report for submission on DD Form 2564 (see appendix G to this part). DD Form 2564 may be ordered through publication channels or reproduced locally:
(a) Item 1.
(1)
(2)
(3)
(4)
(5)
(6)
(b) Item 2.
(1)
(2)
(i) 5 U.S.C. 552a—Privacy Act.
(ii) 17 U.S.C. 101 et. seq.—Copyright Act.
(iii) 18 U.S.C. 793—Gathering, Transmitting or Losing Defense Information.
(iv) 18 U.S.C. 794—Gathering or Delivering Defense Information to Aid Foreign Governments.
(v) 18 U.S.C. 1905—Trade Secrets Act.
(vi) U.S.C. 1498—Patent and Copyright Cases.
(3) “
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(c) Item. 3.
(d) Item 4.
(1)
(2)
(3)
(4)
(5)
(6)
(e) Item 5.
(1)
(2)
(3)
(f) Item 6.
(g) Item 7.
(h) Item 8.
(i) Item 9.
(j) Item 10.
(1)
(2)
(i)
(a)
(b)
(c)
(1)
(2)
(3)
(4)
(5)
(6)
(d)
(e)
(2)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(3)
(4)
(f)
(1)
(2)
(3)
(4)
(5)
(ii) [Reserved]
The head of each DoD Component is responsible for the establishment of educational and training programs on the provisions and requirements of this Regulation. The educational programs should be targeted toward all members
The purpose of the educational and training programs is to promote a positive attitude among DoD personnel and raise the level of understanding and appreciation of the DoD FOIA Program, thereby improving the interaction with members of the public and improving the public trust in the Department of Defense.
Each Component shall design its FOIA educational and training programs to fit the particular requirements of personnel dependent upon their degree of involvement in the implementation of this Regulation. The Program should be designed to accomplish the following objectives:
(a) Familiarize personnel with the requirements of the FOIA and its implementation by this Regulation.
(b) Instruct personnel, who act in FOIA matters, concerning the provisions of this Regulation, advising them of the legal hazards involved and the strict prohibition against arbitrary and capricious withholding of information.
(c) Provide for the procedural and legal guidance and instruction, as may be required, in the discharge of the responsibilities of initial denial and appellate authorities.
(d) Advise personnel of the penalties for noncompliance with the FOIA.
To ensure uniformity of interpretation, all major educational and training programs concerning the implementation of this Regulation should be coordinated with the Director, Freedom of Information and Security Review, OASD(PA).
In accordance with DoD Directive 5400.7 (reference (b)), the General Counsel of the Department of Defense shall ensure uniformity in the legal position and interpretation of the DoD FOIA Program. This regulation provides procedures for contacting the DOD General Counsel where required.
1.
a. In accordance with DoD Directive 5400.7 (reference (b)) and this Regulation, the Unified Commands are placed under the jurisdiction of the Office of the Secretary of Defense, instead of the administering Military Department, only for the purpose of administering the Freedom of Information (FOI) Programs. This policy represents an exception to the policies in DoD Directive 5100.3 (reference (f)).
b. The policy change above authorizes and requires the Unified Commands to process FOI requests in accordance with DoD Directive 5400.7 (reference (b)) and DoD Instruction 5400.10 (reference (hh)) and to forward directly to the OASD(PA) all correspondence associated with the appeal of an initial denial for information under the provisions of the FOIA.
2.
Unified Commanders in Chief shall:
a. Designate the officials authorized to deny initial FOIA requests for records.
b. Designate an office as the point-of-contact for FOIA matters.
c. Refer FOIA cases to the ASD(PA) for review and evaluation when the issues raised are of unusual significance, precedent setting, or otherwise require special attention or guidance.
d. Consult with other OSD and DoD Components that may have a significant interest in the requested record prior to a final determination. Coordination with agencies outside of the Department of Defense, if required, is authorized.
e. Coordinate proposed denials of records with the appropriate Unified Command's Office of the Staff Judge Advocate. Answer any request for a record within 10 working days of receipt. The requester shall be notified that his request has been granted or denied. In unusual circumstances, such notification may state that additional time, not to exceed 10 working days, is required to make a determination.
f. Provide to the ASD(PA) when the request for a record is denied in whole or in part, a copy of the response to the requester
g. State in the response that the decision to deny the release of the requested information, in whole or in part, may be appealed to the Assistant Secretary of Defense (Public Affairs), the Pentagon, Washington, DC 20301-1400.
h. Upon request, submit to ASD(PA) a copy of the records that were denied. ASD(PA) shall make such requests when adjudicating appeals.
3.
The fees charged for requested records shall be in accordance with subpart F.
4.
Excellent communications capabilities currently exist between the OASD(PA) and the Public Affairs Offices of the Unified Commands. This communication capability shall be used for FOIA cases that are time sensitive.
5.
a. The Unified Commands shall submit to the ASD(PA) an annual report. The instructions for the report are outlined in subpart G.
b. The annual report shall be submitted in duplicate to the ASD(PA) not later than each February 1. This reporting requirement is assigned Report Control Symbol DD-PA(A)1365.
1.
a. The Department of Defense includes the Office of the Secretary of Defense and the Joint Staff, the Military Departments, the Unified Commands, the Defense Agencies, and the DoD Field Activities.
b. The Department of Defense does not have a central repository for DoD records. FOIA requests, therefore, should be addressed to the DoD Component that has custody of the record desired. In answering inquiries regarding FOIA requests, DoD personnel shall assist requesters in determining the correct DoD Component to address their requests. If there is uncertainty as to the ownership of the record desired, the requester shall be referred to the DoD Component that is most likely to have the record.
2.
a. Office of the Secretary of Defense and the Joint Staff. Send all requests for records from the below listed offices to: Office of the Assistant Secretary of Defense (Public Affairs), Attn: Directorate for Freedom of Information and Security Review, room 2C757, The Pentagon, Washington, DC 20301-1400.
(1) Executive Secretariat.
(2) Under Secretary of Defense (Policy).
(a) Assistant Secretary of Defense (International Security Affairs).
(b) Assistant Secretary of Defense (International Security Policy).
(c) Assistant Secretary of Defense (Special Operations/Low Intensity Conflict).
(d) Principal Deputy Under Secretary of Defense (Strategy and Resources).
(e) Deputy Under Secretary of Defense (Trade Security Policy).
(f) Deputy Under Secretary of Defense (Security Policy).
(g) Director of Net Assessment.
(h) Director Defense Security Assistance Agency.
(i) Defense Technology Security Administration.
(3) Under Secretary of Defense (Acquisition).
(a) Assistant Secretary of Defense (Production and Logistics).
(b) Assistant Secretary of Defense (Command, Control, Communications, and Intelligence).
(c) Assistant to the Secretary of Defense (Atomic Energy).
(d) Director, Defense Research and Engineering.
(e) Director, Small and Disadvantaged Business Utilization.
(4) Comptroller of the Department of Defense.
(5) Assistant Secretary of Defense (Force Management and Personnel).
(6) Assistant Secretary of Defense (Health Affairs).
(7) Assistant Secretary of Defense (Legislative Affairs).
(8) Assistant Secretary of Defense (Public Affairs).
(9) Assistant Secretary of Defense (Program Analysis and Evaluation).
(10) Assistant Secretary of Defense (Reserve Affairs).
(11) General Counsel, Department of Defense.
(12) Director, Operational Test and Evaluation.
(13) Assistant to the Secretary of Defense (Intelligence Oversight).
(14) Assistant to the Secretary of Defense (Intelligence Policy).
(15) Defense Advanced Research Projects Agency.
(16) Strategic Defense Initiative Organization.
(17) Defense Systems Management College.
(18) National Defense University.
(19) Armed Forces Staff College.
(20) Department of Defense Dependent Schools.
(21) Uniformed Services University of the Health Sciences.
b. Department of the Army. Army records may be requested from those Army officials who are listed in 32 CFR part 518 (reference (ii)), appendix B. Send requests to the Chief,
(1) Current publications and records of DA field commands, installations, and organizations.
(a) Send the request to the commander of the command, installation, or organization, to the attention of the Freedom of Information Act Official.
(b) Consult AR 25-400-2 for more detailed listings of all record categories kept in DA offices.
(c) Contact the installation or organization public affairs officer for help if you cannot determine the official within a specific organization to whom your request should be addressed.
(2) Department of the Army publications.
(a) Write to the U.S. Government Printing Office, which has many DA publications for sale. Address: Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-0001.
(b) Use the facilities of about 1,000 Government publication depository libraries throughout the United States. These libraries have copies of many DA publications. Obtain a list of these libraries from the Superintendent of Documents at the above address.
(c) Send requests for current administrative, training, technical, and supply publications to the National Technical Information Service, U.S. Department of Commerce, Attn: Order Preprocessing Section, 5285 Port Royal Road, Springfield, VA 22151-2171; commercial telephone, (703) 487-4600. The National Technical Information Service handles general public requests for unclassified, uncopyrighted, and nondistribution-restricted Army publications not sold through the Superintendent of Documents.
(3) Military personnel records. Send requests for military personnel records of information as follows:
(a) Army Reserve personnel not on active duty and retired personnel—Commander, U.S. Army Reserve Personnel Center, 9700 Page Blvd., St. Louis, MO 63132-5200; commercial telephone, (314) 263-7600.
(b) Army officer personnel discharged or deceased after 1 July 1917 and Army enlisted personnel discharged or deceased after 1 November 1912—Director, National Personnel Records Center, 9700 Page Blvd., St. Louis, MO 63132-5100.
(c) Army personnel separated before the dates specified in (ii) above—Textual Reference Division, Military Reference Branch, National Archives and Records Administration, Washington, DC 20408-0001.
(d) Army National Guard officer personnel[EM]Chief, National Guard Bureau. Army National Guard enlisted personnel[EM]Adjutant General of the proper State.
(e) Active duty commissioned and warrant officer personnel—Commander, U.S. Total Army Personnel Command, Attn: TAPC-ALS, Alexandria, VA 22332-0405; commercial telephone, (703) 325-4053. Active duty enlisted personnel—Commander, U.S. Army Enlisted Records and Evaluation Center, Attn: PCRE-RF, Fort Benjamin Harrison, IN 46249-4701; commercial telephone, (317) 542-3643.
(4) Medical records.
(a) Medical records of non-active duty military personnel. Use the same addresses as for military personnel records.
(b) Medical records of military personnel on active duty. Address the medical treatment facility where the records are kept. If necessary, request locator service per (e) above.
(c) Medical records of civilian employees and all dependents. Address the medical treatment facility where the records are kept. If the records have been retired, send requests to the Director, National Personnel Records Center, 111 Winnebago St., St. Louis, MO 63118-4199.
(5) Legal records.
(a) Records of general courts-martial and special courts-martial in which a bad conduct discharge was approved. For cases not yet forwarded for appellate review, apply to the staff judge advocate of the command having jurisdiction over the case. For cases forwarded for appellate review and for old cases, apply to the U.S. Army Legal Service Agency, Attn: JALS-CC, Nassif Building, Falls Church, VA 22041-5013; AUTOVON 289-1888, commercial telephone, (202) 756-1888.
(b) Records of special courts-martial not involving a bad conduct discharge. These records are kept for 10 years after completion of the case. If the case was completed within the past 3 years, apply to the staff judge advocate of the headquarters where it was reviewed. If the case was completed from 3 to 10 years ago, apply to the National Personnel Records Center (Military Records), 9700 Page Blvd., St. Louis, MO 63132-5100. If the case was completed more than 10 years ago, the only evidence of conviction is the special courts-martial order in the person's permanent records. Request as in (3) above.
(c) Records of summary courts-martial. Locally maintained records are retired 3 years after action of the supervisory authority. Request records of cases less than 3 yeas old from the staff judge advocate of the headquarters where the case was reviewed. After 10 years, the only evidence of conviction is the summary courts-martial order in
(d) Requests submitted under (b) and (c) above. These requests will be processed in accordance with chapter V. The IDA is The Judge Advocate General, HQDA (DAJA-CL), WASH DC 20310-2213; AUTOVON 225-1891, commercial telephone, (202) 695-1891.
(e) Administrative settlement of claims. Apply to the Chief, U.S. Army Claims Service, Attn: JACS-TCC, Fort George G. Meade, MD 20755-5360; AUTOVON 923-7860, commercial telephone, (301) 677-7860.
(f) Records involving debarred or suspended contractors. Apply to HQDA (JALS-PF), WASH DC 20310-2217; AUTOVON 285-4278, commercial telephone, (202) 504-4278.
(g) Records of all other legal matters (other than records kept by a command, installation, or organization staff judge advocate). Apply to HQDA (DAJA-AL), WASH DC 20310-2212; AUTOVON 224-4316, commercial telephone, (202) 694-4316.
(6) Civil works program records. Civil works records include those relating to construction, operation, and maintenance for the improvement of rivers, harbors, and waterways for navigation, flood control, and related purposes, including shore protection work by the Army. Apply to the proper division or district office of the Corps of Engineers. If necessary to determine the proper office, contact the Commander, U.S. Army Corps of Engineers, Attn: CECC-K, WASH DC 20314-1000; commercial telephone, (202) 272-0028.
(7) Civilian personnel records. Send requests for personnel records of current civilian employees to the employing installation. Send requests for personnel records of former civilian employees to the Director, National Personnel Records Center, 111 Winnebago St., St. Louis, MO 63118-4199.
(8) Procurement records. Send requests for information about procurement activities to the contracting officer concerned or, if not feasible, to the procuring activity. If the contracting officer or procuring activity is not known, send inquiries as follows:
(a) Army Materiel Command procurement: Commander, U.S. Army Materiel Command, Attn: AMCPA, 5001 Eisenhower Ave., Alexandria, VA 22333-0001.
(b) Corps of Engineers procurement: Commander, U.S. Army Corps of Engineers, Attn: CECC-K, WASH DC 20314-1000; commercial telephone, (202) 272-0028.
(c) All other procurement: HQDA (DAJA-KL), WASH DC 20310-2208; AUTOVON 225-6209, commercial telephone, (202) 695-6209.
(9) Criminal investigation files. Send requests involving criminal investigation files to the Commander, U.S. Army Criminal Investigation Command, Attn: CICR-FP, 2301 Chesapeake Ave., Baltimore, MD 21222-4099; commercial telephone, (301) 234-9340. Only the Commanding General, USACIDC, can release any USACIDC-originated criminal investigation file.
(10) Personnel security investigation files and general Army intelligence records. Send requests for personnel security investigation files, intelligence investigation and security records, and records of other Army intelligence matters to the Commander, U.S. Army Intelligence and Security Command, Attn: IACSF-FI, Fort George G. Meade, MD 20755-5995.
(11) Inspector General records. Send requests involving records within the Inspector General system to HQDA (SAIG-ZXL), WASH DC 20310-1714. AR 20-1 governs such records.
(12) Army records in Government records depositories.
(a) Noncurrent Army records are in the National Archives of the United States, WASH DC 20408-0001; in Federal Records Centers of the National Archives and Records Administration; and in other records depositories. Requesters must write directly to the heads of these depositories for copies of such records.
(b) A list of pertinent records depositories is published in AR 25-400-2, table 6-1.
(c) Department of the Navy. Navy and Marine Corps records may be requested from any Navy or Marine Corps activity by addressing a letter to the Commanding Officer and clearly indicating that it is an FOIA request. Send requests to Chief of Naval Operations, Code OP-09B30, room 5E521, Pentagon, Washington, DC 20350-2000, for records of the Headquarters, Department of the Navy, and to Freedom of Information and Privacy Act Office, Code MI-3, HQMC, room 4327, Washington, DC 20308-0001, for records of the U.S. Marine Corps, or if there is uncertainty as to which Navy or Marine activities may have the records.
(d) Department of the Air Force. Air Force records may be requested from the Commander of any Air Force installation, major command, or separate operating agency (Attn: FOIA Office). For Air Force records of Headquarters, United States Air Force, or if there is uncertainty as to which Air Force activity may have the records, send requests to Secretary of the Air Force, Attn: SAF/AAIS(FOIA), Pentagon, room 4A1088C, Washington, DC 20330-1000.
(e) Defense Contract Audit Agency (DCAA). DCAA records may be requested from any of its regional offices or from its headquarters. Requesters should send FOIA requests to the Defense Contract Audit Agency, Attn: CMR, Cameron Station, Alexandria, VA 22304-6178, for records of its headquarters or if there is uncertainty as to which DCAA region may have the records sought.
(f) Defense Communications Agency (DCA). DCA records may be requested from any DCA
(g) Defense Intelligence Agency (DIA). FOIA requests for DIA records may be addressed to Defense Intelligence Agency, Attn: RTS-1, Washington, DC 20340-3299.
(h) Defense Investigative Service (DIS). All FOIA requests for DIS records should be sent to the Defense Investigative Service, Attn: V0020, 1900 Half St., SW., Washington, DC 20324-1700.
(i) Defense Logistics Agency (DLA). DLA records may be requested from its headquarters or from any of its field activities. Requestors should send FOIA requests to defense Logistics Agency, Attn: DLA-XAM, Cameron Station, Alexandria, VA 22304-6100.
(j) Defense Mapping Agency (DMA). FOIA requests for DMA records may be sent to the Defense Mapping Agency, 8613 Lee Highway, Fairfax, VA 22031-2137.
(k) Defense Nuclear Agency (DNA). FOIA requests for DNA records may be sent to the Defense Nuclear Agency, Public Affairs Office, room 113, 6801 Telegraph Road, Alexandria, VA 22310-3398.
(l) National Security Agency (NSA). FOIA requests for NSA records may be sent to the National Security Agency/Central Security Service, Attn: Q-43, Fort George G. Meade, MD 20755-6000.
(m) Office of the Inspector General, Department of Defense (IG, DoD). FOIA requests for IG, DoD records may be sent to the Department of Defense Office of the Inspector General, Assistant Inspector General for Investigations, Attn: Deputy Director FOIA/PA Division, 400 Army Navy Drive, Arlington, VA 22202-2884.
(n) Defense Finance and Accounting Service (DFAS). DFAS records may be requested from any of its regional offices or from its Headquarters. Requesters should send FOIA requests to Defense Finance and Accounting Service, Crystal Mall 3, room 416, Washington, DC 20376-5001 for records of its headquarters, or if there is uncertainty as to which DFAS region may have the records sought.
3.
Although the below organizations are OSD and Joint Staff Components for the purposes of the FOIA, requests may be sent directly to the addresses indicated.
(a) Office of Civilian Health and Medical Program of the Uniformed Services (OCHAMPUS). Director, OCHAMPUS, Attn: Freedom of Information Officer, Aurora, CO 80045-6900.
(b) Chairman, Armed Services Board of Contract Appeals (ASBCA). Chairman, Armed Services Board of Contract Appeals, Skyline Six, 5109 Leesburg Pike, Falls Church, VA 22041-3208.
(c) U.S. Central Command. U.S. Central Command/CCJI/AG, MacDill Air Force Base, FL 33608-7001.
(d) U.S. European Command. Headquarters, U.S. European Command/ECJ1-AR(FOIA), APO New York 09128-4209.
(e) U.S. Southern Command. U.S. Commander-in-Chief, Southern Command, Attn: SCJ1, APO Miami 34003-0007.
(f) U.S. Pacific Command. U.S. Commander-in-Chief, Pacific Command, USPACOM FOIA Coordinator (J18A), Administrative Support Division, Joint Secretariat, Box 28, Camp H.M. Smith, HI 96861-5025.
(g) U.S. Special Operations Command. U.S. Special Operations Command, Attn: SOJ6-SI (FOI Officer), MacDill, Air Force Base, FL 33608.
(h) U.S. Atlantic Command. Commander-in-Chief, Atlantic Command, Code J02P6, Norfolk, VA 23511-5100.
(i) U.S. Space Command. Chief Records Management Division, Directorate of Administration, United States Space Command Peterson Air Force Base, CO 80914-5001.
(j) U.S. Transportation Command. U.S. Commander-in-Chief, Transportation Command, Attn: TCDA-RM, Scott Air Force Base, IL 62225-7001.
4.
FOIA requests for National Guard Bureau records may be sent to the Chief, National Guard Bureau (NGB-DAI), Pentagon, room 2C362, Washington, DC 20310-2500.
5.
If there is uncertainty as to which DoD component may have the DoD record sought, the requester may address a Freedom of Information request to the Office of the Assistant Secretary of Defense (Public Affairs), Attn: Directorate for Freedom of Information and Security Review, room 2C757, The Pentagon, Washington, DC 20301-1400.
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1. Ensure that a Freedom of Information Act Program is established and implemented.
2. Appoint an individual with Freedom of Information Act responsibilities and ensure designation of appropriate staff to assist him/her.
3. Appoint an individual with Operations Security (OPSEC) responsibilities, if required.
1. Is a Freedom of Information Act Program established and implemented in your organization?
2. Is an individual appointed Freedom of Information Act Responsibilities?
3. Is an individual appointed OPSEC responsibilities, if required?
4. Is DA Form 4948-R, Freedom of Information Act (FOIA)/Operations
5. Does DA Form 4948-R contain the current name and office telephone number of the FOIA/OPSEC advisor?
6. Are provisions of AR 25-55 concerning the protection of OPSEC sensitive information regularly brought to the attention of managers responsible for responding to FOIA requests and those responsible for control of Army records?
7. Are rules governing “For Official Use Only” information understood and properly applied by functional proponents?
8. Are names and duty addresses of Army personnel (civilian and military) assigned to units that are sensitive, routinely deplorable, or stationed in foreign territories being denied or forwarded to the proper initial denial authority (IDA) for denial?
9. Is the format contained in AR 25-55, used when preparing the annual FOIA report?
10. Is the worksheet contained in AR 25-55 used when preparing the annual FOIA report?
11. Is the input for the annual FOIA report forwarded to the Army Freedom of Information and Privacy Act Division, Information Systems Command by the second week of each January?
1. Ensure FOIA requests are logged into a formal control system.
2. Ensure FOIA requests are answered promptly and correctly.
3. Ensure Army records are withheld only when fall under the purview of one or more of the nine FOIA exemptions.
4. Ensure FOIA requests are denied by properly delegated/designated IDAs.
5. Ensure all appeals are forwarded to the Office of the Army General Counsel.
1. Are FOIA requests logged into a formal control system?
2. Are all FOIA requests date and time stamped upon receipt?
3. Is the 10 working day time limit met when replying to FOIA requests?
4. When more than 10 working days are required to respond, is the FOIA requester informed, explaining the circumstances requiring the delay and provided an approximate date for completion?
5. Are Army records withheld only when they fall under one or more of the nine FOIA exemptions?
6. Is the FOIA requester informed when a FOIA request is referred to another Army activity or organization?
7. Do denial letters contain the name and title or position of the official who made the denial determination; explain the basis for the denial determination; cite the exemptions on which the denial is based; and advise the FOIA requester of his or her right to appeal the denial within 60 days to the Secretary of the Army (Office of the Army General Counsel)?
8. Is the FOIA requester informed of the appellate procedures when an IDA denies a record in whole or in part?
9. Is the Chief of Legislative Liaison notified of all releases of information to members of Congress or staffs of congressional committees?
10. Are FOIA requests denied only by properly delegated/designated IDAs?
11. Is the servicing Judge Advocate consulted prior to forwarding a FOIA request to an IDA for action?
12. Are the following items included when forwarding a FOIA request to an IDA for a determination of releasability?
a. A copy of the legal review provided by the local legal advisor?
b. The original copy of the FOIA request?
c. Copies of the requested information indicating portions recommended for withholding?
d. A copy of the acknowledgement of receipt to the requester?
e. A telephone point of contact?
f. The recommended FOIA exemption?
g. Any recommendation to deny a request in whole or in part?
13. Are all FOIA appeals forward to the Office of the General Counsel for a decision with a copy of denied and released records?
14. Is a copy of the FOIA denial letter included when forwarding appeals to the Office of the General Counsel?
15. Is DD Form 2086-R, Record of Freedom of Information (FOI) Processing Cost, used to record costs associated with the processing of a FOIA request?
16. Is DD Form 2086-1-R, Record of Freedom of Information (FOI) Processing Cost for Technical Data, used to record costs associated with the processing of a FOIA request for technical data?
17. Is the FOIA requester notified when charges will exceed $250.00?
18. Are fees collected at the time the requester is provided the records?
19. Are commercial requesters charged for all search, review, and duplication costs?
20. Are educational institutions, noncommercial scientific institutions, or news media charged for duplication only, in excess of 100 pages, if more than 100 pages of records are requested?
21. Are the first 2 hours of search time, and the first 100 pages of duplication provided without charge to all “other” category requesters?
22. Are FOIA fees collected and delivered to the servicing finance and accounting office within 30 calendar days after receipt?
23. Are FOIA fees collected for technical data retained by the organization providing the technical data?
1. Are unclassified documents containing “For Official Use Only” information marked “FOR OFFICIAL USE ONLY” in bold letters at least
2. Are individual pages containing both “For Official Use Only” and classified information marked at the top and bottom with the highest security classification of information appearing on the page?
3. Are photographs, films, tapes, slides, and microform containing “For Official Use Only” information so marked “For Official Use Only” to ensure recipient or viewer is aware of the information therein?
4. Is “For Official Use Only” material transmitted outside the Department of the Army properly marked “This document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA. Exemption * * * applies”?
5. Are permanently bound volumes of “For Official Use Only” information so marked on the outside of the front and back covers, title page, and first and last page?
6. Is DA Label 87 (For Official Use Only Cover Sheet) affixed to “For Official Use Only” documents when removed from a file cabinet?
7. Do electrically transmitted messages contain the abbreviation “FOUO” before the beginning of the text?
8. Are “For Official Use Only” records stored properly during nonduty hours?
9. Are FOIA records maintained and disposed of in accordance with AR 25-400-2, The Modern Army Recordkeeping System (MARKS)?
1. Explain rationale for YES responses or provide cross-reference where rationale can be found. For NO responses, cross-reference to where corrective action plans can be found. If response is NA, explain rationale.
I have reviewed this subtask within my organization and have supplemented the prescribed internal control review checklist when warranted by unique environmental circumstances. The controls prescribed in this checklist, as amended, are in place and operational for my organization (except for the weaknesses described in the attached plan, which includes schedules for correcting the weaknesses).
Sec. 3012, 70A Stat. 157, (10 U.S.C. 3012); sec. 3, 60 Stat. 238, (5 U.S.C. 552).
This regulation prescribes procedures and responsibilities for publishing certain Department of the Army policies, practices and procedures in the
(a)
(b)
(c)
(a) The Adjutant General (TAG) is responsible for policies concerning Army rules, and proposed rules published in the
(b) The officials listed in table 1 (hereinafter referred to as proponents) are responsible for determining whether any rule originated in their areas of jurisdiction falls within the purview of § 519.64, and for taking all actions specified in §§ 519.65 through 519.69. They are also responsible for determining which matters within their areas of jurisdiction must be published in accordance with § 519.59 and for submission actions specified in § 519.61.
(c) Legal officers and staff judge advocates supporting the proponents will provide legal advice and assistance in connection with proponent responsibilities contained herein.
The officials listed in table 1 will designate Rulemaking Coordinators to perform the duties listed in paragraphs (a) through (d) of this section for their areas of functional responsibility. At the time of designation, the Adjutant General (DAAG-AMR-R) will be informed of the name and telephone number of the designated individual. The designee will perform the following duties:
(a) Editorial review of all rules, notices, and highlight statements required to be published in the
(b) Transmitting material to TAG and providing TAG with the name, office symbol, and telephone number of the action officer for each rule or general notice for inclusion in the
(c) Coordinating with Publication Control Officers to ensure submission of Statements of Compliance required by § 519.55.
(d) Notifying HQDA (DAAG-AMR-R), WASH DC 20314, when a regulation published in the
In order to ensure compliance with the regulation, no rule will be issued unless there is on file with The Adjutant General (DAAG-AMR-R) a statement to the effect that it has been evaluated in terms of this regulation. If the proponent determines that the provisions of this regulation are inapplicable, such determination shall be explained in the statement.
When Army-wide publications or directives are transmitted to The Adjutant General (DAAG-PAP) for publication, the DA Form 260 (Request for Printing of Publication) or other transmittal paper will contain a statement that the directive has been processed for publication in the
(a) With the approval of the Director of the Federal Register, the requirements for publication in the
(b) Incorporation by reference is not acceptable as a complete substitute for promulgating in full the material required to be published. It may, however, be utilized to avoid unnecessary repetition of published information already reasonably available to the class of persons affected. Examples include:
(1) Construction standards issued by a professional association of architects, engineers, or builders,
(2) Codes of ethics issued by professional organizations, and,
(3) Forms and formats publicly or privately published and readily available to the persons required to use them.
(c) Proposals for incorporation by reference will be submitted to HQDA (DAAG-AMR-R), WASH DC 20314 by letter giving an identification and subject description of the document, statement of availability, indicating document will be reasonably available to the class of persons affected, where and
(d) TAG will consult with the Director, Office of the Federal Register (OFR) concerning each specific request and will notify the proponent of the outcome of the consultation.
(e) If the Director, OFR agrees to the proposal for incorporation by reference, a general notice will be submitted to HQDA (DAAG-AMR-R), WASH DC 20314.
The Administrative Procedure Act, as amended by the Freedom of Information Act, 5 U.S.C. 552(a), requires that certain policies, practices, procedures, and other information concerning the Department of the Army be published in the
In deciding which information to publish, consideration shall be given to the fundamental objective of informing all interested persons of how to deal effectively with the Department of the Army. Information to be currently published will include:
(a) Descriptions of the Army's central and field organization and the established places at which, the officers from whom, and the methods whereby the public may obtain information, make submittals or requests, or obtain decisions;
(b) The procedures by which the Army conducts its business with the public, both formally and informally;
(c) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, the instructions as to the scope and contents of all papers, reports, or examinations;
(d) Substantive rules of applicability to the public adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the Army; and
(e) Each amendment, revision, or repeal of the foregoing.
It is not necessary to publish in the
All matters to be published in accordance with § 519.59 will be submitted to The Adjutant General (DAAG—AMR—R), WASH DC 20314, in the proper format prescribed in § 519.65.
Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, comply with, or be adversely affected by, a matter required to be published in the
Public comment must be sought on certain of those proposed rules which are required to be published in accordance with § 519.59. The following sections set forth the criteria and procedures for inviting public comment before publication.
(a) These provisions apply only to those Department of the Army rules or portions thereof which:
(1) Are promulgated after the effective date of this regulation; and
(2) Must be published in the
(3) Have a substantial and direct impact on the public or any significant portion of the public; and
(4) Do not merely implement a rule already adopted by a higher element within the Department of the Army or by the Department of Defense.
(b) Subject to the policy in paragraph (a) of this section and unless otherwise required by law, the requirement to invite advance public comment on proposed rules does not apply to those rules or portions thereof which:
(1) Do not come within the purview of paragraph (a) of this section; or
(2) Involve any matter pertaining to a military or foreign affairs function of the United States which has been determined under the criteria of an Executive Order or statute to require a security classification in the interests of national defense or foreign policy; or
(3) Involve any matter relating to Department of the Army management, personnel, or public contracts, e.g., Armed Services Procurement Regulation, including nonappropriated fund contracts; or
(4) Constitute interpretative rules, general statements of policy or rules of organization, procedure or practice; or
(5) The proponent of the rule determines for good cause that inviting public comment would be impracticable, unnecessary, or contrary to the public interest. This provision will not be utilized as a convenience to avoid the delays inherent in obtaining and evaluating prior public comment. See also § 519.69.
(a) A proposed rule to which this section applies will be published along with a preamble, in the Proposed Rules Section of the
(b) The proposed rule and preamble will be prepared for publication by the proponent of the rule. Preparation will be in accordance with guidance contained in Federal Register Handbook on Document Drafting.
(c) Rulemaking proponents will submit the original and three copies of the proposed rules and preamble, in the proper format, to HQDA (DAAG-AMR-R), WASH DC 20314. The Adjutant General will prepare the required certification and submit the documents to the Office of the Federal Register for publication as a notice of proposed rulemaking.
(a) Following publication of a notice of proposed rulemaking, all interested persons will be given an opportunity to participate in the rulemaking through the submission of written data, views and arguments to the proponent of the proposed rulemaking concerned.
(b) If the proponent of the rule determines that it is in the public interest, a hearing or other opportunity for oral presentation of view may be allowed as a means of facilitating public comment. Informal consultation by telephone or otherwise may also be utilized to facilitate presentation of oral comments by interested persons. All hearings or other oral presentations will be conducted by the proponent of the rule in a manner prescribed by him. A hearing file shall be established for each hearing. The hearing file shall include any public notices issued, the request for the hearing, any data or material submitted in justification thereof, materials submitted in opposition to the proposed action, the hearing transcript, and any other material as may be relevant or pertinent to the subject matter of the hearing.
(c) There is no requirement to respond either orally or in writing, individually to any person who submits comments with respect to a proposed rule. The proponent of the rule, however, may do so as a matter within his discretion.
(a) After careful consideration of all relevant material submitted, the proponent of the rule will make such revisions in the proposed rule as appear necessary in light of the comments received.
(b) The proponent will also prepare a preamble for publication with the
(c) The original and three copies of the preamble and revised rule will be forwarded to HQDA (DAAG-AMR-R), WASH DC 20314 in the proper format. The Adjutant General will then prepare the required certification and submit the documents to the Office of the Federal Register for publication in the form of an adopted rule.
Each proponent of a rule will grant to any interested person the right to submit a written petition calling for the issuance, amendment, or repeal of any rule to which §§ 519.64 through 519.67 applies or would apply if issued, as specified in § 519.64. Any such petition will be given full and prompt consideration by the proponent. If compatible with the orderly conduct of public business, the appropriate official may, at his descretion, allow the petitioner to appear in person for the purpose of supporting this petition. After consideration of all relevant matters by the proponent, the petitioner will be advised in writing by the proponent of the disposition of any petition, together with the reasons supporting that disposition. This provision does not apply to comments submitted on proposed rules in § 519.66.
(a) Whenever a rulemaking proponent determines for good cause that inviting public comment regarding a proposed rule would be impractical, unnecessary, or contrary to the public interest, he will prepare a brief statement of the reasons supporting this determination for incorporation in the preamble to the adopted rule. The preamble and adopted rule will then be published in the form outlined in § 519.67 (b) and (c).
(b) Alternatively, the proponent may request The Adjutant General (DAAG-AMR-R) (by letter or disposition form, as appropriate) to adopt and publish in the
44 U.S.C. 1681, 50 U.S.C. 797, 18 U.S.C. 1001, and E.O. 11021.
(a)
(b)
(2) The entry authorizations issued under this authority are limited to KMR and do not apply to entry to any other areas of the Marshall Islands.
(3) In addition to the controls covered by this regulation movement within the Kwajalein Missile Range, the territorial sea thereof and airspace
(4) This regulation is not applicable to entry authorized by the President of the United States pursuant to the United Nations (U.N.) Charter and to Article 13 of the Trusteeship Agreement for the Former Japanese Mandated Islands.
(c)
(2)
(3)
Address: National Range Commander, Kwajalein Missile Range, Ballistic Missile Defense Systems Command, ATTN: BDMSC-R, P.O. Box 1500, Huntsville, Alabama 35807.
Electrical Address: CDRBMDSCOM HUNTSVILLE AL//BMDSC-R//.
(4)
Address: Commander, Kwajalein Missile Range, P.O. Box 26, APO San Francisco 96555.
Electrical Address: CDRKMR MI //BMDSC-RK//
(5)
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(i) Spouse of principal.
(ii) Unmarried child of principal less than 21 years of age.
(iii) Sponsored individual meeting the dependency criteria of section 152, Internal Revenue Code (26 U.S.C. 152), and approved by the Commander, Kwajalein Missile Range.
(a)
(2) The control of entry into or movement within KMR by persons, ships, or aircraft will be exercised so as to protect fully the physical security of, and insure the full effectiveness of, bases, stations, facilities, other installations, and individuals within KMR. However, unnecessary interference with the free movement of persons, ships, and aircraft is to be avoided.
(3) This regulation will be administered to provide the prompt processing of all applications and to insure uniformity of interpretation and application insofar as changing conditions permit.
(4) In cases of doubt, the determination will be made in favor of the course of action which will best serve the interests of the United States and national defense as distinguished from the private interests of an individual or group.
(b)
(2) The authority of the Department of the Army to control entry of persons, ships, and aircraft into Kwajalein Missile Range is exercised through the Commander, Ballistic Missile Defense Systems Command, who is the National Range Commander.
(3) Penalties are provided by law for:
(i) Violation of regulations imposed for the protection or security of military or naval aircraft, airports, air facilities, vessels, harbors, ports, piers, waterfront facilities, bases, forts, posts, laboratories, stations, vehicles, equipment, explosives, or other property or places subject to the jurisdiction of, administration of, or in the custody of the Department of Defense (sec. 21 of the Internal Security Act of 1950 (50 U.S.C. 797) and Department of Defense Directive 5200.8 of 29 July 1980.
(ii) Knowingly and willfully making a false or misleading statement or representation in any matter within the jurisdiction of any department or agency of the United States (18 U.S.C. 1001).
(a)
(2) Request for entry authorizations will be evaluated and adjudged as to whether the entry at the time and for the purpose stated will or will not be inimical to the purposes of U.S. national defense.
(b)
(2) Alien and immigrant spouses and dependents of U.S. citizen sponsors or principals assigned to Kwajalein Missile Range may be granted entry authorization by the National Range Commander so long as U.S. sponsor or principal remains on duty or resides within Kwajalein Missile Range.
(c)
(d)
(e)
Address: Chief of Immigration, Office of the Attorney General, Republic of the Marshall Islands, Majuro, MI 96960.
(f)
(g)
(h)
(i)
(a)
(i) Personnel being assigned to Kwajalein Missile Range as permanent-party and traveling on official orders.
(ii) Personnel being temporarily assigned to Kwajalein Missile Range and who are traveling on official orders.
(iii) Dependents of permanent-party personnel who are
(iv) Crew members on ships and aircraft authorized to enter Kwajalein Missile Range.
(2) Persons in the following categories will submit request for entry authorization to the Commander, Kwajalein Missile Range, ATTN: BMDSC-RKE-S:
(i) Dependents of KMR-based permanent-party personnel for the purpose of
(ii) Citizens, nationals and permanent resident aliens of the Republic of the Marshall Islands except those who deplaned for the purpose of transiting Kwajalein Defense Site.
(iii) Citizens of the Trust Territory of the Pacific Islands.
(iv) U.S. citizen employees and officials of the Trust Territory of the Pacific Islands.
(3) All other personnel, except news media representatives, will submit request for entry authorization to the National Range Commander, BMDSCOM, ATTN: BMDSC-R (electrical address: CDRBMDSCOM HUNTSVILLE AL //BMDSC-RA//).
(4) All requests and notifications will include the following data (as applicable):
(i) Full name(s).
(ii) Citizenship.
(iii) Organization.
(iv) Purpose of entry.
(v) Point of contact at Kwajalein Missile Range.
(vi) Inclusive dates of stay.
(vii) Return address.
(viii) Proof of security clearance (if access to classified information is required).
(5) News media representatives require authority from the National Range Commander to visit Kwajalein Missile Range (news media representatives wishing to transit Kwajalein Island to visit any island not within the Kwajalein Missile Range must obtain entry authorization from the Republic of the Marshall Islands and present same to the air carrier at the point of departure to Kwajalein Island). Requests should be addressed to the National Range Commander, BMDSCOM, ATTN: BMDSC-S (electrical address: CDRBMDSCOM HUNTSVILLE AL//BMDSC-S//) and contain the following information:
(i) Name.
(ii) Date and place of birth.
(iii) Citizenship.
(iv) Organization(s) represented.
(v) Objective(s) of visit.
(vi) Desired and alternative arrival and departure dates.
(vii) Address(es) and telephone number(s) for additional information and/or reply.
(b)
(i) U.S. private ships which are:
(A) Under charter to the Military Sealift Command, or
(B) Employed exclusively in support of and in connection with a Department of Defense construction, maintenance, or repair contract.
(ii) Trust Territory of the Pacific Islands/RMI ships which have been approved by the resident representative on Kwajalein.
(iii) Any ship in distress.
(iv) U.S. public ships which are providing a service to the Kwajalein Atoll in accordance with their agency responsibilities.
(2) All other ships or marine vessels must obtain an entry authorization from the National Range Commander before entering the Kwajalein Atoll territorial sea. The entry authorization application should reach the National Range Commander at least 14 days prior to the desired entry date and should include the following information:
(i) Name of ship.
(ii) Place of registry and registry number.
(iii) Name, nationality, and address of operator.
(iv) Name, nationality, and address of owner.
(v) Gross tonnage of ship.
(vi) Nationality and numbers of officers and crew (include crew list when practicable).
(vii) Number of passengers (include list when practicable).
(viii) Last port of call prior to entry into area for which clearance is requested.
(ix) Purpose of visit.
(x) Proposed date of entry and estimated duration of stay.
(xi) Whether ship is equipped with firearms or photographic equipment.
(xii) Whether crew or passengers have in their possession firearms or cameras.
(3) Entry authorizations may be granted for either single or multiple entries.
(4) Captains of ships and/or marine vessels planning to enter Kwajalein Missile Range shall not knowingly permit excluded persons to board their vessels.
(5) U.S. public ships which are authorized to enter defense areas by the controlling Defense Department agency may enter the Kwajalein Atoll territorial sea without the specific approval of either the National Range Commander or the Commander, KMR, provided that the Commander, KMR, is notified as far in advance of the impending entry as is consistent with the security requirements pertaining to such movement.
(c)
(i) U.S. private aircraft which are under charter to the Military Airlift Command.
(ii) Public aircraft of the Trust Territory of the Pacific Islands/RMI which have been approved by the resident representative on Kwajalein.
(iii) Private aircraft registered with and approved by the Commander, KMR, which are based on Kwajalein Island.
(iv) Any aircraft in distress.
(v) Private aircraft operated by a common carrier which is providing scheduled air service to or through the Kwajalein Atoll under a current license issued by the Department of the Army.
(vi) U.S. public aircraft which are providing a service to the Kwajalein Atoll in accordance with their agency responsibilities.
(2) All aircraft, except those categorized in paragraph 4-3.a., must obtain an entry authorization from the National Range Commander before entering Kwajalein Atoll airspace. The entry authorization application should reach the National Range Commander at least 14 days prior to the desired entry date and should include the following information:
(i) Type and serial number of aircraft.
(ii) Nationality and name of registered owner.
(iii) Name and rank of senior pilot.
(iv) Nationality and number of crew (include crew list when practicable).
(v) Number of passengers (include list when practicable).
(vi) Purpose of flight.
(vii) Plan of flight route, including the point of origin of flight and its designation and estimated date and times of arrival and departure of airspace covered by this procedure.
(viii) Radio call signs of aircraft and radio frequencies available.
(ix) Whether aircraft is equipped with firearms or photographic equipment.
(x) Whether crew or passengers have in their possession firearms or cameras.
(3) Entry authorizations may be granted for either single or multiple entries.
(4) Captains of aircraft planning to enter Kwajalein Missile Range airspace shall not knowingly permit excluded persons to board their aircraft.
(5) U.S. public aircraft which are authorized to enter defense areas by the controlling Defense Department agency may enter the Kwajalein Atoll airspace with the specific approval of either the National Range Commander or the Commander, KMR, provided that the Commander, KMR, is notified as far in advance of the impending entry as is consistent with the security requirement pertaining to such movements.
(a)
(i) Determine that the entry of the applicant is, or is not, in accordance with the criteria set forth in chapter 3. After having made a determination, the reviewing authority shall either:
(A) Issue an entry authorization as requested, or with modifications as circumstances require; or
(B) Deny the request and advise the applicant of his/her right to appeal in accordance with the provisions of paragraph 5-2.
(ii) If the reviewing authority feels that additional information is required before reaching a decision, the reviewing authority will request that information from the applicant and then proceed as in paragraph 5-1.a.(1).
(iii) If, after having obtained all pertinent information, the reviewing authority cannot reach a decision, he/she will forward the application to the next higher headquarters. A statement containing the following information shall accompany the application:
(A) A summary of the investigation conducted by the reviewing organization.
(B) The reason the application is being forwarded.
(C) Appropriate comments and/or recommendations.
(2) All applicants will be kept fully informed of actions/decisions pertaining to his/her application. Normally a response will be forwarded to the applicant within ten working days after receipt of an application. When the National Range Commander responds to an application, he/she will send a copy of that response to the Commander, KMR. When the Commander, Kwajalein Missile Range, responds to an application, and the National Range Commander has an interest in the visit, the Commander, KMR, will concurrently send a copy of that response to the National Range Commander.
(3) Entry authorizations shall state the purpose for which the entry is authorized and such other information and conditions as are pertinent to the particular authorization.
(b)
(2) When Commander, Kwajalein Missile Range revokes an entry authorization, he shall forward a copy of such revocation with supporting documentation to the National Range Commander.
(c)
(2) Final appeal letters will be forwarded promptly by the National Range Commander to the BMD Program Manager with an indorsement setting forth in detail the facts and circumstances surrounding the action taken.
(d)
5 U.S.C. 5511-5512; 37 U.S.C. 1007; 18 U.S.C. 1382; Articles 123a, 133, and 134, Uniform Code of Military Justice (UCMJ, Art 123a, 133, and 134).
(a) This regulation prescribes policies and procedures to—
(1) Control and prevent abuse of check-cashing privileges.
(2) Reduce losses to appropriated fund (AF) and nonappropriated fund (NAF) activities.
(b) Policies and procedures for cashing checks or redeeming dishonored checks at check-cashing facilities are not within the scope of this regulation. These are prescribed by the proponent agencies of the activities providing check-cashing services to patrons for their facilities in—
(1) AR 60-20/AFR 147-14 and Exchange Service Manual 55-21 for Army and Air Force Exchange Service (AAFES) facilities.
(2) AR 30-19 and the Commissary Operating Manual for commissary resale activities.
(3) AR 215-1 and AR 215-2 for U.S. Army Community and Family Support activities.
(4) AR 37-103 for finance and accounting offices.
(c) Policies and procedures for all suspensions of check-cashing privileges and appeal actions on such suspensions, regardless of where the dishonored check was returned on the installation, are governed by this regulation.
Required and related publications are listed in appendix A to this part.
Abbreviations and special terms used in this regulation are explained in the glossary.
Prevention of abuse of check-cashing privileges includes all measures taken to reduce acts of abuse or misuse to the lowest possible level. Factors leading to this abuse stem mainly from lack of education and experience in managing personal finances. The DA objective is to ensure all soldiers acquire and maintain knowledge, skills, and motivation needed to practice responsible personal financial management.
The Director, Finance & Accounting, Assistant Secretary of the Army (Financial Management) (OASA (FM)) establishes and administers the Department of the Army (DA) program to control and prevent abuse of check-cashing privileges on Army installations by Department of Defense (DOD) personnel. The Director, Finance & Accounting (OASA(FM)) will—
(a) Give technical assistance to major Army commands (MACOMs) and installations with regard to their dishonored check programs.
(b) Coordinate with Deputy Chief of Staff, Personnel (DCSPER)/USACFSC on aspects of the check-cashing abuse prevention program pertaining to morale and welfare.
(c) Maintain liaison with the Deputy Chief of Staff for Operations and Plans and the Commanding General, U.S. Army Training and Doctrine Command (TRADOC) on Personal Financial Readiness/Soldier Money Management (PFR/SMM) in DA service schools and training centers.
The Deputy Chief of Staff for Personnel/U.S. Army Community and Family Support Center (DCSPER/USACFSC) will—
(a) Advise the Director, Finance & Accounting (OASA (FM)) on personnel aspects of the program affecting the morale and welfare of DA members.
(b) Establish, maintain, and administer PFR/SMM and counseling services for DA personnel and their family members within the Army Community Service (ACS) Center program.
(c) Coordinate with the Director, Finance & Accounting (OASA(FM)) on the PFR/SMM aspect of the ACS consumer education training and budget counseling.
(d) Include PFR/SMM in the curriculum of the Army Continuing Education System and other DA schools administered by DSCPER that serve
Heads of Headquarters, Department of the Army (HQDA) and field operating agencies will—
(a) Prescribe procedures and conditions for providing check-cashing service to patrons of their facilities.
(b) Coordinate with the Director, Finance & Accounting (OASA(FM)) on policies and procedures to control and prevent dishonored checks. (See AR 310-3, para 1-9.)
MACOM commanders will—
(a) Support and monitor the Dishonored Check Control Program—
(1) At intermediate or subordinate commands.
(2) At installations reporting directly to their headquarters.
(b) Give policy and procedural guidance to subordinate elements within their jurisdictions.
(c) Monitor effectiveness of the command Dishonored Check Control Program.
(d) Evaluate the Dishonored Check Control Program monthly.
(e) Ensure all subordinate elements within their jurisdiction conduct ongoing PFR/SMM training and educational programs. (See Training Circular 21-7)
(f) Establish a monitoring and evaluation system to ensure—
(1) Training programs are managed effectively.
(2) Training programs agree with DA goals, objectives, and guidelines.
The Commanding General, U.S. Army Training Doctrine Command (TRADOC) will—
(a) Develop and maintain the course of instruction for the PFR/SMM training of all soldiers.
(b) Ensure time is allotted in basic training, advanced individual training, or one station unit training for—
(1) Training of enlistees.
(2) Repeat of the course for trainees not achieving the lesson standard.
(c) Ensure programs of instruction (POI) of the Army Finance School include courses that equip finance officers and noncommissioned officers to assist in providing PFR/SMM to soldiers and units in the field. (See Training Circular 21-7).
Installation commanders (or equivalent) or designated representatives will—
(a) Maintain, support, and monitor installation programs to control and prevent abuse of check-cashing privileges.
(b) Set up check control offices under the direct control of active duty commissioned or warrant officers, senior noncommissioned officers, or DA civilians GS-7 and above. Prior to the appointment of an installation check control officer (ICCO), the commander should review the provisions of §§ 527.13 and 527.31, and consider which major organizational element has staff supervision over—
(1) The majority of check-cashing facilities.
(2) The extension or withdrawal of installation privileges.
(3) The overstamping of identification (ID) cards.
(c) Ensure that if responsibility of ICCO is transferred from one organizational element to another, that resources are transferred also.
(d) Approve/disapprove appeals of suspended check-cashing privileges when checkwriter has committed four or more offenses.
(e) Appoint an individual or individuals serving at an installation staff directorate level to act on appeals of suspended check-cashing privileges when the checkwriter has committed 3 offenses.
(f) Appoint an individual or individuals serving at an installation staff division level to act on appeals of suspended check-cashing privileges when the checkwriter has committed 2 offenses.
(g) Ensure the priority of educational efforts is based on the needs of personnel under their command.
(h) Ensure the POI for suspended personnel will stress—
(1) Career consequences of abuse of check-cashing privileges.
(2) Referral to individual and family counseling sources, when required.
(i) During inprocessing at permanent change of station for the following:
(1) Soldiers (E1 through E5). Emphasis will be on—
(i) Basics of checkbook management.
(ii) Check to financial organization pay option.
(iii) Consequences of abuse of check-cashing privileges.
(iv) Counseling services.
(2) Leaders (E6 through E9 and officers). Education will stress—
(i) The command unique elements of the dishonored check problem.
(ii) Leaders’ responsibilities for role setting, training troops, and applying discipline.
(3) DA civilians and Family members. Education and counseling will be offered on a voluntary basis in accordance with AR 608-1.
Unit commanders will assist the post/installation commander in the control and prevention of check-cashing privilege abuse. Unit commanders will—
(a) Advise all newly arrived personnel during the initial interview of their responsibilities for the proper use of personal checking accounts and check-cashing privileges and ensuring that their family members are aware of the same. Also determine the capabilities of the soldier for maintaining their checking account.
(b) Deliver notices of dishonored check offenses and suspensions to unit members and counsel them within 2 days of written notification.
(c) Take actions to properly settle the personal debts of soldiers if soldiers under their command issue dishonored checks. Articles 15, 121, 123a, and 133 or 134 of the UCMJ may be applied as stated in AR 600-20, para 5-10.
(d) Approve/disapprove appeals of suspended check-cashing privileges if a soldier or family member has committed a first offense.
(e) Recommend approval or disapproval of appeal actions to the individual appointed by the installation commander for 2 or more offenses.
(f) Determine whether the overstamping of an ID card is necessary if this is the checkwriter's first or second offense. As a disciplinary and control action this is advised.
(g) Schedule soldiers for remedial training and encourage family members who have written dishonored checks to attend this training.
Where DOD civilians are authorized check-cashing privileges the supervisors of these civilians will—
(a) Deliver notices of dishonored check offenses and suspensions to employees and counsel them.
(b) Approve/disapprove appeals of suspended check-cashing privileges if the employee has committed a first offense.
(c) Recommend approval or disapproval of appeal actions to the individual appointed by the installation commander for 2 or more offenses.
(d) Schedule employees for remedial training when the checkwriter has committed an offense.
The ICCO is the primary contact for dishonored check matters The ICCO will—
(a) Serve as liaison between commander and check-cashing facilities.
(b) Be authorized to suspend check-cashing privileges.
(c) Maintain and circulate a dishonored check list. (See § 527.32(c))
(d) Maintain a central file of dishonored checkwriters (See § 527.32(a))
(e) Establish a grace period of 10 calendar days. The grace period will be 10 calendar days from the date of the written dishonored check notification. The ICCO may allow additional time on a case by case basis (i.e. checkwriter is TDY or no leave away from the installation.). There will be a standard grace period for all check-cashing facilities.
(f) Establish an installation test on checkbook maintenance. Those attending remedial training will have to pass this test prior to being removed from the dishonored check list. The test
(1) Posting samples of: checks written, deposits (direct deposits, interest, cash, and checks), check charges, printing fees, and bank card transactions.
(2) Maintaining the check register balance.
(3) Reconciling check register to bank statement.
(4) Scoring 70 or greater to pass.
(g) Evaluate the effectiveness of the installation Dishonored Check Control Program using the Monthly Dishonored Check Report (RCS: CSCOA-105). Distribute the report in accordance with § 527.40.
(h) Set up points of contact with all installation facilities providing financial management and consumer awareness training and counseling. Make unit commanders aware of these resources.
(i) Notify installation commander and military police or Army criminal investigation office of any pattern of check-cashing abuse suggesting fraud, forgery, or improper use of ID cards.
(j) Set up liaison with installation ID card issuing facility.
(k) Reinstate check-cashing privileges when an appeal has been approved in accordance with §§ 527.25 through 527.28 or when the suspension period is over. The checkwriter must have redeemed the dishonored check, paid the administrative/service charges, attended remedial training, and passed the installation test on checkbook maintenance.
(l) Maintain and conduct an effective installation PFR/SMM program, as required by subpart E. (See Training Circular 21-7).
(m) Maintain a counseling or counseling referral service to help personnel solve personal financial problems, develop budgets, formulate debt liquidation plans, get consumer protection, and buy on credit wisely. All installation resources will be used to develop this service; for example, ACS centers and on post financial institutions. Counseling services will be open to personnel and their families on a voluntary basis.
(n) Ensure DA issued articles are published in post media in coordination with the public affairs office. Publicize benefits of the counseling service, with emphasis on the preventive nature of the program.
The finance officer will assist the ICCO in the control and prevention of check-cashing privilege abuse. The finance officer will—
(a) Assist the unit commander in conducting training for personnel in checkbook maintenance by providing instructional material.
(b) Provide installation commander with management information concerning the level of dishonored checks using the Monthly Dishonored Check Report (Fig 4-1).
(c) Cash a soldier's personal check when the soldier is on the dishonored check list, is on SURE-PAY, has a non-local checking account, and the soldier has a written request from his/her commander to the finance officer requesting this service. If the check is returned due to insufficient funds, collection action will occur IAW DODPM and AR 37-103 for the amount of the check, plus any administrative or service charge.
(d) Establish procedures in Central Accounting Office for accounting for nonappropriated fund dishonored checks.
(e) Process DD Form 139 (Pay Adjustment Authorization) received from the check-cashing facility and return completed copy to the ICCO.
(f) Distribute amounts collected from soldier's or civilian's pay to the appropriate check-cashing facility.
(g) Analyze the RCS CSCOA-105 received from the ICCO.
(h) Inform the installation commander of dishonored check analysis.
The Personnel Administration Center (PAC) will assist unit commanders by completing some of the paperwork and other administrative details. Where PACs do not exist the unit commander will be responsible for completing these actions as well as those listed in § 527.11. The PAC will—
(a) Schedule soldiers and family members for remedial training when
(b) Notify the ICCO when timely notification of dishonored check or suspension cannot be made because the soldier is absent from duty due to TDY, hospitalization, etc.
(c) Verify ID card overstamping has occurred and notify ICCO in writing.
The Director of Personnel & Community Activities (DPCA) will—
(a) Overstamp ID cards when requested by the ICCO.
(b) Ensure the quality of PFR/SMM training taught at the installation.
In addition to the requirements of their proponent agencies, heads of check-cashing facilities will—
(a) Coordinate with the ICCO on administrative matters relating to the Dishonored Check Control Program.
(b) Ensure all personnel under their supervision know the installation policies and procedures for cashing checks and review the ICCO dishonored checklist prior to approving checks for encashment.
(c) Prominently display the sign cited below at each check-cashing point:
ALL INFORMATION FURNISHED, INCLUDING SSN, WILL BE USED TO IDENTIFY WRITERS OF CHECKS RETURNED UNPAID.
(d) Require a consent statement authorizing immediate collection from pay for a dishonored check be placed on each check and signed by the individual. The consent statement to use is: “If this check is returned as dishonored, I consent to immediate collection from my pay for the amount of the dishonored check plus any related service or administrative charges.” A prominently displayed consent sign at check cashing points may be used in lieu of the statement placed on each check.
(e) Obtain a stamp for recording additional information on the back of all personal checks if the information is not on the face of the check. This information is: name, rank, SSN, duty station, home address, home/duty phone number, and branch of service.
(f) Notify checkwriters in writing through their unit commander or first line supervisor for civilian employees of a dishonored check that has been returned by the financial institution.
All persons with check-cashing privileges will—
(a) Fill out check properly and legibly. Include all information to be recorded on the back. Checks should be completed in black or blue/black ink, not water soluble. A pencil or any other type of writing instrument that can be erased, changed, or modified should not be used.
(b) Maintain sufficient funds in their checking account to cover the full amount of the checks.
(c) Notify the ICCO, unit commander, military police, and bank upon discovery of any lost/stolen personal checks.
(d) Provide check-cashing facilities with required information when attempting to cash a check.
(e) Have their ID card overstamped when directed to do so.
(f) Take full responsibility for any check cashed on their checking account including those cashed by family members.
(g) Redeem all checks written against their checking account which have been returned for insufficient funds.
(h) Attend remedial training when directed to do so by the ICCO.
(i) Distribute copies of disclaimer notices to check-cashing facilities.
(a) Policies in this regulation are based on statutory authority including, but not limited to, the following:
(1) Sections 5511-5512, title 5, United States Code.
(2) Section 1007, title 37, United States Code.
(3) Section 1382, title 18, United States Code.
(4) Articles 123a, 133, 134, Uniform Code of Military Justice (UCMJ, Art. 123a, 133, and 134).
(b) Debts to instrumentalities and agencies of the United States can be collected from military personnel by involuntary deductions from their pay when such action is authorized by law. (See Department of Defense Military Pay and Allowances Entitlements Manual (DODPM), part seven, chapter 7, and Department of Defense Retired Pay Manual (DODRPM).)
(a) DA policy is to give maximum service to persons entitled to use Army facilities. Installation activities extend check-cashing privileges for the convenience of their customers.
(b) The personal check is more than a simple promise to pay. By signing a check, the person makes a binding agreement to the receiver (in exchange for goods, services, or cash) that enough money to cover the check is in the person's account.
(c) The number of dishonored checks and the subsequent loss of funds to Army facilities call for firm measures to control and prevent dishonored checkwriting. Timely administrative action will be taken in all cases involving abuse or misuse of check-cashing privileges. Moral persuasion and command supervision will be used as primary measures to ensure dishonored checks are promptly redeemed and dishonored checkwriting ceases. Commanders will not tolerate or make excuses for dishonored checks issued by soldiers and their family members. Soldiers, their eligible family members, and other authorized patrons of Army facilities are expected to pay their just financial debts. Commanders will take immediate action to ensure prompt redemption of dishonored checks. They will counsel and take disciplinary action where appropriate to prevent abuse or fraud by soliders under their command.
(d) Patrons who have abused check-cashing privileges will be given a chance to present evidence in their behalf. (See §§ 527.24 and 527.35.)
(e) Patrons may have their check-cashing privileges suspended indefinitely if they show a chronic attitude of personal and financial irresponsibility.
(f) If a person is found using an unstamped ID card during their suspension period and when they are required to have their card overstamped, the person's check-cashing privileges may be suspended indefinitely.
(g) Suspension procedures in this chapter do not preclude action under the UCMJ.
(h) All persons who abuse check-cashing privileges are subject to pertinent civil laws. Reported check-cashing abuses may be referred to civil law enforcement authorities or, if applicable under local U.S. procedures, to a U.S. magistrate. (See AR 190-29.)
When a two party check is returned “unpaid”, the endorser may be subject to the dishonored check provision of this regulation only if the endorser fails to redeem the check within the grace period. If the original maker of the check is proven to have written a previous dishonored check, then an additional offense will be charged to the original maker and appropriate suspension imposed. If the endorser is currently under suspension, an additional offense will be charged and the suspension period will be increased. The endorser will be required to execute a consent statement to authorize collection from his/her pay if the two party check is returned for insufficient funds. The consent statement to be executed by the endorser is stated in § 527.17(d).
(a) Sponsors may be held liable for acts of family members when a family member uses their dependent ID card and their sponsor's SSN for check cashing. If a family member commits an offense under these conditions, the sponsor may then be placed on the dishonored checklist. The family member may be placed on the dishonored checklist in their own right if they
(b) Sponsors who wish to disclaim responsibility for dishonored checks written by family members may do so by filing a letter of disclaimer with the ICCO. (See fig. 2-1 for a sample letter.) This letter announces a sponsor's voluntary withdrawal of responsibility for acts of family members. It will be updated annually. Absence of a disclaimer does not prove agency relationship between sponsor and family members.
(c) Some facilities may deny check-cashing privileges to family members of sponsors who have filed a letter of disclaimer. The sponsor will inform family members of this denial.
(a)
(b)
If an individual can prove bank or other excusable error, dishonored checks resulting from these errors will not be considered offenses. The checkwriter's name will not be added to any list or central file.
(a) An individual who writes a check which later becomes dishonored and does not redeem it within the grace period has committed a first offense.
(b) An individual who writes 3 dishonored checks which are unrelated to each other and redeems them all within the grace period has committed a first offense.
(c) The penalty for a first offense is required attendance at remedial training and suspension of check-cashing privileges for 6 months from date of suspension letter. The ID card may be overstamped.
(d) The individual may be removed from the dishonored checklist prior to the end of the suspension period if the check has been redeemed, all charges have been paid, remedial training has been completed, the individual has passed the installation checkbook maintenance test, and the unit commander (for soldiers and family members) or first line supervisor (for civilians) approves.
(a) An individual who writes a second dishonored check, unrelated to the first dishonored check, and does not redeem it within the grace period has committed a second offense.
(b) An individual who writes 4 dishonored checks which are unrelated to each other and redeems them all within the grace period has committed a second offense.
(c) The penalty for a second offense is required attendance at remedial training and suspension of check-cashing privileges for 12 months from date of suspension letter if checkwriter is not currently on the dishonored checklist. If the checkwriter is currently on the dishonored checklist, the suspension period will be increased by 12 months. The ID card may be overstamped.
(d) The individual may be removed from the dishonored checklist prior to the end of the suspension period if the check has been redeemed, all charges have been paid, remedial training has been completed, the individual passed the installation checkbook maintenance test, and the individual appointed by the installation commander (§ 527.10(f)) so approves.
(a) An individual who writes a third dishonored check, unrelated to the previous dishonored checks, and does not
(b) An individual who writes 5 dishonored checks which are unrelated to each other and redeems them all within the grace period has committed a third offense.
(c) The penalty for a third offense is required attendance at remedial training overstamping of the ID card, and suspension of check-cashing privileges for 18 months from date of suspension letter if the checkwriter is not currently on the dishonored checklist. If the checkwriter is currently on the dishonored checklist, the suspension period will be increased by 18 months.
(d) The individual may be removed from the dishonored checklist prior to the end of the suspension period if the check has been redeemed, all charges have been paid, remedial training has been completed, the individual passed the installation checkbook maintenance test, and the individual appointed by the installation commander (§ 527.10(c)) so approves.
(a) An individual who writes a fourth dishonored check, unrelated to the previous checks, and does not redeem it within the grace period has committed a fourth offense.
(b) An individual who writes 6 dishonored checks which are unrelated to each other and redeems them all within the grace period has committed a fourth offense.
(c) The penalty for a fourth offense is required attendance at remedial training, overstamping of the ID card, and suspension of check-cashing privileges indefinitely from the date of suspension letter.
(d) The individual may be removed from the dishonored checklist if the check has been redeemed, all charges have been paid, remedial training has been completed, the individual passed the installation checkbook maintenance test, and the installation commander (§ 527.10(d)) so approves.
In addition to the requirements of its proponent agency, the head of the facility to which a check is returned unpaid will do the following:
(a) Notify the checkwriter through the checkwriter's unit commander (for soldier or family member) or checkwriter's supervisor (for civilian) of the dishonored check. See figure 3-1 for a sample notification letter. A copy of the notification will be furnished to the ICCO. Sufficient copies will be sent to the commander or supervisor so a copy can be returned to the ICCO acknowledging receipt and indicating action to be taken. Notices will include, but are not limited to, the following:
(1) Name of checkwriter (or endorser, if a two party check).
(2) Date and amount of check.
(3) SSN of checkwriter.
(4) Status (active duty, retired, Reserve, National Guard, family member, civilian employee, etc.) and service (Army, Navy, Air Force, Marine Corps, or Coast Guard).
(5) Name, grade, SSN, and duty station of sponsor, if applicable.
(6) Home address and telephone number.
(7) Clear instructions covering—.
(i) Method of redemption.
(ii) Time allowed in which redemption must be made.
(iii) Administrative/service charges.
(iv) Appeal rights.
(b) Notify the ICCO as soon as—
(1) The check is redeemed. Provide date of redemption.
(2) Written evidence is furnished proving a bank or other error clearing the checkwriter of fault.
(3) The checkwriter fails to redeem the check within the grace period.
(4) The check is written off.
(c) Begin action for collection from pay when authorized, if all efforts at direct collection fail. (See AR 37-108, AR 37-104-3, and AR 37-104-10.)
On receipt of notice that a soldier or a soldier's family member of a commander's unit has written a dishonored check or has been placed on the dishonored checklist, the unit commander will (Some of these actions may be done by the PAC where PACs exist.)—
(a) Deliver the notice and counsel the checkwriter to comply with the requirements of the notice. See figure 3-2 for a sample counseling statement.
(b) Return copy of notification letter to the ICCO within 10 calendar days stating whether the dishonored check was redeemed within the grace period.
(c) Assist the checkwriter in determining the cause of the dishonored check. Make proper referral if budget counseling or financial assistance is needed.
(d) Assist the checkwriter in obtaining proof of bank or other excusable error clearing the checkwriter of fault.
(e) Schedule remedial checkbook maintenance training and ensure the checkwriter attends the training.
(f) Determine if checkwriter should have ID card overstamped if this is the first or second offense. If the decision is to overstamp the ID card, the unit commander will—
(1) Ensure the checkwriter receives notification and is counseled to comply with the instructions.
(2) Refer checkwriter to ID card issuing facility for reissuing of new ID card with overstamp.
(3) Ensure that the checkwriter received an overstamped ID card.
(4) Notify ICCO within 15 days from date of notification letter which notified the checkwriter of placement on dishonored checklist that ID card was overstamped.
(g) Work with the finance officer to cash checks for a soldier who is on the dishonored check list, is on SURE-PAY, and has a non-local bank account.
(h) Ensure checkwriter redeems the check and pays any administrative/service charge.
(i) Take administrative or disciplinary action, when proper. (See AR 600-31 and AR 600-37.)
(j) Approve/disapprove appeal actions on first offense if remedial training has been completed, the checkwriter passed the installation checkbook maintenance test, the check has been redeemed, and the administrative/service charges have been paid. If approval is given, send a letter to the ICCO stating that approval is granted to remove the soldier or family member from the dishonored checklist. Letter must indicate action taken on counseling and training, that the checkwriter passed the installation test on checkbook maintenance, that checks have been redeemed, and administrative/service charges have been paid.
(k) Forward appeal actions on second and greater offenses to the individual designated by the installation commander to handle such appeal actions if the conditions in paragraph (j) of this section.
(l) Maintain soldier on SURE-PAY if at all possible.
On receipt of notice that a civilian employee under his/her supervision has written a dishonored check or has been placed on the dishonored checklist, the first line supervisor will—
(a) Deliver the notice and counsel the checkwriter to comply with the requirements of the notice.
(b) Return a copy of the notification to ICCO within 10 calendar days of date of notice indicating receipt and proposed action to be taken.
(c) Schedule remedial checkbook maintenance training and ensure the checkwriter attends the training.
(d) Ensure checkwriter redeems check(s) and pays any administrative service charges.
(e) Approve/disapprove appeal actions on first offense if training has been completed, the checkwriter passed the installation checkbook maintenance test, the check has been redeemed, and the administrative/service charges have been paid. If approval is given, send a letter to ICCO stating that approval is granted to remove the checkwriter from the dishonored checklist. Letter must indicate action taken on counseling and training, that the checkwriter passed the installation checkbook maintenance test, that the check has been redeemed, and that administrative/service charges have been paid.
(f) Forward appeal actions of second or greater offenses to individual designated by the installation commander if the conditions in paragraph (e) above have been met.
(a) On receipt of notice from the check-cashing facility that a check was returned as dishonored, the ICCO will update the central file on dishonored checkwriters. (See § 527.13(d)). This file will contain, as a minimum, the following information:
(1) Name and SSN.
(2) Status (active duty, retired, Reserve, National Guard, family member, civilian employee, etc.) and Service (Army, Navy, Air Force, Marine Corps, or Coast Guard).
(3) Name, grade, and SSN of sponsor, if applicable.
(4) Organization address and telephone number.
(5) Home address and telephone number.
(6) Amount of dishonored check.
(7) Date check was returned as dishonored.
(8) Date check was redeemed.
(9) Effective date of suspension of check-cashing privileges.
(10) Date check-cashing privileges are restored.
(b) The central file on dishonored checkwriters will be maintained on all personnel, including those who redeem the dishonored check within the grace period. The file will be used for reference to identify repeat offenders.
(c) The dishonored checklist will be updated at least monthly to accurately show the current status of suspensions. The list will include suspension expiration dates and will be circulated at least monthly to installation check-cashing and ID card issuing facilities. On post banks and credit unions may also receive a copy of the dishonored checklist. The list may not be circulated to any other institution on or off the installation.
(d) The ICCO may be provided terminal access to an electronic check verification system. The ICCO may use this system to verify check-cashing privileges of individual checkwriters at the request of installation check-cashing facilities.
(e) If the checkwriter commits a first offense (see § 527.25), the ICCO will—
(1) Add the checkwriter's name to the dishonored check list.
(2) Suspend check-cashing privileges for 6 months.
(3) Inform the commander (supervisor if checkwriter is a civilian) and checkwriter by letter that check-cashing privileges are suspended for 6 months from the date of letter and that the checkwriter must attend remedial training. (See figure 3-3.) The check writing privileges will be restored when the suspension period is over or earlier if the checkwriter has met the conditions in § 527.25(d) and the unit commander for soldiers and their family members or the first line supervisor for civilians decides to restore check-cashing privileges sooner.
(f) If the checkwriter commits a second offense (See § 527.26), the ICCO will—
(1) Add the checkwriter's name to the dishonored checklist if currently not on the list.
(2) Suspend check-cashing privileges for 12 months or increase suspension by 12 months if checkwriter is currently under suspension.
(3) Inform the unit commander (supervisor if checkwriter is a civilian) and checkwriter by letter that check-cashing privileges are suspended for 12 months from date of letter or increased by 12 months and that the checkwriter must attend remedial training. (See figure 3-4.) The check cashing privileges may be restored when the suspension period is over or earlier if the checkwriter has met the conditions in § 527.26(d) and the individual appointed by the installation commander to act on appeals of second offenses approves.
(g) If the checkwriter commits a third offense (see § 527.27), the ICCO will—
(1) Add the checkwriter's name to the dishonored checklist if currently not on the list.
(2) Suspend check-cashing privileges for 18 months or increase suspension by 18 months if checkwriter is currently under suspension.
(3) Inform the commander (supervisor if checkwriter is a civilian) and checkwriter by letter that check-cashing privileges are suspended for 18 months from date of letter or increased by 18 months, that the checkwriter must attend remedial training, and that the ID card must be overstamped. (See figure
(h) If the checkwriter commits a fourth offense (see § 527.28), the ICCO will—
(1) Add checkwriter's name to the dishonored checklist if currently not on the list.
(2) Suspend check-cashing privileges indefinitely.
(3) Inform the commander (supervisor if checkwriter is a civilian) and checkwriter by letter that check-cashing privileges have been suspended indefinitely, that the checkwriter must attend remedial training, and that the ID card must be overstamped. (See figure 3-6.) The installation commander may reinstate check-cashing privileges if the checkwriter has met the conditions in § 527.28(d).
(i) If the checkwriter continues to write dishonored checks after the fourth offense, the ICCO will follow guidance in paragraph (h) of this section.
(j) The ICCO will remove an individual from the dishonored checklist at the end of the suspension period or at the request of the individual having appeal approval authority. The checkwriter must have redeemed the dishonored checks, paid the administrative/service charges, attended remedial training, and passed the installation checkbook maintenance test.
(k) If proof of bank error or other excusable error is given, the ICCO will—
(1) Clear checkwriter's name from central file of offenders.
(2) Cancel any suspension imposed because of this error.
(3) Inform checkwriter by letter of action taken.
(a) When informed by the ICCO or the unit commander that an authorized user of the installation check-cashing facilities is suspended for issuing a dishonored check and is required to have their ID card overstamped, the ID card issuing facility will take action under AR 640-3, paragraph 4-10, to overstamp the offender's ID card.
(b) When reissuing ID cards lost, stolen, etc., the dishonored checklist will be examined to determine if the individual applying for a new or replacement card is on it. The individual's unit or civilian's supervisor should be contacted to determine whether the ID card should be overstamped.
DA officials may not overstamp ID cards issued by other Services. DA officials may suspend check-cashing privileges of members of other Services, or their family members, by placing them on the dishonored checklist. Repeated abuse of check cashing privileges may result in barring from the installation persons not assigned thereto, except for needed medical services (See figs 3-7 and 3-8.) This barring may apply to family members and retirees of any Service.
(a) Any person whose check-cashing privileges are suspended may submit a written appeal for removal of the suspension. Active duty soldiers or their family members will send the appeal to their unit commander. Civilian employees will send their appeals to their first line supervisor. The appeal will include the following:
(1) Date check-cashing privileges were suspended.
(2) Check-cashing facility where check was cashed.
(3) Date and where full payment, including administrative/service charges, was made.
(4) Date remedial training was completed.
(5) Grade received on installation checkbook maintenance test.
(6) Reasons privileges should be restored.
(b) ICCOs will not restore privileges if the checkwriter has not attended required training, has not passed the installation checkbook maintenance test, or has not paid in full all dishonored checks and administrative/service charges that did not result from bank or other excusable error.
(c) If appeal was approved, the ICCO will—
(1) Remove checkwriter's name from dishonored checklist.
(2) Inform checkwriter promptly of action taken.
ICCOs will—
(a) Dispose of inactive files as required by AR 25-400-2 for file number 210-60a (Check-cashing Privileges).
(b) Ensure that the ICCO is added to the installation out-processing checklist.
(c) Send active dishonored check files directly to the ICCO of the gaining installation when offenders are reassigned before the end of their or their family member's suspension period.
(d) Place incoming individuals on check cashing suspensions, if their existing suspensions have not expired. These individuals will remain on suspension until the suspension expires or an appeal is approved.
The Monthly Dishonored Check Report, RCS: CSCOA-105, provides data needed for control and management purposes.
Data for preparation of the report will be obtained from records kept at each installation.
(a) The Monthly Dishonored Check Report will be prepared by the ICCO in the format at figure 4-1 for ICCOs with automated systems. For ICCOs with manual systems, the report need only contain the total number of dishonored checks and total dollar value. Figure 4-1 is preferred. Negative reports are required. Items, such as corrective actions taken, may improve the report as needed.
(b) Statistics for transferred personnel will be dropped by the losing installation and picked up by the gaining installation for suspension purposes.
The ICCO will—
(a) Prepare the report monthly.
(b) Send the original report to their MACOM.
(c) Send copy of the report to finance and accounting officer for evaluation (see § 527.14(b)) and ultimate routing to installation commander.
(d) Send copy of the report to the Office of the Director of Finance and Accounting, ATTN: SAFM-FAP-B, Indianapolis, IN 46249-1016, due no later than 15 calendar days (30 days for overseas) after the end of the reporting period.
(e) Provide unit commander with unit dishonored check data.
Data in the Monthly Dishonored Check Report may be provided to banks and credit unions operating on military installations.
Ethics and military competence are closely related. Poor performance in one area contributes to poor performance in another. Therefore, a major element in personal financial management is ethics. Responsibility, integrity, and high standards of conduct will be stressed. This aspect of responsible financial management is considered a part of leader development and should be included in leadership instruction.
PFR/SMM training will be conducted throughout the Army training system as shown in §§ 527.44 and 527.45.
Emphasis during initial entry training will be on prevention of abuse of check-cashing privileges. Recruits will be—
(a) Given overview of basic pay entitlements, DA Form 3686 (JUMPS-Army Leave and Earnings Statement), and maintenance of a checkbook.
(b) Made aware of counseling resources and procedures.
(c) Instructed on their financial responsibilities to themselves, their family members, and their peers.
(d) Made aware of the disciplinary and career consequences of the abuse of check-cashing privileges.
Remedial training is mandatory for checkwriters committing an offense. Emphasis will be on checkbook management skills. This training is a prerequisite for removal from check-cashing suspensions. (See §§ 527.25 through 527.28.) Remedial training will include budget counseling when budget problems exist. After completion of the remedial training the individual will be given a test on checkbook maintenance. The ICCO will require 70% or greater correct responses for passing the test. The individual must be able to demonstrate successful completion of the training and that he/she has the ability to properly maintain a checking account.
1. Effective this (date) day of (month and year) I, (name), disclaim responsibility for any check issued by the person(s) listed below:
2. I have advised the individual(s) named above that I have disclaimed responsibility for check(s) presented by them to military check-cashing facilities. I have also advised the above named person(s) that their check-cashing privileges in these facilities may no longer be authorized.
—This memorandum must be notarized by a licensed notary public prior to submission.
1. Reference AR 210-60, Personal Check-cashing Control and Abuse Prevention, dated (date of regulation).
2. Your check(s) in the amount of ($), dated (date), was/were returned to (name of check-cashing facility) as dishonored.
3. You have 10 calendar days from the date of this letter to make redemption and pay any administrative/service fee. Failure to make full restitution will result in a suspension of your check-cashing privileges. Restitution for the above check(s) must be made by cash, certified check, or money order to (where redemption should be made).
4. If you can furnish proof of bank or other excusable error to the installation check control officer at (installation), your installation check-cashing privileges will be restored immediately. If proof is furnished, this would not be considered an offense, and no record of this transaction will be kept.
—MEMORANDUM THRU of address applies when two or more offenses occurred.
1. A Notification of Dishonored Check, dated (date), has been received and is given to you in conjunction with this counseling statement. The Notification requires you to perform one of the following:
a. Make restitution.
b. Furnish proof of bank error or other extenuating circumstances.
2. I have discussed the reason for the dishonored check with you, which is as follows:
3. Several offices are available to provide budgeting or financial assistance. I am/am not scheduling you for this training.
4. Consequences for abusing check-cashing privileges include the following:
a.Suspension of check-cashing privileges.
b.Letter of reprimand.
c.Appropriate comments in evaluation reports.
d.Administrative separation.
e.Bar to enlistment.
f.Denial of promotion.
g.Reduction in grade for inefficiency.
5. These consequences may be avoided by performing the requirements in paragraph 1 above. Subsequent offenses may be dealt with more severely.
Soldier's Comments:
1. Reference AR 210-60, Personal Check-cashing Control and Abuse Prevention, (date of regulation).
2. Your dishonored check(s) in the amount of (dollar amount), dated (date), and returned to (name of check-cashing facility) as dishonored was/were not redeemed within the grace period. Therefore, your installation check-cashing privileges are suspended for 6 months and you are required to attend remedial training on checkbook maintenance. The suspension period will end 6 months from the date of this letter, provided the check(s) has/have been redeemed and all administrative/service charges have been paid, you have attended remedial training, and you have passed the installation checkbook maintenance test. Failure to make redemption will result in collection action being taken against your pay account. A record of this occurrence will be kept in the check control office. Future dishonored check instances may result in more severe restrictions and/or disciplinary action against you.
3. You may appeal the suspension of your installation check-cashing privileges to your unit commander (if military or family member) or first line supervisor (if civilian). Your unit commander (if military or family member) or first line supervisor (if civilian) may approve restoring your check-cashing privileges prior to the end of 6 months. However, the check(s) must have been redeemed, all administrative/service charges paid, remedial training completed, and you must have passed the installation checkbook maintenance test.
1. Reference AR 210-60, Personal Check-cashing Control and Abuse Prevention, (date of regulation).
2. Your dishonored check(s) in the amount of (dollar amount), dated (date), and returned to (name of check-cashing facility) as dishonored was/were not redeemed within the grace period. Therefore, your installation check-cashing privileges are suspended for 12 months and you are required to attend remedial training, since this is your second offense. The suspension period will end 12 months from the date of this letter, provided the check(s) has/have been redeemed and all administrative/service charges have been paid, you have attended remedial training, and you have passed the installation checkbook maintenance test. Failure to make redemption will result in collection action being taken against your pay account. A record of this occurrence will be kept in the check control office. Future dishonored check instances may result in more severe restrictions and/or disciplinary action.
3. You may appeal the suspension of your installation check-cashing privileges to your unit commander (if military or family member) or first line supervisor (if civilian). Your unit commander (if military or family member) or first line supervisor (if civilian) may approve restoring your check-cashing privileges prior to the end of 12 months. However, the check(s) must have been redeemed, all administrative/service charges paid, remedial training completed, and you must have passed the installation checkbook maintenance test.
—If the check writer is currently on the dishonored check list, change paragraph 2 to indicate that current suspension is increased by 12 months.
1. Reference AR 210-60, Personal Check-cashing Control and Abuse Prevention, (date of regulation).
2. Your dishonored check(s) in the amount of (dollar amount), dated (date), and returned to (name of check-cashing facility) as dishonored was/were not redeemed within the grace period. Therefore, your installation check-cashing privileges are suspended for 18 months, you must have your ID card overstamped, and you are required to attend remedial training, since this is your third offense. The suspension period will end 18 months from the date of this letter, provided the check(s) has/have been redeemed and all administrative/service charges have been
3. You may appeal the suspension of your installation check-cashing privileges to your unit commander (if military or family member) or first line supervisor (if civilian). Your unit commander (if military or family member) or first line supervisor (if civilian) may approve restoring your check-cashing privileges prior to the end of 18 months. However, the check(s) must have been redeemed, all administrative/service charges paid, remedial training completed, and you must have passed the installation checkbook maintenance test.
—If the check writer is currently on the dishonored check list, change paragraph 2 to indicate that current suspension is increased by 18 months.
1. Reference AR 210-60, Personal Check-cashing Control and Abuse Prevention, (date of regulation).
2. Your dishonored check(s) in the amount of (dollar amount), dated (date), and returned to (name of check-cashing facility) as dishonored was/were not redeemed within the grace period. Therefore, your installation check-cashing privileges are suspended indefinitely, and you are required to attend remedial training, and you must have your ID card overstamped since this is your fourth offense. You must report to the ID card issuing facility to receive an overstamped ID card. The suspension period will end only at the approval of the installation commander, provided the check(s) has/have been redeemed and all administrative/service charges have been paid, you have attended remedial training, and you have passed the installation checkbook maintenance test. Failure to make redemption will result in collection action being taken against your pay account. A record of this occurrence will be kept in the check control office. Future dishonored check instances may result in more severe restrictions and/or disciplinary action against you.
3. You may appeal the suspension of your installation check-cashing privileges to your unit commander (if military or family member) or first line supervisor (if civilian). The installation commander may approve restoring your check-cashing privileges. However, the check(s) must have been redeemed, all administrative/service charges paid, remedial training completed, and you must have passed the installation checkbook maintenance test.
1. You are hereby notified of intent to bar you from entering or reentering the limits of (name of installation), except to enter and exit the installation by the most direct route for needed medical treatment at (name of hospital of clinic). This bar to the installation is because (reason for debarment). This bar to the installation will be removed (date or when certain actions are completed).
2. Section 1382, title 18, United States Code, states: “Whoever within the jurisdiction of the United States, goes upon any military, Naval, or Coast Guard Reservation, Post, Fort, Arsenal, Yard, Station or Installation, after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof shall be fined not more than $500 or imprisoned not more than 6 months, or both.”
3. After debarment, if you are found within the limits of (name of installation) without having received prior approval to enter the installation, except for the purpose of obtaining needed medical care, you will be detained by military authorities and turned over to Federal authorities for prosecution under the above law.
4. Prior to final action barring you from entering or reentering the limits of (name of installation), you are hereby given an opportunity to present evidence on your behalf and to comply with the requirements set forth in paragraph 1 above. This information may be presented to (ICCO). If a reply is not received within (number of) days of the date you receive this letter, a letter of debarment will automatically be sent to you.
1. You are hereby prohibited as of this date from entering or reentering the limits of (name of installation), except to enter and exist the installation by the most direct route for needed medical treatment at (name of hospital of clinic). This bar to the installation is because (reason for debarment). This bar to the installation will be removed (date or when certain actions are completed).
2. Section 1382, title 18, United States Code, states: “Whoever within the jurisdiction of the United States, goes upon any Military, Naval, or Coast Guard Reservation, Post, Fort, Arsenal, Yard, Station or Installation, after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof shall be fined not more than $500 or imprisoned not more than 6 months, or both.”
3. If you are hereafter found within the limits of (name of installation) without having received prior approval to enter the installation, except for the purpose of obtaining needed medical care, you will be detained by military authorities and turned over to Federal authorities for prosecution under the above law.
4. If you wish to appeal this debarment, a written request for a hearing on the matter should be sent to (ICCO) within (number of) days of the date of this letter. You will be informed by letter of the date, time, and place of the hearing for your appeal.
*Army publications referenced in this document are available from the National Technical Information Service, U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161, Telephone: (703) 487-4684.
A related publication is merely a source of additional information. The user does not have to read it to understand this regulation.
Department of Defense Military Pay and Allowances Entitlements Manual (DODPM). Exchange Service Manual 55-21.
Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012.
General Accounting Office, see 4 CFR chapter I.
(a)
(b)
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(i) Transcribing notes and making that portion of the original record which is required to be typewritten—25 cents for each 100 words.
(ii) Each carbon copy of the record when authorized by the convening authority—10 cents for each 100 words.
(iii) Copying papers material to the inquiry—15 cents for each 100 words.
(iv) Each carbon copy of the papers referred to in paragraph (d)(1)(iii) of this section when ordered by the court for its use—2 cents for each 100 words.
(2)
(e)
(f)
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(ii) When the court is sitting in a foreign country, the oversea commander within whose command the court is convened will fix fees and allowances to be paid to witnesses, not in excess of maximum rates permitted to witnesses attending the courts of the United States or the courts of the foreign country, whichever rates may be higher.
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(ii) There is no authority for payment by the Government of fees to an expert, who was employed by an officer or employee of the Government to aid in the performance of his duties, other than an expert witness who actually appears as such (paragraph (b)(2) of this section).
(iii) A retired officer, not on active duty, employed as an expert witness is not entitled to any compensation in addition to his retired pay for such service. The traveling allowances of such a retired officer, so employed, are subject to the limitations prescribed in the Travel Expense Act of 1949 and the Standardized Government Travel Regulations. (See 6 Comp. Gen 712.)
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10 U.S.C. 939, 2733, 2734, 2734a, 2736, 2737, 3012, 4801 through 4804, and 4806; 28 U.S.C. 1346(b), 2401(b), 2402, 2671 through 2680; and 32 U.S.C. 715.
(a)
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(ii) Section 536.40 sets forth the procedures to be followed and the standards to be applied in the processing of claims cognizable under Article 139, Uniform Code of Military Justice (UCMJ) (10 U.S.C. 939) for property willfully damaged or wrongfully taken or withheld by members of the DA.
(iii) Section 536.50 governs the administrative settlement of claims under the Federal Tort Claims Act (FTCA) (28 U.S.C. 1346(b), 2671-2680) for personal injury, death or property damage caused by the negligent act or omissions of members or employees of the DA while acting within the scope of their employment.
(iv) Section 536.60 provides the procedures to be followed in the settlement of claims under the Army Maritime Claims Settlement Act (10 U.S.C. 4801-4804, 4806) for damage caused by a vessel of or in the service of the Army.
(v) Sections 536.70 through 536.81 provide instructions for settlement of claims under the National Guard Claims Act (NGCA) (32 U.S.C. 715) for personal injury, death or property damage that was either caused by a member or employee of the Army National Guard (ARNG) while in training or duty under Federal law, and acting within the scope of their employment; or otherwise incident to noncombat activities of the ARNG not in active Federal service.
(vi) Sections 536.90 through 536.97 provide instructions for settlement of claims under 10 U.S.C. 2737 for personal injury, death or property damage (not cognizable under any other law) incident to the use of Government property by members or employees of the DA.
(2)
(3)
(i) Contractual claims which are under the provisions of Public Law 85-804, 28 August 1958 (72 Stat. 972) and AR 37-103, AR 37-103 and other Army Regulations referenced herein are available thru: National Technical Information Services, U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161, or other regulations including acquisition regulations.
(ii) Maritime claims (§ 536.60).
(a) Government personnel may not represent any claimant or receive any payment or gratuity for services rendered. They may not accept any share or interest in a claim or assist in its presentation, under penalty of Federal criminal law (18 U.S.C. 203, 205). They are prohibited from disclosing information which may be the basis of a claim, or any evidence of record in any claims matter, except as prescribed in §§ 518.1 through 518.4 of this chapter or other pertinent regulations. A person lacking authority to approve or disapprove a claim may not advise a claimant or his representative as to the disposition recommended.
(b) The prohibitions against furnishing information and assistance do not apply to the performance of official duty. Any person who indicates a desire to file a claim against the United States will be instructed concerning the procedure to follow. He will be furnished claim forms, and, when necessary, will be assisted in completing the forms and assembling evidence. He will not be assisted in determining what amount to claim. In the vicinity of a field exercise, maneuver, or disaster, information may be disseminated concerning the right to present claims, the procedure to be followed, and the names and locations of claims officers, and engineer repair teams. When the government of a foreign country in which the U.S. Armed Forces are stationed has assumed responsibility for the settlement of certain claims against the United States, officials of that country will be furnished pertinent information and evidence so far as security considerations permit.
The following terms as used in §§ 536.1 through 536.13 and the matters referred to in § 536.1(b) will have the meanings here indicated:
(a)
(b)
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(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(a) The governments of some foreign countries have by treaty or agreement waived or assumed, or may hereafter waive or assume, certain claims against the United States. In such instances claims will not be settled under laws or regulations of the United States.
(b) The prohibition stated in paragraph (a) of this section is not applicable to claims within the purview of Article VIII of the Agreement Regarding the Status of Forces of Parties to the North Atlantic Treaty or similar type agreements which normally will be investigated and settled as therein provided.
(a)
(i)
(ii)
(2) A claim for personal injury may be presented by the injured person or duly authorized agent or legal representative.
(3) A claim based on death may be presented by the executor or administrator of the deceased's estate, or by any person determined to be legally or beneficially entitled. The amount allowed will, to the extent practicable, be apportioned among the beneficiaries in accordance with the law applicable to the incident.
(4) A claim for medical, hospital, or burial expenses may be presented by any person who by reason of family relationship has in fact incurred the expenses for which the claim is made. However, for claims cognizable under the provisions of the FTCA, see § 536.50, and for claims cognizable under the provisions of the Nonscope of Employment Claims Act, see §§ 536.90 through 536.97.
(5) A claim presented by an agent or legal representative will be made in the name of the claimant and signed by the agent or legal representative showing the title or capacity. Written evidence of the authority of such person to act is mandatory except when controlling law does not require such evidence.
(6) A claim normally will include all damages that accrue by reason of the incident. Where the same claimant has a claim for damage to or loss of property and a claim for personal injury or a claim based on death arising out of
(b)
(1) The claims of the subrogor (insured) and subrogee (insurer) for damages arising out of the same incident constitute separate claims, and it is permissible for the aggregate of such claims to exceed the monetary jurisdiction of the approving or settlement authority.
(2) A subrogor and a subrogee may file a claim jointly or individually. A fully subrogated claim will be paid only to the subrogee. Whether a claim is fully subrogated is a matter to be determined by local law. Some jurisdictions permit the property owner to file for property damage even though the owner has been compensated for the repairs by an insurer. In such instances a release should be obtained from both parties in interest or be released by both of them. The approved payment in a joint claim will be by joint check which will be sent to the subrogee unless both parties specify otherwise. If separate claims are filed, payment will be by check issued to each claimant to the extent of his undisputed interest.
