[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2008 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
32
Parts 400 to 629
Revised as of July 1, 2008
National Defense
________________________
Containing a codification of documents of general
applicability and future effect
As of July 1, 2008
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 32:
Subtitle A--Department of Defense (Continued)
Chapter V--Department of the Army 5
Finding Aids:
Table of CFR Titles and Chapters........................ 563
Alphabetical List of Agencies Appearing in the CFR...... 583
List of CFR Sections Affected........................... 593
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 32 CFR 504.1 refers
to title 32, part 504,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
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name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
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Properly approved incorporations by reference in this volume are
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What if the material incorporated by reference cannot be found? If
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the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
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Director,
Office of the Federal Register.
July 1, 2008.
[[Page ix]]
THIS TITLE
Title 32--National Defense is composed of six volumes. The parts in
these volumes are arranged in the following order: parts 1-190, parts
191-399, parts 400-629, parts 630-699, parts 700-799, and part 800 to
End. The contents of these volumes represent all current regulations
codified under this title of the CFR as of July 1, 2008.
The current regulations issued by the Department of Defense appear
in the volumes containing parts 1-189 and parts 190-399; those issued by
the Department of the Army appear in the volumes containing parts 400-
629 and parts 630-699; those issued by the Department of the Navy appear
in the volume containing parts 700-799, and those issued by the
Department of the Air Force, Defense Logistics Agency, Selective Service
System, National Counterintelligence Center, Central Intelligence
Agency, Information Security Oversight Office, National Security
Council, Office of Science and Technology Policy, Office for Micronesian
Status Negotiations, and Office of the Vice President of the United
States appear in the volume containing parts 800 to end.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 32--NATIONAL DEFENSE
(This book contains parts 400 to 629)
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SUBTITLE A--Department of Defense (Continued)
Part
chapter v--Department of the Army........................... 504
Abbreviations Used in This Chapter:
AGCT = Army General Classification Test. AGO = Adjutant General's
Office. APP = Army Procurement Procedure. AR = Army Regulations. ASPR
= Armed Services Procurement Regulations. ATC = Air Transport Command.
A. W. = Articles of War. AWOL = Absent Without Leave. Comp. Gen. =
Comptroller General. OCF = Office, Chief of Finance. ROTC = Reserve
Officer's Training Corps. ZI = Zone of Interior.
[[Page 3]]
Subtitle A--Department of Defense (Continued)
[[Page 5]]
CHAPTER V--DEPARTMENT OF THE ARMY
(Parts 400 to 629)
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SUBCHAPTER A--AID OF CIVIL AUTHORITIES AND PUBLIC RELATIONS
Part Page
400-500
[Reserved]
504 Obtaining information from financial
institutions............................ 7
505 Army Privacy Act Program.................... 15
507 Manufacture and sale of decorations, medals,
badges, insignia, commercial use of
heraldic designs and Heraldic Quality
Control Program......................... 47
508 Competition with civilian bands............. 53
510 Chaplains................................... 54
513 Indebtedness of military personnel.......... 54
516 Litigation.................................. 65
518 The Freedom of Information Act Program...... 121
525 Entry authorization regulation for Kwajalein
Missile Range........................... 177
SUBCHAPTER B--CLAIMS AND ACCOUNTS
534 Military court fees......................... 184
536 Claims against the United States............ 188
537 Claims on behalf of the United States....... 263
538 Military payment certificates............... 274
SUBCHAPTER C--MILITARY EDUCATION
542 Schools and colleges........................ 277
543-544
[Reserved]
SUBCHAPTER D--MILITARY RESERVATIONS AND NATIONAL CEMETERIES
552 Regulations affecting military reservations. 280
553 Army national cemeteries.................... 341
[[Page 6]]
555 Corps of Engineers, research and
development, laboratory research and
development and tests, work for others.. 353
SUBCHAPTER E--ORGANIZED RESERVES
562 Reserve Officers' Training Corps............ 359
564 National Guard regulations.................. 362
SUBCHAPTER F--PERSONNEL
571 Recruiting and enlistments.................. 370
575 Admission to the United States Military
Academy................................. 371
578 Decorations, medals, ribbons, and similar
devices................................. 374
581 Personnel review board...................... 475
583
Former personnel [Reserved]
584 Family support, child custody, and paternity 484
589 Compliance with court orders by personnel
and command sponsored family members.... 503
SUBCHAPTER G--PROCUREMENT
619
[Reserved]
SUBCHAPTER H--SUPPLIES AND EQUIPMENT
621 Loan and sale of property................... 508
623 Loan of Army materiel....................... 519
625 Surface transportation--administrative
vehicle management...................... 559
626-629
[Reserved]
[[Page 7]]
SUBCHAPTER A_AID OF CIVIL AUTHORITIES AND PUBLIC RELATIONS
PARTS 400 500 [RESERVED]
PART 504_OBTAINING INFORMATION FROM FINANCIAL INSTITUTIONS--Table of Contents
Sec.
504.1 General.
504.2 Procedures.
Appendix A to Part 504--Request for Basic Identifying Account Data--
Sample Format.
Appendix B to Part 504--Customer Consent and Authorization for Access--
Sample Format.
Appendix C to Part 504--Certificate of Compliance with the Right to
Financial Privacy Act of 1978--Sample Format.
Appendix D to Part 504--Formal Written Request for Access--Sample
Format.
Appendix E to Part 504--Customer Notice of Formal Written Request--
Sample Format.
Authority: 12 U.S.C. 3401 et seq., Pub. L. 95-630, unless otherwise
noted.
Source: 70 FR 60723, Oct. 19, 2005, unless otherwise noted.
Sec. 504.1 General.
(a) Purpose. This part provides DA policies, procedures, and
restrictions governing access to and disclosure of financial records
maintained by financial institutions during the conduct of Army
investigations or inquiries.
(b) Applicability and scope. (1) This part applies to the Active
Army, the Army National Guard of the United States (ARNGUS)/Army
National Guard (ARNG), and the United States Army Reserve unless
otherwise stated.
(2) The provisions of 12 U.S.C. 3401 et seq. do not govern obtaining
access to financial records maintained by financial institutions located
outside of the territories of the United States, Puerto Rico, the
District of Columbia, Guam, American Samoa, or the Virgin Islands. The
procedures outlined in Sec. 504.2(d)(4) will be followed in seeking
access to financial information from these facilities.
(3) This part also applies to financial records maintained by
financial institutions as defined in Sec. 504.1(c)(1).
(c) Explanation of terms. (1) For purposes of this part, the
following terms apply:
(i) Financial institution. Any office of a--
(A) Bank.
(B) Savings bank.
(C) Card issuer as defined in section 103 of the Consumers Credit
Protection Act (15 U.S.C. 1602(n)).
(D) Industrial loan company.
(E) Trust company.
(F) Savings association.
(G) Building and loan association.
(H) Homestead association (including cooperative banks).
(I) Credit union.
(J) Consumer finance institution.