(3) Where a claimant has made an election and accepted workmen's compensation benefits, both statutory and case law of the jurisdiction should be scrutinized to determine to what extent the claim of the injured party against third parties has been extinguished by acceptance of compensation benefits. While it is infrequent that the claim is fully extinguished, it is true in some jurisdictions, and the only proper party claimant is the workmen's compensation carrier. Even where the injured party's claim has not been fully extinguished, most jurisdictions provide that the compensation insurance carrier has a lien on any recovery from the third party, and no settlement should be reached without approval by the carrier where required by local law. Additionally, claims from the workmen's compensation carrier as subrogee or otherwise will not be considered payable where the United States has paid the premiums, directly or indirectly, for the workmen's compensation insurance. Applicable contract provisions holding the United States harmless should be utilized.
(4) Whether medical payments paid by an insurer to its insured can be subrogated depends on local law. Some jurisdictions prohibit these claims to be submitted by the insurer notwithstanding a contractual provision providing for subrogation. Therefore, local law should be researched prior to deciding the issue, and claims forwarded to higher headquarters for adjudication should contain the results of said research. Such claims, where prohibited by state law, will also be barred by the Antiassignment Act.
(5) Care will be exercised to require insurance disclosure consistent with the type of incident generating the claim. Every claimant will, as a part of his claim, make a written disclosure concerning insurance coverage as to:
(i) The name and address of every insurer;
(ii) The kind and amount of insurance;
(iii) Policy number;
(iv) Whether a claim has been or will be presented to an insurer, and, if so, the amount of such claims; and
(v) Whether the insurer has paid the claim in whole or in part, or has indicated payment will be made.
(6) Each subrogee must substantiate his interest or right to file a claim by appropriate documentary evidence and should support the claim as to liability and measure of damages in the same manner as required of any other claimant. Documentary evidence of payment to a subrogor does not constitute evidence either of liability of the Government or of the amount of damages. Approving and settlement authorities will make independent determinations upon the evidence of record and the law.
(7) Subrogated claims are not cognizable under §§ 536.90 through 536.97 and the FCA (10 U.S.C. 2734).
(c)
(i) Every purported transfer or assignment of a claim against the United States, or of any part of or interest in a claim, whether absolute or conditional.
(ii) Every power of attorney or other purported authority to receive payment of all or part of any such claim.
(2) The purposes of the Antiassignment Act are to eliminate multiple payment of claims, to cause the United States to deal only with original parties, and to prevent persons of influence from purchasing claims against the United States.
(3) In general, this statute prohibits voluntary assignments of claims with the exception of transfers or assignments made by operation of law. The operation of law exception has been held to apply to claims passing to assignees because of bankruptcy proceedings, assignments for the benefit of creditors, corporate liquidations, consolidations or reorganizations, and where title passes by operation of law to heirs or legatees. Subrogated claims which arise under a statute are not barred by the Antiassignment Act. For example, subrogated worker's compensation claims are cognizable when presented by the insurer.
(4) Subrogated claims which arise pursuant to contractual provisions may be paid to the subrogee if the subrogated claim is recognized by state statute or decision. For example, an insurer under an automobile insurance policy becomes subrogated to the rights of a claimant upon payment of a property damage claim. Generally, such subrogated claims are authorized by state law and are therefore not barred by the Antiassignment Act.
(5) Before claims are paid, it is necessary to determine whether there may be a valid subrogated claim under Federal or State statute or subrogation contract held valid by State law. If there may be a valid subrogated claim forthcoming, payment should be withheld for this portion of the claim. If it is determined that claimant is the only proper party, full settlement is authorized.
(d)
(2)
(ii) Where the claimant is represented, the supporting evidence required by paragraph (a)(5) of this section will be required only if the claim is signed by the agent or legal representative. However, in all cases in which a claimant is represented, the name and address of the representative will be included in the file together with copies of all correspondence and records of conversations and other contacts maintained and included in the file. Frequently, these records are determinative as to whether the statute of limitations has been tolled.
(3)
(e)
(f)
(2)
(3)
(4)
(5)
(g)
(2)
(i) One that appears to be of a type that must be brought to the attention of the Attorney General in accordance with his or her regulations;
(ii) One in which the demand exceeds $15,000; or
(iii) One which is a claim under the FTCA (§ 536.50) where the total of all claims, arising from a single incident, actual or potential, exceeds $25,000. USARCS is responsible for the monitoring and settlement of such claims and will be kept informed on the status of the investigation and processing thereof. Direct liaison and correspondence between the USARCS and the field claims authority or investigator is authorized on all claims matters, and assistance will be furnished as required. The field claims office will provide USARCS duplicates of all documentation as it is added to the field file. This will include all correspondence, memoranda, medical reports, reports, evaluations, and any other material relevant to the investigation and processing of the claim.
(3)
(4)
(i) Claims of under Article VIII of the Agreement Regarding the Status of Forces Parties to the North Atlantic Treaty and other treaties or international agreements where the United States is the Receiving State;
(ii) Claims under § 536.60 (Maritime claims not arising out of civil works activities) except as delegated to overseas command claims services;
(iii) Industrial security claims, DoD Directive 5220.6, 12 August 1985; and
(iv) Claims of the U.S. Postal Service. Files of these claims will be forwarded directly to the Commander, USARCS, with the report of investigation and supporting papers, including a memorandum of opinion.
(5)
(ii) If a maritime claim cannot be settled administratively, the claimant will be advised that he must file a suit.
(iii) If it is determined that both administrative and judicial remedies are available, the claim may be processed administratively and the claimant advised of the need to file a suit within 2 years of the date of occurrence if he chooses his judicial remedy.
(iv) If the claim is for damage to property, or injury to person, consummated on land, a claimant who makes an oral inquiry or demand will be advised that no suit can be filed until a period of six months has expired after a claim in writing is submitted.
(v) If it is determined by the Commander, USARCS, that a claim, apparently maritime in nature, is not within the maritime jurisdiction, the claimant will be so advised, and the claim will be returned for processing under the appropriate section of this regulation.
(h)
(i)
(a) In the adjudication of tort claims, the liability of the United States generally is determined in accordance with the law of the State or country where the act or omission occurred, except that any conflict between local law and the applicable United States statute will be resolved in favor of the latter. However, in claims by inhabitants of the United States arising in foreign countries, liability is determined in accordance with general principles of tort law common to the majority of American jurisdictions as evidenced by Federal case law and standard legal publications, except as it applies to absolute liability. Where liability is not clear or other issues exist, settlements should truly reflect the uncertainties in the adjudication of such issues. Compromise settlements are encouraged provided agreement can be reached that reflects the reduced value of the damages as measured against the full value or range of value if such uncertainties or issues did not exist and were it possible for the claimant to successfully litigate the claim.
(b) Quantum exclusion. The costs of filing a claim and similar costs, for example, court costs, bail, interest, inconvenience expenses, or costs of long distance telephone calls or transportation in connection with the preparation of a claim, are not proper quantum elements and will not be allowed.
(a)
(b)
(c)
(2) As the incident to service issue is determinative as to whether this type of claim may be processed administratively at all, the applicable law and facts should be carefully considered before deciding that injury or death was not incident to service. Such claims also are often difficult to settle on the issue of quantum and thus more likely to end in litigation. Moreover, the United States may well elect to defend the lawsuit on the basis of the incident to service exclusion, and this defense could be prejudiced by a contrary administrative determination that a service member's personal injuries or death were not incident to service. Doubtful cases will be forwarded to the Commander, USARCS without action along with sufficient factual information to permit a determination of the incident to service question.
(a)
(b)
The total award to which the claimant (and subrogee) may be entitled normally will be computed as follows:
(a) Determine the total of the loss or damage suffered.
(b) Deduct from the total loss or damage suffered any payment, compensation, or benefit the claimant has received from the following sources:
(1) The U.S. or ARNG employee/member who caused the damage.
(2) The U.S. or ARNG employee's/member's insurer.
(3) Any person or agency in a surety relationship with the U.S. employee; or
(4) Any joint tortfeasor or insurer, to include Government contractors under contracts or in jurisdictions where it is permissible to obtain contribution or indemnity from the contractor in settlement of claims by contractor employees and third parties.
(5) Any advance payment made pursuant to § 536.13.
(6) Any benefit or compensation based directly or indirectly on an employer-employee relationship with the United States or Government contractor and received at the expense of the United States including but not limited to medical or hospital services, burial expenses, death gratuities, disability payment, or pensions.
(7) The State (Commonwealth, etc.) whose employee or ARNG member caused or generated an incident that was a proximate cause of the resulting damages.
(8) Value of Federal medical care.
(9) Benefits paid by the Veterans Administration (VA) that are intended to compensate the same elements of damage. When the claimant is receiving money benefits from the VA under 38 U.S.C. 351 for a non-service connected disability or death based on the injury that is the subject of the claim, acceptance of a settlement or an award under the FTCA (§ 536.50) will discontinue the VA monetary benefits until the amount that would have otherwise been received in VA monetary benefits is equal to the total amount of the agreement or award including attorney fees. While monetary benefits received under 38 U.S.C. 351 must be discontinued as above, medical benefits, that is, VA medical care may continue provided the settlement or award expressly provides for such continuance and the appropriate VA official is informed of such continuance.
(10) When the claimant is receiving money benefits under 38 U.S.C. 410(b) for non-service connected death, arising from the injury that is the subject of the claim, acceptance of a settlement or award under the FTCA (§ 536.50) or under any other tort procedure will discontinue the VA benefits until the amount that would have otherwise been received in VA benefits is equal to the amount of the total settlement or award including attorney fees. The discontinuation of monetary benefits under 38 U.S.C. 410(b) has no effect on the receipt of other VA benefits. The claimant should be informed of the foregoing prior to the conclusion of any settlement and thus afforded an opportunity to make appropriate adjustment in the amount being negotiated.
(11) Value of other Federal benefits to which the claimant did not contribute, or at least to the extent they are funded from general revenue appropriation.
(12) Collateral sources where permitted by State law (for example, State or Federal workers’ compensation, social security, private health, accident, and disability benefits paid as a result of injuries caused by a health care provider).
(c) No deduction will be made for any payment the claimant has received by way of voluntary contributions, such as donations of charitable organizations.
(d) Where a payment has been made to the claimant by his insurer or other subrogee, or under workmen's compensation insurance coverage, as to which subrogated interests are allowable, the award based on total damages will be apportioned as their separate interests are indicated (see § 536.5(b)).
(e) After deduction of permissible collateral and non-collateral sources, also deduct that portion of the loss or damage believed to have been caused by the negligence of the claimant, third parties whose negligence can be imputed to the claimant, or joint tortfeasors who are liable for their share of the negligence (for example, where some form of the Uniform Contribution Among Joint Tortfeasors Act has been passed).
(f) Claims with more than one potential source of recovery. (1) The Government seeks to avoid multiple recovery, that is, claimants seeking recovery from more than one potential source, and to minimize the award it must make. The claims investigation should therefore identify other parties potentially liable to the claimant and/or their insurance carriers; indicate the status of any claims made or include a statement that none has been made so that it can be assured there is only one recovery and the Government does not pay a disproportionate share. Where no claim has been made by the claimant against others potentially liable, if applicable State law grants the Government the right to indemnity or contribution, and it is felt the Government may be entitled to either under the facts developed by the claims investigation, the claims officer or attorney should formally notify the other parties of their potential liability, the Government's willingness to share information, and its expectation of shared responsibility for any settlement. Furthermore, the claimant may be receiving or entitled to receive benefits from collateral and non-collateral sources, which can be deducted from the total loss or damage. Accordingly, a careful review must be made of applicable State laws regarding joint and several liability, indemnity, contribution, comparative negligence, and the collateral source doctrine.
(2) If a demand by a claimant or an inquiry by a potential claimant is directed solely to the Army, in a situation where it appears that the responsible Army employee may have applicable insurance coverage, inquiry should be made of the employee as to whether he has liability insurance.
(i) If so, determine if the insurer has made or will make any payment to claimant. Under applicable State law, the United States may be an additional named insured entitled to coverage under the employee's liability policy. (See 16 ALR3d 1411;
(ii) If the employee refuses to cooperate in providing this information, he or she should be advised to comply with the notice requirements of the insurance policy and to request the insurance carrier contact the claims officer or attorney. In addition, other sources of information, such as vehicle registration records, will be checked to ascertain the employee's insurer. The case should be followed to ascertain whether the employee's insurer has made or will make any payment to the claimant before deciding whether to settle the claim against the Government. Normally, the award, if any, to the claimant will be reduced by the amount of the payment of the employee's insurance carrier.
(3) If the employee is the sole target of the claim and Army claims authorities arrange to have the claim made against the Government, the member or employee should be required to notify his or her insurance carrier according to the policy and inform DA claims authorities as to the details of the insurance coverage, including the name of the insurance carrier. Except when the “Drivers Act” is applicable, the insurance carrier is expected to participate in the negotiation of the claims settlement and to pay its fair share of any award to the claimant.
(4) Where the responsible Army employee is “on loan” to another employer other than the United States, for example, civilian institution for ROTC instructor, or performing duties for a foreign government, inquiry should be made to determine whether there is applicable statutory or insurance coverage concerning the acts of the responsible employee and contribution or indemnification sought, as appropriate. In the case of foreign governments, applicable treaties or agreements are considered controlling.
(5) A great many claims cognizable under the FTCA (§ 536.50) are now settled on a compromise basis. A major consideration in many such settlements is the identification of other sources of recovery. This is true in a variety of factual situations where there is a potential joint tortfeasor; for example, multi-vehicle accidents with multiple drivers and guest passengers, State or local government involvement, contractors performing non-routine tasks for the Government, medical treatment rendered to a claimant by non-Government employees, or incidents caused by a member or employee of the military department of a State or Commonwealth with whom the DA does not have a cost-sharing agreement. The law of the jurisdiction regarding joint and several liability, indemnity and contribution may permit shared financial responsibility, but even in jurisdictions which do not permit contribution, a compromise settlement can often be reached with the other tortfeasor's insurance company paying a portion of the total amount of the claim against the Government. For these reasons, every effort should be made to identify the insurance of all potential tortfeasors involved and the status of any claims made, and to demand contribution or indemnity where there is a substantial reason to believe that liability for the loss or damage should be shared.
(6) Whenever a claim is filed against the Government under a statute which does not permit the payment of a subrogated interest, it is important to ensure that full information is obtained from the claimant regarding insurance coverage, if any, since it is the clear legislative intent of such statutes that insurance coverage be fully utilized before using appropriated funds to pay the claims.
(a)
(b)
(a)
(b)
(c)
(d)
(e)
Acceptance of an award by the claimant, except for an advance payment, constitutes for the United States, and for the military member or civilian employee whose act or omission gave rise to the claim, a release from all liability to the claimant based on the act or omission.
(a)
(b)
(1) The claim must be determined to be cognizable and meritorious under the provisions of either §§ 536.20 through 536.35, and 536.70 through 536.81, or the FCA (10 U.S.C. 2734).
(2) There exists an immediate need of the person who suffered the injury, damage, or loss, or of the family of a person who was killed, for food, clothing, shelter, medical or burial expenses, or other necessities, and other resources for such expenses are not reasonably available.
(3) The payee, so far as can be determined, would be a proper claimant, as is the spouse or next of kin of a claimant who is incapacitated.
(4) The total damage sustained must exceed the amount of the advance payment.
(5) A properly executed advance payment acceptance agreement has been obtained.
The statutory authority for §§ 536.20 through 536.35 is contained in the Act of 10 August 1956 (70A Stat. 153, 10 U.S.C. 2733) commonly referred to as the Military Claims Act (MCA), as amended by Public Law 90-522, 26 September 1968 (82 Stat. 875), Public Law 90-525, 26 September 1968 (82 Stat. 877), Public Law 91-312, 8 July 1970 (84 Stat. 412) and Public Law 93-336, 8 July 1974 (88 Stat. 291); and the Act of 8 September 1961 (75 Stat. 488, 10 U.S.C. 2736), as amended by Public Law 90-521, 26 September 1968 (82 Stat. 874) and Public Law 98-564, 30 October 1984 (98 Stat. 2918).
The definitions of terms set forth in § 536.3 are applicable to §§ 536.20 through 536.35.
Sections 536.20 through 536.35 are applicable in all places and prescribe the substantive bases and special procedural requirements for the settlement of claims against the United States for death, personal injury, or damage to or loss or destruction of property caused by military personnel or civilian employees of the DA acting within the scope of their employment, or otherwise incident to the noncombat activities of the DA, provided such claim is not for personal injury or death of a member of the Armed Forces or Coast Guard or a civilian officer or employee whose injury or death is incident to service.
(a)
(1) Caused by an act or omission determined to be negligent, wrongful, or otherwise involving fault of military personnel or civilian officers or employees of the Army acting within the scope of their employment, or
(2) Incident to the noncombat activities of the Army.
(b)
(1) Real property used and occupied under a lease, express or implied, or otherwise (for example, in connection with training, field exercises, or maneuvers). An allowance may be made for the use and occupancy of real property arising out of trespass or other tort, even though claimed as rent.
(2) Personal property bailed to the Government under an agreement, express or implied, unless the owner has expressly assumed the risk of damage or loss. Some losses may be payable using Operations and Maintenance, Army funds. Clothing damage or loss
(3) Registered or insured mail in the possession of the Army, even though the loss was caused by a criminal act.
(c)
(d)
A claim is not payable under §§ 536.20 through 536.35 which—
(a) Results wholly from the negligent or wrongful act of the claimant or agent.
(b) Is for reimbursement for medical, hospital, or burial expenses furnished at the expense of the United States.
(c) Is purely contractual in nature.
(d) Arises from private as distinguished from Government transactions.
(e) Is based solely on compassionate grounds.
(f) Is for war trophies or articles intended directly or indirectly for persons other than the claimant or members of his or her immediate family, such as articles acquired to be disposed of as gifts or for sale to another, voluntarily bailed to the Army, or is for precious jewels or other articles of extraordinary value voluntarily bailed to the Army. The preceding sentence is not applicable to claims involving registered or insured mail. No allowance will be made for any item when the evidence indicates that the acquisition, possession, or transportation thereof was in violation of DA directives.
(g) Is for rent, damage, or other payments involving the acquisition, use, possession, or disposition of real property or interests therein by and for the DA, except as authorized by § 536.23(b)(1). Real estate claims founded upon contract are generally processed under AR 405-15.
(h) Is not in the best interests of the United States, is contrary to public policy, or is otherwise contrary to the basic intent of the governing statute (10 U.S.C. 2733); for example, claims by inhabitants of unfriendly foreign countries or by or based on injury or death of individuals considered to be unfriendly to the United States. When a claim is considered to be not payable for the reasons stated in this paragraph, it will be forwarded for appropriate action to the Commander, USARCS, together with the recommendations of the responsible claims office.
(i) If presented by a national, or a corporation controlled by a national, or a country at war or engaged in armed conflict with the United States, or of any country allied with such enemy country unless the settlement authority having jurisdiction over the claim determines that the claimant is and, at the time of the incident, was friendly to the United States. A prisoner of war or an interned enemy alien is not excluded as to a claim for damage, loss, or destruction of personal property in the custody of the Government otherwise payable.
(j) Is for personal injury or death of a member of the Armed Forces or Coast Guard or a civilian employee thereof which is incident to his or her service (10 U.S.C. 2733(b)(3)).
(k) The types of claims not payable under the FTCA (see § 536.50(j)) are also not payable under §§ 536.20 through 536.35 with the following exceptions:
(1) The foreign country exclusion in 28 U.S.C. 2680(k) does not apply to claims under §§ 536.20 through 536.35.
(2) The
(a)
(b)
(a)
(b)
So far as not inconsistent with §§ 536.20 through 536.35, the procedures set forth in §§ 536.1 through 536.13 will be followed. Subrogated claims will be processed as prescribed in § 536.5(b).
(a) As to claims arising in the United States, its territories, commonwealths, and possessions, the law of the place where the act or omission occurred will be applied in determining liability and the effect of contributory negligence on claimant's right to recover damages.
(b) In claims arising in a foreign country, liability of the United States will be assessed by reference to general principles of tort law common to the majority of United States jurisdictions. Absolute liability and similar theories are not a basis for liability under this section. Damages will be determined under § 536.29. If the negligence of the claimant was a partial cause of the injury, loss or damage, recovery will be barred if the negligence of the claimant is greater than that of the United States. In traffic accident cases, questions of negligence, and the degree of the claimant's comparative negligence, will be evaluated based on the traffic and vehicle safety laws and regulations of the country in which the accident occurred, but only to the extent they are not specifically superseded or preempted by the United States military traffic regulations.
(a)
(2)
(i) Proof of ownership.
(ii) Detailed statement of amount claimed for each item of property.
(iii) Itemized receipt of estimate for all repairs.
(iv) Statement giving date of purchase, price and, where not economically repairable, the salvage value.
(3)
(b)
(1) The information listed below (similar to that required by 28 CFR 14.4(a)) will be submitted by a claimant to substantiate a wrongful death claim.
(i) Authenticated death certificate or other competent evidence showing date and cause of death and age of decedent.
(ii) Decedent's employment and occupation at time of death, including salary or earnings and duration of last employment or occupation.
(iii) Names, addresses, birthdates, kinship and marital status of survivors.
(iv) Identification of persons dependent on decedent for support at time of death and the degree of support provided.
(v) Decedent's general physical and mental condition at time of death.
(vi) Itemized bills or receipt for medical and burial expenses.
(vii) If damages for pain and suffering are claimed, a physician's statement specifying the injuries suffered, duration of pain and suffering, drugs administered and decedent's physical condition between time of injury and time of death.
(2) The information listed below (similar to that required by 28 CFR 14.4(b)) will be submitted by a claimant to substantiate a personal injury claim.
(i) Written report by attending the physician or dentist setting forth the:
(A) Nature and extent of injury;
(B) Nature and extent of treatment;
(C) Degree of temporary or permanent disability;
(D) Prognosis;
(E) Period of hospitalization; and
(F) Diminished earning capacity.
(ii) Itemized bills or receipts for medical, dental and hospital expenses.
(iii) If the prognosis includes future treatment, a statement of expected expenses for such treatment.
(iv) If the claim includes lost time from employment, a statement by the employer showing the actual time lost and wages and/or salary lost.
(v) If the claim includes lost income by a self-employed claimant, documentary evidence of such loss.
(c)
(2) The information listed in § 536.29(b) (1) and (2), as appropriate, will be submitted by the claimant to substantiate a claim.
(3) A claimant who suffers serious personal injury, resulting in temporary or permanent disability should be examined by an independent physician or other medical specialist (See § 536.8(b)).
(d)
(i) Provide the documentation required by paragraphs (a), (b) and (c) of this section;
(ii) Undergo necessary medical examinations;
(iii) Permit questioning of the claimant, his or her witness, and treating medical personnel;
(iv) Submit an expert opinion in a professional negligence action.
(2) Failure to comply with these requirements may provide a basis for denial of a claim, in full or in part.
(e)
(1) Punitive or exemplary damages, including damages punitive in nature under 28 U.S.C. 2674.
(2) Interest on any claim settlement.
(a) The use of the structured settlement device by approval and settlement authorities is encouraged in all appropriate cases. A structured settlement should not be used when contrary to the desires of the claimant.
(b) Notwithstanding the above, the Commander, USARCS may require or recommend to higher authority that an acceptable structured settlement be made a condition of award notwithstanding objection by the claimant or his or her representative where—
(1) Necessary to ensure adequate and secure care and compensation to a minor or otherwise incompetent claimant over a period of years;
(2) Where a trust device is necessary to ensure the long-term availability of funds for anticipated further medical care;
(3) Where the injured party's life expectancy cannot be reasonably determined.
Claims cognizable under 10 U.S.C. 2733 and §§ 536.20 through 536.35, which are meritorious in amounts in excess of $100,000, will be forwarded to the Commander, USARCS who will negotiate a settlement subject to approval by the Secretary of the Army or designee, or require the claimant to state the lowest amount that will be acceptable and provide appropriate justification. Tender of a final offer by the Commander, USARCS constitutes an action subject to appeal. The Commander, USARCS will prepare a memorandum of law with recommendations and forward the claim to the Secretary of the Army, or designee, for final action. The Secretary or designee will either disapprove the claim or approve it in whole or in part.
(a)
(1) He or she may appeal, and that no form is prescribed for the appeal.
(2) The title of the authority who will act on the appeal and that the appeal will be addressed to the settlement authority who last acted on the claim.
(3) The claimant must fully set forth the grounds for appeal, or state that he or she appeals on the basis of the record as it exists at the time of denial or final offer.
(4) The appeal must be postmarked not later than 60 days after receipt of notice of action on the claim. If the 60th day falls on a day on which the post office is closed, the next day on which it is open for business will be considered the final day of the appeal period. The 60 day appeal period starts on the day following claimant's receipt of the letter from the settlement authority informing the claimant of the action taken and of the appellant rights. For good cause shown, the Commander, USARCS, or designee, or the chief of a command claims service (if the appellate authority), may extend the time for appeal, but normally such extension will not exceed 90 days.
(5) Where a claim for the same injury has been filed under the FTCA and the denial or final offer applies equally to such claim, the letter of notification must advise the claimant that any suit brought as to any portion of the claim under the FTCA must be brought not later than 6 months from the date of mailing of the notice of denial or final offer. Further, the claimant must be advised that if suit is brought, action on any appeal will be held in abeyance pending final determination of such suit.
(b)
(2) If the evidence in the file, including information submitted by the claimant with the appeal and any necessary additional investigation, indicates that the appeal should be granted, in whole or in part, the settlement authority who last acted on the claim or his or her successor will attempt to settle the claim. If settlement cannot be reached, the appeal will be forwarded in accordance with paragraph (b)(1) of this section.
(3) As to an appeal that requires action by TJAG, The Assistant Judge Advocate General (TAJAG), or the Secretary of the Army, or designee, the Commander, USARCS may take the action in paragraph (b)(2) of this section or forward the claim together with a recommendation for action. All matters submitted by the claimant will be forwarded and considered.
(4) Since an appeal under this authority is not an adversary proceeding, no form of hearing is authorized. A request by the claimant for access to documentary evidence in the claims file to be used in considering the appeal should be granted unless access is not permitted by law or regulation.
In the settlement of any claim under §§ 536.20 through 536.35, attorney fees shall not exceed 20 percent of the final cost to the United States of the award.
(a) Costs, settlements, or judgments cognizable under 10 U.S.C. 1089(f) for personal injury or death caused by any physician, dentist, nurse, pharmacist, or paramedical, or other supporting personnel (including medical and dental technicians, nurse assistants, and therapists) of DA should be forwarded to Commander, USARCS, for action and will be paid, provided:
(1) The alleged negligent or wrongful actions or omissions arose in performance of medical, dental or related health care functions (including clinical studies and investigations) within the scope of employment; and
(2) Such personnel provide prompt notification and delivery of all process served or received, provide such other documents, information, and assistance as requested, and cooperate in the defense of the action on the merits. (See DoD Directive 6000.6.)
(b) Costs, settlements, and judgments cognizable under 10 U.S.C. 1054(f) for damages for injury of loss of property caused by any attorney, paralegal, or other member of a legal staff within the DA should be forwarded to Commander, USARCS, for action and will be paid, provided:
(1) The alleged negligent or wrongful actions or omissions arose in connection with providing legal services while
(2) Such personnel provide prompt notification and delivery of all process served or received, provide such other documents, information and assistance as requested, and cooperate in the defense of the action on the merits. (See DoD Directive 6000.6.)
(a)
(b)
(c)
(d)
(1)
(2)
(e)
(1) Claims resulting from negligent acts.
(2) Claims for personal injury or death.
(3) Claims resulting from acts or omissions of military personnel acting within the scope of their employment.
(4) Claims resulting from the conduct of reserve component personnel who are not subject to the UCMJ at the time of the offense.
(5) Subrogated claims, including claims by insurers.
(f)
(2)
(3)
(g)
(1)
(2)
(3)
(4)
(i) If the soldier indicates a desire to make voluntary restitution, the investigating officer may, with the convening authority's concurrence, delay proceedings until the end of the next pay period to accomplish this. If the soldier makes payment to the claimant's full satisfaction, the claim will be dismissed.
(ii) In the absence of full restitution, the investigating officer will determine whether the claim is cognizable and meritorious under the provisions of Article 139 and this chapter and the amount to be assessed each offender. This amount will be reduced by any restitution accepted by the claimant from an offender in partial satisfaction. Within 10 working days or such time as the SPCMCA may provide, the investigating officer will make findings and recommendations and submit these to the SPCMCA. The investigating officer will also provide a copy of his or her findings and recommendations to any soldier against whom an assessment is recommended.
(iii) If the soldier is absent without leave so that he or she cannot be provided with notification, the Article 139 claim may be processed in the soldier's absence. If an assessment is approved, a copy of the claim and SPCMCA approval will be forwarded by transmittal letter to the servicing finance and accounting office (FAO) for offset input against the soldier's pay account. In the event the soldier is dropped from the rolls, the servicing FAO will forward the assessment documents to Commander, U.S. Army Finance and Accounting Center, attn: Department 40, Indianapolis, Indiana 46249.
(5)
(i) Whether the claim is cognizable under the provisions of Article 139 and this chapter.
(ii) Whether the findings and recommendations are supported by evidence.
(iii) Whether there has been substantial compliance with the procedural requirements of Article 139, this chapter, and AR 15-6.
(6)
(7)
(8)
(9)
(h)
(2)
(3)
(4)
(5)
(a)
(b)
(c)
(d) “Employee of the Government” (28 U.S.C. 2671) includes the following categories of tortfeasors for which the DA is responsible:
(1) Military personnel (members of the Army), including but not limited to:
(i) Members on full-time active duty in a pay status, including—
(A) Members assigned to units performing active service.
(B) Members serving as ROTC instructors. (Does not include Junior ROTC instructors unless on active duty.)
(C) Members serving as National Guard instructors or advisors.
(D) Members on duty or in training with other Federal agencies, for example, Nuclear Regulatory Commission, National Aeronautics and Space Administration, Departments of Defense, State, Navy, or Air Force.
(E) Members assigned as students or ordered into training at a non-Federal civilian educational institution, hospital, factory, or other industry. This does not include members on excess leave.
(F) Members on full-time duty at nonappropriated fund activities.
(G) Members of the ARNG of the United States on active duty.
(ii) Members of reserve units during periods of inactive duty training and active duty training, including ROTC cadets who are reservists while they are at summer camp.
(iii) Members of the ARNG while engaged in training or duty under 32 U.S.C. 316, 502, 503, 504, or 505 for claims arising on or after 29 December 1981.
(2) Civilian officials and employees of both the DOD and the DA (there is no practical significance to the distinction between the terms “official” and “employee”) including but not limited to—
(i) Civil Service and other full-time employees of both DOD and DA paid from appropriated funds.
(ii) Contract surgeons (10 U.S.C. 1091, 4022) and consultants (10 U.S.C. 1091) where “control” is exercised over physician's day to day practice.
(iii) Employees of nonappropriated funds if the particular fund is an instrumentality of the United States and thus a Federal agency. In determining whether or not a particular fund is a “Federal agency,” consider whether the fund is an integral part of the DA charged with an essential DA operational function and the degree of control and supervision exercised by DA personnel. Members or users, as distinguished from employees of nonappropriated funds, are not considered Government employees. The same is true of family child care providers. However, claims arising out of the use of certain nonappropriated fund property or the acts or omissions of family child care providers, may be payable from such funds under chapter 12, AR 27-20, as a matter of policy, even when the user is not within the scope of employment and the claim is not otherwise cognizable under any other claims authorization.
(iv) Prisoners of war and interned enemy aliens.
(v) Civilian employees of the District of Columbia National Guard, including those paid under “service contracts” from District of Columbia funds.
(vi) Civilians serving as ROTC instructors paid from Federal funds.
(vii) National Guard technicians employed under 32 U.S.C. 709(a) for claims accruing on or after 1 January 1969 (Pub. L. 90-486, 13 August 1968; 82 Stat. 755).
(3) Persons acting in an official capacity for the DOD or the DA whether temporarily or permanently in the service of the United States with or without compensation including but not limited to—
(i) “Dollar a year” personnel.
(ii) Members of advisory committees, commissions, boards or the like.
(iii) Volunteer workers in an official capacity acting in furtherance of the business of the United States. The general rule with respect to volunteers is set forth in 31 U.S.C. 665(b), which provides that, “No officer or employee of the United States shall accept voluntary service for the United States or employ personal service in excess of that authorized by law, except in cases of emergency involving the safety of human life or the protection of property.” (5 U.S.C. 3111(c) specifically provides that student volunteers employed thereunder shall be considered Federal employees for purposes of claims under the FTCA. The same classification is applied by 10 U.S.C. 1588 to museum and family support program volunteers.) The DA is permitted to accept and use certain volunteer services in Army family support programs. (10 U.S.C. 1588).
(iv) Loaned servants. Employees who are permitted to serve another employer may be considered “loaned servants,” provided the borrowing employer has the power to discharge the employee, to control and direct the employee, and to decide how he will perform his tasks. Whoever has retained those powers is liable for the employee's torts under the principle of respondeat superior. Where those elements of direction and control have been found, the United States has been liable, for example, for the torts of Government employees loaned for medical training and emergency assistance, and county and state employees discharging Federal programs.
(e) “Scope of employment” means acting in “line of [military] duty” (28 U.S.C. 2671) and is determined in accordance with principles of respondeat superior under the law of the jurisdiction in which the act or omission occurred. Determination as to whether a person is within a category listed in paragraph (d)(3) of this section will usually be made together with the scope determination. Local law should always be researched, but the novel aspects of the military relationship should be kept in mind in making a scope determination.
(f) “Line of duty” determinations under AR 600-8-1 are not determinative of scope of employment. “Joint venture” situations are likely to be frequent where the Federal employee is performing federally assigned duties but is under actual direction and control of a non-Federal entity, for example, a Federal employee in training at a non-Federal entity or ROTC instructors at civilian institutions. This could also occur where the employee is working for another Federal agency. Furthermore, dual purpose situations are commonplace where benefits to the
(g)
(h)
(i)
(2)
(3)
(4)
(j)
(1) Claims for the personal injury or death of a member of the Armed Forces of the United States incurred incident to service, or for damage to a member's property incurred incident to service.
(i) The exception applies to members of the Army, Navy, Air Force, Marine Corps, and Coast Guard, including the Reserve Components of the Armed Forces. (See 10 U.S.C. 261.) The exception also applies to service members on the Temporary Disability Retired List, and on convalescent leave, to service academy cadets, to members of visiting forces in the United States under the SOFA between the parties to the North Atlantic Treaty Organization or similar international agreements, and to service members on the extended enlistment program.
(ii) The incident to service doctrine has been extended to derivative claims where the directly injured party is a service member. Third party indemnity claims are barred.
(2) Claims for the personal injury or death of a Government employee for whom benefits are provided by the Federal Employees Compensation Act (5 U.S.C. 8101-8150). Who is a government employee under the Act is defined in the Act itself (5 U.S.C. 8101), but is not limited to Federal Civil Service employees. The term “government employee” can include certain ROTC cadets (5 U.S.C. 8140) and state or local law enforcement officers engaged in apprehending a person for committing a crime against the United States (5 U.S.C. 8191), certain nurses, interns or other health care personnel, e.g., student nurses, etc. (5 U.S.C. 5351, 8144) and certain Army Community Service Volunteers (10 U.S.C. 1588). This Act provides that benefits paid under the Act are exclusive and instead of all other liability of the United States, including that under a Federal tort liability statute (5 U.S.C. 8116(c)). It extends to derivative claims, to subsequent malpractice for treatment of a covered injury, to injuries for which there is no scheduled compensation, and to employee harassment claims for which other remedies are available (42 U.S.C. 2000e). The exception does not bar third party indemnity claims. When there is doubt as to whether or not this exception applies, the claim should be forwarded through claims channels to the Commander, USARCS, for an opinion.
(3) Claims for the personal injury or death of an employee, including nonappropriated fund employees, for whom benefits are provided by the Longshoremen's and Harbor Workers’ Compensation Act (33 U.S.C. 901-950). An employee of a nonappropriated fund instrumentality is covered by that Act (5 U.S.C. 8171). This is the exclusive remedy for covered employees, similar to the exclusivity of the FECA.
(4) Claims for the personal injury or death of any employee for whom benefits are provided under any workmen's compensation law, if the premiums of the workmen's compensation insurance are retrospectively rated and charged as an allowable, allocable expense to a cost-type contract. If, in the opinion of an approval or settlement authority, the claim should be considered payable, for example, the injuries did not result from a normal risk of employment or adequate compensation is not payable under workmen's compensation laws, the file will be forwarded with recommendations through claims channels to the Commander, USARCS, who may authorize payment of an appropriate award.
(5) Claims for damage from or by flood or flood waters at any place. 33 U.S.C. 702c. This exception is broadly construed and includes multi-purpose projects and all phases of construction and operation.
(6) Claims based solely upon a theory of absolute liability or liability without fault. Either a “negligent” or “wrongful” act is required by the FTCA, and some type of malfeasance or nonfeasance is required.
(k)
(2)
(ii)
(3)
(ii) For statute of limitations purposes, a claim will be deemed to have been presented when the appropriate Federal agency as defined in § 536.3(m) receives from a claimant, his or her duly authorized agent, or legal representative an executed SF 95 or written notification of an incident, together with a claim for money damages, in a sum certain, for damage to or loss of property or personal injury or death. For Federal tort claims arising out of activities of the ARNG, receipt of a written claim by any fulltime officer or employee of the ARNG will be considered proper receipt.
(iii) A claim received by an official of the DOD will be transmitted without delay to the nearest Army claims processing office or area claims office. Inquiries concerning applicability of the statute of limitations to claims filed with the wrong Federal agency will be referred to USARCS for resolution.
(4)
(5)
(6)
(ii) If it is reasonably clear to the office acknowledging receipt that a claim filed under the FTCA is not cognizable thereunder; for example, it is a maritime claim under § 536.60, or it falls under §§ 536.20 through 536.35 or §§ 536.70 through 536.81, the acknowledgment will contain a statement advising the claimant of the statute under which his or her claim will be processed. If it is not clear which statute applies, a statement to that effect will be made, and the claimant will be promptly advised on his or her remedy when a decision is made. However, all potential maritime claims will be handled in accordance with § 536.5(h)(5).
(iii ) When a claim has been amended as set forth in § 536.5(f)(4), the amendment will be acknowledged in all cases. Additionally, the claimant will be informed that the amendment constitutes a new claim insofar as concerns the 6 months in which the DA is
(iv) When a claim is improperly presented, is incomplete or otherwise does not meet the requirements set forth in § 536.5(d), the claimant or his or her representative will be promptly informed in writing of the deficiencies and advised that a proper claim must be filed within the 2 year statute of limitations.
(7)
(8)
(ii) In a case where litigation is likely, or where this course of action is preferred by the claimant, and it appears to be a proper case for administrative settlement, the claimant will be advised as to the advantages of administrative settlement. If the claim is within the jurisdiction of a higher settlement authority, the claim will be discussed with such authority prior to the furnishing of such advice. The claimant should be familiarized with all aspects of administrative settlement procedures including the administrative channels through which his claim must be processed for approval. He or she may be advised that administrative processing can result in more expeditious processing, whereas litigation may take considerable time, particularly in jurisdictions with crowded dockets.
(iii) If appropriate, he or she may be informed that a tentative settlement can be reached for any amount above $25,000, subject to approval by the Attorney General. He or she should be advised that administrative filing of the claim protects him under the statute of limitations for purpose of litigation; suit can be filed within 6 months after the date of mailing of notice of final denial by the DA, thus potentially allowing negotiations to continue indefinitely. An attorney representing a claimant should be advised of the limitations on fees for purposes of administrative settlement (20 percent) and litigation (25 percent). The attorney may also be advised that there is no jury trial under the FTCA.
(9)
(ii) Upon final denial of a claim, or upon rejection by the claimant of a partial allowance, and further efforts to reach a settlement are not considered feasible (§ 536.5(h)(1)), the settlement authority will inform the claimant of the action on his claim by certified or registered mail. Notification will be made as set forth in § 536.11(b).
(iii) If a claim has been presented to the DA and, also, to other Federal agencies, without any notification to the DA of this fact, final action taken by the DA prior to that of any other agency is conclusive on a claim presented to other agencies, unless another agency decides to take further action to settle the claim. Such agency may treat the matter as a reconsideration under 28 CFR 14.9(b), unless suit has been filed. The foregoing applies likewise to DA claims in which another Federal Agency has already taken final action.
(iv) If, after final denial by another agency, a claim is filed with the DA, the new submission will not toll the 6 months limitation for filing suit, unless the DA treats the second submission as a request for reconsideration under paragraph (k)(9)(iv)(A) of this section.
(A
(
(
(
(B) [Reserved]
(a)
(b)
(c)
(1) Damage caused by a vessel of, or in the service of, the DA or by other property under the jurisdiction of the DA;
(2) Compensation for towage and salvage service, including contract salvage, rendered to a vessel of, or in the service of, the DA or to other property under the jurisdiction of the DA; or
(3) Damage caused by a maritime tort committed by any agent or employee of the DA or by property under the jurisdiction of the DA.
(d)
(e)
(1) Is for damage to, or loss or destruction of, property, or for personal injury or death, resulting directly or indirectly from action by the enemy, or by U.S. Armed Forces engaged in armed combat, or in immediate preparation for impending armed combat.
(2) Is for personal injury or death of a member of the Armed Forces of the United States or a civilian employee incurred incident to his service.
(3) Is for personal injury or death of a Government employee for whom benefits are provided by the FECA (5 U.S.C. 8101-8150).
(4) Is for personal injury or death of an employee, including nonappropriated fund employees, for whom benefits are provided by the Longshoremen's and Harbor Workers’ Compensation Act (44 Stat. 1424, 33 U.S.C. 901).
(5) Has been made the subject of a suit by or against the United States, except as provided in subparagraph (h)(2) of this section.
(6) Arises in a foreign country and was considered by the authorities of a foreign country and final action taken thereon under Article VIII of the NATO Status of Forces Agreement, Article XVIII of the Treaty of Mutual Cooperation and Security between the United States and Japan regarding facilities and areas and the Status of United States Armed Forces in Japan, or other similar treaty or agreement, if reasonable disposition was made of the claim.
(f)
(2) Claims which are within the scope of this section and also within the scope of the FCA (10 U.S.C. 2734) may be processed under that statute when specific authority to do so has been obtained from the Commander, USARCS. The request for such authority should be accompanied by a copy of the report of the incident by the Marine Casualty Investigating Officer, or other claims investigator.
(g)
(2) For the purpose of determining authority to settle or compromise a claim, the payable interests of an assurer (or assurers) and the assured represent merely separable interests, which interests in the aggregate must not exceed the amount authorized for administrative settlement or compromise.
(3) The policies set forth in paragraphs (g) (1) and (2) of this section with respect to subrogation arising from insurance contracts are applicable to all other types of subrogation.
(h)
(2) In the event that an action has been filed in a U.S. district court before the end of the 2-year statutory period, an administrative settlement may be negotiated by the Commander, USARCS, with the claimant, even though the 2-year period has elapsed since the cause of action accrued, provided the claimant obtains the written consent of the appropriate office of the Department of Justice charged with the defense of the complaint. Payment may be made upon dismissal of the complaint.
(3) When a claim under this section, notice of damage, invitation to a damage survey, or other written notice of
(4) When a claim under this section for less than $10,000 is presented to a Corps of Engineers office and thus may be appropriate for action by the Corps of Engineers pursuant to the delegation of authority set forth in paragraph (i)(2) of this section, the receiving Corps of Engineers office will promptly advise the claimant in writing of the comprehensive application of the time limit (unless such has already been done by USARCS).
(i)
(2) When a claim under this section arises from a civil works activity of the Corps of Engineers, engineer area claims offices are delegated authority to approve and pay in full, or in part, subject to the execution of an appropriate settlement agreement, claims presented for $10,000 or less, and compromise and pay claims regardless of the amount claimed, provided an award of $10,000 or less is accepted by the claimant in full satisfaction and final settlement of the claim, subject to such limitations as may be imposed by the Chief of Engineers. Meritorious claims arising from civil works activities of the Corps of Engineers will be paid from Corps of Engineers funds.
The statutory authority for this chapter is contained in the Act of 13 September 1960 (74 Stat. 878, 32 U.S.C. 715), commonly referred to as the National Guard Claims Act (NGCA), as amended by Public Law 90-486, 13 August 1968 (82 Stat. 756), Public Law 90-525, 26 September 1968 (82 Stat. 877), Public Law 91-312, 8 July 1970 (84 Stat. 412), and Public Law 93-336, 8 July 1974, (88 Stat. 291); and the Act of 8 September 1961 (75 Stat. 488, 10 U.S.C. 2736) as amended by Public Law 90-521, 26 September 1968 (82 Stat. 874), Public Law 97-124, 29 December 1981 (95 Stat. 1666), and Public Law 98-564, 30 October 1984 (98 Stat. 2918).
For purposes of §§ 536.70 to 536.81 the following terminology applies:
(a)
(b)
(a) Sections 536.70 through 536.81 apply in all places and set forth the procedures to be followed in the settlement and payment of claims for death, personal injury, or damage to or loss or destruction of property caused by members or employees of the ARNG, or arising out of the noncombat activities of the ARNG when engaged in training or duty under 32 U.S.C. 316, 502, 503, 504, 505, or 709, provided such claim is not for personal injury or death of a member of the Armed Forces or Coast Guard, or a civilian officer or employee
(b) A claimant dissatisfied with an administrative settlement under §§ 536.70 through 536.81 as the result of activities of the ARNG of a State, Commonwealth, or territory is not entitled to judicial relief in an action against the United States. Whether he or she has a legal cause of action or may file an administrative claim against such a political entity depends upon controlling local law.
(c) Claims arising out of activities of the ARNG when performing duties at the call of the governor of a State maintaining the unit are not cognizable under §§ 536.70 through 536.81 or any other law, regulation or appropriation available to the Army for the payment of claims. Such claims should be returned or referred to the authorities of the State for whatever action they choose to take, and claimants should be informed of the return or referral. Care should be taken to determine the status of the unit and members at the time the claims incident occurred, particularly in civil emergencies as units called by the governor are sometimes “federalized” during the call-up. If the unit was “federalized” at the time the claim incident occurred, the claim will be cognizable under §§ 536.20 through 536.35, 536.50, or 536.90 through 536.97 or other sections pertaining to the Active Army.
(a)
(b)
(c)
(d)
The type of claims listed in § 536.24 as not payable are also not payable under §§ 536.70 through 536.81.
Except where claims are regularly paid from State sources, for example, insurance, court of claims, legislative committee, etc., the appropriate adjutant general will ensure that each incident which may give rise to a claim cognizable under §§ 536.70 through 536.81 is reported immediately by the most expeditious means to the area claims office in whose geographic area the incident occurs or to a claims processing office designated by the area claims office. The report will contain the following information:
(a) Date of incident.
(b) Place of incident.
(c) Nature of incident.
(d) Names and organizations of ARNG personnel involved.
(e) Names of potential claimant(s).
(f) A brief description of any damage, loss, or destruction of private property, and any injuries or death of potential claimants.
Where there is a remedy against the State, as a result of either waiver of sovereign immunity or where there is liability insurance coverage, the following procedures apply:
(a) Where the State is insured, direct contact with State or ARNG officials rather than the insurer is desirable. Regular procedures will be established and followed wherever possible. Such procedures should be agreed on by both local authorities and the appropriate claims authorities subject to concurrence by the Commander, USARCS.
(b) If there is a remedy against the State or its insurer, the claimant may be advised of that remedy. If the payment by the State or its insurer does not fully compensate claimant, an additional payment may be made under §§ 536.70 through 536.81. If liability is clear and claimant settles with the State or its insurer for less than the maximum amount recoverable, the difference between the maximum amount recoverable from the State or its insurer and the settlement normally will be also deducted from the payment by the United States.
(c) If the State or its insurer desires to pay less than their maximum jurisdiction or policy limit on a basis of 50 percent or more of the actual value of the entire claim, any payment made by the United States must be made directly to the claimant. This can be accomplished by either having the United States pay the entire claim and have the State or its insurer reimburse its portion to the United States, or by having each party pay its agreed share directly to the claimant. If the State or its insurer desires to pay less than 50 percent of the actual value of the claim, the procedure set forth in paragraph (d) of this section will be followed.
(d) If there is a remedy against the State and the State refuses to make payment, or there is insurance coverage and the claimant has filed an administrative claim against the United States, forward file with a memorandum of opinion to the Commander, USARCS, including information as to the status of any judicial or administrative action the claimant has taken against the State or its insurer. The Commander, USARCS, will determine whether the claimant will be required to exhaust his remedy against the State or its insurer, or whether the claim against the United States can be settled without such requirement. If the Commander, USARCS, determines to follow the latter course of action, he will also determine whether an assignment of the claim against the State or its insurer will be obtained and whether recovery action will be taken. The State or its insurer will be given appropriate notification in accordance with State law necessary to obtain contribution of indemnification.
The procedures set forth in § 536.9(f) are applicable. With respect to claims arising before 29 December 1981, an ARNG driver acting pursuant to the authorities cited in § 536.73(a) is not protected by the provisions of the Drivers Act (28 U.S.C. 2670(b)) and the driver may be sued individually in State court. When this situation occurs, it should be monitored closely by ARNG authorities. If possible an early determination will be made as to whether any private insurance of the ARNG tortfeasor is applicable. Where such insurance is applicable and the claim against the United States is of doubtful validity, final actions will be withheld pending resolution of the demand against the ARNG tortfeasor. If, in the opinion of the claims approving or settlement authority, such insurance is applicable and the claim against the United States is payable in full or in a reduced amount, settlement efforts will be made either together with the insurer or singly by the United States. Any settlement will not include amounts recovered or recoverable as in § 536.9. If the insurance is not applicable, settlement or disapproval action will proceed without further delay.
A claim may be settled under §§ 536.70 through 536.81 only if presented in writing within 2 years after it accrues, except that if it accrues in time of war or armed conflict, or if war or armed conflict intervenes within 2 years after it
A claim must be presented to the appropriate Federal agency. Receipt of a written claim by any full time officer or employee of the National Guard will be considered receipt. However, the statute of limitations is tolled if a claim is filed with a State agency, the claim purports to be under the NGCA and it is forwarded to the Army within 6 months, or the claimant makes inquiry of the Army concerning the claim within 6 months. If a claim is received by a DA official who is not a claims approval or settlement authority, the claim will be transmitted without delay to the nearest approval or settlement authority.
(a) The form of a claim under §§ 536.70 through 536.81 will be as described in § 536.5 (d) and (e).
(b) So far as they are not inconsistent with §§ 536.70 through 536.81, the guidance set forth in §§ 536.10 through 536.12 will be followed in processing a claim under §§ 536.70 through 536.81.
(c) The following provisions are applicable to claims under §§ 536.70 through 536.81 and are hereby incorporated by reference:
(1) § 536.28 (applicable law);
(2) § 536.29 (determination of quantum);
(3) § 536.31 (claims over $100,000);
(4) § 536.32 (settlement procedures);
(5) § 536.33 (attorney fees).
Procedures concerning settlement agreements will be in accordance with § 536.10, except that the agreement will be modified to include a State and its National Guard in most cases. A copy of the agreement will be furnished to State authorities and the individual tortfeasor.
The statutory authority for §§ 536.90 through 536.97 is contained in the act of 9 October 1962 (76 Stat. 767, 10 U.S.C. 2737). This statute is commonly called the “Nonscope Claims Act.” For the purposes of §§ 536.90 through 536.97, a Government installation is a facility having fixed boundaries owned or controlled by the Government, and a vehicle includes every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land (1 U.S.C. 4).
(a) Sections 536.90 through 536.97 prescribe the substantive bases and special procedural requirements for the administrative settlement and payment, in an amount not more than $1,000, of any claim against the United States not cognizable under any other provision of law for damage to or loss of property, or for personal injury or death, caused by military personnel or civilian employees of the DA or by civilian employees of the DoD incident to the use of a United States vehicle at any place or incident to the use of other United States property on a Government installation.
(b) Any claim in which there appears to be a disputed issue relating to whether the employee was acting within the scope of employment will be considered under §§ 536.20 through 536.35, § 536.50, or §§ 536.70 through 536.81 as applicable. Only when all parties, to include an insurer, agree that there is no “in scope” issue will §§ 536.90 through 536.97 be used.
(a)
(1) Caused by the act or omission, negligent, wrongful, or otherwise involving fault, of military personnel of the DA or the ARNG, or civilian employees of the DA or the ARNG—
(i) Incident to the use of a vehicle of the United States at any place.
(ii) Incident to the use of any other property of the United States on a Government installation.
(2) The claim may not be settled under any other claims statute and claims regulation available to the DA for the administrative settlement of claims.
(3) The claim has been determined to be meritorious, and the approval or settlement authority has obtained a settlement agreement in an amount not in excess of $1,000 in full satisfaction of the claim prior to approval of the claim for payment.
(b)
(c)
A claim is not allowable under §§ 536.90 through 536.97 that—
(a) Results wholly or partly from the negligent or wrongful act of the claimant, his or her agent or employee. The doctrine of comparative negligence is not applicable.
(b) Is for medical, hospital, and burial expenses furnished or paid by the United States.
(c) Is for any element of damage pertaining to personal injuries or death other than provided in § 536.92(b). All other items of damage, for example, compensation for loss of earnings and services, diminution of earning capacity, anticipated medical expenses, physical disfigurement, and pain and suffering, are not payable.
(d) Is for loss of use of property or for the cost of a substitute property, for example, a rental.
(e) Is legally recoverable by the claimant under an indemnifying law or indemnity contract. If the claim is legally recoverable in part, that part recoverable by the claimant is not payable.
(f) Is a subrogated claim.
A claim may be settled under §§ 536.90 through 536.97 only if it is presented in writing within 2 years after it accrues.
So far as not inconsistent with §§ 536.90 through 536.97, the procedures for the investigation and processing of claims contained in §§ 536.1 through 536.13 will be followed.
A claim may not be paid under §§ 536.90 through 536.97 unless the amount tendered is accepted by the claimant in full satisfaction. A settlement agreement (§ 536.10) is required before payment.
(a) An approval or settlement authority may reconsider the quantum of a claim upon request of the claimant or someone acting in his behalf. In the absence of such a request, an approval or settlement authority may on his own initiative reconsider the quantum of a claim. Reconsideration may occur even in a claim which was previously disapproved in whole or in part (even though a settlement agreement has been executed) when it appears that his or her original action was incorrect in law or fact based on the evidence of record at the time of the action or subsequently received. If he or she determines that the original action was incorrect, he or she will modify the action and, if appropriate, make a supplemental payment. If the original action is determined correct, the claimant will be so notified. The basis for either action will be stated in a memorandum included in the file.
(b) An approval or settlement authority may reconsider the applicability of §§ 536.90 through 536.97 to a claim upon request of the claimant or someone acting in his behalf, or on his own initiative. Such reconsideration may
(c) A successor or higher approval or settlement authority may also reconsider the original action on a claim as in paragraph (a) or (b) of this section, but only on the basis of fraud substantial new evidence, errors in calculation or mistake (misinterpretation) of law.
(d) A request for reconsideration should indicate fully the legal or factual basis asserted as grounds for relief.
10 U.S.C. 3012; sections 537.21 through 537.24 issued under 42 U.S.C. 2651-2653;
(a)
(b)
(i) Property under the control of the DA.
(ii) Property of the Defense Logistics Agency in the custody of the DA.
(iii) Property of nonappropriated funds of the DA (except Army and Air Force Exchange Service property unless a special agreement exists). See AR 215-1 and AR 215-2.
(iv) Federal property made available to the Army National Guard (ARNG).
(2) This section does not apply to—
(i) Claims arising from marine casualties.
(ii) Claims for damage to property funded by civil functions appropriations.
(iii) Claims for damage to property of the DA and Air Force Exchange Service.
(iv) Reimbursements from agencies and instrumentalities of the United States for damage to property.
(v) Collection for damage to property by offset against the pay of employees of the United States, or against amounts owed by the United States to common carriers, contractors, and States.
(vi) Claims by the United States against carriers, warehousemen, insurers, and other third parties for amounts paid in settlement of claims by members and employees of the Army, or the Department of Defense (DOD), for loss, damage, or destruction of personal property while in transit or storage at Government expense.
(3) The commander of a major overseas command, as defined in paragraph (c)(5) of this section, is authorized to establish procedures for the processing of claims in favor of the United States for loss, damage, or destruction of property which may, to the extent deemed necessary, modify the procedures prescribed herein. Two copies of all implementing directives will be furnished Commander, U.S. Army Claims Service (USARCS). Procedures will be prescribed—
(i) To carry out the provisions of DOD Directive No. 5515.8, assigning single service claims responsibility.
(ii) To carry out provisions of treaties and other international agreements which limit or provide special methods for the recovery of claims in favor of the United States.
(c)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(d)
(e)
(f)
(2) To the extent that the prospective defendant's liability is covered by insurance, liability will be determined without regard to standards of pecuniary liability set forth in other regulations. If no insurance is available, claims will be asserted under this section against military and civilian employees of the United States and of host foreign governments only where necessary to complete the collection of charges imposed upon such persons under the standards established by other regulations.
(g)
(2) If the incident giving rise to a claim in favor of the United States also gives rise to a potential claim or suit against the United States, the claim in favor of the Government will be asserted and otherwise processed only by an RJA who has apparent authority to take final action on the claim against the Government.
(h)
(i)
(1) An Area Claims Office, as defined in paragraph (c)(6) of this section, is authorized to:
(i) Compromise claims, provided the compromise does not reduce the claim by more than $10,000.
(ii) Terminate collection action, provided the uncollected amount of claim does not exceed $10,000.
(2) The SJA, or if so designated, the chief of the Command Claims Service of a major overseas command, as defined in paragraph (c)(5) of this section, is authorized to:
(i) Compromise claims, not over $20,000 without monetary limitations.
(ii) Terminate collection action, provided the uncollected amount of the claim does not exceed $20,000.
(j)
(2) The authority delegated in paragraph (j) of this section to terminate collection action will be exercised in accordance with the standards set forth in 4 CFR part 104.
(3) A debtor's liability to the United States arising from a particular incident shall be considered as a single claim in determining whether the claim is not more than $20,000, exclusive of interest, penalties and administrative fees for the purpose of compromise, or termination of collection action.
(4) Only the Department of Justice may approve claims involving:
(i) Compromise or waiver of a claim asserted for more than $20,000 exclusive of interest, penalties and administrative fees.
(ii) Settlement actions previously referred to the Department.
(iii) Settlement where a third party files suit against the United States or the individual federal tortfeaser arising but of the same incident.
(k)
(l)
Whenever information is received that any property belonging to the military service of the United States is unlawfully in the possession of any person not in the military service, the procedures contained in AR 735-11, Para. 3-15, Unit Supply UPDATE 10, should be followed.
See 32 CFR 536.60, which covers claims on behalf of the United States as well as claims against the United States.
(a)
(b)
(c)
(2) Section 4804 of title 10, U.S.C., for the settlement or compromise of claims in any amount for salvage services (including contract salvage and towage) performed by the DA for any vessel. The amounts of claims for salvage services are based upon per diem rates for the use of salvage vessels and other equipment; and materials and equipment damaged or lost during the salvage operation. The sum claimed is intended to compensate the United States for operational costs only, reserving, however, the right of the Government to assert a claim on a salvage bonus basis, in accordance with commercial practice, in an appropriate case.
(d)
(e)
(f)
(g)
(a)
(b)
(i) And which are the responsibility of an SJA or JA who is designated an RJA will be processed under §§ 537.21 through 537.24;
(ii) And which are the responsibility of an SJA or JA not so designated will be processed under the predecessor regulation until either completed or transferred.
(2) The procedures prescribed herein are to be employed within the DA for the investigation, determination, assertion, and collection, including compromise and waiver, in whole or in part, of claims in favor of the United States for the reasonable value of medical services furnished by or at the expense of DA. TJAG provides general supervision and control of the investigation and assertion of claims arising under the Federal Medical Care Recovery Act.
(3) In Continental U.S., Army SJA's and RJA's will be assigned responsibility under §§ 537.21 through 537.24 on a geographical area basis.
(4) The commander of any major overseas command specified in paragraph (c)(5) of this section is authorized to modify the procedures prescribed herein to accommodate any special circumstances which may exist in the command.
(5) Claims for medical care furnished by the DA on a reimbursable basis (see table 1, AR 40-3) ordinarily will be forwarded for processing directly to the Federal department or agency responsible for reimbursement.
(c)
(1)
(2)
(3)
(4)
(5)
(6)
(a)
(2)
(3)
(b)
(2)
(3)
(4)
(5)
(c)
(2)
(a)
(i) That under the Act of September 25, 1962 (76 Stat. 593, 42 U.S.C. 2651-3, the United States may be entitled to recover the reasonable value of medical care furnished or to be furnished him in the future from the person or persons who injured him, or who were otherwise responsible for his injury or disease; and
(ii) That if he is otherwise entitled to legal assistance under AR 27-3, he should seek guidance from a legal assistance officer regarding any claim he may have for personal injury; and
(iii) That he is required to cooperate in the prosecution of all actions of the United States against the person or persons who injured him; and
(iv) That he is required to furnish a complete statement regarding the facts and circumstances surrounding the incident which resulted in the injury or disease; and
(v) That he is required to furnish information concerning any legal action brought or to be brought by or against the prospective defendant, or to furnish the name and address of the attorney representing him; and
(vi) That he should not execute a release or settle any claim which he may have as a result of his injury without first notifying the RJA.
(2)
(b)
(2)
(3)
(a)
(2) Attorneys representing an injured party may be authorized to assert the claim on behalf of the government as an item of special damages with the injured party's claim or suit except where prohibited by law. Any agreement to this effect will be in writing, and the agreement should expressly recognize the fact that counsel fees may be neither paid by the Government (5 U.S.C. 3106) nor computed on the basis of the Government's portion of the recovery. The agreement must also require the Government's permission to settle its claim.
(3) If the injured party, denies or his attorney or legal representative, fails or refuses to cooperate in the prosecution of the claim of the United States, independent collection action will be vigorously pursued.
(b)
(c)
(1) Compromise claims, provided the compromise does not reduce the claim by more than $15,000 in any claim not asserted for more than $25,000; and
(2) Waive claims for the convenience of the Government (but not on account of undue hardship upon the injured party) provided the uncollected amount of the claim does not exceed $15,000 in any claim not asserted for more than $25,000; and
(3) Redelegation in an amount not to exceed $5,000 compromise authority to any claim processing office with approval authority is permitted.
(d)
(2)
(ii) If appropriate, a request by the injured party or his attorney for waiver on the ground of undue hardship may be treated initially as a suggestion for compromise with the tortfeasor, and the compromised amount of the claim of the United States will be determined. In such cases, RJA's may make offers of compromise within their delegated authority. RJA's may also make counteroffers within their delegated authority to offers of compromise beyond their delegated authority. If settlement within the limits of delegated authority is not achieved, the claim will be referred to higher authority.
(iii) When time is a factor, SJA or major overseas command staff JA's may make telephonic delegation within their compromise authority on a case by case basis. When such verbal delegations are made, they will be confirmed in writing and the writing included in the case file.
(3)
(ii) If the injured party or his attorney requests waiver of the full or any compromised amount of the claim on the ground of undue hardship, and the request may not be appropriately treated under paragraph (d)(2)(ii) of this section, the file will be forwarded to appropriate major overseas command claims authority or Commander, USARCS. For the purpose of evaluation of the request for waiver, the file will include detailed information concerning the reasonable value of the injured party's claim for permanent injury, pain and suffering, decreasing earning power, and other items of special damages, pension rights, and other Government benefits accruing to the injured party; and the present and prospective assets, income, and obligations of the injured party, and those dependent on him.
(iii) In the event an affirmative determination is made by TJAG that, as a result of the collection of the Government's claim the injured party has suffered an undue hardship, the RJA will be authorized to direct issuance of the amount waived to the injured party.
(4) A file forwarded to higher authority for waiver of compromise consideration will contain a memorandum by the RJA giving his assessment of the case and his recommendation with regard to the approval or denial of the requested compromise or waiver.
(e)
(2) Settlement actions previously referred to the Department,
(3) Settlement where a third party files suit against the United States on the injured party arising out of the same incident.
Sec. 3, 58 Stat. 821, as amended; 31 U.S.C. 492c.
(a)
(1) United States Treasury checks (standard dollar checks) drawn on the Treasurer of the United States by authorized finance and accounting officers.
(2) Travelers’ checks issued by the American Express Company; Bank of America, National Trust and Savings Association; Mellon National Bank and Trust Company; Citibank of New York; Thomas Cook and Son (Bankers) Ltd.; and the First National Bank of Chicago, when expressed in United States dollars.
(3) United States military disbursing officers’ payment orders.
(4) American Express Company money orders, when expressed in United States dollars, and United States postal money orders.
(5) Telegraphic money orders, when expressed in United States dollars.
(b)
(c)
(a)
(b)
(c)
(1) Army, Navy, and Air Force sales and services installations and activities.
(2) Theaters and other entertainment facilities operated by Department of Defense.
(3) Officers’ and enlisted personnel messes and clubs, including American Red Cross installations.
(4) Army, Navy, and Air Force postal installations for purchase of postal money orders and stamps, and cashing of postal money orders.
(5) Contribution to all authorized charitable appeals, church collections, and chaplain's funds when remittance is to be forwarded to the United States through Department of Defense channels.
(6) Payments to all travel agencies, radio, cable, telegraph, and telephone companies, and all other similar facilities when remittance is to be forwarded to the United States through Department of Defense channels.
(7) All other official agencies, quasi-official and private agencies of or working in behalf of United States Army Forces providing goods, services, and facilities to members of the United States Armed Forces.
(a)
(b)
(c)
(d)
(a)
(1) Upon departure for the United States.
(2) When traveling under competent orders to areas where military payment certificates are not designated for use.
(3) When traveling under competent orders to military payment certificate areas where finance and accounting officers, Class “B” Agent Officers, including military attache agent officers, or exchange facilities are not readily available to the traveler.
(b) The provisions of this section will not be construed as authorizing finance and accounting officers or their agents in areas outside of military payment certificate areas to convert military payment certificates for authorized personnel returning from MPC areas. Such exchange must be made prior to departure from the MPC area.
(c)
(d)
(a)
(b)
(c)
Claims for conversion of military payment certificates, as well as claims arising out of the refusal of the overseas command to convert military payment certificates, will be referred to the U.S. Army Finance and Accounting Center, ATTN: FINCY-D, Indianapolis, Indiana 46249. The U.S. Army Finance and Accounting Center will adjudicate and make final determination on all claims.
10 U.S.C. 2031 and 4651.
This regulation prescribes policies for administering the Junior Reserve Officers’ Training Corps (JROTC) and the National Defense Cadet Corps (NDCC).
This regulation applies to the Department of the Army (including the corps and their units), schools, and personnel associated with applying for these programs.
The following terms apply to the JROTC and NDCC programs:
(a)
(1) To describe all JROTC training conducted at secondary schools.
(2) To denote the members, instruction, and other related matters.
(b)
(c)
(d)
(e)
(1) US Army First ROTC Region, Fort Bragg, NC 28307.
(2) US Army Second ROTC Region, Fort Knox, KY 40121.
(3) US Army Third ROTC Region, Fort Riley, KS 66442.
(4) US Army Fourth ROTC Region, Fort Lewis, WA 98433.
(5) The Commander-in-Chief, US Army Europe and Seventh Army, APO New York 09102.
The Army JROTC/NDCC objectives are to develop in each cadet—
(a) Good citizenship and partiotism.
(b) Self-reliance, leadership, and responsiveness to constituted authority.
(c) The ability to communicate well both orally and in writing.
(d) An appreciation of the importance of physical fitness.
(e) A respect for the role of the US Army in support of national objectives.
(f) A knowledge of basic military skills.
(a) The Junior Reserve Officers’ Training Corps and the National Defense Cadet Corps programs are designed for physically fit citizens attending participating schools. They provide meaningful leadership instruction of benefit to the student and of value to the Armed Forces. The programs provide unique educational opportunities for young citizens through their participation in a Federally-sponsored course while pursuing a normal civilian education. Students will acquire:
(1) An understanding of the fundamental concept of leadership, military art and science,
(2) An introduction to related professional knowledge, and
(3) An appreciation of requirements for national security. The dual roles of citizen/soldier and soldier/citizen are studied.
(b) Participants in either of the programs will acquire relevant knowledge and develop personally. Schools conducting these programs will offer their students the challenge of intellectual inquiry under the direction of instructors who are experienced leaders. (JROTC instructors are active duty or retired members of the US Army. NDCC schools may employ retired or Reserve members.) These programs provide an atmosphere designed to develop the qualities of leadership. Through classroom and other activities, the students will acquire the knowledge, self-discipline, patriotism, sense of responsibility, and responsiveness to constituted authority which will better prepare them for the future. These programs will enable cadets to better serve their country as leaders, as citizens, and in military service should they enter it.
(c) The programs were set up as part of the National Defense Act of 1916. The principle of maintaining national programs of training for the young citizens attending school was validated during congressional hearings preceding passage of the ROTC Vitalization Act of 1964. The JROTC and NDCC are not, of themselves, officer-producing programs but should create favorable attitudes and impressions toward the Services and toward careers in the Armed Forces. JROTC/NDCC cadets may qualify for an advantageous position in the Senior ROTC and for a higher pay grade upon enlistment in a Regular or Reserve component of the Armed Forces.
(d) Participation in JROTC/NDCC does not obligate the student to perform military or any other Federal service. Although all qualified students of JROTC/NDCC host schools are encouraged to take part in these programs, they are not required by Federal law to do so. State, community, or school authorities decree whether students must be in the programs.
(a)
(b)
(c)
(a) The JROTC/NDCC is organized into units at public and private secondary schools. The NDCC differs from the JROTC in that NDCC instructors must be provided by the school. Although these instructors are subject to Army approval, there is no cost-sharing arrangement as exists for JROTC. Also schools or students must provide uniforms, if desired, in the NDCC program. Schools desiring to conduct either program must apply to the region commander of the area in which the school is located. To participate in the program a school must maintain an enrollment in the unit of at least one hundred physically fit students who are at least 14 years of age and meet one of the following accreditation standards:
(1) Be accredited by a nationally recognized accrediting agency.
(2) Be accredited by a State, State educational agency, or State university.
(3) Have attained a preaccreditable status of reasonable assurance subject to attainment and maintenance of a status listed above within 5 years of initial academic enrollment of students.
(b) Students who desire to enroll and continue as a member of the JROTC/NDCC program must:
(1) Be enrolled in and attending full-time a regular course of instruction at a JROTC/NDCC institution.
(2) Be a citizen of the United States.
(3) Be at least 14 years of age.
(4) Meet the physical fitness standards prescribed by the school.
5 U.S.C. 301; 10 U.S.C. 3012, 15 U.S.C. 1601; 18 U.S.C. 1382; 31 U.S.C. 71; 40 U.S.C. 258a; 41 U.S.C. 14; 50 U.S.C. 797.
(a)
(b)
(1) Rent and payments for janitor, custodial, utility, and other similar contractual services.
(2) Damages founded upon express or implied contract.
(3) Permanent or recurring damages to real property situated in the United States or its territories, resulting in the Government taking of an interest in real estate for which compensation must be made according to the Fifth Amendment to the Constitution.
(c)
(1) Through the audit of transactions after payment.
(2) By adjudication before payment is made or denied.
(d)
(1) Damages to real property sounding in tort and not constituting a taking.
(2) Damages arising in foreign countries which could not be settled under chapter 10, AR 27-20, if otherwise applicable, because they—
(i) Result from combat activities.
(ii) Are waived or assumed by a foreign government.
(iii) Are brought by a foreign national excluded in paragraph 10-8b(1), AR 27-20.
(3) Claims which must be settled by some other procedure according to statute, determination of GAO, or provision in the contract on which the claim is founded.
(e)
(f)
(i) Chapter 3, AR 27-20 as a claim for damages incident to noncombat activities of the Army.
(ii) Chapter 10, AR 27-20 as a foreign claim.
(2) If a real estate claim under this regulation includes an incidental claim for damages to personal property not founded on contract, the entire claim may be—
(i) Processed under this regulation.
(ii) Processed separately under other regulations, believed to be in the best interest of the Government.
(g)
(1) Claims involving doubtful questions of law or fact. This will include any claims based upon a taking and contractual claims which could be settled administratively except for the doubt.
(2) Claims required by statute, regulation, or decision of the Comptroller General to be submitted.
(3) Reclaims of items for which payment under contract has been administratively denied, unless it is determined administratively that the action taken was clearly in error and properly can be corrected by the agency which denied the claim.
(4) Claims barred by statute of limitation. These claims may be forwarded without investigation, except when needed to establish time of accrual.
(h)
(i)
(2) The responsible office—
(i) Will appoint a claims officer to conduct the investigation and prepare the report as outlined in AR 27-20.
(ii) When appropriate, may request a command more conveniently located to appoint the claims officer.
(iii) Will have a staff attorney or staff judge advocate review the completed report.
(iv) Will approve or disapprove the report.
(v) Will forward the report (in three copies) through channels to the Chief of Engineers (HQDA DAEN-REM) WASH DC 20314).
(3) The report will include—
(i) The original signed claim, preferably but not necessarily on Standard Form 95 (Claim for Damage or Injury). It will be itemized when applicable, and for a sum certain.
(ii) Any supporting evidence the claimant desires to submit.
(iii) A certified voucher, stating the citation of funds to be charged if the responsible office submitting the claim recommends payment in whole or in part.
(4) The letter of transmittal will include—
(i) A brief statement of the essential facts giving rise to the claim.
(ii) The category in paragraph (g) under which the claim is forwarded for settlement by GAO under 31 U.S. Code 71.
(iii) A recommendation for allowance or disallowance with justification.
(iv) Fiscal information required by paragraph 11-51, AR 37-103, including a citation of funds to be charged if payment is made.
(v) A statement that the claim has not been and will not be paid except according to certification in the name of the Comptroller General.
(a)
(b)
(c)
(d)
(e)
(f)
(1) The installation commander may direct authorized guard personnel, while in the performance of assigned duty, to search persons (including military personnel, employees, and visitors), and their possessions (including vehicles) when entering, during their stay, or when leaving facilities for which the Army has responsibility. These searches are authorized when based on probable cause that an offense has been committed or on military necessity. Instructions of commanders regarding searches should be specific and complete. When the person to be searched is a commissioned officer, or a warrant officer, the search should be conducted in private by or under the supervision of a commissioned officer, unless such is precluded by the exigencies of the situation. When the person to be searched is a noncommissioned officer, the search should be conducted in private by or under the supervision of a person of at least equal grade, unless such is precluded by the exigencies of the situation. If the situation precludes search by or under the supervision of an officer (or noncommissioned officer, as appropriate), the person conducting the search will notify a responsible commissioned officer (or noncommissioned officer, as appropriate), as soon as possible. Persons who are entering the installation should not be searched over their objection, but they may be denied the right of entry if they refuse to consent to the search. All persons entering facilities should be advised in advance (by a prominently displayed sign, AR 420-70, (Buildings and Structures)), that they are liable to search when entering the installation, while within the confines of the installation, or when leaving (AR 190-22, Search, Seizure and Disposition of Property). A copy of the above documents may be obtained by writing to headquarters, Department of the Army (DAAG-PAP-W), Washington, DC 20314.
(2) The installation commander may authorize and control hunting and fishing on a military installation under installation rules in accordance with applicable Federal, State, and local laws and Army regulations, and in harmony with cooperative plans with appropriate State and Federal conservation agencies (AR 420-74, Natural Resources—Land, Forest, and Wildlife Management). To detect violations of these rules, special guards may be posted and authorized to search persons (or possessions, including vehicles of individuals), based on military necessity. The installation commander may eject violators of game laws or post regulations and prohibit their reentry under 18 U.S.C. 1382. Violations of State laws which apply to military reservations according to the provisions of section 13, title 18, U.S.C. (Assimilative Crimes Acts), may be referred to the United States Magistrate in accordance with AR 190-29, Minor Offenses and Uniform Violation Notices—Referred to United States District Courts. Reports of violations of game laws will be reported to Federal or State authorities. An installation commander may not require membership in a voluntary sundry fund activity as a prerequisite to hunting
(3) When the installation commander considers that the circumstances warrant its use, DA Form 1818 (Individual Property Pass), will be used to authorize military and civilian personnel to carry Government or personal property onto an installation or to remove it from an installation.
(4) Commanders will establish procedures to ensure than when blind persons are otherwise authorized to enter military facilities, their accompanying seeing-eye or guide dogs will not be denied entry. Such facilities include, but are not limited to: Cafeterias, snack bars, AAFES exchanges, retail food sales stores, medical treatment facilities, and recreational facilities. Seeing-eye or guide dogs will remain in guiding harness or on leash and under control of their blind masters at all times while in the facility. For purposes of safety and to prevent possible agitation of military police working dogs, seeing-eye or guide dogs will not be allowed in or around working dog kennels and facilities.
(g)
(h)
(i)
(1) The installation commander will give preference to blind persons when granting permission to civilians to operate vending stands on installations where stands may be operated properly and satisfactorily by blind persons licensed by a State agency. Legal authority for such action is contained in the Randolph-Sheppard Vending Stand Act (20 U.S.C. 2-107
(i) Existing security measures relative to location of the vending stand or to the clearance of the blind operator cannot be followed.
(ii) Vending stand standards relating to appearance, safety, sanitation, and efficient operation cannot be met.
(iii) For any other reasons which would adversely affect the interests of the United States or would unduly inconvenience the Department of the Army. Issuance of such a permit will not be denied because of loss of revenue caused by granting a rent-free permit for operating a vending stand to a blind person. However, the permit will not be granted if in the opinion of the responsible commander such action would reduce revenue below the point necessary for maintaining an adequate morale and recreation program. The commander should consider the fact that funds derived from certain nonappropriated fund activities such as post exchanges, motion picture theaters, and post restaurants are used to
(2) The preference established in paragraph (i)(1) of this section will be protected from the unfair or unreasonable competition of vending machines. No vending machine will be located within reasonable proximity of a vending stand that is operated by a licensed blind person if the vending machine vends articles of the same type sold at the stand, unless local needs require the placement of such a machine. If such is the case, the operation of, and income from the machine, will be assumed by the blind vending stand operator.
(3) So far as is practicable, goods sold at vending stands that are operated by the blind will consist of newspapers, periodicals, confections, tobacco products, articles that are dispensed automatically or are in containers or wrappings in which they were placed before they were received by the vending stand, and other suitable articles that may be approved by the installation commander for each vending stand location.
(4) If the commanders and State licensing agencies fail to reach an agreement on the granting of a permit for a vending stand, the revocation or modification of a permit, the suitability of the stand location, the assignment of vending machine proceeds, the methods of operation of the stand, or other terms of the permit (including articles which may be sold), the State licensing agency may appeal the disagreement, through channels, to the Secretary of the Army. Appeals will be filed by State licensing agencies with the installation commander who will conduct a complete investigation and will give the State licensing agency an opportunity to present information. The report of investigation with the appeal will be forwarded through channels to Headquarters, Department of the Army (DAPE-ZA), Washington, DC 20310, as soon as possible. A final decision by the Secretary of the Army will be rendered within 90 days of the filing of the appeal to the installation commander. Notification of the decision on the appeal and the action taken will be reported to the State licensing agency, the Department of Health, Education, and Welfare, and the Department of Defense (Manpower, Reserve Affairs, and Logistics).
(j) [Reserved]
(k)
(i) The presence and activities of the labor representatives will not interfere with the progress of the contract work involved; and
(ii) The entry of the representatives to the installation will not violate pertinent safety or security regulations.
(2) Labor representatives are not authorized to engage in organizing activities, collective bargaining discussions, or other matters not directly connected with the Government contract on military installations. However, the installation commander may authorize labor representatives to enter the installation to distribute organizational literature and authorization cards to employees of private contractors, provided such distribution does not—
(i) Occur in working areas or during working times;
(ii) Interfere with contract performance;
(iii) Interfere with the efficient operation of the installation; or
(iv) Violate pertinent safety or security considerations.
(3) The determination as to who is an appropriate labor representative should be made by the installation commander after consulting with his/her labor counselor or judge advocate. Nothing in this regulation, however, will be construed to prohibit private contractors’ employees from distibuting organizational literature or authorization cards on installation property if such activity does not violate the conditions enumerated in
(4) Only the installation commander or a contracting officer can deny entry to a labor representative who seeks permission to enter the installation in accordance with paragraph (k) of this section. If a labor representative is denied entry for any reason, such denial will be reported to the Labor Advisor, Office of the Assistant Secretary of the Army (IL&FM), Washington, DC 20310. This report will include the reasons for denial, including—
(5) The provisions of paragraphs (k), (1), (2), (3), and (4) of this section on organizations representing private contractors’ employees should be distinguished from activities involving organization and representation of Federal civilian employees. See CPR 711 for the functions, duties and obligations of an installation commander regarding Federal civilian employee unions.
(l)
(m)
(2) Installation commander will cooperate fully with state or other governmental officials who bring to their attention complaints that children are employed on military installations or reservations under conditions that are detrimental to their health, safety, education, and well-being.
(n)
(o)
All permits to hunt, catch, trap, or kill any kind of game animal, game or nongame bird, or to fish on a military reservation or the waters thereof will be issued by the commanding officer.
(a)
(2) These procedures have been established to prevent the interruption of the use of these Army training areas by any person or persons. The continued and uninterrupted use of these training areas by the military is vital in order to maintain and to improve the combat readiness of the U.S. Armed Forces. In addition, conditions exist within these training areas which could be dangerous to any unauthorized persons who enter these areas.
(b)
(c)
(1) Executive Order No. 11166 of 15 August 1964. (3 CFR, 1964-1965 Comp., pp 219-220).
(2) Executive Order No. 11167 of 15 August 1964. (3 CFR, 1964-1965 Comp., pp 220-222).
(3) Title 18, United States Code, section 1382.
(4) Internal Security Act of 1950, section 21 (50 U.S.C. 797).
(d)
(1) Makua Valley, Waianae, Oahu, Hawaii: That area reserved for military use by Executive Order No. 11166 (paragraph (c)(1) of this section).
(2) Pohakuloa Training Area, Hawaii: That area reserved for military use by Executive Order No. 11167 (paragraph (c)(2) of this section).
(e)
(2) Any person or group of persons desiring the advance consent of the Commander, United States Army Support Command, Hawaii, shall, in writing, submit a request to the following address: Commander, USASCH, ATTN: Chief of Staff, Fort Shafter, Hawaii 96858-5000.
(3) Each request for entry will be considered on an individual basis weighing the operational and training commitments of the area involved, security, and safety with the purpose, size of party, duration of visit, destination, and the military resources which would be required by the granting of the request.
(f)
(2) Moreover, any person who willfully violates this regulation is subject to a fine not to exceed $5,000.00 or imprisonment for not more than 1 year or both as provided in paragraph (c)(4) of this section.
(3) In addition, violation of this regulation by persons subject to the Uniform Code of Military Justice (10 U.S.C. 801-940) is a violation of Article 92 of the Uniform Code of Military Justice.
The regulations in §§ 552.30 to 552.39 set forth the authority, policy, responsibility, and procedure for the acquisition of real estate and interests therein, for use for military purposes by the Department of the Army. The regulations of §§ 552.30 to 552.39 do not apply to Civil Works Projects which are under the supervision of the Chief of Engineers.
As used in §§ 552.30 to 552.39, the following definitions apply:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
While the Federal Government has the inherent power to acquire land for its constitutional purposes, this power can be exercised only at the discretion
(a) Title to non-Government-owned real estate will be by purchase, condemnation, donation (when the authorization act specifies donation), and exchange (when the authorization act specifies exchange).
(b) Easements in non-Government-owned real estate are the same as in paragraph (a) of this section.
(c) Licenses in non-Government-owned real estate are generally by donation, although a nonrevocable license might be acquired by purchase.
(d) Leaseholds in non-Government-owned real estate will be by negotiation or condemnation. Leaseholds may give the Government exclusive use or may give the Government co-use with the owner for specific purposes.
(e) Jurisdiction over Government-owned real estate will be by transfer, reassignment, withdrawal, and reservation.
(f) Permits to use Government-owned real estate will be by instrument issued by another Government department or agency. Although in the nature of a license (may be revocable or nonrevocable), the instrument is designated as a “permit”, since it relates to Government-owned real estate, to distinguish it from a “license” relating to non-Government-owned real estate.
(g) Recapture of use of former Government-owned real estate which was disposed of subject to a “National Security Clause,” a “National Emergency Clause,” or a similar provision will be by letter from the Chief of Engineers to the owner of the property, based upon a directive from the Secretary of the Army or his designee.
(h) Revestment of title to former Government-owned real estate which was disposed of subject to a reverter provision, such as a “National Defense Purpose Clause” will be by letter to the owner by the official of the department designated in the conveyance by the Government.
(i) Procurement of options on real estate which is “suitable and likely to be required” in connection with a military public works project, prior to express authorization by law for the acquisition of said real estate will be by negotiation.
(j) Extinguishment of third party interests in lands owned or controlled by the United States, such as outstanding oil, gas, and other mineral rights; grazing rights; timber rights; water rights; and easements for rights-of-way for highways, railroads, power lines, communication lines, water lines, and sewer lines will be the same as prescribed in paragraph (a) of this section. Payment for extinguishment of grazing rights or licenses on public domain or other property owned by or under the control of the United States is made pursuant to Act July 9, 1942; 56 Stat. 654; as amended by Act May 28, 1948; 62 Stat. 277; and as further amended by Act October 29, 1949; 63 Stat. 996 (43 U.S.C. 315q and r).
(a)
(1) The activity to be accommodated is essential to an assigned mission.
(2) Real property under the control of the Army is inadequate to satisfy these requirements.
(3) No real property under the control of the Navy or Air Force or other Federal agencies is suitable and available for use by the Army on a permit or joint use basis.
(b)
(1) Donation or long-term nominal rental lease.
(2) Transfer from Navy or Air Force. Acquisition of lands excess to the requirements of other military departments.
(3) Recapture of use.
(4) Public Domain. Withdrawal from the public domain for military use. (Pub. L. 85-337, Feb. 28, 1958 (72 Stat. 28) requires that an Act of Congress be obtained to withdraw, reserve, or restrict for defense purposes more than 5,000 acres of the public domain.)
(5) Acquisition by exchange. Exercise of existing authorities for the exchange of Government-owned real property for non-Government-owned real property that is by type or location adaptable to the military need.
(6) Transfer from other Federal agencies. Acquisition of lands excess to the requirement of Federal agencies other than military departments.
(7) Acquisition by purchase, lease or condemnation.
(c)
(d)
(e)
(f)
(g)
(1) Use of lands under the control of the Department of the Army regardless of the agency maintaining jurisdiction, to include class II and industrial installations and other Reserve Component facilities, see title 10 U.S.C. 2331 and 2237.
(2) Use of reservoir lands of Civil Works Projects. By informal agreement with the Resident Engineer or Manager (when training activities do not involve exclusive use, construction, or destruction of vegetation) or by permit from the District Engineer (for other activities when such activities are compatible with the operation and maintenance of the project and will not endanger the use by the general public of public access areas).
(3) Use of lands, by permit or otherwise, under the control of the other military departments.
(4) Use of lands by permit of other Government-owned land, including the public domain.
(5) Use by license or nominal rental lease of local, county, or State-owned public lands.
(6) Use of privately owned land by short-term co-use lease under the authority granted in § 552.39.
(7) Use of non-Government-owned land by lease.
(8) Acquisition of lands excess to the requirements of the other military departments.
(9) Acquisition of lands excess to the requirements of Federal agencies other than the military departments.
(10) Acquisition of the non-Government-owned land.
(11) As a rule of thumb, lands will not be acquired for training from any source when the value of the land exceeds that of rural farm land in the area.
(h)
(1)
(2)
(3)
(i)
(j)
(1)
(2)
(3)
(4)
(i) Right of continuous use by the Government under firm term or right of renewal, for a minimum of 50 years.
(ii) A rental consideration of $1 per term or per annum.
(iii) Reserving to the Government title to all improvements to be placed on the land and the right to dispose of such improvements by sale or abandonment.
(iv) Waiver by the lessor of any and all claims for restoration of the leased premises.
(v) Use of the property for “Government purposes” rather than for a specific purpose.
(5)
(6)
(7)
(8)
(9)
(k)
(1)
(2)
(3)
(l)
(2)
(i) The estimated useful life of the facilities will not extend beyond the contract under which the facilities are installed or the completion of the work for which the facilities are provided; or
(ii) The contractor agrees to purchase the facilities upon the end of the facilities contract at the acquisition cost of the facilities, less depreciation; or
(iii) The Secretary approves other provisions as being in the interest of national defense.
(iv) If location on land in which the Government does not have a disposable interest, as above set out, is authorized under paragraphs (l)(2)(i), (ii), or (iii) of this section, the Government must have the right to abandon the facilities in place, with no obligation to restore or rehabilitate the facilities or the premises on which they are located.
(m)
(2)
(n)
(a)
(b)
(a)
(b)
(a)
(b)
(c)
(1) Fee, easement, and license acquisitions which do not exceed $5,000 for any one parcel and which constitute small tracts of additional land needed in connection with projects for which final Department of the Army, Department of Defense, and/or Congressional approval has been obtained, or which constitute rights-of-way for roads, railroads, and utility lines necessary to the construction, maintenance, and operation of an approved project.
(2) Leasehold acquisition where the estimated annual rental for any single leasehold does not exceed $25,000 and the acquisition is not controversial,
(3) Renewal or extension of leaseholds.
(4) Acquisition by permit of the right to use real property of another Government department or agency, except as to “general purpose” space from the General Services Administration and the Post Office Department and all space in the metropolitan District of Columbia area.
(d)
(e)
(f)
(1) Easements acquired for military purposes. (By agreement with the Attorney General, his opinion is obtained only in acquiring easements at a cost in excess of $100.)
(2) Leases and licenses.
(3) Jurisdiction of Government-owned land by transfer or use of Government-owned land by permit.
(g)
(h)
(2)
(a)
(b)
(c)
Local commanding officers are authorized, without approval by higher authority, to make leases of camp sites, buildings, and grounds, for troops; office and storage space for small detachments; garage or parking space; space for recruiting stations; and land or space for similar purposes, provided:
(a) Funds are available to the local commanding officer,
(b) Rental consideration conforms to the prevailing rate in the locality,
(c) The premises are to be occupied not longer than 3 months or in the case of Reserve training sites, not more than 90 days per year,
(d) Rental for the entire period of occupancy does not exceed $500, and
(e) Clearance is made with the General Services Administration, where required.
Sections 552.50 through 552.83 issued under 15 U.S.C. 1601.
This regulation—
(a) Prescribes general policy on the solicitation and sale of all goods, services, and commodities, including all types of insurance, on military installations. These are sold or solicited by dealers, tradesmen, and their agents.
(b) Prescribes procedures for suspension of solicitation privileges.
(c) Prescribes policies and procedures for investigative and enforcement actions.
(d) Permits representatives of credit unions, banks, and approved non-profit associations to conduct national educational programs on—
(1) Insurance, estate planning, savings, and budgeting, and
(2) The protection and remedies afforded consumers under the Truth-in-Lending Act.
(a) This regulation applies to—
(1) All Department of the Army military and civilian personnel, including Army National Guard and Army Reserve personnel on active duty or annual training.
(2) Individuals seeking to conduct commercial solicitation on military installations, including controlled housing areas. They will also be governed by regulations and controls of the local commander and, in overseas areas, by regulations of the unified or specified commander. They must also observe applicable laws, regulations, and agreements of the host country.
(b) The provisions of this regulation do not apply to—
(1) Commercial companies that furnish services to military installations (such as deliveries of milk, bread, and laundry) when they are authorized by the installation commander.
(2) An individual who sells his own personal property or privately owned dwelling.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Commanders may issue regulations governing solicitation within their commands and on their installations. These regulations will avoid discriminatory requirements which could eliminate or restrict competition. When there is a clear need to prescribe more restrictive requirements for solicitation than those in this regulation or the regulations of the major commander, these additional requirements or restrictions must first be reviewed and confirmed by The Adjutant General Center (DAAG-PSI), or by the overseas commander.
The installation commanders may permit solicitation and transaction of commercial business on military installations. These solicitations and transactions must conform to installation regulations (CONUS and overseas) and must not interfere with military activities. No person may enter an installation and transact commercial business as a matter of right.
To maintain discipline; protect property; and safeguard the health, morale, and welfare of his personnel, the installation commander may impose reasonable restrictions on the character and conduct of commercial activities. Members of the Armed Forces must not be subjected to fraudulent, usurious, or unethical business practices. Reasonable and consistent standards must be applied to each company and its agents in their conduct of commercial transactions on the installation.
To transact personal commercial business on military installations in the United States, its territories, and the Commonwealth of Puerto Rico, individuals must present, on demand, to the installation commander, or his designee, documentary evidence that the company and its agents meet the licensing requirements of the State in which the installation is located. They must also meet any other applicable regulatory requirements imposed by civil authorities (Federal, State, county, or municipality). For ease of administration, the installation commander will issue a temporary permit to agents who meet these requirements.
(a) Solicitation must be authorized by the installation commander. A specific appointment must be made with the individual and must be conducted in family quarters or in other areas designated by the installation commander. Before issuing a permit to solicit, the commander will require and review a statement of past employment. The commander will also determine, if practicable, whether the agent is employed by a reputable firm.
(b) Certain companies seeking solicitation privileges on military installations may arrange personal demonstrations of their products at social gatherings and advise potential customers on their use. If these added services are provided, even though the merchandise sold by these companies is similar to that stocked by the post exchange, the installation commander may authorize solicitation privileges. Requests for this type of solicitation privilege will be coordinated with the local Army and Air Force Exchange Service representative. See paragraph 3-2, Army Regulation 60-10.
Commercial transactions with other than individuals (such as nonappropriated fund activities) are restricted to the office of the custodian of the specific fund activity. Business will be conducted during normal duty hours.
(a) Authorizations (permits) to solicit on Army installations will be in writing and will be valid for periods of 1 year or less.
(b) Particular caution must be taken when granting solicitation permission. The impression that permission is official indorsement or that the Department of the Army favors, sponsors, or recommends the companies, agents, or the policies offered for sale must not be conveyed. As continuing policy, the Department of the Army does not indorse any seller or product.
(a)
(2) DOD personnel will not act in any official or business capacity, either directly or indirectly, as liaison with agents to arrange appointments.
(3) Home address of members of the command or unit will not be given to commercial enterprises or individuals engaged in commercial solicitation, except when required by Army Regulation 340-17 and Army Regulation 340-21. The written consent of the individual must be obtained first.
(b)
(2) Commanders will provide one or more appropriate locations on the installation where agents may interview prospective purchasers. If space and other factors dictate limiting the number of agents who may use designated interviewing areas, the installation commander may publish policy covering this matter.
(c)
(d)
(1) Solicitation during enlistment or induction processing or during basic combat training, and within the first half of the one station unit training cycle.
(2) Solicitation of “mass,” group, or “captive” audiences.
(3) Making appointments with or soliciting of military personnel who are in an “on-duty” status.
(4) Soliciting without an appointment in areas used for housing or processing transient personnel, or soliciting in barracks areas used as quarters.
(5) Use of official identification cards by retired or Reserve members of the Armed Forces to gain access to military installations to solicit.
(6) Offering of false, unfair, improper, or deceptive inducements to purchase or trade.
(7) Offering rebates to promote transaction or to eliminate competition. (Credit union interest refunds to borrowers are not considered a prohibited rebate.)
(8) Use of any manipulative, deceptive, or fraudulent device, scheme, or artifice, including misleading advertising and sales literature.
(9) Any oral or written representations which suggest or appear that the Department of the Army sponsors or endorses the company or its agents, or the goods, services, and commodities offered for sale.
(10) Commercial solicitation by an active duty member of the Armed Forces of another member who is junior in rank or grade, at any time, on or off the military installation (Army Regulation 600-50).
(11) Entry into any unauthorized or restricted area.
(12) Assignment of desk space for interviews, except for specific prearranged appointments. During appointments, the agent must not display desk or other signs announcing the name of the company or product affiliation.
(13) Use of the “Daily Bulletin” or any other notice, official, or unofficial, announcing the presence of an agent and his availability.
(14) Distribution of literature other than to the person being interviewed.
(15) Wearing of name tags that include the name of the company or product that the agent represents.
(16) Offering of financial benefit or other valuable or desirable favors to military or civilian personnel to help or encourage sales transactions. This does not include advertising material for prospective purchasers (such as pens, pencils, wallets, and notebooks, normally with a value of $1 or less).
(17) Use of any portion of installation facilities, to include quarters, as a showroom or store for the sale of goods or services, except as specifically authorized by regulations governing the operations of exchanges, commissaries, non-appropriated fund instrumentalities, and private organizations. This is not intended to preclude normal home enterprises, providing State and local laws are complied with.
(18) Advertisements citing addresses or telephone numbers of commercial sales activities conducted on the installation.
(e)
Products and services, including life insurance, offered and sold on Army installations must comply with the laws
(a) The Department of the Army expects that commercial enterprises soliciting military personnel through advertisements appearing in unofficial military publications will voluntarily observe the highest business ethics in describing both the goods, services, and commodities and the terms of the sale (such as guarantees and warranties). If not, the publisher of the military publication will request the advertiser to observe them. The advertising of credit will conform to the provisions of the Truth-in-Lending Act, as implemented by Regulation Z, published by the Federal Reserve Board (12 CFR part 226).
(b) Commanders will provide appropriate information and educational programs to provide members of the Army with information pertaining to the conduct of their personal commercial affairs (e.g., the protections and remedies offered consumers under the Truth-in-Lending Act, insurance, Government benefits, savings, estate planning, and budgeting). The services or representatives of credit unions, banks, and nonprofit military associations approved by HQDA may be used for this purpose provided their programs are entirely educational. Under no circumstances will the services of commercial agents, including loan or finance companies and their associations, be used for this purpose. Educational materials prepared or used by outside organizations or experts in this field may be adapted or used with applicable permission, provided the material is entirely educational and does not contain applications or contract forms.
The Federal Trade Commission Rule, 16 CFR part 429, p. 233, effective 7 June 1974, pertains to a cooling off period for door-to-door sales. The rule applies to any sale, lease, or rental of consumer goods or services with a purchase price of $25 or more, whether under single or multiple contracts, in which the seller or business representative personally solicits the sale, including those in response to or following an invitation by the buyer, and the buyer's agreement or offer to purchase is made at a place other than the place of business of the seller. The purpose of the law is to allow the consumer the right to cancel a transaction at any time prior to midnight of the third business day after the date of the transaction. When any door-to-door sale or transaction takes place anywhere on or off the installation (other than the seller's place of business) the consumer must be provided with a full and complete receipt or copy of a contract pertaining to the sale at the time of its execution which shall include the “cancellation statements” as required by the FTC rule.
The Department of the Army encourages the acquisition of a sound insurance program that is suitably underwritten to meet the varying needs of the individual and is within his financial means. Accordingly, insurance agents may conduct personal business on an installation, when feasible, with disinterested third-party counseling provided, interviewing hours set aside, and facilities supplied. However, the privilege of insurance solicitation on installations is conditioned on full compliance with this regulation and on the clear understanding that permission is not indorsement of the company or the policies offered for sale.
(a) All insurance business conducted on Army installation will be by appointment. When setting up the appointment, insurance agents must identify themselves to the prospective purchaser as an agent for a specific insurance company.
(b) Department of Defense personnel are expressly prohibited from representing any insurance company or dealing either directly or indirectly with any insurance company or any
(c) In addition to the forbidden practices, installation commanders will prohibit the following:
(1) The use of a commercial insurance agent as a participant in any military-sponsored education or orientation program.
(2) The designation or announcement of any agent as “Battalion Insurance Advisor,” “Unit Insurance Counselor,” “SGLI Conversion Consultant,” or similar quasi-official titles.
(a) The agent must know that—
(1) Soldiers to be solicited are in grades E-1, E-2, or E-3, and
(2) The solicitation of these members is restricted to specified times and locations designated by the installation commander.
(b) Agents must leave information on the policy applied for with each member in grades E-1, E-2, and E-3 who applies for insurance and the unit insurance officer or counselor. Agents must complete DA Form 2056 (Commercial Insurance Solicitation Record). Blank DA Forms 2056 (not allotment forms) will be available to insurance agents on request. In the “Remarks” section of DA Form 2056, agents will include all pertinent information and a clear statement that dividends are not guaranteed if the presentation refers to dividends.
Insurance policies offered and sold on Army installations must—
(a) Comply with the insurance laws of the States or country in which the installations are located. The applicable State insurance commissioner will determine such compliance if there is a dispute or complaint.
(b) Contain no restrictions because of military service or military occupational specialty of the insured, unless restrictions are clearly indicated on the face of the policy.
(c) Plainly indicate any extra premium charges imposed because of military service or military occupational specialty.
(d) Not vary in the amount of death benefit or premium based on the length of time the policy has been in force, unless it is clearly described therein.
(e) For purposes of paragraphs (b
(f) Variable life insurance policies may be offered provided they meet the criteria of the appropriate insurance regulatory agency and the Securities and Exchange Commission.
(g) Show only the actual premiums payable for life insurance coverage.
(a) In the United States, its territories, and the Commonwealth of Puerto Rico, agents may be authorized to solicit on an installation provided—
(1) Both the company and its agents are licensed in the State in which the installation is located. “State” as it pertains to political jurisdictions includes the 50 States, territories, and the Commonwealth of Puerto Rico.
(2) The application to solicit is made by an accredited company (§ 552.69).
(b) On Army military installation in foreign areas.
(1) An agent may solicit business on U.S. military installations in foreign areas if—
(i) The company he represents has been accredited by DOD;
(ii) His name is on the official list of accredited agents maintained by the applicable major command;
(iii) His employer, the company, has obtained clearance for him from the appropriate overseas commanders; and
(iv) The commanding officer of the military installation on which he desires to solicit has granted him permission.
(2) To be employed for overseas solicitation and designated as an accredited agent, agents must have at least 1 year
(3) General agents and agents will represent only one accredited commercial insurance company. The overseas commander may waive this requirement if multiple representation can be proven to be in the best interest of DOD personnel.
(4) An agent must possess a current State license. The overseas commander may waive this requirement on behalf of an accredited agent who has been continuously residing and successfully selling life insurance in foreign areas and forfeits his eligibility for a State license, through no fault of his own, due to the operation of State law or regulation governing domicile requirements, or requiring that the agent's company be licensed to do business in that State. The request for a waiver will contain the name of the State and jurisdiction, which would not renew the agent's license.
(5) An agent, once accredited in an overseas area, may not change his affiliation from the staff of one general agent to another, unless the losing company certifies, in writing, that the release is without justifiable prejudice. Unified commanders will have final authority to determine justifiable prejudice.
(6) 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 a member of the National Association of Securities Dealers or an associated person of a broker/dealer registered with the Securities and Exchange Commission only, 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.
(7) Overseas commanders will exercise further agent control procedures as necessary.
Before a company may be accredited to solicit on a military installation, the commander must receive a letter of application, signed by the company's president or vice president. It must be understood that a knowing and willful false statement is punishable by fine or imprisonment (18 U.S.C. 1001). The letter of application will—
(a) Report the States in which the company is qualified and licensed to sell insurance.
(b) Give the name, complete address, and telephone number of each agent who will solicit on the installation if approval is granted; the State in which licensed; the date of licensing and the expiration date; and a statement of agreement to report all future additions and separations of agents employed for solicitation on the installation.
(c) List all policies and their form numbers that are to be offered for purchase on the installation. Application will be offered for purchase and that these policies meet the requirements of § 552.67(d).
Attest that—
(1) The privilege of soliciting the purchase of life insurance is not currently suspended or withdrawn from the company by any of the military departments.
(2) The privilege of soliciting the purchase of life insurance is not currently suspended or withdrawn by any Armed Forces installations from any of the agents named.
(3) The company and the agent named have proper and currently validated licenses as required by § 552.68.
(4) The company assumes full responsibility for its agents complying with this regulation and with any regulations published by the installation commander.
(a) Each May and June only, DOD accepts applications from commercial
(b) Information about permission to solicit on installations outside the United States (exclusive of its territories and the Commonwealth of Puerto Rico) is contained in instructions issued by DOD. Applications and any correspondence relating thereto should be addressed to Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics), ATTN: Directorate, Personnel Services, ODASD(MPP), WASH DC 20301.
(c) Advice of action taken by DOD is announced annually by letters sent to overseas commanders as soon as practicable after 15 September. The list of companies and agents may vary from year to year.
The recent growth of quasi-military associations offering various insurance plans to military personnel is recognized. Some associations are not organized within the supervision of insurance laws of either the Federal or State Government. While some are organized for profit, others function as nonprofit associations under Internal Revenue Service regulations. Regardless of how insurance plans are offered to members, the management of the association is responsible for assuring that all aspects of its insurance programs comply fully with the instructions of this regulation.
(a) Allotments of military pay will be made in accordance with Army Regulation 37-104-3. Allotments will not be made to an insurer for the purchase of a commingled sale (e.g., retirement plans, securities).
(b) Under no circumstances will agents have allotment forms in their possession or attempt to assist or coordinate the administrative processing of such forms.
(c) For personnel in grades E-1, E-2, and E-3, at least 7 days should elapse between the signing of a life insurance application or contract 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.
Policies sold on installations by both accepted and accredited insurers will meet all statutory and regulatory requirements of the State or host nation in which the installation is located. Policies will not be issued in amounts lower than the minimum limits prescribed by these authorities. In addition, policies will—
(a) Clearly identify the name of the insurer and the full address.
(1) Applications without the name and address of the insurer underwriting the insurance may be used; the names of sales or underwriting agents alone is not sufficient.
(2) Post office box addresses are not an acceptable address.
(b) Provide bodily injury and property damage liability coverage for all drivers authorized by the named insured to operate the vehicle. Military indorsements, excluding persons other than the named insured, whether in the military or not, are not acceptable.
(c) Not contain unusual limitations or restrictions, including, but not limited to, the following:
(1) Limitations specifying that coverage is afforded only when the insured vehicle is operated in the designated geographic areas in the United States (e.g., coverage applicable only on a military reservation). If the installation is located within the United States, the standard provision limiting coverage to the United States and Canada is acceptable.
(2) Coverage limited to exclude liability for bodily injury to passengers and guests if such a liability exists as a matter of law.
The installation commander will deny or revoke permission of a company and its agents to conduct commercial activities on the installation if
(a) Failure of company to meet the licensing and other regulatory requirements prescribed in § 552.56.
(b) An agent or representative engaged in any of the solicitation practices prohibited by this regulation.
(c) Substantiated adverse complaints or reports about the quality of the goods, services, or commodities and the manner in which they are offered for sale.
(d) Personal misconduct by agents or representatives while on the military installation.
(e) The possession of or any attempt to obtain allotment forms, or to assist or coordinate the administrative processing of such forms.
(f) Knowing and willful violation of the Truth-in-Lending Act or Federal Regulation Z.
(g) Failure to incorporate and abide by the Standards of Fairness policies. (See § 552.83.)
In suspending privileges for cause, the installation commander will determine whether to limit suspension to the agent alone or to extent it to the company he represents. This decision will be based on the circumstances of the particular case. Included are—
(a) The nature of the violations and their frequencies;
(b) The extent to which other agents of the company have engaged in these practices;
(c) Previous warnings or suspensions; and
(d) Other matters that show the company's guilt or failure to take reasonable corrective or remedial action.
When unauthorized solicitation practices have apparently occurred, an investigating officer will be appointed (Army Regulation 15-6). The investigating officer will gather sworn statements from all interested parties who have any knowledge of the alleged violations.
The installation commander will personally approve all cases in which solicitation privileges have been denied or suspended for cause. This includes agents, companies, or other commercial enterprises. Authority to temporarily suspend solicitation privileges for 30 days or less while an investigation is conducted may be delegated by the commander to the installation solicitation officer or other designee. Exception to this time frame must be approved by The Adjutant General (DAAG-PSI) or by the overseas commander. The commander will make the final determination.
Before suspending the solicitation privilege, the company and the agent will have a chance to show cause why the action should not be taken. “Show cause” is an opportunity for the company, the agent, or both to present facts informally on their behalf. The company and agent will be notified, by letter, far in advance of the pending hearing. If unable to notify the agent directly or indirectly of the hearing, then the hearing may proceed.
(a) When suspended for cause, immediately notify the company and the agent, in writing, of the reason. When the installation commander determines that suspension should be extended throughout the Department of the Army (whether for the agent or his company), send the case to HQDA (DAAGPSI) WASH DC 20314. Provide all factors on which the commander based his decision concerning the agent or company (exempt report, para 7-2
(1) Copies of the “show cause” hearing record or summary,
(2) The installation regulations or extract,
(3) The investigation report with sworn statements by all personnel affected by or having knowledge of the violations,
(4) The statement signed by the agent as required in § 552.60(c).
(5) Notification letters sent to the company and the agent advising of suspension of installation solicitation privileges, and
(6) If the agent failed to respond to notification of the hearing, a copy of the letters sent to him and the company offering them the opportunity to be heard.
(b) If the grounds for suspension bear significantly on the eligibility of the agent or company to hold a State license or to meet other regulatory requirements, notify the appropriate State or local civil authorities.
All solicitation privileges suspended by installation commanders will be for a specific time. Normally, it will not exceed 2 years. When the suspension period expires, the agent may reapply for permission to solicit at the installation authorizing the denial or suspension. Requests for suspension periods in excess of 2 years will be sent with the complete case to HQDA (DAAG-PSI) WASH DC 20314, for approval. Lesser suspension may be imposed pending decision.
Quarterly, HQDA will publish the names of agents and companies whose solicitation privileges have been suspended throughout the Department of the Army. If no change has occurred in the latest quarter, no list will be published.
(a) In appropriate cases, installation commanders may have the Armed Forces Disciplinary Control Board investigate reports that cash or consumer credit transactions offered military personnel by a business establishment off post are usurious, fraudulent, misleading, or deceptive. If it is found that the commercial establishment engages in such practices; that it has not taken corrective action on being duly notified; and that the health, morale, and welfare of military personnel would be served, the Armed Forces Disciplinary Control Board may recommend that the offending business establishment be declared “off limits” to all military personnel. The procedures for making these determinations are in Army Regulation 190.24.
(b) On finding that a company trans-acting cash or consumer credit with members of the Armed Forces, nationwide or internationally, is engaged in widespread usurious, fraudulent, or deceptive practices, the Secretary of the Army may direct Armed Forces Disciplinary Control Boards in all geographical areas where this occurred to investigate the charges and take appropriate action.
(a) No finance charge contracted for, made, or received under any contract shall be in excess of the charge which could be made for such contract under the law of the place in which the contract is signed in the United States by the serviceman. In the event a contract is signed with a United States 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) 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's fees shall be authorized if he is a salaried employee of the holder.
(c) In loan transactions, defenses which the debtor may have against the original lender or its agent shall be good against any subsequent holder of the obligation. In credit transactions, defenses against the seller or its agent shall be good against any subsequent holder of the obligation provided that the holder had actual knowledge of the defense or under condition where reasonable inquiry would have apprised him of this fact.
(d) The debtor shall have the right to remove any security for the obligation beyond State or national boundaries if he or his 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.
(e) No late charge shall be made in excess of 5 percent of the late payment, or $5 whichever is the lesser amount. Only one late charge may be made for any tardy installment. Late charges will not be levied where an allotment has been timely filed, but payment of the allotment has been delayed.
(f) The obligation may be paid in full at any time or through accelerated payments of any amount. There shall be no penalty for prepayment and in the event of prepayment, that portion of the finance charges which have insured to the benefit of the seller or creditor shall be prorated on the basis of the charges which would have been ratably payable had finance charges been calculated and payable as equal periodic payments over the term 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, in which case its operation shall be explained in the contract.
(g) No charge shall be made for an insurance premium or for finance charges for such premium unless satisfactory evidence of a policy, or insurance certificate where State insurance laws or regulations permit such certificates to be issued in lieu of a policy, reflecting such coverage has been delivered to the debtor within 30 days after the specified date of delivery of the item purchased or the signing of a cash loan agreement.
(h) If the loan or contract agreement provides for payments in installments, each payment, other than the down payment, shall be in equal or substantially equal amounts, and installments shall be successive and of equal or substantially equal duration.
(i) If the security for the debt is repossessed and sold in order to satisfy or reduce the debt, the repossession and resale will meet the following conditions:
(1) The defaulting purchaser will be given advance written notice of the intention to repossess;
(2) Following repossession, the defaulting purchaser will be served a complete statement of his obligations and adequate advance notice of the sale;
(3) He will be permitted to redeem the item by payment of the amount due before the sale, or in lieu thereof submit a bid at the sale;
(4) There will be a solicitation for a minimum of three sealed bids unless sold at auction;
(5) The party holding the security, and all agents thereof are ineligible to bid;
(6) The defaulting purchaser will be charged only those charges which are reasonably necessary for storage, reconditioning, and resale; and
(7) He shall be provided a written detailed statement of his obligations, if any, following the resale and promptly refunded any credit balance due him, if any.
(j) A contract for personal goods and services may be terminated at any time before delivery of the goods or services without charge to the purchaser. However, if goods made to the special order of the purchaser result in preproduction costs, or require preparation for delivery, such additional costs will be listed in the order form or contract. No termination charge will be made in excess of this amount. Contracts for delivery at future intervals may be terminated as to the undelivered portion, and the purchaser shall be chargeable only for that proportion of the total cost which the goods or services delivered bear to the total goods called for by the contract. (This is in addition to the right to rescind certain credit transactions involving a security interest in real estate provided by section 125 of the Truth-in-Lending Act, Pub. L. 90-321 (15 U.S.C. 1601) and § 226.9 of Regulation Z (12 CFR part 226).
(a) This regulation establishes procedures governing entry upon the Army training areas on Ft. Lewis, WA, designated in § 552.84(c) of this section.
(b) These procedures have been established to ensure proper use of these Army training areas. Uninterrupted
(c) This regulation governs all use of the Ft Lewis Military Reservation outside cantonment areas, housing areas, Gray Army Airfield, Madigan Army Medical Center, and recreational sites controlled by the Director of Personnel and Community Activities (DPCA). The areas governed are designated on the overprinted 1:50,000 Ft Lewis Special Map as Impact Areas, lettered Close-In Training Areas (CTAs), or numbered Training Areas (TAs), and are hereafter referred to as the range complex. A full sized map is located at the Ft Lewis Area Access Office, Bldg. T-6127.
This regulation is applicable to all military and civilian users of the range complex.
(a) AR 405-70 (Utilization of Real Estate).
(b) AR 405-80 (Granting Use of Real Estate).
(c) AR 420-74 (Natural Resources—Land, Forest, and Wildlife Management).
(d) FL Reg 215-1 (Hunting, Fishing, and Trapping).
(e) FL Reg 350-30 (I Corps and Fort Lewis Range Regulations).
(f) DA Form 1594 (Daily Staff Journal or Duty Officer's Log).
(g) HFL Form 473 (Range, Facility, and Training Area Request).
(a)
(b)
(c)
(2) Authorized Department of Defense (DOD) patrons enroute to or using DPCA recreational areas (appendix A) are not required to possess a permit. Travel to and from DPCA recreational use areas is restricted to the most direct route by paved or improved two lane roads, and direct trail access. Other travel in the range complex is governed by this regulation.
(3) Recreational use of CTAs without permit is authorized only for DOD personnel of Ft. Lewis and their accompanied guests. Driving Privately Owned Vehicles (POV) in the CTAs is restricted to paved or improved gravel roads, except for direct trail access to DPCA recreational areas at Shannon Marsh and Wright's Lake. Other recreational activities authorized in the CTAs for DOD personnel without permit are walking, jogging and picnicking at established picnic sites.
(4) Organizations or groups whose authorized recreational activity is of such a nature as to require special advanced confirmed commitments from Ft. Lewis for land, including Scout Camporees, seasonal or one-time regional meets, and so on, must apply to the Ft. Lewis Area Access Section in writing. If the area is available, the request will be forwarded to the Director of Engineering and Housing (DEH) for lease processing. Not less than 180 days are required for processing of these special requests. Organizations or groups whose activity requires military equipment or other special support from Ft. Lewis must also apply in writing. If a permit is granted, the special assistance request will be coordinated by the Public Affairs and Liaison Office (PALO). Sample request guide and mailing address are available for the Access Section.
(5) All other recreational uses require a permit in accordance with this regulation.
(d)
(e)
(f)
(g)
(h)
(a)
(b)
(c)
(d)
(e)
(a) Examples of authorized activities are listed in appendix C.
(b) Activities listed in appendix D are not authorized on Ft. Lewis and no permit will be issued.
DPTM Range Control operates the Ft. Lewis Area Access Section in Bldg T-6126 to issue permits and grant non-training acess to the range complex. The office is open 0700-1900 hours, seven days a week, for permit processing and access control. At other hours, Range Operations wil take calls for access only.
(a) Individuals desiring area access for authorized activities (see appendix C) must register in person at the Ft. Lewis Area Access Section, Bldg T-6127. Minimum age is 18 years, except for active duty military personnel. Individuals under 18 years of age must be sponsored and accompanied by a parent or legal guardian.
(b) Individual registration requires:
(1) Picture ID.
(2) Personal information including Social Security Number.
(3) Vehicle identification and license number, if a vehicle is to be brought on post.
(4) Names and ages of minor family members who will accompany a registered person.
(5) Liability release signature.
(6) Certification that intended activities are on the authorized list and are not for-profit commercial activities. Persons who submit false certificates are subject to prosecution in Federal Court Under 5 U.S.C. 1001, and the provisions of this section.
(c) A permit and a vehicle pass will be issued to each person authorized area access. The permit is not transferable. Entry to the range complex without the issued permit is forbidden.
(d) Individual write-in requests may be authorized for extraordinary circumstances.
(a) A collective permit will be issued to an organization desiring to conduct a group event. The group leader must register in person at the Ft. Lewis Area Access Section, Bldg T-6127, and must be 21 years of age or older except for active duty military personnel.
(b) Group registration requires the information listed in § 552.91, except that a legible list of names of all persons in the group is required in lieu of the names and ages of minors.
(c) Group permits will be issued with the requirement that all members of the group will be with the leader throughout the event. If the group plans to separate while still on post, sub-group leaders must be appointed and must each obtain a permit as noted in this section. The group leader permit is not transferable.
(d) Other group write-in requests may be authorized for extraordinary circumstances.
(a) Permits will be issued 0700-1900 hours daily and may be obtained no earlier than six months prior to the event date. Permits for authorized activities may be requested and issued on the day of the event, but must be in hand prior to individual or group entry on to the range complex.
(b) Permits for one-time events are valid for the duration of the event. Otherwise, permits are valid for six months and are not renewable. When a permit expires, the holder must reapply as described in this section.
(c) Access hours are thirty minutes after daylight to thirty minutes before dark, except for authorized overnight activities and as outlined in FL Reg 215-1.
(a) Holders of current permits desiring access must call the Ft. Lewis Area Access Section on the date of entry at the telephone numbers listed on the permit and state the area to be entered, estimated time of entry, and estimated time of departure. This check-in may also be done in person at the Ft. Lewis Area Access Section, Bldg T-6126. Procedures for permits and access for hunting and trapping are outlined on FL Reg 215-1.
(b) The Ft. Lewis Area Access Section will determine whether the area is available and, if so, authorize entry. If the area is not open for permit holders, and an alternate area cannot be provided, access will be denied. All calls and actions will be recorded on DA Form 1594 (Daily Staff Journal or Duty Officer's Log).
(c) Permit holders must call or visit the Ft. Lewis Area Access Section immediately after leaving the authorized area to obtain checkout clearance. If a checkout is not received within three hours after the estimated time of departure, the Ft. Lewis Area Access Section will call the contact phone number in the permit holder's record and, if necessary, initiate a search through the Military Police Desk. Permit holders who fail to call out twice will be
(d) Failure to comply with the provisions of this paragraph shall subject all persons to the provisions of this section.
(a) Unit commanders may, during training area scheduling, request that no permit holders be allowed in their areas. Justification must be in the remarks column of HFL Form 473 (Range, Facility and Training Area Request). If this restriction is granted, the Ft. Lewis Area Access Section will close the appropriate areas. In the absence of a trainer's request for closure, the following military activities are considered incompatible with non-training access and will, when scheduled, block affected areas:
(1) Live-fire training events with surface danger zones falling into training areas.
(2) Parachute and air assault operations.
(3) Field artillery firing. The numbered training area occupied by the weapons will be closed.
(4) Motorized infantry operations that will use the majority of the road net in a training area, traveling at higher than normal speeds.
(5) Training employing riot agents or smoke generating equipment.
(b) The Range Officer may close training areas based on multiple occupation by large units.
(c) Areas allocated to modern firearm deer hunting are closed to training and recreational activities. When State Fish and Game pheasant release sites can be isolated by swamps, streams, or roads from the rest of a training area, multiple occupancy is authorized.
Anyone observing violators of this or other regulations must report the activity, time, and location to the Ft. Lewis Area Access Section or the Military Police as soon as possible.
The Ft. Lewis Area Access Section communicates by telephone as noted on the permit. Tactical FM contact may be made through Range Operations.
This regulation establishes the criteria for possessing, carrying, concealing, and transporting firearms and/or other deadly or dangerous weapons and instruments on Fort Stewart/Hunter Army Airfield (AAF) installations.
(a) The provisions of this regulation apply to all Department of Defense (DOD) military; civilian personnel; U.S. Army Reserve/National Guard (USAR/NG) personnel on post for active duty training or inactive training in conjunction with Active Army elements, military family members; civilians employed on, visiting, or traveling through or on the Fort Stewart/Hunter AAF installation.
(b) This regulation will not become void in its entirety merely because one part or portion thereof is declared unconstitutional or void.
(c) This regulation is punitive, Military violators of the regulations may be prosecuted under the Uniform Code of Military Justice or may be subject to administrative action. Civilian violators may be subject to administrative or judicial action under title 18, United States Code, or title 16, Criminal Code of Georgia.
(a)
(b)
(c)
(1) “Constant companion” or any similar weapon, designed or redesigned, made or remade, modified or remodified to be worn as a belt buckle, brass kunckles, “Knucklers,” and “Knucks.”
(2) Studded or spiked wrist bands, or any device designed or redesigned, made or remade, modified or remodified to fit over the hand or wrist which can be used to cause grave bodily harm.
(3) Black jacks, slapjacks, slappers, saps, including homemade substitutes, other bludgeons (with or without handles), and metal pipes.
(4) “Nanchaku” (num-chucks), two or more sticks connected by rope, cord or chain and normally used as a martial arts weapon. “Shuriken”, a disc or any geometrical object designed to be thrown as a weapon. “Manrikigusari” or “Kusari,” a rope or cord joined to a weight at each end and designed to be used as a weapon.
(5) Any finger ring with blades or sharp objects that are capable of being projected/extended from the surface of the ring.
(6) Any device capable and primarily intended for discharging darts or needles.
(7) All firearms.
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(a)
(1) Sawed-off shotgun.
(2) Sawed-off rifle.
(3) Machine gun and automatic weapons.
(4) Silencers.
(5) Dangerous instruments as defined in § 552.100(c).
(6) Explosives, Incendiary and Pyrotechnic Devices, as defined in § 552.100(d).
(7) Knives with automatic blade openers (i.e., switch blades, gravity knives, stilettos) of any blade length. Folding or fixed bladed knives with a blade length of more than 3 inches. Swords, sabers, and machetes with sharpened blades.
(8) Any object which carries an electrical current of sufficient wattage to deliver a shock to a person, such as cattle prods, “taser” or “public defenders.”
(b)
(c)
(d)
(e)
(1) Military members or DOD civilian employees from possessing or using military weapons, military ammunition or explosives, or military devices in a lawful manner while in the performance of their military duties or for training or other authorized purposes, as prescribed by applicable Army Regulations.
(2) Military and DOD civilian personnel, while in the performance of official law enforcement duties, from possessing or using government ammunition, explosives or devices in a lawful manner, as prescribed by applicable laws or regulations or by their lawful superiors.
(3) Federal, state, county or local law enforcement personnel, while in the performance of official law enforcement duties, from possessing or using government or privately-owned weapons, ammunition, explosives or devices in a lawful manner, as prescribed by applicable laws or regulations or by their lawful superiors.
(4) Government contractors, while in performance of their contract from possessing or using weapons, ammunition, explosives or devices, IAW the
(5) Individuals with Federal Firearms Licenses (Class III) from possessing, carrying, and transporting Class III weapons IAW Federal regulations; however, they are prohibited from concealing, storing, transferring, or selling Class III weapons within the confines of Fort Stewart and Hunter AAF.
(6) Individuals from possessing, carrying, transporting, or storing decorative, ornamental, and ceremonial swords and sabers within the confines of Fort Stewart and Hunter AAF when used strictly for display and ceremonies. When used as a cutting instrument, they become a prohibited item.
(7) Individuals and agencies from possessing, transporting, storing, selling, or using fixed bladed knives with a blade length of more than 3 inches when used for their lawful purpose (i.e., steak knives, cooking knives, hunting knives) and when in compliance with all other requirements in this regulation.
DOD military and civilian personnel, their family members, USAR/NG personnel and civilians employed on, visiting or traveling through this installation may possess legally-defined and privately-owned firearms, ammunition, BB and pellet guns, knives, bows and arrows, and crossbows under the following conditions:
(a) Privately-owned firearms, crossbows, BB and pellet guns possessed or stored on the installation must be registered at the installation Provost Marshal's Office within three working days after arrival on the installation, or after obtaining the weapon, except:
(1) Firearms legally brought onto the installation for the purpose of hunting or firing at an approved firing range, and only for the period of time the person possessing the firearms is hunting or firing on the range.
(2) Firearms carried by federal, state, county or local law enforcement personnel when in the performance of official law enforcement duties.
(3) Firearms carried or transported, in full compliance with Georgia State Laws, on Georgia State Highways 119 and 144 by personnel traveling through the installation only. Travel off of these state highways or stopping, other than for emergency purposes, while on the installation is prohibited.
(b) Personnel residing in family housing, BOQ, BEQ/VOQ and guest housing, may store legally-acquired, authorized ammunition, knives with a blade measuring more than 3 inches, bows and arrows, registered crossbows, registered BB and pellet guns and registered firearms within their quarters.
(c) Personnel residing in troop billets may store legally-acquired authorized ammunition, knives and blades measuring more than 3 inches, bows and arrows, registered crossbows, registered BB and pellet guns and registered firearms in unit arms rooms. The unit arms room should utilize a standard weapons card and log book to document storage, removal, and return.
(d) Persons using weapons borrowed from another must have the documentation required in § 552.103(a) as applicable in their possession when carrying, transporting or using the weapon on the installation.
(e) Persons under the age of 17 must be accompanied by a person over the age of 21 who will be responsible for compliance with the requirements of this regulation while hunting or target shooting on the installation and when purchasing legal arms (including knives with blades over 3 inches) and ammunition from installation retail outlets.
(f) Persons must be in compliance with federal and state laws regarding possession (i.e., age, criminal record restrictions, etc.)
(g) Storage, accountability and registration procedures will be IAW Army Regulation 190-11 and supplements.
Persons legally authorized to possess firearms, ammunition, knives (with blades longer than 3 inches), bows and arrows, and crossbows, may carry or transport legally possessed and registered (if required) weapons under the following conditions.
(a) For purposes of hunting: From quarters, on or off the installation, by the most direct route to hunting area
(b) For purposes of target shooting, selling the weapon or having the weapon repaired: From quarters by the most direct route to approved range or to the location where the weapon is to be sold or repaired and returned. Stopping at other installation facilities while enroute is prohibited. Individual must have in his/her possession at all times his/her registration (if applicable).
(1) When carried, weapons will be carried in an open manner (not concealed). Firearms will be unloaded when carried (i.e., projectiles physically separated from the firearms, not just removed from the chamber), except when actually engaged in hunting or shooting. Knives will be carried in a sheath or scabbard worn in a clearly visible manner. Commanders may authorize the carrying of a privately-owned knife with a blade over 3 inches to field duty, provided it is carried IAW Victory Standard and exposed in a sheath/scabbard. The Provost Marshal may authorize the carrying of a privately-owned, sheathed, lock blade knife on military and DOD police officers’ pistol belts.
(2) When transported in a vehicle, weapons will be in plain view in the passenger area of the vehicle or secured (locked) in the trunk or other rear compartment of the vehicle, not readily accessible from the passenger area (i.e., locked tool box secured to bed of a truck). Firearms will be unloaded and the ammunition physically separated from the firearms. The glove compartment of a vehicle is
(3) Firearms, bows and arrows, crossbows, BB and pellet guns will not be loaded, fired or used within the cantonment areas of the installation; within 50 yards of any public highway, street or Fort Stewart numbered road or across same; within 100 yards of any designated recreation area, managed waters, building or similar structures; any aircraft landing facility (to include currently used landing or stage fields); any ammunition storage area (except on approved firing range when properly authorized).
(4) Persons not affiliated with DOD or this installation must remain on Georgia State Highways 119 and 144 when carrying or transporting weapons through the installation and must be in full compliance with Georgia State Law governing possession, use and transportation of said weapons. Travel off of these highways or stopping, for other than emergency purposes, while on the installation, is prohibited.
All weapons, ammunition, explosives or other devices defined in this regulation, that are confiscated pursuant to the commission of a crime or violation of this or other regulation or found unsecured/unattended on the installation, will be immediately turned over to the military police, U.S. Army Criminal Investigation Command (USACIDC), or the Federal Bureau of Investigation (FBI) for investigation, retention as evidence, or other lawful disposition. When retention for investigation or evidence is no longer required by military police, USACIDC, or other law enforcement or judicial agencies, the items will be disposed of under the provisions of AR 195-5, Evidence Procedures.
(a) This regulation establishes procedures governing access control requirements for the Main Cantonment Area, Fort Lewis, Washington, and prohibits certain forms of conduct upon the Fort Lewis Military Reservation.
(b) These procedures and requirements have been established in conjunction with other efforts to improve the physical security of the Fort Lewis Military Reservation. It is essential that entrance to, and exit from, the installation be made only at controlled access points, and that certain forms of conduct be restricted.
(c) This regulation governs all access to the Main Cantonment Area of the Fort Lewis Military Reservation, including, but not limited to, all housing areas, Gray Army Air Field, and Madigan Army Medical Center. It further prohibits all persons from engaging in certain forms of conduct anywhere on the Fort Lewis Military Reservation.
This regulation is applicable to all persons, both military and civilian, who enter the Fort Lewis Military Reservation.
(a) AR 190-5 (Motor Vehicle Traffic Supervision)
(b) AR 190-52 (Countering Terrorism and Other Major Disruptions on Military Reservations)
(c) AR 210-7 (Commercial Solicitation on Army Installations)
(d) AR 210-10 (Administration)
(e) Fort Lewis Supplement 1 to AR 190-5 (Motor Vehicle Traffic Supervision)
(f) I Corps and Fort Lewis Installation Security and Closure Plan
(g) HFL Form 1138 (Fort Lewis Visitor Pass)
(a)
(2) Public access into the Main Cantonment Area of Fort Lewis is controlled through a series of static security posts manned by sentries empowered to grant or deny access to persons and material. The “Main Cantonment Area” is that area of the Fort Lewis Military Reservation shown on the overprinted 1:50,000 Fort Lewis Special Map (DMA Stock No. V791SFTLEWIS) excluding those areas designated thereon as Impact Areas, lettered Close-In Training Areas, or numbered Training Areas. A full sized map is located at the Fort Lewis Area Access Office, Building T-6127. As defined, the Main Cantonment Area includes, but is not necessarily limited to, those areas of the installation containing Government housing areas, schools, medical facilities, troop billets, the installation command and control facilities, Gray Army Air Field, Madigan Army Medical Center, and certain recreational sites controlled by the Director of Personnel and Community Activities.
(3) Entry of the general public into the Main Cantonment Area at any location other than through established manned access control points is strictly prohibited. For the purposes of this regulation, entry includes the entrance of the person, or the insertion of any part of his body, or the introduction of any unauthorized material.
(b)
(c)
(1) Engage in protests, public speeches, sit-ins, or demonstrations promoting a political point of view.
(2) Engage in partisan political campaigning or electioneering.
(3) Display or distribute commercial advertising or solicit business.
(4) Interrupt or disturb a military formation, ceremony, class or other activity.
(5) Obstruct movement on any street, sidewalk, or pathway without prior authority.
(6) Utter to any person abusive, insulting, profane, indecent or otherwise provocative language that by its very utterance tends to incite an immediate breach of the peace.
(7) Distribute or post publications, including pamphlets, newspapers, magazines, handbills, flyers, leaflets, and other printed material, except through regularly established and approved distribution outlets.
(8) Circulate petitions or engage in picketing or similar demonstrations for any purpose.
(9) Disobey a proper request or order by Department of Defense (DoD) police, military police, or other competent authority to disperse or to leave the installation.
(d)
(a)
(b)
(c)
(1) Personnel in possession of proper orders directing temporary duty at Fort Lewis may be issued a visitor's pass for periods not to exceed 13 days. Personnel ordered to temporary duty at Fort Lewis for periods in excess of 13 days but less than 90 days will be required to obtain a temporary vehicle registration.
(2) Persons visiting Fort Lewis military personnel or their family members may be issued visitor's passes for periods up to and including 13 days when personally requested by the military sponsor.
(3) Moving vans and commercial delivery vehicles will be issued visitor's passes after the operator displays a bill of lading or other official documentation demonstrating a legitimate need to enter Fort Lewis.
(4) Contract vehicles not qualifying for installation vehicle registration pursuant to Fort Lewis Supplement 1 to AR 190-5 will be issued a visitor's pass as provided in paragraph (c) of this section, after the purpose of the visit has been verified by the Contracting Officer's Representative, or the Contractor when the former is not available.
(5) Prior to issuing a visitor's pass to unsponsored personnel who desire to visit unit areas, club facilities and other recreational facilities, security personnel will telephonically contact the person to be visited. If the person to be visited cannot be contacted to verify the visit, the visitor will be denied entry. Unsponsored personnel desiring to visit the Fort Lewis Museum may be issued a visitor's pass valid until museum closing time on day of issue, provided security personnel telephonically contact the museum and verify the hours of public operation that day prior to issuing the visitor's pass.
(6) Soldiers, dependent family members, and Department of the Army employees who sponsor visitors to the installation remain responsible for the conduct of their guests on Fort Lewis for the duration of the visit.
(d)
The installation commander or his deputy may grant exceptions to the prohibitions contained in paragraph (c)(4) of this section. An application for exception shall be submitted to the installation Public Affairs Liaison Officer at least seven days prior to the date of the requested activity. The application must be in writing, and must specify the particular activity proposed, the names of the persons and organizations sponsoring the activity, the number of participants, and the time, date and specific place or places the requester proposes the activity occur. In addition, the application shall be signed by the requester or by a representative of the requesting organization, if any, and contain an address and local telephone number where the requester or representative can be reached in the event further information is needed.
If a provision of this Regulation is declared unconstitutional, or the application thereof to any person or circumstance is held invalid, the constitutionality or validity of every other provision of this Regulation shall not be affected thereby.
To provide enhanced security for the protection of arms, ammunition, explosives (AA&E) and sensitive items at Fort Lewis.
This regulation is to be used in conjunction with the following:
(a) AR-190-11 with Forces Command and Training Command Supplement 1 (Physical Security of Arms, Ammunition and Explosives).
(b) AR 190-13 with Forces Command and Training Command Supplement 1 (The Army Physical Security Program).
(c) Fort Lewis Regulation 210-1 (Installation Fort Lewis Post Regulations).
(d) Headquarters Fort Lewis Form 816 (Registration of Personal Firearms).
Violations of the provisions of this regulation are subject to disciplinary actions under the Uniform Code of Military Justice, judicial action as authorized by state or federal law, or administrative action as provided by controlling regulation.
This regulation is applicable to all Active Army, Reserve Officer Training Corps (ROTC), U.S. Army Reserve (USAR), and Army National Guard (ARNG) units training and/or assigned/
Privately owned arms and ammunition will be secured in the manner required for military weapons and ammunition but separate from military arms, ammunition, and explosives (AA&E) items.
The unit commander's written approval to withdraw privately owned weapons from the unit arms room will be attached to the record of the next weekly arms, ammunition, and explosive (AA&E) inventory. Following is a Sample Request for Authorization to Withdraw Weapon from Arms Room:
1. Request authorization to remove the following firearm/weapon registered in my name from the arms room. The firearm/weapon is a
2. The firearm/weapon will be removed on
3. The reason for removal is
When privately owned weapons are withdrawn from the arms room, DA Form 3749 (Equipment Receipt), will be turned in and the weapon will be signed out on Headquarters Fort Lewis Form 938 (Weapons/Ammunition and Sensitive Item Issue and Turn-In Register). The armorer will provide the owner with a copy of Headquarters Fort Lewis Form 816 (Registration of Personal Firearms), which will remain with the weapon at all times. When the weapon is turned back in to the arms room, the HFL Form 816 will be turned in also.
(a) All types of personal weapons to include rifles, shotguns, handguns and antique firearms owned by personnel residing on Fort Lewis Military Reservation will be registered at the Weapons Registration Office, Law Enforcement Command, within 72 hours (three working days) after signing in to his/her permanent unit of assignment. HFL Form 816, Registration of Personal Firearms, will be completed in triplicate. The unit commander is responsible for verifying proof of legal ownership paperwork on all data entered on HFL 816. The Military Police Weapons Registration Section will retain two copies of the completed registration form and issue one copy to the individual to be retained with the weapon at all times. The Weapons Registration Section will forward one copy of the form to the individual's unit commander. The commander's copy of the registration will be maintained in the unit arms room for personnel storing personal weapons in the unit arms room. When an individual possessing a personal weapon transfers (intra-installation), the losing commander will ensure that HFL Form 816 is forwarded to the gaining commander. The gaining commander will ensure that the individual re-registers the personal weapon within 72 hours (three working days). The commander of 525th Replacement Detachment is responsible for the storage of personal weapons of newly arriving personnel, temporarily assigned to the unit. Personnel residing off post who wish to bring personal weapons on post are also required to register those weapons. Weapons registration forms (HFL 816) will be turned in at the Weapons Registration Section when
(b) All soldiers are required to inform the unit commander if they are storing privately owned weapons within a 100 mile radius of Fort Lewis. Soldiers residing off-post must inform the unit of the location of the weapon(s). Those weapons must be registered if they are to be brought onto the installation for any type of authorized use.
(c) Privately owned weapons of soldiers residing in the unit billets, Bachelor Enlisted Quarters (BEQ), or Bachelor Officer Quarters (BOQ), will be stored in the assigned unit arms room under the following provisions:
(1) Commanders may authorize their personnel who reside in billets, BEQ or BOQ to store privately owned weapons in the off post quarters of another member of his/her unit or in the quarters of immediate family members residing in the area.
Family members will be considered sponsors for paragraph (b) (2) thru (5) of this section.
(2) A unit member who resides off post may sponsor a maximum of one unit member who resides in billets, BEQ or BOQ for storage of privately owned weapons.
(3) Request to store weapons off post must be submitted in writing to the unit commander, indicating the name, exact address and phone number of the proposed unit sponsor. Request must be accompanied by a written authorization from the sponsor to store the weapons, and a copy of HFL 816. Request must be kept on file in the unit arms room until legal disposition of the weapon is presented to the unit commander.
(4) Civilians (except for immediate family residing in the area) and military dependents will not be considered as sponsors to store privately owned weapons for military members.
(5) Unit commanders have the responsibility to verify the off post location for off post storage requests and ensure that military members comply with both local and state laws governing possession and use of privately owned weapons.
(d) Weapons stored in unit arms rooms may be issued to registered owners only for authorized hunting or participation in authorized target practices or matches. Request for issue of a privately owned weapon from the arms room must be in writing indicating the inclusive dates and times, reasons and serial number of weapon for issue. Weapons stored in the unit arms rooms may not be issued to anyone other than the registered owner.
(e) Properly registered privately owned weapons may be kept at the owners assigned government family quarters if approved in writing by the unit commander. One copy of the completed HFL Form 816 will be maintained on file in the unit arms room. Intra-post transfer rules as stated in paragraph (a) of this section apply.
(f) Privately owned weapons with a maximum of 100 rounds of ammunition (per weapon) may be stored in the unit arms room. Weapons and ammunition will be stored separately. The owner of a privately owned weapon will be issued a hand receipt when the weapon and/or ammunition is turned in to the arms room. The owner will return the hand receipt when the weapon and/or ammunition is removed from the arms room for any reason.
(g) Weapons cancellation and installation clearance will be as follows:
(1) Commander will ensure that privately owned weapons registered with Weapons Registration Section are de-registered during the outprocessing or when legally disposed of.
(2) Individuals who register a privately owned weapon and legally dispose of the weapon while it is still registered will surrender the registration certificate to the Weapons Registration Section at the time of disposal along with appropriate disposition documents.
(a) Possession of weapons on the post by civilians is prohibited with the following exceptions:
(1) Engaged in authorized hunting.
(2) Engaged in authorized target practice.
(3) Engaged in authorized and organized shooting matches.
(b) Request for authorization for these exceptions will be submitted in writing to the Commanding General, I Corps and Fort Lewis. Prior coordination for the use of ranges will be made through the Range Control Officer or Range Scheduling. Civilians who fail to comply with this regulation are subject to charges of Trespassing, Unlawful Discharge of a Firearm, and other criminal offenses as applicable.
(c) Military or civilian personnel are not authorized to bring personal weapons into field training sites.
(d) Carrying of concealed privately owned weapons by either military or civilian personnel is prohibited while on the Fort Lewis Military Reservation regardless of whether a state or county permit has been obtained. For the purpose of this regulation, a concealed weapon is any instrument used or designed to be used in an offensive or defensive manner which is carried in such a way as to be hidden from ordinary view. Folding knives with a blade of three inches or less are specifically excluded from this definition. Request to carry concealed weapons will be submitted in writing, with full what and why justification, to the Commanding General, I Corps and Fort Lewis, through appropriate channels.
Prohibited weapons are defined as:
(a) Any instrument or weapon of the kind usually known as a sling shot, sand club, metal knuckles, spring blade knife, or any knife from which the blade is automatically released by a spring mechanism or other mechanism or other mechanical device, or any knife having a blade which opens, falls, or is effected into position by force of gravity or an outward thrust or centrifugal movement, or any knife with a blade with a length in excess of three inches. This does not include knives designed for and used during hunting and fishing activities. However, such knives may only be carried while participating in those activities. The possession of knives kept in quarters and designed for the use in the preparation of food is authorized.
(b) Any incendiary devices, military ammunition and/or explosives.
(c) Any weapons not legally obtained.
(d) Any instrument commonly used in the practice of martial arts, for example, a nunchaku, except during the legitimate martial arts training. If martial arts use is authorized, storage of these instruments during nontraining periods will be in a location other than the arms room, as designed by the unit commander for soldiers residing in troop billets, BEQ or BOQ. Martial arts instruments may be stored in assigned government family quarters during nontraining periods.
(e) Any weapons on which the name of the manufacturer, serial number of identification have been changed, altered, removed or obliterated unless done for legitimate repair or part replacement.
(a) Possession, retention or storage of personal weapons or ammunition by person(s) described below is prohibited:
(1) Any person who has been convicted in any court of a crime of violence. For the purpose of this regulation, a crime of violence is one in which the use of force or threat of force is an element.
(2) Any person who is a fugitive from justice.
(3) Any person who has been convicted in any court of the possession, use, or sale of marijuana, dangerous or narcotic drugs.
(4) Any person who is presently declared as mentally incompetent or who is presently committed to any mental institution.
(5) Any civilian, or other than a military family member or a law enforcement officer authorized to carry the weapon under state or federal law, while on Fort Lewis or a sub-installation, except while hunting or engaged in authorized target practice or an organized match, unless specifically authorized in writing by the Commanding General, I Corps and Fort Lewis.
(b) Any person under the age of eighteen is prohibited from the use of firearms unless accompanied and supervised by a parent or legal guardian.
(c) Delivery of a personal handgun to persons known to be under the age of twenty-one, persons known to have been convicted of a crime or violence, persons known to be a drug abuser or under the influence of drugs, persons known to be an alcoholic or currently under the influence of alcohol or a person known to be of unsound mind, is prohibited.
Privately owned weapons, such as knives, swords, air guns, BB guns, cross bows, pellet guns, bow and arrows, of personnel residing the unit billets will be stored in a separate locked container, within a secured storage area designated for this purpose by the unit commander, in a location other than the unit arms room.
(a) Privately owned firearms and ammunition will be transported in the following manner:
(1) Weapons, other than weapons being transported into Fort Lewis for the first time, may be carried in vehicles only when traveling to and from an authorized hunting area during hunting seasons or enroute to or from authorized target practice and matches.
(2) The carrying of loaded privately owned weapons in a vehicle is prohibited.
(3) Privately owned weapons carried in a vehicle will be secured in the trunk or encased and carried in such a manner that they will not be readily available to the driver or passenger.
(b) Personnel who remove privately owned weapons from Fort Lewis or sub-installations will comply with applicable Federal, state, and local laws pertaining to the ownership, possession and/or registration of weapons.
Commanders will maintain confiscated weapons in the unit arms room pending final disposition. They will provide written notification of the circumstances or loss or recovery of such weapons and a complete and accurate description of the weapon to Commander, I Corps and Fort Lewis, ATTN: AFZH-PMS-P, Fort Lewis, WA 98433-5000. A copy of this notification will be maintained with the weapon pending final disposition.
For the purpose of this part, the following definitions apply:
(a)
(b)
(c)
(1) “Constant companion” or any similar weapon, designed or redesigned, made, or remade modified or remodified to be worn as a belt buckle, brass knuckles, “Knucklers,” and “Knucks.”
(2) Studded or spiked wrist bands, or any device designed or redesigned, made or remade, modified or remodified to fit over the hand or wrist which can be used to cause grave bodily harm.
(3) Blackjacks, slapjacks, slappers, saps, including homemade substitutes, other bludgeons (with or without handles), and metal pipes.
(4) “Nanchaku” (num-chucks), two or more sticks connected by rope, cord, or chain and normally used as a martial
(5) Any finger ring with blades or sharp objects that are capable of being projected/extended from the surface of the ring.
(6) Any device capable and primarily intended for discharging darts or needles.
(7) All firearms.
(8) Slingshots (not including small slingshots made for use by children), other missile throwing devices, or any other instrument designed to produce bodily harm.
(d)
(e)
(2) A weapon made from a shotgun, if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length.
(3) A rifle having a barrel or barrels of less than 16 inches in length.
(4) A weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length.
(5) A machine gun.
(6) A muffler or a silencer for any firearm whether or not such firearm is included within this definition. The term shall not include an antique firearm or any device (other than a machine gun) which, although designed as a weapon, by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as a weapon. For purpose of this definition, the length of the barrel on a shotgun or rifle shall be determined by measuring the distance between the muzzle and the face of the bolt, breech, or breechlock when closed and when the shotgun or rifle is cocked. The overall length of a weapon made from a shotgun or rifle is the distance between the extreme ends of the weapon measured along a line parallel to the center line of the bore.
(f)
(g)
(h)
(1) A chamber(s) as an integral part(s) of, or permanently aligned with, the bore(s).
(2) A short stock designed to be gripped by one hand and at an angle to and extending below the line of the bore(s).
(i)
(j)
(k)
(l)
(m)
(n)
(a)
(1) Sawed-off shotgun.
(2) Sawed-off rifle.
(3) Machine gun and automatic weapons.
(4) Silencers.
(5) Dangerous instruments as defined in § 552.126(c) of this part.
(6) Explosives, Incendiary and Pyrotechnic Devices, as defined in § 552.126(d) of this part.
(7) Knives with automatic blade openers (i.e., switch blades, gravity knives, stilettos) of any blade length. Folding or fixed bladed knives with a blade length of more than 3 inches. Swords, sabers, and machetes with sharpened blades.
(8) Any object which carries an electrical current of sufficient wattage to deliver a shock to a person, such as cattle prods, stun guns, “taser” or “public defenders.”
(9) Umbrellas, canes, or walking sticks with sharpened points or removable handles which convert into a sword type instrument.
(b)
(c)
(d)
(e) Carrying of straight razors, unless the razor is in the original sealed package, is prohibited.
(f)
(1) Military members or DOD civilian employees from possessing or using military weapons, military ammunition or explosives, or military devices in a lawful manner while in the performance of their military duties while acting under orders of superior military authority, for training, or other authorized purposes, as prescribed by applicable Army Regulations.
(2) Military and DOD civilian personnel, while in the performance of official law enforcement duties, from possessing or using government ammunition, explosives or devices in a lawful manner, as prescribed by applicable laws or regulations or by their lawful superiors.
(3) Federal, state, county or local law enforcement personnel, while in the performance of official law enforcement duties, from possessing or using government or privately-owned weapons, ammunition, explosives or devices in a lawful manner, as prescribed by applicable laws or regulations or by their lawful superiors.
(4) Government contractors, while in performance of their contract from possessing or using weapons, ammunition, explosives or devices, IAW the provisions of their contract and as determined by the contracting officer.
(5) Individuals with Federal firearms licenses (class III) from possessing, carrying, and transporting class III weapons IAW Federal regulations; however, they are prohibited from concealing, storing, transferring, or selling class III weapons within the confines of Fort Gordon.
(6) Individuals from possessing, carrying, transporting, or storing decorative, ornamental, and ceremonial swords and sabers within the confines of Fort Gordon when used strictly for display and ceremonies.
(7) Individuals and agencies from possessing, transporting, storing, selling, or using fixed bladed knives with a blade length of more than 3 inches when used for their lawful purpose (i.e., steak knives, cooking knives, hunting knives) and when in compliance with all other requirements in this subpart.
(8) Flares used for emergency warning devices in automobiles may be transported in the locked trunk or glove compartment of an automobile.
All persons entering or otherwise on Fort Gordon may possess legally-defined and privately-owned firearms, ammunition, pellet and BB guns, knives, bows and arrows, and crossbows under the following conditions:
(a) Privately-owned firearms, crossbows, pellet and BB guns possessed or stored on the installation must be registered at the Installation's Provost Marshal Office within 3 working days after arrival on the installation, or after obtaining the weapon, except:
(1) Firearms legally brought onto the installation for the purpose of hunting or firing at an approved firing range, and only for the period of time the person possessing the firearms is hunting or firing on the range.
(2) Firearms carried by federal, state, county, or local law enforcement personnel when in the performance of official law enforcement duties.
(b) Personnel residing in family housing, bachelor officers’ quarters/bachelor enlisted quarters/visiting officer quarters (BOQ/BEQ/VOQ) and guest housing, may store legally-acquired, authorized ammunition, knives with a blade measuring more than 3 inches, bows and arrows, registered crossbows, registered pellet and BB guns, and registered firearms within their quarters.
(c) Personnel residing in troop billets may store legally-acquired authorized ammunition, knives and blades measuring more than 3 inches, bows and arrows, registered crossbows, registered pellet and BB guns and registered firearms in unit arms rooms. The unit arms room should utilize a standard weapons card and log book to document storage, removal, and return.
(d) Persons 17 or under must be accompanied by a person over the age of 21, who will be responsible for compliance with the requirements of this subpart while hunting or target shooting
(e) Persons must be in compliance with federal and state laws regarding possession (i.e., age, criminal record restrictions, etc.).
(f) Storage, accountability, and registration procedures will be in accordance with (IAW) Army Regulation (AR) 190-11 (Physical Security of Arms, Ammunition and Explosives) and supplements. Copies of the AR may be obtained from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.
(g) Loss or theft of firearms and ammunition will be reported to the Fort Gordon military police desk sergeant immediately. Reports will contain all available details of the incident and a description of the lost item.
Persons legally authorized to possess firearms, ammunition, knives (with blades longer than 3 inches), bows and arrows, and crossbows, may carry or transport legally possessed and registered (if required) weapons under the following conditions:
(a) For purposes of hunting: From quarters, on or off the installation, by the most direct route to hunting area and return. Stopping at other installation facilities while en route is prohibited (i.e., post exchange, club, offices, etc.). Individual must have in his/her possession weapon registration (if applicable), valid state hunting license, valid Fort Gordon hunting permit and an area access pass (if applicable).
(b) For purposes of target shooting, selling the weapon or having the weapon repaired: From quarters by the most direct route to approved range or to the location where the weapon is to be sold or repaired and returned. Stopping at other installation facilities while en route is prohibited. Individual must have in his/her possession at all times his/her registration (if applicable).
(1) When carried, weapons will be carried in an open manner (not concealed). Firearms will be unloaded when carried (i.e., projectiles physically separated from the firearms, not just removed from the chamber), except when actually engaged in hunting or shooting. Knives will be carried in a sheath or scabbard worn in a clearly visible manner. Commanders may authorize the carrying of a privately-owned, knife with a blade over 3 inches to field duty. The provost marshal may authorize the carrying of a privately-owned, sheathed, lock blade knife on military and DOD police officers’ pistol belts.
(2) When transported in a vehicle, weapons will be in plain view in the passenger area of the vehicle or secured (locked) in the trunk or other rear compartment of the vehicle, not readily accessible from the passenger area (i.e., locked tool box secured to bed of a truck). Firearms will be unloaded and the ammunition physically separated from the firearms. THE GLOVE COMPARTMENT OF A VEHICLE IS NOT AN AUTHORIZED COMPARTMENT FOR STORING PISTOLS.
(3) Firearms, bows and arrows, crossbows, pellet and BB guns will not be loaded, fired, or used within any housing area or cantonment area of the installation; within 50 yards of any public highway, street or Fort Gordon named street or numbered road, or across same; within 100 yards of any designated recreation area, managed waters, building or similar structures; any aircraft landing facility; any ammunition storage area (except on approved firing ranges when properly authorized); be discharged from vehicles.
All weapons, ammunition, explosives, or other devices defined in this subpart, that are confiscated pursuant to the commission of a crime or violation of this subpart or other regulation or found unsecured/unattended on the installation, will be immediately turned over to the military police, U.S. Army Criminal Investigation Command (USACIDC), or the Federal Bureau of Investigation (FBI) for investigation, retention as evidence, or other law disposition. When retention for investigation or evidence is no longer required by military police, USACIDC, or other law enforcement or judicial agencies, the items will be disposed of under the
16 U.S.C. 470; 1531-1543; 18 U.S.C. 1382; 50 U.S.C. 797.
(a) This subpart establishes restrictions governing the operation of unauthorized vehicles, motorized and non-motorized, on the army training areas of Fort Benjamin Harrison, Indiana, as defined in § 552.134 of this subpart. Unauthorized vehicles are restricted to paved roads on the installation of Fort Benjamin Harrison, Indiana.
(b) These restrictions are established to prevent the interruption of the use of these Army training areas by any person or persons. The continued and uninterrupted use of these training areas by the military is vital in order to maintain and improve the combat readiness of the U.S. Armed Forces. Training conditions exist within these areas which could be dangerous to unauthorized persons entering these areas.
(c) In addition, these restrictions have been established to prevent property damage, threatening of endangered flora and fauna in the areas, and to prevent the harassment of protected species such as the Blue Heron and the Indiana Bat by any person or persons.
The restrictions outlined in this subpart apply to all individuals, with the exception of soldiers and Army civilian employees and authorized contractors, who may enter the restricted areas in the performance of their official duties.
Required and related publications are listed below. U.S. Codes referenced in this subpart can be obtained from the Government Printing Office or can be reviewed in any Public Library. Army publications referenced in this subpart may be obtained from the U.S. Army Publications and Printing Command, Alexandria, VA 22331-0302.
a. 16 U.S.C. 1531-1543.
b. 16 U.S.C. 470.
c. Title 18, U.S.C. 1382.
d. Internal Security Act of 1950, section 21 (50 U.S.C. 797).
e. Army Regulation 420-74.
f. 10 U.S.C. 801-940.
g. Article 92, Uniform Code of Military Justice.
(a) For purpose of this subpart, restricted areas on the installation of Fort Benjamin Harrison, Indiana area defined as training areas A thru J, to include the gold course. A map defining these areas is located in the Directorate of Plans, Training, and Mobilization, Security, Plans and Operations Division, Training Branch, Building 600, Room B, Fort Benjamin Harrison, Indiana.
(b) Unauthorized motor and non-motorized vehicles are defined as any wheeled or tracked vehicle. This may include, but not limited to, bicycles, ATV, snow mobiles, motor cycles, automobiles, trucks, etc.
(a) Except for the soldiers, Army civilians and authorized contractors who enter the restricted areas in the performance of their official duties, entry of unauthorized vehicles is prohibited for any purpose whatsoever without the advanced consent of the Commander, United States Army Soldier Support Center (USASSC), Fort Benjamin Harrison, Indiana, or his/her authorized representative.
(b) Any person or group of persons desiring advanced consent shall, in writing, submit a request to the following address: HQ, USASSC and Fort Benjamin Harrison, ATTN: Public Affairs Office, Building 600, Fort Benjamin Harrison, Indiana 46216-5040.
(a) Any person/persons entering or remaining on any training area as defined in § 552.134 without the advance
(b) Moreover, any person who willfully violates this subpart is subject to a fine not to exceed $5,000.00 or imprisonment for not more than 1 year as provided in § 552.133(d) of this subpart.
(c) In addition, violation of this subpart by persons subject to the Uniform Code of Military Justice (10 U.S.C. 801-940) is a violation of Article 92 of the Uniform Code of Military Justice.
10 U.S. Code, Ch. 47, 21 U.S. Code 801,
This part is punitive in nature and applies to all persons assigned to, attached to, or present on the installation of Fort Jackson, South Carolina. A violation of, attempted violation of, or solicitation or conspiracy to violate any provision of this part provides the basis for criminal prosecution under the Uniform Code of Military Justice, applicable Federal Law, other regulations, and/or adverse administrative action. Civilian visitors may be barred from the installation of Fort Jackson and prosecuted under appropriate Federal laws. The enumeration of prohibited activities in this part is not intended to preclude prosecution under other provisions of law or regulation.
This part does not list all activities or practices prohibited on the installation of Fort Jackson, South Carolina. Various other Army and Fort Jackson regulations specifically prohibit other activities or practices. See appendix A to this subpart.
The following activities are prohibited:
(a) The possession, delivery, sale, transfer, or introduction into the installation of Fort Jackson of any device, instrument or paraphernalia designed or reasonably intended for use in introducing into the human body a controlled substance, as defined in the Controlled Substances Act, 21 U.S.C. 801,
(b) Unless an exception is approved by the Chief of Staff or a Major Subordinate Commander for a special occasion, consumption of alcoholic beverages, or the possession of an open container thereof, is prohibited under the circumstances listed in this section. For the purpose of this part, an “alcoholic beverage” is any liquid beverage containing any amount of ethyl alcohol, including wines, malt beverages and distilled spirits.
(1) By military personnel in uniform during duty hours (0730-1630).
(2) By military personnel during their assigned duty hours when different than those in paragraph (b)(1) of this section.
(3) By civilian employees during their assigned duty hours. Lunch time is not considered duty time for civilian employees.
(4) By civilian or military personnel in places of duty.
(5) By any person in a public place, except: in the Twin Lakes and Weston Lake Recreational Areas, in the immediate vicinity of Oyster Point (Officers’ Club), at installation club facilities governed by section II of AR 215-2, and at Army/Air Force Exchange Service (AAFES) eating establishments which serve alcoholic beverages for on-premises consumption.
(6) By any person in any Fort Jackson parking lot or parking area, to include the Burger King parking lot and all parking lots of AAFES facilities and installation club facilities.
(c) The presence of any person in a training area or of any permanent party soldier or civilian employee in a trainee/receptee billeting area while
(d) Privately Owned Firearms and Ammunition. For the purpose of this part, a “firearm” means any device which is designed to or readily may be converted to expel a projectile by the action of an explosive. Air/pellet guns, BB guns and bows are subject to all of the provisions of this paragraph except paragraph (d)(1) of this section.
(1) It is prohibited for persons residing on the installation to fail to register privately owned firearms with their unit commander.
(2) Storage of privately owned firearms in the barracks is prohibited. For the purposes of this part, “barracks” does not include BOQs or SBEQs.
(3) It is prohibited to store privately owned firearms in BOQs, SBEQs, or family quarters unless the firearm is unloaded, ammunition is stored separately from the firearm in a locked container, and one of the following methods for firearms storage is employed: by using a trigger locking device, by storing the firearm in a locked container, by removing the firing pin from the firearm and storing the firing pin in a locked container, or by disassembling the firearm and storing the disassembled parts in separate places. For the purposes of this part a “locked container” and a “locking device” mean locked containers and locking devices the keys to which are stored in a place not assessable to persons under 18 years of age.
(4) It is prohibited to carry on one's person any privately owned firearm in a public place on the installation of Fort Jackson unless participating in an authorized sporting activity or hunting in accordance with applicable regulations.
(5) In addition to the requirements of paragraph (d)(4) of this section, a person under 18 years of age is prohibited from carrying on his or her person a firearm outside the presence of a responsible adult.
(6) Carrying a concealed firearm on one's person, except by military, state and Federal law enforcement authorities in the performance of their duties, is prohibited.
(7) It is prohibited to transport in a vehicle any privately owned firearm except in a manner prescribed by the laws of South Carolina.
(8) It is prohibited to carry on one's person or transport in a vehicle any privately owned firearm within the Weston Lakes and Twin Lakes Recreation areas.
(e) Weapons Other Than Privately Owned Firearms. The possession of the following privately owned weapons or devices is prohibited:
(1) Any knife having a switchblade or automatic blade.
(2) Brass knuckles or similar devices.
(3) Blackjacks, saps, nunchaku and similar devices. As exceptions, nunchucks may be possessed for bona fide educational instruction or competition in a recognized martial arts program and may be carried and transported directly to and from educational and competitive martial arts events.
(4) When carried on one's person in an unconcealed manner, knives with blades in excess of three inches in length except while engaged in authorized hunting, fishing, camping or other outdoor recreational activities, or when required by duty purposes.
(5) When carried on one's person in a concealed manner, knives with blades in excess of three inches, razors and ice picks.
(f) The charging of a usurious interest rate, defined as a rate exceeding thirty-six (36) percent per annum or three (3) percent per month, for the loan of money or for the extension of credit, is prohibited.
(g) Sexual intercourse or any indecent, lewd or lascivious act in any office, barracks, training area, duty location, parking lot, public recreation area or public place is prohibited.
(h) Relationships between service members of different rank or sex which involve or reasonably give the appearance of partiality, preferential treatment, the improper use of rank or position for any personal gain, or which can otherwise be reasonably expected
(i) Being present in any “off-limits” or “limited access” areas, except as authorized in Fort Jackson Regulation 190-3, is prohibited (See appendix A to this subpart).
(j) Use of a metal detector for other than official purposes is prohibited.
(k) When directed to do so by the Military Police, failure to relinquish possession or control to the Military Police of abandoned property found on the installation is prohibited.
(l) Scavenging in or removal of waste items or recyclable materials from dumpsters, garbage cans, outdoor trash receptacles, recycling collection points, or landfill areas is prohibited, except for official purposes. This part does not prohibit persons from collecting and disposing of scattered litter, including aluminum cans, from roadsides, parking lots and recreation areas.
(m) It is prohibited for military personnel to engage in outside employment of any nature, including ownership or operation of a private business, without the prior written approval of their commander. Soldiers reassigned or reattached from one Fort Jackson unit to another Fort Jackson unit must obtain approval for continued employment from the gaining commander within 30 days of reassignment.
(n) Except as authorized by the Installation Commander, Chief of Staff or a Major Subordinate Commander, the use of radios, stereos, tape players, compact disk players or any other similar electronic sound generating or amplification source, including equipment installed or located in motor vehicles, in a manner that can be heard more than 125 feet from the source, is prohibited. This paragraph does not apply to law enforcement or emergency vehicles, or safety warning devices.
(o) Loitering in any public place on Fort Jackson, to include all parking lots, is prohibited. Loitering is defined as remaining idle in essentially one location, spending time idly, loafing, or walking around without a purpose in a public place in such a manner as to create a disturbance or annoyance to the comfort of any person, create a danger of a breach of the peace, obstruct or interfere with any person lawfully in any public place, or obstruct or hinder the free passage of vehicles or pedestrians. Any person loitering as defined above in any public place may be ordered by a law enforcement officer to leave that place or the Fort Jackson military reservation.
(a) Unit commanders and supervisors shall ensure that newly assigned or attached military and civilian personnel are informed of the prohibitions contained in this regulation. Soldiers-in-training will be informed of the provisions of this regulation at the beginning of each training cycle.
(b) All permanent party personnel and civilian employees will be reminded annually of their duty to comply with this part.
These publications are available for inspection at the Office of the Staff Judge Advocate, Fort Jackson, SC 29207-5000.
1. Distribution of Written Materials on the Installation—Fort Jackson Supplement 1 to AR 210-10.
2. Demonstrations, Pickets, Sit-ins, etc.—Fort Jackson Supplement 1 to AR 210-10.
3. Standards of Ethical Conduct for Employees of the Executive Branch, 5 Code of Federal Regulations, part 2635.
4. Improper Associations—Fort Jackson Regulation 600-5.
5. Mistreatment of Soldiers-in-Training—Fort Jackson Regulation 350-1.
6. Participation in Military Labor Unions—Army Regulation 600-20.
7. Traffic Violations—Fort Jackson Regulation 190-5.
8. Areas of Access—Fort Jackson Regulation 190-3.
16 U.S.C. 470, 1531-1543; 18 U.S.C. 1382; 50 U.S.C. 797.
(a) This subpart establishes procedures for entry to maneuver training areas at Fort Lewis, Yakima Training Center (YTC), and Camp Bonneville. Procedures for other sub-installations to Fort Lewis will be developed by the Commanders of those installations.
(b) Uninterrupted military use of training areas is vital to the maintenance of US and Allied Armed Forces combat readiness. In addition, maneuver training areas may be dangerous to persons entering without warnings provided during training scheduling or use permit processing.
See appendix E to this subpart.
See appendix F to this subpart.
(a) This subpart is applicable to all military and civilian users of the range complexes at Fort Lewis, Yakima Training Center, and Camp Bonneville.
(b) This subpart governs all use of the Fort Lewis, Yakima Training Center and Camp Bonneville Military Reservations outside cantonment areas, housing areas, and recreational sites controlled by the Director of Personnel and Community Activities (DPCA). These areas are designated on the Fort Lewis, Yakima Training Center and Camp Bonneville Military Installation Maps as Impact Areas and lettered or numbered Training Areas (TAs), and comprise the range complexes for each Installation.
(a) Military training. Use of the Fort Lewis, Yakima Training Center, and Camp Bonneville range complexes for military training is governed by FL Regs 350-30, 350-31, and 350-32. Scheduling is per FL Policy Statement 350-2. Military training always has priority.
(b) Hunting. Hunting, fishing, and trapping on the range complexes are governed by FL Reg 215-1 and the Yakima Training Center Hunting Letter of Intent (LOI).
(c) Fund raising. Fund raising events for non-profit private organizations not affiliated with the Army or Fort Lewis per AR 210-1 require a Corps of Engineers Real Estate Agreement. Requests for fund-raisers by such non-profit organizations, to be conducted on the Fort Lewis range complex, will be sent to the Director of Plans, Training, and Mobilization (DPTM) Range Division of preparation of a DPTM staffing document. The document will be circulated for comment to Director of Personnel and Community Activities (DPCA), Staff Judge Advocate (SJA), Public Affairs Officer (PAO), and Director of Engineering and Housing (DEH). If the event can be supported, DPTM will advise the organization to contact the Director of Engineering and Housing Real Property Branch. Requests for such activities at Yakima Training Center will be sent to the Yakima Training Center Commander for review and processing. For Camp Bonneville, the entry point is the Vancouver Barracks Commander. Corps of Engineers Real Estate Agreements require up to 8 months to process, and includes payment of a $375.00 minimum administrative fee, with actual costs determined on a case by case basis. Requests for fundraisers in the cantonment area by private organizations are processed per AR 210-1 by the Director of Personnel and Community Activities (DPCA).
(d) Commercial use. Individuals or organizations using the range complex for profit-generating activities must possess a Corps of Engineers Real Estate Agreement. As stated above, these agreements require up to 8 months to process and include a minimum administrative fee of $375.00, with actual costs determined on a case by case basis. Entry point for these agreements is the DEH Real Property Branch. Profit-generating activities include collection of fees for services performed on the range complex, or selling materials collected from the range complex. Real Estate Agreement holders must check into the range complex daily by calling or coming to Area Access.
(e) Installation service and maintenance. Department of Defense (DoD) and contractor personnel on official business are authorized on the range complex per appendix C to this subpart.
(f) Non-DoD personnel in transit. Individuals in transit across Fort Lewis on State or County maintained roads, or roads designated for public access by the Installation Commander, require no special permits. See appendix B to this subpart. This measure does not apply at Yakima Training Center or Camp Bonneville.
(g) Alcoholic Beverages. No alcoholic beverages may be consumed on the range complexes except as authorized per FL Reg 210-1.
(h) Failure to comply. Persons entering the Fort Lewis, Yakima Training Center, or Camp Bonneville range complex without permit or scheduling, which constitute the consent of the Commanding Officer or his designated representative, are in violation of this regulation and trespassing on a controlled access Federal Reservation. Offenders may be cited by Military Police and may be subjected to administrative action or punishment under either the Uniform Code of Military Justice UCMJ) or Title 18 US Code Section 1382, or Title 50 U.S. Code Section 797, as appropriate to each individual's status. Administrative action may include suspension or loss of recreational privileges, or permanent expulsion from the Military Reservations.
(a) Commander, Yakima Training Center:
(1) Schedule the Yakima Training Center range complex per FL Reg 350-31 and FL PS 350-2.
(2) Process requests for non-military, non-commercial use per § 552.166.
(b) Commander, Vancouver Barracks:
(1) Schedule the Camp Bonneville range complex per FL Reg 350-32 and FL PS 350-2.
(2) Process requests for non-military, non-commercial use per Paragraph 6c.
(c) Fort Lewis DPTM.
(1) Schedule the Fort Lewis range complex per FL Reg 350-30 and FL PS 350-2, including allocation of and for recreational use.
(2) Operate the Fort Lewis Area Access Section.
(3) Respond to DEH coordination on timber sales and other commercial use of the range complex.
(d) Law Enforcement Agency (LEC). Provide law enforcement and game warden patrols on the range complexes.
(e) Director of Engineering and Housing (DEH).
(1) Coordinate with DPTM and the appropriate Sub-Installation Commander on Real Estate Agreements, timber sales, wildlife management, construction, forest management, Installation Training Area Management (ITAM), and other DEH or Corps of Engineers managed actions occurring on the range complex
(2) Ensure that Real Estate Agreement holders are required to notify Fort Lewis Area Access, YTC DPCA, or Camp Bonneville Range Control, as appropriate, of range complex entry.
(f) DPCA. With DEH, manage Installation hunting, fishing, and trapping programs. Manage picnic and recreation sites located in the Fort Lewis range complex, as listed in appendix A to this part. Advise DPTM on private organizations requesting use of the Fort Lewis range complex for fundraisers.
(g) Public Affairs Office (PAO).
(1) Act as interface to resolve community relations issues related to land use.
(2) Coordinate equipment and special assistance requests per § 552.165, and advise DPTM or the appropriate Sub-Installation Commander if permit requirements have been waived by the Command Group for a particular event or activity.
(3) Inform DPTM or the appropriate Sub-Installation Commander of public response to policy execution.
(a) Fort Lewis:
(1) Individuals or organizations, military or civilian, desiring access to the Fort Lewis range complex for recreation must obtain a Fort Lewis Area Access permit, composed of HFL Form 652 and HFL Form 653. Exceptions are outlined below.
(2) Exception 1: DoD ID card holders enroute to or using DPCA recreational areas listed in appendix A to this subpart need no permit other than the ID
(3) Exception 2: Organizations or groups whose activity requires advanced commitment of a specific site or area, such as Scout Camporees, seasonal or one-time regional meets, and so on, must apply to the Fort Lewis DPTM, ATTN: Range Division, in writing. At least 30 days are required to process these requests. If the requested use is allowable and an appropriate area is available, DPTM may approve the request. Groups with approved land commitments will be scheduled onto the Range Complex using HFL 473. Actual commitments of land will not be made until after the Quarterly Range Scheduling Conference that covers the time period in question. Groups who need military equipment or other special support from Fort Lewis must apply in writing directly to the I Corps Public Affairs Office (PAO).
(b) Yakima Training Center: Access to the Yakima Training Center range complex for recreation requires application in writing to the Commander, Yakima Training Center, Yakima WA 98901-9399. Camping is normally not permitted on Yakima Training Center. Exceptions may be granted by the Yakima Training Center Commander for special events.
(c) Camp Bonneville: Access to the Camp Bonneville range complex for recreation requires a call to Range Control, telephone (206) 892-5800, the day before or the day of the activity. Access will be permitted if no military maneuver or live fire training is scheduled for the day requested.
(a) Authorized activities are listed in appendix C to this subpart.
(b) Prohibited activities are listed in appendix D to this subpart.
(a) DPTM Range Division operates the Area Access Section to issue permits and grant non-training access to the range complex.
(b) Area Access is located in Range Control, Building T-6127, 19th and Tacoma Streets, Main Post Fort Lewis. Telephone numbers are (206) 967-4686/6277. Fax extension is 967-4520. E-mail is “rangeflw.” Business hours vary dependent on personnel fill, and are available by calling the above numbers.
(c) Individuals desiring access for authorized activities must register in person at Area Access during business hours. Minimum age is 18 years, except for active duty military personnel. Persons under 18 years of age must be sponsored and accompanied by a parent or legal guardian. Individual registration requires:
(1) Picture ID.
(2) Address and telephone number.
(3) Vehicle identification and license number, if a vehicle is to be brought on post.
(4) Names and ages of minor family members who will accompany a sponsor or permit holder.
(5) Liability release signature.
(6) Certification that intended activities are on the authorized list and are not for profit or fund-raising. Persons who submit false certificates are subject to prosecution in Federal Court under Title 18, United States Code, Section 1001, and the provisions of § 552.165 of this subpart.
(d) A wallet-sized permit (HFL Form 653) and a vehicle pass (HFL Form 652) will be issued to each person authorized access. The permit is not transferable. Entry to the Fort Lewis range complex without the permit is prohibited.
(e) A collective permit will be issued to an organization desiring to conduct a one-time group event not tied to a specific area or site, maximum length 3 days. The group leader must register in person at the Area Access Office and must be 21 years of age or older except for active duty military personnel.
(1) Group registration requires the information listed for individual permits above for the group leader(s), plus a list of names of all persons in the group.
(2) Group permits require that all members of the group be with the leader throughout the event. If the group plans to separate while on Fort Lewis, sub-group leaders must be appointed and must obtain separate group permits. The group leader permit is not transferable.
(3) Events requiring commitment of land must be processed per § 552.166.
(f) Aside from the land commitment coordination time requirement in § 552.166, there is no deadline for permit application. Permits for authorized activities that do not require commitment of land may be obtained on the day of the event.
(g) Group event permits for specialized one-time activities are valid for the duration of the event, not to exceed 3 days. Individuals activities permits are valid for one year. When a permit expires, the holder must re-register to renew privileges, and a new permit will be issued.
(h) Access hours are 30 minutes after daylight to 30 minutes before dark, except for authorized overnight activities and as outlined in FL Reg 215-1.
(i) All permit holders must check in with Area Access, either telephonically or in person, no earlier than 0800 the day prior to the event. It is the responsibility of each permit holder to inform a friend or relative of the area being used, the estimated time of return, and the vehicle being used.
(j) Except when land commitment has been coordinated and approved, Area Access will determine when called for entry whether the area requested is available. If the requested area is not open for permit holders and an alternate area cannot be provided or is not acceptable to the requestor, access will be denied.
The Yakima Training Center DPCA functions as the Area Access Officer (AAO).
Camp Bonneville Range Control (CBRC) functions as Area Access.
(a) Military unit commanders may request during initial scheduling or subsequent training event coordination that no permit holders be allowed in areas they have scheduled for training. If this restriction is granted, the Installation Range Control will close appropriate areas. The following military activities are considered incompatible with non-training access and automatically close affected areas:
(1) Live-fire training events with danger zones extending into training areas.
(2) Parachute and air assault operations.
(3) Field Artillery firing. The numbered training area occupied by the weapons will be closed.
(4) Training involving riot agents or smoke generating equipment.
(b) The Installation Range Officer may also close training areas based on density of occupation by military units, unit size, or training to be conducted.
(c) Areas allocated to modern firearm deer hunting are closed to both training and other recreational activities. At Fort Lewis, when pheasant release sites can be isolated by swamps, streams, or roads from the rest of a training area, multiple use of the affected training area (TA) is authorized.
Anyone observing violators of this or other regulations must report the activity, time, and location to the appropriate Area Access Office or the Military Police (MP) as soon as possible.
1. This listing applies to Fort Lewis only. There are no such facilities at Yakima Training Center or Camp Bonneville.
2. For DoD member use only, no permit other than ID card required.
Use of specific sites is authorized only to military, retired military, DoD civilian personnel, their family members and accompanied guests.
3. For non-DoD member use, permit required: Chambers Lake and Nisqually River for fishing only.
4. The Solo Point road and the South Sanitary Fill roads are also open in an east-west direction only to personnel of the Weyerhaeuser Corporation and Lone Star Corporation, and their assigns, for business or recreation access to adjacent Army owned real estate.
1. This listing applies only to Fort Lewis. There are no such routes on Yakima Training Center or Camp Bonneville.
2. The following public easement routes may be used without permit or check-in: I-5.
3. The following military routes may be used without permit ot check-in:
4. The Solo Point Road is open to Weyerhauser Corporation personnel for business and recreation.
5. DoD personnel and Fort Lewis contractor personnel on official business may use all DEH-maintained range roads and trails in the training areas.
6. Range roads closed for training by barricades or road guards will not be used. Barricades and guards will not be by-passed.
1. Fort Lewis:
Non-DoD personnel in transit on public-access routes (appendix B) non-commercial recreational use:
2. Yakima Training Center:
Non-Commercial recreational use:
3. Camp Bonneville:
Non-Commercial recreational use:
Permit holders for the above activities must certify that they are non-commercial and not for profit.
1. Fort Lewis:
2. Yakima Training Center:
3. Camp Bonneville:
Army Regulations referenced in this subpart may be obtained from National Technical Information Services, U.S. Department
Fort Lewis Regulations and forms referenced in this subpart may be viewed at the Office of the Staff Judge Advocate General, Fort Lewis, Washington or at the Range Office, Headquarters, I Corps and Fort Lewis.
10 U.S.C. Chapter 27; 16 U.S.C. 470, 1531-1543; 18 U.S.C. 1382; 50 U.S.C. 797.
This subpart prescribes policies and procedures for the operation and use of fishing facilities located at Fort Monroe, Virginia.
This subpart applies to all personnel to include military and civilian personnel assigned to Fort Monroe, residents and visitors to the State of Virginia who utilize the fishing facilities located at Fort Monroe.
Publications referenced in this section may be reviewed in the Office, Directorate of Community and Family Activities, Fort Monroe, Virginia.
(a) AR 215-1, Administration of Army Morale, Welfare, and Recreation activities and Non appropriated Fund Instrumentalities, February 20, 1984.
(b) Fort Monroe Vehicle Code.
(c) Codes of Virginia S 28.1-48(c), S 28.1-174, 28.1-187, and S 28.2-302.1-9.
(d) Virginia Marine Resources Commission (VMRC) regulations.
(e) Department of Defense (DD) Form 1805, United States District Court Violation Notice.
(f) Fort Monroe Fishing Map (appendix A to this subpart).
(a) Director of Community and Family Activities (DCFA) is responsible for the overall operation of the installation fishing program.
(b) Directorate of Installation Support is responsible for—
(1) Trash and debris disposal.
(2) Real property facility maintenance and repair.
(3) Periodic hosing of all piers, as required.
(c) The Directorate of the Provost Marshal (DPM) will—
(1) Enforce this subpart and all other policies imposed by the Fort Monroe Installation Commander and state and federal fishing regulations.
(2) Open and close fishing areas in accordance with this subpart. Seasonal safety factors and ongoing ceremonies will, at times, delay opening of fishing areas.
(3) Issue DD Form 1805 for violations, as appropriate.
(a) Fort Monroe fishing facilities are available for use by authorized personnel on a daily basis.
(b) Direct requests for information and/or assistance to the Outdoor Recreation Office at commercial (804) 727-4305 or (804) 727-2384.
(c) Personal equipment restrictions on all piers located on Fort Monroe are as follows:
(1) Two fishing rods per person, 18 years of age and older; one fishing rod per person, under 18 years of age.
(2) Dip nets with handles exceeding 4 feet in length are prohibited on all piers at Fort Monroe.
(3) Personnel using cast nets to catch food fish must have a current state cast net license in their possession.
(4) Personnel are authorized to take or catch crabs with one crab trap or crab pot per person from Fort Monroe piers.
(d) Saltwater fishing licenses. Persons ages 16 through 64, fishing with a rod and reel, or any other fishing device, in Virginia's portion of the Chesapeake Bay or in saltwater or tidal tributaries require a saltwater fishing license. Refer to the 1994 Virginia Freshwater and Saltwater Fishing Regulations booklet for exemptions and fee information. This booklet is available at the Outdoor Recreation Office, Building 165, Fort Monroe.
(e) In accordance with Codes of Virginia S 28.1-174 and S 28.1-165, persons without a license to take crabs will be permitted to take or catch 1 bushel of hard-shell crabs and 2 dozen peeler crabs per day, per household. A first violation of any regulation under the Code of Virginia in regards to fishing, crabbing, etc., is a Class 3 misdemeanor; second or subsequent violations of these provisions is a Class 1 misdemeanor in accordance with S 28.2-903, Code of Virginia.
(f) All patrons are responsible for the conduct of their family members and guests. They are also responsible for the proper disposal of all personal refuse into the proper receptacles. Refuse such as seaweed, leftover bait, unwanted fish, crabs, etc., will NOT be left on piers or placed in trash receptacles. All refuse of this type will be thrown overboard. However, it is illegal and a violation of existing law to throw fishing line, paper, plastic materials, and other debris into the water. Doing so may lead to a fine or imprisonment, or both. All man-made materials will be deposited in proper trash receptacles or recycled.
(g) Cleaning of fish is not allowed on Fort Monroe piers and seawalls.
(h) Littering (to include leaving seaweed, bait, or fish on piers) is prohibited. Failure to comply with established policies may result in the loss of installation fishing privileges.
(i) Children under 12 years of age must be accompanied by a responsible adult at all Fort Monroe fishing piers.
(j) The moat is off limits to fishing.
(k) The Fort Monroe fishing map at appendix A to this subpart, visually outlines all areas authorized for each category of user. Copies of this map are available at the Outdoor Recreation Office, Building 165.
(l) In accordance with the Directorate of Provost Marshal, police officers from the Virginia Marine Resources Commission (VMRC) will enforce VMRC fishing regulations at Fort Monroe fishing areas.
The following personnel are authorized to fish on Fort Monroe:
(a) Active duty and retired military personnel, their family members, and Department of Defense civilian employees, as specified on the fishing map at appendix A to this subpart.
(b) All other personnel, as specified on the fishing map at appendix A to this subpart.
18 U.S.C. Sec. 1382.
This subpart establishes policies, responsibilities, and procedures for protests, pickeing, and other similar demonstrations on the Aberdeen Proving Ground installation.
(a) The provisions of this subpart apply to all elements of U.S. Army Garrison, Aberdeen Proving Ground (USAGAPG), and the supported organizations and activities on the Aberdeen and Edgewood Areas of Aberdeen Proving Ground.
(b) The provisions of this subpart cover all public displays of opinions made by protesting, picketing, or any other similar demonstration.
(c) The provisions of this subpart are applicable to all people, military and civilian employees, and all visitors, family members, or others, entering, upon or present at Aberdeen Proving Ground.
(a) Aberdeen Proving Ground is a non-public forum and is open for expensive activity only under certain circumstances. Aberdeen Proving Ground is a military installation under the exclusive federal jurisdiction at which official business of the federal government is conducted, including military training, testing of weapon systems and other military equipment, and other official business.
(b) On Aberdeen Proving Ground, except for activities authorized under 5 United States Code Chapter 71, Labor Management Relations, it is unlawful for any person to engage in any public displays of opinions made by protesting, picketing or any other similar demonstration without the approval of the Commander, U.S. Army Garrison, Aberdeen Proving Ground. Therefore, unless prior approval has been obtained as outlined below in 32 CFR 552.214, it will be unlawful for any person on Aberdeen Proving Ground to:
(1) Engage in protests, public speeches, marches, sit-ins, or demonstrations promoting a point of view.
(2) Interrupt or disturb the testing and evaluating of weapon systems, or any training, formation, ceremony, class, court-martial, hearing, or other military business.
(3) Obstruct movement on any street, road, sidewalk, pathway, or other vehicle or pedestrian thoroughfare.
(4) Utter to any person abusive, insulting, profane, indecent, or otherwise provocative language that by its very utterance tends to excite a breach of the peace.
(5) Distribute or post publications, including pamphlets, newspapers, magazines, handbills, flyers, leaflets, and other printed materials, except through regularly established and approved distribution outlets and places.
(6) Circulate petitions or engage in picketing or similar demonstrations for any purpose.
(7) Engage in partisan political campaigning or electioneering.
(8) Disobey a request from Department of Defense police, other government law enforcement officials (e.g., Federal, State, or local law enforcement officials), military police, or other competent authority to disperse, move along or leave the installation.
(c) In appropriate cases, the Commander, U.S. Army Garrison, Aberdeen Proving Ground may give express written permission for protests, picketing, or any other similar demonstrations on Aberdeen Proving Ground property outside the gates adjacent to the installation borders, only if the procedures outlined below in 32 CFR 552.214 are followed.
(a) Any person or persons desiring to protest, picket, or engage in any other similar demonstrations on Aberdeen Proving Ground must submit a written request to the Commander, U.S. Army Garrison, Aberdeen Proving Ground, ATTN: STEAP-CO, 2201 Aberdeen Boulevard, Aberdeen Proving Ground, Maryland 21005-5001. The request must be received at least 30 calendar days prior to the demonstration, and it must include the following:
(1) Name, address, and telephone number of the sponsoring person or organization. (If it is an organization, include the name of the point of contact.)
(2) Purpose of the event.
(3) Number of personnel expected to attend.
(4) Proposed date, time, location and duration of the event.
(5) Proposed means of transportation to and from APG.
(6) Proposed means of providing security, sanitary services and related ancillary services to the participants.
(b) Based on the Commander's concerns for discipline, mission accomplishment, protection of property, and the safeguarding of the health, morale, and welfare of the APG community, the Commander will determine whether to grant the request and, if granted, any limitations as to where and when it will take place.
(a) Director, Law Enforcement and Security, U.S. Army Garrison, Aberdeen Proving Ground, will furnish police support as needed.
(b) Chief Counsel and Staff Judge Advocate, U.S. Army Test and Evaluation Command, will provide a legal review of the request.