(ii) This includes only those offices located in any State or
territory of the United States, or in the District of Columbia, Puerto
Rico, Guam, American Samoa, or the Virgin Islands.
(2) Financial record. An original record, its copy, or information
known to have been derived from the original record held by a financial
institution, pertaining to a customer's relationship with the financial
institution.
(3) Person. An individual or partnership of five or fewer
individuals. (Per DODD 5400.12.)
(4) Customer. Any person or authorized representative of that
person--
(i) Who used or is using any service of a financial institution.
(ii) For which a financial institution is acting or has acted as a
fiduciary for an account maintained in the name of that person.
(5) Law enforcement inquiry. A lawful investigation or official
proceeding inquiring into a violation of, or failure to comply with, a
criminal or civil statute or any regulation, rule, or order issued
pursuant thereto.
(6) Army law enforcement office. Any army element, agency, or unit
authorized to conduct investigations under the Uniform Code of Military
Justice or Army regulations. This broad definition of Army law
enforcement office
[[Page 8]]
includes military police, criminal investigation, inspector general, and
military intelligence activities conducting investigations of suspected
violations of law or regulation.
(7) Personnel security investigation. An investigation required to
determine a person's eligibility for access to classified information,
assignment or retention in sensitive duties, or other designated duties
requiring such investigation. Personnel security investigation includes
investigations of subversive affiliations, suitability information, or
hostage situations conducted to make personnel security determinations.
It also includes investigations of allegations that--
(i) Arise after adjudicative action, and
(ii) Require resolution to determine a person's current eligibility
for access to classified information or assignment or retention in a
sensitive position. With DA, the Defense Investigative Service conducts
personnel security investigations.
(d) Policy--(1) Customer consent. It is DA policy to seek customer
consent to obtain a customer's financial records from a financial
institution unless doing so would compromise or harmfully delay a
legitimate law enforcement inquiry. If the person declines to consent to
disclosure, the alternative means of obtaining the records authorized by
this part will be used. (See Sec. 504.2 (c) through (g).)
(2) Access requests. Except as provided in paragraph (d)(3) of this
section and Sec. Sec. 504.1(f)(1), 504.2(g) and 504.2(j), Army
investigative elements may not have access to or obtain copies of the
information in the financial records of any customer from a financial
institution unless the financial records are reasonably described and
the--
(i) Customer has authorized such disclosure (Sec. 504.2(b));
(ii) Financial records are disclosed in response to a search warrant
which meets the requirements of Sec. 504.2(d);
(iii) Financial records are disclosed in response to a judicial
subpoena which meets the requirements of Sec. 504.2(e); or
(iv) Financial records are disclosed in response to a formal written
request which meets the requirements of Sec. 504.2(f).
(3) Voluntary information. Nothing in this part will preclude any
financial institution, or any officer, employee, or agent of a financial
institution, from notifying an Army investigative element that such
institution, or officer, employee or agent has information which may be
relevant to a possible violation of any statute or regulation.
(e) Authority. (1) Law enforcement offices are authorized to obtain
records of financial institutions per this part, except as provided in
Sec. 504.2(e).
(2) The head of a law enforcement office of field grade rank or
higher (or an equivalent grade civilian official) is authorized to
initiate requests for such records.
(f) Exceptions and waivers. (1) A law enforcement office may issue a
formal written request for basic identifying account information to a
financial institution as part of a legitimate law enforcement inquiry.
The request may be issued for any or all of the following identifying
data:
(i) Name.
(ii) Address.
(iii) Account number.
(iv) Type of account of any customer or ascertainable group of
customers associated with a financial transaction or class of financial
transactions.
(2) A request for disclosure of the above specified basic
identifying data on a customer's account may be issued without complying
with the customer notice, challenge, or transfer procedures described in
Sec. 504.2. However, if access to the financial records themselves is
required, the procedures in Sec. 504.2 must be followed. (A sample
format for requesting basic identifying account data is in app. A.)
(3) This part will not apply when financial records are sought by
the Army under the Federal Rules for Civil Procedure, Criminal
Procedure, Rules for Courts-Martial, or other comparable rules of other
courts in connection with litigation to which the Government and the
customer are parties.
(4) No exceptions or waivers will be granted for those portions of
this part required by law. Submit requests for exceptions or waivers of
other aspects
[[Page 9]]
of this part to HQDA OPMG (DAPM-MPD-LE), Washington, DC 20310-2800.
Sec. 504.2 Procedures.
(a) General. A law enforcement official seeking access to a person's
financial records will, when feasible, obtain the customer's consent.
This section also sets forth other authorized procedures for obtaining
financial records if it is not feasible to obtain the customer's
consent. Authorized procedures for obtaining financial records follow.
All communications with a U.S. Attorney or a U.S. District Court, as
required by this part, will be coordinated with the supporting staff
judge advocate before dispatch.
(b) Customer consent. (1) A law enforcement office may gain access
to or a copy of a customer's financial records by obtaining the
customer's consent and authorization in writing. (See app. B to this
part for a sample format.) Any consent obtained under the provisions of
this paragraph must--
(i) Be in writing, signed, and dated.
(ii) Identify the particular financial records being disclosed.
(iii) State that the customer may revoke the consent at any time
before disclosure.
(iv) Specify the purpose of disclosure and to which agency the
records may be disclosed.
(v) Authorize the disclosure for a period not over 3 months.
(vi) Contain a ``'Statement of Customer Rights Under the Right to
Financial Privacy Act of 1978'' (12 U.S.C. 3401 et seq.) (app. B).
(2) Any customer's consent not containing all of the elements listed
in paragraph (a) of this section will not be valid.
(3) A copy of the customer's consent will be made a part of the law
enforcement inquiry file.
(4) A certification of compliance with 12 U.S.C. 3401 et seq. (app.
C), along with the customer's consent, will be provided to the financial
institution as a prerequisite to obtaining access to the financial
records.
(c) Administrative summons or subpoena. The Army has no authority to
issue an administrative summons or subpoena for access to financial
records.
(d) Search warrant. (1) A law enforcement office may obtain
financial records by using a search warrant obtained under Rule 41 of
the Federal Rules of Criminal Procedure in appropriate cases.
(2) No later than 90 days after the search warrant is served, unless
a delay of notice is obtained under Sec. 504.2(i), a copy of the search
warrant and the following notice must be mailed to the customer's last
known address:
Records or information concerning your transactions held by the
financial institution named in the attached search warrant were obtained
by this (office/agency/unit) on (date) for the following purpose: (state
purpose). You may have rights under the Right to Financial Privacy Act
of 1978.
(3) Search authorization signed by installation commanders or
military judges will not be used to gain access to financial records
from financial institutions in any State or territory of the United
States.
(4) Access to financial records maintained by military banking
contractors in overseas areas or by other financial institutions located
on DOD installations outside the United States, Puerto Rico, the
District of Columbia, Guam, American Samoa, or the Virgin Islands is
preferably obtained by customer consent.
(i) In cases where it would not be appropriate to obtain this
consent or such consent is refused and the financial institution is not
otherwise willing to provide access to its records, the law enforcement
activity may seek access by use of a search authorization. This
authorization must be prepared and issued per AR 27-10, Military
Justice.