(a) A person is in violation of the terms of this subpart if:
(1) That person enters or remains upon Aberdeen Proving Ground when that person is not licensed, invited, or otherwise authorized by the Commander, U.S. Army Garrison, Aberdeen Proving Ground pursuant to the terms of § 552.214; or
(2) That person enters upon or remains upon Aberdeen Proving Ground for the purpose of engaging in any activity prohibited or limited by this subpart.
(b) All persons (military personnel, Department of the Army civilian employees, civilians, and others) may be prosecuted for violating the provisions of this subpart. Military personnel may be prosecuted under the Uniform Code of Military Justice. Department of the Army civilian employees may be prosecuted under 18 U.S.C. 1382, and/or disciplined under appropriate regulations. Civilians and others may be prosecuted under 18 U.S.C. 1382.
(c) Administrative sanctions may include, but are not limited to, bar actions including suspension of access privileges, or permanent exclusion from Aberdeen Proving Ground.
1. DOD use only, permit not required:
Use is authorized only to military, retired military, DOD civilian personnel, their family members and accompanied guests.
2. Non-DOD use, permit required: Chambers Lake, fishing only.
1. The following public easement routes may be used without permit or check-in:
2. The following military routes may be used without permit or check-in:
3. The Solo Point Road is open to Weyerhauser Corporation personnel for business and recreation.
4. DOD personnel and Fort Lewis contractor personnel on official business may use all DEH-maintained paved roads and two lane gravel roads in the training areas. The use of one lane gravel lanes, or any established road not identified above, must be coordinated with the Area Access Office prior to use except as specified in § 552.87(b)(2)
5. All range roads closed because of training activities will not be used until opened by the Range Officer. Such road closures will normally involve barricades and road guards. Barricades and road guards placed by direction of Range Control may not be by-passed.
24 U.S.C. Ch. 7.
The following specifies the authority and assigns the responsibilities for the development, operation, maintenance, and administration of the Arlington and Soldiers’ Home National Cemeteries, a civil works activity of the Department of the Army.
Basic statutory authority pertaining to the Army national cemeteries is in chapter 7, title 24, United States Code, entitled “National Cemeteries.” Many of the provisions of this chapter were repealed by section 7(a) of the National Cemeteries Act of 1973 (Pub. L. 93-43, 18 June 1973, 38 U.S.C. 1000
(a)
(b)
The Army national cemeteries, consisting of the Arlington National Cemetery, Arlington, Virginia, and Soldiers’ Home National Cemetery, Washington, DC, are under the jurisdiction of the Department of the Army. The Assistant Secretary of the Army for Civil Works is directly responsible to the Secretary of the Army for policy formulation in the administration of these cemeteries. The Adjutant General is responsible for their day-to-day administration, operation, and maintenance. Specific responsibilities for Arlington and Soldiers’ Home National Cemeteries are delegated to the Commander, Military District of Washington in accordance with a Memorandum of Understanding.
Where the State legislature has given the consent of that State to purchase the land which now comprises an Army national cemetery, the jurisdiction and power of legislation of the United States over Army national cemeteries will, in all courts and places, be held to be the same as is granted by Section 8, Article 1, Constitution of the United States.
(a)
(1) The society, organization, or individual does not associate the name of the Department of the Army in any way with soliciting for the donation or gift.
(2) Delivery is made to the cemetery or to another point designated by the Department of the Army without expense to the Government.
(3) Installing, constructing, placing, or planting is in keeping with the planned development of the cemetery and the donor agrees to the use of the gift at any designated place within the cemetery.
(4) The donor is not permitted to affix any commemorative tablet or plaque to the items donated or to place one in the cemetery or elsewhere on Department of the Army property.
(b)
(c)
(d)
(a) General cemetery layout plans, landscape planting plans and gravesite layout plans for Army national cemeteries will be maintained by The Adjutant General.
(b) New burial sections will be opened and prepared for burials only with the approval of The Adjutant General and after types and sizes of monuments on permanent sites have been established.
(a) The Act of 2 September 1960 (74 Stat; 24 U.S.C. 295a) provides that the Secretary of Defense or his designee may send to Congress or his designee may send to Congress in January of each year recommendations on the memorials to be erected and the remains of deceased members of the Armed Forces to be entombed in the Arlington Memorial Amphitheater in Arlington National Cemetery. The Act further provides that—
(1) No memorial may be erected and no remains may be entombed in the Arlington Memorial Amphitheater unless specifically authorized by Congress;
(2) The character, design, or location of any memorial authorized by Congress is subject to the approval of the Secretary of Defense or of his designee.
(b) Under the provisions of the Act of 2 September 1960, the Secretary of the Army has been designated to act in behalf of the Secretary of Defense.
(c) The Department of the Army will seek the advice of the Commission of Fine Arts concerning any requests relative to inscriptions or memorials within the Arlington Memorial Amphitheater.
The superintendents of Army national cemeteries are authorized to arrest any person who willfully destroys, cuts, breaks, injures, or removes any tree, shrub, or plant within the limits of the cemetery and to bring that person before any United States magistrate or judge of any district court of the United States within any State or district where the cemeteries are situated, to hold that person to answer for the misdemeanor, and then and there to make a complaint in due form.
Solicitations to the public of any type of business including the sale of souvenirs and refreshments within the cemetery are prohibited. Violators who do not leave when so ordered or who unlawfully reenter the cemetery after being evicted will be subject to prosecution.
Cemetery supplies and services will be procured in accordance with the provisions of the Armed Services Procurement Regulation (ASPR) and the Army Procurement Procedure (APP).
(a)
(b)
The following standards of the Department of the Army will be observed in the development, operation, maintenance, administration, and support of Army national cemetries and will be considered in relation to budgetary reviews within the Department of the Army:
(a) As permanent national shrines provided by a grateful nation to the honored dead of the Armed Forces of the United States, the standards for construction, maintenance, and operation of Army national cemeteries will be commensurate with the high purpose to which they are dedicated.
(b) Structures and facilities provided for Army cemetaries will be permanent in nature and of a scope, dignity, and aesthetic design suitable to the purpose for which they are intended.
(c) Cemeteries will be beautified by landscaping and by means of special features based on the historical aspects, location, or other factors of major significance.
(d) Accomodations and services provided to the next of kin of the honored dead and to the general public will be of high order.
The Act of 14 May 1948 (62 Stat. 234), as amended by the Act of 14 September 1959 (73 Stat. 547; 24 U.S.C. 281), and other laws specifically cited in this part authorize burial in Arlington and Soldiers’ Home National Cemeteries under such regulations as the Secretary of the Army may, with the approval of the Secretary of Defense, prescribe.
(a) Any active duty member of the Armed Forces (except those members serving on active duty for training only).
(b) Any retired member of the Armed Forces. A retired member of the Armed Forces, in the context of this paragraph, is a retired member of the Army, Navy, Air Force, Marine Corps, Coast Guard, or a Reserve component who has served on active duty (other than for training), is carried on an official retired list, and is entitled to receive retired pay stemming from service in the Armed Forces. If, at the time of death, a retired member of the Armed Forces is not entitled to receive retired pay stemming from his service in the Armed Forces until some future date, the retired member will not be eligible for burial.
(c) Any former member of the Armed Forces separated for physical disability prior to 1 October 1949 who has served on active duty (other than for training) and who would have been eligible for retirement under the provisions of 10 U.S.C. 1201 had that statute been in effect on the date of his separation.
(d) Any former member of the Armed Forces whose last active duty (other than for training) military service terminated honorably and who has been awarded one of the following decorations:
(1) Medal of Honor.
(2) Distinguished Service Cross (Air Force Cross or Navy Cross).
(3) Distinguished Service Medal.
(4) Silver Star.
(5) Purple Heart.
(e) Persons who have held any of the following positions, provided their last period of active duty (other than for training) as a member of the Armed Forces terminated honorably:
(1) An elective office of the United States Government.
(2) Office of the Chief Justice of the United States or of an Associate Justice of the Supreme Court of the United States.
(3) An office listed in 5 U.S.C. 5312 or 5 U.S.C. 5313.
(4) The Chief of a mission who was at any time during his tenure classified in class I under the provisions of 411 of the Act of 13 August 1946, 60 Stat. 1002, as amended (22 U.S.C. 866, 1964 ed.).
(f) Any former prisoner of war who, while a prisoner of war, served honorably in the active military, naval, or air service, whose last period of active military, naval, or air service terminated honorably and who died on or after November 30, 1993.
(1) The term “former prisoner of war” means a person who, while serving in the active military, naval, or air service, was forcibly detained or interned in line of duty—
(i) By an enemy government or its agents, or a hostile force, during a period of war; or
(ii) By a foreign government or its agents, or a hostile force, under circumstances which the Secretary of Veterans Affairs finds to have been comparable to the circumstances under which persons have generally been forcibly detained or interned by enemy governments during periods of war.
(2) The term “active military, naval, or air service” includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.
(g) The spouse, widow or widower, minor child and, at the discretion of the Secretary of the Army, unmarried adult child of any of the persons listed above.
(1) The term “spouse” refers to a widow or widower of an eligible member, including the widow or widower of a member of the Armed Forces who was lost or buried at sea or officially determined to be permanently absent in a status of missing or missing in action. A surviving spouse who has remarried and whose remarriage is void, terminated by death, or dissolved by annulment or divorce by a court with basic authority to render such decrees regains eligibility for burial in Arlington National Cemetery unless it is determined that the decree of annulment or divorce was secured through fraud or collusion.
(2) An unmarried adult child may be interred in the same grave in which the parent has been or will be interred, provided that child was incapable of self-support up to the time of death because of physical or mental condition. At the time of death of an adult child, a request for interment will be submitted to the Superintendent of Arlington National Cemetery. The request must be accompanied by a notarized statement from an individual who has direct knowledge as to the marital status, degree of dependency of the deceased child, the name of that child's parent, and the military service upon which the burial is being requested. A certificate of a physician who has attended the decedent as to the nature and duration of the physical and/or mental disability must also accompany the request for interment.
(h) Widows or widowers of service members who are interred in Arlington National Cemetery as part of a group burial may be interred in the same cemetery but not in the same grave.
(i) The surviving spouse, minor child, and, at the discretion of the Secretary of the Army, unmarried adult child of any person already buried in Arlington.
(j) The parents of a minor child or unmarried adult child whose remains, based on the eligibility of a parent, are already buried in Arlington National Cemetery.
(a) Any member of the Armed Forces who dies on active duty.
(b) Any former member of the Armed Forces who served on active duty (other than for training) and whose last service terminated honorably.
(c) Any member of a Reserve component of the Armed Forces, and any member of the Army National Guard or the Air National Guard, whose death occurs under honorable conditions while he is on active duty for training or performing full-time service; performing authorized travel to or from that duty or service; or is on authorized inactive duty training including training performed as a member of the Army National Guard or the Air National Guard. Also included are those
(d) Any member of the Reserve Officers’ Training Corps of the Army, Navy, or Air Force whose death occurs under honorable conditions while attending an authorized training camp or on an authorized practice cruise, performing authorized travel to or from that camp or cruise, or hospitalized or undergoing treatment at the expense of the United States for injury or disease contracted or incurred under honorable conditions while attending that camp or cruise, performing that travel, or undergoing that hospitalization or treatment at the expense of the United States.
(e) Any former prisoner of war who, while a prisoner of war, served honorably in the active military, naval, or air service, whose last period of active military, naval, or air service terminated honorably and who died on or after November 30, 1993.
(1) The term “former prisoner of war” means a person who, while serving in the active military, naval, or air service, was forcibly detained or interned in line of duty—
(i) By an enemy government or its agents, or a hostile force, during a period of war; or
(ii) By a foreign government or its agents, or a hostile force, under circumstances which the Secretary of Veterans Affairs finds to have been comparable to the circumstances under which persons have generally been forcibly detained or interned by enemy governments during periods of war.
(2) The term “active military, naval, or air service” includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.
(f) Any citizen of the United States who, during any war in which the United States has been or may hereafter be engaged, served in the Armed Forces of any government allied with the United States during that war, whose last active service terminated honorably by death or otherwise, and who was a citizen of the United States at the time of entry on such service and at the time of death.
(g) Commissioned officers, United States Coast and Geodetic Survey (now National Oceanic and Atmospheric Administration) who die during or subsequent to the service specified in the following categories and whose last service terminated honorably:
(1) Assignment to areas of immediate military hazard.
(2) Served in the Philippine Islands on December 7, 1941.
(3) Transferred to the Department of the Army or the Department of the Navy under certain statutes.
(h) Any commissioned officer of the United States Public Health Service who served on full-time duty on or after July 29, 1945, if the service falls within the meaning of active duty for training as defined in 38 U.S.C. 101(22) or inactive duty training as defined in 38 U.S.C. 101(23) and whose death resulted from a disease or injury incurred or aggravated in line of duty. Also, any commissioned officer of the Regular or Reserve Corps of the Public Health Service who performed active service prior to July 29, 1945 in time of war; on detail for duty with the Armed Forces; or while the service was part of the military forces of the United States pursuant to Executive order of the President.
(i) Spouses, minor children, and dependent adult children of the persons listed above.
The Board of Commissioners of the US Soldiers’ and Airmen's Home will prescribe rules governing burial in the Soldiers’ Home National Cemetery.
(a) A father, mother, brother, sister, and in-law is not eligible for interment by reason of relationship to an eligible service person even though he/she is dependent upon the service member for support and/or is a member of his/her household.
(b) A person whose last separation from one of the Armed Forces was under other-than-honorable conditions is not eligible for burial even though he may have received veterans benefits, treatment at a Veterans Administration hospital or died in such a hospital.
(c) A person who has volunteered for service with the Armed Forces but has not actually entered on active duty.
(d) Nonservice-connected spouses who have been divorced from the service-connected members or who have remarried after the interment of the service-connected spouse and whose remarriage is still valid are not eligible because of the decedent's service.
(e) Dependents are not eligible for burial in Arlington National Cemetery unless the Service-connected family member has been or will be interred in that cemetery. This does not apply to widows or widowers of members of the Armed Forces lost or buried at sea or officially determined to be permanently absent in a status of missing or missing in action.
(a) Under present policy of the Department of the Army, only one gravesite is authorized for the burial of a service member and eligible family members.
(b) Gravesites will not be reserved.
(c) Gravesite reservations made in writing before the one-gravesite-per-family unit policy was established will remain in effect as long as the reservee remains eligible for burial in Arlington.
(a) Interments in Arlington National Cemetery of eligible decedents are considered permanent and final, and disinterments will be permitted only for cogent reasons. Disinterments and removal of remains will be approved only when all living close relatives of the decedent give their written consent or when a court order directs the disinterment.
(b) All requests for authority to disinter remains will include the following information:
(1) A full statement of reasons for the proposed disinterment.
(2) Notarized statements by all close living relatives of the decedent that they interpose no objection to the proposed disinterment. “Close relatives” are widow or widower, parents, adult brothers and sisters, and adult childern of the decedent and will include the person who directed the initial interment, if living, even though the legal relationship of that person to the decedent may have changed.
(3) A sworn statement by a person who knows that those who supplied affidavits comprise all the living close relatives of the deceased, including the person who directed the initial interment.
(c) In lieu of the documents required, an order of a court of competent jurisdiction will be recognized. The Department of the Army or officials of the cemetery should not be made a party or parties to the court action since this is a matter that concerns the family members involved.
(d) Any disinterment that may be authorized under this paragraph must be accomplished without expense to the Government.
All graves in Army national cemeteries will be appropriately marked in accordance with 24 U.S.C. 279. Government headstones and markers are provided by the Veterans Administration in accordance with the provisions of the National Cemeteries Act of 1973. When requested by the next of kin, an appropriate memorial headstone or marker will be furnished by the Veterans Administration and erected by cemetery personnel in a memorial section of the cemetery which has been set aside for this purpose. Headstones will be of white marble, upright slab design.
(a) The erection of markers and monuments at private expense to mark graves in lieu of Government headstones and markers is permitted only in sections of Arlington National Cemetery in which private monuments and markers were authorized as of 1 January 1947. These monuments will be of simple design, dignified, and appropriate to a military cemetery. The name of the person(s) or the name of an organization, fraternity, or society responsible for the purchase and erection of the marker will not be permitted on the marker or anywhere else in the cemetery. Approval for the erection of a private monument will be given with the understanding that the purchaser will make provision for its future maintenance in the event repairs are necessary. The Department of the Army will not be liable for maintenance of or damage of the monument.
(b) Where a monument has been erected to an individual interred in Arlington National Cemetery and the next of kin desires to have inscribed on it the name and appropriate data pertaining to a deceased spouse, parent, son, daughter, brother, or sister whose remains have not been recovered and who would have been eligible in their own right for burial in Arlington, such inscriptions may be incised on the monument at no expense to the Government. The words “In Memoriam” or “In Memory Of” are mandatory elements of these inscriptions.
(c) Except as may be authorized for marking group burials, ledger monuments of freestanding cross design, narrow shafts, mausoleums, or overground vaults are prohibited. Underground vaults may be placed at private expense, if desired, at the time of interment.
(d) Specific instructions concerning private monuments and markers are contained in TM 10-287.
(a)
(b)
(c)
(1) The term
(2) The term
(3) The term
(4) The term
(5) The term
(6) The term
(7) The term
(d)
(e)
(f)
(1) Conduct any memorial service or ceremony within the Cemetery, except private memorial services, without the prior approval of the Superintendent or Commanding General. All memorial services and ceremonies shall be conducted in accordance with the rules established in paragraph (h) and, except for official ceremonies, paragraph (i) of this section. Official ceremonies shall be conducted in accordance with guidance and procedures established by the Commanding General;
(2) Engage in any picketing, demonstration or similar conduct within the Cemetery grounds;
(3) Engage in any orations, speeches, or similar conduct to assembled groups of people, unless the oration is part of a memorial service or ceremony authorized by this section;
(4) Display any placards, banners, flags or similar devices within the Cemetery grounds, unless, in the case of a flag, use of the same is approved by the Superintendent or Commanding General and is part of a memorial service or ceremony authorized by this section;
(5) Distribute any handbill, pamphlet, leaflet, or other written or printed matter within the Cemetery grounds except that a program may be distributed if approved by the Superintendent or Commanding General and such distribution is a part of a memorial service or ceremony authorized by this section;
(6) Allow any dog, cat, or other pet to run loose within the Cemetery grounds;
(7) Use the Cemetery grounds for recreational activities such as sports, athletics, or picnics;
(8) Ride a bicycle within Cemetery grounds except on Meigs Drive, Sherman Drive and Schley Drive or as otherwise authorized by the Superintendent under this subparagraph. All other bicycle traffic will be directed to the Visitors’ Center where bicycle racks are provided. Exceptions for bicycle touring groups may be authorized in advance and in writing by the Superintendent. An individual visiting a relative's gravesite may be issued a temporary pass by the Superintendent to permit him to proceed directly to and from the gravesite by bicycle;
(9) Deposit or throw litter on Cemetery grounds;
(10) Play any radio, tape recorder, or musical instrument, or use any loudspeaker within the Cemetery grounds unless use of the same is approved by the Superintendent or Commanding General and is part of a memorial service or ceremony authorized by this section;
(11) Drive any motor vehicle within Arlington National Cemetery in excess of twenty miles per hour or such lesser speed limit as the Superintendent posts;
(12) Park any motor vehicle in any area on the Cemetery grounds designated by the Superintendent as a no parking area; or leave any vehicle in the Visitors’ Center Parking Lot at the Cemetery beyond two hours;
(13) Engage in any disorderly conduct within the Cemetery grounds. For purposes of this section, a person shall be guilty of disorderly conduct if, with purpose to cause, or with knowledge that he is likely to cause, public inconvenience, annoyance or alarm, he:
(i) Engages in, promotes, instigates, encourages, or aids and abets fighting, or threatening, violent or tumultuous behavior;
(ii) Yells, utters loud and boisterous language or makes other unreasonably loud noise;
(iii) Interrupts or disturbs a memorial service or ceremony;
(iv) Utters to any person present abusive, insulting, profane, indecent or otherwise provocative language or gesture that by its very utterance tends to incite an immediate breach of the peace;
(v) Obstructs movement on the streets, sidewalks, or pathways of the Cemetery grounds without prior authorization by competent authority;
(vi) Disobeys a proper request or order by the Superintendent, Cemetery special police, park police, or other competent authority to disperse or to leave the Cemetery grounds; or
(vii) Otherwise creates a hazardous or physically offensive condition by any act not authorized by competent authority.
(g)
(h)
(1) Requests by members of the public to conduct memorial services or ceremonies shall be submitted to the Superintendent, Arlington National Cemetery, Arlington, Virginia 22211. Such requests shall describe the proposed memorial service or ceremony in detail to include the type of service, its proposed location, the name of the individual or organization sponsoring the service, the names of all key individuals participating in the service, the estimated number of persons expected to attend the service, the expected length of the service, the service's format and content, whether permission to use loud-speaker systems or musical instruments or flags during the service is requested and, if so, the number, type, and how they are planned to be used, whether permission to distribute printed programs during the service is requested, and, if so, a description of the programs, and whether military support is requested. Individuals and organizations sponsoring memorial services or ceremonies shall provide written assurance that the services or ceremonies are not partisan in nature, as defined in paragraph (i) of this section, and that they and their members will obey all rules set out in this section and act in a dignified and proper manner at all times while in the Cemetery grounds.
(2) Requests to conduct official ceremonies shall be submitted to the Commanding General.
(3) Memorial services or ceremonies other than private memorial services
(i) Public memorial services may be authorized to be conducted only at the Arlington Memorial Amphitheater, the Confederate Memorial, the John F. Kennedy Grave, or other sites designated by the Superintendent.
(ii) Public wreath laying ceremonies may be authorized to be conducted at the tomb and plaza area of the Tomb of the Unknown Soldier (also known as the Tomb of the Unknowns).
(iii) Official ceremonies may be authorized to be conducted at sites designated by the Superintendent or Commanding General.
(i)
(1) Memorial services and ceremonies shall be purely memorial in purpose and dedicated only to the memory of all those interred in the Cemetery, to all those dying in the military service of the United States, to all those dying in the military service of the United States while serving during a particular conflict or while serving in a particular military unit or units, or to the memory of the individual or individuals interred or to be interred at the particular gravesite at which the service or ceremony is held.
(2) Partisan activities are inappropriate in Arlington National Cemetery, due to its role as a shrine to all the honored dead of the Armed Forces of the United States and out of respect for the men and women buried there and for their families. Services or any activities inside the Cemetery connected therewith shall not be partisan in nature. A service is partisan and therefore inappropriate if it includes commentary in support of, or in opposition to, or attempts to influence, any current policy of the Armed Forces, the Government of the United States or any state of the United States; if it espouses the cause of a political party; or if it has as a primary purpose to gain publicity or engender support for any group or cause. If a service is closely related, both in time and location, to partisan activities or demonstrations being conducted outside the Cemetery, it will be determined to be partisan and therefore inappropriate. If a service is determined to be partisan by the Superintendent or the Commanding General, permission to conduct memorial services or ceremonies at the Cemetery will be denied.
(3) Participants in public wreath laying ceremonies shall remain silent during the ceremony.
(4) Participants in public memorial services at the John F. Kennedy Grave shall remain silent during the service.
(5) Public memorial services and public wreath laying ceremonies shall be open to all members of the public to observe.
(6) Participants in public wreath laying ceremonies shall follow all instructions of the Tomb Guards, Superintendent, and Commanding General relating to their conduct of the ceremony. (40 U.S.C. 318a, 486, and delegations of authority from the Administrator, General Services Administration, Secretary of Defense, and Secretary of the Army).
(j)
(2)
(k)
(1)
(2)
(l)
1.
2.
3.
b. Only one tribute will be accepted from an organization. However, with prior approval, the inscription of a tribute already presented in Memory of the Unknown Soldier (World War I) may be reworded by the donating organization to commemorate one additional or all the Unknowns, or a new tribute may be substituted for the old one.
4.
b.
c.
Suggestions follow:
The identity of the donor/Date of Presentation.
2.
d.
5.
a. A scale drawing or model, showing the exact inscription and other details of the proposed tribute.
b. A copy of the constitution and bylaws of the organization desiring to make the presentation.
6.
7.
10 U.S.C. 3036; 22 U.S.C. 2357; 22 U.S.C. 2421; 31 U.S.C. 686; 42 U.S.C. 4221-4225.
This regulation defines and establishes policies and procedures applicable to the performance of research and development and tests at Corps of Engineers laboratory installations for other governmental and private agencies and organizations.
This regulation applies to the U.S. Army Engineer Waterways Experiment Station (WES), the U.S. Army Construction Engineering Research Laboratory (CERL), the U.S. Army Engineer Topographic Laboratories (ETL), the U.S. Army Coastal Engineering Research Center (CERC), the U.S. Army Cold Regions Research and Engineering Laboratory (CRREL), the U.S. Army Facilities Engineering Support Agency (FESA), the U.S. Army Corps of Engineers Water Resources Support Center (WRSC).
(a) AR 10-5.
(b) AR 37-27.
(c) AR 70-1.
(d) ER 1-1-6.
(e) ER 1-1-7.
(f) ER 70-1-5.
(g) ER 70-1-10.
(h) ER 1110-1-8100.
(i) ER 1110-2-8150.
(j) ER 1140-2-302.
(k) ER 1140-2-303.
(a) The policies and procedures covered herein extend and supplement the performance of work for other Federal Agencies authorized in ER 1140-2-302, and services for State and local governmental units authorized in ER 1140-2-303, and the policy set forth by the Secretary of Defense in appendix A.
(b) Subject to the authority limitations contained in § 555.6 of this part, research and development and tests may be performed for other agencies of the Federal Government, State and local governments, foreign governments and private firms under the following conditions:
(1) The work is performed on a cost reimbursable basis; or on a cooperative basis with the Department of Energy (DOE), utilizing the resources of both DOE and the Corps; or as a part of direct funded programs for the Army Materiel Development and Readiness Command (DARCOM) or the Defense Mapping Agency (DMA), as provided for in §§ 555.6(a)(1), 555.6(a)(2), 555.7, and 555.9 of this part.
(2) Performance of the work will not interfere with performance of services essential to the mission of the Corps.
(3) Performance of the work will not require an increase in the permanent staff of the facility.
(4) Performance of the work will not require expansion of normal facilities.
(5) The work is within the scope of authorized activities of the laboratory at which the work is to be performed.
(6) Performance of the work will not be adverse to the public interest.
(7) Work will not be performed for foreign government or private firms unless it is firmly established that other laboratory facilities capable of
(8) Prior to performing any research and development or tests for private firms, CE laboratories will obtain a written certification from such firms stating that the results of the work to be performed will not be used in litigation or for promotional purposes.
(a)
(b)
(1) When the final product will directly contribute to planning, design, research, or construction activities in which Federal funds are involved by grant or otherwise.
(2) Where an exception is granted based on a direct benefit to the Government. Adequate justification, outlining the direct benefits which are expected to accrue to the Government, will be forwarded to HQDA (DAEN-RD) WASH DC 20314, for review and approval prior to deletion of the surcharge.
(c)
The following delegations of authority to perform research and development and tests apply.
(a)
(1) Subject to the provisions of § 555.8 of this regulation, the Commanders and Directors of WES, ETL and CRREL are authorized to perform direct funded work for DARCOM and DMA in accordance with the applicable memorandums of understanding.
(2) Subject to the provisions of §§ 555.7 and 555.9, the Commanders and Directors of CERL, CRREL, WES and FESA, for specific research and development functions, are authorized to perform work for DOE in accordance with the applicable memorandum of understanding.
(3) Except as provided for in paragraphs (a) (5) and (6) of this section, the Commanders and Directors of WES, CERL, CERC, CRREL, ETL and FESA are authorized to perform reimbursable work without OCE prior approval for Army agencies, Federal, State and local governmental agencies where the total estimated cost of each request for research and development or test is $50,000 or less. The Research and Development Office will be advised of each request for research and development or test having an estimated cost exceeding $20,000 (excluding cement sampling and testing work covered in § 555.6(a)(5) herein). Reimbursable research and development and test work for which the cost is estimated to be in excess of $50,000 will not be initiated until authorization is received. Written requests for authorization to conduct work beyond the $50,000 limit and notification of all scheduled work costing between $20,000 and $50,000 shall be submitted to DAEN-RD. These requests
(4) Except as provided for in § 555.6(a)(5), the Commanders and Directors of WES, CERL, CERC, CRREL, ETL and FESA are delegated authority to perform reimbursable research and development for U.S. private firms and foreign governments when the total estimated cost of each request for research and development or test is $20,000 or less. Approval is required when estimated costs exceed this authority. Written requests for approval shall be addressed to DAEN-RD.
(5) Corps R&D Laboratories are authorized to participate in the Department of Defense Technology Transfer Consortium. Participation in and effort undertaken to adapt existing technology or on-going research for transfer to the civil sector as a result of participation in this consortium shall be subject to the provisions of appendix A.
(6) The Director of WES is authorized to perform sampling and testing of cement and pozzolan for Federal, State, and local governmental agencies without limitation on cost. Approval is required prior to performance of sampling and testing of cement and pozzolan for private firms and foreign governments when the total estimated cost of sampling and testing services exceeds $2,500. Requests for approval shall be addressed to DAEN-RD.
(7) The Director of CERL is authorized to perform compliance testing of paint for Federal, State and local governmental agencies without limitation on cost.
(a) Corps of Engineers research and development laboratories are authorized to submit technical proposals directly to other Federal agencies covering proposed work in their assigned fields except that proposals submitted to DMA must be submitted through DAEN-RD for approval. Proposals for cooperative effort projects under the DOD-DOE Memorandum of Understanding utilizing DOD and DOE resources, will be forwarded to DAEN-RD for securing prior approval from the DA and DOD Program Coordinators. Copies of proposals which exceed the delegation of authority contained in this ER will be submitted to the Chief of Engineers marked for the attention of DAEN-RD.
(b) The above authority for direct submission of technical proposals does not include authority to perform work when proposals are accepted if the estimated cost exceeds the limits stated before. Authority to proceed will be as outlined in § 555.6.
Program documentation will be submitted in accordance with instructions provided by the sponsoring agency with two copies to HODA (DAEN-RD) WASH DC 20314.
The following reports are to be submitted to HODA with a copy to Commander and Director, CERL. CERL has been assigned the responsibility of Principal Laboratory for Energy R&D.
(a) All executed agreements subordinate to the DOD-DOE Memorandum of Understanding will be reported to DAEN-RD for forwarding to DA and DOD Program Coordinators within 20 days of their consummation.
(b) Reports analyzing each agreement and the DOD-DOE Memorandum of Understanding will be prepared as a “Report on the Department of Defense—Department of Energy Interagency Agreement”, Report Control Symbol DD-M(SA)1511 and forwarded to DAEN-RD within 20 days after the end of the second and fourth quarters each fiscal year. Reports are to be prepared in accordance with the procedures prescribed in DEPPM, No. 78-8. In addition, informal reporting of other cooperative work with DOE not falling under the MOU, will also be reported at those times.
(c) Notifications of non-compliance. DAEN-RD should be promptly notified if the Corps component or DOE fail to comply with the terms of the DOD-DOE Memorandum of Understanding or subordinate agreements. This notification shall include:
(1) A brief statement of the problem.
(2) Nature of corrective action proposed.
(3) Any recommended action for the DOD Program Coordinator.
All reimbursable work accepted by a laboratory which falls into a category for which a Principal Laboratory has been designated by DAEN-RD, will be reported to the designated POC in the Principal Laboratory, with a copy of the notification to DAEN-RD.
The Deputy SECDEF, in his memorandum of 21 January 1972 to the Secretaries of the Military Departments, on the above subject, (enclosure 1), outlined broad policy considerations for the DoD Laboratory Consortium formed to coordinate non-defense work being performed by them for other government organizations. In order to establish more precise guidelines for the Consortium, an operating policy has been developed (enclosure 2) which establishes criteria for Consortium membership and the type of work that may be undertaken. Also, the following additional constraints are placed upon the operation of this Consortium;
• The expenditure of in-house effort in any one laboratory shall be limited to 3% of the professional man-years at that laboratory unless expressed approval of the parent Military Department is granted to exceed this limit.
• The DoD commitment to support the brokerage function at the National Science Foundation shall not exceed two man-years per year through FY 76, subject to the continued willingness of the Military Departments to absorb the costs.
It is generally conceded that the most efficient transfer of technology occurs when the adaptation of a technology to a new purpose is carried out by the team which carried out the original development. Recognizing this, the
(a)
(b) The projects selected
(c) Projects may be undertaken in support of federal, state and local government organizations.
(d) The full costs of projects undertaken
(e)
The Assistant Secretary of Defense (Comptroller) shall explore with the Office of Management and Budget means for providing relief from any imposed manpower constraints to the extent of the DOD participation in non-defense work.
• The participation of any laboratory shall be undertaken with the full knowledge of the parent Military Department and the director or commander of the laboratory.
• For each participating laboratory an individual shall be designated by name to represent that laboratory to the consortium, and to coordinate the technology transfer activities of that laboratory. Procedures should be adopted within each laboratory to preclude the dilution of the efforts of middle and top level management by their involvement in the administrative aspects of the technology transfer effort.
• Any laboratory may withdraw from the Consortium by notifying the Consortium Chairman of this intent.
The following criteria shall apply for the conduct of work undertaken in the technology transfer program:
• In order for work to be undertaken for any government organization each of the following criteria must be satisfied:
a. Laboratory staff will not increase as a result of the additional work.
b. Laboratory facilities will not be added for non-DOD work.
c. Proposed work should relate to a laboratory's area of particular expertise and the laboratory should be a significant resource in the particular subject area.
d. A determination should be made that the laboratory's background, experience and facilities are such that private industry could not perform the work except at a significantly increased cost.
• The major emphasis of the Technology Transfer Consortium should be directed to:
a. The transfer or adaptation of existing technology, either directly, or after being subjected to adaptive engineering.
b. The preparation of documentation and technical assistance in those activities unique to the mission of the DOD laborabories.
• Work will be performed for private industry only on an exception basis, such as when the laboratory possesses unique facilities that are required and which are not available in the private sector.
• Description of the work to be accomplished and the funds to be transferred will normally be specified in a formal interagency agreement.
• All costs shall be recovered from the receiving government organization, including realistic overhead costs, except that cooperative developments on a shared cost basis are encouraged where there is a distinct military application.
• Laboratory production of hardware shall normally be limited to prototypes or test units required to prove feasibility.
• Adaptive engineering shall not be performed on technological innovations for which a patent application has been made by a private industrial firm unless permission is received in writing from that firm. Technical, consulting, and support services will not normally be furnished another agency on a continuing basis.
• Work in the form of analytic services shall not normally be undertaken in areas where comparable expertise exists in competitive industry. An exception to this provision is acceptable in areas of problem definition where existing Defense technology offers a unique potential solution.
10 U.S.C. 2101-2111, unless otherwise noted.
This regulation gives policies for conducting the Army's Senior Reserve Officers’ Training Corps (ROTC) Program.
This regulation applies to the program given at college level institutions and at the college level in military junior colleges.
The following terms apply to the Army's Senior Reserve Officers’ Training Corps Program:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(1) US Army First ROTC Region, Fort Bragg, NC 28307.
(2) US Army Second ROTC Region, Fort Knox, KY 40121.
(3) US Army Third ROTC Region, Fort Riley, KS 66442.
(4) US Army Fourth ROTC Region, Fort Lewis, WA 98433.
(m)
(n)
The objectives of the ROTC program are to:
(a) Attract, motivate, and prepare students with potential to serve as commissioned officers in the Regular Army or the US Army Reserve.
(b) Understand the concepts and principles of military art and science.
(c) Develop potential to lead and manage.
(d) Understand other professions.
(e) Develop integrity, honor, and responsibility.
(f) Appreciate the need for national security. Attaining these objectives prepares students for commissions and establishes a basis for future professional development and performance in the Army.
(a) The ROTC draws young men and women from all geographic areas and all strata of our country. It uses the many educational disciplines required for the modern Army. The ROTC ensures that men and women educated in a variety of American schools of higher learning are commissioned annually in the Army officer corps. In the future, the ROTC will continue to be the major source of newly commissioned officers for the Active Army, both Regular Army and Reserve forces. In addition, ROTC provides an advantage both to the Army and institutions of higher learning by assisting in the education of future Army Officers and providing a communication link between our military leaders and our developing students.
(b) The Army Senior ROTC program is a cooperative effort, contracted between the Army and host institution to provide junior officer leadership in the interest of national security. The Army maintains a cordial and cooperative relationship with host institutions. The Army's goal is to continue to develop well-educated young men and women with potential as leaders in both civilian enterprise and national defense. The Army is receptive to valid criticism, regardless of source, as a means of maintaining a workable program. The right of orderly campus dissent is recognized. However, anti-ROTC activities which degrade and distort the Army image cannot be ignored. Consequently, the Army must look to its institutional hosts to provide campus support for the ROTC program.
(c) The program meets changing educational philosophies and concepts. It gives a flexible course of study in the changing environment of the academic community. A curriculum in the ROTC program is not restricted to classroom teaching. Program objectives may be satisfied in a variety of ways. A program may include a curriculum of other than classroom instruction if: it provides stated learning results, it is adopted by the host institution as part of its curriculum, and it follows the program of instruction published by the US Army Training and Doctrine Command. The PMS has authority, subject to limits set by the region commander, to develop courses that accomplish program objectives of the host institution. Activities which are part of the host school's curriculum require the same degree of support as other elements of the curriculum. The goal of the ROTC program is to commission well-educated young men and women in the Army.
(d) The PMS is responsible to see that each cadet realizes the importance of choice of branch preferences and what is involved in making an intelligent selection. Each graduating cadet by Army policy is assigned to the branch indicated by personal preference, academic major, physical qualifications, ROTC training, and demonstrated abilities, whenever possible. However, the assignment must be made by the needs of the service and may
(a)
(b)
(c)
(a) The Senior ROTC is conducted at military colleges, civilian colleges and universities and military junior colleges. School authorities may apply for a ROTC unit to the region commander of the area in which the school is located or to TRADOC. To be eligible for a unit, the institution must:
(1) Be a 4-year degree granting college or university.
(2) Be accredited by an appropriate regional accrediting association or accredited by a nationally recognized professional accrediting association.
(3) Have an enrollment large enough to ensure that officer production requirements will be met.
(4) Agree to—
(i) Establish a Department of Military Science as an integral academic and administrative department of the institution.
(ii) Adopt as part of the institution's curriculum either the 2- or 4-year program (or both) of the senior ROTC.
(iii) Require each cadet enrolled in any ROTC course to devote the number of hours to military instruction prescribed by the Secretary of the Army.
(iv) Make available for use by the Senior ROTC unit necessary and adequate classrooms, administrative offices, office equipment, storage space, drill field, and other required facilities in a fair and equitable manner in comparison with other departments of the institution (or other elements of the institution, if the institution does not have departments) and to pay the costs of utilities and maintenance thereof.
(v) Grant appropriate academic credit applicable toward graduation for successful completion of courses offered by the Department of Military Science.
(vi) Arrange for the scheduling of military classes to make it equally convenient for students to participate in ROTC as in other courses at the same educational level.
(vii) Include a representative of the Department of Military Science designated by the PMS on all faculty committees whose recommendations would directly affect the Department of Military Science.
(viii) Provide, without expense to the Army, adequate storage and issue facilities for all Government property provided for the ROTC program, when the Army assumes accountability and responsibility for Government property. Adequate facilities will consist of safe, well-lighted, dry, heated, ventilated areas, provided with office space, shelving, bins, clothing racks, and cabinets, as required, and suitable storage space for arms and ammunition. All windows will be securely barred or provided with heavy mesh screen, and doors will be reinforced and fitted with cylinder locks. Such facilities will be separate and apart from those occupied by any other department of the institution or other Government agency. Determination will be made by the region commander as to adequacy, safety, and satisfactory nature of storage and issue facilities.
(5) Produce a minimum annual average of 15 qualified commissioned officers from each 4-year senior division unit or a combination of a 4- and 2-year senior division unit; or a minimum annual average of 10 qualified officers from each 2-year senior division unit.
(6) Comply with the following requirements:
(i) There will be no discrimination with respect to admission to the institution or subsequent treatment of students on the basis of race, color, or national origin.
(ii) The senior commissioned officer of the ROTC unit at the institution will be given the academic rank of Professor.
(b) Institutional authorities may, subject to approval of Department of the Army, elect to—
(1) Administer a GMS unit or a branch material unit. Their preference will be given consideration, but the type of unit approved for establishment will be determined on the basis of the needs of the Army.
(2) Administer the 4-year or the 2-year ROTC program, or both.
(3) Maintain accountability and responsibility for Government property issued for the ROTC program by complying with the following requirements or apply for relief therefrom.
(i) Appoint an officer of the institution as military property custodian who will be empowered to requisition, receive, stock, and account for Government property issued to the institution, and otherwise transact matter pertaining thereto for and in behalf of the institution.
(ii) Conform to the regulations of the Secretary of the Army relating to issue, care, use, safekeeping turn-in and accounting for such Government property as may be issued to the institution.
(iii) Comply with the provisions of law and regulations of the Secretary of the Army pertaining to the furnishing of a bond to cover the value of all Government property issued to the institutions, except uniforms, expendable articles, and supplies expendable in operation, maintenance, and instruction.
(c) Students desiring enrollment in a unit must:
(1) Be enrolled in and attending fulltime a regular course of instruction at a school participating in the program.
(2) Be a citizen of the United States.
(3) Be at least 17 years of age.
(4) Be physically capable of participating in the program.
(a) The Army Advisory Panel on ROTC Affairs (AAP) was established on April 28, 1952. The AAP provides for a continuous exchange of views between the U.S. Army Training and Doctrine Command, the Department of the Army, and the academic community.
(b) Membership is drawn from national educational associations, faculty members and administrators from ROTC host institutions and nationally prominent individuals.
(c) The AAP meets as required, but not less than once annually and the meetings are open to the public.
Section 110, 70A Stat. 600; 32 U.S.C. 110.
(a) General. The definitions of medical care; policies outlining the manner, conditions, procedures, and eligibility for care; and the sources from which medical care is obtained are enumerated in AR 40-3.
(b) Elective care. Elective care in civilian medical treatment facilities or
(c) Prosthetic devices, prosthetic dental appliances, hearing aids, spectacles, orthopedic footwear, and orthopedic appliances. These items will be furnished—
(1) By Army medical facilities. (i) When required in the course of treatment of a disease or injury contracted or incurred in line of duty.
(ii) When required to replace items that have been lost, damaged, or destroyed while engaged in training under sections 502-505 of title 32, U.S.C., not the result of negligence or misconduct of the individual concerned.
(2) By civilian sources. (i) Under the circumstances enumerated in paragraph (c)(1)(i) of this section, after approval of the United States Property and Fiscal Officer's (USPFO) of the respective States.
(ii) Under the circumstances enumerated in paragraph (c)(1)(ii) of this section, in the case of prosthetic devices, prosthetic dental appliances, hearing aids, orthopedic footwear, and orthopedic appliances when the unit commander determines that:
(A) Member is far removed from a Federal medical treatment facility.
(B) Lack of such device would interfere with the individual's performance of duty as a member of the ARNG.
(C) Approval must be obtained from the USPFO's of the respective States prior to replacement.
(iii) Under the circumstances enumerated in paragraph (c)(1)(ii) of this section, in the case of spectacles upon a determination by the unit commander that:
(A) The member is far removed from military medical treatment facility.
(B) The member has no other serviceable spectacles.
(C) Lack of a suitable pair of spectacles would interfere with the member's performance of duty as a member of the ARNG.
(D) Charges for replacement of spectacles will not exceed the rates stated in AR 40-330. Charges for replacement or repair by civilian sources over and above the allowable rates will be paid from the individual's personal funds.
(E) In cases covered by paragraphs (c)(2) (ii) and (iii) of this section, the unit commander will furnish a statement to support the voucher as follows:
Statement
Name——————, Rank——————, SSN——————, ————————————, ——————, while engaged in training under section *(502 *(503) *(504) *(505) of title 32, United States Code sustained the *(loss) *(damage) *(destruction) of his/her spectacles ————————————, description of loss, damage or destruction (type of lens and frames) not the result of misconduct or negligence on his/her part. The *(repair) *(replacement) would interfere with his/her performance of duty as a member of the Army National Guard. Date,——————, signature of unit commander——————.
*Indicate applicable portions.
(F) Approval must be obtained from the USPFO of the respective State prior to repair or replacement of spectacles.
(a) In line of duty. Medical care is authorized for members who incur a disease or injury in line of duty under the following circumstances:
(1) When a disease is contracted or injury is incurred while enroute to, from, or during any type of training or duty under sections 503, 504, 505, and for Guardmembers on orders for over 30 days performing duty under section 502f of title 32, U.S.C. Such training includes, but is not limited to annual training, maneuvers and field exercises, service schools, small arms meets, and FTTD under aforementioned sections.
(2) When an injury is incurred while engaged in any type of training under section 502 of title 32, U.S.C. Such training includes, but is not limited to, unit training assembly, multiple unit training assembly, and training in aerial flight, other than FTTD under 502f.
(3) While not on duty and while voluntarily participating in aerial flights in Government-owned aircraft under proper authority and incident to training. Guardmembers are authorized
(4) Medical care is not authorized at Army expense for members who incur an injury while enroute to or from any type of training under section 502, except for Guardmembers ordered to perform duty for over 30 days under section 502f of title 32, U.S.C. Line of duty investigations and authorization for any medical treatment for conditions incurred while the members were performing Reserve Enlistment Program of 1963 (REP 63) training in a Federal status, or training under title 10, U.S.C. are the responsibility of the Army Area commander under whose jurisdiction the member was training, even though the individual may have returned to his/her National Guard status.
(b) Not in line of duty. Members who incur an injury or contract a disease during any type of training or duty under sections 502f, 503, 504, or 505 of title 32, U.S.C., when it is determined to be not in line of duty, may be furnished medical care at Army expense during the period of training.
(c) Armory drill status. Members who incur an injury while in an armory drill status under section 502 of title 32, U.S.C., when it is determined to be not in line of duty, may not be furnished medical care at Army expense.
(a) A member of the ARNG who incurs a disease or injury under the conditions enumerated herein is entitled to medical care, in a hospital or at his/her home, appropriate for the treatment of his/her disease or injury until the resulting disability cannot be materially improved by further medical care.
(b) If it is determined that the disease or injury was directly related to authorized activities surrounding the care of the original disease or injury, medical care may be continued in the same manner as if it had occurred during the training period.
(c) When members who incur a disease or an injury during a period of training or duty under title 32, U.S.C. 503, 504, 505, or 502f are admitted to an Army medical treatment facility, and it appears that a finding of “not in line of duty” may be appropriate, a formal line of duty investigation should be promptly conducted, and a copy of the report furnished the treatment facility. If these findings result in a “not in line of duty” determination prior to the date the training is terminated, every effort should be made to assist the hospital concerned in disposing of the patient from the hospital by the date the training is terminated or as soon thereafter as he/she becomes transportable. Medical care furnished such member after the termination of the period of training is not authorized at Army expense unless the “not in line of duty” determination is ultimately reversed. The individual may be furnished medical care at Army expense from the date the training is terminated to the date the member receives notification of this action. Medical care received subsequent to the member's receipt of such notification is not authorized at Army expense. In the event a line of duty investigation has not been made by the date the training is terminated, every effort will be made to arrive at a determination as soon thereafter as possible.
(a) When a member of the ARNG incurs a disease or an injury, while performing training duty under sections 502-505 of title 32, U.S.C., he/she will, without delay, report the fact to his/her unit commander. Each member will be informed that it is his/her responsibility to comply with these instructions, and that failure to promptly report the occurrence of a disease or injury may result in the loss of medical benefits.
(b) Authorization for care in civilian facility. (1) An individual who desires medical or dental care in civilian medical treatment facilities at Federal expense is not authorized such care without written or verbal authorization by the Chief, National Guard Bureau or his/her designee, except in an emergency.
(2) When medical care is obtained without prior authorization, the details will be submitted to NGB-ARS as soon as practicable. The notification of medical care will be made following the format in the appendix. The notification will be reviewed by NGB-ARS and replied to as deemed appropriate.
(c) Status while undergoing hospitalization. The ARNG status of an individual is not affected by virtue of his hospitalization. The provisions of AR 135-200 will apply. Determination of requirement for continued hospitalization will be made by the MTF commander. Paragraph (d) of this section will apply when a final “not in line of duty” determination has been made. Under no condition will an individual be assigned to the medical holding unit of a hospital.
(d) Disposition of hospitalized cases. When it is determined that a hospitalized ARNG member has obtained the maximum benefits from hospitalization and there is no disability remaining from the condition for which hospitalized, he/she will be returned to his/her duty station or, if none, to his/her home of record at the time of entry into the hospital.
Date ——————
In accordance with paragraph 8, NGR 40-3, notification of medical care is furnished below:
(a)
(b)
(c)
(d)
(i) Performing full-time training at other than an Active Army installation under sections 316, 502, 503, 504, and 505, title 32, U.S.C.
(ii) Performing authorized travel to or from training outlined in paragraph (d)(1)(i) of this section.
(iii) Being hospitalized or undergoing treatment at Government expense for an injury incurred or disease contracted while performing duty indicated in paragraphs (d)(1) (i) and (ii) of this section.
(iv) Performing inactive duty training (IDT) under section 502, title 32, U.S.C. (It is to be noted that present law does not provide for payment of burial expenses from Federal funds for ARNG personnel killed while traveling to or from IDT.)
(2) Active Army installations are responsible for the care and disposition of remains of members of the National Guard who die while—
(i) Performing active duty for training under title 10 and training or other full-time training duty at an Active Army installation under sections 502, 503, 504, and 505, title 32, U.S.C.
(ii) Performing authorized travel to or from training specified in paragraph (d)(2)(i) of this section.
(iii) Being hospitalized or receiving treatment at Government expense as a result of injury incurred or disease contracted while performing duty indicated in paragraphs (d)(2) (i) and (ii) of this section.
(3) State adjutants general are responsible for notification of death in accordance with chapter 10, AR 600-10.
(e)
(1) If death occurs where a properly approved Contract for Care of Remains is in force (Army, Navy, or Air Force contracts), the amount to be allowed for each item will not exceed the amount allowable under such contract.
(2) If death occurs where no contract is in force, reimbursement for items or services, including preparation and casketing will be limited to the stipulated amount included in chapter 4, AR 638-40.
(3) Reimbursement for transportation will be limited to the amount for which the Government could have obtained required common carrier transportation plus the change made for hearse servce from the common carrier terminal to the first place of delivery.
(4) Reimbursement for interment expenses is limited to the amounts provided in chapter 13, AR 638-40.
(f)
(2) If a serviceable uniform is not in possession of the deceased, a request for issue of required items will be prepared. Accountability and responsibility for items issued will be terminated by the responsible officer upon execution of a statement on DA Form 3078 or 3345, substantially as follows:
The items of clothing enumerated above were issued to clothe the remains of ————— for funeral purposes. At the time of his/her death, the deceased was a member in good standing in this organization.
(g)
Sections 564.51 to 564.58 are published for the information and guidance of all concerned to implement the statutory authority by defining the claims payable thereunder and the procedure for establishing, determining, and settling such claims. They provide the exclusive authorization and procedure for the determination and settlement of claims within the following statutory authority.
(a) Limited authority for the payment of claims arising out of National Guard and Air National Guard activities has been granted annually for several years by provisions of the annual Appropriations Act for the Department of Defense. A recent provision is as follows:
The following sums are appropriated, * * * For payment of * * *; claims (not to exceed $1,000 in any one case) for damages to or loss of private property incident to the operation of Army and Air National Guard camps of instruction, either during the stay of units of said organizations at such camps or while en route thereto or therefrom; * * * (Act of August 1, 1953, Public Law 179, 83d Cong.).
(b) In accordance with general principles of law, the National Guard and the Air National Guard when not in Federal service are not agencies of the United States, and the United States is not liable for injury or damage arising from their activities. Thus, claims for such injury or damage are not cognizable under the Federal Tort Claims Act, as revised and codified (62 Stat. 982, 28 U.S.C. 3671-80). By the statutory provisions referred to in paragraph (a)
As used in §§ 564.51 to 564.58, the following terms shall have the meaning hereinafter set forth:
(a)
(b)
(c)
(d)
(e)
(f)
Claims for damage to or loss of private property proximately resulting from authorized activities incident to the operation of camps of instruction, including maneuvers, field exercises, training of units and personnel, movement of vehicles, operation of aircraft, maintenance and support of units and personnel, tortious acts or omissions of
(a)
(b)
(c)
(a)
(b)
(c)
(d)
(e)
(2)
(3)
(4)
(5)
Responsibility for the investigation of claims cognizable under §§ 564.51 to 564.68 and of accidents or incidents which may give rise to such claims rests in the adjutants general of the several States. Accordingly, claims received by the National Guard Bureau, or other agencies of the United States, will be referred to the adjutants general of the interested States. Regulations promulgated by the State adjutants general should require the prompt investigation of all accidents or incidents which might result in claims cognizable hereunder, whether or not claims have been filed.
(a) The maximum amount which may be allowed is the value of the property immediately prior to the accident or incident. Subject to the foregoing, the amount allowable is the cost, incurred or estimated to be incurred, of replacing the property, or of restoring it to the condition in which it was immediately prior to the accident or incident. However, if as the result of the repairs effected, the value of the property is appreciably enhanced, a sum equal to the increase in value will be deducted from the cost of restoring the property in determining the amount allowed. Conversely, if after the repairs have been effected, the value of the property is appreciably less than that prior to the accident or incident, the difference in value will be added to the cost of repairs in determining the amount allowed. However, no award in excess of the amount claimed may be made.
(b) In determining the amount allowable for repairs, the permanency of parts replaced will be considered and deductions made for depreciation as appropriated. Thus, an automobile tire is not expected to last through the life of a vehicle so that when a tire three-fourths worn is replaced with a new tire, the amount allowable is one-fourth of the cost of the new tire. The same principle applies to batteries and other items of equipment or accessories during relatively short wearout periods. However, no allowance for depreciation is made in replacing parts, such as fenders, bumpers, radiators, which normally would last through the life of the vehicle.
(c) Deprivation of use of property (including motor vehicles) is allowable as an item of damages, but only in those cases where the claimant has sustained legally provable damages. Towing charges are also allowable items of damage. However, interest, cost of preparation of claim and of securing supporting evidence, inconvenience, and similar items are not property allowable items of damage.
Section 3012, 70A Stat. 157; 10 U.S.C. 3012.
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(i) A spouse. This does not include a common law spouse unless so judged by a civil court.
(ii) Any unmarried natural (legitmate or illegitimate) or adopted child of the applicant if the child is under 18 year of age, whether or not the applicant has custody of the child, and regardless of who has guardianship of the child. If the applicant's child has been adopted by another person (Final adoption decree issued and effective)
(iii) Stepchild of the applicant who resides with the applicant if the stepchild is under 18 years of age.
(iv) Any other person who is dependent on the applicant for over one-half of his/her support.
(10)
(c)
(a)
(2) Prior service. Applicants must be 17 to 34 years old. If 35 or older but less than 55 years, they will qualify if they:
(i) Have a minimum of 3 years honorable active service in any one of the Armed Forces, with at least 1 or more days of Army service.
(ii) Be not less than 35 years old plus the number of completed years of prior honorable active military service.
(3) Exceptions. Applicants will be exempt from the above age requirements if they can qualify for retirement by age 60, are not 55 or older with 20 or more years of active service, and if they are:
(i) Honorably discharged active duty commissioned or warrant officers who enlist within 6 months after their separation date or who were awarded the Medal of Honor, Silver Star, or the Distinguished Service Cross.
(ii) Enlisted members who separate from the Regular Army with an honorable or general discharge and reenlist within 3 months after separation date.
(4) Parental consent. The written consent of parents or legal guardian is required for applicants under 18 years of age.
(b)
(1) A citizen of the United States, or
(2) An alien who has been lawfully admitted to the United States as a permanent resident, or
(3) A National of the United States (Citizen of Puerto Rico, Guam, American Samoa or the Virgin Islands).
(c)
(2) Prior service. Applicants must meet the mental requirements in paragraph (c)(3) of this section, or qualify for exemption from these requirements through:
(i) Award of the Medal of Honor.
(ii) Award of the Distinguished Service Cross, Navy Cross, or Silver Star Medal, with less than 20 years of active military service.
(iii) Partially disabling combat-wounds with less than 20 years of active military service.
(3) Mental categories and eligibility for enlistment.
(d)
(i) Female applicants must be high school graduates.
(ii) Male applicants, 17-22 years of age, must have successfully completed the 10th grade or equivalent. Males, 23 or older at time of entry on active duty, must have successfully completed the 11th grade or equivalent.
(iii) Aliens or applicants completing high school requirements in foreign countries must take the GED or have obtained an evaluation in accordance with table 2-5, note 5d, AR 601-210 to be considered a high school graduate for enlistment purposes.
(iv) Minimum education requirements, in a foreign country, given in paragraph (d)(1)(iii) of this section are the same in the United States.
(2) Prior service applicant must either:
(i) Possess a diploma or certificate of graduation from high school; or
(ii) Present documentation of successful completion of high school level or higher GED equivalency.
(e)
(i) Meet the enlistment physical fitness standards given in chapter 2, AR 40-501.
(ii) Meet any additional requirement of the specific enlistment option.
(iii) Request a waiver if the AFEES medical examining officer decides an exception to medical standards is appropriate.
(2) Prior service applicants must meet the weight standards in appendix A, AR 600-9 and
(i) The retention medical fitness standards in chapter 3, AR 40-501, if applicant enlists within 6 months of RA separation.
(ii) The enlistment medical fitness standards in chapter 2, AR 40-501 (except the weight standards of paragraph 2-22, AR 40-501) if applicants enlist 6 months from the last RA separation date, or if applicants last separated from another service or component and meets the weight tables in appendix A, AR 600-9.
(iii) The retention medical fitness standards in chapter 3, AR 40-501 if applicant is an active member of USAR/ARNG unit and meets the weight tables at appendix A, AR 600-9.
(iv) Any additional requirements for the specific enlistment option.
(f)
(i) An applicant without a spouse who has one or more dependents under 18 years of age is disqualified, except as noted in paragraphs (f)(1) (ii) and (iii) of this section. No waiver is authorized.
(ii) An applicant may be enlisted when dependent children are in the custody of the other parent by court order, and the applicant is not required to provide child support. No waiver is required.
(iii) An applicant, required to pay child support for no more than 2 dependents under 18 years of age when dependents are in the other parent's custody by court order, may enlist without waiver.
(iv) In meritorious cases, an applicant with a spouse may request waiver of paragraph (f)(1) of this section.
(v) Husband and wife teams who have one or more dependents under 18 years of age are disqualified. No waiver is authorized.
(vi) An applicant with a spouse on active duty with any Service who has 1 or more dependents under 18 years of age is disqualified.
(2) Prior service. Same as non-prior service for pay grades E-1 through E-3. If eligible for pay grade E-4 or higher, may enlist without regard to number and ages of dependents. However, the provisions of paragraphs (f) (i), (ii), (iii), (v), and (vi) of this part for applicants without prior service apply.
(a)
(2)
(3)
(4)
(5)
(b)
(2)
(c)
(2) To ensure equal treatment of all persons applying for RA enlistment, notwithstanding the wide variance in State statutes, the following guidance is furnished:
(i)
(ii)
(iii)
(A) Whether sentence was then imposed, withheld, or suspended, or
(B) Subsequent proceedings deleted an initial decision of guilt from court records, based on evidence of rehabilitation or completion of a satisfactory probationary period. Examples of subsequent proceedings in adult offender cases include pardon; expungement; reopening of the case to change the original finding of guilty or nolo contendere, to not guilty, dismissing the charge, amnesty, and setting aside the conviction. These subsequent proceedings merely recognize rehabilitation, they do not alter the fact that the offender committed the criminal act.
(iv)
(A) Means that a judge or a jury in a juvenile court proceedings determined that the juvenile was guilty of or committed the alleged acts, that the decision was based either on the complaint's merits or on the juvenile's admission of guilt or plea of guilty; and that the decision was recorded in the court records.
(B) Applies, whether or not sentence was then imposed, withheld, or suspended; and regardless of subsequent proceedings to delete an initial determination of guilt from court records, based on rehabilitation or satisfactory probation or supervision. Examples of subsequent proceedings in juvenile courts include expungement; record sealing; reopening the case to change the original findings of guilty or delinquency, or the plea of guilty or admission of the truth of the allegation, to not guilty; and dismissal of the original petition and setting aside the decision of delinquency. These subsequent proceedings merely recognize rehabilitation. They do not alter the fact that the juvenile committed the act for which he or she was judged.
(C) Includes judgement as a juvenile delinquent, wayward minor, youthful offender, delinquent child or juvenile offender, and declaration of the juvenile as a ward of the court. The term does not include the judgement of the juvenile as dependent, neglected, or abandoned.
(v)
(A) Concerning individual's freedom of movement.
(B) Requiring the payment of damages. (If paid, this requirement is no bar to waiver consideration.)
(C) Requiring periodic reporting to an officer of the court (including a probation officer).
(D) Involving supervision by an officer of the court (including a probation officer). For example, a sentence suspended on sole condition that the offender must not commit a like offense in the next 12 months does not bar waiver consideration.
(vi)
(d)
(e)
(f)
(2) Recruiting personnel will not help directly or indirectly in the release of an individual from a pending charge so that he or she may enlist in the Army as an alternative to further prosecution or further juvenile court proceedings. Equally important, recruiting personnel will in no way contribute, either tacitly or expressly, to the false notion that the Army condones such a practice. Persons subject to a pending charge are not eligible for enlistment. Therefore, they are not eligible for preenlistment processing to determine their mental and medical eligibility.
(g)
Enlistments are authorized for periods of 2, 3, 4, 5, or 6 years. The enlistee's option determines the number of years.
Personnel who enlist in the Regular Army for 2 or more years are authorized certain initial assignment choices. They must meet the criteria given in AR 601-210. Also, a valid Army requirement must exist for the skill under which enlisted.
R.S. 4815, as amended; 24 U.S.C. 41.
The basic statutory authority for establishment of the United States Soldiers’ and Airmen's Home is contained in the Act of March 3, 1851 (9 Stat. 595), and the Act of March 3, 1883 (22 Stat. 564).
The United States Soldiers’ and Airmen's Home provides a home and other benefits authorized by law for its members. Some of the important Home benefits are as follows:
(a) Suitable living quarters.
(b) Subsistence.
(c) Medical, dental, and hospital care.
(d) Complete recreation program.
(e) Laundry and drycleaning service.
(a) The following persons are eligible for admission to the United States Soldiers’ and Airmen's Home, except as indicated in § 574.4:
(1) First Category—Every soldier, airman, or warrant officer, male or female, of the Army or Air Force of the United States, who has—
(i) Had some service as an enlisted member of warrant officer in the Regular Army or Regular Air Force; and
(ii) Served honestly and faithfully for 20 years or more. In computing the necessary 20 years’ time, all active service as an enlisted member or as a warrant officer in the Army or Air Force, whether in the regular or Reserve components, will be credited. Service in the Navy or the Marine Corps or service as a commissioned officer cannot be credited.
(2) Second Category—Every soldier, airman, or warrant officer, male or female, of the Army or Air Force of the United States, whether in the regular or Reserve components, who has—
(i) Had some service as an enlisted member or warrant officer in the Regular Army or Regular Air Force and
(ii) Become incapable of earning a livelihood because of the disease, an injury, or wounds incurred in the military service of the United States, in line of duty, and not as a result of his/her own misconduct.
(3) Third Category—Every soldier, airman, or warrant officer, male or female, of the Army or Air Force of the United States, whether in the Regular or Reserve components, who—
(i) Has served on active duty as an enlisted member or warrant officer in the Army or Air Force during any war;
(ii) Has had some service as an enlisted member or warrant officer in the Regular Army or Regular Air Force; and
(iii) Is by reason of wounds, sickness, old age or other disability, unable to earn a livelihood.
(b) A requirement in each category is the performance of some service in the Regular Army or Regular Air Force and the terminating of active service in an enlisted or warrant officer status. Any enlisted person or warrant officer who served as a volunteer in the Spanish American War or who served with an organization of the Regular Army during World War I will be considered as having had some service in the Regular Army.
(c) Admission to the United States Soldiers’ and Airmen's Home is granted by authority of the Board of Commissioners. Individuals who are admitted to the Home will be officially designated as members. Whenever the Home's facilities become limited to the extent that it appears that all eligible applicants cannot be accomodated, a system of priorities authorized by the Board of Commissioners will be administered by the Governor of the Home. The objective of this system will be to grant admission to the most deserving individuals.
Admission to the Home cannot be granted to any person who was convicted of a felony or other disgraceful or infamous crime of a civil nature after entering the service of the United States; or to any deserter, mutineer, or habitual drunkard unless there is sufficient proof of subsequent honorable service, good conduct, and reformation of character to satisfy the Board of Commissioners.
Applications for admission to the United States Soldiers’ and Airmen's Home and information concerning eligibility requirements may be obtained by writing directly to the Board of Commissioners, United States Soldiers’ and Airmen's Home, Washington, DC 20317. The Board of Commissioners will issue letters authorizing admission to those individuals whose applications are approved.
The Board of Commissioners of the United States Soldiers’ and Airmen's Home will collect from members of the Home a fee which may be used solely for the operation of the Home. The amount of the fee will be determined by the Board of Commissioners on the basis of financial needs of the Home and the ability of the members to pay, but in no case may the fee collected in any month, in the case of any member, exceed an amount equal to 25 percent of the monthly—
(a) Military retired pay paid to such member;
(b) Civil Service annuity paid to such member where such annuity is based in part on years of military service;
(c) Disability compensation or pension paid to such member by the Veterans' Administration; or
(d) Military retired pay and disability compensation or pension where such member is receiving both retired pay and disability compensation or pension.
Secs. 3012, 4331, 70A Stat. 157, 238; 10 U.S.C. 3012, 4331-4355.
(a)
(2) The immediate government and military command of the Academy and the military post at West Point are vested in the Superintendent. In the absence of the Superintendent, the Deputy Superintendent, if present for duty, shall have such government and command. The Dean of the Academic Board has charge of the faculty and all academic work, and acts as representative of the academic departments and as adviser on academic matters to the Superintendent. The Commandant of Cadets is in charge of the administration and training of the Corps of Cadets and is also head of the Department of Tactics.
(b)
(c)
(1) The knowledge, skill, intellectual curiosity, discipline, and motivation provided by a sound education in the arts and sciences requisite for continued professional and intellectual growth.
(2) A highly developed sense of personal honor and professional ethics.
(3) Professional and personal commitment to the responsibilities of an officer for soldiers.
(4) Selflessness.
(5) The willing acceptance of responsibility for personal actions and the actions of subordinates.
(6) The initiative and good judgment to take appropriate action in the absence of instructions or supervision.
(7) Physical and moral courage.
(8) The physical strength, endurance, and conditioning habits required of a soldier.
(a) In one major respect, the requirements for admission to the United States Military Academy differ from the normal requirements for admission to a civilian college or university; each candidate must obtain an official nomination to the Academy. The young
(b) A candidate's mental qualifications for admission are determined by performance on one of the regularly administered College Entrance Examination Board series of tests. The Military Academy will consider scores made on the tests which are offered in December, January, March, and May at more than 700 College Board Test Centers throughout the United States and abroad. In general, a center will be within 75 miles of the candidate's home. Candidates register for the prescribed tests in accordance with the regularly published instructions of the College Board and pay the required fee directly to the College Board.
(c) The candidate's physical qualifications are determined by a thorough medical examination and physical aptitude test. To qualify, a candidate must be in good health, have good vision and hearing, have no deformities, and have the physical strength, endurance, coordination, and agility of active persons in their late teens. The medical examination and physical aptitude tests are held at selected military installations throughout the country (and overseas) on the Thursday and Friday preceding the regularly scheduled March administration of the College Board tests.
Admission to the Military Academy is gained by appointment to one of the cadetships authorized by law. Graduation of the senior class normally leaves about 915 vacancies each year. Candidates are nominated to qualify for these vacancies the year prior to admission. Those nominees appointed enter the Academy the following July and upon graduation are obligated to serve in the Army for a period of not less than 5 years. There are two major categories of nomination (Congressional/Gubernatorial and Service-Connected) and two minor categories (Filipino and Foreign Cadets). Cadetships authorized at the Military Academy are allocated among various sources of nominations from the major categories as follows:
(a)
(i) Name 10 nominees on a totally competitive basis,
(ii) Name a principal nominee, with nine competing alternates, or
(iii) Name a principal nominee, with nine alternates in order of preference.
(2) The priority that a fully qualified candidate may receive when considered for appointment is actually governed by the method of nomination used. For example, a principal nominee who is found minimally qualified must be offered an appointment. Conversely, the same individual nominated on a totally competitive basis, may be ranked as one of the least qualified nominees for that vacancy and, consequently, may not be offered an appointment. Many nominating authorities hold preliminary competitive nomination examinations to select their nominees. Those
(b)
(1) Presidential: Children of career military personnel in the Armed Forces who are on active duty, retired, or deceased, are nominated through this category. The term “career” includes members of the Reserve Components currently serving 8 or more years of continuous active duty and Reserve retirees receiving either retired or retainer pay. Children of reservists retired while not on active duty are ineligible. Applications should include the name, grade, social security number/service number, and branch of service of the parent as a member of such regular component, and the full name, address, and date of birth of the applicant (complete military address and social security number, if in the Armed Forces). Adopted children are eligible for appointment if they were adopted prior to their 15th birthday; a copy of the order of court decreeing adoption, duly certified by the clerk of the court, must accompany the application.
(2) Children of Deceased and Disabled Veterans: This category is for children of deceased or 100 percent disabled Armed Forces veterans whose deaths or disabilities were determined to be service-connected, and for children of military personnel or federally employed civilians who are in a missing or captured status. Candidates holding a nomination under this category are not eligible for nomination under the Presidential or Medal of Honor category. The Veterans Administration determines the eligibility of all applicants. The application should include the full name, date of birth, and address of the applicant (complete service address should be given if the applicant is in the Armed Forces), and the name, grade, social security number/service number, and last organization of the veteran parent, together with a brief statement concerning the time, place, and cause of death. The claim number assigned to the veteran parent's case by the Veterans Administration should also be furnished.
(3) Children of Persons Awarded the Medal of Honor: Applications from children of persons awarded the Medal of Honor should contain the applicant's full name, address, and date of birth (complete service address should be given if the applicant is in the Armed Forces); the name, grade, and branch of service of the parent; and a brief statement of the date and circumstances of the award. Candidates appointed from this source may qualify in the same manner as a congressional principal candidate. All who are found fully qualified will be admitted as cadets, regardless of the number.
(4) Honor Military Schools: Certain Honor Military Schools designated by Department of the Army, Department of the Navy, and Department of the Air Force are invited to recommend three candidates for nomination annually from among their honor graduates. Appointments are filled by selecting the best qualified candidates regardless of the school from which nominated. Application should be made through the school Senior Army Instructor.
(5) Army ROTC: This category is for members of college and high school Army Reserve Officers’ Training Corps units. Application should be made through the Professor of Military Science or Senior Army Instructor at the school.
(6) Regular Army: This category is for enlisted members of the active Army. Appointments may be awarded to 85 Regular Army candidates. Application for admission, through command channels to the United States Military Academy Preparatory School (USMAPS) constitutes application for nomination under this category.
(7) Reserve Components: This category is for enlisted members of the Army Reserve and Army National Guard. Application for admission should be made through command channels to USMAPS. Enlisted members who are not on active duty should
(c)
(d)
This section describes the specific requirements which candidates must fulfill in addition to obtaining an appointment as outlined in § 575.3.
(a)
(b)
(c)
(d)
The latest edition of the catalogue, United States Military Academy, contains additional information regarding the Academy and requirements for admission. This publication may be obtained free of charge from the Registrar, United States Military Academy, West Point, NY 10996, or from the United States Army Military Personnel Center, HQDA (DAPC-OPP-PM), 200 Stovall Street, Alexandria, VA 22332.
Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012.
The primary purpose of the awards program is to provide tangible evidence of public recognition for acts of valor and for exceptional service or achievement. Medals constitute one of the principal forms for such evidence; in the United States Army, medals are of the following categories:
(a) Military decorations are awarded on a restricted individual basis in recognition of and as a reward for heroic, extraordinary, outstanding, and meritorious acts, achievements, and services; and such visible evidence of recognition is cherished by recipients. Decorations are primarily intended to recognize acts, achievements, and services in time of war.
(b) The Good Conduct Medal is awarded in recognition of exemplary behavior, efficiency, and fidelity during enlisted status in active Federal military service.
(c) Service medals are awarded generally in recognition of honorable performance of duty during designated campaigns or conflicts. Award of decorations, and to a lesser degree, award of the Good Conduct Medal and of service medals, provide a potent incentive to greater effort, and are instrumental in building and maintaining morale.
The following definitions are furnished for clarity and uniformity in the determination and award of decorations:
(a)
(b)
(1) Actual conflict with an armed enemy, or
(2) Military operations which involve exposure to personal hazards, due to direct enemy action or the imminence of such action.
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(1) In a period when the United States is not engaged in the prosecution of a formal declared war, or
(2) Outside a combat zone when the United States is engaged in military operations against an armed enemy, but is not prosecuting a formal declared war, except that in the communications zone, those individuals whose duties are in connection with military operations against an armed enemy may be considered under war criteria.
(l)
(m)
(1) During a period of formal, declared war and for 1 year after the cessation of hostilities, or
(2) During a period of military operations against an armed enemy and for 1 year after the cessation of hostilities. Only those individuals actually in the combat zone or those individuals in the communications zone whose duties involve direct control or support of combat operations, are to be considered under wartime criteria.
(n)
(o)
(p)
(1) To include the three categories of awards, namely: decorations, Good Conduct Medal, and service medals; or
(2) To refer to the distinctive physical device of metal and ribbon which constitutes the tangible evidence of an award.
(q)
(a)
(b)
(2) Recommendations may be submitted in letter form but it is preferable that DA Form 638 (Recommendation for Award (Heroism, meritorious achievement or service)) be used. This form is self-explanatory; however, close attention to detail is most essential. A separate recommendation including a proposed citation will be submitted for each proposed award and only one proposed recipient will be named in a single recommendation. Lucid reporting of facts, not flowery generalities, will be most likely to achieve the object of the recommendation. Statements of eyewitnesses, extracts from official records, sketches, maps, diagrams, photographs, etc., will be attached to support and amplify stated facts. Statements must be signed and the signer clearly identified by his organization or address; if in the military service the service number should be included. All other documentation should be authenticated and related to the basic recommendation. The proposed citation usually will be limited to one typewritten page (8 by 10
(3) To be fully effective a decoration must be timely. Undue delay in the submission of a recommendation may preclude its consideration as noted in paragraph (m) of this section. It is highly desirable that a recommendation be placed in military channels and acted on as quickly as possible. If circumstances preclude submission of a completely documented recommendation it is best to submit it as soon as possible and note that additional data is to be submitted later. Action by intermediate headquarters and by the final approving authority will be as expeditious as possible, consistent with full and weighted judgment.
(4) A recommendation for the award of a decoration based on a period of meritorious service will not normally be acted on more than 30 days prior to the projected end of that period. Such an award normally will not be made until the duties which the individual has been performing are terminated. When an individual departing an organization or installation desires to initiate a recommendation for an award for meritorious service for an individual who is remaining in the command, he should leave the recommendation in written form with the commanding officer or with his own successor for final action when the person recommended becomes eligible for consideration, as indicated in paragraphs (b)(1) to (4) of this section.
(5) Recommendations for all awards which may not be finally acted on in the field pursuant to delegated authority will be forwarded through channels to The Adjutant General, or directly to The Adjutant General if the use of military channels is impracticable. Each intermediate headquarters will express approval or disapproval, indicating reasons if disapproved. When an interim award is made a copy of the orders and citation will be added to the recommendation when it is forwarded.
(c)
(1) The Distinguished-Service Cross, Silver Star, Distinguished-Flying Cross, Soldier's Medal, Bronze Star Medal, Air Medal, and Commendation Ribbon with Metal Pendant may be awarded to members of the Armed Forces of the United States by the senior Army commander of any separate force or by subordinate commanders to whom he may delegate this authority, provided that the authority will not be delegated to any commander below the grade of major general. Authority may be delegated to any commander in the grade of brigadier general while he is
(2) The Distinguished-Service Cross and Silver Star may be awarded by the commanding general of a United States Army force in a theater of operations to officers and members of crews of ships of the United States Merchant Marine serving under his jurisdiction.
(3) The Legion of Merit may be awarded only by commanders specifically designated by the Secretary of the Army.
(4) The Silver Star, Distinguished-Flying Cross, Soldier's Medal, Bronze Star Medal, and Air Medal may be awarded by the commanders indicated in paragraph (c)(1) of this section, to members of the armed forces of friendly foreign nations, provided concurrence has been obtained from the senior commander present in the theater of hostilities for an award to one of his own nationals, except as shown in paragraphs (c)(4) (i) and (ii) of this section. Such concurrence will be regarded as constituting approval by his government for acceptance of the award. A recommendation for any of these awards will be forwarded to the Department of the Army when:
(i) The senior commander of a cobelligerent force is unable to obtain the approval of his government.
(ii) An award to a flag or general officer or to the senior officer of the cobelligerent force present in the area is contemplated.
(5) The Purple Heart may be awarded by the commanding general of any separate force who is in the grade or position of a major general or higher or by any field grade officer to whom he may delegate the authority. The award may be made to members of the Armed Forces of the United States, to officers and members of crews of ships of the United States Merchant Marine serving within the area of his command, to civilian citizens of the United States serving with the Army, and to civilian citizens of the United States whose presence within the command has been approved (examples: war correspondents, Red Cross, and USO personnel).
(6) The Medal of Freedom may be awarded by such officers as may be designated by the Secretary of the Army.
(7) The National Security Medal shall be awarded by the President or his designee for that purpose under either wartime or peacetime criteria.
(d)
(2) No peacetime award of an Army decoration will be made to a member of another United States Armed Forces Service without concurrence from the military department concerned.
(3) The Legion of Merit, the Soldier's Medal, the Army Commendation Medal, the Decoration for Distinguished Civilian Service and the Outstanding Civilian Service Award are the only United States decorations which may be awarded by the Department of the Army to foreign nationals under peacetime criteria. The Bronze Star Medal may be awarded by the Department of the Army to foreign nationals under peacetime criteria during a period and in specified areas where United States troops are engaged in military operations involving conflict with an opposing foreign force or while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party.
(4) Authority to award the Joint Service Commendation Medal has been delegated by the Secretary of Defense to:
(i) The Deputy Secretary of Defense for awards to military personnel assigned to the Office of the Secretary of Defense.
(ii) The Chairman, Joint Chiefs of Staff for awards to military personnel on his staff, and in those agencies and activities reporting through his staff.
(iii) Director, Defense Supply Agency for awards to military personnel on his staff.
(iv) Director, National Security Agency for award to military personnel on his staff.
(v) Commanders in Chief of Unified and Specified Commands, for awards to military personnel assigned to their respective headquarters and to those joint agencies and activities reporting to or through their commands.
(5) The Army Commendation Medal may be awarded for heroism, meritorious achievement or meritorious service by any commander in the grade or position of a Major General or higher and by the heads of Headquarters Department of the Army staff agencies to members of the Army of the United States below the grade of Brigadier General. The Army Commendation Medal may be awarded by the appropriate commander as an interim award in accordance with paragraph (g) of this section in those cases involving heroism and for which a recommendation for the award of the Distinguished Flying Cross or the Soldier's Medal has been submitted. Awards of the Army Commendation Medal may also be made under the provisions of AR 672-301 (Incentive Awards).
(6) The National Security Medal is awarded as noted in paragraph (c)(7) of this section.
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(1) Awards of military decorations may be made in cases where prior similar recommendations have been acted upon by commanders who had authority to approve the awards, provided the requests for reconsideration or upgrading are submitted within the time limits prescribed above and such requests are accompanied by new and material evidence in support thereof.
(2) Awards of military decorations may be made in recognition of previously issued orders, letters, or certificates, and in exchange of decorations as may be authorized in this section.
(n)
(o)
(p)
(q)
(2)
(3)
(4)
(a)
(b)
(c)
(d)
(2) Sons of winners of the Medal of Honor, otherwise qualified for admission to the United States Military Academy, will not be subject to quota
(a)
(b)
(a)
(2) For service not related to actual war the term “duty of great responsibility” applies to a narrower range of positions than in time of war, and requires evidence of conspicuously significant achievement. However, justification of the award may accrue by virtue of exceptionally meritorious service in a succession of high positions of great importance.
(3) Awards may be made to persons other than members of the Armed Forces of the United States for wartime services only, and then only under exceptional circumstances with the express approval of the President, in each case.
(b)
(a)
(b)
The Legion of Merit, established by Act of Congress July 20, 1942, is awarded to any member of the Armed Forces of the United States or of a friendly foreign nation who has distinguished himself or herself by exceptionally meritorious conduct in the performance of outstanding services. See figure 1.
(a)
(2) For service not related to actual war, the term “key individuals” applies to a narrower range of positions than in time of war and requires evidence of significant achievement. Such service, performed in peacetime, should be in the nature of a special requirement or the performance of an extremely difficult duty in an unprecedented and clearly exceptional manner. However, justification of the award may accrue by virtue of exceptionally meritorious service in a succession of important positions.
(3) The accomplishment of the duty should have been completed prior to submitting a recommendation, or if the person being recommended has been transferred prior to completion, the accomplishment must have progressed to what may be clearly determined to be an exceptional degree.
(4) Awards will be made without reference to degree and for each such award, the Legion of Merit (Legionnaire) will be issued.
(b)
(2) Each award will be made in one of the following degrees, which are listed in order or rank:
(i) Chief Commander.
(ii) Commander.
(iii) Officer.
(iv) Legionnaire.
(3) Awards of this decoration in the degrees of Chief Commander and Commander are comparable to awards of the Distinguished-Service Medal and the standards prescribed in § 578.6 (a) will be applied in considering such awards.
(4) Awards in the lesser degrees of this decoration are comparable to awards of the Legion of Merit to members of the Armed Forces of the United States and the standards prescribed in paragraph (a) of this section are applicable.
(5) Second or succeeding awards of this decoration will be in the same or a higher degree than the previous award.
(c)
(2)
(3)
(4)
(a)
(b)
(a)
(b)
(a)
(1)
(2)
(ii) Awards may be made, upon letter application to The Adjutant General, to those members of the Armed Forces of the United States who, on or after December 7, 1941, have been awarded the Combat Infantryman Badge or Medical Badge for exemplary conduct in ground combat against an armed enemy between December 7, 1941 and September 2, 1945, inclusive, or whose meritorious achievement or exemplary conduct in ground combat against an armed enemy during such period has been otherwise confirmed in writing by documents executed prior to July 1, 1947. Documents which have been executed since August 4, 1944 in connection with recommendations for the award of decorations of higher degree than the Bronze Star Medal will not be used to establish a basis for the award of this decoration under the provisions of this paragraph.
(b)
(a)
(b)
Department of Defense Directive 1348.14, 25 June 1963, established the Joint Service Commendation Medal This decoration is awarded in the name of the Secretary of Defense and shall take precedence with, but before, the Army Commendation Medal when both are worn on the uniform. The decoration is not awarded to any individual for a period of service for which another meritorious decoration has been awarded.
(a)
(b)
(1) Office of the Secretary of Defense.
(2) Organization of the Joint Chiefs of Staff.
(3) Defense Supply Agency.
(4) National Security Agency.
(5) Other Department of Defense agencies or joint activities reporting through the Joint Chiefs of Staff.
(6) Headquarters, unified and special commands.
(7) Headquarters of joint task forces, joint commands or control groups, reporting through the Joint Chiefs of Staff, unified, specified or subordinate joint commanders, to include service components assigned to a joint command for exercise purposes (e.g., STRIKE Command).
(8) Other joint activities reporting to commanders of unified or specified commands (e.g., Military Assistance Advisory Groups or Joint Missions).
(a)
(1) The required meritorious achievement or meritorious service while of lesser degree than that required for the award of the Legion of Merit must nevertheless have been accomplished with distinction and must have been of the same degree as required for the award of the Bronze Star Medal or Air Medal. An award may be made when the operational requirements for the award of the Bronze Star Medal have not been fully met.
(2) An award may be made for acts of outstanding courage which do not meet the requirements for an award of the Soldier's Medal.
(3) An award for meritorious service will not normally be made for a period of service of less than 6 months’ duration.
(4) The Army Commendation Medal will not be awarded to general officers.
(5) It is particularly desirable that emphasis be placed on the award of this decoration to outstanding company grade officers, warrant officers, and enlisted personnel whose achievements and services meet the prescribed standards.
(6) Awards may be made upon letter application to The Adjutant General to any individual commended after December 6, 1941, and prior to January 1,
(7) The Army Commendation Medal may be awarded in connection with military participation in the Department of the Army Suggestion Program.
(8) Awards of the Army Commendation Ribbon and of the Commendation Ribbon with Metal Pendant are redesignated by Department of the Army General Orders 10, March 31, 1960, as awards of the Army Commendation Medal, without amendments of certificates or of orders previously issued.
(b)
(a)
(1) For the purpose of considering an award of this decoration, a “wound” is defined as an injury to any part of the body from an outside force or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy. A physical lesion is not required, provided the concussion or other form of injury received was directly due to enemy action and required treatment by a medical officer. Awards will not be made by reason of injuries due to frostbite or trenchfoot. Not more than one award of this decoration will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.
(2) Records of medical treatment for wounds or injuries received in action as prescribed above must have been made a matter of official record during the period of hostilities or within 6 months thereafter.
(3) Awards may be made, upon letter application, to those individuals who, as members of the Army, prior to December 7, 1941, were awarded Meritorious Services Citation Certificates by the Commander-in-Chief, American Expeditionary Forces, during World War I and/or were authorized to wear wound chevrons.
(4) Those individuals who, as members of the Army, on or after December 7, 1941, were awarded the Purple Heart for meritorious achievement or service in connection with military operations against the enemy may make application for the award of an appropriate decoration in lieu of the Purple Heart.
(5) A Purple Heart will be issued by The Adjutant General to the next of kin of each person entitled to a posthumous award. Issue will be made automatically as soon as possible after receipt by the Department of the Army of a report of death under circumstances indicating such entitlement, and notwithstanding the fact that the records indicate the presentation of a Purple Heart to the deceased person prior to death.
(b)
(a)
(b)
(a)
(b)
(a)
(2)
(b)
(a)
(b)
(c)
(a)
(b)
(c)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(a)
(b)
(2)
(c)
(d)
(e)
(f)
(1) By the next of kin if the award is conferred posthumously upon a former member of the Armed Forces of the United States.
(2) By the next of kin if the recipient dies before approval of acceptance can be obtained.
(3) If the award was conferred or earned while the recipient was serving as a bona fide member of the Armed Forces of the nation conferring the award and if the award is one authorized to be conferred generally upon members of that nation's forces. Such foreign awards must meet the following applicable requirements:
(i) A decoration must be awarded prior to the recipient's entrance into active service in the Armed Forces of the United States.
(ii) A badge must have been qualified for by the recipient under criteria established by the country concerned for award of the badge.
(iii) A service medal must have been earned under usual criteria established by the country concerned.
(g)
(h)
(2) When an award or gift is proffered to a member of the Armed Forces or a civilian employee performing any duty in connection with the Military Assistance Program in recognition of actual combat services against an armed enemy of the United States, or in recognition of heroism involving the saving of life, the foregoing prohibition is inapplicable, and the provisions of paragraph (e) of this section will be followed.
(a) Items issued by Department of the Army:
(1) Decorations,
(2) Service medals,
(3) Service ribbons,
(4) Palms,
(5) Rosettes,
(6) Clasps,
(7) Arrowheads,
(8) Service Stars,
(9) Good Conduct Medals,
(10) Oak-Leaf Clusters,
(11) Letter “V” devices,
(12) Certificates for decorations,
(13) Lapel buttons for decorations,
(14) Lapel buttons, miscellaneous,
(15) 10-year devices,
(16) Berlin airlift devices,
(17) Containers for decorations.
(b) Items not issued or sold by Department of the Army:
(1) Miniature medals and appurtenances,
(2) Miniature service ribbons,
(3) Miniature devices,
(4) Lapel buttons for service medals,
(5) Lapel buttons, miscellaneous.
(a)
(b)
(c)
(2) The Medal for Merit has not been awarded since 1952; therefore, no requirements exist for this item except for replacements.
(3) The Gold Star Lapel Button is authorized for issue to next of kin of deceased personnel.
(a)
(b)
(c)
Those individuals to whom United States military decorations have been awarded subsequent to December 7, 1941, and to whom an appropriate certificate for decoration has not been issued may make application for such certificate by submitting a written request to the appropriate office as indicated in § 578.21. Each request should indicate a reference to the number, date, and headquarters of issue of the order announcing the award.
As a token of appreciation and in recognition of patriotic civilian service contributing to the accomplishment of the mission of an installation, command, or Staff Agency of the Army, or to the welfare of Army personnel, a Certificate of Appreciation has been established. This certificate, together with a brief citation may be awarded by commanders of major commands and heads of Headquarters, Department of the Army Staff agencies on behalf of the Secretary of the Army for services rendered to elements of the Army under their respective jurisdictions. The accompanying citation should conform to § 578.3(b)(2) and will be made a matter of record in the headquarters of issue, or, when issued by a Headquarters, Department of the Army Staff agency, will be forwarded to The Adjutant General, Department of the Army, Washington, DC 20310, Attn: AGAO-N, for file.
(a)
(b)
(c)
(a) As a token of appreciation and in recognition of services rendered by those who died in the service of their country, an Accolade signed by the President is issued to the next of kin of record of all military personnel whose death occurred in line of duty during World War II, December 7, 1941, to July 25, 1947, both dates inclusive, and in Korea during military operations from June 27, 1950, to July 27, 1954, inclusive. The Accolade is also issued to the next of kin of civilians who died overseas or as a result of injury or disease contracted while serving in a civilian capacity with the Armed Forces of the United States during the dates and/or in the areas prescribed above in connection with military personnel.
(1) The Accolade reads as follows:
In grateful memory of————————— who died in the service of his (her) country at—————————. He (she) stands in the unbroken line of patriots who have dared to die that freedom might live and grow, and increase its blessings. Freedom lives, and through it he (she) lives—in a way that humbles the undertakings of most men. (Facsimile signature) President of the United States.
(2) Accolades will be issued by The Adjutant General upon receipt of reports of death.
(b) In order to provide an appropriate identification for widows, parents, and certain next of kin of members of the Armed Forces of the United States who lost their lives in World War I, April 6, 1917 to March 3, 1921; World War II, September 8, 1939 to July 25, 1947; Korean operations, June 27, 1950 to July 27, 1954; or during any subsequent war or period of armed hostilities in which the United States may be engaged, a Gold Star lapel button was established by an Act of Congress on August 1, 1947.
(1) The Gold Star lapel button consists of a gold star on a purple circular background, bordered in gold and surrounded by gold laurel leaves. On the reverse is the inscription “United States of America, Act of Congress, August 1947,” with space for engraving the initials of the recipient.
(2) One Gold Star lapel button will be furnished without cost to the widow or widower and to each of the parents of a member of the Armed Forces who lost his or her life while in the active military service during the periods indicated above. The term “widow or widower” includes those who have since remarried, and the term “parents” included mother, father, stepmother, stepfather, mother through adoption, father through adoption, and foster parents who stood in loco parentis.
(3) One Gold Star lapel button will be furnished at cost price to each child, stepchild, child through adoption, brother, half brother, sister, and half sister of a member of the Armed Forces
(4) Letter applications for Gold Star lapel buttons may be submitted to The Adjutant General or to the Commanding Officer, Army Records Center, 9700 Page Boulevard, St. Louis, Missouri 63132, by eligible next of kin of deceased Army personnel enumerated in paragraphs (b) (2) and (3) of this section.
(5) Under the act, only one Gold Star lapel button will be furnished to eligible individuals, except that whenever a Gold Star lapel button has been lost, destroyed, or rendered unfit for use, without fault or neglect on the part of the person to whom it was furnished, such button may be replaced at cost price upon application to The Adjutant General. Private manufacture and/or sale of the Gold Star lapel button is prohibited. The design will not be incorporated in any manner in any article manufactured commercially or privately. The law prescribes a fine of $1,000 and/or imprisonment for 2 years as a penalty for unauthorized wearing or counterfeiting of the Gold Star lapel button, or for possessing a counterfeit of this button.
(a)
(1) The certificate reads as follows:
Honorable Service in the Armed Forces of the United States of America. This is to certify that—————————————died while in the service of our country as a member of the Army of the United States on the———————day of——————— This certificate is awarded as a testimonial of Honest and Faithful Service. (Signature) Secretary of the Army.
(2) Certificates of Honorable Service will be issued by The Adjutant General upon receipt of reports of death.
(b)
Commanding officers may recognize periods of faithful service, acts, or achievements which do not meet the standards required for decorations by issuing to individual United States military personnel and United States civilian citizens a Certificate of Achievement.
(a) The Certificate of Achievement may be devised locally by commanding officers and issued under such regulations as they may prescribe; may be printed or lithographed; and may bear reproductions of authorized insignia. A Certificate of Achievement may be used locally for awarding the Good Conduct Medal.
(b) No distinguishing device is authorized for wear to indicate the receipt of a Certificate of Achievement.
(a) A Special Certificate of Achievement for issuance to information media, civic, fraternal, and other types of organizations and groups who have actively supported the Army in its public and community relations efforts, including the Reserve Forces Program, has been established. This special certificate is designed to give official Department of the Army recognition to civilian groups and organizations who have made an exceptional contribution to the development of public understanding of the Army, gaining for it greater public confidence and support. Consideration should be given to the award of this certificate as an expression of the appreciation of the Army
(b) Letter recommendations for issuance of the Special Certificate of Achievement for Public and Community Relations will be submitted to the Chief of Information, Department of the Army, Washington, DC 20310, through military channels. Recommendations will include a detailed description of the contributions made by the nominee, the inclusive dates of the period during which the contributions were made, and a proposed citation. The value of these contributions to the Army must be clearly indicated. No distinguishing device is authorized for wear by members of the cited organization.
(c) Presentation of the special certificate will be made in a manner commensurate with the significance of the award.
(a)
(b)
(c)
(d)
(1) World War I Victory Medal and Mexican Service Medal.
(2) World War II Victory Medal and one or more of the campaign medals for that war.
(3) Medal for Humane Action and Army of Occupation Medal.
(4) National Defense Medal, Korean Service Medal, and United Nations Service Medal.
(5) Armed Forces Reserve Medal and any other service medal listed hereinafter.
(a)
(b)
(c)
(2) Entry into service as a cadet or midshipman at any United States service academy or discharge from enlisted status for immedate entry on active duty in an officer status is considered termination of service for the purpose of awarding the Good Conduct Medal.
(3) A qualified person scheduled for separation from active Federal military service should receive the award at his last duty station. Such award is authorized up to 30 days prior to the soldier's departure en route to a separation processing installation in CONUS or overseas. Orders announcing such advance awards will indicate the closing date of periods for the award prefixed with “DOSOA” (indicating “Date of separation on or about”).
(4) An award made for any authorized period of less than 3 years must be for the total period of obligated active Federal military service.
(5) Discharge under provisions of AR 635-205 for immediate (re) + enlistment is not termination of service.
(6) Retroactive awards will be made only by The Adjutant General after favorable consideration of requests, submitted through channels, which include adequate evidence of injustice.
(d)
(1) Each 3 years completed on or after August 26, 1940.
(2) For first award only, 1 year served entirely during the period December 7, 1941 to March 2, 1946.
(3) For the first award only, upon termination of service on or after June 27, 1950, of less than 3 years but more than 1 year.
(4) For first award only, upon termination of service, on or after June 27, 1950, of less than 1 year when final separation was by reason of physical disability incurred in line of duty.
(e)
(1) All conduct (character) and efficiency ratings must be recorded as “Excellent” except that:
(i) Ratings of “Unknown” for portions of the period under consideration are not disqualifying.
(ii) Service school efficiency ratings based upon academic proficiency of at least “Good” rendered subsequent to November 22, 1955 are not disqualifying.
(2) No conviction by court-martial during the period.
(3) The individual must not be serving in, nor have been serving at the time of separation in, an assignment of the type designated as “specially controlled duties” in AR 604-10.
(f)
(g)
(h)
(i)
Established by WD General Orders 12, 1907.
(a)
(b)
Established by WD General Orders 12, 1907.
(a)
(b)
(1) Southern Oregon, Idaho, northern California, and Nevada between 1865 and 1868.
(2) Against the Comanches and confederate tribes in Kansas, Colorado, Texas, New Mexico, and Indian Territory between 1867 and 1875.
(3) Modoc War between 1872 and 1873.
(4) Against the Apaches in Arizona in 1873.
(5) Against the Northern Cheyennes and Sioux between 1876 and 1877.
(6) Nez Perce War in 1877.
(7) Bannock War in 1878.
(8) Against the Northern Cheyennes between 1878 and 1879.
(9) Against the Sheep-Eaters, Piutes, and Bannocks between June and October, 1879.
(10) Against the Utes in Colorado and Utah between September 1879 and November 1880.
(11) Against the Apaches in Arizona and New Mexico between 1885 and 1886.
(12) Against the Sioux in South Dakota between November 1890 and January 1891.
(13) Against hostile Indians in any other action in which United States troops were killed or wounded between 1865 and 1891.
Established by WD General Orders 5, 1905.
(a)
(b)
(1) Cuba between May 11, 1898, and July 17, 1898.
(2) Puerto Rico between July 14, 1898, and August 13, 1898.
(3) Philippine Islands between June 30, 1898, and August 16, 1898.
Established by Act of Congress July 9, 1918.
(a)
(b)
Established by WD General Orders 40, 1915.
(a)
(b)
Established by WD Compilation of Orders, Changes 15, February 4, 1919.
(a)
(b)
Established by WD General Orders 5, 1905.
(a)
(b)
(1) Ashore between February 4, 1899, and July 4, 1902.
(2) Ashore in the Department of Mindanao between February 4, 1899, and December 31, 1904.
(3) In operations against the Pulajanes on Leyte between July 20, 1906, and July 30, 1907, or on Samar between August 2, 1904, and June 30, 1907.
(4) With any of the following expeditions:
(i) Against Pala on Jolo between April and May 1905.
(ii) Against Datu Ali on Mindanao in October 1905.
(iii) Against hostile Moros on Mount Bud-Dajo, Jolo, March 1906.
(iv) Against hostile Moros on Mount Bagsac, Jolo, between January and July 1913.
(v) Against hostile Moros on Mindanao or Jolo between 1910 and 1913.
(5) In any other action against hostile natives in which United States troops were killed or wounded between February 4, 1899, and December 31, 1913.
Established by Act of Congress June 29, 1906.
(a)
(b)
(1) Under a call of the President entered the Army between April 21 and October 26, 1898.
(2) Served beyond the date on which entitled to discharge.
(3) Ashore in the Philippine Islands between February 4, 1899, and July 4, 1902.
Established by WD General Orders 5, 1905.
(a)
(b)
Established by WD General Orders 96, 1909.
(a)
(b)
Established by WD General Orders 155, 1917.
(a)
(b)
(1) With the Vera Cruz Expedition in Mexico between April 24, 1914, and November 26, 1914.
(2) With the Punitive Expedition in Mexico between March 14, 1916, and February 7, 1917.
(3) In the following engagements:
(i) Buena Vista, Mexico, December 1, 1917.
(ii) San Bernardino Canon, Mexico, December 26, 1917.
(iii) La Grulla, Texas, January 8 and 9, 1918.
(iv) Pilares, Mexico, March 28, 1918.
(v) Nogales, Arizona, August 27, 1918, or November 1 to 5, 1915.
(vi) El Paso, Texas, and Juarez, Mexico, June 15 and 16, 1919.
(vii) Any other action against hostile Mexicans in which United States troops were killed or wounded between April 12, 1911, and February 7, 1917.
Established by Act of Congress July 9, 1918.
(a)
(b)
Established by WD General Orders 48, 1919.
(a)
(b)
(1) American Expeditionary Forces in European Russia between November 12, 1918, and August 5, 1919.
(2) American Expeditionary Forces in Siberia between November 12, 1918, and April 1, 1920.
(c)
(1)
(ii)
(2)
(ii)
(d)
(2)
Established by Act of November 21, 1941 (55 Stat. 781).
(a)
(b)
Established by Executive Order 8808 (3 CFR, 1943, Cum. Supp.).
(a)
(b)
(c)
(2)
(d)
(2)
Established by Executive Order 9365 (3 CFR, 1943 Cum. Supp.)
(a)
(b)
Established by Executive Order 9265 (3 CFR, 1943 Cum. Supp.)
(a)
(b)
(1) On permanent assignment outside the continental limits of the United States.
(2) Permanently assigned as a member of a crew of a vessel sailing ocean waters for a period of 30 consecutive days, or 60 days not consecutive.
(3) Outside the continental limits of the United States in a passenger status or on temporary duty for 30 consecutive days or 60 days not consecutive.
(4) In active combat against the enemy and was awarded a combat decoration or furnished a certificate by the commanding general of a corps, higher unit, or independent force that he actually participated in combat.
(5) Within the continental limits of the United States for an aggregate period of 1 year.
(c)
(2)
(d)
(2)
Established by Executive Order 9265 (3 CFR, 1943 Cum. Supp.).
(a)
(b)
(1) On permanent assignment.
(2) In a passenger status or on temporary duty for 30 consecutive days or 60 days not consecutive.
(3) In active combat against the enemy and was awarded a combat decoration or furnished a certificate by the commanding general of a corps, higher unit, or independent force that he actually participated in combat.
(c)
(2)
(d)
(2)
(i) Assigned, or attached, to and present for duty with a unit during the period in which it participated in combat.
(ii) Under orders in the combat zone and in addition meets any of the following requirements:
(iii) Was an evadee or escapee in the combat zone or recovered from a prisoner of war status in the combat zone during the time limitations of the campaign. Prisoners of war will not be accorded credit for the time spend in confinement or while otherwise in restraint under enemy control.
(e)
(2)
Established by Executive Order 9265 (3 CFR, 1943 Cum. Supp.).
(a)
(b)
(1) On permanent assignment.
(2) In a passenger status or on temporary duty for 30 consecutive days or 60 days not consecutive.
(3) In active combat against the enemy and was awarded a combat decoration or furnished a certificate by the commanding general of a corps, higher unit, or independent force that he actually participated in combat.
(c)
(2)
(d)
(2)
(i) Assigned, or attached, to and present for duty with a unit during the period in which it participated in combat.
(ii) Under orders in the combat zone and in addition meets any of the following requirements:
(
(
(
(
(iii) Was an evadee or escapee in the combat zone or recovered from a prisoner of war status in the combat zone during the time limitations of the campaign. Prisoners of war will not be accorded credit for the time spent in confinement or while otherwise in restraint under enemy control.
(e)
(2)
Established by Act July 6, 1945 (59 Stat. 461; 10 U.S.C. 1430c).
(a)
(b)
Established by section I, WD General Orders 32, 1946:
(a)
(1) Army of Occupation of Germany (exclusive of Berlin) between May 9, 1945, and May 5, 1955. (Service between May 9, and November 8, 1945, will be counted only if the European-African-Middle Eastern Campaign Medal was awarded for service prior to May 8, 1945.)
(i) Service for the prescribed period with an organization which has been designated in Department of the Army general orders as having met the requirements for the Berlin airlift device on an individual basis in orders issued by appropriate field authority will qualify the individual for the award.
(ii) The orders announcing the award of the Berlin airlift device will specifically award the Army of Occupation Medal to persons not otherwise eligible therefor.
(2) Army of Occupation of Austria between May 9, 1945, and July 27, 1955. (Service between May 9, and November 8, 1945, will be counted only if the European-African-Middle Eastern Campaign Medal was awarded for service prior to May 9, 1945.)
(3) Army of Occupation of Berlin between May 9, 1945, and a terminal date to be announced later. (Service between May 9, and November 8, 1945, will be counted only if the European-African-Middle Eastern Campaign Medal was awarded for service prior to May 9, 1945.)
(4) Army of Occupation of Italy between May 9, 1945, and September 15, 1947, in the compartment of Venezia Giulia E Zara or Province of Udine, or with a unit in Italy as designated in DA General Orders 4, 1947. (Service between May 9, and November 8, 1945, will be counted only if the European-African-Middle Eastern Campaign Medal was awarded for service prior to May 9, 1945.)
(5) Army of Occupation of Japan between September 3, 1945, and April 27, 1952, in the four main islands of Hokkaido, Honshu, Shokoku, and Kyushu, the surrounding small islands of the Japanese homeland, the Ryukyu Islands, and the Bonin-Volcano Islands. (Service between September 3, 1945, and March 2, 1946, will be counted only if the Asiatic-Pacific Campaign Medal was awarded for service prior to September 3, 1945. In addition, service which meets the requirements for the Korean Service Medal as prescribed in § 578.48b will not be counted in determining eligibility for this medal.)
(6) Army Occupation of Korea between September 3, 1945, and June 29, 1949, inclusive. (Service between September 3, 1945, and March 2, 1946, will be counted only if the Asiatic-Pacific Campaign Medal was awarded for service prior to September 3, 1945.)
(b)
(c)
(2)
(d)
(2)
Established by the Act of July 20, 1949 (63 Stat. 447; 10 U.S.C. 1430d, Supp. III).
(a)
(b)
(i) Members of the Armed Forces of the United States.
(ii) Persons other than members of the Armed Forces of the United States when recommended for meritorious participation.
(2)
(c)
(2)
(3)
(4)
(d)
Established by Executive Order 10179, November 9, 1950 (3 CFR, 1950 Supp.).
(a)
(1) Within the territorial limits of Korea or in the waters immediately adjacent thereto; or
(2) With a unit under the operational control of CINCFE, other than one within the territorial limits of Korea, which has been designated by the Commander in Chief, Far East, as having directly supported the military effort in Korea; or
(3) Was furnished an individual certificate by the Commander in Chief, Far East, testifying to material contribution made in direct support of the military effort in Korea.
(4) The service prescribed must have been performed while:
(i) On permanent assignment; or
(ii) On temporary duty for 30 consecutive days or 60 days not consecutive; or
(iii) In active combat against the enemy under conditions other than those prescribed in paragraphs (a)(4)(i) and (ii) of this section, provided a combat decoration has been awarded or an individual certificate has been furnished by the commander of an independent force or of a division, ship, or air group, or comparable or higher unit, testifying to such combat credit.
(b)
(c)
(i) Assigned, or attached, to and present for duty with a unit during the period in which it participated in combat.
(ii) Under order in the combat zone and in addition meets any of the following requirements:
(iii) Was an evadee or escapee in the combat zone or recovered from a prisoner of war status in the combat zone during the time limitations of the campaign. Prisoners of war will not be accorded credit for the time spent in confinement or while otherwise in restraint under enemy control.
(2)
(d)
(2)
Executive Order 10179 was amended by Executive Order 10429, January 17, 1953, 18 FR 408 (3 CFR, 1953 Supp.).
Established by Executive Order 10163, as amended by Executive Order 10439. The reverse of this medal is struck in two designs for award to personnel whose Reserve component service has been primarily in the Organized Reserve or primarily in the National Guard. The first design portrays the Minute Man from the Organized Reserve Crest; the other design portrays the National Guard insignia.
(a)
(1) Such years of service must have been performed within a period of 12 consecutive years.
(2) Each year of active or inactive honorable service prior to July 1, 1949, in any Reserve component listed in part 563 of this chapter, will be credited toward award. For service performed on or after July 1, 1949, a member must accumulate during each anniversary year a minimum of 50 retirement points as prescribed in part 563 of this chapter.
(3) Service in a regular component of the Armed Forces, including the Coast Guard, is excluded except that service in a Reserve component which is concurrent in whole or in part with service in a regular component will be included.
(4) Any period during which Reserve service is interrupted by one or more of the following will be excluded in computing, but will not be considered as a break in the period of 12 years:
(i) Service in a regular component of the Armed Forces; or
(ii) During tenure of office by any State official chosen by the voters of the entire State, territory, or possession; or
(iii) During tenure of office of member of the legislative body of the United States or of any State, territory, or possession; and
(iv) While serving as judge of a court of record of the United States, or of any State, territory, possession, or the District of Columbia.
(b)
Established by United Nations General Assembly Resolution 483 (V), December 12, 1950. Presidential acceptance for the United States Armed
(a)
(i) Members of the Armed Forces of the United States dispatched to Korea or adjacent areas for service on behalf of the United Nations in the action in Korea; or
(ii) Other personnel dispatched to Korea or adjacent areas as members of paramilitary and quasimilitary units designated by the United States Government for service in support of United Nations action in Korea and certified by the United Nations Commander-in-Chief as having directly supported military operations there.
Personnel awarded the Korean Service Medal automatically establish eligibility for the United Nations Service Medal.
(2)
(ii) The service prescribed must have been performed while serving with any unit as provided in paragraph (a)(1) of this section as specified hereunder:
(b)
(c)
Established by Executive Order 10448 (3 CFR, 1953 Supp.).
(a)
(b)
(1) Reserve component personnel on short tours of active duty to fulfill training obligations under an inactive training program.
(2) Reserve component personnel on temporary active duty to serve on boards, courts, commissions, etc.
(3) Any person on active duty for the sole purpose of undergoing a physical examination.
(4) Any person on active duty for purposes other than for extended active duty.
(c)
(d)
Established by Public Law 86-600, as promulgated in DOD Instruction 1348.9, November 22, 1960.
(a)
(1) Any member of the Armed Forces of the United States or civilian citizen, or resident alien of the United States who, as a member of a U.S. expedition, participates in scientific, direct support, or exploratory operations on the Antarctic continent.
(2) Any member of the Armed Forces of the United States or civilian citizen, or resident alien of the United States who, under the sponsorship and approval of competent U.S. Government authority participates in a foreign Antarctic expedition on that continent in coordination with a U.S. Antarctic expedition.
(3) Any member of the U.S. Armed Forces who serves as a crew member of an aircraft flying to or from the Antarctic or within Antarctica in support of operations on that continent.
(4) Any member of the U.S. Armed Forces who serves on a United States ship operating south of latitude 60° south in support of U.S. operations in Antarctica.
(5) Any person, including citizens of foreign nations, not fulfilling any above qualification, who participates in a U.S. Antarctic expedition on that continent at the invitation of a participating U.S. agency. In such case, award will be made by the Secretary of the Department under whose cognizance the expedition falls, provided the commander of the military support force as senior U.S. representative in Antarctica considers that he has performed outstanding and exceptional service and shared the hardship and hazards of the expedition.
(b)
(1) A clasp bearing the words “Wintered over” for wear on the suspension ribbon of the medal; and
(2) A disc bearing an inscribed outline of the Antarctic continent for wear on the service ribbon.
(c)
(2) Not more than one clasp or disc will be worn on the ribbon.
(3) No minimum time limits for participation are prescribed.
(4) The Antarctic Service Medal takes precedence immediately after the Korean Service Medal.
Established by Executive Order 10977, dated 4 December 1961. This medal is authorized for:
U.S. Military Operations.
U.S. Operations in Direct Support of the United Nations.
U.S. Operations of Assistance for Friendly Foreign Nations.
(a)
(2)
(ii) Adjacent water areas in which ships are operating, patrolling, or providing direct support of operations.
(iii) The airspace above and adjacent to the area in which operations are being conducted.
(3)
(b)
(1)
(i) Shall serve not less than 30 consecutive days in the area of operations.
(ii) Be engaged in direct support of the operation for 30 consecutive days or 60 nonconsecutive days, provided this support involves entering the area of operations.
(iii) Serve for the full period where an operation is of less than 30 days’ duration.
(iv) Be engaged in actual combat, or duty which is equally as hazardous as combat duty, during the operation with armed opposition, regardless of time in the area.
(v) Participate as a regularly assigned crewmember of an aircraft flying into, out of, within, or over the area in support of the military operation.
(vi) Be recommended, or attached to a unit recommended, by the chief of a service or the commander of a unified or specified command for award of the medal, although the criteria above have not been fulfilled. Such recommendations may be made to the Joint Chiefs of Staff for duty of such value to the operation as to warrant particular recognition.
(c)
(ii) Lebanon—from 1 July 1958 to 1 November 1958.
(iii) Quemoy and Matsu Islands— from 23 August 1958 to 1 June 1963. Taiwan Straits—from 23 August 1958 to 1 January 1959.
(iv) Cuba—from 24 October 1962 to 1 June 1963.
(2)
(3)
(ii) Vietnam—From 1 July 1958 to a date to be announced.
A ribbon identical in color with the suspension ribbon of the service medal it represents, attached to a bar 1
(a)
(1)
(2)
(i) Participated in any engagement against the enemy in Philippine territory, in Philippine waters, or in the air over the Philippines or over Philippine waters. An individual will be considered as having participated in an engagement if he:
(ii) Assigned or stationed in Philippine territory or in Philippine waters for not less than 30 days during the period.
(3)
(ii)
(b)
(1)
(2)
(i) Participated in the initial landing operations on Leyte or adjoining islands from October 17, 1944, to October 20, 1944. An individual will be considered as having participated in such operations if he landed on Leyte or adjoining islands, was on a ship in Philippine waters, or was a crew member of an airplane which flew over Philippine territory during the period.
(ii) Participated in any engagement against the enemy during the campaign on Leyte and adjoining islands. An individual will be considered as having participated in combat if he meets any of the conditions set forth in paragraphs (a)(2)(i) (
(iii) Participated in any engagement against the enemy on islands other than those included in paragraphs (b)(2)(i) of this section. An individual will be considered as having participated in combat if he meets any of the conditions set forth in paragraphs (a)(2)(i) (
(iv) Served in the Philippine Islands or on ships in Philippine waters for not less than 30 days during the period.
(3)
(ii)
(c)
(1)
(2)
Established by the United Nations Secretary-General, July 30, 1959. Presidential acceptance for the United States Armed Forces announced by Department of Defense Instruction 1348.10, December 6, 1960.
(a)
(1) United Nations Observation Group in Lebanon (UNOGIL)
(2) United Nations Truce Supervision Organization in Palestine (UNTSOP),
(3) United Nations Military Observer Group in India and Pakistan (UNMOGIP).
(b)
(c)
(a)
(b)
(a)
(b)
(a) Enameled reproductions of the service ribbons of all service medals, except the World War I and World War II Victory Medal, are authorized.
(1)
(2)
(b) World War I Victory button (World War I Victory Medal lapel button).
(1)
(i) American Expeditionary Forces in European Russia between November 12, 1918, and August 5, 1919; or
(ii) American Expeditionary Forcesin Siberia between November 12, 1918, and April 1, 1920.
(2)
(c) Honorable service lapel button (World War II Victory Medal lapel button).
(1)
(2)
(d) Lapel button for service rendered prior to 8 September 1939 (World War II Victory Medal lapel button).
(1)
(ii) Except where other regulations govern, the length of service and training required for qualification for the lapel button for service rendered prior to September 8, 1939, will be as follows, such service and training to have been considered honorable and satisfactory by the commanding officer:
(iii) Next of kin are not authorized to wear the lapel button for service.
(2)
(e)
(2)
Sections 507.1 to 507.8 of this chapter prescribe:
(a) Restrictions on manufacture and sale of service medals and appurtenances by civilians.
(b) Penalties for illegal possession and wearing of service medals and appurtenances.
(a)
(b)
(c)
(2)
(3)
(d)
(e)
(f)
(i) Combat and Special Skill badges.
(ii) Qualification badges.
(iii) Qualification badge bars.
(iv) The Guard, Tomb of the Unknown Soldier identification badge (an item of organizational equipment).
(2)
(i) Lapel buttons for badges.
(ii) Certificates for badges.
(iii) Foreign badges.
(iv) Miniature combat infantryman and expert infantryman badges.
(3)
(g)
(a)
(b)
(2) The Medical Badge may be awarded only to members of the United States Army or Navy.
(3) All other combat and special skill badges may be earned by honorable active or inactive service, in or while formally assigned or attached to, the United States Army. Awards of United States Army combat and special skill badges to a foreigner will be made only with the prior consent of his parent government and upon completion of the full requirements established for each badge listed below.
(c)
(d)
(ii) Awards will not be made to general officers nor to members of headquarters companies of units larger in size than battle groups.
(iii) Any officer whose basic branch is other than infantry who, under appropriate orders, has commanded an infantry unit of regimental or smaller size for at least 30 consecutive days is deemed to have been detailed in infantry and is eligible for the award of the Combat Infantryman Badge notwithstanding absence of written orders detailing him in the infantry provided all other requirements for such award have been met. Orders directing the individual to assume command will be confirmed in writing at the earliest practicable date.
(iv) One award of the Combat Infantryman Badge is authorized to each individual for each separate war in which the requirements prescribed have been met. Second, third, and fourth awards are indicated by superposing 1, 2, and 3 stars respectively, centered at the top of the badge between the points of the oak wreath.
(2)
(e)
(ii) Awards of this badge will not be made to members of medical battalions, except when attached to an infantry unit as indicated above.
(iii) One award of the medical badge is authorized to each individual for each war in which the above requirements are met. Successive awards are indicated by superimposing stars on the badge as follows: Second award, one star at the top center above the cross; third award, two stars, one at the top center above the cross and one at the bottom center of the wreath; fourth award, three stars, one at the top center above the cross, and one at each side of the wreath at the ends of the stretcher.
(2)
(f)
(2)
(g)
(2) Eligibility for awards will be determined from the Individual Jump Record (DA Form 1307) contained in the field 201 file section of the personnel records jacket. Each entry on this form will include pay period covered and initials of the personnel officer; the entry will be made only from a Certificate of Jump and Loading Manifest (DA Form 1306) completed by an officer or jumpmaster.
(h)
(1) Participated in a minimum of 65 jumps to include:
(i) Twenty-five jumps with combat equipment to consist of normal TOE equipment, individual weapon carried by the individual in combat whether the jump was in actual or simulated combat. In cases of simulated combat the equipment will include water, rations (actual or dummy), ammunition (actual or dummy), and other essential items necessary to sustain an individual in combat;
(ii) Four night jumps made during the hours of darkness (regardless of the time of day with respect to sunset) one of which will be as jumpmaster of a stick;
(iii) Five mass tactical jumps which culminate in an airborne assault problem with a unit equivalent to a battalion or larger; a separate company/battery; or an organic staff of regimental size or larger. The individual must fill a position commensurate with his rank or grade during the problem.
(2) Either graduated from the Jumpmaster Course of the Airborne Department of the Infantry School or the jumpmaster school of a separate airborne battalion or larger airborne unit, or served as jumpmaster on one or more combat jumps or as jumpmaster on 33 noncombat jumps.
(3) Have served on jump status with an airborne unit or other organization authorized parachutists for a total of at least 36 months.
(i)
(1) Participated in a minimum of 30 jumps to include:
(i) Fifteen jumps with combat equipment to consist of normal TOE equipment including individual weapon carried in combat whether the jump was in actual or simulated combat. In cases of simulated combat the equipment will include water, rations (actual or dummy), ammunition (actual or dummy), and other essential items necessary to sustain an individual in combat; and
(ii) Two night jumps made during the hours of darkness (regardless of time of day with respect to sunset) one of which will be as jumpmaster of a stick;
(iii) Two mass tactical jumps which culminate in an airborne assault problem with either a unit equivalent to a battalion or larger; a separate company/battery; or an organic staff of regimental size or larger. The individual must fill a position commensurate with his rank or grade during the problem.
(2) Either graduated from the Jumpmaster Course of the Airborne Department of the Infantry School or the jumpmaster school of a separate airborne battalion or larger airborne unit, or served as jumpmaster on one or more combat jumps or as a jumpmaster on 15 noncombat jumps.
(3) Have served on jump status with an airborne unit or other organizations authorized parachutists for a total of at least 24 months.
(j)
(k)
(ii) Senior Army Aviator Badge.
(iii) Army Aviator Badge.
(2)
(3)
(ii) The Adjutant General may designate an individual as an Army Aviator, as a Senior Army Aviator, and as a Master Army Aviator.
(l)
(m)
(i) Master Diver Badge.
(ii) First-Class Diver Badge.
(iii) Salvage Diver Badge.
(iv) Second-Class Diver Badge.
(2)
(3)
(n)
(i) Successful completion of basic and special weapons disposal courses of instruction.
(ii) Eighteen months cumulative service in a supervisory position in a TOE or TD which the above explosive ordnance disposal courses are a prerequisite.
(iii) Noncommissioned officers must have been rated excellent in character and efficiency at the time of recommendation for the award.
(2)
(o)
(i) Successful completion of the prescribed basic EOD course of instruction.
(ii) Assigned in a TOE or TD position for which the basic EOD course is a prerequisite.
(2)
(p)
(q)
(2) The Adjutant General may award the Ranger Tab to any person who was awarded the Combat Infantryman Badge while serving as a member of a Ranger Battalion (1st-6th, inclusive) or in the 5307th Composite Unit, Provisional (Merrill's Marauders) or to any person who successfully completed a Ranger course conducted by the Ranger Training Command.
(a)
(i) Driver—W (for wheeled vehicles).
(ii) Driver—T (for tracked vehicles).
(iii) Driver—M (for motorcycles).
(iv) Driver—A (for amphibious vehicles).
(v) Mechanic (for automotive or allied trade vehicles).
(vi) Operator—S (for special mechanical equipment).
(2)
(i) Qualified for and possess a current U.S. Government Motor Vehicle Operator's Identification Card (SF 46), issued as prescribed by AR 600-55; and
(ii) Performed assigned duty as a driver or assistant driver of Army vehicles for a minimum of 12 consecutive months, or during at least 8,000 miles and has no Army motor vehicle accident or traffic violation recorded on his Driver Qualification Record (DA Form 348); or
(iii) Performed satisfactorily for a minimum period of 1 year as an active qualified driver instructor, or motor vehicle driver examiner.
(3)
(i) Passed aptitude tests and have completed the standard mechanics; course with a “skilled” rating or have demonstrated possession of sufficient previous experience as an automotive mechanic to justify such a rating; and
(ii) Been assigned to primary duty as an automotive mechanic, second echelon or higher, or as an active automotive mechanic instructor; and
(iii) If required to drive an Army motor vehicle in connection with automotive mechanic or automotive mechanic instructor duties, qualified for motor vehicle operators permit as prescribed above, and performed duty which included driving motor vehicles for a minimum of 6 consecutive months, and had no Army motor vehicle accident or traffic violation recorded on his Driver Qualification Record (DA Form 348).
(4)
(5)
(b)
(c)
(2)
(d)
(2)
(i)
(ii)
(3)
(e)
(2)
(3)
(ii) A civilian will be designated by the Army as a Distinguished Rifleman or Distinguished Pistol Shot when for the third time he has qualified for award of the Excellence in Competition Badge, provided that at least one of these awards was won in the National matches or for having placed among the upper 50 percent of individuals determined to be entitled to such awards in either a major command competition or National Rifle Association Regional Championship match. Badges awarded prior to 1948 will be considered toward achievement of the distinguished designation under the rules of the match in which won. A credit granted by the National Board for the Promotion of Rifle Practice under rules in effect for matches prior to 1948 will be considered toward the award of this badge the same as though an Excellence in Competition had been awarded.
(iii) The year in which a person first became eligible for designation by the Army as a Distinguished Rifleman or Distinguished Pistol Shot is the year in which he is regarded as having attained the distinguished designation and for which he will be so designated.
(iv) In computing credits toward distinguished designation only one credit per calendar year in any one individual or team match will be allowed.
(4)
(ii)
(5)
(f)
(2)
(3)
(4)
(ii) Individuals who have either qualified for or attained the distinguished designation are ineligible for further awards of this badge. Any such individual who fraudulently accepts an additional award of the Excellence in Competition Badge when he is aware of his eligibility for distinguished designation, or has been designated as a Distinguished Rifleman or Distinguished Pistol Shot will be subject to revocation of the award.
(5)
(ii)
(g)
10 U.S.C. 1552, 1553, 1554, 3013, 3014, 3016; 38 U.S.C. 3103(a).
(a)
(ii) The class of officers whose cases are reviewable shall include officers of the Army of the United States, other than officers of the Regular Army, who were discharged or released to inactive service under the conditions prescribed in paragraph (a)(1)(i) of this section; and former officers of the Regular Army who were wholly retired under section 1252, Revised Statutes.
(iii) The review board is authorized, upon timely application therefor, to review the proceedings and findings of boards referred to in paragraph (a)(1)(i) of this section; and to receive additional evidence bearing on the causes and service-connection of disabilities in the cases of officers referred to in paragraph (a)(1)(ii) of this section, whose cases were the subject of findings by a retiring or disposition board, and who were separated from the service or released to inactive service, without pay, by reason of physical disability, whether denial of retirement or retirement pay benefits, as the case may be, was pursuant to the adverse findings of a board, or was pursuant to administrative action in a case where there was favorable action by a board.
(iv) In carrying out its duties under this memorandum such review board shall have the same powers as exercised by, or vested in, the board whose findings and decisions are being reviewed.
(2)
(ii) No application for review will be granted unless received by the Department of the Army within 15 years after the date on which such officer was separated from the service or released to inactive service, without pay, for physical disability, or within 15 years after June 22, 1944, whichever date is the later.
(iii) The Adjutant General, upon receipt of an application for review, will note thereon the time of receipt thereof and will, in cases where the jurisdiction for review by the review board is established, assemble the originals or certified copies of all available Department of the Army and/or other rec-ord pertaining to the health and physical condition of the applicant, including the rec-ord of the proceedings and findings of all retiring and disposition boards in question and the rec-ords of all administration and/or executive action taken thereon. Such rec-ords, together with the application and any supporting documents submitted therewith, will be transmitted to the president of the review board.
(3)
(b)
(ii) Unless otherwise directed by its president, the review board will convene in Washington, DC, at the time and place indicated by him.
(iii) The review board will assemble in open session for the consideration and determination of cases presented to it. After the conclusion of such hearing, the review board will as soon as practicable thereafter convene in closed session for determination.
(2)
(ii) In every case in which a hearing is authorized, the secretary will transmit to the applicant and to designated counsel for the applicant, if any, a written notice by registered mail stating the time and place of hearing. Such notice shall be mailed at least 30 days in advance of the date on which the case is set for hearing except in cases in which the applicant waives the right of personal appearance and/or representation by counsel. Such notice shall constitute compliance with the requirement of notice to applicant and his counsel. The record shall contain the certificate of the secretary that written notice was given applicant and his counsel, if any, and the time and manner thereof.
(iii) An applicant who requests a hearing and who, after being duly notified of the time and place of hearing, fails to appear at the appointed time, either in person or by counsel, or, in writing, waives his right to appear, thereby waives such right.
(iv) In the conduct of its inquiries, the review board shall not be limited by the restrictions of common law rules of evidence.
(v) In the case wherein it is advisable and practicable, the review board may, at the request of the examiner, or upon its own motion, request The Surgeon General to detail one or more medical officers to make physical examination of the applicant, if available, and report their findings resulting from such examination with respect to the matters at issue, either in person or by affidavit. When testifying in person at a hearing, such medical witnesses will be subject to cross-examination. Similarly the medical members of the board may examine the applicant, if available, and testify as witnesses concerning the results of such examination.
(vi) Expenses incurred by the applicant, his witnesses, or in the procurement of their testimony, whether in person, by affidavit or by deposition will not be paid by the Government.
(3)
(c)
(ii) In the event the review board reverses any of such original findings or administrative actions, the review board will then make complete findings which shall include the affirmed
(iii) In the event the review board finds the officer permanently incapacitated for active service and that the incapacity was an incident of service, it will make an additional finding specifying the grade in which the officer is entitled to be retired or to be certified for retirement pay benefits.
(iv) The findings, conclusions, and directions of a majority of the review board shall constitute the findings, conclusions, and directions of the review board, and when made, will be signed by each member of the review board who concurs therein, filed, and authenticated by the secretary.
(d)
(ii) All records of proceedings of the review board shall be confidential, except that upon written request from the applicant, his guardian or legal representative, The Adjutant General will furnish a copy of the proceedings of the review board, less any exhibits which it may be found impracticable to reproduce out which will include:
(2)
(e)
(2)
(a)
(b)
(2)
(3)
(c)
(2)
(i) Is responsible for the operation of the ADRB.
(ii) Prescribes the operating procedures of the ADRB.
(iii) Designates officers to sit on panels.
(iv) Schedules panels to hear discharge review appeals.
(v) Monitors the DOD directed responsibilities of the SA on service discharge review matters for the DOD.
(3)
(4)
(i) Ensures the efficient overall operation and support of the ADRB panels.
(ii) Authenticates the case report and directives of cases heard.
(5)
(i) Schedule, coordinate, and arrange for panel hearings at a designated site.
(ii) Administer oaths to applicants and witnesses under Article 136 UCMJ.
(iii) Ensure that the proceedings of the cases heard and recorded into the case report and directive of cases.
(6)
(i) Assist the SR in arranging panel hearings.
(ii) Operate and maintain video and voice recording equipment.
(iii) Aid the SR in the administrative operations of the panels.
(7)
(d)
(2) Applicants who believe they fall within the scope of paragraph (d)(1) of this section should place the work CATEGORY “G” in block 7, DD Form 293, (Application for Review of Discharge or Dismissal from the Armed Forces of the United States). Such applications will be reviewed expeditiously by a designated official who will either send the individual an honorable discharge certificate if the individual falls within the scope of paragraph (d)(1) of this section or forward the application to the ADRB if the individual does not fall within the scope of paragraph (d)(1) of this section. The action of the designated official will not constitute an action or decision by the ADRB.
(a)
(2)
(b)
(2)
(3)
(4)
(i) Review all applications that are properly before them to determine the existence of error or injustice.
(ii) If persuaded that material error or injustice exists, and that sufficient evidence exists on the record, direct or recommend changes in military records to correct the error or injustice.
(iii) Recommend a hearing when appropriate in the interest of justice.
(iv) Deny applications when the alleged error or injustice is not adequately supported by the evidence, and when a hearing is not deemed proper.
(v) Deny applications when the application is not filed within prescribed time limits and when it is not in the interest of justice to excuse the failure to file in a timely manner.
(5)
(i) Take appropriate action on routine issues that may be administratively corrected under authority inherent in the custodian of the records and that do not require ABCMR action.
(ii) Furnish all requested Army military records to the ABCMR.
(iii) Request additional information from the applicant, if needed, to assist the ABCMR in conducting a full and fair review of the matter.
(iv) Take corrective action directed by the ABCMR or the Secretary of the Army.
(v) Inform the Defense Finance and Accounting Service (DFAS), when appropriate; the applicant; applicant's counsel, if any; and interested Members of Congress, if any, after a correction is complete.
(vi) Return original records of the soldier or former soldier obtained from the Department of Veterans Affairs (VA).
(6)
(i) Furnish advisory opinions on matters within their areas of expertise upon request of the ABCMR, in a timely manner.
(ii) Obtain additional information or documentation as needed before providing the opinions to the ABCMR.
(iii) Provide records, investigations, information, and documentation upon request of the ABCMR.
(iv) Provide additional assistance upon request of the ABCMR.
(v) Take corrective action directed by the ABCMR or the Secretary of the Army.
(7)
(i) Furnish advisory opinions on matters within the DFAS area of expertise upon request.
(ii) Obtain additional information or documentation as needed before providing the opinions.
(iii) Provide financial records upon request.
(iv) On behalf of the Army, settle claims that are based on ABCMR final actions.
(v) Report quarterly to the ABCMR Director on the monies expended as a result of ABCMR action and the names of the payees.
(c)
(2)
(ii) When an applicant has suffered reprisal under the Military Whistleblower Protection Act 10 U.S.C. 1034 and Department of Defense Directive (DODD) 7050.6, the ABCMR may recommend to the Secretary of the Army that disciplinary or administrative action be taken against any Army official who committed an act of reprisal against the applicant.
(iii) The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing in 10 U.S.C. 1034 and DODD 7050.6) or request additional evidence or opinions.
(d)
(ii) Usually applicants are soldiers or former soldiers of the Active Army, the U.S. Army Reserve (USAR), and in certain cases, the Army National Guard of the United States (ARNGUS) and other military and civilian individuals affected by an Army military record. Requests are personal to the applicant and relate to military records. Requests are submitted on DD Form 149 (Application for Correction of Military Record under the Provisions of 10 U.S.C. 1552). Soldiers need not submit applications through their chain of command.
(iii) An applicant with a proper interest may request correction of another person's military records when that
(2)
(3)
(4)
(5)
(ii) See DODD 7050.6 for provisions for counsel in cases processed under 10 U.S.C. 1034.
(e)
(i) The applicant fails to complete and sign the application.
(ii) The applicant has not exhausted all other administrative remedies.
(iii) The ABCMR does not have jurisdiction to grant the requested relief.
(iv) No new evidence was submitted with a request for reconsideration.
(2)
(3)
(ii) The panel members may consider a case on the merits in executive session or may authorize a hearing.
(iii) Each application will be reviewed to determine—
(A) Whether the preponderance of the evidence shows that an error or injustice exists and—
(
(
(B) Whether to authorize a hearing.
(C) If the application is filed outside the statute of limitations and whether to deny based on untimeliness or to waive the statute in the interest of justice.
(f)
(g)
(2)
(A) Denies any application (except for actions based on reprisals investigated under 10 U.S.C. 1034).
(B) Grants any application in whole or in part without a hearing when—
(
(
(
(ii) The ABCMR will forward the decisional document to the Secretary of the Army for final decision in any case in which—
(A) A hearing was held.
(B) The facts involve reprisals under the Military Whistleblower Protection Act, confirmed by the DOD Inspector General (DODIG) under 10 U.S.C. 1034 and DODD 7050.6.
(C) The ABCMR recommends relief but is not authorized to act for the Secretary of the Army on the application.
(3)
(ii) The Secretary of the Army will issue decisions on cases covered by the Military Whistleblower Protection Act (10 U.S.C. 1034 and DODD 7050.6). In cases where the DODIG concluded that there was reprisal, these decisions will be made within 180 days after receipt of the application and the investigative report by the DODIG, the Department of the Army Inspector General (DAIG), or other Inspector General offices. Unless the full relief requested is granted, these applicants will be informed of their right to request review of the decision by the Secretary of Defense.
(4)
(i) If the ABCMR receives the request within 1 year of the ABCMR's action and if the ABCMR has not previously reconsidered the matter, the ABCMR staff will review the request to determine if it contains evidence (including, but not limited to, any facts or arguments as to why relief should be granted) that was not in the record at the time of the ABCMR's prior consideration. If new evidence has been submitted, the request will be submitted to the ABCMR for its determination of whether the new evidence is sufficient to demonstrate material error or injustice. If no new evidence is found, the ABCMR staff will return the application to the applicant without action.
(ii) If the ABCMR receives the request more than 1 year after the ABCMR's action or after the ABCMR has already considered one request for reconsideration, the ABCMR staff will review the request to determine if substantial relevant evidence is submitted showing fraud, mistake of law, mathematical miscalculation, manifest error, or the existence of substantial relevant new evidence discovered contemporaneously or within a short time after the ABCMR's original consideration. If the ABCMR staff finds such evidence, it will be submitted to the ABCMR for its determination of whether a material error or injustice exists and the proper remedy. If the ABCMR staff does not find such evidence, the application will be returned to the applicant without action.
(h)
(ii) The Army may not pay any claim previously compensated by Congress through enactment of a private law.
(iii) The Army may not pay for any benefit to which the applicant might later become entitled under the laws and regulations managed by the VA.
(2)
(ii) The DFAS will settle claims on the basis of the corrected military record. The DFAS will compute the amount due, if any. The DFAS may require applicants to furnish additional information to establish their status as proper parties to the claim and to aid in deciding amounts due. Earnings received from civilian employment during any period for which active duty pay and allowances are payable will be deducted. The applicant's acceptance of a settlement fully satisfies the claim concerned.
(3)
(i)
(ii) Applicants who believe that they fall within the scope of paragraph (i)(1)(i) of this section should place the term “CATEGORY G” in block 11b of DD Form 149. Such applications should be expeditiously reviewed by a designated official, who will either send the individual an honorable discharge certificate if the individual falls within the scope of paragraph (i)(1)(i) of this section, or forward the application to the Discharge Review Board if the individual does not fall within the scope of paragraph (i)(1)(i) of this section. The action of the designated official will not constitute an action or decision by the ABCMR.
(2)
(ii) Under the Freedom of Information Act and the Privacy Act of 1974 (5 U.S.C. 552a), the ABCMR will not furnish to third parties information submitted with or about an application unless specific written authorization is received from the applicant or unless the Board is otherwise authorized by law.
10 U.S.C. 3012.
(a)
(1) Support and nonsupport of family members.
(2) Child custody.
(3) Paternity claims.
(4) Adoption proceedings involving the children of soldiers.
(b)
(c)
(d)
(i) Nonsupport complaints.
(ii) Child custody complaints.
(iii) Paternity claims.
(iv) Requests on adoption proceedings of children of soldiers.
(2) The Commanding General (CG), U.S. Army Community and Family Support Center (USACFSC) will—
(i) Set procedures for processing the following:
(A) Nonsupport complaints.
(B) Child custody complaints.
(C) Paternity claims.
(D) Requests regarding adoption proceedings of children of soldiers.
(ii) Process nonsupport complaints, child custody complaints, and paternity claims received at USACFSC regarding Army soldiers.
(iii) Carry out the objectives of this regulation to protect the rights of the soldier, the family, and the interests of the Army.
(iv) Advise and assist the heads of Headquarters, Department of the Army (HQDA) agencies, commanders of the major Army commands, and other commanders on matters pertaining to—
(A) Nonsupport.
(B) Child custody.
(C) Paternity.
(D) Adoption proceedings of children of soldiers.
(3) Officers having general court-martial jurisdiction will give special emphasis to the support of family members in command information programs. This includes informing soldiers of Army policy and of their responsibility to provide adequate support for all family members and to comply with all court orders.
(4) First level field grade commanders will monitor all instances of soldiers’ repeated failure to meet the requirements of this regulation that are brought to their attention. They will take action, when proper.
(5) Immediate commanders will—
(i) Ensure that soldiers are informed of the DA policy on support of family members and that they comply with court orders. They will also inform soldiers of the possible consequences of failing to fulfill financial obligations. This information will be included during inprocessing and outprocessing briefings, particularly during processing for mobilization and oversea movement.
(ii) Process nonsupport complaints, child custody complaints, and paternity claims per this regulation.
(iii) Counsel soldiers when complaints and claim are received. If the soldier is suspected of criminal conduct, self-incrimination protections (article 31, Uniform Code of Military Justice (UCMJ) and rights advisement) must be provided. (See § 584.2(g)(4).)
(iv) Answer all correspondence received from CG, USACFSC and other DA officials. In answering this correspondence, the commander will—
(A) Furnish complete details regarding nonsupport complaints, child custody complaints, and paternity claims.
(B) Reveal whether or not the soldier authorized the release outside the Department of Defense (DOD) of information obtained from a system of records. His or her decision should be recorded on DA Form 5459-R (Authorization to Release Information from Army Records on Nonsupport/Child Custody/Paternity Complaints).
(v) Answer all correspondence received directly from family members, legal assistance attorneys, and others. Normally, replies will not include information obtained from a system of records without the soldier's written consent. (See § 584.1(f).) Commanders may coordinate responses with the Staff Judge Advocate (SJA). Also, the commander will ask the SJA for guidance in unusual or difficult situations.
(vi) Inform the first level field grade commander of all instances of the soldier's repeated failure to meet the requirements of this regulation or to comply with court orders. Also, point out actions taken or contemplated to correct instances of nonsupport of family members or continuing violations of court orders.
(vii) Refer correspondence or queries received from news media organizations to the unit, installation, or command public affairs officer for response.
(viii) Take appropriate action against soldiers who fail to comply with this regulation. These actions include, but are not limited to, the actions in § 584.1(d)(5)(viii) (A) through (E). Failure to comply with the minimum support requirements (§ 584.2(d)) or the child custody provisions (§ 584.2(e)) of this regulation may be charged as violations of article 92, UCMJ. Article 132, UCMJ, prohibits the making of false claims. Article 133, UCMJ, covers conduct unbecoming an officer. Article 134, UCMJ, concerns dishonorable failure to pay debts and conduct of a nature to bring discredit
(A) Denial of reenlistment for enlisted members (AR 601-280).
(B) Letter of reprimand for filing in a soldier's Military Personnel Records Jacket or Official Military Personnel File (AR 600-37).
(C) Administrative separation from the service (AR 635-100 or AR 635-200).
(D) Nonjudicial punishment under article 15, UCMJ.
(E) Court-martial.
(ix) Urge soldiers to provide additional financial support beyond the required minimum whether the needs of the family so require.
(x) After coordination with the SJA and appropriate command representatives, and under applicable State, Federal, and host country laws, take remedial steps to assist in the following:
(A) Elimination of continuing violations of court orders and this regulation on child custody.
(B) Return of such children to the parent or guardian entitled to custody.
(6) The unit, installation, or command public affairs officer will—
(i) Answer correspondence and queries received from news media organizations.
(ii) Coordinate with the SJA before making any response.
(e)
(i) Providing adequate and continuous support to or for family members. (See § 584.2.)
(ii) Complying with all court orders.
(2) The Army has an interest in the welfare of both soldiers and their families. This is recognized by numerous laws and programs authorizing the following:
(i) Family housing.
(ii) Living and travel allowances.
(iii) Medical care.
(iv) Child care and development.
(v) Community support services.
(3) Because of military duty, soldiers and their families often live in States in which they have not established domicile. Frequently, they reside in foreign nations. This often places soldiers beyond the judicial process of State courts.
(4) The Army recognizes the transient nature of military duty. This regulation prohibits the use of a soldier's military status or assignment to deny financial support to family members or to evade court orders on child support or custody. Commanders have a responsibility to ensure that soldiers provide for the welfare of their families. Before recommending approval of requests for, or extensions of, oversea assignments, commanders should consider whether the soldier's oversea assignment will adversely affect the legal rights of family members in pending court actions against the soldier.
(5) The policy in this regulation regarding the financial support of family members is solely intended as an interim measure until the parties—
(i) Arrive at a mutually satisfactory agreement, or
(ii) Resolve their differences in court.
(6) Soldiers are entitled to the same legal rights and privileges in State courts as civilians. This includes determining the extent and amount of their support obligations to family members. This regulation is not intended to be used as a guide by courts in determining the following:
(i) The existence of support obligations.
(ii) The amount of past, present, or future support obligations.
(f)
(2) Some information may be released outside DOD from a system of records even without the soldier's written consent. Under the Privacy Act (5 U.S.C. 552a(b)(2) and AR 340-21, para 3-
(3) The type of information that may be released from a system of records without the soldier's consent will vary from case to case. In each case, the public interest of having soldiers support their families and obey court orders must be balanced against the sensitivity of the privacy interests involved. Army policy favors permanent resolution of support and custody matters in court. The denial of information that hinders such resolution is not in the public interest.
(4) Before releasing information from a system of records without the soldier's consent, commanders may consult the SJA. Generally, the types of information shown below may be released to the complaining family member entitled to support or those authorized by the family member to act in his or her behalf (for example, legal assistance attorneys, Member of Congress, courts, Government welfare agencies).
(i) Present unit of assignment, including port calls and future duty assignments, permanent or temporary, if known.
(ii) Scheduled separation and retirement dates from the Service.
(iii) Rank and authorized pay and allowances for that grade.
(iv) Allotments authorized or being authorized for or in behalf of the family member entitled to support.
(v) The soldier's stated intentions, if any, regarding resolution of the complaint.
(vi) The general whereabouts of the soldier's children, if known.
(5) The SJA should be consulted for legal advice before the residential address of a soldier or family member is released.
(6) Any information released should be pertinent to the inquiry. The soldier's relationship, if any, to the person making the inquiry, should be considered. Consistent with the purpose of this regulation, information that unduly invades the privacy of the soldier or his or her family should not be released.
(g)
(h)
(i)
(j)
(k)
(a)
(i) Furnish financial support to family members that meets at least the minimum support requirements of this regulation (§ 584.2(d)).
(ii) Provide such additional support within his or her financial ability to
(iii) Comply with all court-imposed obligations (§ 584.2(c)(3)).
(iv) Obey court orders and this regulation on child custody and visitation rights (§ 584.2(e)).
(2) It is the responsibility of soldiers to resolve nonsupport issues with family members by one of the methods shown in § 584.2(a)(2)(i) through (iii). In all cases, Army support policy for family members should be considered temporary until either an agreement has been reached between the parties (including those acting on behalf of minor children) or court action has been taken.
(i) Oral agreements.
(ii) Written support agreements.
(iii) Court orders.
(3) Each complaint of nonsupport will be considered individually by the soldier's immediate commander. Alleged desertion or other marital misconduct on the part of a spouse has no effect on a soldier's obligation to provide financial support as required by § 584.2(d).
(b)
(c)
(2)
(i) Another agreement reduced to writing and signed by both parties.
(ii) Court order.
(3)
(ii) Court orders under this regulation include those orders issued by the courts of the Federal Republic of Germany (FRG). The courts must have acquired valid jurisdiction consistent with the provisions of articles 32 through 37 of the Supplementary Agreement concerning foreign forces stationed in the FRG. This agreement supplements the North Atlantic Treaty Organization Status of Forces Agreement. A soldier will comply with all other foreign nation court and administrative orders that are recognized by treaty or international agreement.
(iii) Commanders should be aware that conditions may have changed greatly from when a court order was issued. For example, a soldier may have gained other family responsibilies. Many outstanding and uncontested support orders against soldiers cause severe hardship. Such orders can only be modified by a court. If a soldier's income appears inadequate to satisfy an outstanding order and still maintain the soldier, the commander should urge the individual to consult a legal assistance attorney. However, the soldier will comply with the terms of a court order until relieved of this obligation by modification of the order by a court.
(d)
(i) Financial support provisions of a court order.
(ii) Financial support provisions of a written support agreement in the absence of a court order.
(iii) Interim minimum financial support requirements of § 584.2(d)(2) in the absence of a court order or written support agreement.
(2) In the absence of a court order or written support agreement, and until such an order or agreement is obtained, the following interim
(i)
(
(
(B) Family living in Government family quarters. While the supported family is occupying Government family quarters, the soldier will provide an amount equal to the difference between BAQ at the with- and without-dependents rate. When the supported family members move out of Government family quarters, support will be provided in an amount equal to BAQ at the with-dependents rate for the soldier's rank.
(ii)
(iii) Military members married to one another. In the absence of a court order or written support agreement, an Army soldier is not required to provide support to a spouse on active duty in the Armed Forces.
(iv) Children of military member parents.
(A)
(
(
(B)
(3) A commander has no authority to excuse a soldier from complying with the interim
(4) In the absence of a contrary provision in a written support agreement or court order, monthly financial support to family members will be sent before the last calendar day of the month for which the support is due. If the family members are not residing together, the soldier will ensure each family member receives his or her pro-rata share. (For example, spouse lives along and the children live with their grandparents.)
(e)
(i) Abduct, taken, entice, or carry away the child from the lawful custodian.
(ii) Withhold, detain, or conceal the child away from the lawful custodian.
(2) A “lawful custodian” is a person authorized, either along or together with another person or persons, to have custody and exercise control over a child less than 14 years of age by order of a court. The fact that joint custody
(3) A soldier relative is a soldier who is the parent, grandparent, brother, sister, uncle, aunt, or one who has at some time been the lawful custodian of the child.
(4) It is a defense to a violation of this paragraph that the soldier—
(i) At the time of the offense had custody of the child to the exclusion of others pursuant to a valid order of a court having jurisdiction over the child; or
(ii) Voluntarily returned the child to the lawful custodian within 96 hours after return was demanded by the lawful custodian.
(f)
(i) Court ordered financial support will be by the terms of the court order. Relief from a court order can only be obtained under the law. Nothing in this regulation affects or lessens a soldier's legal obligation to comply strictly with the terms of a court order.
(ii) A soldier who disobeys a court order may be held in contempt of the court that issued the order. Also, a soldier may be punished for violating this regulation. It is, however, a defense to any violation of § 584.2(d)(1)(i) that—
(A) The court issuing the order was without jurisdiction to do so, and
(B) The soldier at all times has been complying with any of the following:
(
(
(
(
(iii) A soldier will provide financial support to family members unless expressly relieved of this obligation by—
(A) Court order.
(B) Written support agreement.
(iv) A soldier will provide financial support under § 584.2(f)(2) to family members, which meets at least the minimum support requirements of this regulation. The financial support will be provided even when a court order contains no provision as to support except as follows:
(A) A soldier has no obligation to provide financial support to a former spouse except by order of court.
(B) A soldier has no obligation to provide financial support to minor children of the marriage if he or she can show the following:
(
(
(
(
(2) [Reserved]
(g)
(i) Inquire into the matter.
(ii) Consult with the SJA prior to determining whether or not there is a support obligation. If there is no support obligation, BAQ at the “with dependents” rate should be stopped.
(2) If a soldier claims he or she has made support payments as required by this regulation, the soldier's commander will—
(i) Request the soldier to provide proof of payment in one of the following forms:
(A) Canceled personal checks.
(B) Leave and earnings statements showing allotments.
(C) Postal or money order receipts accompanied by a sworn statement from the soldier that the order was sent to the family member. If possible, evidence that the postal or money order was cashed by the complaining party should be provided.
(D) Other acceptable evidence of payment.
(ii) Consult with the SJA, if necessary, to determine whether the soldier has provided enough proof of payment.
(3) If a soldier is suspected of violating a child custody or visitation rights in a court order, the soldier's commander will—
(i) Inquire into the matter.
(ii) Consult with the SJA prior to taking action.
(4) In any case in which the soldier is suspected of violating this regulation (§ 584.2(d) or (e)), or of having committed other offenses, the commander, prior to questioning the soldier, will advise him or her of—
(i) The suspected offense.
(ii) The right to remain silent under article 31, UCMJ.
(iii) The right to counsel under the Fifth Amendment.
(h)
(i) In cash.
(ii) By check or money order.
(iii) By allotment.
(2) A soldier will receive credit for payments made to others on behalf of, and with the agreement of, the supported family members. Examples of support provided in kind include—
(i) Rent.
(ii) Utility services.
(iii) Interest and principal due on loans, mortgages, or charge accounts.
(iv) Insurance payments.
(i)
(1)
(2) Court orders and written support agreements.
(i) Amounts in arrears based on a past failure to comply with a court order or written support agreement will be paid at once in a lump sum amount. If an immediate lump sum payment is impractical, soldiers are expected to work out arrangements with the court or the affected family members to pay arrearages on a scheduled basis. If arrangements can not be worked out, commanders will intervene and order payment of arrearages on a scheduled basis based on the soldier's ability to pay.
(ii) When arrearages arise from noncompliance with court orders and written support agreements, this may result in—
(A) Garnishment of the soldier's pay account (§ 584.8).
(B) Initiation of an involuntary allotment against the soldier's pay account (§ 584.9).
(C) Contempt of court proceedings.
(D) Recoupment of BAQ received by the soldier.
(iii) Administrative or punitive action may be taken on a violation of this regulation for any month in which the soldier failed to provide the required financial support even if the amount in arrears eventually is paid.
(3) Interim minimum financial support requirements. A soldier should be
(j) Additional support where there is no support agreement or court order.
(1) Ordinarily, a soldier should not be required to provide financial support beyond that required by § 584.2(d)(1)(iii). However, a soldier should provide additional support within his or her ability to meet the basic financial needs of family members when the interim support requirements of this regulation are shown to be inadequate.
(2) If there is a demonstrated need for immediate and temporary additional support because of unexpected and unforeseen circumstances and the parties are unable to agree on such additional support, a commander may order temporary additional support.
(3) Commanders will consider the following factors in determining the amount of additional support, if any, that a soldier should provide when a request for additional support is received:
(i) The pay, allowances, separate income, and other financial resources of both the soldier and the family member for whom additional support is requested.
(ii) The earning capacity of the family member on whose behalf support is requested.
(iii) The financial savings of the soldier and family member.
(iv) The separate and joint debts of the soldier and family member, by whom those debts were incurred, and the reasons behind them.
(v) The soldier's duty to provide financial support to other family members, including former spouses.
(vi) The financial needs of the soldier and the family member and whether these needs are temporary or permanent in nature.
(vii) The standard of living of the soldier and family member and whether such standard of living is reasonable under the circumstances.
(viii) With regard to spousal support, the duration of the marriage and the circumstances under which the parties separated.
(ix) The extent of the soldier's or family member's compliance with existing court orders and written support agreements. This includes those provisions dealing with child custody, visitation rights, property division, and marital property awards.
(x) The amount in arrears owed by the soldier based on past noncompliance with the minimum support requirements. (See § 584.2 (d) and (i).)
(xi) Any other fact which, in the judgment of the commander, has a logical bearing upon the amount of additional support the soldier reasonably should be expected to provide.
(k)
(2) The Inspector General (IG) may assist in properly routing the complaint. The IG also may assist if the responsible commander has failed to respond in a satisfactory manner or as required by this regulation. (See AR 20-1, para 4-9.)
(3) The USACFSC (DACF-IS-PA) has set up an office to assist in these cases. USACFSC will provide policy interpretations and guidance on unresolved or complex cases, as needed. USACFSC normally will go through command channels to the immediate commander of the soldier concerned requesting that action be taken under this regulation.
(4) Family members who present complaints against a military member of another Service (Air Force, Marine Corps, Navy, or Coast Guard) should be referred to the appropriate Service.
(l)
(i) Acknowledge receipt of the complaint.
(ii) Explain that the information or documentation sent is not enough to give proper help.
(iii) If appropriate, send the complainant DA Form 5460-R (Request for Help in Receiving Support and/or Identification Cards for Family Members).
(iv) Advise that help will be given with the complaint upon return of the completed form and other requested information and documents.
(v) If appropriate, advise that DA Form 5460-R alone is not enough documentation for issuance of a dependent identification card (ID card) (AR 640-3). Documentation (that is, court orders, birth certificates, marriage certificates, etc.) must be provided to support eligibility for benefits.
(vi) Answer any policy or procedural questions that have been asked.
(2) Upon receipt of DA Form 5460-R or a complaint that has enough information to properly respond, the commander will—
(i) Review soldier's legal financial obligations in light of the complaint and the facts presented by all parties concerned.
(ii) If necessary, ask the SJA if the complaint is valid, if the soldier must provide financial support or give up custody of children, and any other related questions.
(iii) Notify the soldier of the complaint of nonsupport or of a violation of a child custody court order.
(iv) Require the soldier to complete and sign DA Form 5459-R. Information obtained from a system of records ordinarily will not be released outside DOD without the soldier's consent. (See § 584.1(f).)
(v) If the soldier is suspected of violating this regulation or of having committed other offenses, the commander, prior to questioning the soldier, will also advise him or her of—
(A) The suspected offense.
(B) The right to remain silent under article 31, UCMJ.
(C) The right to counsel under the Fifth Amendment.
(vi) Explain the following to the soldier:
(A) The Army's policies regarding support of family members and compliance with court orders.
(B) That refusal to give required support per this regulation may result in administrative or punitive action.
(C) That a soldier is not entitled to BAQ at the “with dependents” rate when no part of the allowance is given to family members. Therefore, collection action may be initiated by the Army.
(vii) Explain what garnishment is (§ 584.8) and how it might affect the soldier's pay, allowances, and allotments. For example, explain that the amount garnisheed monthly might significantly exceed monthly support obligations previously agreed upon.
(viii) Tell the soldier of any court order for attachment or garnishment that has been received. Immediately send the court documents to the Commander, U.S. Army Finance and Accounting Center (USAFAC), ATTN: FINCL-G, Indianapolis, IN 46249-0260 for action. (See § 584.8(b).) Also, inform the soldier that if the document is in proper legal form, a portion of the soldier's pay and allowances will be garnisheed.
(ix) Explain involuntary allotments (§ 584.9) if appropriate.
(x) Coordinate with the soldier's servicing finance and accounting office (FAO) for problems of pay, allowances, and allotments.
(xi) Urge soldiers to provide continuous support to family members by allotment. The allotment should be for the mutually agreed amount, court order, or as computed under this regulation. An account may be set up in a financial institution by the recipient to receive the allotment. This action may preclude delays in receipt and other related problems in the future.
(xii) Help the soldier start an allotment to make the required support payments. Also, advise the soldier to let the commander know if there is a change or stoppage to the support allotment.
(xiii) Give the soldier a chance to consult with a legal assistance attorney if he or she desires. However, the commander should ensure that this is not used as a delaying tactic. Where appropriate, a support payment plan should be initiated without delay.
(xiv) Urge soldiers thinking about divorce to seek legal advice from a legal assistance attorney. Also, advise the soldier to ensure an amount of support is included in the court order for their children. This action may help to prevent future disputes.
(xv) Ensure that the soldier is not receiving BAQ at the “with dependents” rate when not entitled to it. (See § 584.7.)
(xvi) Ask the soldier about his or her intentions. Give the soldier the chance to furnish a voluntarily signed statement admitting or denying the complaint and stating his or her intentions.
(xvii) Send complaints received to the soldier's new duty station if he or she has been reassigned. Advise the complainant of the soldier's reporting date and the unit address to which correspondence should be sent. If proper, give the complainant a copy of DA Form 5460-R.
(3) Advise the complainant courteously and promptly—
(i) Of the Army policy in suitable areas of concern.
(ii) Of the soldier's intentions, if the soldier allows release of the information.
(iii) That personal problems outside the requirements of this regulation must be resolved in court if the parties cannot agree.
(4) If proper to the situation, remind complainant of other helping agencies on post, such as the chaplain and Army Community Service. These agencies can give timely, interim help to meet immediate needs pending a more permanent resolution of the problem.
(5) Retain the statements allowing or forbidding release of information to the complainant and the soldier's intentions with the case file for future reference. Documents/records will be filed per AR 600-37 and the Army Functional Files System (AR 340-2 and AR 340-18).
(6) Monitor actions closely to ensure promises of support or other actions by soldiers to complainants are being met.
(7) Consider administrative or punitive action if proper.
(8) Inform the first level field grade commander of the soldier's repeated failure to meet the requirements of this regulation. Also, point out actions taken or contemplated to correct instances of nonsupport of family members or violations of child custody court orders.
(a)
(2) Soldiers will be informed of paternity claims against them. Commanders will ensure that soldiers are advised of their legal rights and will advise soldiers of their moral and legal obligations in the matter. Soldiers admitting paternity will be urged to provide the necessary financial support to the child. Also, they will take any other action proper under the circumstances.
(b) Procedures for questioning soldiers about paternity claims upon receipt of a claim of paternity against a soldier, the commander will take the following actions:
(1) If there is evidence that an offense (for example, rape, indecent acts with a minor) may have been committed—
(i) Inform law enforcement officials.
(ii) Inform the soldier of the suspected offense. Before questioning, advise the soldier of his right to remain silent under article, 31, UCMJ, and his right to counsel under the Fifth Amendment.
(iii) Coordinate further action under this regulation with the SJA and law enforcement officials if appropriate.
(2) If there is no evidence that an offense was committed—
(i) Allow the soldier a chance to talk with a legal assistance attorney about his legal rights and obligations.
(ii) Require the soldier to complete and sign DA Form 5459-R. Information
(iii) Inform the soldier of Army policy on the support of family members contained in this regulation.
(iv) Advise the soldier that a court order against him on the paternity claim, followed by a refusal to support a child born out of wedlock, could result in—
(A) Administrative or punitive action for violating this regulation.
(B) Garnishment of the soldier's pay account (§ 584.8).
(C) Initiation of an involuntary allotment against the soldier's pay account (§ 584.9).
(D) Contempt of court proceedings.
(v) Ask the soldier about his intentions. Give the soldier the chance to furnish a voluntarily signed statement admitting or denying the claim and stating his intentions.
(c)
(i) A soldier—
(A) Refuses to answer questions about the paternity claim.
(B) Denies paternity.
(C) Admits paternity, but refuses to provide financial support.
(ii) No action can be taken on the claim of paternity in the absence of a court order. The court order must identify the soldier in question as the father of the child. Also, the court order must direct that the soldier provide financial support to the child.
(2) The commander will reply directly to the claimant or the attorney or court official she has authorized to act in her behalf. Information obtained from a system of records ordinarily will not be released outside DOD without the soldier's consent. (See § 584.1(f).)
(3) If the soldier admits paternity and agrees to provide financial support, then the commander will—
(i) Ask the claimant to provide a copy of the birth certificate.
(ii) Help the soldier in filing for an allotment or providing other financial aid.
(iii) Advise the claimant of the amount, effective date, and means of payment.
(iv) Help the soldier apply for BAQ at the “with dependents” rate, if applicable. (A birth certificate may be required.)
(v) Ensure an ID card is issued for the child after the relationship is documented, if proper. (A birth certificate may be required.) (See AR 640-3, para 3-3, for dependency criteria for ID cards.)
(vi) Allow the soldier to take ordinary leave in order to marry the claimant, if leave is requested for this purpose. However, the leave may be delayed if it will interfere with military requirements. Travel in connection with leave (including travel to and from overseas commands) is the responsibility of the soldier. Travel will be at no expense to the Government. If the marriage is to take place overseas, the soldier must comply with AR 600-240 and AR 608-61 in applying for authorization to marry (DA Form 2029-R) (Application for Authorization to Marry Outside of the United States).
(d)
(1) Advise the soldier of the policy regarding support of family members.
(2) Advise the soldier that refusal to support his child born out of wedlock could result in—
(i) Garnishment of the soldier's pay account (§ 584.8).
(ii) Initiation of an involuntary allotment against the soldier's pay account (§ 584.9).
(iii) Contempt of court proceedings.
(iv) Administrative or punitive action for violating this regulation.
(3) Refer the soldier to a legal assistance attorney for advice on his legal rights and obligations.
(4) Help the soldier file an attotment or give other financial aid.
(5) Advise the claimant of the amount, effective date, and means of payment.
(6) Help the soldier apply for BAQ at the “with dependents” rate, if applicable.
(7) Ensure an ID card is issued for the child.
(8) Consider administrative or punitive action if the soldier fails to obey the court order. (See § 584.1(d)(5)(viii.)
(9) Inform the first level field grade commander of the soldier's repeated failure to meet the requirements of this regulation. Also, point out actions taken or contemplated to correct instances of nonsupport of family members.
(a)
(b)
(1) Inform the soldier or the inquiry.
(2) Urge the soldier to see a legal assistance attorney.
(3) Advise the court or judge, as appropriate, that—
(i) A request by the soldier for leave to attend an adoption hearing on (date) has been granted.
(ii) A request by the soldier for leave to attend an adoption hearing on (date), if made, would be approved..
(iii) Due to military requirements, the soldier cannot be granted leave to attend any court hearing until (date).
(iv) The soldier has stated that he or she is not the natural parent of the child.
(v) Since the soldier is not present because (give specific reasons), (for example, temporary duty or leave), a complete response cannot be made until (date).
(vi) The soldier is no longer in this command. The commander will provide the soldier's new military address to the court or judge. The commander then will send a copy of the inquiry to the soldier's new commander and advise the court or judge of this action.
(4) Furnish the soldier with a copy of the communication and the reply.
(a)
(2) A child born out of wedlock in a foreign country to an American citizen mother and an alien father or U.S. Citizen father gains U.S. citizenship at birth if the mother had been physically present in the United States for a continous period of 1 year prior to the child's birth. (See 8 U.S.C. 1409(c).) The child will gain the citizenship of the father only if the laws of the nation of which the father is a citizen so provide.
(b)
(i) Proof of father's citizenship. This may consist of any of the following:
(A) A certified copy of his birth certificate (with a raised seal of the registrar of births).
(B) A report of birth abroad (FS Form 240 (Report of Birth Abroad of a Citizen of the United States)).
(C) A certificate of citizenship.
(D) A certificate of naturalization.
(E) A valid U.S. Passport.
(F) A certified copy of an approved U.S. passport application.
(G) Any secondary evidence acceptable by the State Department or INS.
(ii) Affidavit of paternity.
(iii) Proof of presence in the foreign country at time of conception. (This information can be extracted from the passport, DA Form 2-1 (Personnel Qualification Record—Part II), etc.).
(iv) Child's birth certificate.
(v) Proof of the father's physical presence in the United States for 10 years (5 after age 14).
(vi) Blood type tests of the mother, the father, and the child. (At the request of the examining officer.)
(vii) Two sworn affidavits (at the request of the examining officer) from individuals who personally knew the mother, father, and child at the time of birth and can identify the child.
(viii) A copy of a certified English translation of all needed legal documents that are in a foreign language.
(ix) An executed passport application with three signed pictures of the child.
(2) The soldier may consult a legal assistance attorney for help in preparing the case file. The case file should be taken to the nearest American Embassy, Consulate General, or Consulate in the country where he and his child live. If the father is not present in the country where the child lives, he will do one of the following—
(i) Take the necessary documents to the nearest American Embassy, Consulate General, or Consulate.
(ii) Mail the documents to the Department of State, ATTN: Office of Citizens Consular Service, WASH DC 20520. That office, in conjunction with the American Consul abroad, will decide if the child is a U.S. citizen.
(3) If both father and child are within the United States, a decision of citizenship status can be obtained from the INS. The soldier should file Form N-600 (Application for Certificate of Citizenship) at the nearest INS office. This form can be obtained from the INS. The appendix of AR 608-3 lists the location of INS offices.
(4) Any soldier who claims to be a U.S. citizen has the burden of proving that claim to the Department of State or INS, as applicable.
(a)
(2) After RCPAC verifies the status, the following officials will act as prescribed below:
(i) Chief, National Guard Bureau, WASH DC 20310-2500, for members of the Army National Guard.
(ii) The area commander concerned for Ready Reservists assigned to troop program units under his or her control. (See AR 140-1, para 1-6.)
(iii) Commander, RCPAC for nonunit members assigned to Control Groups of the Ready Reserve, Standby Reserve, and Retired Reserve.
(3) The officials cited above will ensure that correspondence claiming nonsupport or paternity is delvered to the person concerned, using military channels. When the correspondence cannot be delviered through military channels, it will be sent to the last known mailing address of the person by certified mail (PS Form 3811 (Return Receipt, Registered, Insured and Certified Mail)). It should be marked “Return Receipt Requested—Deliver to Addressee Only.” This form is available at U.S. post offices.
(4) After delivery of correspondence, the responsible official will advise the complainant or claimant—
(i) Of the date and method of delivery.
(ii) That the military department does not control the personal affairs of nonactive duty personnel. These personnel usually are in a civilian status and are not subject to military discipline. Therefore, the matter has been left to the person's discretion.
(iii) Of the person's mailing address only if the conditions in § 584.6(c) are met.
(b)
(1) That the person is no longer a member of the Army or the Reserve Components.
(2) Of the date of discharge.
(3) That the Army no longer has control or authorty over the discharged member. Therefore, the Army can take no further action in the matter.
(4) Of the person's mailing address only if the conditions in § 584.6(c) are met.
(c)
(1) The person consents in writing to the release of his or her address.
(2) The complainant or claimant sends a court order directing the release of the address.
(3) Any other reason that does not constitute a violation of the Privacy Act of 1974.
(d)
(2) The complainant or claimant will be advised that correspondence may be sent to the retired member as follows:
(i) Place correspondence in a stamped envelope with retired member's name typed or printed on the envelope.
(ii) Place stamped envelope in a second envelope and send to the Commander, RCPAC, ATTN: DARC-PSE-VS, 9700 Page Boulevard, St. Louis, MO 63132-5200.
(3) Commander, RCPAC will send the correspondence to the retired member but cannot release the address under the provisions of the Privacy Act of 1974.
(a)
(2) Soldiers may receive BAQ at the “with dependents” rate as long as they pay at least the difference between BAQ at the with- and without-dependents rate each month in support of their families. (See DODPM, part 3.) This is so even if a divorce decree or court order is silent on support or releases the soldier from the responsibility of supporting the family. (See § 584.2(f)(2).) Normally, a soldier is not entitled to BAQ on behalf of a former spouse or stepchildren after the divorce. BAQ at the “with dependents” rate is not authorized when the soldier or the supported family is residing in Government family quarters. Also, if two soldier member-parents are supporting the same child, only one soldier member is entitled to BAQ at the “with dependents” rate.
(b)
(1) Collection of BAQ received but not given to the family members.
(2) Stoppage of BAQ at the “with dependents” rate.
(3) Punitive or administrative action against a soldier for—
(i) Violating the minimum support requirements of this regulation.
(ii) Submitting a fraudulent claim for BAQ based on false information.
(c)
(d) BAQ entitlements versus Army minimum support requirements Terms for entitlements to BAQ are set forth in DODPM, part 3, chapter 2. Except as provided in this regulation, BAQ entitlements have no relationship to Army minimum support requirements.
(a)
(i) Required by treaty or international agreement. (A soldier is subject to garnishment for child support issued by the FRG only while physically stationed in Germany.)
(ii) Recognized by a court of competent jurisdiction. Applicable State laws govern legal procedures to be used by complainants. Jurisdictional or procedural challenges to garnishment actions remain the responsibility of individual members.
(2) In the absence of State law more favorable to the soldier, 15 U.S.C. 1673 limits the amount of pay that can be garnisheed as follows:
(i) Fifty percent of disposable pay when a soldier is supporting a spouse or dependent child who is not the subject of the support order. (See § 584.8(a)(3) for an explanation of disposable pay.)
(ii) Sixty percent of disposable pay when a soldier is not supporting such spouse or dependent child.
(iii) An additional 5 percent in each of the above cases if payments are more than 12 weeks overdue.
(3) The items of pay listed in § 584.8(a)(3)(i) are subject to garnishment except for amounts deducted for the items listed in § 584.8(a)(3)(ii).
(i) Items of pay and bonus subject to garnishment.
(A) Basic pay.
(B) Special pay (including enlistment and reenlistment bonuses).
(C) Incentive pay.
(D) Inactive duty training pay.
(E) Academy officials pay (except personal money allowances).
(F) Accrued leave payments (basic pay portion only).
(G) Retired and retainer pay.
(H) Lump-sum Reserve bonus.
(I) Separation payments (readjustment pay and severance pay).
(ii) Deductions not subject to garnishment.
(A) Federal income tax withholding.
(B) State income tax withholding.
(C) Servicemen's Group Life Insurance.
(D) Social Security taxes (Federal Insurance Contributions Act).
(E) United States Soldier's and Airmen's Home.
(F) Survivor Benefit Plan.
(G) Retired Servicemen's Family Protection Plan.
(H) Indebtedness to the United States and delinquent Federal taxes.
(I) Fines and forfeitures ordered by a court-martial or commander.
(b)
(a)
(1) The soldier has failed to make payments under a court order for 2 months or in a total amount equal to or in excess of the support obligations for 2 months.
(2) Failure to make such payments is established by notice from an authorized person to the Commander, USAFAC, ATTN: FINCL-G, Indianapolis, IN 46249-0160. An authorized person is—
(i) Any agent or attorney of any State having in effect a plan approved under part D of title IV of the Social Security Act (42 U.S.C. 651-664), who has the duty or authority under the plan to seek recovery of any amounts
(ii) A court or agent of the court that has authority to issue an order against the soldier for the support and maintenance of a child.
(3) Such notice must give the soldier's full name and SSN. Also, it must list the name and address of the person to whom the allotment is payable. The amount of the allotment will be the amount needed to comply with the support order. The allotment may include arrearages as well as amounts for current support if provided for in the support order. A copy of this must be included with the notice. If proper, a statement must be included that the support allotment qualifies for the additional 5 percent in excess of the maximum percentage limitations. These limitations are prescribed in 15 U.S.C. 1673. Also, a copy of the underlying support order must be included with the notice. An allotment under this provision will be adjusted or discontinued only upon notice from an authorized person.
(b)
A related publication is merely a source of additional information. The user does not have to read it to understand this regulation.
The total amount of money a soldier owes a family member for prior months in which the soldier failed to comply with the minimum support requirements of this regulation.
An amount of money prescribed and limited by law that a soldier receives to pay for quarters not provided by the Government.
A written or oral complaint by a family member, or a third party acting on behalf of a family member, that alleges that the soldier is violating a court order granting custody of minor children to someone other than the soldier. It also includes a complaint by a mother of a child born out of wedlock against a soldier father who has abducted or detained the child.
As used in this regulation, court order includes all judicial and administrative orders and decrees, permanent and temporary, granting child custody, directing financial support, and executing paternity findings. It also includes any foreign nation court or administrative order recognized by treaty or international agreement. Court orders are presumed valid in the absence of evidence to the contrary.
For the purpose of this regulation only, a family member includes—
a. A soldier's present spouse. (A former spouse is not a family member. However, except as otherwise indicated, the term “family member” includes any former spouse for whom the soldier is required by any court order to provide financial support.)
b. A soldier's minor children from present and former marriages, including children legally adopted by the soldier. (A family member does not include the child of a soldier who has been legally adopted by another person.)
c. Minor children born out of wedlock to—
(1) A woman soldier.
(2) A male soldier if evidenced by a decree of paternity identifying the soldier as the father and ordering the soldier to provide support.
d. Any other person (for example, parent, stepchild, etc.) for whom the soldier has an obligation to provide financial support under the law of the domicile of either the soldier or the supported person.
The provision in a court order or separation agreement directing the soldier to provide financial support to a family member on a periodic basis.
Any sleeping accommodations or family-type housing owned or leased by the U.S. Government.
For support purposes, gross pay includes basic pay and allowances to include special, incentive, and other pay when received on a monthly basis. Gross pay does not include funds not received on a monthly basis (that is, enlistment and reenlistment bonuses and
Army lawyers designated to advise and assist soldiers and their families on family law matters. Such matters include marriage, divorce, adoption, paternity, child custody problems, and support obligations. In the context of this regulation, a legal assistance attorney also includes a lawyer retained by a soldier at his or her own expense.
Unmarried children under 18 years of age who are not on active duty with the Armed Forces.
A written or oral complaint by a family member, or a third party acting on behalf of a family member, that alleges one of the following:
a. Soldier is providing no financial support.
b. Soldier is providing insufficient financial support.
c. Soldier is failing to comply with—
(1) An oral agreement,
(2) A written support agreement, or
(3) A court order that sets up a financial support requirement.
As used in this regulation, the term soldier includes commissioned officers, warrant officers, and enlisted personnel.
The chief legal officer and his or her staff who advise commanders on laws and regulations affecting the command. Includes command judge advocates and post judge advocates, but not legal assistance attorneys or attorneys assigned to the Trial Defense Service.
Any record under DA control from which information is retrieved by the name of the individual or by his or her SSN.
An amount of money prescribed by law that a soldier receives to defray high housing costs in the continental United States.
Any written agreement between husband and wife in which the amount of periodic financial support to be provided by the soldier spouse has been agreed to by the parties. A written support agreement may be contained in a separation agreement or property settlement agreement. Also, the support agreement may be shown by letters exchanged between the parties in which the amount of support has been agreed to by the parties.
Public Law 100.456 and 10 U.S.C., 814.
(a)
(b)
(c)
(a) This part (chapter) implements procedural guidance in Department of Defense Directive 552 5.9, “Compliance of DoD members, employees, and family members outside the United States with court orders.” This guidance applies to all soldiers and Department of the Army and Nonappropriated Fund (NAF) civilian employees serving outside the United States, as well as to their command sponsored family members.
(b) DODD 5525.9 requires DoD cooperation with courts and federal, state, and local officials in enforcing court orders pertaining to military personnel and DoD employees serving outside the United States, as well as their command sponsored family members, who—
(1) Have been charged with or convicted of any felony.
(2) Have been held in contempt of a court for failure to obey a court order, or
(3) Have been ordered to show cause why they should not be held in contempt for failing to obey a court order.
This section applies to the following personnel:
(a) Army personnel on active duty or inactive duty for training in overseas areas. This includes the National Guard when federalized.
(b) Department of the army civilian employees, including Nonappropriated Fund Instrumentalities (NAFI) employees.
(c) Command sponsored family members of Army personnel or Department of the Army civilian employees.
(a) Courts of federal, state, or local officials desiring to initiate a request for assistance pursuant to this section must forward the request, with appropriate court orders, as follows:
(1) For soldiers and members or their family, to the soldier's unit commander of Office, Deputy Chief of Staff for Personnel (ODCSPER), ATTN: DAPE-MP (703-695-2497); and
(2) For Department of the Army civilian employees and members of their family, to the servicing civilian personnel office for the employee's command, or ODCSPER, ATTN: DAPE-CPL, (703-697-4429).
(3) Nonappropriated Fund (NAF) employees and members of their family, to the servicing civilian personnel office for the employee's command, or ODCSPER, ATTN: CFSC-HR-P (703-325-9461).
(b) Upon receipt of such requests for assistance concerning courts orders described in paragarph (a) of this section and AR 190-9, commanders/supervisors, with the advice of their servicing Judge Advocates and legal advisors, will take action as appropriate as outlined below:
(1) Determine whether the request is based on an order issued by a court of competent jurisdiction. An “order issued by a court of competent jurisdiction” is an order that appears valid on its face and is signed by a judge.
(2) If the order appears valid on its face and is signed by a judge, attempt to resolve the matter in a timely manner to the satisfaction of the court without the return of, or other action affecting, the soldier, Army civilian employee, or family member. Due regard should be given to mission requirements, applicable international agreements, and ongoing DoD investigations or courts-martial.
(3) If the matter cannot be resolved, afford the subject of the court order a reasonable opportunity to provide evidence of legal efforts to resist the court order or otherwise show legitimate cause for noncompliance. If it is determined that efforts to provide such evidence or to show cause for noncompliance warrant a delay in taking further action, a request for delay, not to exceed 90 days, must be sought from the Secretary of the Army. Such requests, fully setting forth the reasons justifying delay and the estimated delay necessary, will be forwarded within 30 days directly to ODCSPER, ATTN: DAPE-MP (for military personnel and their family members or ODCSPER, ATTN: DAPE-CPL (for Army civilian employees and their family members) or ODCSPER, ATTN: CFSC-HR-P (for NAF employees and their family members). These offices must promptly forward the request for delay to the Assistant Secretary of Army (Manpower and Reserve Affairs) ASA(M&RA), for approval. If a delay is approved, ASA(M&RA) will promptly notify the Assistant Secretary of Defense (Force Management and Personnel) ASD
(4) If one, the matter cannot be resolved, and two, it appears that noncompliance with the request to return the soldier, or to take other action involving a family member or DA or NAF employee is warranted by all the facts and circumstances of the particular case, and three, the court order does not pertain to any felony or to a 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, the matter will be forwarded, for soldiers or their family members to the soldier's general court-martial convening authority or, for army civilian or NAF employees or their family members, to the fairest general officer or civilian equivalent in the employee's chain of command, for a determination as to whether the request should be complied with. In those cases in which it is determined that noncompliance with the request is warranted, copies of that determination will be forwarded directly to the appropriate office noted in § 589.4(b)(3) and to HQDA, DAJA-CL, pursuant to chapter 6, AR 190-9.
(5) If one, the matter cannot be resolved, and two, it appears that noncompliance with the request to return the soldier, or to take other action involving a family member of DA or NAF employee, is warranted by all the facts and circumstances of the particular case, and three, the court order pertains to any felony or to a contempt involving the unlawful or contemptuous removal of a child from the jurisidiction of a court or the custody of a parent or another person awarded custody by court order, a request for exception to policy will be forwarded directly to the appropriate office listed in § 589.3(b)(3) with an information copy to HQDA, DAJA-AL, within 30 days unless a delay has been approved by ASA(M&RA). The offices listed in § 589.3(b)(3) must forward the request for an exception promptly through ASA(M&RA) to ASD(FM&P) for decision, copy furnished to General Counsel, DOD.
(6) All actions, whether to invoke the DOD Directive or not, must be reported promptly to ASD(FM&P) and General Counsel, Department of Defense. See also DOD Directive 5525.9, paragraph E.3.c.
(c) If requests for military personnel cannot be resolved without return of the individual, and denial of the request as outlined in this section is not warranted, the individual will be ordered pursuant to section 721, Public Law 100-456 and DODD 5525.9 to the appropriate U.S. part of entry at government expense, provided the federal, state, or local authority requesting the individual provides travel expenses including a prepaid transportation ticket or equivalent and an escort, if appropriate, from the port of entry to the appropriate jurisdiction. Absent unusual circumstances, requesting parties will be notified at least 10 days before the individual is due to return. Guidance concerning use of military law enforcement personnel to effect the return of military personnel to U.S. civil authorities may be obtained from the U.S. Army Military Policy Operations Agency (MOMP-O).
(d) In accordance with DoD policy, military personnel traveling pursuant to a contempt order or show cause order, as described in this part and in AR 614-XX is entitled to full transportation and per diem allowances. However, this does not alleviate the requesting parties’ requirement to pay travel expenses from the appropriate U.S. port of entry. Any travel expenses received from the requesting party must be deducted from the soldier's entitlement to travel and per diem allowances. The soldier will be returned in a temporary duty (TDY) status, unless a permanent change of station (PCS) is appropriate.
(e) If requests for Army civilian and NAF employees cannot be resolved and denial of the request as outlined in this section is not warranted, the individual will be strongly encouraged to comply with the court order. Failure to comply with such orders by an Army civilian or NAF employee, if all criteria are met, is a basis for withdrawal of command sponsorship and adverse action against the employee, to include removal from federal service. Proposals to take disciplinary/adverse actions
(f) If the request is based upon a valid court order pertaining to a family member of a soldier or Army civilian or NAF employee, the family member will be strongly encouraged to comply with the court order if denial of the request as outlined in this part is not warranted. Unless the family member can show legitimate cause for non-compliance with the order, considering all of the facts and circumstances, failure to comply may be basis for withdrawal of command sponsorship.
(g) Failure of the requesting party to provide travel expenses for military personnel as specified in this section, is grounds to be recommended denial of the request for assistance. The request must still be forwarded through DAPE-MP and ASA(M&RA) to ASD(FM&P) for decision, copy furnished to General Counsel, Department of Defense.
For Department of Defense Acquisition Regulations, see chapter 2 of title 48.
49 U.S.C. 1801-1813, 2503, 2505, and 2509.
Carriers, surface freight forwarders, shipper agents, and air freight forwarders interested in or remaining qualified will submit data described in §§ 619.2 through 619.6 to the appropriate area command (Bayonne, NJ or Oakland, CA) based on the location of the carrier's headquarters. The area command will schedule a meeting with the carrier, if necessary, to clarify any qualification elements and also receive guidance on how to do business with the Department of Defense. The area command will then evaluate the data to determine whether the carrier has the equipment, facilities, personnel and finances necessary to handle the carrier's proposed scope of operations. The area commands will then forward the application to HQMTMC for approval. If the carrier is approved and signs the agreement, HQMTMC will then accept (or in the case of existing carriers, continue to accept) tenders, tariffs or similar rate submissions. Carriers that are disapproved will be notified of the reasons for disapproval and may reapply for approval once the problems have been corrected.
(a) Carrier will not have an “unsatisfactory” rating with the Federal Highway Administration. Department of Transportation and if it is an intrastate motor carrier, with the appropriate state agency.
(b) Carriers with “conditional” or “insufficient information” ratings may be used to transport DOD general commodities provided that such carriers certify in writing that they are now in full compliance with Department of Transportation safety requirements.
(c) Carriers transporting hazardous, secret materials or sensitive weapons and munitions, or any shipment, regardless of commodity, which requires a Transportation Protective Service (TPS) will not be used if the safety rating is less than satisfactory.
Carriers will submit copies of all certificates authorizing operations as a common carrier (interstate and intrastate) needed to transport DOD traffic.
(a)
(b)
(1) Motor common carriers, including classes A and B explosives, but excluding perishables and bulk fuel—$150,000 per shipment.
(2) Automobile transporters or carriers which move vehicles in haul-away/drive-away service—$20,000 per vehicle transported.
(3) Perishable carriers—$80,000 per shipment.
(4) Bulk fuel—$25,000 per shipment.
(5) Surface freight forwarders, shipper agents and air freight forwarders—$250,000 per shipment.
(a) Motor carriers must furnish financial statements certified by the company Chief Executive Officer, President or Owner. These financial statements must include company certified balance sheets and income statements for the last 3 taxable years. Motor carriers in existence less than 3 years, but more than 12 months, must provide company certified copies of all balance sheets and income statements from the date business was commenced. Carriers in business less than 12 months must provide a company certified balance sheet showing all assets and liabilities. Motor carriers must furnish financial data at MTMC's discretion when considered necessary to assure satisfactory performance and avoidance of motor carrier financial problems. This financial data includes, but is not limited to the following:
(1) Company certified financial statements.
(2) CPA review (including footnotes) of financial statements.
(3) CPA audit and opinion (including footnotes) of financial statements.
(4) Financial statements must reflect a 1 to 1 ratio (liquid assets—current liabilities).
(b) All carriers must also state the extent of their financial interests in other transportation companies or their affiliation with any person or
(1) Majority or minority ownership.
(2) Familiar relationships.
(3) Voting of securities.
(4) Common directors, officers and/or stockholders.
(5) Voting trusts.
(6) Holding trusts.
(7) Associated companies.
(8) Contract or department relationships.
(c) This information will be used to determine if common financial and administrative control exists with other companies, or if individuals or associated companies are affiliated with those who have been debarred by the Government.
Motor carriers, surface freight forwarders and shipper agents will provide HQMTMC the following information:
(a) A listing of company's officers with their title.
(b) A listing of the company's owners and the percentage of ownership of each.
(c) Company background and history, including the year the company was formed.
(d) A list, by type and quantity, of all owned and/or leased equipment. MTMC will not approve any motor carrier that does not own and/or have permanent leases for equipment.
(e) The number of personnel employed, to include company drivers and number of drivers under lease. A motor carrier must be able to show it has a minimum personnel force in order to operate effectively.
(f) A list of terminal locations including the street address and telephone numbers, and descriptions of the terminal facilities.
(g) Three reference letters from shippers served during the previous 12 months.
(h) Proposed services by type of service, traffic lane, or geographical area. MTMC will review equipment inventories and permanent lease agreements in relationship to proposed service. In those instances where a carrier's equipment inventory indicates they cannot provide the proposed service, MTMC will request a meeting with the carrier to review proposed service.
(i) Copies of driver hiring, screening, and training procedures.
(j) Disadvantaged (minority) and women-owned business certification (if applicable).
(k) In addition to information contained in (a) through (h) and (j) above, exempt surface freight forwarders, shipper agents and air freight forwarders must furnish a listing of the carriers which they have contract with and intend to use in the movement of government shipments. Information must include the complete company name, company officials to include their position and title, home office address, telephone number, 24-hour emergency point of contact for shipment status, and FHWA operating authority number of each carrier.
(a) Motor carriers. (1) Carriers having done business in their own name with DOD for 3 years or more will be required to submit a Performance Bond in the amount of 2.5% of their total DOD revenue, taken from the freight Information System Report (FINS), for the previous 12 months, not to exceed $100,000 and not less than $25,000.
(2) New carriers and those carriers having done business in their own name with the DOD for less than 3 years will be required to submit a Performance Bond based on areas of service they offer (computed as both origins and destinations served), that is, I state (including intrastate)—$25,000, 2 to 3 states—$50,000, and 4 or more states—$100,000.