(ii) Information obtained under this paragraph should be properly
identified as financial information. It should be transferred only where
an official need-to-know exists. Failure to do so, however, does not
render the information inadmissible in courts-martial or other
proceedings.
(iii) Law enforcement activities seeking access to financial records
maintained by all other financial institutions overseas will comply with
local foreign statutes or procedures governing such access.
[[Page 10]]
(e) Judicial subpoena. Judicial subpoenas--
(1) Are those subpoenas issued in connection with a pending judicial
proceeding.
(2) Include subpoenas issued under Rule for Courts-Martial 703(e)(2)
of the Manual for Courts-Martial and Article 46 of the Uniform Code of
Military Justice. The servicing staff judge advocate will be consulted
on the availability and use of judicial subpoenas.
(f) Formal written request. (1) A law enforcement office may
formally request financial records when the records are relevant to a
legitimate law enforcement inquiry. This request may be issued only if--
(i) The customer has declined to consent to the disclosure of his or
her records, or
(ii) Seeking consent from the customer would compromise or harmfully
delay a legitimate law enforcement inquiry.
(2) A formal written request will be in a format set forth in
appendix D of this part and will--
(i) State that the request is issued under the Right to Financial
Privacy Act of 1978 and this part.
(ii) Described the specific records to be examined.
(iii) State that access is sought in connection with a legitimate
law enforcement inquiry.
(iv) Describe the nature of the inquiry.
(v) Be signed by the head of the law enforcement office or a
designee (persons specified in Sec. 504.1(e)(2)).
(3) At the same time or before a formal written request is issued to
a financial institution, a copy of the request will be personally served
upon or mailed to the customer's last known address unless a delay of
customer notice has been obtained under Sec. 504.2(i). The notice to
the customer will be--
(i) In a format similar to appendix E of this part.
(ii) Personally served at least 10 days or mailed at least 14 days
before the date on which access is sought.
(4) The official who signs the customer notice is designated to
receive any challenge from the customer.
(5) The customer will have 10 days to challenge a notice request
when personal service is made, and 14 days when service is by mail.
(6) The head of the law enforcement office initiating the formal
written request will set up procedures to ensure that no access to
financial records is attempted before expiration of the above time
periods--
(i) While awaiting receipt of a potential customer challenge, or
(ii) While awaiting the filing of an application for an injunction
by the customer.
(7) Proper preparation of the formal written request and notice to
the customer requires preparation of motion papers and a statement
suitable for court filing by the customer. Accordingly, the law
enforcement office intending to initiate a formal written request will
coordinate preparation of the request, the notice, motion papers, and
sworn statement with the supporting staff judge advocate. These
documents are required by statute; their preparation cannot be waived.
(8) The supporting staff judge advocate is responsible for liaison
with the proper United States Attorney and United States District Court.
The requesting official will coordinate with the supporting staff judge
advocate to determine whether the customer has filed a motion to prevent
disclosure of the financial records within the prescribed time limits.
(9) The head of the law enforcement office (Sec. 504.2(f)(2)(v))
will certify in writing (see app. C) to the financial institution that
such office has complied with the requirements of 12 U.S.C. 3401 et
seq.--
(i) When a customer fails to file a challenge to access to financial
records within the above time periods, or
(ii) When a challenge is adjudicated in favor of the law enforcement
office. No access to any financial records will be made before such
certification is given.
(g) Emergency access. Section 504.2(g)(2)(3) provides for emergency
access in such cases of imminent danger. (No other procedures in this
part apply to such emergency access.)
(1) In some cases, the requesting law enforcement office may
determine that a delay in obtaining access would create an imminent
danger of--
[[Page 11]]
(i) Physical injury to a person,
(ii) Serious property damage, or
(iii) Flight to avoid prosecution.
(2) When emergency access is made to financial records, the
requesting official (Sec. 504.1(e)(2)) will--
(i) Certify in writing (in a format similar to that in app. C) to
the financial institution that the provisions of 12 U.S.C. 3401 et seq.
have been complied with as a prerequisite to obtaining access.
(ii) File with the proper court a signed, sworn statement setting
forth the grounds for the emergency access within 5 days of obtaining
access to financial records.
(3) After filing of the signed, sworn statement, the official who
has obtained access to financial records under this paragraph will as
soon as practicable--
(i) Personally serve or mail to the customer a copy of the request
to the financial institution and the following notice, unless a delay of
notice has been obtained under Sec. 504.2(i):
Records concerning your transactions held by the financial
institution named in the attached request were obtained by (office/
agency/unit) under the Right to Financial Privacy Act of 1978 on (date)
for the following purpose: (state with reasonable detail the nature of
the law enforcement inquiry). Emergency access to such records was
obtained on the grounds that (state grounds).
(ii) Ensure that mailings under this section are by certified or
registered mail to the last known address of the customer.
(h) Release of information obtained from financial institutions--(1)
Records notice. Financial records, to include derived information,
obtained under 12 U.S.C. 3401 et seq. will be marked as follows:
This record was obtained pursuant to the Right to Financial Privacy
Act of 1978, 12 U.S.C. 3401 et seq., and may not be transferred to
another Federal agency or department outside DOD without prior
compliance with the transferring requirements of 12 U.S.C. 3412.
(2) Records transfer. (i) Financial records originally obtained
under this part will not be transferred to another agency or department
outside the DOD unless the transferring law enforcement office certifies
their relevance in writing. Certification will state that there is
reason to believe that the records are relevant to a legitimate law
enforcement inquiry within the jurisdiction of the receiving agency or
department. To support this certification, the transferring office may
require that the requesting agency submit adequate justification for its
request. File a copy of this certification with a copy of the released
records.
(ii) Unless a delay of customer notice has been obtained (Sec.
504.2(i)), the transferring law enforcement office will, within 14 days,
personally serve or mail the following to the customer at his or her
last known address--
(A) A copy of the certification made according to Sec.
504.2(h)(2)(i) and
(B) The following notice, which will state the nature of the law
enforcement inquiry with reasonable detail:
Copies of, or information contained in, your financial records
lawfully in possession of the Department of the Army have been furnished
to (state the receiving agency or department) pursuant to the Right to
Financial Privacy Act of 1978 for (state the purpose). If you believe
that this transfer has not been made to further a legitimate law
enforcement inquiry, you may have legal rights under the Financial
Privacy Act of 1978 or the Privacy Act of 1974.
(iii) If a request for release of information is from a Federal
agency authorized to conduct foreign intelligence or foreign
counterintelligence activities (Executive Order 12333) and is for
purposes of conducting such activities by these agencies, the
information will be released without notifying the customer, unless
permission to provide notification is given in writing by the requesting
agency.
(iv) Financial information obtained before the effective date of the
Financial Privacy Act of 1978 (March 10, 1979) may continue to be
provided to other agencies according to existing procedures, to include
applicable Privacy Act System Notices published in AR 340-21 series.
(3) Precautionary measures. Whenever financial data obtained under
this part is incorporated into a report of investigation or other
correspondence, precautions must be taken to ensure that--
[[Page 12]]
(i) The report or correspondence is not distributed outside of DOD
except in compliance with paragraph (h)(2)(ii)(B) of this section.
(ii) The report or other correspondence contains the following
warning restriction on the first page or cover:
Some of the information contained herein (cite specific paragraphs)
is financial record information which was obtained pursuant to the Right
to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq. This
information may not be released to another Federal agency or department
outside the DOD without compliance with the specific requirements of 12
U.S.C. 3412 and AR 190-6.
(i) Delay of customer notice procedures--(1) Length of delay. The
customer notice required by formal written request (Sec. 504.2(f)(3)),
emergency access (Sec. 504.2(g)(3)), and release of information (Sec.
504.2(h)(2)(iii)) may be delayed for successive periods of 90 days. The
notice required for search warrant (Sec. 504.2(d)(2)) may be delayed
for one period of 180 days and successive periods of 90 days.
(2) Conditions for delay. A delay of notice may only be made by an
order of an appropriate court. This will be done when not granting a
delay in serving the notice would result in--
(i) Endangering the life or physical safety of any person.
(ii) Flight from prosecution.
(iii) Destruction of or tampering with evidence.
(iv) Intimidation of potential witnesses.
(v) Otherwise seriously jeopardizing an investigation or official
proceeding or unduly delaying a trial or ongoing official proceeding to
the same degree as the circumstances in Sec. 504.2(i)(2)(i) through
(iv).
(3) Coordination. When a delay of notice is appropriate, the law
enforcement office involved will consult with the supporting staff judge
advocate before attempting to obtain such a delay. Applications for
delay of notice should contain reasonable detail.
(4) After delay expiration. Upon the expiration of a delay of notice
under above and required by--
(i) Section 504.2(d)(2), the law enforcement office obtaining
financial records will mail to the customer a copy of the search warrant
and the following notice.
Records or information concerning your transactions held by the
financial institution named in the attached search warrant were obtained
by this (agency or office) on (date). Notification was delayed beyond
the statutory 180-day delay period pursuant to a determination by the
court that such notice would seriously jeopardize an investigation
concerning (state with reasonable detail). You may have rights under the
Right to Financial Privacy Act of 1978.
(ii) Section 504.2(f)(3), the law enforcement office obtaining
financial records will serve personally or mail to the customer a copy
of the process or request and the following notice:
Records or information concerning your transactions which are held
by the financial institution named in the attached process or request
were supplied to or requested by the Government authority named in the
process or request on (date). Notification was withheld pursuant to a
determination by the (title of the court so ordering) under the Right to
Financial Privacy Act of 1978 that such notice might (state reason). The
purpose of the investigation or official proceeding was (state purpose
with reasonable detail).
(iii) Section 504.2(g)(3), the law enforcement office obtaining
financial records will serve personally or mail to the customer a copy
of the request and the notice required by Sec. 504.2(g)(3).
(iv) Section 504.2(h)(2), the law enforcement office transferring
financial records will serve personally or mail to the customer the
notice required by Sec. 504.2(f)(3). If the law enforcement office was
responsible for obtaining the court order authorizing the delay, such
office shall also serve personally or by mail to the customer the notice
required in Sec. 504.2(f)(3).
(j) Foreign intelligence and foreign counterintelligence activities.
(1) Except as indicated below, nothing in this regulation applies to
requests for financial information in connection with authorized foreign
intelligence and foreign counterintelligence activities as defined in
Executive Order 12333. Appropriate foreign intelligence and
counterintelligence directives should be consulted in these instances.
(2) However, to comply with the Financial Privacy Act of 1978, the
following guidance will be followed for
[[Page 13]]
such requests. When a request for financial records is made--
(i) A military intelligence group commander, the chief of an
investigative control office, or the Commanding General (CG) (or Deputy
CG), U.S. Army Intelligence and Security Command, will certify to the
financial institution that the requesting activity has complied with the
provisions of 12 U.S.C. 3403(b).
(ii) The requesting official will notify the financial institution
from which records are sought that 12 U.S.C. 3414(a)(3) prohibits
disclosure to any person by the institution, its agents, or employees
that financial records have been sought or obtained.
(k) Certification. A certificate of compliance with the Right to
Financial Privacy Act of 1978 (app. C) will be provided to the financial
institution as a prerequisite to obtaining access to financial records
under the following access procedures:
(1) Customer consent (Sec. 504.2(b)).
(2) Search warrant (Sec. 504.2(d)).
(3) Judicial subpoena (Sec. 504.2(e)).
(4) Formal written request (Sec. 504.2(f)).
(5) Emergency access (Sec. 504.2(g)).
(6) Foreign intelligence and foreign counterintelligence activities
(Sec. 504.2(j)).
Sec. Appendix A to Part 504--Request For Basic Identifying Account
Data--Sample Format
(Official Letterhead)
(Date)_________________________________________________________________
Mr./Mrs. ----------____________________________________________________
Chief Teller (as appropriate), First National
Bank, Little Rock, AR 72203.
Dear Mr./Mrs. ----------: In connection with a legitimate law
enforcement inquiry and pursuant to section 3414 of the Right to
Financial Privacy Act of 1978, section 3401 et seq., Title 12, United
States Code, you are requested to provide the following account
information: (name, address, account number, and type of account of any
customer or ascertainable group of customers associated with a certain
financial transaction or class of financial transactions as set forth in
Sec. 504.1(f)).
I hereby certify, pursuant to section 3403(b) of the Right to
Financial Privacy Act of 1978, that the provisions of the Act have been
complied with as to this request for account information.
(Official Signature Block) ------______________________________________
Under section 3417(c) of the Act, good faith reliance upon this
certification relieves your institution and its employees and agents of
any possible liability to the subject in connection with the disclosure
of the requested financial records.
Sec. Appendix B to Part 504--Customer Consent and Authorization For
Access--Sample Format
Pursuant to section 3404(a) of the Right to Financial Privacy Act of
1978, I, (name of customer), having read the explanation of my rights on
the reverse side, hereby authorize the (name and address of financial
institution) to disclose these financial records: (list of particular
financial records) to (Army law enforcement office) for the following
purpose(s): (specify the purpose(s)).
I understand that this authorization may be revoked by me in writing
at any time before my records, as described above, are disclosed, and
that this authorization is valid for no more than 3 months from the date
of my signature.
Date:__________________________________________________________________
Signature:_____________________________________________________________
(Typed name)
(Mailing address of customer)
Statement of Customer Rights Under the Right to Financial Privacy Act of
1978
Federal law protects the privacy of your financial records. Before
banks, savings and loan associations, credit unions, credit card
issuers, or other financial institutions may give financial information
about you to a Federal agency, certain procedures must be followed.
Consent to Financial Records
You may be asked to consent to the financial institution making your
financial records available to the Government. You may withhold your
consent, and your consent is not required as a condition of doing
business with any financial institution. If you give your consent, it
can be revoked in writing at any time before your records are disclosed.