(3) Once a carrier has been doing business with the DOD for 3 years, their bond requirement will change from area of service to percent revenue.
(b) Bulk fuel carriers and perishable carriers will be required to submit a $25,000 Performance Bond.
(c) Local drayage and commercial zone carriers are exempt from the bond requirement.
(d) Surface Freight Forwarders, Shipper Agents and Air Freight Forwarders. Due to the volume of traffic
(e) All carriers must submit a letter of intent to file a bond from a surety company with initial application. Upon HQMTMC approval, carriers will provide HQMTMC with a Performance Bond. The bond must be issued by a surety company listed in the Fiscal Service Treasury Department Circular No. 570. The sum of the bond shall be as determined by § 619.7 (a) through (c). The bond must be continuous until cancelled. HQMTMC will be notified, in writing, 30 days in advance of any change or cancellation. The Performance Bond secures performance and fulfillment of carrier obligations to deliver DOD freight. It will cover any instance where a carrier cannot or will not deliver DOD freight tendered to them to final destination. This includes default, abandoned shipments, and bankruptcy by the carrier. The bond will not be utilized for operational problems such as late pickup or delivery, excessive transit time, refusals, no shows, improper/inadequate equipment or claims for lost or damaged cargo.
Motor carriers, surface freight forwarders, shipper agents and air freight forwarders meeting the qualification requirements of §§ 619.1 through 619.7 will be required to sign the appropriate Basic Agreement in the appendices to this part.
1. The undersigned, who is duly authorized and empowered to act on behalf of
2. Approval and Revocation.
a. Carrier understands that its initial approval and retention of approval are contingent upon establishing and maintaining, to MTMC's satisfaction, sufficient resources to support its proposed scope of operations and services. Sufficient resources include equipment, personnel, facilities, and finances to handle traffic anticipated by DOD/MTMC under the carrier's proposed scope of operations in accordance with the service requirements of the shipper.
b. The carrier understands that MTMC may revoke approval at any time upon discovery of grounds for ineligibility or disqualification. The carrier further understands that it is not authorized to submit tenders for shipments requiring a Transportation Protective Service (TPS) until it has served DOD in an approved status for 12 continuous months. Prior to being allowed to handle shipments which require a TPS or classes A & B explosives, the carrier must first meet any additional requirements in effect at the time.
c. In addition to the initial evaluation, the carrier agrees that it will cooperate with MTMC follow-up evaluations at any time subsequent to signing this Agreement to confirm continued eligibility.
d. The carrier certifies that neither the owners, company, corporate officials, nor any affiliation or subsidiary thereof are currently debarred or suspended, disqualified by a MTMC General Freight Board, or placed in non-use by MTMC from doing business with DOD.
3. Lawful Performance.
a. Carrier agrees to comply with all applicable Federal, State, municipal, and other local laws and regulations governing the safe, proper, and lawful operation of motor vehicles, to include Title 49 Code of Federal Regulations (CFR) 386-397. Intrastate carriers are required to comply with all applicable state or federal regulations, whichever are more stringent.
b. No fines, charges, or assessments for overload vehicles or other violations of applicable laws and regulations will be passed to or be paid by any agency of the Federal Government.
4. Operating Authority. Carrier agrees to maintain valid motor common carrier operating certificates for its scope of operations. Any carrier found to be involved in brokerage, as defined by the Interstate Commerce Commission (ICC), of DOD freight traffic will have its approval revoked.
5. Insurance.
a. Minimum public liability insurance requirements are prescribed in title 49 of the Code of Federal Regulations (CFR) 5387.9. Carrier agrees to ensure that the ICC is provided proof of their public liability insurance, in the form of a BMC 91 or 91-X, or MCS 90, in accordance with sections 29 and 30 of the Motor Carrier Act of 1980. Further, the motor carrier agrees to provide MTMC with a certificate of insurance form. The certificate holder block of the form will indicate that MTMC, 5611 Columbia Pike, Falls Church, Virginia 22041-5050, ATTN: MTIN-FF, will be notified in writing, 30 days in advance of any change or cancellation. The deductible portion will be shown on the certificate. The insurance underwriter must have a policy holder's rating in the Best's Insurance Guide, listed in the Fiscal Service Treasury Department Circular 570, Listing of surety companies. Public liability insurance Interstate Carriers.
(1) The carrier agrees to also file with MTMC proof of: $750,000 per vehicle for property (excluding hazardous) and $1,000,000 per vehicle for oil, hazardous wastes, hazardous materials and hazardous substances defined in 49 Code of Federal Regulations (CFR) 5171.8 and listed in 49 CFR 5172.101.
(2) Public liability insurance Intrastate Carriers—Public Liability Insurance shall be that as required by the state, except that for deregulated states, public liability shall be the same as that required of interstate carriers.
(3) Cargo insurance. Cargo insurance in the minimum of $150,000 for loss and damage of government freight per vehicle and/or $20,000 per vehicle transported (e.g., automobile transporters or vehicles in haulaway service) must be maintained. Perishable carriers will maintain, as a minimum, cargo insurance in the amount of $80,000 and bulk petroleum carriers will maintain $25,000.
b. The insurance, carried in the name of the carrier, will be in force at all times while this Agreement is in effect or until such time as the carrier cancels all tenders. The carrier agrees to ensure that the policies include a provision requiring the insurer to notify MTMC prior to any performance of service for the carrier. Changes, renewals, and cancellation notices must also be sent to MTMC, 5611 Columbia Pike, Falls Church, Virginia 22041-5050, ATTN: MTIN-FF. This requirement applies to both interstate and intrastate carriers. Carrier's insurance policy(s) must cover all equipment used to transport DOD freight.
6. Performance Bond.
a. Carrier agrees to provide MTMC with a Performance Bond. The bond secures performance and fulfillment of the carrier obligation to deliver DOD freight to destination. It will cover DOD re-procurement costs as a result of carrier default, abandoned shipments, or bankruptcy. The bond will not be utilized for operational problems such as late pick up or delivery, excessive transit time, refusals, no shows, improper/inadequate equipment or claims for lost or damaged cargo. The bond must be issued by a surety company listed in the Fiscal Service Treasury Department Circular No. 570. The bond must be completed on the form provided by MTMC. The bond will be continuous until cancelled. MTMC will be notified in writing, 30 days in advance of any change or cancellation. A letter of intent by the surety company is required with the initial application package. Upon MTMC approval, the carrier agrees to submit the Performance Bond before the Tender of Service will be accepted.
b. The sum of the bond will be determined as follows.
(1) Carriers having done business in their own name with DOD for 3 years or more will be required to submit a Performance Bond in the amount of 2.5% of their total DOD revenue, taken from the Freight Information Systems Report (FINS), for the previous 12 months, not to exceed $100,000 and not less than $25,000.
(2) New carriers and those carriers having done business in their own name with the DOD for less than 3 years will be required to submit a Performance Bond based on areas of service they offer. Areas of service will be computed as both origins and destinations served.
(3) Once a carrier has been doing business with the DOD for 3 years, their bond requirement will change from area of service to percent revenue.
c. Bulk fuel carriers and Perishable carriers will be required to submit a $25,000 Performance Bond.
d. Local drayage and commercial zone carriers are exempt from the bond requirement.
e. If carrier has secured the Performance Bond as a result of qualifying under Ammunition and Explosive, Classes A and B program or hazardous materials (other than ammunition and explosives, classes A and B) program no additional Performance Bond is required.
7. Safety.
a. Carrier will not have an “unsatisfactory” safety rating with the Federal Highway Administration, Department of Transportation, and, if it is an intrastate motor carrier, with the appropriate state agency. The carrier further agrees to permit unannounced safety inspections of its facilities, terminals, equipment, employees, and procedures by DOD civilian, military personnel, or DOD contract employees. The inspection may include in-transit surveillance of vehicles and drivers. The carrier agrees to provide evidence that fulfills the requirement set forth in 49 Code of Federal Regulation parts 390 thru 396. Inspection of carrier equipment, drivers’ records, route plans and inspection reports will be permitted during both the pickup and delivery of shipments and in coordination with local police or other authorities while in transit. Carrier also agrees to allow inspection of carrier records and individual driver qualification files. When requested, carrier agrees to provide adequate evidence of an active driver safety, security training and evaluation program. Upon request, the carrier agrees to furnish sufficient information to permit MTMC to verify or inspect carrier and driver records.
b. The carrier agrees to have in place a company-wide safety management program. Carrier safety program will comply with applicable Federal, State and local statutes or requirements. Safety programs at the company-wide or terminal level may be subject to evaluation by DOD representatives.
c. The carrier agrees to notify, within 24 hours, the consignor and consignee named by the Government Bill of Lading (GBL) or Commercial Bill of Lading (CBL) of cargo loss, damage, or unusual delay. Information reported will include origin/destination, GBL/CBL number, shipping paper information, time and place of occurrence, and other pertinent accident details. When requested, carrier agrees to furnish MTMC a copy of accident reports submitted to the Department of Transportation on Form MCS 50-T (Property).
8. Drivers Requirement.
a. The carrier agrees to ensure that any driver used by the carrier to transport DOD freight possesses a valid commercial driver's license (in compliance with Federal Commercial Motor Vehicle Safety Act of 1986) issued by his or her state of domicile. Drivers must have, at a minimum, 1 year of driving experience driving equipment similar to that used to transport DOD freight, or have proof of graduation from an accredited trade truck motor driving school, operating the aforementioned equipment.
b. The carrier agrees to further ensure that driver carry a company picture identification card to verify affiliation with the carrier named on the Government Bill of Lading.
9. Equipment. The carrier is prohibited from using trip-leased equipment or drivers, except upon prior approval from MTMC Leases of less than 30 days are considered trip-leases. In order to trip-lease, a carrier must apply for approval under MTMC's trip-lease program.
10. Shipment. The carrier agrees to provide, at no additional cost to the government, the status of any shipment within 24 hours after an inquiry is made. Further, the carrier agrees to not divulge any information to unauthorized persons concerning the nature and movement of any DOD shipment.
11. Documentation.
a. The carrier agrees to accept GBLs and CBLs on which freight charges will be paid by the Government, and be bound by all terms stated on the SF1103, Government Bill of Lading, regardless of the type of bill of lading tendered.
b. The carrier agrees to comply with the documentation prelodge procedures in effect at Military Ocean Terminals or the installation, when cargo is consigned for further movement overseas. (Prelodging is the submission of advance shipment documents which identifies the shipment to the Military Ocean Terminal prior to delivery of the cargo at the terminal.) Instructions will be provided by the consignor to furnish certain data at least 24 hours in advance of cargo delivery to the terminal.
12. Loss or Damage. The carrier agrees to be liable for loss or damage to cargo in accordance with the provisions of 49 U.S.C. 11707 (the Carmack Amendment to the Interstate Commerce Act). Carrier agrees to promptly settle uncontested claims for loss or damage.
13. Standard Tender of Service.
a. The carrier agrees to comply with the preparation and filing instructions in applicable freight traffic rules publications issued by MTMC. Carrier understands that MTMC will reject tenders not in compliance with these instructions.
b. Carrier agrees to provide a street address where the company office is located in lieu of a post office box number. Carrier agrees to provide the address prior to or in conjunction with submission of any tenders or other rate schedules. The carrier agrees to also advise MTMC of any change in address prior to the effective date of the change. Failure to do so is grounds to discontinue use of the carriers.
c. Carrier understands that tenders inadvertently accepted and distributed for use and not in compliance with this agreement, the provisions contained in the Standard Tender of Freight Services (MT Form 364-R), or the applicable MNC Freight Traffic Rules Publication, and supplements thereof, will be subject to immediate removal or non-use
14. Rates.
a. Carrier agrees to transport Government shipments at the lowest tender rate specifically applicable to the department or agency involved.
b. Carrier agrees to publish guaranteed through rates for at least 30 days. These rates must be filed with MTMC, HQ, Eastern Area, ATTN: MTE-IN, Bayonne, New Jersey 07002-5302. The carrier must publish all rates, charges, and accessorial services on a MTMC approved form, and must comply with the tender preparation instructions. (Only services annotated with a charge in the tender will be paid by the shipper.)
15. Carrier Performance. Carrier agrees that carrier's equipment, performance, and standards of service will conform with its obligations under Federal, State and local law and regulation as well as with the guidelines found in the Defense Traffic Management Regulation (DTMR) and this Agreement. The carrier fully understands its obligation to remain current in its knowledge of service standards. The carrier accepts the Government's right to revoke approval, declare ineligible, non-use, or disqualify the carrier for unsatisfactory service for any operating deficiency, noncompliance with terms of this Agreement or terms of any negotiated agreements, tariffs, tenders, bills of lading or similar arrangements determining the relationship of the parties, or for the publication or assessment of unreasonable rates, charges, rules, descriptions classifications, practices, or other unreasonable provisions of tariffs/ tenders. Rules governing the Carrier Performance Program are found in MTMC Regulation 15-1, and Army Regulation 55-355, DTMR. If a carrier is removed or disqualified for 6 months or more, it will have to be re-qualified.
16. General Provisions. The carrier agrees to possess a valid Standard Carrier Alpha Code (SCAC). When a company holding the appropriate authority has operating divisions each with its own unique SCAC, each such division is required to execute a separate agreement with MTMC governing the transportation of protected commodities.
17. Terms of the Agreement.
a. The terms of this Agreement will be applicable to each shipment.
b. This agreement shall be effective from the date of approval by MTMC, until terminated. Termination is effective upon receipt of written notice by either party.
c. Nothing in this Agreement will be construed as a guarantee by the Government of any particular volume of traffic.
d. The carrier agrees to immediately notify MTMC of any changes in ownership, in affiliations, executive officers, and/or board members, and carrier name. Carrier understands that failure to notify MTMC shall be grounds for immediate revocation of the carrier's approval and their participation in the movement of DOD freight.
18. Additional Specialized Requirements. The terms of this Agreement will not prevent different or additional requirements with respect to negotiated agreements or added requirements for other types of service and/or commodities.
19. Inquiries. Inquiries may be referred to: Commander, Military Traffic Management Command, ATTN: MTIN-FF, 5611 Columbia Pike, Falls Church, Virginia 22041-5050.
20. Carrier Acknowledgment and Acceptance. The certifying carrier official agrees to ensure that the appropriate company officials and employees are familiar with the requirements, terms and conditions of this Agreement and are in full compliance with the applicable provisions herein. Any information found to be falsely represented in the Motor Carrier Qualification Form, the attachments or during the qualification procedures, to include additional requirements of this Agreement, shall be grounds for automatic revocation of this Agreement and immediate non-use of the carrier, the affiliated companies, division and entities.
1. The undersigned, who is duly authorized and empowered to act on behalf of
2. Approval and Revocation.
a. Carrier understands that its initial approval and retention of approval are contingent upon establishing and maintaining, to MTMC's satisfaction sufficient resources to support its proposed scope of operations and services. Sufficient resources include the equipment, personnel, facilities, and finances to handle the traffic anticipated by DOD/MTMC under the carrier's proposed scope of operations in accordance with the service requirements of the shipper.
b. The carrier understands that MTMC may revoke approval at any time upon discovery of grounds for ineligibility or disqualification.
c. In addition to the initial evaluation, the carrier agrees that it will cooperate with MTMC follow-up evaluations at any time subsequent to signing this Agreement to confirm continued eligibility.
d. The carrier certifies that neither the owners, company, corporate officials, nor any affiliation or subsidiary thereof are currently debarred or suspended, or disqualified by a MTMC General Freight Board, or placed in non-use by MTMC from doing business with DOD.
3. Lawful Performance.
a. Carrier agrees to comply with all applicable Federal, State, municipal, and other local laws and regulations governing the safe transportation and storage of ammunition and explosives to include Title 49 Code of Federal Regulations (CFR) 177 and 386 through 397. Provisions for exempt intracity operations as defined in 49 CFR will not apply to the transportation of explosives for the DOD. Intrastate carriers are required to comply with all applicable state or federal regulations, whichever are more stringent.
b. No fines, charges, or assessments for overload vehicles or other violations of applicable laws and regulations will be passed to or be paid by any agency of the Federal Government.
4. Operating Authority. Carrier agrees to maintain valid motor common carrier operating certificates for its scope of operations which is not restricted against the handling and transport of hazardous materials or ammunition and explosives, class A and B. Any carrier found to be, in fact, involved in the brokerage, as defined by the Interstate Commerce Commission (ICC), of DOD freight traffic will have its approval revoked.
5. Insurance.
a. Minimum public liability insurance requirements are prescribed in Title 49 of the Code of Federal Regulations (CFR) 5387.9 Carrier agrees to ensure that the ICC is provided proof of their public liability insurance, in the form of a BMC 91 or 91-X, or MCS 90, in accordance with Sections 29 and 30 of the Motor Carrier Act of 1980. Further, the motor carrier will provide MTMC with a certificate of insurance form. The certificate holder block of the form will indicate that MTMC, 5611 Columbia Pike, Falls Church, Virginia 22041-5050, ATTN: MTIN-FF, will be notified in writing, 30 days in advance of any change or cancellation. The deductible portion will be shown on the certificate. The insurance underwriter must have a policyholder's rating in the Best's Insurance Guide, listed in the Fiscal Service Treasury Department Circular 570, Listing of Surety Companies.
b. The carrier agrees to also file with MTMC proof of:
(1) Public liability insurance. Interstate and Intrastate carriers $5,000,000 per vehicle.
(2) Cargo insurance. Cargo insurance in the minimum of $150,000 for loss and damage of government freight per vehicle.
c.The insurance, carried in the name of the carrier, will be in force at all times while this Agreement is in effect or until such time as the carrier cancels all tenders. The carrier agrees to ensure that the policies include a provision requiring the insurer to notify MTMC prior to any performance of service by the carrier. Changes, renewals, and cancellations notices must also be sent to MTMC, 5611 Columbia Pike, Falls Church, Virginia 22041-5050, ATTN: MTIN-FF. This requirement applies to both interstate and intrastate carriers. Carrier's insurance policy(s) must cover all equipment used to transport DOD freight.
6. Performance Bond.
a. Carrier agrees to provide MTMC with a Performance Bond. The bond secures performance and fulfillment of the carrier obligation to deliver DOD freight to destination. It will cover DOD re-procurement costs as a result of carrier default, abandoned shipments, or bankruptcy. The bond will not be utilized for operational problems such as late pick up or delivery, excessive transit time, refusals, no shows, improper/inadequate equipment or claims for lost or damaged cargo. The bond must be issued by a surety company listed in the Fiscal Service Treasury Department Circular No. 570. The bond must be completed on the form provided by MTMC. The bond will be continuous until cancelled. MTMC will be notified in writing, 30 days in advance of any change or cancellation. A letter of intent by the surety company is required with the initial application package. Upon MTMC approval, the carrier agrees to submit the Performance Bond before the Tender of Service will be accepted.
b. The sum of the bond will be determined as follows.
(1) Carriers having done business in their own name with DOD for 3 years or more will be required to submit a Performance Bond in the amount of 2.5% of their total DOD revenue taken from the Freight Information Systems Report (FINS), for the previous 12 months, not to exceed $100,000 and not less than $25,000.
(2) New carriers-and those carriers having done business in their own name with the DOD for less than 3 years will be required to submit a Performance Bond based on areas of service they offer. Areas of service will be computed as both origins and destinations served.
(3) Once a carrier has been doing business with the DOD for 3 years, their bond requirement will change from area of service to percent of revenue.
c. If carrier has secured the Performance Bond as a result of qualifying under the general commodity program or hazardous materials (other than ammunition and explosives, classes A and B) program, no additional Performance Bond is required.
7. Safety and Security.
a. A “satisfactory” safety rating will be maintained with the Federal Highway Administration, Department of Transportation and/or with the appropriate state agency or commission in the case of intrastate. Safety ratings which are “unsatisfactory,” “conditional”, “insufficient information”, or “not rated” will not be accepted. The carrier further agrees to permit unannounced safety and security inspections of its facilities, terminals, equipment and operational procedures by DOD civilian or military personnel, or DOD contract employees. Inspection of carrier equipment, drivers’ records, route plans and inspection reports will be permitted during both the pickup and delivery of shipments and in coordination with local police or other authorities while in transit. Carrier also agrees to allow inspection of carrier records and individual driver qualification files. When requested, carrier agrees to provide adequate evidence of an active driver safety, security training and evaluation program. Carrier agrees to furnish, on request, driver's Social Security Numbers to verify their security clearances and allow for inspection of carrier/driver records.
b. Carrier agrees to have in place a company-wide safety and security management program which includes specific on-going safety and security programs for each terminal location. Individual terminal programs will encompass planning and execution of safety and security in routine operations, to include emergency responders and planners, and with the local police and fire authority. Carrier programs will incorporate compliance with all applicable Federal, State, and local statutes or requirements. Conformance with other safety standards, such as NFPA Code 498, will be accomplished as much as possible, with compensating measures for deviations. Safety and security programs at the company wide or terminal level may be subject to evaluation by a DOD representative.
c. The carrier agrees to notify, within a reasonable period of time, the consignor and consignee named by the Government Bill of Lading (GBL) of cargo loss, damage, or unusual delay. Carrier also agrees to notify the consignor and the consignee named on the GBL immediately by telephone of an accident, incident or significant delay. The information to be reported will include origin/destination, GBL number, shipping paper information, time and place of occurrence and other pertinent accident details. Carrier agrees to notify the MTMC area command
d. Carrier agrees to provide the driver(s) transporting protected commodities an emergency telephone number (indicated on the last page of this Agreement) which, when used at any time (24 hours a day, 7 days a week), will reach a qualified carrier representative who will be able to provide information and assistance. MTMC will be immediately notified if this telephone number should be changed. Carrier also agrees to equip the vehicle transporting the material with communications equipment (CB radio, mobile phone, etc.) capable of being used to obtain assistance in an emergency.
e. Carrier agrees to provide the appropriate Transportation Protective Service (TPS) when requested by a DOD shipper. Carrier further agrees to comply with, and meet, all criteria for TPS as set forth in the Agreement governing the transportation of shipments requiring a TPS and also defined in the MTMC Freight Rules Publication No. IA (MFTRP No. 1A) and reissues thereto.
f. Carrier agrees to execute a DD Form 4415 (Certificate Pertaining to Foreign Interests) as a precondition to providing any TPS for the DOD. Only one DD Form 4415 must be executed by a carrier regardless of the number or type of TPS provided.
g. All copies of the Signature and Tally Record (DD Form 1907), Special Instructions for Motor Vehicle Drivers (DD Form 836), and the Motor Vehicle Inspection (DD Form 626), will be transferred from driver to driver throughout the entire movement of classes A and B explosives shipments. All drivers transporting such shipments must sign the DD Form 1907 and follow the instructions shown on the DD Form 836. Furnishing of the Signature and Tally Record is an integral part of a TPS to be provided by the carrier. Carrier must ensure that each person responsible for the proper handling of the shipment signs the Signature and Tally Record at the time he/she assumes responsibility. All drivers transporting such shipment must sign the Signature and Tally Record. When used with Dual Driver (DD), both drivers are required to sign the Signature and Tally Record upon original receipt.
8. Driver Requirements.
a. Carrier agrees to comply with all driver requirements contained in paragraph 7 of the Agreement Between the military Traffic Management Command and Motor Common Carriers Governing the Transportation of Shipments Which Require a Transportation Protective Service (TPS) for and on Behalf of the U.S. Department of Defense.
b. Carrier agrees that newly employed drivers will not be allowed to transport class A and B explosives until after background checks required by 49 CFR 391.23 have been successfully completed.
c. Carrier agrees that no driver disqualified under 49 CFR 391.15 will be permitted to operate any vehicle transporting class A and B explosives.
d. The driver of a motor vehicle transporting class A and B explosives must undergo a physical examination and must be certified physically qualified to drive a commercial motor vehicle in accordance with 49 CFR part 391.43. Carrier agrees to have driver screening programs in place to ensure that the provisions of this paragraph are met.
9. Equipment. Carrier agrees to comply with all equipment requirements contained in paragraph 8 of the Agreement Between the Military Traffic Management Command and Motor Common carriers Governing the Transportation of Shipments Which Require a Transportation Protective Service (TPS) for and on Behalf of the U.S. Department of Defense.
10. Shipment.
a. Carrier agrees to ensure that the shipper-provided placards are displayed in accordance with the general requirements found in 49 CFR 172.504.
b. Carrier is responsible for shipments from origin to ultimate destination. The carrier also remains responsible for shipments placed in a safe haven or refuge location. Carrier agrees not to disclose any information to unauthorized persons concerning the nature, kind, quantity, destination, consignee or routing of any protected commodities shipment tendered to it. The carrier further agrees to provide, at no additional cost to the Government, the status of any shipment within 24 hours after an inquiry is made.
c. Carrier agrees to comply with all shipment requirements contained in paragraph 9 of the Agreement Between the military Traffic Management Command and Motor Common Carriers Governing the Transportation of Shipments Which Require a Transportation Protective Service (TPS) for and on Behalf of the U.S. Department of Defense.
d. When requested by the shipper for reasons of security, carrier agrees to cover the shipment with a carrier-provided tarpaulin. Protective tarping is an accessorial service.
11. Documentation.
a. The carrier agrees to accept GBLs on which freight charges will be paid by the Government, and bound by all terms stated on the SF1103, Government Bill of Lading.
b. The carrier will comply with the documentation prelodge procedures in effect at Military Ocean Terminals when cargo is consigned for further movement overseas. (Prelodging is the submission of advance shipment documents which identifies the shipment to the Military Ocean Terminal prior to delivery of the cargo at the terminal.) Instructions will be provided by the consignor to furnish certain data at least 24 hours in advance of cargo delivery to the terminal.
12. Loss or Damage. The carrier agrees to be liable for loss or damage to cargo in accordance with the provisions of 49 U.S.C. 11707 (the Carmack Amendment to the Interstate Commerce Act). Carrier agrees to promptly settle uncontested claims for loss or damage.
13. Standard Tender of Service.
a. The carrier agrees to comply with the preparation and filing instructions and applicable freight traffic rules publications issued by MTMC. Carrier understands that MTMC will reject tenders not in compliance with these instructions.
b. Carrier agrees to provide a street address where the company office is located in lieu of a post office box number. Carrier agrees to provide the address prior to or in conjunction with submission of any tenders or other rate schedules. The carrier agrees to also advise MTMC of any change in address prior to the effective date of the change. Failure to do so is grounds to discontinue use of the carriers.
c. Carrier understands that tenders inadvertently accepted and distributed for use and not in compliance with this Agreement, the provisions contained in the Standard Tender of Freight Services (MT Form 364-R), or the applicable MTMC Freight Traffic Rules Publication, and supplements thereof, will be subject to immediate removal or non-use until corrections are made. The issuing carrier will be advised when tenders are removed under these circumstances.
14. Rates.
a. Carrier agrees to transport Government shipments at the lowest tender rate specifically applicable to the department or agency involved.
b. The carrier's rates must be on file with MTMC, HQ, Eastern Area, ATTN: MTE-IN, Bayonne, New Jersey 07002-5302. The carrier must publish all rates, charges, and accessorial services on a “Department of Defense Standard Tender of Freight Services”, MT Form 364-R and must comply with the tender preparation instructions. (Only services annotated with a charge in the tender will be paid by the shipper.)
15. Carrier Performance. Carrier agrees that carrier's equipment, performance, and standards of service will conform with its obligations under Federal, State and local law and regulation as well as with the guidelines found in the Defense Traffic Management Regulation (DTMR) and this Agreement. The carrier fully understands its obligation to remain current in its knowledge of service standards. The carrier accepts the Government's right to revoke approval, declare ineligible, non-use, or disqualify the carrier for unsatisfactory service for any operating deficiency, noncompliance with terms of this Agreement or terms of any negotiated agreements, tariffs, tenders, bills of lading or similar arrangements determining the relationship of the parties, or for the publication or assessment of unreasonable rates, charges, rules, descriptions, classifications, practices, or other unreasonable provisions of tariffs/tenders. Rules governing the Carrier Performance Program are found in MTMC Regulation 15-1, and Army Regulation 55-355, DTMR. If a carrier is removed or disqualified for 6 months or more, it will have to be re-qualified.
16. General Provisions. The carrier must possess a valid Standard Carrier Alpha Code (SCAC). When a company holding the appropriate authority has operating divisions each with its own unique SCAC, each such division is required to execute a separate agreement with the MTMC governing the transportation of protected commodities.
17. Terms of the Agreement.
a. The terms of this Agreement will be applicable to each shipment.
b. This Agreement shall be effective from the date of approval by MTMC, until terminated. Termination is effective upon receipt of written notice by either party.
c. Nothing in this Agreement will be construed as a guarantee by the Government of any particular volume of traffic.
d. The carrier agrees to immediately notify MTMC of any changes in ownership, in affiliations, executive officers, and/or board members, and carrier name. Carrier understands that failure to notify MTMC shall be grounds for immediate revocation of the carrier's approval and their participation in the movement of DOD freight.
18. Additional Specialized Requirements. The terms of this Agreement will not prevent different or additional requirements with respect to negotiated agreements or added requirements for other types of service and/or commodities.
19. Inquiries. Inquiries may be referred to: Commander, Military Traffic Management Command, ATTN: MTIN-FF, 5611 Columbia Pike, Falls Church, Virginia 22041-5050.
20. Carrier Acknowledgment and Acceptance. The certifying carrier official agrees to
2. Approval and Revocation.
a. Carrier understands that its initial approval and retention of approval are contingent upon establishing and maintaining, to MTMC's satisfaction sufficient resources to support its proposed scope of operations and services. Sufficient resources include the equipment, personnel, facilities, and finances to handle the traffic anticipated by DOD/MTMC under the carrier's proposed scope of operations in accordance with the service requirements of the shipper.
b. The carrier understands that MTMC may revoke approval at anytime upon discovery of grounds for ineligibility or disqualification. The carrier further understands that it is not authorized to submit tenders for shipments requiring a TPS until it has served DOD in an approved status for 12 continuous months. Prior to being allowed to handle shipments which require a TPS or class A & B explosives, the carrier must first meet any additional requirements in effect at the time.
c. In addition to the initial evaluation, the carrier agrees that it will cooperate with MTMC follow-up evaluations at any time subsequent to signing this Agreement to confirm continued eligibility.
d. The carrier certifies that neither the owners, company, corporate officials, nor any affiliation or subsidiary thereof are currently debarred or suspended, disqualified by a MTMC General Freight Board, or placed in
3. Lawful Performance.
a. Carrier agrees to comply with all applicable Federal, State, municipal, and other local laws and regulations governing the safe, proper, and lawful operation of motor vehicles to include Title 49 Code of Federal Regulations (CFR) 386-397. Intrastate carriers are required to comply with all applicable state or federal regulations, whichever are more stringent.
b. No fines, charges, or assessments for overload vehicles or other violations of applicable laws and regulations will be passed to or be paid by any agency of the Federal Government.
4. Operating Authority. Carrier agrees to maintain valid motor common carrier operating certificates for its scope of operations which is not restricted against the handling and transport of hazardous materials as defined in 49 CFR 172.3. Any carrier found to be, involved in brokerage, as defined by the Interstate Commerce Commission (ICC), of DOD freight traffic will have its approval revoked.
5. Insurance.
a. Minimum public liability insurance requirements are prescribed in Title 49 of the Federal Code of Federal Regulations (CFR) 5387.9 Carrier agrees to ensure that the ICC is provided proof of their public liability insurance, in the form of a BMC 91 or 91-X, or MCS 90, in accordance with Sections 29 and 30 of the Motor Carrier Act of 1980. Further, the motor carrier will provide MTMC with a certificate of insurance form. The certificate holder block of the form will indicate that MTMC, 5611 Columbia Pike, Falls Church, Virginia 22041-5050, ATTN: MTIN-FF, will be notified in writing, 30 days in advance of any change or cancellation. The deductible portion will be shown on the certificate. The insurance underwriter must have a policyholder's rating in the Best's Insurance Guide, listed in the Fiscal Service Treasury Department Circular 570, Listing of Surety Companies.
b. The carrier agrees to also file with MTMC proof of:
(1) Interstate Public Liability. Carrier will ensure that its insurance company(s) file with MTMC proof of public liability and property damage insurance for the transportation of hazardous commodities in the minimum amounts prescribed in 49 CFR 387.9.
(2) Intrastate Public Liability. Carrier will ensure that its insurance company(s) file with MTMC proof of insurance which meets the state requirements for public liability and property damage for the transportation of hazardous materials.
(3) Cargo Insurance. Carrier will also file with MTMC proof of $150,000 per incident minimum cargo insurance for loss and damage of Government freight other than bulk fuel which is set at $25,000.
c. The insurance, carried in the name of the carrier, will be in force at all times while this Agreement is in effect of until such time as the carrier cancels all tenders. The carrier agrees to ensure that the policies include a provision requiring the insurer to notify MTMC prior to any performance of service by the carrier. Changes, renewals, and cancellation notices must also be sent to MTMC, 5611 Columbia Pike, Falls Church, Virginia 22041-5050, ATTN: MTIN-FF. This requirement applies to both interstate and intrastate carriers. Carrier's insurance policy(s) must cover all equipment used to transport DOD freight.
6. Performance Bond.
a. Carrier agrees to provide MTMC with a Performance Bond. The bond secures performance and fulfillment of the carrier obligation to deliver DOD freight to destination. It will cover DOD reprocurement costs as a result of carrier default, abandoned shipments, or bankruptcy by the carrier. The bond will not be utilized for operational problems such as late pick up or delivery, excessive transit time, refusals, no shows, improper/inadequate equipment or claims for lost or damaged cargo. The bond must be issued by a surety company listed in the Fiscal Service Treasury Department Circular No. 570. The bond must be completed on the form provided by MTMC. The bond will be continuous until cancelled. POC will be notified in writing, 30 days in advance of any change or cancellation. A letter of intent by the surety company is required with the initial application package. Upon MTMC approval, the carrier agrees to submit the Performance Bond before the Tender of Service will be accepted.
b. The sum of the bond shall be determined as follows.
(1) Carriers having done business in their own name with DOD for 3 years or more will be required to submit a performance bond in the amount of 2.5% of their total DOD revenue, taken from the Freight Information Systems Report (FINS), for the previous 12 months, not to exceed $100,000 and not less than $25,000.
(2) New carriers and those carriers having done business in their own name with the DOD for less than 3 years will be required to submit a Performance Bond based on areas of service they offer. Areas of service will be computed at both origins and destinations serve
(3) Once a carrier has been doing business with the DOD for 3 years, their bond requirement will change from area of service to percent of revenue.
c. Bulk fuel carriers will be required to submit a $25,000 Performance Bond.
d. Local drayage and commercial zone carriers are exempt from the bond requirement.
e. If carrier has secured the Performance Bond as a result of qualifying under the general commodity program or class A and B program, no additional Performance Bond is required.
7. Safety and Security.
a. A “satisfactory” safety rating will be maintained with the Federal Highway Administration, Department of Transportation and/or with the appropriate state agency or commission in the case of intrastate. Safety ratings which are “unsatisfactory,” “conditional”, “insufficient information”, or “not rated” will not be accepted. The carrier further agrees to permit unannounced safety and security inspections of its facilities, terminals, equipment and operational procedures by DOD civilian or military personnel, or DOD contract employees. These inspections may include transit surveillance of vehicles and drivers. The carrier agrees to provide evidence that fulfills the requirement set forth in 49 Code of Federal Regulation Parts 390 through 396. Inspection of carrier equipment, drivers’ records, route-plans and inspection reports will be permitted during both the pickup and delivery of shipments and in coordination with local police or other authorities while in transit. Carrier also agrees to allow inspection of carrier records and individual driver qualification files. When requested, carrier agrees to provide adequate evidence of an active driver safety, security training and evaluation program. Carrier agrees to furnish, on request, driver's social security Numbers to verify their security clearances and allow for inspection of carrier/driver records.
b. Carrier agrees to have in place a company-wide safety and security management program which includes specific on-going safety and security programs for each terminal location. Individual terminal programs will encompass planning and execution for safety and security in routine operations, to include emergency responders and planners, and with the local police and fire authority. Carrier programs will incorporate compliance with all applicable Federal, State, and local statutes or requirements. Conformance with other safety standards, such as NFPA Code 498, will be accomplished as much as possible, with compensating measures for deviations. Safety and security programs at the company wide or terminal level may be subject to evaluation by a DOD representative.
c. The carrier agrees to notify, within a reasonable period of time, the consignor and consignee named by the Government Bill of Lading (GBL) or Commercial Bill of Lading (CBL) of cargo loss, damage, or unusual delay. Carrier also agrees to notify the consignor and the consignee named on the GBL immediately by telephone of an accident, incident or significant delay. The information to be reported will include origin/destination, GBL/CBL number, shipping paper information, time and place of occurrence and other pertinent accident details. Carrier agrees to notify the MTMC area command annotated on the GBL and the Defense Logistics Agency (DLA), within one half (1/2) hour after notification of the consignor and consignee, and provide status updates as required. The MTMC HOTLINE telephone numbers are as follows:
d. Carrier agrees to provide the driver(s) transporting hazardous commodities an emergency telephone number (indicated on the last page of this Agreement) which, when used at any time (24 hours a day, 7 days a week), will reach a qualified carrier representative who will be able to provide information and assistance. MTMC will be immediately notified if this telephone number should be changed.
e. Carriers approved to transport DOD hazardous materials requiring TPS agree that no driver disqualified under 49 CFR 391.15 will be permitted to operate any vehicle transporting such commodities.
f. Carriers approved to transport DOD hazardous materials agree to ensure that drivers of a motor vehicle transporting such commodities must undergo a physical examination and must be certified physically qualified to drive a commercial motor vehicle in accordance with 49 CFR 391.43. Carrier also agrees to have driver screening programs in place to ensure that the provisions of this paragraph are met.
8. Drivers Requirements.
a. Carrier agrees to ensure that the driver(s) employed to transport hazardous materials have a minimum of one year of general commodities driving experience (using similar equipment) prior to transporting hazardous commodities, and that its drivers are trained and competent in the movement of these commodities to include an understanding of the following: 49 CFR part 397; instructions on procedures to be followed in the event of a delay; nature of the materials being transported; precautions to be taken in an emergency; written route plans; and shipping paper entries. The carrier will certify that the driver is trained and competent in the movement of hazardous commodities, and proof of certification must be carried in
b. The carrier agrees to further ensure that driver(s) carry a valid commercial motor vehicle operator's license issued by his/her state of domicile, a certificate of physical examination issued during the preceding 24 months, and an employee record card, or similar document, one of which must contain the driver's photograph. The driver(s) must be 21 years of age. The driver(s) must carry a company picture identification card to verify affiliation with the carrier named on the Government Bill of Lading (GBL)
9. Equipment.
a. Trip-leased equipment, with or without drivers, will not be used to transport hazardous materials for the account of the DOD. Exceptions for the use of intermittent or occasional drivers in 49 CFR 391.63 will not apply to any DOD movement. Any equipment, with or without drivers, leased to augment carrier-owned equipment will be on a not less than 90-day noncancellable basis.
b. A copy of the equipment lease agreement must be carried in the vehicle of the unit transporting these commodities. (Facsimile, Xerox, or otherwise reproduced copies, are not acceptable.) Interchange agreements which originate at origin will be considered trip leases and will not be accepted. The lease must be complete at time of pick up and should require no further information to be completed by the driver. Failure to comply with this requirement or attempted abuse of this requirement could result in the carrier's participation in this type traffic to be immediately revoked and up to a nationwide disqualification on all DOD freight shipments should further action under the Carrier Performance Program be deemed appropriate.
c. Carriers approved to transport DOD hazardous materials requiring TPS agree to comply with all equipment requirements contained in paragraph 8 of the Agreement Between the Military Traffic Management Command and Motor Common Carriers Governing the Transportation of Shipments Which Require a Transportation Protective Service (TPS) for and on Behalf of the U.S. Department of Defense.
10. Shipment.
a. Carrier is responsible for shipments from origin to ultimate destination. The carrier also remains responsible for shipments placed in a safe haven or refuge location. Carrier agrees not to disclose any information to unauthorized persons concerning the nature, kind, quantity, destination, consignee or routing of any hazardous material shipment tendered to it. The carrier further agrees to provide, at no additional cost to the 71 Government, the status of any shipment within 24 hours after an inquiry is made.
b. Carrier agrees to ensure that shipper-provided placards are displayed in accordance with the general requirements found in 49 CFR 172.504 for the transportation of hazardous materials. The carrier further agrees to conform to the requirements found in 49 CFR 177.825 pertaining to the transportation of radioactive materials on designated routes of radioactive materials for which placarding is required. Carrier also agrees to route all other shipments of hazardous commodities in accordance with the provisions of 49 CFR 397.9.
c. When requested by the shipper for reasons of security, carrier agrees to cover the shipment with a carrier-provided tarpaulin. Protective tarping is an accessorial service.
d. Carriers approved to transport DOD hazardous materials requiring TPS agree to comply with all shipment requirements contained in paragraph 9 of the Agreement Between the Military Traffic Management Command and Motor Common Carriers Governing the Transportation of Shipments Which Require a Transportation Protective Service (TPS) for and on Behalf of the U.S. Department of Defense.
11. Documentation.
a. The carrier agrees to accept GBLs and CBLs on which 73 freight charges will be paid by the Government, and bound by all terms stated on the SF1103, Government Bill of Lading, regardless of the type of bill of lading tendered.
b. The carrier agrees to comply with the documentation prelodge procedures in effect at Military Ocean Terminals when cargo is consigned for further movement overseas. (Prelodging is the submission of advance shipment documents which identifies the shipment to the Military Ocean Terminal or the installation prior to delivery of the cargo at the terminal.) Instructions will be provided by the consignor to furnish certain data at least 24 hours in advance of cargo delivery to the terminal.
12. Loss or Damage. The carrier agrees to be liable for loss or damage to cargo in accordance with the provisions of 49 U.S.C. 11707 (the Carmack Amendment to the Interstate Commerce Act). Carrier agrees to promptly settle uncontested claims for loss or damage.
13. Standard Tender of Service.
a. The carrier agrees to comply with the preparation and filing instructions and applicable freight traffic rules publications issued by MTMC. Carrier understands that MTMC will reject tenders not in compliance with these instructions.
b. Carrier agrees to provide a street address where the company office is located in lieu of a post office box number. Carrier will provide the address prior to or in conjunction with submission of any tenders or other rate schedules. The carrier agrees to also advise MTMC of any change in address prior to
c. Carrier understands that tenders inadvertently accepted and distributed for use and not in compliance with this agreement, the provisions contained in the standard Tender of Freight services (MT Form 364-R), or the applicable MTMC Freight Traffic Rules Publication, and supplements thereof, will be subject to immediate removal or nonuse until corrections are made. The issuing carrier will be advised when tenders are removed under these circumstances.
14. Rates.
a. Carrier agrees to transport Government shipments at the lowest tender rate specifically applicable to the department or agency involved.
b. The carrier's rates must be on file with MTMC, HQ, Eastern Area, ATTN: MTE-IN, Bayonne, New Jersey 07002-5302. The agent must publish all rates, charges, and accessorial services on a “Department of Defense standard Tender of Freight Services”, MT Form 364-R and must comply with the tender preparation instructions. (Only services annotated with a charge in the tender will be paid by the shipper.)
15. Carrier Performance. Carrier agrees that carrier's equipment, performance, and standards of service will conform with its obligations under Federal, State and local law and regulation as well as with the guidelines found in the Defense Traffic Management Regulation (DTMR) and this Agreement. The carrier fully understands its obligation to remain current in its knowledge of service standards. The carrier accepts the Government's right to revoke approval, declare ineligible, nonuse, or disqualify the carrier for unsatisfactory service subsequent to approval or for any other operating deficiency, or for noncompliance with terms of the Agreement or terms of negotiated agreements, tariffs, tenders, bills of jading or similar arrangements determining the relationship of the parties, or for the publication or assessment of unreasonable rates, charges, rules, descriptions, classifications, practices, or other unreasonable provisions of tariffs/tenders. Rules governing the Carrier Performance Program are found in MTMC Regulation 15-1, and Army Regulation 55-355, DTMR. If a carrier is removed or disqualified for 6 months or more, it will have to be requalified.
16. General Provisions. The carrier agrees to possess a valid Standard Carrier Alpha Code (SCAC). When a company holding the appropriate authority has operating divisions each with its own unique SCAC, each such division is required to execute a separate agreement with MTMC governing the transportation of protected commodities.
17. Terms of the Agreement.
a. The terms of this Agreement will be applicable to each shipment.
b. This agreement shall be effective from the date of approval by MTMC, until terminated. Termination is effective upon receipt of written notice by either party.
c. Nothing in this Agreement will be construed as a guarantee by the Government of any particular volume of traffic.
d. The carrier agrees to immediately notify MTMC of any changes in ownership, in affiliations, executive officers, and/or board members, and carrier name. Carrier understands that failure to notify MTMC shall be grounds for immediate revocations of carriers approval and their participation in movement of DOD freight.
18. Additional Specialized Requirements. The terms of this Agreement will not prevent different or additional requirements with respect to negotiated agreements or added requirements for other types of service and/or commodities.
19. Inquiries. Inquiries may be referred to: Commander, Military Traffic Management Command, ATTN: MTIN-FF, 5611 Columbia Pike, Falls Church, Virginia 22041-5050.
20. Carrier Acknowledgment and Acceptance. The certifying carrier official agrees to ensure that the appropriate company officials and employees are familiar with the requirements, terms and conditions of this Agreement and are in full compliance with the applicable provisions herein. Any information found to be falsely represented in the Motor Carrier Qualification Form, the attachments or during the qualification procedures, to include additional requirements of this Agreement, shall be grounds for automatic revocation of this Agreement and immediate non-use of the carrier, the affiliated companies, division and entities.
2. Approval and Revocation.
a. Carrier understands that its initial approval and retention of approval are contingent upon establishing and maintaining, to MTMC's satisfaction sufficient resources to support its proposed scope of operations and services. Sufficient resources include the equipment, personnel, facilities, and finances to handle the traffic anticipated by DOD/MTMC under the carrier's proposed scope of operations in accordance with the service requirements of the shipper.
b. The carrier understands that MTMC may revoke approval at any time upon discovery of grounds for ineligibility or disqualification.
c. In addition to the initial evaluation, the carrier agrees that it will cooperate with MTMC follow-up evaluations at any time subsequent to signing this Agreement to confirm continued eligibility.
d. Carrier agrees to execute a DD Form 4415 (Certificate Pertaining to Foreign Interests) as a precondition to providing any TPS for the DOD. Only one DD Form 4415 must be executed by a carrier regardless of the number or type of TPS provided.
e. Carrier agrees to allow a National Agency Check (NAC) on all management and operational personnel involved in the performance of Dual Driver Protective Service with National Agency Checks (DN). The results of the NAC must be favorable as determined by MTMC under DOD criteria as a precondition to the carrier providing Satellite Monitoring (SM) with DN. Management personnel include: owners (including partnership where applicable), principal deputies, board members (where applicable), and company managers responsible for liaison with DOD operations. Operational personnel include: drivers, handlers, and terminal and security personnel hired permanently or temporarily by the company to protect the DOD cargo under SM with DN.
f. Carrier providing Protective Security Service (PS) and/or Security Escort Vehicle Service (SE) accompanying a PS shipment must have been cleared by the Defense Investigative Service (DIS) under the DOD Industrial Security Program.
3. Lawful Performance. Carrier agrees it will comply with all rules, regulations and requirements set forth in any and all agreements which may be applicable to the shipment/commodity transported requiring a TPS.
4. Agreements. When applicable, carrier agrees to execute a separate agreement with MTMC governing the transportation of hazardous materials, ammunition and explosives, or Class A and B explosives, as defined in 49 CFR part 173.
5. Security.
a. Carrier agrees to designate a “qualified carrier representative” when handling shipments requiring a TPS. This representative will be employed by the carrier, or the terminal involved, aware of the sensitivity of the shipment, knowledgeable of the safety, security and emergency procedures to be followed, authorized and capable of moving a transportation conveyance and, when providing PS, cleared by DIS.
b. Carrier agrees to ensure that trailers containing protected commodities are always connected to tractors during shipment except when stopped at a DOD activity for loading or unloading, a carrier's terminal for servicing, a carrier-designated point where driver(s) or qualified carrier representative maintains continuous surveillance over the shipment, or a qualified safe haven-or refuge location.
c. When requested by the shipper for reasons of security, carrier agrees to cover the shipment with a carrier-provided tarpaulin. Protective tarping for security reasons is an accessorial service.
6. Safety.
a. A “satisfactory” safety rating will be maintained with the Federal Highway Administration, Department of Transportation and/or with the appropriate state agency or commission in the case of intrastate transport. Safety ratings which are “unsatisfactory,” “conditional,” “insufficient information,” or “not rated” will not be accepted.
b. Carrier agrees to notify the consignor and the consignee named on the GBL immediately by telephone of an accident, incident or significant delay. The information to be reported will include origin/destination, GBL/CBL number, shipping paper information, time and place of occurrence and other pertinent accident details. Carrier will notify the MTMC area command annotated on the GBL within one half (1/2) hour after notification of the consignor and consignee, and provide status updates as required. The MTMC HOTLINE telephone numbers are as follows:
c. Carrier agrees to provide the driver(s) transporting protected commodities an emergency telephone number (indicated on the last page of this Agreement) which, when used at any time (24 hours a day, 7 days a week), will reach a qualified carrier representative who will be able to provide information and assistance. MTMC will be immediately notified if this telephone number should be changed. Carrier also agrees to equip the vehicle transporting the material with communications equipment (CB radio, mobile phone, etc.) capable of being used to obtain assistance in an emergency.
7. Driver Requirements. a. Carrier agrees to ensure that the driver(s) employed to transport protected commodities requiring a TPS be 21 years of age and have a minimum of one year of experience driving tractor/trailer equipment under various driving conditions.
b. Carrier agrees to ensure that the driver(s) employed to transport protected commodities requiring a TPS carry a valid motor vehicle operator's license issued by his/her state of domicile, a certificate of physical examination issued during the preceding 24 months, and an employee record card, or similar document, one of which must contain the driver's photograph.
c. Carrier agrees to ensure driver(s) will carry a company picture identification card to verify affiliation with the carrier named on the Government Bill of Lading (GBL). The driver identification requirements for those carriers cleared to handle SECRET shipments will be in accordance with Paragraph 5-410 of the DOD Industrial Security Manual (DOD 5220.22-M) and Paragraph 11a(10) of the Carrier Supplement to the DOD Industrial Security Manual (DOD 5220.22-C).
8. Equipment. a.Trip-leased equipment, with or without drivers, will not be used to transport protected commodities for the account of the DOD. Exceptions for the use of intermittent or occasional drivers in 49 CFR 391.63 will not apply to any DOD movement. Any equipment, with or without drivers, leased to augment carrier-owned equipment will be on a not less than 90-day noncancellable basis.
b. A copy of the equipment lease agreement must be carried in the vehicle of the unit transporting these commodities. (Facsimile, Xerox, or otherwise reproduced copies, are not acceptable.) Interchange agreements which originate at origin will not be accepted. The lease must be complete at time of pick up and should require no further information to be completed by the driver. Failure to comply with this requirement or attempted abuse of this requirement could result in the carrier's participation in this type traffic to be immediately revoked and up to nationwide disqualification on all DOD freight shipments should further action under the Carrier Performance Program be deemed appropriate.
9. Shipment. a. Carrier agrees to provide the appropriate TPS when requested by a DOD shipper. Carrier further agrees to perform the TPS as defined in the applicable Military Traffic Management Command Freight Traffic Rules Publication (MFTRP No. 1A) or reissues thereto. A TPS is any one of the following services or any combination thereof:
b. Carrier agrees that all shipments of protected commodities D14 and/or PS will only be moved in direct single line-haul service. Transportation involving an interchange service may be used, however, if the shipment is under DD or CS.
c. Carrier agrees to provide exclusive use of vehicle or dromedary service for all shipments requiring SM with DN and/or PS. The motor vehicle or dromedary furnished will be devoted exclusively to the transportation of the tendered shipment without seal or lock breakage, and without transfer of jading for the convenience of the carrier.
d. Carrier agrees to maintain an Signature and Tally Record (ST) (DD Form 1907) for all shipments of protected commodities requiring a TPS. Furnishing of the ST is an integral part of a TPS to be provided by the carrier. Carrier agrees to ensure that each person responsible for the proper handling of the shipment signs the ST at the time he/she assumes responsibility. All drivers transporting such shipment must sign the ST. When used with DD, both drivers are required to sign the ST upon original receipt.
e. Carrier agrees to be responsible for shipments from origin to ultimate destination. The carrier also remains responsible for shipments placed in a safe haven or refuge location. Carrier agrees not to disclose any information to unauthorized persons concerning the nature, kind, quantity, destination, consignee or routing of any protected commodities shipment tendered to it. The carrier further agrees to provide, at no additional cost to the Government, the status of any shipment within 24 hours after an inquiry is made.
10. Carrier Performance. Carrier agrees that carrier's equipment, performance, and standards of service will conform with its obligations under Federal, State and local law and regulation as well as with the guidelines found in the Defense Traffic Management Regulation (DTMR) and this Agreement. The carrier fully understands its obligation to remain current in its knowledge of service standards. The carrier accepts the Government's right to revoke approval, declare ineligible, nonuse, or disqualify the carrier for unsatisfactory service subsequent to approval or for any other operating deficiency, or for noncompliance with terms of-the Agreement or terms of negotiated agreements, tariffs, tenders, bills of lading or similar arrangements determining the relationship of the parties, or for the publication or assessment of unreasonable rates, charges, rules, descriptions, classifications, practices, or other unreasonable provisions of tariffs/ tenders. Rules governing the Carrier Performance Program are found in MTMC Regulation 15-1, and Army Regulation 55-355, DTMR. If a carrier is removed or disqualified for 6 months or more, it will have to be requalified.
11. Terms of the Agreement. a. The terms of this Agreement will be applicable to each shipment.
b. This agreement shall be effective from the date of approval by MTMC, until terminated. Termination is effective upon receipt of written notice by either party.
c. Nothing in this Agreement will be construed as a guarantee by the Government of any particular volume of traffic.
d. The carrier agrees to immediately notify MTMC of any changes in ownership, in affiliations, executive officers, and/or board members, and carrier name. Carrier understands that failure to notify MTMC shall be grounds for immediate revocation of the carrier's approval and their participation in the movement of DOD freight.
12. Additional Specialized Requirements. The terms of this Agreement will not prevent different or additional requirements with respect to negotiated agreements or added requirements for other types of service and/or commodities.
13. Inquiries. Inquiries may be referred to: Commander, Military Traffic Management Command, ATTN: MTIN-FF, 5611 Columbia Pike, Falls Church, Virginia 22041-5050.
14. Carrier Acknowledgment and Acceptance. The certifying carrier official agrees to ensure the appropriate company officials and employees are familiar with the requirements, terms and conditions of this Agreement and are in full compliance with the applicable provisions herein. Any information found to be falsely represented in the Motor Carrier Qualification Form, the attachments or during the qualification procedures, to include additional requirements of this Agreement, shall be grounds for automatic revocation of this Agreement and immediate non-use of the carrier, the affiliated companies, division and entities.
I,
Issuing State—for example—PA—
1. The undersigned, who is duly authorized and empowered to act on behalf of
2. Approval and Revocation. a. Forwarder understands that its initial approval and retention of approval are contingent upon establishing and maintaining, to MTMC's satisfaction, sufficient resources to support its proposed scope of operations and services. Sufficient resources include personnel, facilities, carriers with adequate equipment, and finances to handle the traffic anticipated by DOD/MTMC under the forwarder's proposed scope of operations in accordance with the service requirements of the shipper.
b. The forwarder understands that MTMC may revoke approval at any time upon discovery of grounds for ineligibility or disqualification. The forwarder further understands that it will not be authorized to participate in any traffic which requires a Transportation Protective Service.
c. In addition to the initial evaluation, the forwarder agrees that it will cooperate with MTMC follow-up evaluations at any time subsequent to signing this Agreement to confirm continued eligibility.
d. The forwarder agrees and certifies that neither the owners, company, corporate officials, nor any affiliation or subsidiary thereof are currently debarred or suspended, disqualified by a MTMC General Freight Board, or placed in non-use by MTMC from doing business with DOD.
3. Lawful Performance. a. Forwarder agrees to comply with all applicable federal, state, municipal and other local laws and regulations. No fines, charges, or assessments for overloaded vehicles or other violations of applicable laws and regulations will be passed to, or be paid by any agency of the Federal Government.
b. The forwarder agrees to keep current and on file a list of all carriers to be used in the transport of DOD freight shipments. This list will contain, as a minimum, the company's name, president/vice president's name, operating authority number, corporate office address, telephone number and a designated 24-hour on-call point of contact in the event of an accident or emergency situation. MTMC can direct forwarder not to use specific carriers in the movement of DOD freight shipments.
c. The forwarder further agrees and certifies that it will not use any carrier which has been debarred, suspended by the Government or which has been placed in non-use or disqualified by MTMC from doing business with the DOD for the movement of any DOD freight shipments.
4. Operations. The forwarder agrees and certifies that it is operating as a forwarder as defined herein. If incorporated, evidence of incorporation, bearing the official seal of
5. Insurance. a. The forwarder agrees to maintain a minimum of $1,000,000 public liability insurance and $250,000 cargo insurance for loss and damage of Government freight. A copy of the certificate of insurance must be on file with MTMC, ATTN: MTIN-FF, prior to any performance of service by the forwarder.
b. The insurance, carried in the name of the forwarder, will be in force at all times while this Agreement is in effect or until such time as the forwarder cancels all tenders. The forwarder agrees to ensure that the policies include a provision requiring the insurer to notify MTMC prior to any performance of service by the carrier. The certificate holder block of the form will indicate that MTMC, 5611 Columbia Pike, Falls Church, Virginia 22041-5050, ATTN: MTIN-FF, will be notified in writing, 30 days in advance of any change or cancellation. The deductible portion will be shown on the certificate.
c. The insurance underwriter must have a policyholder's rating in the Best's Insurance Guide, listed in the Fiscal Service Treasury Department Circular 570, Listing of Surety Companies. self-Insurance will not be accepted.
6. Performance Bond. Forwarder agrees to provide MTMC with a Performance Bond. The bond secures performance and fulfillment of the forwarder's obligation. It will cover default, abandoned shipments, bankruptcy and reprocurement costs. The bond will not be utilized for operational problems such as late pick up or delivery, excessive transit time, refusals, no shows, improper/inadequate equipment or claims for lost or damaged cargo. The bond must be issued by a surety company listed in the Fiscal service, Treasury Department Circular No. 570. The sum of the bond shall be no less than $100,000. The bond must be completed on the form provided by MTMC and will be continuous until cancelled. MTMC will be notified, in writing, 30 days in advance of any change or cancellation. A letter of intent by the surety company is required with the initial application. Upon MTMC approval forwarder agrees to submit the performance bond before the Tender of Service will be accepted.
7. Safety. a. The forwarder agrees not to use any carrier that has an “unsatisfactory” safety rating with the Federal Highway Administration, Department of Transportation, and if it is an intrastate motor carrier, with the appropriate state agency.
b. Shipments will be delivered in direct service without delay to the destination shown on the Government Bills of Lading unless consignee or consignor directs diversion of the shipment to a new or different destination. Deliveries will be made during the shipper's normal business hours.
c. The forwarder agrees to not divulge any information to unauthorized persons concerning the nature and movements of any shipment tendered to it.
d. The forwarder agrees to notify within 24 hours, the consignor and consignee named by the Government bill of Lading (GBL) or Commercial Bill of Lading (CBL) of cargo loss, damage, or unusual delay. Information reported will include origin/ destination, GBL/CBL number, shipping paper information, time and place of occurrence, and other pertinent details. Upon request, the forwarder agrees to ensure MTMC is furnished a copy of accident reports submitted to Department of Transportation on Form MCS 50-T (Property).
e. The forwarder agrees to have in place a company-wide safety management program. Forwarder safety program will comply with applicable Federal, State and local statutes or requirements. Safety programs at the company-wide or terminal level may be subject to evaluation by DOD representatives. The forwarder further agrees to permit unannounced safety inspections of its facilities, terminals, equipment, employees, and procedures by DOD civilian, military personnel, or DOD contract employees.
8. Reserved.
9. Equipment. The forwarder agrees to ensure equipment is spotted for loading at the time and place requested. The Government reserves the right to reject the utilization of any equipment placed for loading by the forwarder if it does not, upon inspection, meet specifications and requirements for the particular shipment involved (size, cube, cleanliness, mechanical condition, etc.).
10. Shipment. The Forwarder agrees to provide, at no additional cost to the government, the status of any shipment within 24 hours after an inquiry is made. Further, the forwarder agrees to not divulge any information to unauthorized persons concerning the nature and movement of any DOD shipment.
11. Documentation. a. Forwarder agrees to accept Government Bills of Lading on which freight charges will be paid by the Government, and will be bound by all terms and conditions stated thereon.
b.The forwarder agrees to comply with the provisions of documentation prelodging in effect at Military Ocean Terminals which cargo is consigned for further movement overseas. (Prelodging is the submission of advance shipment documents which identifies the shipment to the Military Ocean Terminal prior to arrival of the cargo at the terminal to permit preparation of the terminal documentation.) Instructions will be provided by the consignees to furnish certain data at least 24-hours in advance of cargo arrival at the terminal.
12. Loss & Damage. The forwarder agrees to be fully liable for delivery of all cargo in the same condition as received at origin, except loss or damage caused by act of God, public enemy act, omission of shipper, inherent vice or detrimental changes due to nature of commodity, or natural shrinkage. Forwarder agrees to settle promptly, claims for loss or damage. The forwarder also agrees to provide the status of any shipment tendered to them within 24-hours after an inquiry is made.
13. Standard Tender of Service. a. The forwarder agrees to comply with the preparation and filing instructions and applicable freight traffic rules publications issued by MTMC. Forwarder understands that MTMC will reject tenders not in compliance with these instructions.
b. Forwarder agrees to publish a street address where the company office is located in lieu of a post office box number. The Military Traffic Management Command must be advised of any change in address. Failure to do so is grounds to discontinue the use of the forwarder.
c. Forwarder understands that tenders inadvertently accepted and distributed for use and not in compliance with this agreement, the provisions contained in the standard Tender of Freight Services (MT Form 364-R), or the applicable MTMC Freight Traffic Rules Publication, and supplements thereof, will be subject to immediate removal or non-use until corrections are made. The issuing forwarder will be advised when tenders are removed under these circumstances.
14. Rates. a. Forwarder agrees to transport Government shipments at its lowest effective charge named in the tender applicable on the commodity transported, whether or not the rate tender is referenced on the Government bill of lading.
b. The forwarder agrees to publish through rates guaranteed for at least 30 days. These rates must be filed with MTMC HQ, Eastern Area, ATTN: MTE-IN, Bayonne, New Jersey 07002-5302. The forwarder must publish all rates, charges, and accessorial services on a “Department of Defense standard Tender of Freight Services”, MT Form 364-R and must comply with the tender preparation instructions. (Only services annotated with a charge in the tender will be paid by the shipper.)
c. The forwarder agrees to promptly refund all uncontested overcharges to the Government and authorizes the Government to deduct the amount of overcharges from any amount subsequently found to be due the forwarder.
d. The Government reserves the right to pursue administrative claims directly with forwarders under the Interstate Commerce Act or other authorities.
15. Carrier Performance. a. Forwarder agrees that its performance, and standards of service will conform with its obligations under Federal, State and local law and regulation as well as with the guidelines found in the Defense Traffic Management Regulation (DTMR) and this Agreement. The forwarder fully understands its obligation to remain current in its knowledge of service standards. The forwarder accepts the Government's right to revoke approval, declare ineligible, non-use, or disqualify the carrier for unsatisfactory service for any operating deficiency, noncompliance with terms of this Agreement or terms of any negotiated agreements, tariffs, tenders, bills of lading or similar arrangements determining the relationship of the parties, or for the publication or assessment of unreasonable rates, charges, rules, descriptions, classifications, practices, or other unreasonable provisions of tariffs/tenders. Rules governing the Carrier Performance Program are found in MTMC Regulation 15-1, and Army Regulation 55-355, DTMR-. If a forwarder is removed or disqualified for 6 months or more, it will have to be re-qualified.
b. Failure or nonperformance by the forwarder with any of the terms or conditions of service will constitute a breach of this Agreement. The Government reserves the right to disqualify the forwarder for unsatisfactory service until such time as the forwarder establishes to the satisfaction of DOD that the operating or other deficiency(s) has been corrected.
16. General Provisions. That the forwarder must have a valid Standard Carrier Alpha Code (SCAC) and use it on all DOD billing documents to identify the forwarder. When a company holding the appropriate authority has operating divisions each with its own unique SCAC, each such division is required to execute a separate agreement with MTMC governing the transportation of protected commodities.
17. Terms of the Agreement. a. The terms of this Agreement will be applicable to each shipment.
b. This Agreement shall be effective from the date of acknowledgment by the Military Traffic Management Command, until terminated upon receipt of written notice by either party.
c. Nothing in this Agreement will be construed as a guarantee by the Government of any particular volume of traffic.
d. The forwarder agrees to immediately notify MTMC of any changes in ownership, in affiliations, executive officers, and/or board members, and forwarder name. Forwarder understands that failure to notify MTMC shall be grounds for immediate revocation of the forwarder's approval and their participation in the movement of DOD freight.
18. Additional specialized Requirements. The terms of this Agreement will not prevent different or additional requirements with respect to negotiated agreements or
19. Inquires. Inquiries may be referred to Commander, Military Traffic Management Command, Attention: MTIN-FF, 5611 Columbia Pike, Falls Church, VA 22041-5050.
20. Forwarder Acknowledgment and Acceptance. a. The undersigned forwarder official, by affixing signature hereto, states that he has read and understands the general and specific terms and conditions of service outlined and agrees to provide service in accordance with such terms or conditions. Any information found to be falsely represented in the Qualification Form, the attachments or during the qualification procedures, to include additional requirements of this Agreement, shall be grounds for automatic revocation of this Agreement and immediate non-use of the forwarder, the affiliated companies, division and entities.
I,
1. The undersigned, who is duly authorized and empowered to act on behalf of
2. Approval and Revocation. a. Agent understands that its initial approval and retention of approval are contingent upon establishing and maintaining, to MTMC's satisfaction, sufficient resources to support its proposed scope of operations and services. Sufficient resource include personnel, facilities, carriers with adequate equipment, and finances to handle the traffic anticipated by DOD/MTMC under the agent's proposed scope of operations in accordance with the service requirements of the shipper.
b. The agent understands that MTMC may revoke approval at any time upon discovery of grounds for ineligibility or disqualification. The agent further understands that it will not be authorized to participate in any traffic which requires a Transportation Protective Service.
c. In addition to the initial evaluation, the agent agrees that it will cooperate with MTMC follow-up evaluations at any time subsequent to signing this Agreement to confirm continued eligibility.
d. The agent agrees and certifies that neither the owners, company, corporate officials, nor any affiliation or subsidiary thereof are currently debarred or suspended disqualified by a MTMC General Freight Board, or placed in non-use by MTMC from doing business with DOD.
3. Lawful Performance. a. The agent agrees to comply with all applicable federal, state, municipal and other local laws and regulations. No fines, charges, or assessments for overloaded vehicles or other violations of applicable laws and regulations will be passed to, or be paid by any agency of the Federal Government.
b. The agent agrees to keep current and on file a list of all carriers to be used in the transport of DOD freight shipments. This list will contain, as a minimum, the company's name, president/vice president's name, operating authority number, corporate office address, telephone number and a designated 24-hour on-call point of contact in the event of an accident or emergency situation. MTMC can direct agent not to use specific carriers in the movement of DOD freight shipments.
c. The agent further agrees and certifies that it will not use any carrier which has been debarred, suspended by the Government or which has been placed in non-use or disqualified by MTMC from doing business with the DOD for the movement of any DOD freight shipments.
4. Operations. The agent agrees and certifies that it is operating as a shipper agent as defined herein. If incorporated, evidence of incorporation, beading the official seal of the state in which filed, Articles of Incorporation, listing all the officers of the corporation are attached and certified to be true, correct and current.
5. Insurance. a. The agent agrees to maintain a minimum of $1,000,000 public liability insurance and $250,000 cargo insurance for loss and damage of Government freight. A copy of the certificate of insurance must be on file with MTMC, ATTN: MTIN-FF, prior to any performance of service by the agent.
b. The insurance must be carried in the name of the agent and will be in force at all times while this Agreement is in effect or until such time as the agent cancels all tenders. The agent agrees to ensure that the policies include a provision requiring the insurer to notify MTMC prior to any performance of service by the carrier. Changes, renewal and cancellation notices must also be sent to MTMC, 5611 Columbia Pike, Falls Church, Virginia 22041-5050, ATTN: MT-INFF. The Government will be given 30 days notice prior to any cancellation or material changes in insurance coverages.
c. The insurance underwriter must have a policyholder's rating in the Best's Insurance Guide, listed in the Fiscal Service. Treasury Department Circular 570, Listing of Surety Companies. Self-Insurance will not be accepted.
6. Performance Bond. Agent agrees to provide MTMC with a Performance Bond. The bond secures performance and fulfillment of the agent's obligation. It will cover default, abandoned shipments, bankruptcy and re-procurement costs. The bond will not be utilized for operational problems such as late pick up or delivery, excessive transit time, refusals, no shows, improper/inadequate equipment or claims for lost or damaged cargo. The bond must be issued by a surety company listed in the Fiscal Service, Treasury Department Circular No. 570. The sum of the bond shall be no less than $100,000. The bond must be completed on the form provided by MTMC and will be Continuous until cancelled. MTMC will be notified, in writing, 30 days in advance of any change or cancellation. A letter of intent by the surety company is required with the initial application. Upon MTMC approval agent will submit the Performance Bond before the Tender of Service will be accepted.
7. Safety. a. The agent agrees not to use any carrier that has an “unsatisfactory” safety rating with the Federal Highway Administration, Department of Transportation, and if it is an intrastate motor carrier, with the appropriate state agency.
b. Shipments will be delivered in direct service without delay to the destination shown on the Government Bills of Lading unless consignee or consignor directs diversion of the shipment to a new or different destination. Deliveries will be made during the shipper's normal business hours.
c. The agent agrees not to divulge any information to unauthorized persons concerning the nature and movements of any shipment tendered to it.
d. The agent agrees to notify the consignor and consignee named by the Government Bill of Lading (GBL) or Commercial Bill of Lading (CBL) of cargo loss, damage, or unusual delay. Information reported will include origin/destination, GBL/CBL number, shipping paper information, time and place of occurrence, and other pertinent details. Upon request, the agent agrees to ensure MTMC is furnished a copy of accident reports submitted to Department of Transportation on Form MCS 50-T (Property).
e. The agent agrees to have in place a company-wide safety Management program. Agent safety program will comply with applicable Federal, State and local statutes or requirements. Safety programs at the company-wide or terminal level may be subject to evaluation by DOD representatives. The agent further agrees to permit unannounced safety inspections of its facilities, terminals, equipment, employees, and procedures by DOD civilian, military personnel, or DOD contract employees.
8. Reserved.
9. Equipment. The agent agrees to ensure equipment is spotted or loading at the time and place requested. The Government reserves the right to reject the utilization of any equipment placed for loading by the agent if it does not, upon inspection, meet specifications and requirements for the particular shipment involved (size, cube, cleanliness, mechanical condition, etc.).
10. Shipment. The agent agrees to provide, at no additional cost to the government, the status of any shipment within 24 hours after an inquiry is made. Further, the agent agrees to not divulge any information to unauthorized persons concerning the nature and movement of any DOD shipment.
11. Documentation. a. Agent agrees to accept Government bills of lading on which freight charges will be paid by the Government, and will be bound by all terms and conditions stated thereon.
b. The agent agrees to comply with the provisions of documentation prelodging in effect at Military Ocean Terminals which cargo is consigned for further movement overseas. (Prelodging is the submission of advance shipment documents which identifies the shipment to the Military Ocean Terminal prior to arrival of the cargo at the terminal to permit preparation of the terminal documentation.) Instructions will be provided by the consignees to furnish certain data at least 24-hours in advance of cargo arrival at the terminal.
12. Loss & Damage. The agent agrees to be fully liable for delivery of all cargo in the same condition as received at origin, except loss or damage caused by act of God, public enemy act, omission of shipper, inherent vice or detrimental changes due to nature of commodity, or natural shrinkage. Agent agrees to settle promptly, claims for loss or damage. The agent also agrees to provide the status of any shipment tendered to them within 24-hours after an inquiry is made.
13. Standard Tender. a. The agent agrees to comply with the preparation and filing instructions and applicable freight traffic rules publications issued by MTMC. The agent understands that MTMC will reject tenders not in compliance with these instructions.
b. Agent agrees to publish a street address where the company office is located in lieu of a post office box number. The Military Traffic Management Command must be advised of any change in address. Failure to do so is grounds to discontinue the use of the agent.
c. Agent understands that tenders inadvertently accepted and distributed for use and not in compliance with this agreement, the provisions contained in the Standard Tender of Freight Services (MT Form 364-R), or the applicable MTMC Freight Traffic Rules Publication MFTRP No. 1A, and supplements thereof, will be subject to immediate removal or non-use until corrections are made. The issuing agent will be advised when tenders are removed under these circumstances.
14. Rates. a. Agent agrees to transport Government shipments at its lowest effective charge named in the tender applicable on the commodity transported, whether or not the rate tender is referenced on the Government bill of lading.
b. The agent agrees to publish through rates guaranteed for at least 30 days. These rates must be filed with MTMC, HQ, Eastern Area, ATTN: MTE-IN, Bayonne, New Jersey 07002-5302. The agent must publish all rates, charges, and accessorial services on a “Department of Defense Standard Tender of Freight Services”, MT Form 364-R and must comply with the tender preparation instructions. (Only services annotated with a charge in the tender will be paid by the shipper. )
c. The agent agrees to promptly refund all uncontested overcharges to the Government and authorizes the Government to deduct the amount of overcharges from any amount subsequently found to be due the agent.
d. The Government reserves the right to pursue administrative claims directly with agents under the Interstate Commerce Act or other authorities.
15. Carrier Performance. a. Agent agrees that its performance, and standards of service will conform with its obligations under Federal, State and local law and regulation as well as with the guidelines found in the Defense Traffic Management Regulation (DTMR) and this Agreement. The agent fully understands its obligation to remain current in its knowledge of service standards. The agent accepts the Government's right to revoke approval, declare ineligible, non-use, or disqualify the agent for unsatisfactory service for any operating deficiency, noncompliance with terms of this Agreement or terms of any negotiated agreements, tariffs, tenders, bills of lading or similar arrangements determining the relationship of the parties, or for the publication or assessment of unreasonable rates, charges, rules, descriptions, classifications, practices, or other unreasonable provisions of tariffs/tenders. Rules governing the Carrier Performance Program are found in MTMC Regulation 15-1, and Army Regulation 55-355, DTMR. If an agent is removed or disqualified for 6 months or more, it will have to be re-qualified.
b. Failure or nonperformance by the agent with any of the terms or conditions of service will constitute a breach of this Agreement. The Government reserves the right to disqualify the agent for unsatisfactory service until such time as the agent establishes to the satisfaction of DOD that: the operating or other deficiency(s) has been corrected.
16. General Provisions. That the agent must agree to have a valid Standard Carrier Alpha Code (SCAC) and use it on all DOD
17. Terms of the Agreement. a. The terms of this Agreement will be applicable to each shipment.
b. This Agreement shall be effective from the date of acknowledgment by the Military Traffic Management Command, until terminated upon receipt of written notice by either party.
c. Nothing in this Agreement will be construed as a guarantee by the Government of any particular volume of traffic.
18. Additional Specialized Requirements. The terms of this Agreement will not prevent different or additional requirements with respect to negotiated agreements or added requirements for other types of service and/or commodities.
19. Inquiries may be referred to Commander, Military Traffic Management Command, Attention: MTIN-FF, 5611 Columbia Pike, Falls Church, VA 22041-5050.
20. Agent Acknowledgment and Acceptance. a. The undersigned official, by affixing signature hereto, states that he has read and understands the general and specific terms and conditions of service outlined and agrees to provide service in accordance with such terms or conditions. Any information found to be falsely represented in the Qualification Form, the attachments or during the qualification procedures, to include additional requirements of this Agreement, shall be grounds for automatic revocation of this Agreement and immediate non-use of the agent, the affiliated companies, division and entities.
I,
1. The undersigned, who is duly authorized and empowered to act on behalf of:
2. Approval and Revocation.
a. Forwarder understands that its initial approval and retention of approval are contingent upon establishing and maintaining to MTMC's satisfaction, sufficient resources to support its proposed scope of operations and services. Sufficient resources include equipment, personnel, facilities, and finances to handle traffic anticipated by DOD/MTMC under the Forwarder's proposed scope of operations in accordance with the service requirements of the shipper.
b. The Forwarder understands that MTMC may revoke approval at any time upon discovery of grounds for ineligibility or disqualification.
c. In addition to the initial evaluation, the forwarder agrees that it will cooperate with MTMC follow-up evaluations at any time subsequent to signing this Agreement to confirm continued eligibility.
d. Forwarder agrees and certifies that neither the owners, company, corporate officials, nor any affiliation or subsidiary thereof are currently debarred or suspended, disqualified by a MTMC Carrier Review Board (CRB), or placed in non-use by MTMC from doing business with DOD.
3. Lawful Performance.
a. Forwarder agrees to comply with all applicable Federal, State, municipal, and other local laws and regulations. No fines, charges, or assessments for overloaded vehicles or other violations of applicable laws and regulations will be passed to or be paid by any agency of the Federal Government.
b. The Forwarder agrees to keep current and on file a list of all carriers to be used in the transport of DOD freight shipments. This list will contain, as a minimum, the company's name, president/vice president's name(s), operating authority number, corporate office address, telephone number and a designated 24-hour on call point of contact in the event of an accident or emergency situation. MTMC can direct the Forwarder not to use specific carriers in the movement of DOD freight shipments.
c. Forwarder further agrees and certifies that it will only use carriers that are approved through the Carrier Qualification Program (CQP) to transport DOD freight, and will not use any carrier that had been debarred, suspended by the Government or which has been placed in nonuse or disqualified any MTMC from doing business with the DOD for the movement of any DOD freight shipments.
4. Operations. Forwarder agrees and certifies that it is operating as a forwarder as defined herein. If incorporated, evidence of incorporation, bearing the official seal of the state in which filed, Articles of Incorporation, listing all the officers of the corporation is attached and certified to be true, correct and current.
5. Insurance.
a. The Forwarder agrees to maintain a minimum of $1 million public liability insurance and $250,000 cargo insurance for loss and damage of Government freight. A copy of the certificate of insurance must be on file with MTMC, ATTN: MTOP-QQ prior to any performance of service by the forwarder.
b. The insurance, carried in the name of Forwarder, will be in force at all times while this Agreement is in effect or until such time as the Forwarder cancels all tenders. Forwarder agrees to ensure that the policies include a provision requiring the insurer to notify MTMC prior to any performance of service by the carrier. The certificate holder block of the form will indicate that MTMC, 5611 Columbia Pike, ATTN: MTOP-QQ, Falls Church, VA 22041-5050, will be notified in writing, 30 days in advance of any change or cancellation. The deductible portion will be shown on the certificate.
c. The insurance underwriter must have a policy holder's rating in the Best's Insurance Guide, listed in the Fiscal Service Treasury Department Circular 570, Listing of Surety companies. Self-Insurance will not be accepted.
6. Performance Bond.
a. Forwarder agrees to provide MTMC with a Performance Bond. The bond secures performance and fulfillment of the Forwarder's obligation to deliver DOD freight to destination. It will cover default, abandoned shipments, bankruptcy and reprocurement costs. The bond will not be utilized for operational problems such as late pickup or delivery, excessive transit time, refusals, no shows, improper or inadequate equipment or claims for lost or damaged cargo. The bond must be issued by a surety company listed in the Fiscal Service Treasury Department Circular No. 570. The sum of the bond shall be no less than $100,000. The bond must be completed on the form provided by MTMC and will be continuous until cancelled. MTMC will be notified, in writing, 30 days in advance of any change or cancellation. A letter of intent (LOI), by the surety company, is required with the initial application. Upon MTMC approval, the Forwarder will submit the performance bond before the Tender of Service will be accepted.
7. Safety.
a. Forwarder agrees not to use any carrier that has an “unsatisfactory” safety rating with the Federal Highway Administration (FHWA), Department of Transportation (DOT), and if it is an intrastate motor carrier, with the appropriate state agency.
b. Shipments will be delivered in direct service without delay to the destination shown on the Government Bill of Lading (GBL) unless consignor or consignee directs diversion of the shipment to a new or different destination. Deliveries will be made during the shipper's normal business hours.
c. Forwarder agrees to not divulge any information to unauthorized persons concerning the nature and movement of any movement of shipment tendered to it.
d. The Forwarder agrees to notify, within 24-hours, the consignor and consignee named by GBL or Commercial Bill of Lading (CBL) of cargo loss, damage, or unusual delay. Information reported will include origin/destination, GBL/CBL number, shipping paper information, time and place of occurrence, and other pertinent details. Upon request, the Forwarder agrees to furnish MTMC a
e. Forwarder agrees to have in place a company-wide safety management program. Forwarder safety program will comply with applicable Federal, State and local statutes or requirements. Safety programs at the company-wide or terminal level may be subject to evaluation by DOD representatives. The Forwarder further agrees to permit unannounced safety inspections of its facilities, terminals, equipment, employees, and procedures by DOD civilian, military personnel, or DOD contract employees.
8. [Reserved.]
9. Equipment.
a. Forwarder agrees to ensure equipment is spotted for loading at the time and place requested. Civil Reserve Air Fleet (CRAF) carriers will be utilized to the maximum extent possible for the movement of DOD freight. The Government reserves the right to reject the utilization of any equipment placed for loading by the Forwarder if it does not, upon inspection meet the specifications and requirements for the particular shipment involved (sizes, cube, cleanliness, mechanical condition, etc.).
10. Shipment.
a. Further, the Forwarder agrees to not indulge any information to unauthorized persons concerning the nature and movement of any DOD shipment.
11. Documentation.
a. Forwarder agrees to accept GBLs and CBLs on which freight charges will be paid by the Government, and be bound by all terms stated thereon.
b. Forwarder agrees to comply with documentation prelodging procedures in effect at military terminals in which cargo is consigned for further movement overseas. (Prelodging is the submission of advance shipment documents that identify the shipments to the military terminals prior to arrival of the cargo at the terminal to permit preparation of the terminal documentation.) Instructions will be provided by the consignors to furnish certain data at least 24-hours in advance of cargo arrival at the terminal.
12. Loss and Damage.
a. The Forwarder agrees to be fully liable for delivery of all cargo in the same condition as received at origin, except loss or damage caused by an Act of God, public enemy act, omission of shipper, inherent vice or detrimental changes due to nature of commodity, or natural shrinkage. Forwarder agrees to settle promptly, claims for loss or damage. Forwarder also agrees to provide the status of any shipment tendered to them within 24-hours after an inquiry is made.
13. Standard Tender of Service.
a. The Forwarder agrees to comply with the preparation and filing instructions in applicable freight traffic rules publications issued by MTMC. Forwarder understands that MTMC will reject tenders not in compliance with these instructions.
b. The Forwarder agrees to publish a street address where the company office is located in lieu of post office box number. MTMC must be advised of any change in address. Failure to do so is grounds to discontinue use of the Forwarders.
c. Forwarder understands that tenders inadvertently accepted and distributed for use and not in compliance with this Agreement, the provisions continued in the Standard Tender of Freight Services MT Form 364-R, or the application MTMC Freight Rules Publication, and supplements thereof, will be advised when tenders are removed under these circumstances.
14. Rates.
a. Forwarder agrees to transport Government shipments at the lowest effective charge named in the tender applicable on the commodity transported, whether or not the rate tender is referenced on the GBL.
b. The Forwarder agrees to publish through rates guaranteed for at least 30 days. These rates must be filed with USTRANSCOM. The rates for movement of DOD cargo by air will be filed with the Air Mobility Command (AMC). The Forwarder must publish all rates, changes, and accessorial services on a DOD Standard Tender of Freight Services, MT Form 364-R and must comply with the tender preparation instructions. (Only services annotated with a charge in the tender will be paid by the shipper.)
c. The Forwarder agrees to promptly refund all uncontested overcharges to the Government and authorizes the Government to deduct the amount of overcharges from any amount subsequently found to be due the Forwarder.
d. The Government reserves the right to pursue administrative claims directly with Forwarders under the Interstate Commerce Act (ICC) or other authorities.
15. Carrier Performance.
a. The Forwarder agrees that it's equipment, performance, and standards of service will conform with its obligations under Federal, State and local law and regulation as well as with the guidelines found in the Defense Traffic Regulation (DTR) and this Agreement. The Forwarder fully understands its obligation to remain current in its knowledge of service standards. The Forwarder accepts the Government's right to revoke approval, declare ineligible, non-use, or disqualify the Forwarder for unsatisfactory service for any operating deficiency, noncompliance with terms of this Agreement or terms of any negotiated agreements, tariffs, tenders, bills of lading or similar arrangements determining the relationship of the parties, or for the publication or assessment of unreasonable rates, charges, rules, descriptions, classifications, practices, or other
b. Failure or nonperformance by the Forwarder with any of the terms or conditions of service will constitute a breach of this Agreement. The Government reserves the right to disqualify the Forwarder for unsatisfactory service until such time as the Forwarder establishes, to the satisfaction of DOD that the operating or other deficienc(ies) have been corrected.
16. General Provisions. That the Forwarder must have a valid Standard Carrier Alpha Code (SCAC) and use it on all DOD billing documents to identify the Forwarder. When a company holding the appropriate authority has operating divisions each with its own unique SCAC, each such division is required to execute a separate agreement with MTMC governing the transportation of protected commodities.
17. Terms of the Agreement.
a. The terms of this Agreement will be applicable to each shipment.
b. This Agreement shall be effective from the date of acknowledgment by the MTMC, until terminated upon receipt of written notice by either party.
c. Nothing in this Agreement will be construed as a guarantee, by the Government, of any volume traffic.
d. The Forwarder agrees to immediately notify MTMC of any changes in ownership, in affiliations, executive officers, and/or board members, and forwarder name. Forwarder understands that failure to notify MTMC shall be grounds for immediate revocation of the Forwarder's approval and their participation in the movement of DOD freight.
18. Additional Specialized Requirements. The terms of this Agreement will not prevent different or additional requirements with respect to negotiated agreements or added requirements for other types of service and/or commodities.
19. Inquiries. Inquiries may be referred to Commander, MTMC, 5611 Columbia Pike, Falls Church, Virginia 22041-5050, ATTN: MTOP-QQ.
20. Forwarder Acknowledgment and Acceptance.
a. The undersigned forwarder official, by affixing signature hereto, states that he has read and understands the general and specific terms and conditions of service outlined and agrees to provide service in accordance with such terms or conditions. Any information found to be falsely represented in the Qualification Form, the attachments or during the qualification procedures, to include additional requirements of this Agreement, shall be grounds for automatic revocation of this Agreement and immediate non-use of the carrier, the affiliated companies, division and entities.
Military Traffic Management Command Acknowledgment/Acceptance Signature and Title:
Pub. L. 81-193; 10 U.S.C. secs. 2574, 4308, 4506, 4507, 4627, and 4655, and Pub. L. 92-249.
For figures referred to in this part, see 42 FR 43807, Aug. 31, 1977.
(a)
(1) Prescribes procedures for loan of Army-owned property to recognized National Veterans' Organizations for National or State conventions as authorized by Pub. L. 81-193.
(2) Request for loans for National Youth Athletic or recreation tournaments sponsored by veterans’ organizations listed in the “Veterans Administration Bulletin 23 (ALPHA),” will be processed by parent veterans’ organizations.
(3) Loans are not authorized for other types of conventions or tournaments.
(b)
(1) Unoccupied barracks.
(2) Cots.
(3) Mattresses.
(4) Mattress covers.
(5) Blankets.
(6) Pillows.
(7) Chairs, folding.
(8) Tentage, only when unoccupied barracks are not available.
(c)
(2) The tenure of loan is limited to 15 days from the date of delivery, except under unusual circumstances. A narrative explanation will be provided to support loan requests for more than 15 days duration.
(3) Loan requests should be submitted by letter at least 45 days prior to required date, if practicable.
(4) Requests for loans will contain the following information:
(i) Name of veterans’ organization requesting the loan.
(ii) Location where the convention will be held.
(iii) Dates of duration of loan.
(iv) Number of individuals to be accommodated.
(v) Type and quantity of equipment required.
(vi) Type of convention, (State or National).
(vii) Complete instructions for delivery of equipment and address of requesting organizations.
(viii) Other pertinent information necessary to insure prompt delivery.
(d)
(1) When the availability of personal and real property is determined, notify the requesting veterans’ organization of the following:
(i) The items and quantities available for loan and the source of supply.
(ii) No compensation will be required by the Government for the use of real property.
(iii) No expense will be incurred by the United States Government in providing equipment and facilities on loan.
(iv) Costs of packaging, packing, transportation and handling from source of supply to destination and return will be borne by the requesting organization.
(v) All charges for utilities (gas, water, heat, and electricity) based on meter readings or such other methods
(vi) Charges which may accrue from loan of DLA/GSA material in accordance with paragraph III, AR 700-49/DSAR 4140.27, and GSA Order 4848.7 and Federal Property Management Regulations, subparagraph 101-27.5.
(vii) The Army will be reimbursed for any material not returned.
(viii) Costs of renovation and repair of items loaned will be borne by the requesting organization. Renovation and repair will be accomplished in accordance with agreement between the Army Commander and the loanee to assure expeditious return of items.
(ix) Transportation costs in connection with the repair and renovation of property will also be at the expense of the using organization.
(x) Assure that sufficient guards and such other personnel necessary to protect, maintain, and operate the equipment will be provided by the loanee.
(xi) The period of loan is limited to 15 days from date of delivery, except as provided for in paragraph (c) of this section.
(xii) Any building or barracks loaned will be utilized in place and will not be moved.
(xiii) Upon termination of use, the veterans’ organization will vacate the premises, remove its own property therefrom, and turn over all Government property.
(2) Specify a bond in an amount to insure safe return of real and personal property in the same condition as when borrowed. (In the case of personal property, this amount will be equal to the total value of the items based on current acquisition costs.)
(i) An agreement will be executed between the Army Commander and the Veterans' Organization if the terms of the loan are acceptable. A sample loan agreement is shown at figure 7-5 of this subchapter.
(ii) When the agreement has been executed and the bond furnished, requisitions will be submitted to the appropriate source of supply. Requisitions will indicate shipping destination furnished by the veterans’ organization. Transportation will be by commercial bills of lading on a collect basis.
(iii) Appoint a Property Book Officer to maintain accountability for the Government property furnished under this regulation.
(3) Property Book Officer will:
(i) Assume accountability from the document used in transferring property to the custody of the veterans’ organization.
(ii) Perform a joint inventory with the veterans’ organization representative. Survey any shortage or damages disclosed by the joint inventory in accordance with AR 735-11.
(iii) Maintain liaison with the veterans’ organization during the period of the loan.
(iv) Prepare, in cooperation with the veterans’ organization representative, an inventory of property being returned. Certify all copies of the receipt document with the veterans’ organization representative.
(v) Insure the return of all property at the expense of loanee to the supply source or to repair facilities.
(vi) Obtain a copy of receipted shipping document from the installation receiving the property.
(vii) Determine cost and make demand on the loanee for:
(A) Items lost, destroyed, or damaged.
(B) Costs of repair or renovation. Estimated costs will be obtained from the accountable activity.
(C) Comply with instructions contained in AR 700-49/DSAR 4140.27 in the application of condition A and/or B, C, and T items utilized.
(D) Ascertain that items lost in transit are reconciled prior to assessing charges. Where the loss is attributable to other than the loanee, charges should not be borne by the borrower.
(viii) Request payment from the loanee. Checks are to be made payable to the Treasurer of the United States. Upon receipt of payment, appropriate fiscal accounts will be credited. The Property Transaction Record will be closed and the Stock Record Accounts audited.
(ix) Deposit collections in accordance with instructions contained in AR 37-103. In the event payment is not received within a reasonable period, Report of Survey Action will be initiated in accordance with AR 735-11.
(x) Reimburse DLA/GSA for the cost of any repair, reconditioning and/or materiel not returned.
(a)
(1) Cites the statutory authority for, and prescribes the methods and conditions of sale of certain weapons, ammunition, and related items as specified herein.
(2) Applies to all sales of weapons and related material to individuals, organizations, and institutions, when authorized by the US Army Armament Materiel Readiness Command (ARRCOM), and overseas commanders.
(3) Provides that sales under this section will be limited to quantities of an item which authorized purchasers can put to their own use. It is not intended that property be sold under the provisions of this section for the purpose or resale or other disposition.
(4) Does not apply to sales of property determined to be surplus. (See AR 755 series.)
(b)
(c)
(1) Sales will be made without expense to the Government.
(i) All costs incident to sales (including packing, crating, handling, etc.) will be paid in advance by the purchaser.
(ii) All costs incident to shipment (transportation, parcel post charges, etc.) will also be paid by the customer.
(iii) Payment for items and charges incident to sale will be made only by cashier's check, certified check, bank money order, or postal money order made payable to the Treasurer of the United States.
(iv) For other than items of ammunition and ammunition components, cash will be acceptable when con-signee pickup is authorized or purchase is made in person.