Furthermore, any consent you give is effective for only 3 months and
your financial institution must keep a record of the instances in which
it discloses your financial information.
Without Your Consent
Without your consent, a Federal agency that wants to see your
financial records may do so ordinarily only by means of a lawful
subpoena, summons, formal written request, or search warrant for that
purpose. Generally, the Federal agency must give you advance notice of
its request for your records explaining why the information is being
sought and telling you how to object in court. The Federal agency must
also send
[[Page 14]]
you copies of court documents to be prepared by you with instructions
for filling them out. While these procedures will be kept as simple as
possible, you may want to consult an attorney before making a challenge
to a Federal agency's request.
Exceptions
In some circumstances, a Federal agency may obtain financial
information about you without advance notice or your consent. In most of
these cases, the Federal agency will be required to go to court for
permission to obtain your records without giving you notice beforehand.
In these instances, the court will make the Government show that its
investigation and request for your records are proper. When the reason
for the delay of notice no longer exists, you will usually be notified
that your records were obtained.
Transfer of Information
Generally, a Federal agency that obtains your financial records is
prohibited from transferring them to another Federal agency unless it
certifies in writing the transfer is proper and sends a notice to you
that your records have been sent to another agency.
Penalties
If the Federal agency or financial institution violates the Right to
Financial Privacy Act, you may sue for damages or seek compliance with
the law. If you win, you may be repaid your attorney's fee and costs.
Additional Information
If you have any questions about your rights under this law, or about
how to consent to release your financial records, please call the
official whose name and telephone number appears below:
________________________________________________________________________
(Last Name, First Name, Middle Initial)
________________________________________________________________________
Title (Area Code) (Telephone Number)
________________________________________________________________________
(Component activity, address)
Sec. Appendix C to Part 504--Certificate of Compliance With the Right to
Financial Privacy Act of 1978--Sample Format
(Official Letterhead)
Mr./Mrs._______________________________________________________________
Manager, Army Federal Credit Union, Fort Ord, CA 93941.
Dear Mr./Mrs. ----------: I certify, pursuant to section 3403(b) of
the Right to Financial Privacy Act of 1978, section 3401 et seq., Title
12, United States Code, that the applicable provisions of that statute
have been complied with as to the (customer's consent, search warrant or
judicial subpoena, formal written request, emergency access, as
applicable) presented on (date), for the following financial records of
(customer's name):
________________________________________________________________________
(Describe the specific records)
(Official Signature Block)_____________________________________________
Pursuant to section 3417(c) of the Right to Financial Privacy Act of
1978, good faith reliance upon this certificate relieves your
institution and its employees and agents of any possible liability to
the customer in connection with the disclosure of these financial
records.
Sec. Appendix D to Part 504--Formal Written Request For Access--Sample
Format
(Official Letterhead)
(Date)_________________________________________________________________
Mr./Mrs._______________________________________________________________
President (as appropriate), City National Bank and Trust Company,
Altoona, PA 16602.
Dear Mr./Mrs. ----------: In connection with a legitimate law
enforcement inquiry and pursuant to section 3402(5) and section 3408 of
the Right to Financial Privacy Act of 1978, section 3401 et seq., Title
12, United States Code, and Army Regulation 190-6, you are requested to
provide the following account information pertaining to (identify
customer);
________________________________________________________________________
(Describe the specific records to be examined)
The Army has no authority to issue an administrative summons or
subpoena for access to these financial records which are required for
(describe the nature or purpose of the inquiry).
A copy of this request was (personally served upon or mailed to) the
subject on (date) who has (10 or 14) days in which to challenge this
request by filing an application in an appropriate United States
district court if the subject desires to do so.
Upon expiration of the above mentioned time period and in the
absence of any filing or challenge by the subject, you will be furnished
a certification certifying in writing that the applicable provisions of
the Act have been complied with prior to obtaining the requested
records. Upon your receipt of a Certificate of Compliance with the Right
to Financial Privacy Act of 1978, you will be relieved of any possible
liability to the subject in connection with the disclosure of the
requested financial records.
(Official Signature Block)_____________________________________________
[[Page 15]]
Sec. Appendix E to Part 504--Customer Notice of Formal Written Request--
Sample Format
(Official Letterhead)
(Date)_________________________________________________________________
Mr./Ms.________________________________________________________________
1500 N. Main Street, Washington, DC 20314.
Dear Mr./Ms. ----: Information or records concerning your
transactions held by the financial institution named in the attached
request are being sought by the (agency/department) in accordance with
the Right to Financial Privacy Act of 1978, section 3401 et seq., Title
12, United States Code, and Army Regulation 190-6, for the following
purpose(s):
________________________________________________________________________
(List the purpose(s))
If you desire that such records or information not be made
available, you must do the following:
a. Fill out the accompanying motion paper and sworn statement or
write one of your own--
(1) Stating that you are the customer whose records are being
requested by the Government.
(2) Giving the reasons you believe that the records are not relevant
or any other legal basis for objecting to the release of the records.
b. File the motion and statement by mailing or delivering them to
the clerk of any one of the following United States District Courts:
________________________________________________________________________
(List applicable courts)
c. Mail or deliver a copy of your motion and statement to the
requesting authority: (give title and address).
d. Be prepared to come to court and present your position in further
detail.
You do not need to have a lawyer, although you may wish to employ
one to represent you and protect your rights.
If you do not follow the above procedures, upon the expiration of
(10 days from the date of personal service) (14 days from the date of
mailing) of this notice, the records or information requested therein
may be made available.
These records may be transferred to other Government authorities for
legitimate law enforcement inquiries, in which event you will be
notified after the transfer if such transfer is made.
3 Enclosures (see para ----)
(Signature)____________________________________________________________
PART 505_ARMY PRIVACY ACT PROGRAM--Table of Contents
Sec.
505.1 General information.
505.2 General provisions.
505.3 Privacy Act systems of records.
505.4 Collecting personal information.
505.5 Individual access to personal information.
505.6 Amendment of records.
505.7 Disclosure of personal information to other agencies and third
parties.
505.8 Training requirements.
505.9 Reporting requirements.
505.10 Use and establishment of exemptions.
505.11 Federal Register publishing requirements.
505.12 Privacy Act enforcement actions.
505.13 Computer Matching Agreement Program.
505.14 Recordkeeping requirements under the Privacy Act.
Appendix A to Part 505--References
Appendix B to Part 505--Denial Authorities for Records Under Their
Authority (Formerly Access and Amendment Refusal Authorities)
Appendix C to Part 505--Privacy Act Statement Format
Appendix D to Part 505--Exemptions; Exceptions; and DoD Blanket Routine
Uses
Appendix E to Part 505--Litigation Status Sheet
Appendix F to Part 505--Example of a System of Records Notice
Appendix G to Part 505--Management Control Evaluation Checklist
Appendix H to Part 505--Definitions
Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
Source: 71 FR 46052, Aug. 10, 2006, unless otherwise noted.
Sec. 505.1 General information.
(a) Purpose. This part sets forth policies and procedures that
govern personal information maintained by the Department of the Army
(DA) in Privacy Act systems of records. This part also provides guidance
on collecting and disseminating personal information in general. The
purpose of the Army Privacy Act Program is to balance the government's
need to maintain information about individuals with the right of
individuals to be protected against unwarranted invasions of their
privacy stemming from Federal agencies' collection, maintenance,
[[Page 16]]
use and disclosure of personal information about them. Additionally,
this part promotes uniformity within the Army's Privacy Act Program.
(b) References: (1) Referenced publications are listed in Appendix A
of this part.
(2) DOD Computer Matching Program and other Defense Privacy
Guidelines may be accessed at the Defense Privacy Office Web site http:/
/www.defenselink.mil/privacy.
(c) Definitions are provided at Appendix H of this part.
(d) Responsibilities. (1) The Office of the Administrative Assistant
to the Secretary of the Army will--
(i) Act as the senior Army Privacy Official with overall
responsibility for the execution of the Department of the Army Privacy
Act Program;
(ii) Develop and issue policy guidance for the program in
consultation with the Army General Counsel; and
(iii) Ensure the DA Privacy Act Program complies with Federal
statutes, Executive Orders, Office of Management and Budget guidelines,
and 32 CFR part 310.
(2) The Chief Attorney, Office of the Administrative Assistant to
the Secretary of the Army (OAASA) will--
(i) Provide advice and assistance on legal matters arising out of,
or incident to, the administration of the DA Privacy Act Program;
(ii) Serve as the legal advisor to the DA Privacy Act Review Board.
This duty may be fulfilled by a designee in the Chief Attorney and Legal
Services Directorate, OAASA;
(iii) Provide legal advice relating to interpretation and
application of the Privacy Act of 1974; and
(iv) Serve as a member on the Defense Privacy Board Legal Committee.
This duty may be fulfilled by a designee in the Chief Attorney and Legal
Services Directorate, OAASA.
(3) The Judge Advocate General will serve as the Denial Authority on
requests made pursuant to the Privacy Act of 1974 for access to or
amendment of Army records, regardless of functional category, concerning
actual or potential litigation in which the United States has an
interest.
(4) The Chief, DA Freedom of Information Act and Privacy Office
(FOIA/P), U.S. Army Records Management and Declassification Agency
will--
(i) Develop and recommend policy;
(ii) Execute duties as the Army's Privacy Act Officer;
(iii) Promote Privacy Act awareness throughout the DA;
(iv) Serve as a voting member on the Defense Data Integrity Board
and the Defense Privacy Board;
(v) Represent the Department of the Army in DOD policy meetings; and
(vi) Appoint a Privacy Act Manager who will--
(A) Administer procedures outlined in this part;
(B) Review and approve proposed new, altered, or amended Privacy Act
systems of records notices and subsequently submit them to the Defense
Privacy Office for coordination;
(C) Review Department of the Army Forms for compliance with the
Privacy Act and this part;
(D) Ensure that reports required by the Privacy Act are provided
upon request from the Defense Privacy Office;
(E) Review Computer Matching Agreements and recommend approval or
denial to the Chief, DA FOIA/P Office;
(F) Provide Privacy Act training;
(G) Provide privacy guidance and assistance to DA activities and
combatant commands where the Army is the Executive Agent;
(H) Ensure information collections are developed in compliance with
the Privacy Act provisions;
(I) Ensure Office of Management and Budget reporting requirements,
guidance, and policy are accomplished; and
(J) Immediately review privacy violations of personnel to locate the
problem and develop a means to prevent recurrence of the problem.
(5) Heads of Department of the Army activities, field-operating
agencies, direct reporting units, Major Army commands, subordinate
commands down to the battalion level, and installations will--
(i) Supervise and execute the privacy program in functional areas
and activities under their responsibility; and
(ii) Appoint a Privacy Act Official who will--
(A) Serve as the staff advisor on privacy matters;
[[Page 17]]
(B) Ensure that Privacy Act records collected and maintained within
the Command or agency are properly described in a Privacy Act system of
records notice published in the Federal Register;
(C) Ensure no undeclared systems of records are being maintained;
(D) Ensure Privacy Act requests are processed promptly and
responsively;
(E) Ensure a Privacy Act Statement is provided to individuals when
information is collected that will be maintained in a Privacy Act system
of records, regardless of the medium used to collect the personal
information (i.e., forms, personal interviews, stylized formats,
telephonic interviews, or other methods);
(F) Review, biennially, recordkeeping practices to ensure compliance
with the Act, paying particular attention to the maintenance of
automated records. In addition, ensure cooperation with records
management officials on such matters as maintenance and disposal
procedures, statutory requirements, forms, and reports; and
(G) Review, biennially Privacy Act training practices. This is to
ensure all personnel are familiar with the requirements of the Act.
(6) DA Privacy Act System Managers and Developers will--
(i) Ensure that appropriate procedures and safeguards are developed,
implemented, and maintained to protect an individual's personal
information;
(ii) Ensure that all personnel are aware of their responsibilities
for protecting personal information being collected and maintained under
the Privacy Act Program;
(iii) Ensure official filing systems that retrieve records by name
or other personal identifier and are maintained in a Privacy Act system
of records have been published in the Federal Register as a Privacy Act
system of records notice. Any official who willfully maintains a system
of records without meeting the publication requirements, as prescribed
by 5 U.S.C. 552a, as amended, OMB Circular A-130, 32 CFR part 310 and
this part, will be subject to possible criminal penalties and/or
administrative sanctions;
(iv) Prepare new, amended, or altered Privacy Act system of records
notices and submit them to the DA Freedom of Information and Privacy
Office for review. After appropriate coordination, the system of records
notices will be submitted to the Defense Privacy Office for their review
and coordination;
(v) Review, biennially, each Privacy Act system of records notice
under their purview to ensure that it accurately describes the system of
records;
(vi) Review, every four years, the routine use disclosures
associated with each Privacy Act system of records notice in order to
determine if such routine use continues to be compatible with the
purpose for which the activity collected the information;
(vii) Review, every four years, each Privacy Act system of records
notice for which the Secretary of the Army has promulgated exemption
rules pursuant to Sections (j) or (k) of the Act. This is to ensure such
exemptions are still appropriate;
(viii) Review, every year, contracts that provide for the
maintenance of a Privacy Act system of records to accomplish an
activity's mission. This requirement is to ensure each contract contains
provisions that bind the contractor, and its employees, to the
requirements of 5 U.S.C. 552a(m)(1); and
(ix) Review, if applicable, ongoing Computer Matching Agreements.
The Defense Data Integrity Board approves Computer Matching Agreements
for 18 months, with an option to renew for an additional year. This
additional review will ensure that the requirements of the Privacy Act,
Office of Management and Budget guidance, local regulations, and the
requirements contained in the Matching Agreements themselves have been
met.