(2) All financial transactions will be accomplished in accordance with applicable Department of the Army directives and regulations. Moneys collected for cost of items, as well as packing, crating, and handling, will be deposited as an appropriate reimbursement as prescribed in applicable regulations.
(3) Generally, all sales are final and, normally, the US Government assumes no obligation or responsibility for repair, replacement, or exchange, except as provided in AR 920-20. Purchasers will be so advised prior to making the sale. All weapons sold, however, will be safe for firing.
(4) Weapons sold at standard price will be supplied with equipment. Weapons sold at less than standard price will be supplied less equipment.
(5) Sales of specific items may be suspended at any time by the direction of CDR, ARRCOM.
(d)
(i) Upon approval, these items will be shipped from Army depots stocking such material, based upon availability of material. Customers will be furnished instructions for submission of remittance.
(ii) Upon receipt of proper remittance from eligible customers ARRCOM will issue the necessary documents directing shipment from an Army depot where the items are available.
(2) In implementing the subchapter, oversea commands should designate installations within the oversea command to which requests for purchase of ammunition and related material will be directed.
(3) Depots shipping weapons to individuals, Director of Civilian Marksmanship (DCM) affiliated rifle and pistol “clubs”, museums, veterans organizations, and other US Government agencies will annotate shipping documents with the serial number of all the weapons they ship. Firearms shipped will be reported to Commander,
(i) The transportation officer will ascertain estimated transportation costs, to include DA transportation security measures (costs) for shipment to destination. Such information will be transmitted by letter to consignee with request for acknowledgement that shipment will be accepted based on costs submitted.
(ii) Shipment will not be made unless consignee agrees to accept shipments. Refusal to accept shipment shall be reported to ARRCOM.
(4) CDR, ARRCOM is responsible for maintaining a record by serial number of all weapons reported by depot in accordance with paragraph (d)(3) of this section. He will establish procedures to screen purchase requests to insure compliance with any limitations established by this section.
(e)
(2) Sales will be limited to M1 service rifles, either national match grade or service grade. Only one such rifle and spare parts for it will be sold to an individual. No ammunition will be sold to individuals.
(3) Junior marksmanship clubs and junior marksmanship division affiliated within the Director of Civilian Marksmanship (DCM) pursuant to AR 920-20 may purchase limited quantities of .22 caliber ammunition.
(4) The DCM will determine the maximum quantity of such ammunition that clubs will be permitted to purchase in each fiscal year.
(5) Approved, non-profit summer camp organizations that are of a civic nature are allowed to purchase from the DCM at cost plus shipping and handling charges, 300 rounds of .22 caliber ammunition for each junior who is participating in a summer camp marksmanship program.
(6) Requests for purchase of ammunition by marksmanship clubs and summer camp organizations will be submitted to the DCM for approval. If he approves, the application will be forwarded to ARRCOM for processing. If it is disapproved, it is returned to applicant with reason(s) stated for disapproval.
(f)
(1) Be a member of a marksmanship club affiliated with the DCM (AR 920-20).
(2) Based upon regular competitive shooting, have an established status as a marksman as determined by the DCM.
(g)
(2) Upon receipt of a request, the Director of Civilian Marksmanship will forward to the individual a Certificate for Purchase of Firearms in the suggested format at figure 5-1 to be completed, notarized and returned. When returned with check or arrangements for payment, the Certificate will be referred for appropriate verification in the records of US Government agencies and for other investigation as required. This is done to insure that the sale of a weapon to the applicant is not likely to result in a violation of law. The Privacy Act Statement for Certificate of Purchase of Firearms (figure 5-2) will be made available to the individual supplying data on the Certificate for Purchase of Firearms (suggested format, figure 5-1). Prior to requesting the individual to supply data on the Certificate for Purchase of Firearms (suggested format, figure 5-1) the Privacy Act Statement for Certificate will be made available to the individual concerned. (The Privacy Act Statement will be reproduced locally on 8 x 10
(i) A purchase application will be denied if the applicant fails to meet all the conditions required in the Certificate.
(ii) If an application is denied, the applicant will be informed of the action and will be given an opportunity to submit additional information justifying approval of the application.
(iii) If the results of the investigation are favorable, the application will be forwarded to ARRCOM for processing.
(h) Marksmanship clubs affiliated with the DCM and individuals who are members of those clubs are authorized to purchase from the Army targets of types not otherwise available from commercial sources. Request for such purchases will be submitted to the Director of Civilian Marksmanship for approval and processing. Individuals who have in the past purchased rifles from the Army under the authority of 10 U.S.C. 4308(a)(5), may purchase spare parts for those rifles if the parts are available. Requests for purchase of spare parts will be submitted to the Director of Civilian Marksmanship for approval. If he/she approves the application, she/he will forward it to ARRCOM for processing. If he/she disapproves the application, she/he will return it to the applicant stating the reasons for disapproval. Current DA transportation security measures for weapons will be applied under procedures contained in paragraphs (d)(1) (i) and (ii) of this section.
(i)
(2) Application to purchase sabers under these provisions will be made in accordance with procedures established by the Superintendent.
(j)
(k)
(2) Under the provisions of 10, U.S.C. 4507, the Secretary of the Army may sell to designers who are nationals of the United States, serviceable ordnance and ordnance stores necessary in the development of designs for the Armed Forces. Designers will submit application to purchase to the appropriate Commodity Command.
(3) If any item normally requiring demilitarization pursuant to the Defense Disposal Manual (DoD 4160.21-M) and the AR 755-series is sold, a special condition of sale will prohibit further disposition by the purchaser without prior approval of the Deputy Chief of Staff for Logistics, Department of the Army.
(l)
(m)
(2) Approved applications for major items will be forwarded through Commander, U.S. Army Materiel Development and Readiness Command, ATTN: DRCMM-SP, to the Commander, U.S. Army Armament Mate-riel Readiness Command.
(a)
(b)
(2) Provisions for donations of surplus property to Scout organizations, including lists of classes of donable property, are contained in chapter III, part 3, Defense Disposal Manual (DOD 4160.21M).
(3) The loan of certain Army, Navy, Air Force and DLA equipment and the provision of transportation and other services for Jamborees is initially provided for by Pub. L. 92-249. Implementation on a current basis is made in DOD Directive 7420.1. Army implementation is provided as follows:
(i) Army stock fund in paragraph 2-6b(4), AR 37-111, Working Capital Fund-Army Stock Fund Uniform Policies, Principles and Procedures Governing Army Stock Fund Operations.
(ii) Non-stock fund in paragraph 2-18, AR 310-34, Equipment Authorization Policies and Criteria, and Common Table of Allowances.
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(2) Other departments (agencies) of the Federal Government are authorized under such regulations as may be prescribed by the Secretary (Administrator) thereof, to provide to the Boy Scouts of America (BSA), equipment and other services, under the same conditions and restrictions prescribed for the Secretary of Defense.
(j)
(2) The Commander-in-Chief/Commander, MACOM designated, on behalf of the Commander, DARCOM, representing the Secretary of Defense will enter into legal arrangements with the Boy Scouts of America for the loan of equipment and the providing of transportation and certain other services for Boy Scouts World and National Jamborees. National Jamborees include Jamborees conducted by and within the United States and also those conducted by and within foreign nations.
(3) The Commander-in-Chief/Commander, MACOM, will appoint a Property Book Officer who will maintain separate stock records in order to provide for a single final billing to the supported activity (Boy Scouts of America) for items consumed, lost, damaged or destroyed. The Department of the Army will not be billed for items obtained from other than Army sources, except medical supply losses. Bills for medical supply losses will be submitted to the US Army Area Surgeon for payment. He will establish liaison with the activity to be supported. The property book account will be established in accordance with section II, chapter 2, AR 710-2.
(4) The Commander - in - Chief, MACOM, will task the Army Area Surgeon for Medical Supply Support to the Jamborees. Each Surgeon designated should appoint an accountable officer and furnish the name, location, and routing identifier of a project office wherein medical supply problems can be resolved.
(5) The Property Book Officer is authorized direct communication with the source of supply, other military department liaison personnel and DARCOM ICP's to resolve routine supply problems.
(k)
(2) HQ, DARCOM will convert the informal list to a tentative Bill of Material and will furnish the respective Commodity Command that part of the Bill of Material for their items of logistical responsibility. A suggested format for the Bill of Material is included as figure 7-1. Local reproduction is authorized. Copies of the entire tentative Bill of Material will also be furnished to each of the military departments authorized to participate in the support of the encampments. The Bill of Material forwarded to the Commander - in - Chief / Commander, MACOM will be screened to determine inhouse availability prior to placing requisitions on CONUS supply points.
(3) At such time as item availability information is on hand and the sources to be used are determined (paragraph (m) of this section, a Bill of Material (figure 7-1) will be prepared by HQ, DARCOM, and forwarded to the Commander-in-chief/Commander, MACOM.
(4) The Bill of Material will list, by commodity command (military department), all items desired, identified by National Stock Number (NSN) description, quantity desired and required delivery date. The NSN will provide identification of the items required. Items will be identified by the Property Book Officer to the responsible commodity command or military department as indicated below:
(l)
(2) The Property Book Officer will also establish and maintain separate Property Transaction Records for items obtained from supply sources other than Army commodity commands, i.e., other Army installations, Department of the Navy, Department of the Air Force (figure 7-4).
(3) Each entry on the Property Transaction Record will be supported by appropriate documentation (commodity command: copies of shipping documents, copies of return documents and copies of surveillance inspection report—Property Book Officer: Requisition voucher files and hand receipt cards). This is particularly important for reconciliation purposes in order that all property received from each source will be returned to that source upon termination of each encampment.
(m)
(2) Concurrently, the Bill of Material will be screened within the MACOM to determine those items that can be obtained from assets available in the command.
(3) The Property Book Officer will requisition equipment and supplies from the source of supply as indicated by Commander, DARCOM in accordance with AR 725-50 or other separately furnished instructions. The requisition number, quantity requisitioned, stock number and source of supply will be entered in the Property Transaction
(4) Loan of General Services Administration (GSA) General Supply Fund Material—The Federal Property and Administrative Services Act of 1949, as amended, authorizes the Administrator, GSA to loan GSA General Supply Fund Material to the Department of Defense and other federal agencies. Loan shall be made to the extent that items are readily available and that such loans will not jeopardize the GSA stock inventory. The loan of GSA General Supply Fund Material shall normally be limited to 90 Calendar days. Requisitions for GSA material should be submitted to the nearest GSA Regional Office by the CINC/CDR MACOM.
(5) Formal accountability for all items shipped to the site of the activity will be retained by the appropriate accountable activity. Property and financial accounting will be in accordance with respective military department regulations governing loans.
(6) The shipping depot or other source will furnish a copy of the shipping document to the respective commodity command (military department) where the quantity charged, date shipped, condition of the property and total value will be posted to the Property Transaction Record.
(7) Upon receipt of the advance copy of the shipping document, the commodity command (military department) will post information to his Transaction Record, by source as in paragraph (l)(1) of this section.
(8) When the shipment is received, the Property Book Officer will inspect the property. A narrative statement of condition will be prepared if condition of the property is other than that indicated on the shipping document and referenced to the condition entry on the Property Transaction Record. The source of supply, as appropriate, will be immediately notified of overages or shortages and verified in condition, as provided in chapter 8, AR 735-11. The Property Book Officer will enter on the shipping document the quantity actually received when it differs from quantity shown as shipped and will post the quantities received to the property book record.
(9) Discrepancies between the quantity shipped by the depot and that received by the Property Book Officer and variance in condition will be reconciled as rapidly as possible and appropriate records will be brought into agreement. When shortage or damage is not attributable to the carrier, the Property Book Officer will immediately contact the responsible source of supply, furnishing the stock number and document number involved, together with an explanation of the discrepancy. Reconciliation is particularly important in order to ensure a common point of departure in determining charges to be assessed upon termination of the activity. Replacement shipments, when required, will be covered by appropriate shipping documents.
(10) Special Instructions for Defense Logistics Agency, Clothing and Textile Items. (See DSAR 4140.27/AR 700-49).
(n)
(2) All requisitions for items in question, will cite the appropriate project code and will be shipped by commercial bill of lading on a collect basis to all National Jamborees and World Jamborees held in the United States.
(3) Shipments to Boy Scout contingents at World Jamborees in foreign countries will be by Government bills of lading, unless otherwise specified by the Boy Scouts of America.
(4) All shipments directed to Boy Scout Jamborees will be routed by the most feasible means as determined by the shipper. Shipments will be consolidated to the maximum extent possible to assure the lowest charges available to the Boy Scouts of America.
(5) Separate shipping instructions will be provided for each Jamboree to assure that correct consignee and railhead addresses are furnished.
(6) Movement of Boy Scouts, Scouters, and officials living in the United States of America to a Jamboree within the United States of America or to a Jamboree in an oversea area shall be the responsibility of the Boy Scouts of America or the individuals concerned.
(7) No authority exists under Pub. L. 92-249 for the movement of Boy Scouts, Scouters, and officials via military capabilities other than those of the Military Airlift Command or the Military Sealift Command.
(o)
(2) The MSC is an industrial-funded organization and charges the military service for sealift services provided in accordance with established rates. The host command will be responsible to compensate the MSC for any equipment or material moved on MSC ships. The limitations inherent in Pub. L. 92-249 stipulate that transportation support provided will be at no cost to the Government. Under these directions, Boy Scout equipment or materiel is not authorized movement on a space available basis without prior approval of the Secretary of Defense. Such approval is not anticipated.
(3) All billings for transportation provided by MSC will be forwarded to the appropriate Commander-in-Chief/Commander of the support major Army command (MACOM). Reimbursement will be requested by the MACOM Commander from the Boy Scouts of America.
(p)
(2) Boy Scouts, Scouters, officials and their equipment will be moved after all space-required traffic, but before any space-available traffic.
(3) Each passenger is authorized the normal accompanying free baggage allowance of 66 pounds while traveling on MAC aircraft. It is not contemplated that any excess baggage allowance will be authorized.
(4) Transportation of Boy Scouts, Scouters, officials, and their equipment provided by MAC controlled aircraft will be reimbursed at the common user tariff rates assessed U.S. Government Traffic, as contained in AFR 76-11.
(5) On the basis of letters of authorization issued by the BSA, the BSA will monitor services provided by the Department of Defense. One copy of each BSA letter of authorization will be forwarded to the Commander, US Army Materiel Development and Readiness Command, ATTN: DRCMM-SP, 5001 Eisenhower Avenue, Alexandria, VA 22333, for planning purposes. This letter of authorization should specify whether one way or round trip transportation is requested.
(6) DACROM responsibilities include the following:
(i) Compiling a passenger forecast to be submitted to MAC in accordance with AR 59-8/OPNAVINST 4630.18C/AFR 76-38/MCO 4630.6B.
(ii) Providing Military Traffic Management Command (MTMC) an information copy of the passenger forecast.
(iii) Submitting all passenger requirements for one way and round trip transportation originating overseas to the appropriate overseas command.
(7) The responsibilities of the sponsoring overseas command include:
(i) Verifying that Scout passengers are officially authorized representatives of BSA in accordance with paragraph (p)(1) of this section.
(ii) Making all necessary passenger reservations with MAC, for transportation originating overseas, in accordance with AR 55-6/AFR 76-5/OPNAVINST 4630.23/MCO P4630.11. The oversea command will submit CONUS outbound return passenger requirements to Commander, Military Traffic Management Command, ATTN: MTMC-PTO-P, Washington, DC 20315.
(iii) Issuing each passenger a MAC Transportation Authorization (DD Form 1482) for transportation from the overseas location and return, when round trip transportation has been requested. The customer identification code, item (7) of the DD Form 1482, should be designated—JBWJ—which was approved by MAC as the permanent CIC for direct billing purposes to HQ, Boy Scouts of America, North Brunswick, New Jersey, 08902.
(iv) Ensuring that each Scout passenger has a completed DD Form 1381, signed by a parent, guardian or other legally responsible individual.
(v) Evaluating the use and necessity of military airlift within or between overseas locations. This evaluation will include such factors as reasonable travel time, number of connections required, and assurance of Scout group integrity. Surface transportation will normally be used for travel within an overseas area.
(8) The responsibilities of the MTMC include:
(i) Evaluating the return outbound passenger requirements and making the necessary transportation arrangements so as to maintain Scout group integrity at all times.
(ii) Assisting the BSA in completing required documentation and insuring that passengers are ready prior to the return flight.
(iii) Pub. L. 92-249 does not provide authorization for the use of the Department of Defense transportation by Scouts, Scouters, and Officials of foreign nations. All requests to transport such persons should be forwarded through the unified command channels to the Office of the Assistant Secretary of Defense (Public Affairs). However, DOD does not contemplate authorization for the use of MAC aircraft for other than U.S. Scouts, Scouters, and Officials.
(iv) Use of military helicopters in support of medical evacuation, VIP, press and photo-services—The Director of Army Aviation, the Department of the Army Staff Judge Advocate, and the Comptroller of the Army have furnished the general opinion that Pub. L. 92-249 authorizes the use of Military helicopters in support of the above described services to the extent they are reasonably available and permits the use of appropriated funds.
(q)
(2) The commodity command (military department) will prepare the following information and statement, and forward them, to CDR, DARCOM, Department of the Army, for final review:
(i) Complete Property Transaction Record and supporting documents.
(ii) Proper accounts for which reimbursement received for shortages and repairs are to be deposited.
(iii) The following statement: “The losses and/or damages indicated on the Property Transaction Report in the amount of $——— represent the total claim by (appropriate commodity command or military department) relative to commodity command or military deparment property loaned to (Boy Scouts of America). Upon settlement and deposit to the proper account, the CDR of the commodity command or military department releases the (Boy Scouts of America) from further obligations.”
(iv) Statements as to the general type of repair (e.g., tentage, repair tears, insert new panels, replace grommets) will be reported on separate addendum to the Property Transaction Record for items requiring repair.
(3) The CINC/CDR, MACOM, will prepare the following information and statement for property furnished for
(i) Same as (q)(2)(i) of this section.
(ii) Same as (q)(2)(ii) of this section.
(iii) The following statement: The losses and/or damages indicated on the Property Transaction Record in the amount of $——— represent the total claim by (appropriate Army) relative to (appropriate Army) property loaned to (Boy Scouts of America). Upon settlement and deposit to the proper account, the CINC/CDR, MACOM releases the (Boy Scouts of America) from further obligations.
(iv) Same as (q)(2)(iv) of this section.
(4) CDR, DARCOM, will review the charges, inspect property to be repaired, if necessary, reconcile any discrepancies and determine final charges to be levied against the supported activity. Approved list of charges will be forwarded to the CINC/CDR, MACOM, for collection, and property being held for repair will be released.
(5) The CINC/CDR, MACOM, will prepare and dispatch a letter to the supporting activity and request payment made payable to the Treasurer of the United States. Upon receipt of payment, collection documents will be prepared and appropriate fiscal accounts, as furnished by the commodity command (military departments) ((q)(2) and (3) of this section) credited. The MACOM Surgeon will take action to reimburse the DLA stock fund for expendable medical supply losses reported. The CINC/CDR, MACOM, will close the Property Transaction Record Account.
(6) The CINC/CDR, MACOM, will advise the CDR, commodity command (military departments and CDR, DARCOM, DA) that settlement has been accomplished. Commodity command (military department) Property Transaction Records will be closed upon receipt of the foregoing advice.
(7) The CDR, DARCOM will advise the CINC/CDR, MACOM, to return the bond to Boy Scouts of America.
(8) In the event of unsatisfactory settlement, the proceeds of the bond will be used to satisy the claim. The Power of Attorney executed in connection with the agreement will be invoked and proceeds collected from the bond (fig. 7-7).
10 U.S.C. 2571; 31 U.S.C. 686; 10 U.S.C. 2667.
(a)
(b)
(2) This regulation applies to the Army National Guard (ARNG) only when the procedure for the loan of equipment under the procedure of National Guard Regulation (NGR) 735-12 does not apply.
(3) This regulation does not apply to loans governed by the DOD Military Assistance and Sales Manual, DOD 5105.38-M.
(4) This regulation does not apply to loans governed by the Defense Acquisition Regulation (DAR).
(c)
(d)
(2) For additional definitions, see appendix A.
(3) The words “he, him, his” when used in this publication represent both the masculine and feminine genders, unless otherwise specifically stated.
(e)
(i) Army and other Department of Defense (DOD) elements.
(ii) Non-DOD Federal departments and agencies.
(iii) Civil governments (State and local).
(iv) Special activities, agencies, and others.
(2) Table 2-1 lists various circumstances where loan of Army materiel might be requested. It identifies the applicable Federal laws or other authority which would authorize such loans.
(f)
(1) The following are the basic statutes:
(i) 10 U.S.C. 2571—Authority for loan of property within DOD.
(ii) 31 U.S.C. 686 (The Economy Act)—Authority for loans to other Federal departments and agencies.
(iii) 10 U.S.C. 2667 (The Leasing Statute)—Authority for loans/leases, including leases to activities outside the Federal Government.
(2) Following are some of the specific authorizing statutes:
(i) 10 U.S.C. 331—Federal aid for State governments as result of insurrection.
(ii) 10 U.S.C. 332—Use of militia and Armed Forces to enforce federal authority.
(iii) 10 U.S.C. 333—Use of militia or Armed Forces to suppress interference with state and federal law.
(iv) 10 U.S.C. 2541—Loan of equipment and barracks to national veterans organizations.
(v) 10 U.S.C. 2542—Loan of equipment to the American National Red Cross for instruction and practice.
(vi) 10 U.S.C. 2543—Loan of equipment to US Presidential Inaugural Committee.
(vii) 10 U.S.C. 2544—Loan of equipment and services to the Boy Scouts of America, for national and world jamborees.
(viii) 10 U.S.C. 2572—(See AR 870-20.) Loan of books, manuscripts, works of art, drawings, plans, models, and condemned or obsolete combat materiel not needed to—
(A) A municipal corporation.
(B) A soldiers monument association.
(C) A state museum.
(D) A nonprofit incorporated museum.
(E) Posts of Veterans of Foreign Wars of the USA.
(F) American Legion Posts.
(G) A local unit of any other recognized war veterans association.
(H) A post of the Sons of Veterans Reserve.
(ix) 10 U.S.C. 4308—Establishment and support of civilian rifle ranges.
(x) 10 U.S.C. 4311—Issue of rifles and ammunition for conducting rifle instruction and practice.
(xi) 10 U.S.C. 4651—Issue of arms, tent-age, and equipment to support educational institutions that do not have ROTC but maintain a course in military training prescribed by the Secretary of the Army.
(xii) 10 U.S.C. 4652—Loan of rifles and issue ammunition for target practice to educational institutions having corps of cadets.
(xiii) 10 U.S.C. 4653—Issue of ordnance and ordnance stores to District of Columbia high schools.
(xiv) 10 U.S.C. 4654—Issue of quartermaster supplies at educational institutions that maintain a camp for military instruction of its students.
(xv) 10 U.S.C. 4655—Loan of arms and issue ammunition to other agencies and departments of the US Government.
(xvi) 10 U.S.C. 4656—Loan of aircraft and ancillary equipment to accredited aviation schools at which DA or Air Force personnel pursue courses of instruction.
(xvii) 10 U.S.C. 4683—Loan of obsolete or condemned rifles and accouterments to local units of recognized national veterans organizations for certain ceremonial purposes.
(xviii) 10 U.S.C. 4685—Loan of obsolete ordnance to educational institutions and state soldiers and sailors orphans’ homes for purpose of drill and instruction.
(xix) 32 U.S.C. 702—Issue of supplies to State National Guard.
(xx) 33 U.S.C. 701n (Pub. L. 84-99 as amended)—Flood emergency preparation; emergency supplies of drinking water.
(xxi) 33 U.S.C. 1251 et seq (Pub. L. 92-500)—Federal Water Pollution Control Act.
(xxii) 42 U.S.C. 5121 et seq (Pub. L. 93-288)—Disaster Relief Act.
(3) Other statutory guidance:
(i) 10 U.S.C. 4307—Authorizes the establishment of a Director of Civilian Markmanship (DCM).
(ii) 18 U.S.C. 1385—Unlawful use of Armed Forces in local law enforcement.
(iii) 18 U.S.C. 3056 (as amended by Pub. L. 91-651)—Powers and duties of Secret Service.
(g)
(2) Major Army commands (MACOM) CGs and commanders in chief (CINCs) of unified commands (UCOMs) are responsible for loans of materiel from supporting units and installations.
(3) The Director of Military Support, Office of the Deputy Chief of Staff for Operations (ODCSOPS), is the DOD point of contact for the Federal Disaster Assistance Administration (FDAA), other Federal agencies, and the National Red Cross in disaster assistance matters.
(a)
(ii) Loans will be approved or disapproved based on the purpose, duration of the loan, and consideration of the following factors which can take precedence over any loan.
(A) Military requirements and priorities.
(B) Continuity of military operations, troop survival, and the rehabilitation of essential military bases.
(C) Stocks and programed Army requirements. This includes prepositioned mobilization reserve stocks.
(D) Type classification with pending changes.
(E) Minimum diversion of Army stocks.
(F) The adequacy of the borrower's resources. Requesters will be encouraged to use their own resources.
(iii) Loan requests from civilian authorities or activities will normally enter Army channels at the installation or MACOM levels. If on-post or off-
(iv) When routine handling of a loan request would result in loss of human life, grave bodily harm, or major destruction of property, and when the lack of communication facilities prevents use of normal procedures, loans otherwise permitted by this regulation can be made with local approval. However, normal policy should be followed to the extent possible. If procedural requirements cannot be fully complied with, they must be met as soon as possible after the loan is made.
(v) Army materiel loaned under this part will be delivered to borrower “as is, where is” available.
(vi) Stocks of the least serviceable condition which are still suitable for the loan's purpose will be used. Logistic control code “C” materiel will be loaned before logistic control code “B” materiel. Logistic control code “B” materiel will be loaned before logistic control code “A” materiel. (Ref chap 9, AR 708-1.)
(vii) Commanders of medical treatment facilities (MTF) are subject to all the requirements of this regulation, including the requirement for reimbursement. However, in accordance with AR 360-61 which implements DOD Instruction 5410.19,
(A) Emergency loans of medical supplies (drugs, vaccines, etc.) may not be made without reimbursement, but the loan may not exceed 30 days and the medical supplies must be replaced in kind by the borrowing agency or activity; and
(B) Emergency loans of medical equipment not to exceed 15 days may be made without reimbursement if it is the practice in the community for other hospitals to make such loans. Equipment loans which exceed 15 days must be approved, in writing, by the MACOM commander and are subject to all the requirements of 10 U.S.C. 2667, including reimbursement.
(viii) Army property loaned to non-DOD activities will not be further loaned without approval of the original approving authority.
(ix) There will be no procurement or redistribution of assets to offset the effects of loans. Material will not be set aside, earmarked, assembled, or stockpiled to be available for use related to loans.
(x) Army materiel may be recalled from the borrower at any time to meet Army requirements.
(xi) Stock record accounting and financial transactions for loans will conform with existing regulations.
(xii) Borrowers are responsible for the care, custody, and proper use of materiel borrowed. Except as stated in this regulation, reimbursement will be required for damage, destruction, loss, fair depreciation in value, and for any Army repair, care, transportation, preservation, and protection of loaned equipment.
(xiii) Care, renovation, and repair of borrowed materiel will conform with the loan agreement.
(xiv) As indicated below, borrowers must provide signed loan agreements, provide surety bonds, and vehicular insurance prior to receipt of materiel. Loan agreements and bonds will be prepared in accordance with paragraphs (b) and (c) of this section.
(2)
(i) Loans of major end items belonging to MACOMs are approved by MACOM or UCOM commanders. Loans of materiel other than major end items are approved at commander/installation level.
(ii) Loans of materiel belonging to DARCOM (wholesale level) are approved as follows:
(A)
(B)
(3)
(4)
(i) CONUS/OCONUS.
(A) In disaster situations local civil authorities must provide relief from their own resources. If this is not sufficient, and the American National Red Cross has a team at the disaster, requests for further assistance should be made to them. If the President has declared a major disaster or emergency, requests should be made to the regional director of the Federal Disaster Assistance Administration (FDAA). (See AR 500-60 for guidance.)
(B) The commanding General, US Army Forces Command (FORSCOM), acting for the Secretary of the Army (SA), is responsible for Army materiel support of disaster relief operations within the United States and the District of Columbia. UCOMs are responsible for disaster relief operations in US possessions and trust territories. These commanders are authorized to task DOD agencies and commands, consistent with defense priorities, to provide materiel in support of operations. A military representative will be appointed by the appropriate command to act as the DOD point of contact with the Housing and Urban Development (HUD) Federal Coordinating Officer (FCO) when military assistance is required during a Presidential declared disaster or emergency. When a disaster or emergency is of such magnitude, the disaster area may be geographically subdivided. A military representative will then be appointed for each FCO. All requests for military assistance will be passed through the FCO to the DOD military representative at the disaster area.
(C) The Director of Military Support (ODCSOPS), HQDA, acts at the DOD point of contact for the Administrator, FDAA, other Federal agencies, and the American National Red Cross in all disaster assistance matters.
(ii) Foreign. (A) The Department of State is responsible for deciding when emergency foreign disaster relief operations will be undertaken. This authority is delegated to Chiefs of Diplomatic Missions for disaster relief operations whose total costs will not exceed $25,000.
(B) Send queries on foreign disaster relief to HQDA (DAMO-ODS) (para 4, app B).
(5)
(i) Requests for loan of Army materiel during or for expected civil disturbances are of three types with approval authority as follows:
(A)
(B)
(C)
(ii) Queries concerning loans in support of civil disturbances will be forwarded to the Director of Military Support, HQDA(DAMO-ODS), WASH DC 20310. (See app B.)
(6)
(ii) For requests from the FBI in connection with terrorist incidents, any commander in the chain of command down to and including commanders of military installations are authorized to approve loans of group two and group three resources. (See paragraphs (a)(4)(1) (B) and (C) of this section.) Requests for equipment which involve technical/operating personnel, excluding fire-fighting equipment and explosive ordnance disposal, will be processed as a group one resource. For example, approval authority is retained by the DOD Executive Agent.
(7)
(8)
(b)
(2) Loan agreements are mutually developed by the approving authority and the chief of the borrowing activity (or their designees). The agreements identify the responsibilities of all parties. They include terms and conditions of the loan. Appendix C illustrates a sample loan agreement, DA Form 4881-R (Agreement for the Loan of US Army Materiel), and specifies what the loan agreements will stipulate and contain. Also illustrated at appendix C is DA
(3) Loan agreements will be held by the approving authority until termination and final settlement of each loan.
(4) If the loan agreement is signed by someone other than the chief borrowing official, than a Certificate for Signature by an Alternate will be completed. (See appendix D for DA Form 4881-1-R.) It will be attached to the signed (by the borrower) copy of the agreement that is retained by the approving authority. DA Forms 4881-R, 4881-1-R, and 4881-2-R are reproduced locally on 8
(c)
(i) A properly executed surety bond with a certified bank check, cash, or negotiable US Treasury bonds, or
(ii) Notice of bond by a reputable bonding company deposited with the approving authority for the loan. Bonds will equal the total price of the borrowed items as shown in exhibit I to the loan agreement (app C, DA Form 4881-R). A “double” bond (bond equal to twice the value of the borrowed item(s)) will be required—
(A) For Army materiel loaned to the Red Cross for instruction and practice to aid the Army, Navy, or Air Force in time of war (10 U.S.C. 2542).
(B) For ordnance and ordnance stores loaned to high schools in the District of Columbia (10 U.S.C. 4653).
(2) The bond need not be posted by the borrowing agency itself. The source or originating agency for the bond is immaterial if the bond is valid. For example, to secure a loan, a State may post bond on behalf of a city, county, or other governmental body or authority within the State.
(3) In an emergency, when posting a bond would delay approval of an urgent loan request and when the total price is less than $1,000, the approval authority may approve the request. The approval is on the condition that the bond be posted within 5 days.
(4) Bond forfeitures or exceptions to mandatory forfeitures can only be made with the concurrence of the Secretary of the Army. Forfeitures will be based on actual expense incurred. Forfeitures do not release the borrowing agency from returning borrowed materiel or affect ownership. Bonds are normally forfeited under the following conditions:
(i) Materiel is not returned at the termination of a loan period or when return has been directed by the Army.
(ii) The borrowing agent refuses to pay for damages or other Army expenses.
(5) Surety bonds will be held by the approving authority until the loan is terminated and final settlement is made. At that time, the bond will be returned to the borrower.
(6) If US treasury bonds are posted as surety bond, the borrower must execute a power of attorney (DA Form 4481-4-R, app F). This will enable cashing of the treasury bonds if some forfeiture is required. DA Form 4881-3-R (Surety Bond) and DA Form 4881-4-R (Power of Attorney) will be reproduced locally on 8
(d)
(2) Materiel will be loaned only for the number of days needed for the specific purpose for which borrowed. Loan extensions must be justified. The reason(s) why other means or other than Army materiel cannot be used must be included. Approval of loan extensions will be based on the merit of the reasons given.
(3) Loan extensions authorized beyond 1 year will not be approved unless the lender of the loaned materiel has inspected and inventoried the materiel to insure completeness and serviceability.
(e)
(a)
(2) Requests to the US Army for loan, or loan extension, will be promptly sent by the Army element that received the request through channels to the approving authority shown in table 2-1 or as specified in appropriate regulations.
(3) Loan requests will be made by the head of the Federal agency, civil authority, or civilian activity desiring the materiel. An exception is that requests from the Federal Disaster Assistance Administration (FDAA) will normally be initiated by an FDAA regional director rather than by the administrator. The requests should be made directly to the approving authorities shown in table 2-1.
(b)
(c)
(i) Requests will be made in writing citing—
(A) Detailed justification for loan to include urgency of need.
(B) Duration of loan.
(C) Funds to defray transportation and handling.
(D) Serviceability requirements.
(ii) Approving authority involved will—
(A) Forward a loan agreement to requester. Loan agreements within DOD will often consist of letter requests, approving endorsements, and materiel issue document (DD 1348-1) transferring temporary accountability. Between units and activities, a hand receipt may be used as the loan agreement.
(B) Furnish positive identification of item to be loaned.
(C) Provide instructions for delivery of equipment.
(iii) DOD recipient of loaned Army materiel will—
(A) Forward accepted loan agreement to approving authority (all actions can be accomplished by electrically transmitted messages).
(B) Provide geographic location of equipment and specific activity that is responsible for care and preservation of loaned equipment.
(C) Return equipment to Army in condition received with normal allowance for fair wear and tear.
(2)
(i) Non-DOD activities, and agencies, will send routine requests by letter 45 days before the materiel is required. Federal agencies may use Standard Form 344 (Multiuse Standard Requisitioning/Issue System Document). Requests will include the following:
(A) The DA approving authority. See table 2-1.
(B) Date request is submitted.
(C) Title of requesting agency and/or person authorized to receive or pick up the borrowed materiel. Be specific; e.g., Special Agent in Charge John Doe, FBI, Anytown, USA, (telephone number with area code) 123-456-7890.
(D) Type of loan; e.g., Boy Scout National Jamboree, American Legion Convention, etc. (with a short summary of circumstances).
(E) Statement that none of the requested materiel is internally available to the requesting activity.
(F) Statement that this support is not reasonably available from local government or commercial sources.
(G) Authority for the loan (if known); e.g., public law, US code, executive order, etc. See table 2-1.
(H) Positive identification of the type and quantity of items required. If national stock numbers and nomenclature are not available, identify the items needed by type, model, size, capacity, caliber, etc.
(I) Geographic location where the materiel will be located and used.
(J) Proposed duration of the loan.
(K) Statement that the agency has, or will ensure capability to properly operate, maintain, secure, and care for the borrowed materiel.
(L) If firearms are requested, a statement that adequate facilities are available to secure the arms. See § 623.5(a)(4).
(M) A statement that the borrowing activity will assume all responsibilities, liabilities, and costs related to the movement, use, care, security, loss, damage, and repair of the loaned materiel.
(N) Citation of funds to cover reimbursable costs. Also, a statement that an adequate bond will be provided, if required.
(O) A statement that the loan agreement prepared by the Army will be signed by the “responsible official” of the borrowing activity (or designee).
(P) Name, address, and telephone number of the person who will serve as the point of contact for the requesting agency, authority, or activity.
(Q) Complete instructions for delivery of the equipment to ensure that shipping instructions in the request are consistent with the urgency of the situation. State whether a small quantity shipped by air, express, or other fast means will satisfy immediate needs until bulk shipments can arrive. Also state quantity immediately required.
(R) If applicable, the number of persons to be accommodated.
(ii) Urgent requests may be made to meet expected or actual emergencies. Such requests may be made by telephone or by electrically transmitted message. Include information required in paragraphs (c)(2)(i) (A) through (R) of this section to the extent possible. The request will be presented to the approving authority. The borrower will then send a complete written request to formalize the emergency request.
(iii) If approval of the loan is granted, approving authorities will contact accountable property officers at CONUS installations (equivalent level overseas), or MRC item managers to determine which items are available. Installation requests to MRCs will state that the installation resources could not meet the loan requirements. Availability decisions will be based on normal management criteria including past and anticipated demand, asset balances, order-ship time, repair rate and repair cycles, and procurement schedules. If requested items are available and approved for issue, the approving authority (or designee) will—
(A) Negotiate and agreement;
(B) Obtain surety bond from the borrower when required;
(C) Provide reproduced copies of the signed documents to the appropriate accountable property office along with authorization to make the loan.
(iv) Approving authorities will maintain a system of numerical control for all loans. The accountable property officer will enter this number on all transaction documents related to each specific loan to include requisition, issue, shipping, turn-in, and financial documents.
(3)
(i) Army regulation 1-4 provides policies and procedures for Army support to the Secret Service. Support will be provided only on the request of the Director, United States Secret Service or his authorized representative. It will be provided only to assist the United State Secret Service in performance of its statutory protective functions.
(ii) Routine requests are sent by the United States Secret Service direct to the Office of the Special Assistant to the SECDEF for approval. Approved requests involving Army resources are tasked through HQDA (DAMO-ODS) to the proper command. Approved requests for resources of other Services are tasked direct to the proper Service.
(iii) Approved requests for resources to be used in oversea areas (regardless of Service) will be passed from the Office of the Special Assistant to the SECDEF to the Joint Chiefs of Staff (JCS) for tasking of the proper unified command.
(iv) In urgent situations, the United States Secret Service may request military resources from the nearest military commander who is authorized to take action consistent with the urgency. As soon as possible, they will seek guidance/approval through command channels to the approval authority (Spec Asst to the SECDEF).
(4)
(5)
(ii) The requests will then be sent to the National Military Command Center (NMCC). It will coordinate between the lending accountable property officer and the borrower.
(iii) In urgent cases, the Deputy Director for Operations, NMCC, may approve requests upon his or her own responsibility. This is subject to a later report to the chairman of the Joint Chiefs of Staff and the DOD General Counsel.
(iv) Approved requirements will be passed to the Secretary of the Army by telephone and confirmed by electrically transmitted message. The Secretary of the Army will then assign the requirement to the proper command (or staff agency) which will contact the designated Federal civil official and confirm the details of the request. Modification of the requirement to better perform the mission is authorized if the Federal official agrees.
(6)
(d)
(1)
(i) Requests for resources that require Secretary of the Army approval will be sent through channels to HQDA (DAMO-ODS) (para 4, app B).
(ii) Requests for group three resources (§ 623.2(a)(5)) that are not available to commanders having the approval authority will be sent through channels to HQDA (DAMO-ODS). Intermediate commands may approve and make available the requested resources.
(iii) Requests received by other DOD agencies will be referred to local Army installation commanders for processing.
(2)
(i) Valid requests for disaster relief assistance (see § 623.2(a)(4) for decisionmaking process) will be given to the DOD liaison (a military officer) assigned to the disaster; or forwarded to the CONUS Army commander in which the disaster occurs. (See appendix G.) If no Federal Disaster Assistance Administration (FDAA) official (HUD Federal Coordinating Officer (FCO)) is present at the disaster scene, requests may be received from the Red Cross.
(ii) HUD Regional Directors for FDAA, or FCOs, will send requests for loan of materiel to the Commanding General, FORSCOM, or to the proper CONUS Army commander. (Requests for Defense Civil Preparedness Agency (DCPA) resources will be sent to DCPA regional offices.)
(e)
(2)
(3)
(f)
(g)
(1)
(2)
(3)
(4)
(a)
(2) Loaned property will be kept on the accountable records of the owning property account. The entry showing the quantities loaned will be supported by DD Form 1348-1 (receipt document), and copies of the loan agreement and surety bond (if required). The receipt document must be signed by the responsible official of the borrowing activity. It is then returned to the accountable property officer as a valid hand receipt for property accounting purposes.
(3) Loans will be processed by accountable property officers according to normal supply procedures except as modified by this regulation.
(4) Accountable property officers will keep loan files with enough documentation to provide an audit trail for loan transactions and a single source of accounting and billing for reimbursement. No separate property book accounts will be set up for these loans. Items, with dates shipped, will be identified by use of “loan control numbers” in loan jacket files and in supporting documentation. The files will include copies of—
(i) The loan request. If the request was made by telephone (urgent), a copy of the Memorandum for Record prepared to summarize the call will be used.
(ii) The loan agreement.
(iii) The surety bond (with cash, certified check, US treasury bonds, or adequate bond from a bonding company).
(iv) The approving authorization to make the loan.
(v) DD Form 1348-1 used for shipping the items.
(vi) A master loan register with the loan control number and shipping document number.
(b)
(2) All shipments of loaned equipment will be documented on DOD single line item “release or receipt” document (DD Form 1348-1). These will be initiated by the lending accountable property officer. Packing, crating, handling, estimated transportation costs, and serial numbers (if applicable) of items shipped will be shown on all copies. The consignee will be given advance copies of the DD Form 1348-1 as notice of shipment, and a list of DD Form 1348-1 document numbers. For loans to non-DOD activities two copies of the certificate below will be prepared by the accountable property officer (see fig. 1). It will accompany the DD Forms 1348-1.
“I certify receipt of and assume responsibility for the Army materiel listed on DD Form 1348-1. Control numbers on DD Form 1348-1 follow. The items were received in good condition except as noted on the DD Form 1348-1. Serial numbers have been verified (omit if not applicable).”
(3) One copy of each signed DD Form 1348-1 (for non-DOD activities, one copy of the signed certificate) will be returned to the accountable property officer. Also, one copy of each will be kept in the borrower's file.
(4) The installation or depot transportation officer is responsible for coordinating movement of the items that must be shipped.
(5) Shipments, including those to foreign countries, will be made on commercial bills of lading (CBL). Freight charges will be paid by the borrower. The CBL will cite proper project codes. NOTE: In emergencies where use of CBL would delay shipment, government bills of lading (GBL) may be used subject to later reimbursement. Shipments to Boy Scout World Jamborees in foreign countries will be by GBL unless otherwise specified by the Boy Scouts.
(6) Shipments will be consolidated to the maximum to get the lowest charges available.
(7) Separate shipping instructions will be provided for each recipient, convention, jamboree, etc., to ensure correct consignee and railhead addresses.
(8) Transportation will be at no expense to the government. The Defense Transportation Services (Military Sealift Command, Military Airlift Command, and Military Traffic Management Command) will send all billings for such transportation costs to the US Army Finance and Accounting Center (USAFAC). The USAFAC will then bill the fiscal station servicing the accountable property office that made the loan. This fiscal station will then bill the borrower for these transportation costs. Army materiel loaned to non-DOD activities is not authorized for oversea movement on a space available basis by MSC or MAC without their prior approval.
(c)
(2) When a DD Form 1348-1 has not been received by the borrower and does not accompany the shipment, an informal report will be made to the accountable property officer at once. It will include the nomenclature, quantities, condition, and if applicable, the model numbers and serial number of all material received.
(3) When shipment has been verified, the borrower (or designee) will enter the quantity received on two copies of the DD Form 1348-1. Serial numbers will also be entered for serial numbered items. The completed copies of the DD Form 1348-1 will be signed by the authorized person. One copy of the DD Form 1348-1 and one copy of the signed certificate (receipt of the materiel) will be returned to the accountable property officer.
(4) If shipments are received damaged or short, take action described in § 623.4(g).
(d)
(e)
(ii) Property for which repair cost is claimed will be held at the Army depot or installation until final charges are determined and a release is given by respective property officers.
(iii) Return of materiel loaned to rifle clubs and schools will conform with § 623.5.
(2)
(i) At the end of a loan period, recall, or upon notice by the borrower that the loaned materiel is no longer needed, the accountable property officer will send a letter of instruction to the borrower for return of the materiel. He will verify or modify the turn-in instructions provided in the loan agreement.
(ii) These procedures will be used by accountable property officers to terminate loans:
(A) For loans up to 30 days no specific termination action is necessary except when materiel is not returned by the loan due date. Then, a written loan termination notice will be sent to the borrower. A follow-up notice will be sent every 15 days until the materiel is returned or other settlement is made.
(B) For all other loans 15 days before the loan is due, a loan termination notice will be sent by the lending activity to the borrower verifying (or modifying) the turn-in instructions.
(C) Follow-up of loan termination notice will be made every 15 days until the materiel is returned or other settlement is made.
(iii) After receiving inspection reports (§ 623.4(e)(3)) and final shipment receipts, the accountable property officer will clear the loan records.
(iv) The accountable property officer will then advise the borrower of the transaction completion by furnishing receipted copies of the receiving document(s).
(v) The accountable property officer will notify the servicing finance and accounting office (FAO) of any reimbursement required.
(3)
(A) If the quantity received differs from the quantity shipped, the actual quantity received will be entered on the DD Form 1348-1.
(B) If the condition of the property differs from that noted on the DD Form 1348-1, the variation will be stated.
(ii) Loaned materiel returned in an unserviceable condition will be inspected by qualified technical inspectors at installation level and by quality assurance activities at depots to determine condition code.
(A) If the condition of returned materiel is the same as noted on the receipt document or the prepositioned materiel receipt card, the item will be processed as a normal receipt.
(B) If there is a discrepancy in the actual condition of the item or in the assigned code on the receipt document, obtain an estimate of repair cost and continue normal receipt documentation processing.
(C) The receiving depot or installation will prepare an Inspection and Surveillance Report for each returned item that needs repair. Cards will also be prepared for shortages. The cards will include the cost of equipment repair or the value of shortage. A minimum of two copies of each report will be sent to the proper acountable property officer.
(f)
(2) If no discrepancies are noted, the accountable property officer will file the signed annual inventory form in the borrower's memorandum receipt jacket file.
(3) If the inventory shows that amounts and kinds of Army materiel for which the borrower is responsible differ from that actually in his possession, the accountable property officer will—
(i) For overages, assume accountability for the overages noted on the annual inventory form. Use a copy of the annual inventory form as a debit voucher to the account. No approval of this voucher is needed.
(ii) For shortages, act to obtain reimbursement for the value of the missing property or to adjust the discrepancy by report of survey.
(g)
(2) Damage or loss which is the fault of the carrier will be billed to the carrier after reconciliaton.
(3) Army materiel lost, damaged, or destroyed while in the possession of rifle clubs or schools will be handled as described in § 623.5.
(4) Any Army materiel loaned at the request of an FDAA Regional Director which is not returned according to instructions in this chapter will be reported to the borrower and to the FDAA Regional Director. The latter will arrange for proper reconciliaton and reimbursement.
(a)
(2) The Commanding General, Armament Readiness Command (ARRCOM) (ATTN: DRSAR-MMS) has been designated by Commanding General, Materiel Development and Readiness Command (DARCOM), as being responsible for keeping a centralized serial number visibility record for all small arms made for the Army. ARRCOM maintains accountable property records for loans to organizations such as the Director of Civilian Marksmanship (DCM); and for loans to non-DOD activities such as the Federal Bureau of Investigation (FBI), United States Secret Service (USSS), United States Customer Service (USCS); or rifle clubs, educational institutions, and veterans’ organizations.
(3) Requests for loan of arms which are type classified standard (logistics control code A or B) will be filled with the lowest type classified items available.
(4) Borrowers of Army arms will be fully responsible for the care, custody, and proper use of loaned materiel. Physical security measures must be equal to or greater than the minimum requirements set forth in Army Regulation 190-11 and Army Regulation 190-49.
(5) If borrowed arms are lost, stolen, or unaccounted for, the borrower must inform the lender (accountable property officer), the local police, and the FBI within 24 hours after discovery.
(6) This regulation does not apply to arms issued to Reserve Officers Training Corps units under the National Defense Act. Army Regulation 710-2 is applicable.
(b)
(i) For use in protection of public money and property (10 U.S.C. 4655).
(ii) Obsolete or condemed rifles (not more than 10), slings, and cartridge belts may be loaned to local units of any national veteran's organization for use by that unit in ceremonies. (For example, a funeral for a former member of the armed forces.) The organization must be recognized by the Veterans' Administration (VA) (10 U.S.C. 4683).
(iii) Arms and accouterments loaned to organizations listed in § 623.5(c)(1) for a period of 1 year or less will be accounted for by ARRCOM. Loans of items that exceed 1 year will be accounted for by the DCM under § 623.5(c).
(2) Requests for loan (or extension of loan) of Army arms and accouterments will be sent by requesting agencies through HQDA (DALO-SMD), (para 2, app B) to the Secretary of the Army. Requests received outside of this channel will be returned to the originator for direct submission to the address above.
(3) Requests approved by the Secretary of the Army (or Under Secretary) will be sent to ARRCOM, (para 12 app B) Rock Island, IL 61299, for
(4) Requisitioning, accounting, and reimbursement procedures are given in § 623.4. However, upon receipt of signed copies of DD Form 1348-1 with the listing of verified serial numbers from the consignee, the ARRCOM Arms and Accouterments Property Officer will send the required transaction data to the DOD Small Arms Serialization Program (DODSASP) at ARRCOM. These data will indicate that the small arms on loan to other Government agencies are accounted for under DOD Activity Address Code W52P41.
(5) Shipment and returns are described in § 623.4 except as follows:
(i) The responsible property officer for materiel or loan will request disposition instructions from the accountable property officer when loaned materiel is no longer needed or at the end of the loan period. Loaned materiel may be withdrawn from the borrowing activity at any time to satisfy military requirements.
(ii) The accountable property officer will:
(A) Issue shipping instructions for the return of property to a designated installation. The letter of instruction will contain a MILSTRIP document number (AR 725-50) for each line item scheduled for return to be used for the shipment. The shipper will be directed to cite this document number on the shipping document.
(B) Prepare and submit to the receiving installation a prepositioned materiel receipt card (DOD Materiel Receipt Document (DD Form 1486)) (Document Identifier DWC) as advance notice of the shipment.
(
(
(iii) Upon receipt at the receiving installation, property will be inspected immediately. Cost of repairing unserviceable items and cost of replacement, if irreparable, will be determined at time of inspection. The MILSTRIP receipt card will be mailed to the accountable property officer with estimated damage cost and detailed materiel condition as exception data.
(iv) Upon notification of materiel receipt, the accountable property officer will:
(A) Clear the loan record with a credit entry and process the receipt to the inventory records as an increase on hand to asset balance.
(B) Furnish receipted copies of the receiving document to the consignor and the responsible property officer closing the transaction.
(c)
(i) Rifled arms may be loaned to civilian rifle clubs for promotion of marksmanship training among able-bodied US citizens (10 U.S.C. 4308).
(ii) Arms, tentage, and equipment, as the Secretary of the Army deems necessary, may be loaned to an educational institution to provide proper military training where there is no ROTC, but there is a course in military training prescribed by the Secretary of the Army and there are at least 100 physically fit males over 14 years of age (10 U.S.C. 4651).
(iii) Magazine rifles and appendages may be loaned to schools having a uniformed corps of cadets of sufficient number for target practice. Models loaned must not be in use at the time, or needed for a proper reserve supply (10 U.S.C. 4652).
(iv) Ordnance and ordnance stores may be loaned to Washington, DC, high schools for military instruction and practice (10 U.S.C. 4653).
(v) Obsolete ordnance and ordnance stores may be loaned to educational institutions and to State soldiers’, sailors’, and orphans’ homes for drill and instruction if recommended by the Governor of the state or territory concerned (10 U.S.C. 4685).
(2)
(i) Control and accountability of Army materiel issued to civilian rifle clubs;
(ii) Policies and procedures for the issue of arms and ammunition to civilian rifle clubs; and
(iii) Ensuring proper bonding of clubs before issue of Army materiel. The Secretary of the Army has further made the DCM similarly responsible for loans to institutions (schools).
(3)
(i) Loan and return of arms and accouterments to (from) civilian rifle clubs and institutions will not be posted to the accountable record as loss or gain vouchers. They will be posted as “loan transactions” with the DCM retaining accountability. In addition to debit, credit, and adjustment voucher files, the DCM accountable property officer will keep a “loan voucher” file in two sections; e.g., “active” and “terminated.”
(A) The active section (suspense for items on loan) will contain DD Form 1348-1 or a letter acknowledging receipt of the items. (The signature of the borrower will be according to paragraph (4) (v) or (vi) of this section.) This section will contain a folder for each activity serviced by the DCM. The active loan vouchers will be filed in National Stock Number and voucher number sequence. This section serves as the DCM loan record.
(B) The terminated section (for items no longer on loan) will contain the original loan shipping document (loan voucher). The return receipt document which terminates the loan will be attached. The receipt document will contain the original shipping document number and the return advice code “IQ.”
(ii) Shipments of expendable items (e.g., ammunition, targets, etc.) will be posted as a credit to the accountable record. Accountability will be dropped (These items are deemed to have been consumed at the time of issue).
(iii) Expendable items returned by rifle clubs and institutions will be posted to the accountable record as a debit voucher. The DCM will determine disposition of these items.
(4)
(ii) The rifle club or institution will complete the form and return one signed copy to the DCM, HQDA, Secretary Field Directorate Marksmanship (SFDM), (para 7, app B) and keep one copy for file.
(iii) On receipt of the signed copy of DA Form 1273, the DCM will take proper issue action. When more arms are required by the DCM, a DD Form 1348 will be prepared and sent to the Secretary of the Army for approval (AR 725-50).
(iv) The supply source responsible for the loan will ship the materiel directly to the rifle club or school.
(v) DD Forms 1348-1 received with the shipment or by mail, will be annotated and signed by the person authorized to receive and sign for property for the rifle club or school. The quantity and condition of the items received will be entered thereon. This entry will be based on a physical check and inspection of the materiel. Serial numbers of items received (if applicable and not noted) will also be entered. Two of the completed copies will be signed by the person authorized to sign for the club or institution. They will be mailed to the DCM, HQDA Secretary Field Directorate Marksmanship (SFDM). The third completed copy will be kept in the unit's file.
(vi) If a DD Form 1348-1 is not received with the shipment or is not received by mail, a receipt letter will be sent to the DCM. It will set forth the nomenclature, quantities, condition, and serial numbers (of serial-numbered
(5)
(i) Two copies to the consignee (receiving depot, arsenal, or installation). One copy of the DD Form 1348-1 received by the consignee will be used to tally the shipment and to account for property received. The other copy will be signed by the accountable property officer (or representative) and will be sent to the DCM to terminate the open receipt in the loan voucher file.
(ii) One copy with the shipment.
(iii) One copy to the DCM, HQDA (SFDM), accompanied by the bill of lading (where available).
(iv) One copy retained by the rifle club or institution.
(6)
(a)
(ii) Loans to non-DOD Federal activities are made on the basis that there will be no extra cost to the Army. Costs that are in addition to normal Army operating expenses will be reimbursed by the borrower. This provision will be a part of the loan agreement.
(iii) In cases of aircraft piracy, civil disturbance, disaster relief, or protection of the President or visiting dignitaries, emergency support will not be withheld for lack of a formal reimbursement agreement. In these cases, the supporting Army element will absorb initial costs (within existing fund availability). Reimbursement will be coordinated later.
(iv) Loans made under the provisions of Title 10 U.S.C. 2667 will provide that the borrower must pay a fair monetary rental. The fair monetary rental will be determined on the basis of prevailing commercial rates or computed by sound commercial accounting practices including a return on capital investment and administrative cost as well as depreciation. Leases made under this code section will include a provision establishing the rental cost of the materiel and method of payment.
(v) The Army National Guard (ARNG) is responsible for reimbursement of costs, over and above normal DA operating expenses, related to the borrowed Army materiel.
(vi) Support to the United States Secret Service (USSS) will be on a reimbursable basis except for costs directly related to protection of the President
(vii) The cost of emergency support will be billed directly to the recipient.
(2)
(ii) Installation financial accounting for “accounts receivable” will conform with Army Regulation 37-108.
(iii) The finance and accounting office (FAO) supporting the supplying accountable property officer will record all charges, including accounts receivable of Army Stock Fund offices (or branch offices), in separate ledger accounts for each borrower.
(iv) Charges and collections recorded in each loan account will be reported per Army regulations and directives prescribing the reporting of the fund status in any current fiscal year.
(v) Billing will be initiated on Standard Form 1080, and sent to the borrower within 30 days of turn-in of materiel and loan termination. For loans of arms and accouterments and issue of ammunition pursuant to 10 U.S.C. 4655, the Standard Form 1080 will be annotated to show that collections are to reimburse DA appropriations.
(vi) Special appropriations established to support disaster relief will be used promptly by Army commanders concerned to ensure that all direct expenses are charged to the special appropriation. Exclude those charges subject to reimbursement by the American National Red Cross (ANRC). ANRC reimburses for supplies, materiel, and services for which they are responsible in the disaster area.
(b)
(1) Any overtime pay and pay of additional civilian personnel required to accompany, operate, maintain, or safeguard borrowed equipment.
(2) Travel and per diem expenses of Army personnel (military and civilian).
(3) Packing, crating, handling, and shipping from supply source to destination and return. This includes port loading and off loading.
(4) All transportation including return for repair or renovation.
(5) Hourly rate for the use of Army aircraft.
(6) Petroleum, oil, and lubricants (POL) (including aviation fuel).
(7) The cost of materiel lost, destroyed, or damaged beyond economical repair except for Army aircraft, motor vehicles, or motor craft used in connection with aircraft piracy.
(8) Utilities (gas, water, heat, and electricity). Charges will be based on meter readings or other fair method.
(9) Any modification or rehabilitation of Army real property which affects its future use by DA. In such cases the borrower will also bear the cost of restoring the facility to its original form.
(10) Repair/overhaul of returned materiel. Renovation and repair will conform with agreement between the Army and the borrower. (See paragraph (e)(1) of this section.)
(11) Repair parts used in maintenance or renovation.
(12) Price decline of borrowed stock fund materiel at which returned property can be sold.
(c)
(1) Regular pay and allowances of Army personnel (except travel) and per diem costs.
(2) Administrative overhead costs.
(3) Annual and sick leave, retirement, and other military or civilian benefits except as provided in certain cases; e.g., Army Industrial Fund regulations.
(4) Telephone, telegram, or other electrical means used to requisition items, replenish depot stocks, or coordinate the loan.
(5) Charges for the use of Army motor vehicles and watercraft except POL and per diem costs (paragraph (b) of this section).
(6) The use of real property (except as required for utilities, modification, etc.).
(d)
(2) Separate subsidiary general ledger accounts and/or files of documents showing the total value of all issues and materiel returned for credit, and supporting documentation will be set up by the finance and accounting office. The accounts will be kept current for each loan action so reports may be made as prescribed; and so that accounts receivable can be processed for billing and collection action.
(e)
(i) Materiel classified as unserviceable, uneconomically reparable will be billed at 100 percent of value.
(ii) Materiel classified as unserviceable, economically reparable will be billed for reduced utility (if appropriate) as well as for repair/overhaul costs.
(iii) The depreciation of borrowed materiel will be determined by technical inspectors according to Army Regulation 735-11. When qualified inspectors are not available, returned property will be received with “condition” shown as “subject to final classification by DA.” Accountable property officers will complete classification promptly so charges and billing can be made within 30 days of return of materiel.
(2) All returned property which needs repair will be examined by a technical inspector to find cost of repair. Then the accountable property officer will prepare a property transaction record with supporting documents. These records will be sent to the proper MACOM commander or CINC of UCOM for final review. They will include—
(i) A statement on the transaction record identifying the financial account to which the reimbursement money is to be deposited.
(ii) A statement on the transaction record (if appropriate) as follows: “The losses and/or damages shown on the Property Transaction Record in the amount of $——— represent the total claim by the US Army for property loaned to ————————. Upon settlement and deposit to the proper account, lender releases the ———————— from further obligations.”
(iii) A description of the type and degree of repair (separate addendum).
(3) After the final review, an approved list of charges will be sent to the servicing finance office for collection. The property will be released for repair and returned to stock.
(4) The finance office will send a letter to the borrower requesting payment (payable to the Treasurer of the United States). Upon payment, collection documents will be prepared and fiscal accounts credited. The MACOM or UCOM Surgeon will ensure the stock fund is reimbursed for expendable medical supply losses reported.
(5) The finance office will advise the loaning accountable property officer that settlement has been made. Property transaction records will be closed.
(6) The approving authority will then return the bond to the borrower.
(7) The value of supplies and equipment returned to the Army will be credited to the account originally debited at the time of issue. FDAA Regional Directors may find that it is not in the public interest to return borrowed materiel that has not been consumed, lost, or damaged. They will negotiate with the CONUS Army concerned for proper reimbursement for the borrowed materiel not returned.
(f)
(2) If this does not settle the account, then 6 months after the final report and after all collection efforts have failed—
(i) Servicing finance offices will send delinquent “accounts receivable” reports to commanders of CONUS Armies and DARCOM readiness commands, and to CINCs of UCOMs, by forwarding—
(A) Duplicate copies of Standard Form 1080 billing documents showing complete accounting classification to which reimbursement is to be credited.
(B) Duplicate copies of all supporting documents.
(C) One copy of any correspondence showing the reason(s) for nonpayment of the account.
(ii) The CONUS Army Commanding General, CINC of UCOM, or Commanding Generals of DARCOM Materiel Readiness Commands, will also try to collect for these delinquent accounts. If all efforts fail, these accounts, (with any delinquent accounts applicable to billings initiated within their own headquarters) will be sent to the Director of Comproller Systems, HQDA (DACA-BUS). (Para 1, app B). The letter of transmittal will state that the accounts are transferred according to this regulation. A copy will be sent to the FAO handling the accounts. The FAO will then transfer the account to inactive status. A Standard Form 1017G (Journal Voucher) will be prepared showing a debit to account 3052 (Transfer of Accounts Receivable) and a credit to the proper accounts receivable.
(iii) Appropriations available to the accountable property officer or installation will be used for reimbursing; e.g., the Army Stock Fund or Army Industrial Fund accounts. Any later reimbursements received will be credited to the Army appropriation from which payment was made.
(3) Upon receipt of the accounts included in paragraph (f)(2) of this section, the Comptroller, HQDA (DACA-BUS), will take further collecton action under normal operating procedures. All later collection action is the responsibility of the Comptroller. Accounting records and reports will conform with normal procedures. When further collection effort by the Comptroller fails, these accounts will be dropped from receivable balances of the Army. They will be referred to the General Accounting Office (GAO).
(a)
(b)
(i) Supporting unit.
(ii) Home station of supporting unit.
(iii) Support provided and duration of requirement.
(iv) Changes, if any, in support requested or duration of requirement as made by the Federal civil official in charge.
(v) Additional remarks.
(2) A final report noting termination of support will be made.
(c)
(2) A roster of club members will list each member required to fire annually. It will include the full name, address, and age; the DCM course; score; and the date the member fired for record.
(3) A description of the club's procedures and facilities for safekeeping arms and ammunition will be appended to the roster of club members.
(d)
(i) Type I—Requests to meet an urgent need during an actual disorder.
(ii) Type II—Requests in anticipation of an imminent civil disorder.
(2) Approving authorities, other than the Secretary of the Army, will prepare reports (RCS DD-A(AR)1112) on all requests for loan of Army materiel to support civil disturbances. The reports will be sent within 2 working days after receipt of the request. They will be prepared in the format shown in Army Regulation 500-60. They will also serve as “the request” when no other written request is available.
(3) The reports will be sent to the (HQDA (DAMO-ODS)). When reports are received from unified or specified commands, ODCSOPS will send an information copy to the Joint Chiefs of Staff (JCS) National Military Command Center (NMCC).
(4) The Secretary of the Army will send information copies of civil disorder reports to the DOD General Counsel and the US Deputy Attorney General.
(5) Reports of civil disturbance operation costs (RCS DD-A(AR)1112) also will be prepared as shown in Army Regulation 500-60.
(e)
(1)
(2)
(3)
(i) An historic account of the disaster.
(ii) Cumulative totals of support given.
(iii) A statement of accomplishments.
(iv) Actual or estimated expenses excluding costs incurred by the Corps of Engineers under Pub. L. 84-99. Costs will be reported by Service by appropriation, using three columns to identify normal costs, incremental costs, and total costs.
(v) The status of reimbursements requested from borrowing Federal agencies, and civilian authorities and activities. If reimbursement has not been completed by the date of the final report, a separate cost report will be sent upon final reimbursement payment.
(vi) Lessons learned.
(4)
(5)
(6)
(f)
(2) Based on information received in these reports, ODCSOPS will prepare a report of the drug and narcotics interdiction assistance given by the Army. This report will be sent through the Army Chief of Staff to the Secretary of the Army.
(g)
(h)
* Telephone numbers are provided for principal loan approving authorities and agencies responsible for specific loans IAW table 2-1.
Comptroller General Decision, B-190440, 20 January 1978.
This regulation provides guidance, and authorizes dependents to accompany a Corps employee on Temporary Duty (TDY) in a Government-owned or leased motor vehicle.
This regulation is applicable to all field operating agencies authorized to operate or lease Administrative Use Motor Vehicles.
(a) Title 31, U.S. Code, section 638.
(b) Comptroller General Decision, 25 Comp. Gen. 844(1946) B-57732.
(c) Comptroller General Decision, 54 Comp. Gen. 855(1975) B-178342.
(d) Comptroller General Decision, B-190440, 20 January 1978.
(e) DOD Regulation 4500.36-R June 1977.
Pursuant to the authorities, penalties and interpretations cited in the preceding references, Commanders/Directors of field operating agencies may authorize dependents to accompany a
(a) The Commanders/Directors of field operating agencies must make a Determination that transportation of the dependent is in “the interest of the Government”.
(b) A determination of “the interest of the Government” is a matter of administrative discretion, taking into consideration the following limitations:
(1) The use of motor vehicles shall be restricted to the “official use” of the vehicles, and any questions concerning “official use” shall be resolved in favor of strict compliance with statutory provisions and policies of this and other pertinent regulations.
(2) When the travel of the dependent is in “the interest of the Government” and incidentally provides a convenience to the employee, then there can be no objection to the employee's enjoyment of that convenience. However, the convenience of itself, provides no justification to authorize dependent travel.
(3) Dependent travel will not be provided or authorized when justification is based on reasons of rank or prestige.
(4) Transportation to, from and between locations for the purpose of conducting personal business or engaging in other activities of a personal nature by military personnel, civilian officials and employees, members of their families or others is prohibited.
(c) Increased travel time (rest stops) and operational inefficiency (added weight) occasioned by the number of dependents to be transported will also be considered.
(d) Dependents must understand and agree never to operate the motor vehicle consigned to the employee for official travel.
(e) Neither the seating capacity nor the size of the motor vehicle will be changed or increased to accommodate dependent travel.
(f) Motor vehicles as used in this regulation applies to all types of motor vehicles, owned, consigned to or leased by the Corps of Engineers.
(a) In view of the potential liability the Government could incur by allowing dependents to accompany an employee in a government-owned, consigned or leased motor vehicle, a Dependent Travel Waiver of Liability will be obtained prior to each and every trip. Suggested language for such waiver is set forth in appendix A.
(b) When dependents are to be transported in a GSA rented vehicle, an extra signed copy of the Dependent Travel Waiver will be furnished the GSA Interagency Motor Pool from which the vehicle is acquired.
5 U.S.C. 102, 10 U.S.C. 21, 111, 151-158, 42 U.S.C. 216, 50 U.S.C. 1431; Pub. L. 101-510, 104 Stat. 1516.
(a) This regulation prescribes Department of the Army (DA) safety policy, responsibilities, and procedures for biological defense research, development, test, and evaluation (RDTE) operations.
(b) DA Pam 385-69 prescribes the minimum safety criteria and technical requirements for the Army biological defense safety program and will be used in conjunction with this regulation to establish and implement the biological defense safety program.
Required and related publications are listed in appendix A of this part.
Abbreviations and special terms used in this regulation are explained in the appendix B of this part.
(a) The Assistant Secretary of the Army (Installations, Logistics, and Environment) (ASA(IL&E)) establishes overall Army occupational safety and health policy and maintains oversight of the following—
(1) All aspects of environment, safety, and occupational health statutory compliance.
(2) Safe biological defense RDTE operations.
(b) The Assistant Secretary of the Army (Research, Development, and Acquisition) (ASA(RDA)). Establishes overall Army RDA policy and will—
(1) Integrate, coordinate, and manage Army efforts to increase effectiveness of biological defense technologies, materiel research, and the development and acquisition program.
(2) Review and validate all future biological defense RDTE facility construction or renovation requirements before any organization initiates these construction or renovation programs.
(c) The Director of Army Safety (DASAF), Office of the Chief of Staff, Army (OCSA), administers and directs the Army Safety Program as specified in AR 385-10. The DASAF will—
(1) Manage Army-wide safety policy and guidance for biological defense RDTA programs as a part of the Army Safety Program.
(2) Approve all actions that imply or establish a DA safety position for biological defense RDTE covered by this part.
(3) Represent DA on all biological defense RDTE safety studies and reviews.
(4) Develop safety policy and standards for biological defense RDTE operations.
(5) Develop Army level safety program guidance.
(6) Conduct an annual management review of the biological defense occupational safety and health programs of commands with Biological Defense
(7) Conduct biological defense safety evaluation visits, and advise the Army Staff (ARSTAF) of concerns, trends, and needed corrective actions.
(8) Develop policies and provide guidance for executing the Biological Defense Safety Program.
(9) Conduct the review of general construction plans for biological defense RDTE facilities.
(10) Establish procedures to investigate biological defense related mishaps, referenced in AR 385-40.
(11) Serve as proponent for Army biological safety training.
(d) The Commanding General, United States Army Corps of Engineers, (CG, USACE) will establish procedures to ensure that biological defense RDTE facilities are designed, constructed, and acquired in accordance with current Federal, State, Department of Defense (DOD), and DA regulatory standards.
(e) The Surgeon General (TSG) will—
(1) Develop occupational health standards and medical support policies for the BDP.
(2) Provide advice and guidance for health hazard assessments and medical surveillance in accordance with current directives and policies.
(3) Provide medical guidance for selecting appropriate protective equipment for use in the BDP.
(4) Provide a representative to each BDP special safety study group.
(5) Provide occupational health support to the DASAF for conduct of annual management reviews (§ 624.4(c)(6)).
(f) The Commander, United States Army Medical Research and Development Command (USAMRDC), in addition to major Army commands (MACOMs) responsibilities, will—
(1) Conduct safety site assistance visits at BDP Army research facilities, on a periodic basis as determined necessary by the DASAF, and advise the ARSTAF of findings and recommendations.
(2) Provide a group member for all other studies and reviews.
(3) Assist Headquarters, Department of the Army (HQDA) in its oversight role of monitoring biological defense RDTE activities throughout the Army and advise HQDA on concerns, trends, and corrective actions required.
(4) Assist the DASAF in performing biological defense safety program mishap investigations.
(5) Assist the DASAF in developing biological defense safety policy and recommend changes to policies and procedures.
(6) Serve as the proponent for the BDP Special Immunization Program.
(g) MACOM Commanders with a BDP mission will—(1) Establish and operate an effective safety program.
(2) Publish a command program to implement HQDA biological safety standards and to identify responsibilities for all subordinate organizations that maintain, store, handle, use, transport, or dispose of etiologic agents used in the BDP.
(3) Supervise subordinate organizations to ensure that an effective safety program, which complies with this regulation, DA Pam 385-69, and AR 385-10 is implemented and maintained.
(4) Ensure that biological defense safety programs comply with the provisions of this regulation and DA Pam 385-69.
(5) Appoint a safety and health manager per AR 385-10, who is occupationally qualified under Office of Personnel Management standards and has special knowledge of biological safety and health requirements. This safety and health manager should be the single point of contact for all aspects of the BDP Safety Program.
(6) Review standing operating procedures (SOPs) for biological defense RDTE operations.
(7) Develop and submit general construction plans for approval through command channels to HQDA, Army Safety Office, DACS-SF, WASH DC 20310-0200.
(8) Approve or disapprove individual access to etiologic agent restricted areas.
(9) Implement a Chemical Hygiene Plan, as appropriate, which meets the requirement of 29 CFR 1910.1450.
(a) This regulation applies to BDP RDTE operations involving etiologic agents being investigated by DA for biological defense purposes.
(b) Specific biological safety requirements and guidance are contained in DA Pam 385-69.
Biological defense RDTE related mishaps will be reported and investigated per AR 385-40 and AR 40-400. Med 16 Report will be used to report only personnel exposure or illness related to the BDP.
(a) The cardinal principle for safety in BDP operations is to minimize the potential exposure of personnel to etiologic agents. In practice, this means conducting RDTE activities using the appropriate facilities, equipment, and procedures for the biosafety level (BL), and requiring only the minimum number of appropriately trained personnel, the minimum period of time, and minimum amount of the material, consistent with program objectives and safe operations.
(b) Open air testing under the BDP is restricted to use of simulants only, unless the Secretary of Defense determines that testing is necessary for national security in accordance with section 409, Public Law 91-121, 83 Stat. 204, signed November 18, 1967. Also, for RDTE involving protective equipment or detection devices, the least hazardous etiologic agent consistent with mission objectives will be employed. All testing of such equipment employing etiologic agents will be in appropriate biosafety level containment laboratories.
(c) A hazard analysis, to determine safety precautions, necessary personnel protection and engineering features, and procedures to prevent exposure, will be completed for—
(1) All BDP operations involving etiologic agents.
(2) A change in process or control measures that may increase potential contact or concentrations of biological material.
(d) An SOP is required for all biological defense RDTE operations. The SOP will—
(1) Describe in detail all necessary operational and safety requirements.
(2) Describe in detail actions to take in the event of mishap.
(3) Describe in detail the location of required emergency response equipment.
(4) Be available at the work site.
(5) Forbid concurrent unrelated work during biological defense RDTE operations within a laboratory area or suite.
(6) Be approved by the commander or the safety officer and signed by workers involved in the operation.
(7) Provide names and telephone numbers of responsible personnel.
(e) Training and information. All personnel who work directly with etiologic agents in the BDP, or who otherwise have a potential for exposure, will receive appropriate training to enable them to work safely and to understand the relative significance of agent exposures.
(1) This training will include signs and symptoms of etiologic agent exposure, information on sources of exposure, possible adverse health affects, and practices and controls used to limit exposures. The environmental and medical monitoring procedures in use, their purposes, worker responsibilities in health protection programs, and handling of laboratory mishaps will also be presented.
(2) Workers will be required to demonstrate proficiency before performing potentially hazardous operations. Refresher training will be repeated at least annually.
(3) Initial and refresher training will be documented and kept on file as a permanent record.
(f) Medical surveillance. A medical surveillance program (see AR 40-5) will be established for all personnel (military and civilian) who may be potentially exposed to etiologic agents.
(1) Placement, periodic medical surveillance examinations, and termination examinations shall be conducted for each worker, to establish a baseline health record and to provide periodic job-related assessments of the worker's health status. Preassignment, periodic, and termination health assessments will include a work history, a medical history, physical examinations, indicated clinical laboratory sutdies and, when available, examinations or tests specific to the etiologic agent in question.
(2) Medical officers responsible for treating BDP etiologic agent exposures and conducting medical surveillance for BDP workers shall receive specialized training on the unique hazards of etiologic agents and recommended medical therapies.
(3) Special immunizations will be given to personnel handling specific etiologic agents as required.
(4) Records documenting the above will be maintained permanently.
(g) Emergency preparedness: (1) SOPs will address emergency procedures related to any mishap involving BDP etiologic agents. Notification and evacuation procedures will be covered in detail, as well as measures to contain the contamination.
(2) Local, regional, State, or Federal emergency support and coordinating agencies, such as law enforcement, fire departments, health departments, and governments will be informed of BDP activities and the appropriate support necessary, to include any equipment and training necessary, to provide effective emergency response and ensure compliance with community “right-to-know” statutes and regulations. Agreements with external agencies must be formalized.
(3) If a mishap with a BDP etiologic agent results in personnel exposure, approved emergency procedures will be immediately initiated to protect personnel and the environment and to constrain the spread of contamination. All personnel except those responsible for emergency operations will evacuate the immediate area.
(4) Special medical surveillance will be started as soon as possible for all workers present in the potentially affected area at the time of the mishap.
(h) Labeling and posting of hazards:
(1) Hazard warning signs which incorporate the universal biohazard symbol will be posted on the access door to the work area. (See DA PAM 385-69, para 3-5a(1).) The sign will be covered or removed if the organizational safety officer certifies that the area has been decontaminated.
(2) For areas irradiated with ultraviolet light, a caution sign reading “Ultraviolet Light, Wear Eye Protection” will be posted.
(i) Disposal controls. Etiologic agents used in the BDP must be decontaminated before disposal of infectious or hazardous wastes and must not violate any Army, Federal, State, local, or host nation environmental standards. Procedures for decontamination are described in DA Pam 385-69.
(1) The preferred methods of decontamination of etiologic agents are autoclaving or chemical inactivation with appropriate biocidal solutions. (See chap 5, DA Pam 385-69.)
(2) Etiologic agents awaiting decontamination will be contained at the appropriate biosafety level.
(j) Maintenance controls. A continuing program for equipment and facility maintenance will be implemented for each BDP operation.
(k) Protective equipment. Guidance concerning protective equipment is contained in DA Pam 385-69.
(a) Facility engineering controls and appropriate biocontainment equipment will be used, in conjunction with special practices and procedures, to minimize potential exposure of personnel and the environment to etiologic agents used in BDP operations. Engineering and equipment controls will be implemented to the maximum extent feasible and verified as effective. Protective clothing will not be used in lieu of engineering controls. Engineering controls will be the prime means of biocontainment. Personal protective equipment such as respirators are to be used only after feasible engineering controls have been shown unable to control the environment fully.
(b) Before beginning any etiologic agent operation, a determination will be made that the hazards associated
(a) Biosafety laboratories require periodic (at least quarterly for BL-1 and BL-2 and monthly for BL-3 and BL-4 laboratories), inspections by safety and health professionals. Safety officials will document the inspections, assure that deviations from safe practices are recorded, and that recommended corrective actions are taken. If deviations are life threatening, this area will be restricted until corrective actions are accomplished. New RDTE efforts involving etiologic agents will be evaluated and inspected prior to start-up to assure equipment, facilities, employee training, and procedures are in place and adequate for the introduction of BDP material. Safety officials will maintain such records for 3 years and will review the records at least annually for trends requiring corrective actions.
(b) Supervisors shall inspect work areas frequently (at least weekly) and take corrective actions promptly.
(a) Etiologic agents utilized in the BDP shall be packed, labeled, marked, prepared for shipment, and shipped in accordance with applicable Federal, State, and local laws and regulations, to include 42 CFR part 72, “Interstate Shipment of Etiologic Agents,” 49 CFR parts 172 and 173 (Department of Transportation), 9 CFR part 122 (USDA Restricted Animal Pathogens), and DA Pam 385-69.
(b) Etiologic agents shipped to support the BDP will use secondary shipping containers which are sealed with a crimped lid (see app D, DA Pam 385-69).
(c) BDP organizations and contractors who provide etiologic agents will ship all etiologic agents by private carrier. The United States Postal Service will not be used to transport etiologic agents required for the BDP.
(d) In addition to the above requirements, shipments of BL-4 etiologic agents will be hand carried by Government courier or under the immediate supervision of a responsible party. This individual must be knowledgeable about the potential hazards of the materials and be able to monitor all aspects of the shipment to ensure that required transfers have been completed and documented and final receipt has been accomplished and acknowledged.
(e) Audit trails of all BDP etiologic agent shipments and receipts of such agents shall be established and maintained for at least 3 years. Such audit trails shall identify date of shipment, carrier, addresses of the shipper and recipient, and agent(s) shipped and received.
General construction plans for BDP facilities, as well as for changes in use of facilities, will be submitted through the chain of command to HQDA, Army Safety Office, DACS-SF, WASH DC 20310-0200 for safety review and approval. Plans shall be forwarded for new construction or major modifications of facilities used in the BDP. The facility system safety requirements of AR 385-16 and AR 415-15 shall be followed. Simultaneously, RDTE requirements that necessitate such renovation, modification, or construction shall be submitted through the chain of command to HQDA, OASA(RDA), SARD-ZT, WASH DC 20310-0103 for review and approval.
(a) Because of the complexity of the RDTE conducted in the BDP, the range of potential consequences that could be associated with a mishap must be considered. MCE is a risk analysis technique which provides a useful tool for estimating the effectiveness of existing safeguards. The potential for events must be carefully analyzed to determine the MCE that could occur and cause a mishap. All hazard analysis and general construction plans mentioned in § 626.11 will include a consideration of an MCE.
(b) The term MCE, as used herein, is analogous to a realistic worst-case analysis. The best available credible information will be applied to estimate
(c) When considering an MCE, consider the redundancy of safety systems engineered into the facilities and the equipment used, depending on containment level required to make them as fail-safe as practical. The MCE for containment laboratories must be considered in terms of physical containment for both toxins and biological organisms. Therefore, both toxin and biological MCEs will be considered.
(d) Because aerosols of etiologic agents represent the most significant potential hazard for exposure of workers or the environment, a hazard analysis (to include MCE) of proposed BDP RDTE activities will be performed to determine the procedures, engineering controls, and facility design required to mitigate potential significant hazards.
(a) Personnel who are not needed to operate a BDP laboratory, will not be allowed to enter potentially hazardous areas.
(b) Written procedures to control access and ensure that personnel can be evacuated or protected from exposure may be used in place of absolute personnel exclusion.
(a) The goal of the biological defense safety program is strict adherence to safety standards and the elimination of all waivers and exemptions.
(b) Waiver authority. (1) The Chief of Staff, Army (CSA) is the controlling authority for granting waivers of biological defense safety standards. This authority is redelegated by this regulation to commanders of MACOMs and the commander of the USAMRDC.
(2) Waiver authority will not be subdelegated.
(3) Commanders with waiver authority will—
(i) Ensure the existence of necessary and compelling reasons before granting waivers.
(ii) Grant waivers to standards for installations and activities within their areas of authority.
(c) Waiver requests: (1) Commanders of installations and activities will submit a request for waiver when compliance with these standards cannot be achieved. When such waivers affect on other commands, initiating activities will coordinate requests with those commands.
(2) Requests for waivers will contain the following information:
(i) Description of conditions. State the mission requirements and compelling reasons which make the waiver essential and the impact if not approved, and describe all affected sites or facilities and the quantity and type of BDP required.
(ii) The safety regulations, including specific safety requirements or conditions cited by paragraph, from which the waiver is requested, and the reasons for the waiver.
(iii) Specific time period for which the waiver is requested.
(iv) A hazard analysis which identifies actual and potential hazards which can result from the waived requirements or conditions.
(v) A risk assessment that provides information on the risk being assumed because of the waiver. The assessment will include those safety precautions and compensatory measures in force during the waiver period.
(vi) A waiver abatement plan to include milestones, resources, and actions planned to eliminate the need for the waiver.
(3) Requests for waivers will be forwarded through command channels to the MACOM or CG, USAMRDC, as appropriate, for approval. MACOM or USAMRDC safety officials will forward a copy of approved waivers to HQDA, DACS-SF, WASH DC 20310-0200. Copies of all waivers will be maintained at the installation and MACOM or USAMRDC Safety Offices for up to 3 years after the waiver is terminated.
(4) Time limitations: (i) Waivers are normally limited to 1 year or less, and will be considered rescinded after 1 year, unless reviewed. The activity or
(ii) Waivers may be renewed each year by the commander originally granting the waiver for a waiver period not to exceed 5 years. Prior renewal, commanders will review the need for the waiver to ensure that circumstances requiring the waiver have not changed. Results of this review (and a progress report regarding milestones that have been completed) will be forwarded through command channels to the commander originally granting the waiver.
(iii) A request for amendment will be initiated when factors or circumstances requiring a change to the original waiver are identified.
(iv) When factors or circumstances prevent correction of the waiver condition within 5 years of the initial approval of the waiver, such condition becomes a candidate for an exemption.
(d) Exemptions. (1) Exemptions are relatively long-term exceptions to otherwise mandatory standards. Exemptions will be granted only under the following conditions:
(i) If corrective measures are impractical.
(ii) If impairment of the overall defense posture would result.
(iii) If positive programs to eliminate of the need for the exemption are being pursued.
(2) Exemptions can be approved only by the Secretary of the Army.
(i) Requests for exemptions will be sent through command channels to HQDA, DACS-SF, WASH DC 20310-0200.
(ii) Exemption requests will include the information required in paragraph(c)(2) of this section.
(iii) Copies of exemption requests will be maintained at the installation and MACOM or USAMRDC Safety Offices.
The contracting agency will prepare written procedures for reviewing contractor capability to safely perform BDP work with etiologic agents. The written procedures will describe the criteria and guidelines for preparing the facilities description, safety requirements, special procedures and techniques, inspection procedures, and MCE scenarios. These written procedures will be submitted to the contracting agency MACOM for review and approval.
Contracting agencies, in coordination with their respective Command safety offices will monitor contractor performance in meeting safety requirements.
(a) The contracting agency will establish an inspection program and schedule for all BDP contractors who perform contract work with BL-3 or BL-4. Inspections will be conducted by safety and health personnel. The schedule will include, as a minimum, the following:
(1) A pre-award inspection on site, prior to contact award, for initial contracts for BDP work requiring BL-3 or BL-4 operations. If during a pre-award inspection, major corrective measures are required, a reinspection is required prior to the beginning of contract operations.
(2) A pre-award inspection of follow-on BL-3 and BL-4 contracts.
(3) A pre-operational inspection if a major change in procedures, facilities, or equipment is made after the pre-award survey.
(4) Annual inspection of BL-3 and seminannual inspection of BL-4 contractor facilities, equipment, and operations.
(b) Pre-award surveys and annual inspections of contractors performing work requiring BL-3 or BL-4 will be conducted by safety and health professionals trained in BDP operational safety requirements. Pre-award surveys and annual inspections of BL-1 and BL-2 contractors will be conducted by safety and health professionals or contracting agency representatives who are trained in biological safety inspection techniques. The Safety Inspection Checklist in DA Pam 385-69 will be used.
(c) The contracting agency will require each BDP contractor whose contract requires the use of etiologic
(1) A safety training program for all individuals working with etiologic agents must be documented by the contractor and include, as a minimum, the requirements in § 626.7(e). Appropriate safety training will be provided to scientists, other laboratory personnel, and unrelated personnel such as technicians, clerical, and maintenance workers. This training will be documented.
(2) The contractor must designate a qualified individual to be responsible for the entire safety program with full authority to develop and enforce contractor safety policies. Regular safety inspections will be conducted and inspection reports will be provided to the contracting agency upon request.
(3) Policies for storing, handling, and moving etiologic agents within the contractor facility shall be included in the plan.
(4) Policies and procedures for disposal of any etiologic agent waste must be identified. Disposal must comply with Federal, State, and local regulations as well as DOD and Army requirements.
(5) An SOP must be established for each area where BDP etiologic agents are stored, transferred, or used. In addition, an SOP must be prepared for operations unique to any specific contract. The contractor will provide the SOP to contracting agency personnel upon request for review.
(6) For contracts requiring BL-3 or BL-4, the contractor will provide (upon request) facility engineering drawings and specifications for the relevant etiologic agent containment areas, associated ventilation systems, and local approving authority. Also to be included is test data verifying that all systems adequately meet the DOD and Army safety requirements, as well as test methods for periodic recertification of the system.
(7) MCE scenarios that ensure that all realistic threats are considered at contractor sites, see § 626.12 of this part.
The contractor will submit proposed changes to the original safety documentation to the contracting agency for review prior to implementation. Requests will include justification and test data verifying that adequate safety will be maintained.
(a) Contractors performing work with BL-3 and BL-4 material must prepare a plan detailing procedures for controlling laboratory mishaps involving etiologic agents.
(1) The contractor shall have the necessary equipment and trained personnel for controlling the mishap.
(2) In the event of an incidental release of a BDP etiologic agent from appropriate laboratory biocontainment that may result in personnel exposure, approved emergency procedures will be initiated immediately to effectively protect personnel and the environment and to constrain the spread of contamination. The affected areas will be decontaminated before normal operations are resumed.
(3) Special medical surveillance will be started as soon as possible for all workers present in the potentially affected area at the time of the mishap.
(4) Local emergency support agencies, such as law enforcement, fire departments, health departments, and governments will be informed of BDP activities and the appropriate support necessary, to include any equipment and training to provide effective emergency response. Agreements with external agencies must be formalized.
(5) The contractor shall be required to review the plan annually and consult external agencies if there is an agreement for them to provide assistance. This should be done in coordination with the contracting agency.
(b) [Reserved]
(a) Safety studies and reviews are conducted to assure that maximum safety and health measures are being taken to prevent mishaps involving BDP etiologic agents in any amount or under any conditions that may cause incapacitation, illness, or death to any person, or adverse effects on the public or to the environment.
(b) The system safety requirements of AR 385-16 will be followed during all BDP safety studies and reviews.
Any HQDA agency may recommend a special study or review of an etiologic agent or system when it becomes necessary to investigate the condition or changes described below. The responsbile HQDA agency will determine the scope and conduct the study or review. Special study activities will be coordinated with HQDA, DACS-SF, WASH DC 20310-0200.
(a) Conditions or practices which may affect safety.
(b) Major system modifications including both design and physical configuration changes.
(c) Significant changes to safety, health, and environmental protection standards and requirements that affect BDP operations.
These publications can be obtained from the National Technical Information Services, U.S. Department of Commerce, 5285 Port Royal Road, Springfield, Virginia 22161.
A related publication is merely a source of additional information. The user does not have to read it to understand this regulation.
An event in which the failure of laboratory facilities, equipment, or procedures appropriate to the level of potential pathogenicity or toxicity of a given etiologic agent (organism or toxin) may allow the unintentional, potential exposure of humans or the laboratory environment to that agent. Mishaps can be categorized into those resulting in confirmed exposures and those resulting in potential exposures. A confirmed accidental exposure is any mishap in which there was direct evidence of an exposure, such as a measurable rise in specific antibody titer to the etiologic agent in question, or a confirmed diagnosis of intoxication or disease. A potential exposure is any mishap in which there was reason to believe that anyone working with an etiologic agent may have been exposed to that agent, yet no measurable rise in specific antibody titer or diagnosis of illness or disease can be found. However, there is reason to believe in such a case that the possibility existed for introduction of an etiologic agent through mucous membranes, the respiratory tract, broken skin, or the circulatory system as a direct result of the incident or injury.
An area which meets the requirements for a BL-3 or BL-4 facility. The area may be an entire building, a suite of rooms, a single room within a building, or a biological safety cabinet.
Engineering controls designed to enable laboratory workers to handle infectious etiologic agents and to provide primary containment of any resultant aerosol. There are three major classes of cabinets (I, II, and III) and several sub-classes of class II cabinets. Each type of cabinet provides a different degree of protection to personnel and to the products handled inside them.
A combination of facilities, equipment, and procedures used in handling etiologic agents to protect the worker, environment, and the community. This combination is proportional to the potential hazard of the etiologic agent in question.
The facilities, equipment, and procedures suitable for work involving agents of no known or of minimal potential hazard to laboratory personnel and the environment.
The facilities, equipment, and procedures applicable to clinical, diagnostic, or teaching laboratories, suitable for work involving indigenous agents of moderate potential hazard to personnel and the environment. It differs from BL-1 in that (1) laboratory personnel have specific training in handling pathogenic agents, (2) the laboratory is directed by scientists with experience in the handling of specific agents, (3) access to the laboratory is limited when work is being conducted, and (4) certain procedures in which infectious aerosols could be created are conducted in biological safety cabinets or other physical containment equipment. Personnel must be trained. Strict adherence to recommended practices is as important in attaining the maximum containment capability as is the mechanical performance of the equipment itself.
The facilities, equipment, and procedures applicable to clinical, diagnostic, research, or production facilities in which work is performed with indigenous or exotic agents where there is potential for infection by aerosol and the disease may have serious or lethal consequences. It differs from BL-2 in that (1) more extensive training in handling pathogenic and potentially lethal agents is necessary for laboratory personnel, (2) all procedures involving the manipulation of infectious material are conducted within biological safety cabinets, or by other physical containment devices, (3) the laboratory has special engineering and design features, including access zones, sealed penetrations, and directional airflow, and (4) any modification of BL-3 recommendations must be made only by the commander.
The facilities, equipment, and procedures required for work with dangerous and exotic agents which pose a high individual risk of life-threatening disease. It differs from BL-3 in that (1) members of the laboratory staff have specific and thorough training in handling extremely hazardous infectious agents, (2) laboratory personnel understand the primary and secondary containment functions of the standard and special practices, containment equipment, and laboratory design characteristics, (3) access to the laboratory is strictly controlled by the commander, (4) the facility is either in a separate building or in a controlled area within a building, which
A structure that contains the requisite components necessary to support a facility that is designed according to the required biosafety level. The building can contain one or more facilities conforming to one or more biosafety levels.
Any mishap with a BDP agent in which there was direct evidence of an actual exposure such as: A measurable raise in antibody titer to the agent, or a confirmed diagnosis of intoxication or disease.