(7) All DA personnel will--
(i) Take appropriate actions to ensure personal information
contained in a Privacy Act system of records is protected so that the
security and confidentiality of the information is preserved;
(ii) Not disclose any personal information contained in a Privacy
Act system of records except as authorized by 5 U.S.C. 552a, DOD
5400.11-R, or other applicable laws. Personnel willfully making a
prohibited disclosure are subject to possible criminal penalties and/or
administrative sanctions; and
[[Page 18]]
(iii) Report any unauthorized disclosures or unauthorized
maintenance of new Privacy Act systems of records to the applicable
activity's Privacy Act Official.
(8) Heads of Joint Service agencies or commands for which the Army
is the Executive Agent or the Army otherwise provides fiscal,
logistical, or administrative support, will adhere to the policies and
procedures in this part.
(9) Commander, Army and Air Force Exchange Service, will supervise
and execute the Privacy Program within that command pursuant to this
part.
(10) Overall Government-wide responsibility for implementation of
the Privacy Act is the Office of Management and Budget. The Department
of Defense is responsible for implementation of the Act within the armed
services. The Privacy Act also assigns specific Government-wide
responsibilities to the Office of Personnel Management and the General
Services Administration.
(11) Government-wide Privacy Act systems of records notices are
available at http://www.defenselink.mil/privacy.
(e) Legal Authority. (1) Title 5, United States Code, Section 552a,
as amended, The Privacy Act of 1974.
(2) Title 5, United States Code, Section 552, The Freedom of
Information Act (FOIA).
(3) Office of Personnel Management, Federal Personnel Manual (5 CFR
parts 293, 294, 297, and 7351).
(4) OMB Circular No. A-130, Management of Federal Information
Resources, Revised, August 2003.
(5) DOD Directive 5400.11, Department of Defense Privacy Program,
November 16, 2004.
(6) DOD Regulation 5400.11-R, Department of Defense Privacy Program,
August 1983.
(7) Title 10, United States Code, Section 3013, Secretary of the
Army.
(8) Executive Order No. 9397, Numbering System for Federal Accounts
Relating to Individual Persons, November 30, 1943.
(9) Public Law 100-503, the Computer Matching and Privacy Act of
1974.
(10) Public Law 107-347, Section 208, Electronic Government (E-Gov)
Act of 2002.
(11) DOD Regulation 6025.18-R, DOD Health Information Privacy
Regulation, January 24, 2003.
Sec. 505.2 General provisions.
(a) Individual privacy rights policy. Army policy concerning the
privacy rights of individuals and the Army's responsibilities for
compliance with the Privacy Act are as follows--
(1) Protect the privacy of United States living citizens and aliens
lawfully admitted for permanent residence from unwarranted intrusion.
(2) Deceased individuals do not have Privacy Act rights, nor do
executors or next-of-kin in general. However, immediate family members
may have limited privacy rights in the manner of death details and
funeral arrangements of the deceased individual. Family members often
use the deceased individual's Social Security Number (SSN) for federal
entitlements; appropriate safeguards must be implemented to protect the
deceased individual's SSN from release. Also, the Health Insurance
Portability and Accountability Act extends protection to certain medical
information contained in a deceased individual's medical records.
(3) Personally identifiable health information of individuals, both
living and deceased, shall not be used or disclosed except for
specifically permitted purposes.
(4) Maintain only such information about an individual that is
necessary to accomplish the Army's mission.
(5) Maintain only personal information that is timely, accurate,
complete, and relevant to the collection purpose.
(6) Safeguard personal information to prevent unauthorized use,
access, disclosure, alteration, or destruction.
(7) Maintain records for the minimum time required in accordance
with an approved National Archives and Records Administration record
disposition.
(8) Let individuals know what Privacy Act records the Army maintains
by publishing Privacy Act system of records notices in the Federal
Register. This will enable individuals to review and make copies of
these
[[Page 19]]
records, subject to the exemptions authorized by law and approved by the
Secretary of the Army. Department of the Army Privacy Act systems of
records notices are available at http://www.defenselink.mil/privacy.
(9) Permit individuals to correct and amend records about themselves
which they can prove are factually in error, not timely, not complete,
not accurate, or not relevant.
(10) Allow individuals to request an administrative review of
decisions that deny them access to or the right to amend their records.
(11) Act on all requests promptly, accurately, and fairly.
(12) Keep paper and electronic records that are retrieved by name or
personal identifier only in approved Privacy Act systems of records.
(13) Maintain no records describing how an individual exercises his
or her rights guaranteed by the First Amendment (freedom of religion,
freedom of political beliefs, freedom of speech and press, freedom of
peaceful assemblage, and petition) unless expressly authorized by
statute, pertinent to and within the scope of an authorized law
enforcement activity, or otherwise authorized by law or regulation.
(14) Maintain appropriate administrative technical and physical
safeguards to ensure records are protected from unauthorized alteration
or disclosure.
(b) Safeguard personal information. (1) Privacy Act data will be
afforded reasonable safeguards to prevent inadvertent or unauthorized
disclosure of records during processing, storage, transmission, and
disposal.
(2) Personal information should never be placed on shared drives
that are accessed by groups of individuals unless each person has an
``official need to know'' the information in the performance of official
duties.
(3) Safeguarding methods must strike a balance between the
sensitivity of the data, need for accuracy and reliability for
operations, general security of the area, and cost of the safeguards. In
some situations, a password may be enough protection for an automated
system with a log-on protocol. For additional guidance on safeguarding
personal information in automated records see AR 380-67, The Department
of the Army Personnel Security Program.
(c) Conveying privacy protected data electronically via e-mail and
the World Wide Web. (1) Unencrypted electronic transmission of privacy
protected data makes the Army vulnerable to information interception
which can cause serious harm to the individual and the accomplishment of
the Army's mission.
(2) The Privacy Act requires that appropriate technical safeguards
be established, based on the media (e.g., paper, electronic) involved,
to ensure the security of the records and to prevent compromise or
misuse during transfer.
(3) Privacy Web sites and hosted systems with privacy-protected data
will employ secure sockets layers (SSL) and Public Key Infrastructure
(PKI) encryption certificates or other DoD-approved commercially
available certificates for server authentication and client/server
authentication. Individuals who transmit data containing personally
identifiable information over e-mail will employ PKI or other DoD-
approved certificates.
(4) When sending Privacy Act protected information within the Army
using encrypted or dedicated lines, ensure that--
(i) There is an ``official need to know'' for each addressee
(including ``cc'' addressees); and
(ii) The Privacy Act protected information is marked For Official
Use Only (FOUO) to inform the recipient of limitations on further
dissemination. For example, add FOUO to the beginning of an e-mail
message, along with the following language: ``This contains FOR OFFICIAL
USE ONLY (FOUO) information which is protected under the Privacy Act of
1974 and AR 340-21, The Army Privacy Program. Do not further disseminate
this information without the permission of the sender.''
(iii) Do not indiscriminately apply this statement. Use it only in
situations when actually transmitting protected Privacy Act information.
(iv) For additional information about marking documents ``FOUO''
review AR 25-55, Chapter IV.