The physical or chemical processes by which an object or area, contaminated with a harmful or potentially harmful etiologic agent, is made safe for handling or use. Such processes include physical removal of all contaminants, thermal destruction of biological activity (sterilization), chemical inactivation (biocidal process), or a combination of these methods.
A viable microorganism, or its toxin which causes or may cause human disease, and includes those agents listed in 42 CFR 72.3 of the Department of Health and Human Services regulations, and any material of biological origin that poses a degree of hazard similar to those organisms.
A permanent written exemption approved by HQDA for a requirement imposed by this regulation. An exemption is based on a determination that conformity to the established standard is impossible, highly impracticable, unnecessary, or not in the best interest of the United States Government.
Any one-time treatment, and any follow-up visit for the purpose of observation of minor scratches, cuts, burns, splinters, and so forth, which do not ordinarily require medical care. Such one-time treatment, and follow-up visit for observation, is considered first aid, even through provided by a physician or registered medical professional personnel.
A filter which removes particulate matter down to sub-micron sized particles from the air passed through it with a minimum efficiency of 99.97 percent. HEPA filters remove particulate matter with great efficiency while vapors and gases (for example from volatile chemicals) are not removed and pass through unrestricted. HEPA filters are used as the primary means of removing infectious agents from air exhausted from engineering controls and facilities.
The commander of an Army activity conducting RDTE with BDP etiologic agents, or the equivalent at a research organization under contract to the BDP.
An organization such as an Army RDTE activity (institute, agency, center, or similar facility) or a contract organization such as a school of medicine or research institute that conducts RDTE with BDP etiologic agents.
An individual room or rooms within a facility that provides space in which work with etiologic agents may be performed. It contains all of the appropriate engineering features and equipment required at a given biosafety level to protect personnel working in the laboratory and the environment external to the facility.
Any mishap in which there was reason to believe that anyone working with a BDP material may have been exposed to that material, yet no measurable rise in antibody titer or diagnosis of intoxication or disease was made. However, the high probability existed for introduction of an agent through mucous membranes, ingestion, respiratory tract, broken skin, or circulatory system as a direct result of the accident, injury, or incident.
The waste materials listed by Environmental Protection Agency under authority of the RCRA for which the disposal is regulated by the Environmental Protection Agency. A description and listing of these wastes is located in 40 CFR part 261.
The complete destruction of all forms of microbial life.
An area consisting of more than one room, and designed to be a functional unit in which laboratory operations can be conducted. Suites may contain a combination of laboratories and animal holding rooms or both and associated support areas within a facility that are designed to conform to a particular biosafety level. There may be one or more suites within a facility.
Toxic material of biologic origin that has been isolated from the parent organism. The toxic material of plants, animals, or microorganisms.
A temporary (1 year or less) written relief from a requirement imposed by this regulation, pending accomplishment of actions or programs which will result in conformance to the required standards. Waivers will not be extended beyond 5 years.
5 U.S.C. 102, 21 U.S.C. 111, 151-158; 42 U.S.C. 216; sec. 361, 58 Stat. 703 and 264; 49 U.S.C. App. 1803, 1804, 1807, and 1808; 50 U.S.C. 1431, 29 CFR 1910. 1450(e) and Public Law 101-510, 104 Stat. 1516.
This pamphlet prescribes the technical safety requirements for the use, handling, shipment, storage, and disposal of etiologic agents used in research, development, test, and evaluation (RDTE) for the Biological Defense Program (BDP)
The United States Army BDP, on behalf of the Department of Defense, supports RDTE efforts to maintain and develop defensive measures and materiel to meet potential biological warfare threats. The program's objectives are to develop measures for identification, detection, treatment, protection against, and decontamination of these threats. To meet the program objectives, etiologic agents are used to conduct the necessary handling, storage, shipment, and disposal of etiologic agents. This pamphlet describes requirements based on Centers for Disease Control-National Institute of Health (CDC) (NIH) guidelines, Biosafety in Microbiological and Biomedical Laboratories, and establishes guidelines for toxins.
The requirements stated in this pamphlet apply to all elements of the Army to include the ARNG and the USAR and its contractors and subcontractors who use, produce, store, handle, or ship etiologic agents in support of the BDP, regardless of the source of the agent(s).
Required and related publications are listed in appendix A of this part.
Abbreviations and special terms used in this part are explained in appendix F of this part.
Each BDP institution must have a safety program that complies with AR 385-10, AR 385-69, and this pamphlet. In addition, the safety program must be designed to ensure compliance with—
(a) Occupational Safety and Health Administration (OSHA) requirements for health and safety.
(b) Environmental Protection Agency (EPA) regulations designed to implement the Resource Conservation and Recovery Act (RCRA) and the National Environmental Policy Act (NEPA).
(c) Nuclear Regulatory Commission (NRC) requirements for safe handling of radioactive isotopes (when applicable).
(d) NIH Guidelines for Research Involving Recombinant Deoxyribonucleic Acid (DNA) Molecules.
(e) Relevant national, State, and local regulations.
(f) Any requirements of applicable accrediting bodies.
The goals of the laboratory safety program are to protect those working in the laboratory, others who may potentially be exposed to hazards in the laboratory, and the environment. In addition, a laboratory safety program should ensure that hazardous materials will be handled and disposed of in such a way that people, other living organisms, and the environment are protected from harm. Safety awareness must be a part of everyone's habits, and can only be achieved if all senior and responsible staff have a sincere, visible, and continuing interest in preventing injuries and occupational illnesses. Laboratory personnel, for their part, must carry out their work in a way that protects themselves and their fellow workers.
(a)
(1) The commander or institute director, along with all personnel, must have a continuing, observable, and known commitment to the safety program.
(2) An effective institutional safety program requires a safety officer appropriately trained in relevant safety technology. This individual, besides supplying advice and recommendations, will ensure that records are kept showing that the institution's physical facilities and safety rules are internally consistent and compatible with potential risks, as well as in compliance with all applicable laws, regulations, and guidelines.
(3) The commander ensures safety in every department or other equivalent administrative unit of the institution. Ensuring safe operations is an integral function of each level of management through the first line supervisor. The safety office staff must work closely with administrators and investigators to develop and implement written policies and practices that promote safe laboratory work. Collectively, this group routinely must monitor current operations and practices, see that appropriate audits are maintained, and continue to seek ways to improve the safety program.
(4) Safety is a critical job element for each member of the scientific and technical staff. Each individual working in the laboratory must perform his or her job in a manner consistent with safety policy and training.
(5) If laboratory goals dictate operations or substances not suited to the existing facilities or equipment, the laboratory supervisor will, assisted by the safety officer, advise and assist the laboratory worker in developing or obtaining adequate facilities or equipment and designing appropriate work procedures.
(6) The supervisor will authorize each specific operation, delineate appropriate safety procedures, and instruct those who carry out the operation.
(7) Potential hazards will be identified before work with etiologic agents begins, and actions necessary to avoid accidents and illnesses will be implemented. This practice, called a job safety analysis, consists of breaking a job down into its logical steps, analyzing each for its hazard potential, and deciding the safe procedures to use. The process will be designed by a project director with input from employees, and each step with potential for exposure or other incidents must be described in writing in a standing operating procedure (SOP). All such SOPs will be approved by, at a minimum, the commander or institute director and the safety officer.
(8) The job safety analysis will include a consideration of health hazards identified in AR 40-10 and of maximum credible events as described in paragraph 2-8, AR 385-69.
(b)
(1) Be coordinated with institutional and Federal, State, and local emergency services.
(2) Be practiced with the emergency groups whose services are part of that plan prior to any need for their services, so that they can become familiar with any potential problem areas that may be encountered when they are called upon for assistance.
(3) Describe the method of rapid communication (for telephone, alarms, and so forth) that will be used during an emergency.
(4) Describe the institution's etiologic agent labeling system.
(5) Describe the institution's requirements for testing engineering controls (for example, biological safety cabinets and high efficiency particulate air (HEPA) filters) and essential safety equipment (for example, autoclaves) that are used to conduct RDTE funded by the BDP.
(6) Appoint and train personnel responsible for handling an emergency.
(7) Require that emergency telephone numbers be posted, so that emergency service personnel know whom to contact at all times of the day or night.
(8) Describe the institution's rules that have been established and are practiced to limit access to the facilities where etiologic agents under the sponsorship of the BDP are handled. The rules will include the following requirements:
(i) Access to biosafety level (BL)-1 and BL-1 large-scale (LS) laboratories is limited or restricted at the discretion of the commander or institute director when experiments are in progress.
(ii) Access to areas classified as BL-2, BL-2 LS, or where work with toxins is conducted, is limited by the commander or institute director when work with etiologic agents is in progress. Individuals who are at increased risk of acquiring infection or for whom infection may be unusually hazardous are not allowed in the laboratory. Only persons who have been advised of the potential hazard and meet any specific entry requirements (for example, immunization) may enter the individual laboratory or animal rooms. The commander or institute director must assess each circumstance and determine who may enter or work in the laboratory.
(iii) Access to areas classified as BL-3 or BL-3 LS is limited as stated in § 627.7(b)(8)(ii), and is restricted to those persons whose presence in the facility or individual laboratory rooms is required for program or support purposes. Individuals under 18 years of age may not enter the controlled area.
(iv) Access to BL-4 facilities is limited as stated in § 627.7(b)(8) (ii) and (iii). This is done with secure, locked doors with access controlled by the commander or institute director, safety officer, or other person responsible for the physical security of the facility. Before entry, all persons will be advised as to the appropriate safeguards for ensuring their safety. Authorized persons must comply with these instructions and all other applicable entry and exit procedures. A logbook will be maintained for all personnel to indicate the date and time of each entry and exit. A card-key activated computer record (or other electronic entry device) may be used if it indicates the date and time of both entry and exit.
(9) Describe the system that is developed and is operational for the reporting of accidents and exposures, employee absenteeism, and for the medical surveillance of potential laboratory-associated illnesses.
(c)
(1) A staff safety committee, consisting of the commander or institute director or his or her designated representative, research supervisors, managers, medical personnel, employees, and the safety officer, will be established. This group leads the safety effort, reviews mishaps, and recommends changes in policies, safety program, or equipment as needed to improve safety.
(2) Safety committees will meet at least quarterly and minutes will be prepared and maintained for at least 3 years.
(3) When work with recombinant DNA molecules is undertaken, an institutional biosafety committee (IBC) for review of such work will be established and will function as stated in the NIH Guidelines for Research Involving Recombinant DNA Molecules (see appendix A to this part).
(d)
(1) The unique hazards introduced by the activity in the work area.
(2) The methods of controlling these hazards.
(3) Any unique procedures and requirements needed that are not described as universally required in the safety plan (for example, signs, waste disposal, immunizations, emergency procedures, and personnel monitoring).
(4) Specialized orientation or training of personnel beyond that required in the safety plan.
(5) Ways of ensuring that the unique procedures are followed.
(6) Emergency procedures.
(e)
(1) Implement a biological safety training program for all personnel working with hazardous biological or chemical materials.
(2) Publish information addressing useful biological safety advice and accounts of laboratory accidents, along with the lessons to be learned from them.
(3) Make reference books and regulations concerning laboratory hazards, occupational health, and proper laboratory practices readily available.
(4) Assure that material safety data sheets (MSDS) for hazardous chemicals used in the laboratory are readily available to all employees.
(f)
(1) An individual and an alternate will be appointed for each laboratory or room where BDP work is conducted. On a daily basis he or she will monitor the conduct of personnel within their room(s) and maintenance of the room to see that they comply with the safety program and SOPs.
(2) Supervisors will ensure that their projects comply with applicable safety requirements and will audit their areas at least weekly to ensure compliance.
(3) The safety officer or his or her qualified designee will inspect the institution's BL-1, BL-2, and toxin laboratories quarterly. BL-3 and BL-4 laboratories and those in which dry forms of highly potent toxins are handled will be inspected monthly by safety and health professionals. These inspections will be announced and include coverage of general safety practices as well as features specific to a particular biosafety level.
(i) Reports of deficiencies or procedures that create a potentially life-threatening situation will be made directly to supervisory personnel and the commander or institute director and actions will be taken immediately to correct the situation. The operation will not continue until every deficiency is corrected.
(ii) Reports of deficiencies for other than life-threatening situations will be made as soon as possible to the appropriate supervisor, with copies furnished to the commander or institute director. If a problem is widespread, all affected personnel will be notified.
(4) Supervisory personnel notified of safety deficiencies by the safety officer will ensure that the people directly concerned are contacted and that the deficiencies are remedied before operations are resumed.
(5) Malfunctioning equipment must be reported to the appropriate individuals, labeled to indicate that it should not be used, and repaired promptly.
(6) As a minimum, the audits conducted by the safety officer or his or her qualified designee will cover the items listed in appendix C to this part.
(g)
(1) Safety audits and the corrective measures.
(2) Risk assessments for proposed new laboratory procedures.
(3) Annual reviews of established SOPs.
(4) Training.
(5) Engineering controls and protective equipment certifications and tests.
(6) Safety committee meeting minutes and recommendations.
(7) Any outside auditor comments and responses.
An occupational health program will be implemented per AR 40-5, chapter 5, for all employees whose employment requires that they conduct duties in a BDP etiologic agent area. Essential elements of the program will include—
(a)
(b)
(c)
(d)
(e)
(f)
Army activities will maintain medical records in accordance with AR 40-66 and FPM 293-31 for all military and Department of the Army (DA) civilian employees who work with etiologic agents under sponsorship of the BDP.
(a)
(b)
(1) General training—
(i) Personal hygiene related to laboratory work.
(ii) Laboratory practices.
(iii) Personal protective equipment.
(iv) Effective use of engineering controls.
(v) Packaging, transportation, and shipment of etiologic agents (when applicable).
(vi) Hazardous and infectious waste disposal, handling, and minimization procedures.
(2) Training conducted specifically for the facilities that the individual will be working in, including—
(i) Procedures for the facility.
(ii) Reporting incidents and accidents.
(iii) Labeling and posting of signs.
(iv) Biohazardous waste handling, approaches to minimizing the volume of waste, decontamination, packaging, and disposal.
(v) Emergency procedures.
(3) Additional general training required for work in facilities where viable etiologic agents are present.
(i) Aseptic technique and procedures to include hands-on instruction and demonstration of proficiency.
(ii) Concept and definition of biosafety levels.
(iii) Disinfection and sterilization.
(iv) Safe use of workplace equipment, for example autoclave and centrifuge.
(v) Monitoring and auditing requirements.
(vi) Precautions for handling blood, tissues, and body fluids (when applicable).
(vii) The infectivity, pathogenicity, mode(s) of transmission, and medical surveillance requirements of specific agents.
(viii) Training for all new employees will include a period of supervised orientation in the facilities by a scientist or technician with specific training in the procedures and properties of the etiologic agents in use. During the training period, new laboratory personnel will be under the constant supervision of appropriately trained personnel.
(ix) Personnel who are assigned tasks in BL-2, BL-3, or BL-4 facilities will also have specific training in handling pathogens.
(x) Personnel assigned duties in a BL-4 facility will also have specific and thorough training in handling extremely hazardous infectious agents, the primary and secondary containment functions of standard and special practices, use of personal protective equipment, containment equipment, and laboratory design characteristics.
(4) Additional general training for handling toxins will include relevant items from § 627.10 plus—
(i) The availability of reference material on the hazards and safe handling of toxic substances.
(ii) The biological effects of the toxin(s) in use.
(a) Evaluation of the risks. The risk assessment of laboratory activities involving the use of etiologic agents is ultimately a subjective process. Those risks associated with the agent, as well as with any adjunct elements of the activity to be conducted, (chemicals, radioisotopes, end-products, and so forth) must be considered in the assessment. The appropriate biosafety level for work with a particular agent or animal study depends on the virulence, pathogenicity, biological stability, route of transmission, and communicability of the agent; the nature of the laboratory; the procedures and manipulations to be used; the quantity and concentration of the agent; and the availability of effective vaccines or therapeutic measures.
(b) The characteristics of etiologic agents, primary laboratory hazards of working with the agent, and recommended biosafety levels are described by CDC-NIH (HHS publication No. (NIH) 88-8395), the considerations for recombinant DNA molecules are described by NIH, and those for oncogenic viruses are described by NCI-NIH (sources listed below). The commander or institute director will assign work with given etiologic agents to the appropriate biosafety level. A risk assessment should take into account not only the NIH Guidelines for Research Involving Recombinant DNA Molecules, but also potential hazards associated with the organism and the product of the experimentation.
(1) When established guidelines exist, these will be followed. The primary source guidelines are—
(i) HHS Publication No. (NIH) 88-8395, Biosafety in Microbiological and Biomedical Laboratories, as amended, and updates published in Morbidity and Mortality Weekly Report.
(ii) NIH Guidelines for Research Involving Recombinant DNA Molecules (FR 51: 16958-16985 and updates).
(iii) The publication by the American Committee on Arthropod-Borne Viruses Subcommittee on Arbovirus Laboratory Safety (SALS) entitled Laboratory Safety for Arboviruses and Certain Other Viruses of Vertebrates in the American Journal of Tropical Medicine and Hygiene, 29(6), 1980, pp. 1359-1381.
(iv) The Department of Health and Human Services Publication No. (NIH) 76-1165 by the National Cancer Institute (NCI) entitled Biological Safety Manual for Research Involving Oncogenic Viruses.
(2) When samples with unidentified viable agents are obtained, a knowledgeable and qualified scientist will evaluate the risks and make recommendations to the safety officer, who will add recommendations for review and approval by the commander or institute director. When guidelines for a specific organism are not established, in addition to these steps, the CDC or SALS or both will be consulted. Their recommendations will be documented and provided to the commander or institute director before approval.
(c)
(d)
The general requirements for use of etiologic agents are composed of two sets of requirements, with the requirements for toxins being a subset of the requirements for handling viable etiologic agents. These requirements are as follows—
(a)
(1) A fully fastened long-sleeved laboratory coat, gown, uniform, or coveralls will be worn in laboratories or animal rooms.
(2) Eating, drinking, smoking, and applying cosmetics are not permitted in the work areas.
(3) Personnel must wash their hands after they handle etiologic agents or animals, and before leaving the laboratory area.
(4) Mouth pipetting is strictly prohibited. Mechanical pipetting aids must be used.
(5) Gloves—(i) Will be worn when manipulating etiologic agents and handling containers of etiologic agents. Gloves are not required when materials are packaged appropriately for shipment.
(ii) Will be selected based on the hazards.
(iii) Will be changed frequently (or decontaminated frequently), and will be decontaminated or discarded into a labeled biohazard container after each use and immediately upon observable direct contact with an etiologic agent.
(iv) Will be removed at the work-space (workbench or hood) after handling etiologic agents to ensure that doorknobs and other surfaces are not contaminated.
(6) Good housekeeping will be maintained. This includes—
(i) Work areas free of clutter.
(ii) Work environment free of tripping hazards, with adequate access to exits, emergency equipment, controls, and such.
(iii) Benches and general work areas will be cleaned regularly using a wet
(iv) Specific work areas will be cleaned and decontaminated immediately following each use of an etiologic agent (at least once a day) and after any spill of viable material.
(v) Hallways and stairways will not be used for storage.
(7) All solutions, reagents, and chemicals will be labeled.
(8) All contaminated liquid or solid wastes will be inactivated before disposal.
(9) Work will be conducted over spill trays or plastic-backed absorbent paper. The paper will be removed, decontaminated, or disinfected, and the general area wiped with decontaminant at the end of each day or at the end of the experiment, whichever occurs first.
(10) Etiologic agents will be kept in closed containers when not in use. Cultures, solutions, or dried etiologic agents in glass vessels transported or incubated within a room or suite will be handled in nonbreakable, leak-proof pans, trays, pails, carboys, or other secondary containers large enough to contain all the material, if the glass vessel leaks or breaks. Etiologic agents removed from a room or suite for transport to another approved area within the same building will be placed in a closed unbreakable secondary container before removal from the laboratory. The secondary container will be labeled on the exterior with a biohazard symbol and identification of the contents, including the required biosafety level, the scientific name, the concentration (if applicable), and the responsible individual. The secondary containers will be wiped with suitable disinfectant before removal from the laboratory or area.
(11) Working stocks of etiologic agents will be stored in double containers. The primary and secondary containers will provide a positive seal and the secondary container will be unbreakable. The secondary container will be labeled as stated in § 627.12 (a)(10) and with the date stored.
(12) Storage units (for example, freezers, refrigerators, cabinets, and hoods) will be labeled with the universal biohazard sign and indicate the classes of etiologic agents contained in them. Storage units will be secured when not in use.
(13) All contaminated materials, containers, spills, and solutions will be decontaminated or disinfected by approved methods before disposal.
(14) After injection of an etiologic agent into animals, the site of injection will be swabbed with a decontaminant.
(15) Syringes. (i) Reusable or disposable syringes will be of the fixed needle or LUER-LOK type (or equivalent) to assure that the needle cannot separate during use.
(ii) After use, nondisposable glass syringes with attached needles contaminated with etiologic agents will be submerged in a container of decontaminant. Disposable syringes will be discarded with needles attached in puncture-proof rigid containers. Needles will not be recapped after use.
(iii) Sterilized or decontaminated containers marked “Syringes and/or Needles” may be deposited in appropriate refuse containers after proper packaging and destruction of the contents.
Many States, especially those on the Eastern seaboard, have implemented strict requirements for the disposal of medical wastes. For example, Maryland has designated all waste from a microbiological laboratory as hazardous waste with licensing requirements for generators of 50 kilograms per month or more of waste, while all medical waste released for transport off-site must be manifested to a State licensed medical waste hauler with the destination specified. Additionally, in some cases, the local government (for example, a city) regulates the disposal of these wastes. These requirements will be identified and followed.]
(16) Refrigerators, deep freezers, and dry ice chests should be checked, cleaned out, and defrosted periodically to remove any ampules, tubes, and so forth, containing etiologic agents that may have broken during storage. Rubber gloves and respiratory protection
(b)
(1) All procedures are performed carefully to minimize the creation of aerosols.
(2) No infectious mixtures will be prepared by bubbling air through a liquid.
(3) Pipettes.
(i) No infectious material will be forcibly ejected from pipettes. Only to deliver (TD) pipettes will be used.
(ii) Pipettes used with infectious or toxic materials will be plugged with cotton unless they are used exclusively in a gas-tight cabinet system.
(iii) Contaminated pipettes will be placed horizontally in a rigid container containing enough disinfectant for complete immersion. Cylinders used for vertical discard are not recommended. The container and pipettes must be autoclaved as a unit and replaced by a clean container containing fresh disinfectant.
(iv) Pipetting devices must be used. Under no circumstances is mouth pipetting permitted.
(4) Syringes. (i) Using syringes and needles for making dilutions of etiologic agents is not recommended.
(ii) When removing a syringe and needle from a rubber stopper bottle containing viable etiologic agents, an alcohol soaked pledget around the stopper and needle will be used.
(iii) Excess fluid and bubbles should be expelled from syringes vertically into a cotton pledget soaked with disinfectant or into a small bottle containing disinfectant-soaked cotton.
(iv) The site of injection of an animal will be swabbed with a disinfectant before and after injection.
(v) After use, syringes contaminated with residual infectious fluid will be submerged in a container of disinfectant in a safety cabinet prior to removal for autoclaving. To minimize accidental injection of infectious material, the removable needles should remain on such syringes until after autoclaving. When possible, syringes with attached needles should be placed in a pan separate from that holding other discarded materials.
(vi) Caps will not be placed over needles until after disinfection. During recapping, procedures to prevent personal injuries will be used.
(5) Centrifuges and shakers. (i) Before centrifuging, tubes, rotors, seals, and gaskets will be checked for cleanliness and integrity. In low speed clinical-type centrifuges, a germicidal solution may be added between the tube and trunnion cup to disinfect the outer surfaces of both and to cushion against shocks that might break the tube. Metal or plastic tubes (other than nitro-cellulose) will be used.
(ii) Decanting from centrifuge tubes will be avoided. If decanting is necessary, the outer rim will be wiped with a disinfectant after decanting so that material on the lip cannot spin off as an aerosol. Centrifuge tubes will not be filled byond the level the manufacturer recommends.
(iii) Broth cultures will be shaken in a manner that avoids wetting the plug or cap.
(6) Water baths in which viable etiologic agents are incubated must contain a disinfectant. For cold water baths, 70 percent propylene glycol is recommended. The disinfectant should be changed frequently.
(7) When a laboratory vacuum is used to manipulate viable etiologic agents, a secondary reservoir containing disinfectant and a HEPA filter must be employed to ensure that the laboratory
(8) Test tubes. (i) Tubes containing viable etiologic agents should be manipulated with extreme care. Studies have shown that simple procedures, such as removing a tube cap or transferring an inoculum, can create a potentially hazardous aerosol.
(ii) Manipulation of biohazardous test tubes will be conducted in biological safety cabinets. Tubes and racks of tubes containing biohazardous material should be clearly marked. The individual employee must ensure that tubes containing biohazardous material are properly sterilized prior to disposal or glassware washing. Safety test tube trays should be used in place of conventional test tube racks to minimize spillage from broken tubes. When safety test tube trays are not used, the conventional test tube racks will be placed in a tray large enough to contain any potential spill. A safety test tube tray is one having a solid bottom and sides deep enough to hold all liquids, should a test tube break.
(9) Care should be exercised when using membrane filters to obtain sterile filtrates of viable etiologic agents. Due to the fragility of the membranes and other factors, such filtrates cannot be considered noninfectious until laboratory culture or other tests have proven their sterility.
(10) The preparation, handling, and use of dry powders of viable etiologic agents in open containers presents unusual hazards. The slightest manipulation of such powders can cause the generation of aerosols containing a high concentration of etiologic agents. Therefore, work with dry powders of etiologic agents in open containers should be carried out in gas-tight biological safety cabinets.
(a)
(b)
(c)
(2) Cages are washed manually or in a cagewasher. Temperature of final rinse water will be a minimum of 180
(3) Laboratory coats, gowns, or uniforms worn in animal rooms shall not be worn in other areas.
(a) Additional requirements. In addition to the general microbiological techniques stated in § 627.13, BL-2 operations include the following requirements:
(1) When etiologic agents are in use, a hazard warning sign incorporating the universal biohazard symbol is posted on the access door of the work area. The hazard warning sign identifies the etiologic agent, lists the name and telephone number of the institute director or other responsible person(s), and indicates the special requirement(s) for entering the laboratory.
(2) Animals not involved in the work being performed are not permitted in the laboratory.
(3) Special care is taken to avoid skin contamination with the etiologic agents; gloves will be worn when handling etiologic agents or infected animals.
(4) All wastes from laboratories and animal rooms are decontaminated before disposal.
(5) Hypodermic needles and syringes are used only for parenteral injection and aspiration of fluids from laboratory animals and diaphragm bottles.
(6) Spills and accidents which result in a potential exposure to etiologic agents will be reported immediately to the safety officer, the project leader, and the institute director.
(7) Biological safety cabinets (Class I or II) will be used when:
(i) Procedures with a high potential for creating infectious aerosols are conducted.
(ii) High concentrations or large volumes of etiologic agents are used.
(8) Laboratory coats, gowns, smocks, or uniforms will be removed before leaving the animal facility or laboratory area.
(b) Additional animal requirements.
(1) Cages must be decontaminated, preferably by autoclaving, before they are cleaned and washed.
(2) Approved molded masks are worn by all personnel entering animal rooms housing nonhuman primates.
(3) If floor drains are provided, the drain traps will be kept filled with water or a suitable disinfectant.
(a)
(1) Approved molded masks or respirators with HEPA filters are worn by all personnel in rooms housing infected animals.
(2) Protective clothing worn in a laboratory or animal room will be removed before exiting the laboratory or animal room.
(3) Clothing worn in laboratories and animal areas to protect street clothing will be decontaminated before being laundered.
(b)
(2) All activities involving etiologic agents will be conducted in biological safety cabinets (Class I, II, or III) or other physical containment devices within the containment module. No work in open vessels is conducted outside a biological safety cabinet.
(3) The work surfaces of biological safety cabinets and other containment equipment will be decontaminated after work with etiologic agents. Plastic-backed paper toweling should be used on nonperforated work surfaces within biological safety cabinets to facilitate clean-up.
(c)
(2) Gloves are removed aseptically and autoclaved with other wastes before being disposed of or reused.
(3) Boots, shoe covers, or other protective footwear and disinfectant foot baths must be available and used when indicated.
(4) Personal protective clothing and equipment and other physical containment devices are used for all procedures and manipulations of etiologic agents or infected animals. The risk of infectious aerosols from infected animals or their bedding shall be reduced by housing animals in partial containment caging systems as described in § 627.56.
(d)
Laboratory work at BL-4 must follow the requirements stated in §§ 627.13, 627.14 and 627.15 as well as the following:
(a) All activities are conducted in Class III biological safety cabinets or in Class I or II biological safety cabinets in conjunction with a one-piece positive pressure personnel suit ventilated by a life-support system.
(b) Biological materials to be removed from the Class III cabinet or from the maximum containment laboratory in a viable or intact state must be transferred to a sealed nonbreakable primary container, enclosed in a nonbreakable sealed secondary container, and removed from the facility through a disinfectant dunk tank, fumigation chamber, or an airlock designed for this purpose.
(c) No materials, except for biological materials that are to remain in a viable or intact state, are removed from the maximum containment laboratory unless they have been autoclaved or decontaminated before they leave the facility. Equipment or material which might be damaged by
(d) Personnel may enter and leave the facility only through the clothing change and shower rooms. Personnel must shower each time they leave the facility. Personnel may use the airlocks to enter or leave the laboratory only in an emergency.
(e) Street clothing must be removed in the outer clothing change room and kept there. Complete laboratory clothing, including undergarments, pants and shirts or jumpsuits, shoes, and gloves, will be provided and must be used by all personnel entering the facility. Head covers are provided for personnel who do not wash their hair during the shower. When leaving the laboratory and before proceeding into the shower area, personnel must remove their laboratory clothing and store it in a locker or hamper in the inner change room.
(f) When etiologic agents or infected animals are present in the laboratory or animal rooms, a hazard warning sign incorporating the universal biohazard symbol must be posted on all access doors. The sign must identify the agent, list the name of the commander or institute director or other responsible person(s), and indicate any special requirements for entering the area (for example, the need for immunizations or respirators).
(g) Supplies and materials needed in the facility are brought in by way of the double-doored autoclave, fumigation chamber, or airlock which is appropriately decontaminated after each use. After securing the outer doors, personnel within the facility retrieve materials by opening the interior doors of the autoclave, fumigation chamber, or airlock. These doors are secured after materials are brought into the facility.
(h) Materials (for example, animals and clothing) not related to the experiment being conducted are not permitted in the facility.
(i) Whenever possible, avoid using any glass items.
The laboratory facilities, equipment, and procedures appropriate for work with toxins of biological origin must reflect the intrinsic level of hazard posed by a particular toxin as well as the potential risks inherent in the operations performed. All toxins must be considered to pose a hazard in an aerosol form. However, most toxins exert their effects only after parenteral exposure or ingestion, and a few toxins present a dermal hazard. In general, toxins of biological origin are not intrinsically volatile. Thus, the laboratory safety precautions appropriate for handling these materials closely parallel those for handling infectious organisms. The requirements in this section for the laboratory use of toxins of biological origin include the requirements in § 627.12(a) and the following:
(a)
(b)
(1) In a chemical fume hood, a glove box, or a biological safety cabinet or equivalent containment system approved by the safety officer.
(2) While wearing eye protection if using an open-fronted containment system.
(3) Ensuring that gloves worn when handling toxins will be disposed of as toxin waste, with decontamination if required.
(4) With the room door closed and posted with a universal biohazard sign, or other sign, indicating that toxin work is in progress. Extraneous personnel shall not be permitted in the room during operations.
(5) Ensuring that toxins removed from hoods or biological safety cabinets are double-contained during transport.
(6) After verification of hood or biological safety cabinet inward airflow is
(7) Within the operationally effective zone of the hood or biological safety cabinet.
(8) Ensuring that nondisposable laboratory clothing is decontaminated before release for laundering.
(9) Ensuring that all individuals who handle toxins wash their hands upon each exit from the laboratory.
(10) With two knowledgeable individuals present whenever more than an estimated human lethal dose is handled in a syringe with a needle. Each must be familiar with the applicable procedures, maintain visual contact with the other, and be ready to assist in the event of an accident.
(c) Manipulations with open containers of dry forms of toxins. Handling dry forms of toxins in uncovered containers (for example, during weighing) will be performed following the requirements stated in §§ 627.12(a), 627.17 (a) and (b), and the following:
(1) Manipulations will be conducted in a HEPA filtered chemical fume hood, glove box, or biological safety cabinet. In addition the exhaust may be charcoal filtered if the material is volatile.
(2) When using an open-fronted fume hood or biological safety cabinet, protective clothing, including gloves and a disposable long-sleeved body covering (gown, laboratory coat, smock, coverall, or similar garment) will be worn so that hands and arms are completely covered. Eye and approved respiratory protection is also required. The protective clothing will not be worn outside of the laboratory and will be disposed of as solid toxin waste.
(3) Before containers are removed from the hood, cabinet, or glove box, the exterior of the closed primary container will be decontaminated and placed in a clean secondary container.
(4) When toxins are in use, the room will be posted to indicate “Toxins in Use—Authorized Personnel Only.” Any special entry requirements will be posted on the entrance(s) to the room.
(5) All operations will be conducted with two knowledgeable individuals present. Each must be familiar with the applicable procedures, maintain visual contact with the other, and be ready to assist in the event of an accident.
(6) Individuals handling toxins will wash their hands upon leaving the laboratory.
(d) Additional considerations of specific toxin properties. The following requirements are in addition to the requirements stated in the paragraphs above. Determine whether the material fits §627.17 (b) or (c), and complies with the appropriate section and the following when applicable:
(1) When handling dry forms of toxins that are electrostatic—
(i) Do not wear gloves (such as latex) that help to generate static electricity.
(ii) Use glove bag within a hood or biological safety cabinet, a glove box, or a class III biological safety cabinet.
(2) When handling toxins that are percutaneous hazards (irritants, necrotic to tissue, or extremely toxic from dermal exposure)—
(i) Gloves will be selected that are known to be impervious to the toxin and the diluent (when applicable) for the duration of the manipulations.
(ii) Disposable laboratory clothing will be worn, left in the laboratory upon exit, and disposed of as solid toxin waste.
(e) Aerosol exposures. The requirements found in § 627.17 (a) and (b) will be complied with plus the following:
(1) Chambers, nose-only exposure apparatus, and generation system must be placed inside a fume hood, glove box, or a Class III biological safety cabinet. Glove boxes and Class III biological safety cabinets will have HEPA filters on both inlet and outlet air ports.
(2) The atmosphere from within the exposure chamber will be HEPA filtered before release inside the hood, glove box, or cabinet.
(3) All items inside the hood, glove box, or Class III biological safety cabinet will be decontaminated upon removal. Materials such as experimental samples that cannot be decontaminated directly will be placed in a closed secondary container, the exterior of which will be decontaminated and labeled appropriately. Animals will have any areas exposed to toxin wiped clean after removal from the exposure apparatus.
(4) The interior of the hood, glove box, or cabinet containing the chamber and all items will be decontaminated periodically, for example, at the end of a series of related experiments. Until decontamintated, the hood, box, or cabinet will be posted to indicate that toxins are in use, and access to the equipment and apparatus restricted to necessary, authorized personnel.
(a)
(b)
(1) Using appropriate personal protection, assist persons involved, remove contaminated clothing if necessary, decontaminate affected areas, and remove personnel from exposure to further injury if necessary; do not move an injured person not in danger of further harm. Render immediate first aid if necessary.
(2) Warn personnel in adjacent areas of any potential hazards to their safety.
(3) In case of fire or explosion, call the fire department or community fire brigade immediately. Follow local rules for dealing with incipient fire. Portable fire extinguishers will be made available with instructions for their use. Fire fighters responding to the fire scene will be advised to wear a self-contained positive pressure breathing appartus to protect themselves from toxic combustion by-products.
(4) Laboratories must be prepared for problems resulting from severe weather or loss of a utility service. In the event of the latter, most ventilation systems not supplied with emergency power will become inoperative. All potentially hazardous laboratory work must stop until service has been restored and appropriate action has been taken to prevent personnel exposure to etiologic agents.
(5) In a medical emergency, summon medical help immediately. Laboratories without a medical staff must have personnel trained in first aid available during working hours.
(6) For small-scale laboratory accidents, secure the laboratory, leave the area, and call for assistance.
(7) When handling mixed hazards (for example, a substance or mixture that may be infectious and radioactive, or infectious and chemically toxic), respond with procedures addressing the greater hazard first, and then follow through with those for the lesser hazards to ensure that all appropriate steps have been taken.
(c)
(1) Emergency alarm system. (i) There will be a system to alert personnel of an emergency that requires evacuation of the laboratory or building. Laboratory personnel must be familiar with the location and operation of alarm equipment.
(ii) Isolated areas (for example, cold, warm, or sterile rooms) will be equipped with an alarm or communication system that can be used to alert others outside to the presence of a worker inside, or to warn workers inside of an emergency that requires evacuation.
(2) Evacuation routes will be established and an outside assembly area for evacuated personnel must be designated. All individuals should be accounted for.
(3) Shut-down and start-up procedures.
(i) Guidelines for shutting down operations during an emergency evacuation will be available in writing. Those guidelines will include procedures for handling any power failure emergency.
(ii) Written procedures will also be provided to ensure that personnel do not return to the laboratory until the emergency is ended. Those procedures
(iii) All shut-down and start-up procedures will be available to personnel and reviewed semiannually.
(4) All aspects of the building evacuation procedur will be tested semiannually with practice drills.
(d)
(2) The safety officer will be notified immediately of all spills. The first line supervisor will ensure that proper clean-up techniques are employed.
(3) Etiologic agents. (i) A program for responding to spills of etiologic agents will be developed and implemented. This program will contain emergency response procedures for a biological spill, which will be tailored to the potential hazard of the material being used, the associated laboratory reagents involved, the volume of material, and the location of the materials within the laboratory. Generally, the spill should be confined to a small area while minimizing the substance's conversion to an aerosol. The spill will be chemically decontaminated or neutralized, followed by a cleanup with careful disposal of the residue. If the spilled material is volatile and noninfectious, it may be allowed to evaporate but must be exhausted by a chemical hood or ventilation system.
(ii) When a mishap occurs that may generate an aerosol of etiologic agents requiring BL-2 (or higher) containment, the room must be evacuated immediately, the doors closed, and all clothing decontaminated, unless the spill occurs in a class II or class III biological safety cabinet. Sufficient time must be allowed for the droplets to settle and the aerosols to be reduced by the air changes of the ventilation system before decontaminating the area. The area will then be decontaminated to prevent exposure to the infectious agents or toxic substances. Reentry procedures to perform the decontamination will conform to § 627.18(e).
(iii) A spill of biohazardous material within a biological safety cabinet requires a special response and cleanup procedure. Cleanup will be initiated while the cabinet continues to operate, using an effective chemical decontaminating agent. Aerosol generation during decontamination and the escape of contaminants from the cabinet must be prevented. Caution must be exercised in choosing the decontaminant, keeping in mind that fumes from flammable organic solvents, such as alcohol, can reach dangerous concentrations within a biological safety cabinet.
(4) Combined radioactive and biological spills. (i) Both the radiation protection officer (RPO) and the safety officer must be notified immediately whenever there is a spill of radioactive biological material, regardless of its size. Laboratory personnel may be expected to clean up the spill. The RPO will direct the cleanup, in accordance with the NRC license for the facility.
(ii) The spill will be cleaned up in a way that minimizes the generation of aerosols and spread of contamination. All items used in cleaning up the spill must be disposed of as radioactive waste.
(iii) Following cleanup, the area, affected protective clothing, and all affected equipment and supplies must be surveyed for residual radioactive contamination. All potentially affected areas and items that are not disposable will be wipe-tested to verify that unfixed radioactive contamination has been removed. If fixed contamination is found, the RPO will determine the requirements for additional cleanup.
(e)
(1) When agents requiring BL-1 or BL-1 LS containment are involved, the clothing requirements stated in § 627.30
(2) When agents requiring BL-2, BL-2 LS, or toxin procedures and containment are involved, personnel will be required to wear the clothing described in § 627.30 (c) or (d) as appropriate. Outer protective clothing will be removed and left in the room before exiting and personnel will wash their hands before proceeding on to other activities.
(3) When agents requiring BL-3, or BL-3 LS containment are involved, containers for sealing up inner protective clothing and decontaminant will be placed at the room exit. Personnel will be required to wear the clothing described in paragraph 4-10e. When exiting the area after decontamination procedures, individuals will remove their outer layer of protective clothing just before exiting the room. Once outside the room, the inner layer of protective clothing (for example, coverall) will be removed and placed in the container and the inner gloves will be decontaminated before being removed and placed in the container. Personnel will proceed directly to the shower facility to take a complete shower before exiting the facility.
(4) When agents requiring BL-4 containment are involved, the following applies as appropriate to the type of BL-4 facility:
(i) When a spill requiring clean-up is in an area designed for use with personal positive pressure suits, the entry and exit procedures will be those normally required to enter or exit the area.
(ii) When entering a nonsuit area where a spill of etiologic agent has occurred outside the containment of a Class III biological safety cabinet, personnel will wear the clothing as described in § 627.30(f). Before entry, decontamination areas will be established. To accomplish this, two step-in decontamination pans with the appropriate disinfectant will be set up [one just inside the room (where the contamination exists) and the second immediately outside the room]. Immediately outside the room, there will also be a sealable container suitable for sealing up the suit and any air lines (if used).
(iii) When exiting the room, suited individuals will place all equipment and other items in autoclaves or disinfectant, step into the disinfectant pan, and wash down the exterior of their suits with appropriate disinfectant. When completed, the door to the room will be opened and the individual will step through the doorway into the second disinfectant pan. The suit will be thoroughly rinsed with disinfectant again before moving toward the exit from the facility. The suit (but not the respirator) will be placed in the provided container. The individual will proceed through another doorway before removing the respirator and placing it in a closed container for decontamination. The individual will then proceed directly to the shower area and take a full shower before exiting the area. In case they are needed, personnel will be standing by ready to render assistance. Suited individuals will be visually observed, if possible. When visual observation is not possible, a communications system is required.
(f)
(2) Form(s) for recording mishaps will be available and completed for all laboratory mishaps. Those reports must include a description of the mishap and any factors contributing to it. In addition, a description of any first aid or other health care given to the employee will be included. Responsibility for completing these forms must be clearly defined in the facility safety
(3) Any mishaps with etiologic agents used under sponsorship of the BDP that result in sero-conversion or a laboratory-acquired illness will be reported.
(a)
(1) All large-scale operations will be conducted in facilities described in § 627.47.
(2) Cultures will be handled in a closed system.
(3) Sample collection, the addition of materials, and the transfer of culture fluids shall be done in a manner which minimizes the release of aerosols or contamination of exposed surfaces.
(4) A closed system or other primary containment equipment that has contained viable organisms shall not be opened for maintenance or other purposes unless it has been sterilized.
(5) SOPs will include a section describing and requiring a validation of the process equipment's proper function.
(6) Scientists, technicians, equipment workers, and support personnel with access to the large-scale production area during its operation will be included in the medical surveillance program.
(b)
(1) Rotating seals and other mechanical devices directly associated with the closed system used for the propagation and growth of viable organisms shall be designed to prevent leakage or shall be fully enclosed in ventilated housings that are exhausted through filters which have efficiencies equivalent to HEPA filters or through other equivalent treatment devices.
(2) A closed system used for the propagation and growth of viable organisms and other primary containment equipment used to contain operations involving viable organisms shall include monitoring or sensing devices that monitor the integrity of containment during operations.
(3) Systems used to propagate and grow viable organisms shall be permanently identified. This identification shall be used in all records reflecting testing, operation, and maintenance and in all documentation relating to the use of this equipment.
(c)
(1) Personnel entry into the controlled area shall be through the entry area specified in § 627.47(c)(1).
(2) Persons entering the controlled area shall exchange or cover their personal clothing with work garments such as jumpsuits, long sleeved laboratory coats, pants and shirts, head cover, and shoes or shoe covers. On exit from the controlled area, the work clothing may be stored in a locker separate from that used for personal clothing, or discarded for laundering. Clothing shall be decontaminated before laundering.
(3) Entry into the controlled area during periods when work is in progress shall be restricted to those persons required to meet program support needs.
(4) Prior to entry, all persons shall be informed of the operating practices, emergency procedures, and the nature of the work conducted.
(5) The universal biohazard sign shall be posted on entry doors to the controlled area and all internal doors. The sign posted on the entry doors to the controlled area shall include a statement of agents in use and personnel authorized to enter.
(6) Equipment and materials required for the management of accidents involving viable organisms shall be available in the controlled area.
(d)
Operations that combine etiologic agents with radioactive material present unique problems. When this is the case, the following apply:
(a)
(b)
(c)
(2) Activities conducted with radioisotopes should be confined to the smallest number of areas or rooms consistent with requirements.
(3) Decontamination methods specific to etiologic agents will not always remove radioactivity. Other methods, such as specialized detergents and solvents designed for this use, should be employed to remove residual radioactivity.
Personal protective equipment (PPE) includes clothing and equipment used to protect the laboratory worker from contact with infectious, toxic, and corrosive agents, as well as excessive heat, fire, and other physical hazards. The appropriate PPE for any activity depends upon the proposed operations and the potential hazards associated with them. While PPE is an important item of personal protection, it serves as only a secondary line of protection against hazards in the workplace. Engineering controls (subpart H), combined with common sense, good laboratory techniques, and adherence to SOPs, are the primary barriers to exposure. There are some situations, however, in which it is either impractical or impossible to rely exclusively on engineering controls. In these cases, PPE may form the primary barrier between personnel and the hazardous or infectious materials.
Individuals required to wear PPE will be trained in its proper use. The PPE listed below is the minimum required when etiologic agents are handled at any biosafety level. Research with etiologic agents usually involves hazards other than those presented by the agents themselves. When PPE is selected, the hazards presented by these other factors must be considered regardless of the biosafety level used. For example, toxic chemicals are commonly used in research involving etiologic agents. The processes may expose personnel to physical hazards, such as heat or animal bites, and the decontamination process may involve the handling of toxic or corrosive materials. When the PPE required to mitigate these hazards exceeds that of the minimum requirements, the necessary PPE will be selected considering all the hazards. Information regarding the additional appropriate PPE worn to protect against these hazards will be available from one of the following sources: MSDS, SOP for the operation, or the safety officer. Deviations from the standards stated in approved SOPs must be approved by the safety officer. All laboratory coats worn to protect the individual should be left in the laboratory when that individual leaves. In each case, the minimum attire will be—
(a)
(b)
(c)
This level requires only the minimum attire described in § 626.22.
This level requires the following additions to the minimum clothing specified in § 627.22:
(a)
(b)
(2) Eye protection must be worn when handling nonhuman primates.
(3) Appropriate gloves must be worn.
(4) Molded masks or HEPA filtered respirators will be worn in rooms housing nonhuman primates.
The outer clothing worn in these facilities must never be worn outside the facility. Color-coded clothing that is worn only in the facility is recommended to remind individuals not to wear it outside. The minimum clothing includes—
(a)
(2) Appropriate gloves.
(b) Animal rooms. (1) A complete change of protective clothing on a daily basis. Long-sleeved one- or two-piece solid front uniforms, solid-front gown, wrap-around smocks, or solid front coveralls.
(2) Eye protection must be worn when handling nonhuman primates.
(3) Molded masks or HEPA filtered respirators will be worn in rooms housing infected animals.
(4) Shoe covers will be worn and removed before exiting the room; alternatively, disinfectant footbaths will be used for each exit from the room when infected animals are present.
Street clothing must be removed in an outer clothing change room and kept there. Clothing worn in the facility will be removed in an inner change room and a shower taken before replacing the street clothing. Two distinct PPE requirements exist for BL-4 operations:
(a)
(1) Complete change of clothing and wet shower upon exit. This includes undergarments, pants and shirts or jump-suits, and shoes. While it is preferred that the shower include washing the hair, head covers will be worn by those who do not wash their hair on each exit.
(2) Appropriate inner gloves. The inner gloves will be donned in the change room.
(b)
(1) Complete change of clothing and wet shower upon exit. This includes undergarments, pants and shirts or jump-suits, and shoes. While the shower should include washing the hair, head covers will be worn by those who do not wash their hair on each exit.
(2) Appropriate inner gloves will be donned in the change room.
(3) A one-piece positive pressure suit described in § 627.31(g).
(4) Impervious boots fitted over the suit.
The clothing requirements for these are the same as for the corresponding biosafety levels for laboratory operations.
In addition to the minimum clothing specified in § 627.22, disposable gloves or gloves designed to protect against the diluent will be worn when handling these materials.
In addition to the requirements stated in § 627.28, the requirements stated in § 627.18(c) apply.
The clothing requirements for this section are for the emergency procedures specified in § 627.18(e). Because situations can occur and there is no feasible or available means to mitigate the potential hazard adequately by engineering controls, the clothing requirements exceed those required for a properly conducted laboratory operation at an equivalent biosafety level. The protective equipment required will be selected based upon an assessment of the potential hazards that could be encountered. The following clothing requirements are given as a guide. The selection of PPE will be based upon the highest possible level of contamination that could exist in the room. This will be based upon what is known about the operations that were conducted in the room during and prior to the current incident. In each situation, the aerosols will be allowed to dissipate or settle before entry (approximately 30 minutes). The following clothing requirements apply to these situations:
(a)
(2) Outer complete covering such as a pair of coveralls.
(3) Shoe covers, provided shoes, or safety shoes or boots.
(4) Eye protection (maintenance only).
(b)
(1) An impervious apron.
(2) Impervious boots.
(c)
(2) Full outer covering such as a coverall.
(3) Shoe covers, provided shoes, or safety shoes or boots (maintenance).
(4) An approved half-face or full-face respirator with HEPA filters (worn).
(5) Eye protection.
(6) An impervious apron (not required for entry only).
(d)
(e)
(2) Gloves.
(3) An approved full-face HEPA or HEPA plus charcoal filtered respirator.
(4) An impervious apron (not required for entry only).
(5) Impervious boots.
(6) Head cover.
(f)
(1) A full change of inner clothing.
(2) An inner pair of gloves.
(3) A one-piece positive pressure suit as described in § 627.31(g), or a one-piece Xsuit with an approved positive pressure self-contained breathing apparatus (SCBA) and a supplied-air respirator (SAR) or both (see § 627.31(f)).
(4) Appropriate gloves fitted to the suit.
(5) Impervious boots fitted over the suit.
(a)
(b)
(c)
(d)
(2) Before donning a pair of gloves, examine them closely to ascertain that they are in serviceable condition. Check for rips and pin holes. Gloves should over-wrap the cuff and lower sleeve of the laboratory garment.
(3) Operations in open-front biological safety cabinets should be planned so that once the operator has inserted gloved hands into the cabinet, he or she does not have to withdraw them from the cabinet until the work has been completed. If gloves become visibly contaminated, they will be removed and decontaminated. Additional gloves should be available so that work can continue. When wearing gloves for an extended period, change them periodically or decontaminate them. Individual SOPs will designate the appropriate period based upon the hazards.
(4) Gloves will be removed before going from one level of containment to another (remove gloves in a safety cabinet before removing your hands from the cabinet). Take care to ensure that skin is not touched with the outer surface of contaminated or potentially contaminated gloves when they are removed. Gloves will be placed in suitable decontaminant when they are removed. Disposable gloves will be placed in a covered container for decontamination or disposal.
(5) Gloves that are a part of a biological safety cabinet system will be examined initially, after each sterilization of the biological safety cabinet system, and at least annually for leaks using the soap bubble test, followed by the halo-carbon test. Gloves will be tested while still attached to the cabinet.
(6) Sterilization of nondisposable gloves either before use or before reuse is usually done with ethylene oxide or formaldehyde gas. Sterilized gloves must be aerated in flowing sterile (filtered) air at 21
(e)
(f)
(g)
(h)
(2) When respirators are used, a respirator protection program will be established that conforms to AR 11-34 and OSHA standards in the 29 CFR 1910.134. In general, a medical authority will designate who is to wear respirators, they will be fitted by individuals trained in their use and limitations, and wearers will be responsible for the proper storage and regular inspection of their assigned respirators. Air-purifying respirators will not be worn in oxygen deficient environments.
(3) Reusable respirators that have been worn in a contaminated area will be decontaminated before reuse. At the end of each workday when a respirator has been worn in an area where it was required, the wearer will wipe it down with an appropriate liquid decontaminant. A damp cloth soaked in the decontaminant, with the excess liquid squeezed out, will be used for the wipe-down process, taking care to ensure that all crevices are reached. The respirator will be rinsed with clean, warm water. Visibly contaminated respirators will be decontaminated and discarded.
(4) Respirator programs will comply with AR 385-10 and AR 11-34.
(i)
All material or equipment that is potentially contaminated with etiologic agents must be rendered nonhazardous before disposal. This chapter describes the acceptable physical and chemical decontamination methods and the general applicability of each. In general, all infectious materials and all contaminated equipment or apparatus will be sterilized before being washed and stored or discarded.
(a) Autoclave. The use of wet heat is the most dependable procedure for destroying all forms of microbial life. An autoclave employs saturated steam under a pressure of approximately 15
(b) Sterilization will be verified using biological indicators (for example,
(c) Dry heat. Dry heat requires longer times or higher temperatures or both than does wet heat. If used, the specific sterilization times and temperatures must be determined for each type of material being sterilized. In general, sterilization by dry heat can be accomplished at 169-170
(d) Liquid disinfectants. Liquid disinfectants may be used in surface treatment, in dip tanks, and, at sufficient concentration, as sterilants of liquid waste for final disposal. If liquid disinfectants are used, they must have been shown to be effective against the organisms present. Important considerations include: temperature, time of contact, the negative logarithm of hydrogen ion concentration (pH), concentration and state of dispersion, penetrability, and reactivity of organic material at the site of application. Small variations in these factors may make large differences in the effectiveness of disinfection, so complete reliance should not be placed on liquid disinfectants when the end result must be sterility. If evidence of efficacy under the proposed procedures has not been reported previously, preliminary studies to verify the efficacy of liquid disinfectants must be conducted. Such studies may include attempts to recover and quantitate the agent in question from liquid or swab samples, or sealed patches, by animal inoculation, plaque assay, agar or broth cultivation, and similar methods, following controlled decontamination under the same experimental conditions envisioned for the proposed studies.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(e) Vapors and gases. Formaldehyde, ethylene oxide, peracetic acid, beta-propiolactone, methyl bromide, and glutaraldehyde have all been used successfully as space sterilants where they can be employed in closed systems and with controlled conditions of temperature and humidity. Of these, methyl bromide, beta-propiolactone, and glutaraldehyde are not recommended because of their toxic properties. Peracetic acid can readily decompose with explosive violence in a concentrated state and must be used only in a diluted state and with extreme care. Formaldehyde and ethylene oxide are both regulated by OSHA for their potential human carcinogenicity, but do have permissible exposure levels (unlike beta-propiolactone, for example) and can be used safely under controlled conditions.
(1)
(2)
(f) UV Radiation. UV radiation at a wave length of 253.7 nanometers is a practical method for inactivating airborne virsuses, mycoplasma, bacteria, and fungi. The usefulness of UV radiation on exposed surfaces is limited by its low penetrating power. UV radiation shall only be relied upon to sterilize surfaces when conventional methods, such as autoclaving or the use of liquid disinfectants, would make the product unusable. An example is data sheets that must be brought out of a biocontainment facility. The UV intensity must be at least 40 microwatts/cm
Inactivation is the first step in the disposal of etiologic agents or materials that are potentially contaminated with them. All contaminated or potentially contaminated materials must be effectively disinfected or sterilized by an approved procedure discussed in § 627.33. After decontamination, reusable items, such as clothing or glassware, may be washed with other uncontaminated or decontaminated items.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
The CDC of the Public Health Service (PHS), the United States Department of Agriculture (USDA), the Food and Drug Administration (FDA), the Department of Transportation (DOT), the United States Postal Service and the International Air Transport Association (IATA) regulate the importation, shipment, and transportation of etiologic agents. This chapter outlines the minimum administrative requirements the commander or institute director are to follow and gives sources for information on the requirements for importation, packaging, labeling, and shipment of etiologic agents.
The commander or institute director will establish the following controls to ensure that etiologic agents are transported with proper authorization, controls, and procedures:
(a) Institute policies will be established in writing to ensure that before etiologic agents are acquired or shipped—
(1) The division chief responsible for the area where work with etiologic agents is to be conducted approves all acquisitions or shipments.
(2) The safety officer is informed in writing of the type and amount of any BL-4 or USDA-restricted etiologic agent (listed in HHS publication No. (NIH) 88-8395 or current edition) being received, and the estimated date of arrival.
(3) The recipient of all etiologic agents shipped from an institute will be documented.
(4) The commander or institute director approves all acquisitions and shipments of BL-4 or USDA-restricted etiologic agents.
(5) The commander or institute director approves all requests for shipments to or from foreign countries and to individuals not affiliated with an institution or agency (for example, physicians in private practice).
(6) The Office of The Surgeon General, United States Army, or the Commander, United States Army Materiel Command (AMC) approves the initial acquisition and use of all reference stocks of etiologic agents and transfers between Army RDTE activities in accordance with AR 70-65.
(7) There is full compliance with the regulatory requirements referenced in §§ 627.37, 627.38, 627.39 and 627.40.
(8) The following information regarding the recipient and the intended use of BL-4 and USDA-restricted animal pathogens, will be kept on file for 10 years. This information will also be kept for all shipments to or from foreign countries and to individuals not affiliated with an institution or agency (for example, physicians in private practice).
(i) The requester's name and address.
(ii) The type and amount of the etiologic agent to be sent.
(iii) The qualifications of the recipient of the etiologic agent.
(iv) The intended use of the etiologic agent.
(v) A statement indicating that the agent is not for human use.
(b) Etiologic agents assigned to biosafety level 1, 2, or 3, approved for shipment, and properly labeled and packaged may be shipped by commercial cargo carriers.
(c) All etiologic agents assigned to BL-4 or USDA-restricted animal pathogens approved for shipment and properly packaged, will be accompanied by a designated courier, or under close supervision of a responsible party who will monitor aspects of the shipment, ensuring that required transfers have been completed and documented and final receipt has been accomplished and acknowledged.
Importation of etiologic agents is subject to the Public Health Service Foreign Quarantine Regulations (42 CFR 71.156). Examples of permits authorizing the importation or receipt of regulated materials and specifying conditions under which the etiologic agent is shipped, handled, and used are contained in appendix E to this part.
Shipping unmarked and unidentified etiologic agents is prohibited. Etiologic agents will be packaged, labeled, and shipped according to the requirements found in the Interstate Shipment of Etiologic Agents Regulations (42 CFR part 72) and its amendments. The USDA regulations in 9 CFR parts 102 through 104, 122 and the FDA regulations in 21 CFR parts 312 and 600 through 680 will also be followed as applicable. Packaging and labeling requirements for interstate shipment of etiologic agents are summarized and illustrated in appendix D. Permits authorizing the shipment of regulated materials and specifying conditions under which the etiologic agent is shipped, handled, and used are contained in appendix E to this part.
The packaging and labeling requirements cited above must be followed for the local transport of etiologic agents and diagnostic specimens by courier or by other delivery services. Similar requirements and restrictions applicable to the transport of etiologic agents, diagnostic specimens, and biological products by all modes of transportation (that is, air, motor, rail, and water) are imposed by the Department of Transportation (49 CFR part 173), IATA “Dangerous Goods Regulations,” the Air Transport Association “Restricted Articles Tariff 6-D,” the International Civil Aviation Organization (ICAO), Postal Bulletin No. 21246 “International Mail-Hazardous Materials,” 39 CFR, and, the Domestic Mail Manual. When shipments exceed 4 liters, the requirements found in AR 740-32 will be followed.
Additional requirements for importation, shipment, and transportation of infectious agents and hazardous materials that must be followed are contained in the following directives:
(a) AR 40-12, Medical and Agricultural Foreign and Domestic Quarantine Regulations for Vessels, Aircraft, and Other Transports of the Armed Forces.
(b) AR 70-65, Management of Controlled Substances, Ethyl Alcohol, and Hazardous Biological Substances in Army Research, Development, Test, and Evaluation Facilities.
(a) Guide for Transportation of Hazardous Materials, Vol. 4(1), February 10, 1975. Copies are obtainable from the Office of Research Grants Inquiries, NIH, Department of Health and Human Services, 5333 Westbard Avenue, Bethesda, MD 20205.
(b) The CDC, Office of Biosafety, 1600 Clifton Road N.E., Atlanta, Georgia 30333. Telephone (404) 639-3883, or FTS: 236-3883.
(c) The American Type Culture Collection (ATCC), Packaging and Shipping of Biological Materials at ATCC. Copies may be obtained from the ATCC, 12301 Parklawn Drive, Rockville, MD 20852. Phone (301) 881-2600.
(d) National Committee for Clinical Laboratory Standards (NCCLS), Procedures for the Domestic Handling and Transport of Diagnostic Specimens and
The design of the facility is important in providing a secondary barrier to protect individuals inside and outside the facility. Because the hazards presented by various organisms and materials vary, the requirements for the facility will vary accordingly. The minimum facility requirements for the various biosafety levels and toxins are described below. The biosafety levels correspond to those described in the HHS Publication Biosafety in Microbiological and Biomedical Laboratories (HHS No. (NIH) 88-8395), while the large-scale biosafety levels were adapted from those described in the NIH Guidelines for Research Involving Recombinant DNA Molecules.
(a)
(1) A sink for handwashing.
(2) Work surfaces that are impervious to water and resistant to acids, alkalis, organic solvents, and moderate heat.
(3) Fly screens on any windows that can be opened.
(4) Furnishings and surfaces that are sturdy and designed to be easily cleaned.
(5) Spaces between furnishings and equipment that are accessible for cleaning.
(b)
(1) Design and construction to facilitate cleaning and housekeeping.
(2) A sink for handwashing within the facility.
(3) Fly screens on any windows that can be opened.
(4) Ventilation designed so that the direction of airflow in the animal facility is inward, with the exhausted air discharged to the outside without being recirculated.
(5) Self-closing doors that open inward.
(a)
(1) An autoclave available.
(2) Containment equipment necessary for the operations unless the safety officer approves the use of a compensatory level of personal protective equipment.
(3) An eyewash available near the laboratory.
(b)
(1) A sink for handwashing in each room where animals are housed.
(2) An autoclave available in the building.
(3) Appropriate containment equipment unless the safety officer approves the use of a compensatory level of personal protective equipment.
(a)
(1) Physical separation from areas which are open to unrestricted traffic.
(2) All entrances to each laboratory or animal room from the nonlaboratory access corridors will be through two sets of doors. A change room or airlock may be incorporated between the doors.
(3) The interior surfaces of walls, floors, and ceilings will be water resistant so that they may be easily cleaned.
(4) All penetrations into the walls, floors, and ceilings should be sealed or capable of being sealed to facilitate decontamination.
(5) A foot, elbow, or automatically operated sink will be located near the exit door to each laboratory or animal room.
(6) An autoclave should be in each laboratory or animal room and will be available to the facility.
(7) A ventilation system that will—
(i) Create directional airflow that draws air into the laboratory through the entry areas.
(ii) Not recirculate laboratory air.
(iii) Discharge the exhaust air from the laboratory to the outside and disperse the exhaust air away from occupied areas and air intakes.
(iv) Exhaust the HEPA-filtered air from Class I or II biological safety cabinets or other primary containment devices directly to the exterior of the laboratory or through the building exhaust system. Exhaust air from the cabinets may be recirculated within the laboratory if the cabinet is tested and certified at least every 12 months. If the filtered cabinet exhaust is discharged through the building exhaust system, it will be connected to this system in a manner (for example, thimble unit connection) that avoids any interference with the air balance of the cabinets or the building exhaust system.
(8) All windows to the facility will be sealed shut.
(9) Appropriate biological safety cabinets or other specialized containment equipment will be provided.
(10) Any vacuum line in the facility will have a HEPA filter and liquid disinfectant trap.
(11) Bench tops that are impervious to water and resistant to acids, alkalis, organic solvents, and moderate heat.
(12) Furnishings that are sturdy and spaces between benches, cabinets, and equipment that are accessible for cleaning.
(13) An eyewash available in or near the laboratory.
(b)
The engineering controls within the facility must provide absolute biological containment. All procedures with etiologic agents requiring this biosafety level of facilities, equipment, and procedures must be conducted either in Class III biological safety cabinets, or in a facility that is designed for the use of a personal positive pressure suit as described in §627.46(b) in conjunction with Class I or II biological safety cabinets.
(a)
(1) A separate building or a clearly demarcated and isolated area within a building which incorporates positive personnel control for access.
(2) All entrances from access corridors incorporate an inner and outer change room.
(3) Inner and outer change rooms separated by a shower facility.
(4) A double-doored autoclave, fumigation chamber, or ventilated airlock for passage of all items which do not enter the facility through the change room.
(5) Interior surfaces of walls, floors, and ceilings resistant to water and chemicals to facilitate cleaning and disinfecting.
(6) Walls, floors, and ceilings of the facility constructed to form a sealed internal shell which facilitates fumigation and is animal and insect proof.
(7) All penetrations into the walls, floors, and ceilings sealed.
(8) All liquid drains in the facility connected directly to a liquid waste decontamination system.
(i) Holding tanks collecting waste from sinks, biological safety cabinets, floors, and autoclave chambers provide decontamination by heat treatment.
(ii) Holding tanks collecting waste from shower rooms and toilets provide decontamination by heat or chemical disinfectant methods.
(9) Sewer and other ventilation vents contain in-line HEPA filters.
(10) Internal facility appurtenances (for example, light fixtures, air ducts, and utility pipes) arranged to minimize the horizontal surface area on which dust can settle.
(11) A foot, elbow, or automatically operated handwashing sink located near the exit door to each laboratory or animal room.
(12) Self-closing and lockable access doors.
(13) A ventilation system that—
(i) Is dedicated to the facility and provides fresh air meeting American Society of Heating, Refrigerating, and Air Condition Engineers, Inc. (ASHRAE) Standard 62.
(ii) Maintains a negative pressure differential and assures flow inward from areas outside of the facility toward areas of highest potential risk.
(iii) Has manometers or magnehelic gauges to provide, sense, and display pressure differentials between adjacent areas maintained at different pressure levels. An alarm will sound when the pressures fall below acceptable levels.
(iv) Has the air supply and exhaust interlocked to ensure that exhaust failure or reduction will not allow the air pressure in the area to become positive to the adjacent areas.
(v) Does not recirculate exhaust air.
(vi) Is HEPA-filtered and discharged to the outside, dispersing the exhaust air away from occupied areas and air intakes.
(vii) Has the HEPA filters on the exhaust located as near to the rooms as is practicable.
(viii) Has the filter chambers designed to allow in-place decontamination before the filters are removed and to facilitate certification testing.
(ix) Contains prefilters and HEPA filters in the air supply system to protect the supply air system should air pressures become unbalanced.
(x) Exhausts the HEPA-filtered air from Class I or II biological safety cabinets directly into the laboratory or to the exterior of the building. If the HEPA-filtered exhaust from these cabinets is recirculated, the cabinets are tested and certified every 6 months. If the filtered cabinet exhaust is discharged through the building exhaust system, it will be connected to this system in a manner (for example, thimble unit connection) that avoids any interference with the air balance of the cabinets or the building exhaust system.
(xi) Passes the treated exhaust air from Class III biological safety cabinets through two sets of HEPA filters in series to the exterior of the facility through the laboratory exhaust air system.
(14) Windows (if present) sealed shut and breakage resistant.
(15) Has a double-doored autoclave for decontaminating materials passing out of the facility. The autoclave door that opens to the area external to the facility is sealed to the outer wall and automatically controlled so that it can only be opened after the autoclave sterilization cycle has been completed.
(16) Has a pass-through dunk tank, fumigation chamber, or an equivalent decontamination method for materials and equipment that cannot be autoclaved.
(17) Has central vacuum systems (if present) that—
(i) Do not serve areas outside the facility.
(ii) Have an in-line HEPA filter placed as near as practicable to each use point or service cock.
(iii) Have filters designed to allow in-place decontamination and replacement.
(18) Liquid and gas services to the facility provided with protective devices that prevent backflow.
(b)
(1) An exhaust system dedicated to that area that provides filtration by two sets of HEPA filters installed in series. This system will be backed up by a duplicate filtration unit, exhaust fan, and an automatically starting emergency power source. The ventilation system will maintain the suit area under negative pressure relative to the surrounding areas.
(2) An entry area consisting of an airlock fitted with airtight doors.
(3) A chemical shower to decontaminate the surface of the personal positive pressure suit upon exit.
(4) An air supply and distribution system to support the life support system of the personal positive pressure suits.
(5) Emergency lighting and communications systems.
(6) Sealed penetrations into the internal shell of the area.
(7) A double-doored autoclave to decontaminate waste materials to be removed from the suit area.
(c) Additional laboratory requirements. In addition to those given in § 627.45, if water fountains are provided, they will be foot operated and located in the facility corridors outside the laboratory.
(d) Additional animal facility requirements. In addition to those requirements given in § 627.45, all animal facility external doors will be self-locking.
The following requirements apply to facilities in which an individual culture of viable etiologic agents exceed 10 liters:
(a)
(b)
(1) Rotating seals and other mechanical devices directly associated with a closed system used to contain viable organisms shall be designed to prevent leakage or shall be fully enclosed in ventilated housings that are exhausted through filters which have efficiencies equivalent to HEPA filters or through equivalent treatment devices.
(2) A closed system used to propagate and grow viable organisms shall include monitoring or sensing devices that monitor the integrity of containment during operations.
(3) Closed systems used for the propagation and growth of viable organisms shall be tested operationally for integrity of the containment features. The containment will be rechecked following modification or replacement of essential containment features. Procedures and methods used in the testing shall be appropriate for the equipment design and for recovery and demonstration of the test organism. Records of tests and results shall be maintained on file.
(c)
(1) All utilities and service or process piping or wiring entering the controlled area shall be protected against contamination.
(2) A shower facility shall be provided. This facility shall be located near the controlled area.
(3) The controlled area shall be designed to preclude release of culture fluids outside in the event of an accidental spill or release from the closed systems or other primary containment equipment.
(4) The controlled area shall have a ventilation system capable of controlling air movement. The movement of air shall be from areas of lower contamination potential to areas of higher contamination potential. If the ventilation system provides positive pressure supply air, the system shall operate so as to prevent the reversal of air movement or shall be equipped with an alarm that would be actuated if reversal in the direction of air movement were to occur. The exhaust air from the controlled area shall not be recirculated to other areas of the facility. The exhaust air from the controlled area may be discharged to the outdoors after filtration or other means of effectively reducing an accidental aerosol burden, and dispersed clear of occupied buildings and air intakes.
General requirements for all facilities in which toxins are used are as follows. Such facilities will—
(a) Have a ventilation system that provides three to six air changes per hour, and that provides a directional airflow inward relative to the access halls.
(b) Have a sink for handwashing.
(c) Have an eyewash available.
(d) Have bench tops that are impervious to water and resistant to acids, alkalis, organic solvents, and moderate heat.
(e) Have furniture, furnishings, and surfaces that are sturdy and designed to be easily cleaned.
(f) Be arranged so that items are accessible for cleaning.
(g) Have a quick-drench shower available within the facility.
(h) A fume hood, biological safety cabinet, glove box, or equivalent engineering control equipped with HEPA filters and with charcoal filters if volatile materials are being used.
As required by the OSHA and recommended by the American Industrial Hygiene Association (AIHA) and the CDC, engineering controls and proper microbiological techniques are the primary means of protecting personnel who work with potentially hazardous biological materials. In situations of potentially higher hazard, these engineering controls are supplemented by personal protective clothing and equipment. Thus, the engineering controls discussed in this chapter will be the primary means of personnel and environmental protection when working with etiologic agents. Because of the importance of these engineering controls, this chapter contains not only requirements for the engineering and construction of these controls, but also requirements for their certification and continuous satisfactory performance. These will be described for each engineering control.
(a)
(b)
(c)
(d)
(2) The exhaust system will have a HEPA filter, which will be tested initially upon installation, after repair or replacement, and every 2 years thereafter (except when required more often). Filters will be certified to be 99.97 percent effective in capturing particulate matter by a leakage test using mineral oil or other appropriate aerosol dispersed as 0.3 micron droplets.
All Class II biological safety cabinets (figure H-II in appendix F to this part) are ventilated cabinets for personnel and product protection, having an open front with inward air flow for personnel protection.
(a)
(2) After installation and before use, and annually thereafter, the cabinets will be tested in accordance with NSF Standard No. 49 (latest revision June 1987) as follows:
(i) Primary (required) tests—
(A) Velocity profile test.
(B) Work access opening airflow (face velocity) test.
(C) HEPA filter leak test.
(D) Cabinet integrity test (soap bubble test) for cabinets with positive pressure internal plenums.
(ii) Secondary (optional) tests—
(A) Vibration test.
(B) Electrical leakage and ground circuit resistance tests.
(C) Noise level test.
(D) Lighting intensity test.
(E) UV light intensity test.
(3) After repairs or alterations to the cabinetry or ventilation system that affect the cabinet, the tests listed in § 627.51(a)(2) will be performed for the relevant parameters.
(4) The work access opening airflow (face velocity) test, as specified in NSF Standard No. 49 (latest revision, June 1987), will be performed to check that the cabinet is within specifications on an annual basis for BL-1 and BL-2 and toxin use. This test will be performed semiannually on cabinets used for BL-3 and BL-4 as well as for work with dry forms of toxins.
(5) When the exhaust is recirculated in a BL-4 facility, the cabinet must be tested and certified semiannually.
(b)
(2)
(3)
(c)
(2)
(3)
(4)
(d)
(2)
(3)
(e)
(2)
(3)
(4)
(a)
(b)
(c)
(d)
(2) These cabinets will be pressure tested by the soap bubble or halogen leak test as prescribed in NSF Standard No. 49, appendix B1 (latest revision, June 1987), and certified, when the HEPA filter units are serviced.
Fume hoods in which etiologic agents are handled must use proven technologies to provide optimal containment. Fume hood placement, design, and capture testing requirements for use in designing new laboratories can be found in the latest edition of Industrial Ventilation, A Manual of Recommended Practices, published by the American Conference of Governmental Industrial Hygienists.
(a)
(b)
(c)
(d)
(2) When filters are required, they will be certified by the mineral oil droplet (HEPA) or Freon (Charcoal) leak test as appropriate. Leakage through the filters will be less than 0.05 percent for Freon and 0.03 percent for oil droplets when initially installed.
(3) Fume hoods will be provided with indicator devices to give a warning should the ventilation system fail or if the hood face velocity falls below an average of 80 lfpm
(4) Hood air flow will be certified when installed, when maintenance is performed on the ventilation system, and semiannually thereafter.
(a)
(b)
(c)
(d)
(2) The pressure differential will be indicated by a manometer or magnehelic guage. Indicator devices
(3) Gloves will be changed at appropriate intervals (dependent on the box contents) to ensure they provide the protection needed.
(4) Inlets that provide dilution air will be protected by HEPA filters.
(a)
(b)
(c)
(d)
(2) Containment will be certified prior to first use and annually thereafter by smoke tubes.
(3) The air flow will be certified initially and semiannually by averaging readings taken from the face of the opening.
There are a number of cage-ventilated enclosures in which infected animals may be housed at levels corresponding to the various classes of biological safety cabinets. A brief description of four different types of animal ventilated cages is given below. This is not a complete description of all the different animal ventilated cages available. The proper functioning of these will be tested initially, upon each connection to exhaust sources, and at least annually. The inward flow rates on the partial containment systems and pressure checks on the total containment cages will be performed. Prior to selecting such equipment, an evaluation of the function and the equipment should be made, and the methods for testing and decontamination should be analyzed and documented.
(a)
(b)
(c)
(d)
Ventilated cage areas within a room that are solid-walled and bottomed areas for containing multiple cages housing infected animals. The containment for these areas is equivalent to the Class I biological safety cabinet. For testing purposes, they will be treated the same as a Class I biological safety cabinet.
Publications referenced in this part can be obtained from the National Technical Information Services, U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161.
Army Respiratory Protection Program. (Cited in §§ 627.31(h)(2) and 627.31(h)(4).)
Preventive Medicine. (Cited in § 627.8.)
Health Hazard Assessment Program in Support of the Army Materiel Acquisition Decision Process. (Cited in § 627.7(a)(8).)
Medical and Agricultural Foreign and Domestic Quarantine Regulations for Vessels, Aircraft, and Other Transports of the Armed Forces. (Cited in § 627.40(a).)
Medical Records and Quality Assurance Administration. (Cited in § 627.9.)
Patient Administration. (Cited in § 627.8(e).)
Management of Controlled Substances, Ethyl Alcohol, and Hazardous Biological Substances in Army Research, Development, Test, and Evaluation Facilities. (Cited in §§ 627.36(a)(6) and 627.40(b).)
Army Safety Program. (Cited in §§ 627.6 and 627.31(h)(4).)
Biological Defense Safety Program. (Cited in §§ 627.6, 627.7(a), 627.7(a)(8), 627.7(d), 627.11(c), 627.18(a) and 627.18(f)(1).)
Responsibilities for Technical Escort of Dangerous Materials. (Cited in § 627.39.)
A related publication is merely a source of additional information. The user does not have to read it to understand this pamphlet.
Control and Recording Procedures for Exposure to Ionizing Radiation and Radioactive Materials.
Breathing Air
Bacterial Toxins: A Table of Lethal Amounts, Gill, D.M., Microbiological Reviews, Volume 46, Number 1; March 1982, pages 86-94.
American Industrial Hygiene Association, 1985, Clinical Medicine Branch, Division of Host Factors, Center for Infectious Disease, Centers for Disease Control, Atlanta, GA 30333, telephone: (404) 639-3356, Compressed Gas Association Pamphlet G-7.1
Dangerous Goods Regulations, International Air Transport Association (IATA), Publications Section, 2000 Peel Street, Montreal, Quebec, Canada H3A 2R4, Tel (514) 844-6311. DHEW Pub. No. (NIH) 76-1165
Biological Safety Manual for Research Involving Oncogenic Viruses, Executive Order 12196
Safety and Health Programs for Federal Employees, 26 February 1980
Guide for Adult Immunizations, Published by the American College of Physicians, Guide for Transportation of Hazardous Materials, Vol. 4(1) February 10, 1975. (Copies may be obtained from the Office of Research Grants Inquiries, NIH, Department of Health and Human Services, 5333 Westbard Avenue, Bethesda, MD 20205.)
Guidelines for Laboratory Design, Health and Safety Considerations, L. DiBerardinis, et al., John Wiley and Sons, 1987
Guidelines for Prevention of Herpesvirus Simiae (B Virus) Infection in Monkey Handlers, Kaplan, J.E., et al., Mortality and Morbidity Weekly Report, Volume 36, Number 41; October 23, 1987, pages 680-689.
HHS Publication No. (NIH) 88-8395, Biosafety in Microbiological and Biomedical Laboratories
Industrial Ventilation, A Manual of Recommended Practice Published by the American Conference of Governmental Industrial Hygienists.
Laboratory Safety for Arboviruses and Certain Other Viruses of Vertebrates, The American Journal of Tropical Medicine and Hygiene, 29:1359-1381, 1980.
NIH Guidelines for Research involving Recombinant DNA Molecules (51 FR 16958, May 7, 1986).
NIH publication 86-23, Guide for the Care and Use of Laboratory Animals
NSF Standard #49, National Sanitation Foundation Standard Number 49, Class II (Laminar Flow) Biohazard Cabinetry
Packaging and Shipping of Biological Materials at ATCC, The American Type Culture Collection (ATCC). (Copies may be obtained from the ATCC, 12301 Parklawn Drive, Rockville, MD 20852. Telephone (301) 881-2600.)
Postal Bulletin No. 21246, International Mail-Hazardous Materials
Procedures for the Domestic Handling and Transport of Diagnostic Specimens and Etiologic Agents, National Committee for Clinical Laboratory Standards (NCCLS), (H5-A2), Second edition. Vol. 5, No. 1. (Copies may be obtained from the NCCLS, 771 East Lancaster Avenue, Villanova, PA 19085.)
Restricted Articles Tariff 6-D, Air Transport Association
Technical Instructions for the Safe Transport of Dangerous Goods by Air, International Civil Aviation Organization (ICAO) Intereg Group, 5724 Pulaski Road, Chicago, IL 60646, Tel. (312) 478-0900.
The Centers for Disease Control, Office of Biosafety, 1600 Clifton Road NE., Atlanta, Georgia 30333. Telephone (404) 639-3883, or FTS: 236-3883.
Animals and Animal products.
Nuclear Regulatory Commission.
Food and drugs.
Occupational Health and Safety Administration Safety and Health Standards.
Postal Service.
Protection of environment.
Public Health Service Foreign Quarantine Regulations.
The Department of Transportation.
C-1. The checklist that follows is not an exhaustive list of the items to consider when inspecting facilities where etiologic agents are used. It does provide some basic guidelines to remind safety and nonsafety professionals of the things that need to be considered in the laboratories they manage. The checklist should be used as follows: All area should be inspected using the general list in C-2. Certain items are optional, such as radiation safety. If no radioactive material is present in the room, then this would not be applicable. For BL-1 facilities the list in C-2 is adequate, while BL-2, BL-3, and BL-4 facilities must use the list in C-2 together with the appropriate list in C-3 to C-5.
(a) Housekeeping
(1) Is the room free of clutter?
(2) Are all aisles from the work areas to the available exits maintained clear of obstructions?
(3) Are all safety equipment items unobstructed and ready for use?
(4) Is the room clean?
(b) Fire safety
(1) Is the fire extinguisher hung in its proper place, ready for use, and unobstructed?
(2) Are there excess flammables located outside National Fire Protection Association (NFPA) approved cabinetry?
(3) Are all Class IA flammables that are in breakable containers in pint or smaller containers?
(4) Are all Class IB flammables that are in breakable containers in liter or smaller containers?
(c) Chemical safety
(1) Are the chemicals stored with compatible materials?
(2) Have the chemical fume hoods been certified in the last 6 months?
(3) Are the eyewash and deluge shower unobstructed and ready for use?
(4) Is the eyewash and deluge shower tested regularly to document proper operation?
(5) Is the organic waste container maintained in a closed position?
(6) Are all reagents and solutions properly labeled?
(7) Is a spill kit within a reasonable distance from the work areas?
(8) Is appropriate protective clothing available for the chemical hazards present?
(9) Is there a written hazard communication program?
(10) Have the personnel in the laboratory been trained in the provisions and principles of the hazard communication program?
(11) Are MSDSs located where they are available to the laboratory workers?
(12) Is there a written chemical hygiene plan?
(d) Radiation safety
(1) Are the radioactive materials stored double-contained?
(2) Is the containment for the radiation waste container adequate to preclude the spread of radiation?
(3) Are all containers appropriately labeled with radiation labels?
(4) Are all entrances to the room appropriately labeled?
(e) Electrical safety
(1) Are excess extension cords being utilized?
(2) Are there any frayed cords in the room?
(3) Are there any cords on the floor across normal traffic patterns in the room?
(f) General laboratory safety
(1) Are sharps discarded and destroyed in a safe manner?
(2) Are work surfaces decontaminated daily and after a spill?
(3) Is the appropriate attire worn by everyone in the room?
(4) Is there evidence that personnel eat, drink, smoke, or store food, drinks, or tobacco in the room?
(5) Was mouth pipetting observed?
(6) Are all gas cylinders secured and are all cylinders not in use capped?
(7) Are cylinders of oxidizers stored at least 20 feet from cylinders of flammable gases in the same room?
(8) Are the contents of the cylinders clearly labeled?
(9) Are the cylinders transported on appropriate dollies or hand trucks?
(10) Is there a written respiratory protection program where respirators are used?
(g) Etiologic agents
(1) Are all containers of etiologic agents appropriately labeled?
(i) Are freezers, refrigerators, and similar storage units labeled with the biohazard warning sign?
(ii) Are the storage and shipping containers adequate and properly labeled?
(2) Have all personnel been adequately trained in general microbiological techniques?
(3) Are laboratory doors kept closed when experiments are in progress?
(4) Are all operations conducted over plastic-backed absorbent paper or spill trays?
(a) Are all floor drains filled with water or suitable disinfectant?
(b) Is the SOP for an etiologic agent spill signed by all personnel who work with etiologic agents in the room?
(c) If biological safety cabinets are used, have they been certified within the last year?
(d) Are the appropriate decontaminants available?
(e) Are all entrances to the laboratory posted with—
(1) The appropriate special provisions for entry?
(2) The universal biohazard symbol?
(3) The name and telephone number of the laboratory director or other responsible person?
(f) Is entry limited and restricted?
(g) Are gloves being worn when handling infected animals or infectious or toxic materials?
(h) Is eye and respiratory protection being worn in rooms where nonhuman primates are present?
(i) If materials are being transported off-site for decontamination, is the containment adequate?
(a) Is laboratory clothing decontaminated before being sent to the laundry?
(b) Are all windows and penetrations through the walls and ceilings sealed?
(c) If biological safety cabinets are used, have they been certified within the last year?
(d) Are the appropriate decontaminants available?
(e) Are all entrances to the facility posted with—
(1) The appropriate special provisions for entry?
(2) The universal biohazard symbol?
(3) The name and telephone number of the laboratory director or other responsible person?
(f) Is entry limited and restricted?
(g) Are gloves being worn when handling infected animals or infectious or toxic materials?
(h) Is eye and respiratory protection being worn in rooms where nonhuman primates are present?
(i) Do the monitors indicate that the room is under negative pressure relative to all entrances?
(j) Are all vacuum lines protected with HEPA filters and liquid disinfectant traps?
(k) Is the autoclave being properly maintained and certified?
(l) Is the foot, elbow, or automatic handwash sink operating properly?
(m) Are all operations with etiologic agents being conducted inside biological safety cabinets or other approved engineering controls?
(n) Are all infected animals housed using appropriate primary containment systems?
(o) Do all personnel who enter rooms housing infected animals wear appropriate respiratory protection?
(p) Do personnel who exit rooms having infected animals leave their protective clothing in the animal and laboratory rooms?
(q) If available, has the UV pass box ouput been certified within the last 3 months?
(a) Precautions for all areas.
(1) Are all penetrations through the walls and ceilings sealed?
(2) Are the appropriate decontaminants available and used properly?
(3) Are all entrances to the facility posted with—
(i) The appropriate special provisions for entry?
(ii) The universal biohazard symbol?
(iii) The name and telephone number of the laboratory director or other responsible person?
(4) Is access to the laboratory controlled strictly and documented?
(5) Do the monitors indicate that the room is under negative pressure relative to all entrances?
(6) Are all vacuum lines protected with HEPA filters and liquid disinfectant traps?
(7) Is the autoclave being properly maintained and certified?
(8) Is the foot, elbow, or automatic handwash sink operating properly?
(9) Do the self-closing doors to the facility operate properly?
(10) Do personnel completely exchange street clothing for laboratory clothing before entry and shower upon exiting?
(11) Is the dunk tank disinfectant fresh and appropriate for the agents in use?
(b) Suit areas.
(1) Are all operations with etiologic agents conducted in Class I or II biological safety cabinets?
(2) Do the procedures in place ensure that, as much as possible, the contamination remains inside the cabinets (such as ensuring that everything removed from within the cabinets, such as gloves being worn, instruments, glassware, or similar items, are decontaminated or properly packaged first)?
(3) Are the Class I or II cabinets in the facility certified every 6 months?
(4) Does the suit decontamination shower have adequate appropriate decontaminant available?
(5) Has the suit decontamination shower been used or tested in the last month?
(6) Is the ventilated suit air supply and emergency air supply adequate and working properly?
(7) Is the emergency alarm system working properly?
(8) Are all of the one-piece positive pressure suits available for use in serviceable condition?
(9) Are infected animals housed in appropriate primary containment systems?
(10) Is the static pressure in the suit area negative to all surrounding areas?
(c) Nonsuit areas.
(1) Are all operations with etiologic agents conducted inside Class III biological safety cabinets?
(2) Were the Class III biological safety cabinets certified before initiating the current operation?
(3) Are all infected animals housed in Class III cabinet containment caging systems?
Equipment which is tested and listed as satisfactory according to standards established by a competent authority (such as NIOSH, Mine Safety and Health Administration (MSHA), or host country agency) to provide respiratory protection against the particular hazard for which it is designed. For military agent protection, DA and Department of Defense (DOD) are the approval authorities. (Approval authority may be specified by law.)
An area which meets the requirements for a BL-3 or BL-4 facility.
Engineering controls designed to enable laboratory workers to handle infectious etiologic agents and to provide primary containment of any resultant aerosol. There are three major classes of cabinets (I, II, and III) and several subclasses of class II cabinets. Each type of cabinet provides a different degree of protection to personnel and to the products handled inside them. The various classes of cabinets are described in detail in subpart H.
The facilities, equipment, and procedures suitable for work involving agents of no known or of minimal potential hazard to laboratory personnel and the environment.
The facilities, equipment, and procedures applicable to clinical, diagnostic, or teaching laboratories, and suitable for work involving indigenous agents of moderate potential hazard to personnel and the environment. It differs from BL-1 in that (1) laboratory personnel have specific training in handling pathogenic agents, (2) the laboratory is directed by scientists with experience in the handling of specific agents, (3) access to the laboratory is limited when work is being conducted, and (4) certain procedures in which infectious aerosols could be created are conducted in biological safety cabinets or other physical containment equipment.
The facilities, equipment, and procedures applicable to clinical, diagnostic, research, or production facilities in which work is performed with indigenous or exotic agents where potential exists for infection by aerosol, and the disease may have serious or lethal consequences. It differs from BL-2 in that (1) more extensive training in handling pathogenic and potentially lethal agents is necessary for laboratory personnel; (2) all procedures involving the manipulation of infectious material are conducted within biological safety cabinets, other physical containment devices, or by personnel wearing appropriate personal protective clothing and devices; (3) the laboratory has special engineering and design features, including access zones, sealed penetrations, and directional airflow; and (4) any modification of BL-3 recommendations must be made only by the commander.
The facilities, equipment, and procedures required for work with dangerous and exotic agents which pose a high individual risk of life-threatening disease. It differs from BL-3 in that (1) members of the laboratory staff have specific and thorough training in handling extremely hazardous infectious agents; (2) laboratory personnel understand the primary and secondary containment functions of the standard and special practices, containment equipment, and laboratory design characteristics; (3) access to the laboratory is strictly controlled by the institute director; (4) the facility is either in a separate building or in a controlled area within a building, completely isolated from all other areas of the building; (5) a specific facility operations manual is prepared or adopted; (6) within work areas of the facility, all activities are confined to Class III biological safety cabinets or Class I or Class II biological safety cabinets used in conjunction with one-piece positive pressure personnel suits ventilated by a life support system; and (7) the maximum containment laboratory has special engineering and design features to prevent microorganisms from being disseminated to the environment.
A structure that contains the requisite components necessary to support a facility that is designed according to the required biosafety level. The building can contain one or more facilities conforming to one or more biosafety level.
Any mishap with a BDP agent in which there was direct evidence of an actual exposure such as a measurable rise in antibody titer to the agent or a confirmed diagnosis of intoxication or disease.
Any viable microorganism, or its toxin which causes or may cause human disease, including those agents listed in 42 CFR 72.3 of the Department of Health and Human Services regulations, and any agent of biological origin that poses a degree of hazard similar to those agents.
An area within a building that provides appropriate protective barriers for persons working in the facility and the environment external to the facility, and outside of the building.
A filter which removes particulate matter down to submicron sized particles from the air passed through it with a minimum efficiency of 99.97 percent. While the filters remove particulate matter with great efficiency, vapors and gases (for example, from volatile chemicals) are passed through without restriction. HEPA filters are used as the primary means of removing infectious agents from air exhausted from engineering controls and facilities.
The estimated quantity of a toxin that is a minimum lethal dose for a 70 kilogram individual based upon published data or upon estimates extrapolated from animal toxicity data.
The commander or institute director of an Army activity conducting RDTE with BDP
An organization such as an Army RDTE activity (institute, agency, center, and so forth) or a contract organization such as a school of medicine, or research institute that conducts RDTE with BDP etiologic agents.
An individual room or rooms within a facility that provide space in which work with etiologic agents can be performed. It contains all of the appropriate engineering features and equipment required at a given biosafety level to protect personnel working in it and the environment external to the facility.
Research or production involving viable etiologic agents in quantities greater than 10 liters of culture.
An area which meets the requirements for a BL-4 facility. The area may be an entire building or a single room within the building. See chapter 7 for details.
Formed masks that fit snugly around the mouth and nose and are designed to protect against a nontoxic nuisance level of dusts and powders. These do not require approval by NIOSH or MSHA. Masks made of gauze do not qualify.
Any accident in which there was reason to believe that anyone working with a BDP agent may have been exposed to that agent, yet no measurable rise in antibody titer or diagnosis of intoxication or disease was made. However, the high probability existed for introduction of an agent through mucous membranes, respiratory tract, broken skin, or the circulatory system as a direct result of the accident, injury, or incident.
The waste materials listed by the Environmental Protection Agency under authority of the RCRA for which the agency regulates disposal. A description and listing of these wastes is located in 40 CFR part 261.
An area consisting of more than one room, designed to be a functional unit in which entire operations can be facilitated. Suites may contain a combination of laboratories or animal holding rooms and associated support areas within a facility that are designed to conform to a particular biosafety level. There may be one or more suites within a facility.
Toxic material of etiologic origin that has been isolated from the parent organism.
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.