(5) Add appropriate ``Privacy and Security Notices'' at major Web
site
[[Page 20]]
entry points. Refer to AR 25-1, para 6-4n for requirements for posting
``Privacy and Security Notices'' on public Web sites. Procedures related
to the establishing, operating, and maintaining of unclassified DA Web
sites can be accessed at http://www.defenselink.mil/webmasters/policy/
DOD--web--policy.
(6) Ensure public Web sites comply with policies regarding
restrictions on persistent and third party cookies. The Army prohibits
both persistent and third part cookies. (see AR 25-1, para 6-4n)
(7) A Privacy Advisory is required on Web sites which host
information systems soliciting personally identifying information, even
when not maintained in a Privacy Act system of records. The Privacy
Advisory informs the individual why the information is solicited and how
it will be used. Post the Privacy Advisory to the Web site page where
the information is being solicited, or to a well marked hyperlink
stating ``Privacy Advisory--Please refer to the Privacy and Security
Notice that describes why this information is collected and how it will
be used.''
(d) Protecting records containing personal identifiers such as names
and Social Security Numbers. (1) Only those records covered by a Privacy
Act system of records notice may be arranged to permit retrieval by a
personal identifier (e.g., an individual's name or Social Security
Number). AR 25-400-2, paragraph 6-2 requires all records covered by a
Privacy Act system of records notice to include the system of record
identification number on the record label to serve as a reminder that
the information contained within must be safeguarded.
(2) Use a coversheet or DA Label 87 (For Official Use Only) for
individual records not contained in properly labeled file folders or
cabinets.
(3) When developing a coversheet, the following is an example of a
statement that you may use: ``The information contained within is FOR
OFFICIAL USE ONLY (FOUO) and protected by the Privacy Act of 1974.''
(e) Notification of Individuals when personal information is lost,
stolen, or compromised. (1) Whenever an Army organization becomes aware
the protected personal information pertaining to a Service member,
civilian employee (appropriated or non-appropriated fund), military
retiree, family member, or another individual affiliated with Army
organization (e.g., volunteer) has been lost, stolen, or compromised,
the organization shall inform the affected individuals as soon as
possible, but not later than ten days after the loss or compromise of
protected personal information is discovered.
(2) At a minimum, the organization shall advise individuals of what
specific data was involved; the circumstances surrounding the loss,
theft, or compromise; and what protective actions the individual can
take.
(3) If Army organizations are unable to comply with policy, they
will immediately notify their superiors, who will submit a memorandum
through the chain of command to the Administrative Assistant of the
Secretary of the Army to explain why the affected individuals or
population's personal information has been lost, stolen, or compromised.
(4) This policy is also applicable to Army contractors who collect,
maintain, use, or disseminate protected personal information on behalf
of the organization.
(f) Federal government contractors' compliance. (1) When a DA
activity contracts for the design, development, or operation of a
Privacy Act system of records in order to accomplish a DA mission, the
agency must apply the requirements of the Privacy Act to the contractor
and its employees working on the contract (See 48 CFR part 24 and other
applicable supplements to the FAR; 32 CFR part 310).
(2) System Managers will review annually, contracts contained within
the system(s) of records under their responsibility, to determine which
ones contain provisions relating to the design, development, or
operation of a Privacy Act system of records.
(3) Contractors are considered employees of the Army for the purpose
of the sanction provisions of the Privacy Act during the performance of
the contract requirements.
(4) Disclosing records to a contractor for use in performing the
requirements
[[Page 21]]
of an authorized DA contract is considered a disclosure within the
agency under exception (b)(1), ``Official Need to Know'', of the Act.
Sec. 505.3 Privacy Act systems of records.
(a) Systems of records. (1) A system of records is a group of
records under the control of a DA activity that are retrieved by an
individual's name or by some identifying number, symbol, or other
identifying particular assigned to an individual.
(2) Privacy Act systems of records must be--
(i) Authorized by Federal statute or an Executive Order;
(ii) Needed to carry out DA's mission; and
(iii) Published in the Federal Register in a system of records
notice, which will provide the public an opportunity to comment before
DA implements or changes the system.
(3) The mere fact that records are retrievable by a name or personal
identifier is not enough. Records must actually be retrieved by a name
or personal identifier. Records in a group of records that may be
retrieved by a name or personal identifier but are not normally
retrieved by this method are not covered by this part. However, they are
covered by AR 25-55, the Department of the Army Freedom of Information
Act Program.
(4) The existence of a statute or Executive Order mandating the
maintenance of a system of records to perform an authorized activity
does not abolish the responsibility to ensure the information in the
system of records is relevant and necessary to perform the authorized
activity.
(b) Privacy Act system of records notices. (1) DA must publish
notices in the Federal Register on new, amended, altered, or deleted
systems of records to inform the public of the Privacy Act systems of
records that it maintains. The Privacy Act requires submission of new or
significantly changed systems of records to OMB and both houses of
Congress before publication in the Federal Register (See Appendix E of
this part).
(2) Systems managers must send a proposed notice at least 120 days
before implementing a new, amended or altered system to the DA Freedom
of Information and Privacy Office. The proposed or altered notice must
include a narrative statement and supporting documentation. A narrative
statement must contain the following items:
(i) System identifier and name;
(ii) Responsible Official, title, and phone number;
(iii) If a new system, the purpose of establishing the system or if
an altered system, nature of changes proposed;
(iv) Authority for maintenance of the system;
(v) Probable or potential effects of the system on the privacy of
individuals;
(vi) Whether the system is being maintained, in whole or in part, by
a contractor;
(vii) Steps taken to minimize risk of unauthorized access;
(viii) Routine use compatibility;
(ix) Office of Management and Budget information collection
requirements; and
(x) Supporting documentation as an attachment. Also as an attachment
should be the proposed new or altered system notice for publication in
the Federal Register.
(3) An amended or altered system of records is one that has one or
more of the following:
(i) A significant increase in the number, type, or category of
individuals about whom records are maintained;
(ii) A change that expands the types of categories of information
maintained;
(iii) A change that alters the purpose for which the information is
used;
(iv) A change to equipment configuration (either hardware or
software) that creates substantially greater access to the records in
the system of records;
(v) An addition of an exemption pursuant to Section (j) or (k) of
the Act; or
(vi) An addition of a routine use pursuant to 5 U.S.C. 552a(b)(3).
(4) For additional guidance contact the DA FOIA/P Office.
(5) On behalf of DA, the Defense Privacy Office maintains a list of
DOD Components' Privacy Act system of records notices at the Defense
Privacy Office's Web site http://www.defenselink.mil/privacy.
[[Page 22]]
(6) DA PAM 25-51 sets forth procedures pertaining to Privacy Act
system of records notices.
(7) For new systems, system managers must establish appropriate
administrative, technical, and physical safeguards to ensure the
security and confidentiality of records. This applies to all new systems
of records whether maintained manually or automated.
(i) One safeguard plan is the development and use of a Privacy
Impact Assessment (PIA) mandated by the E-Gov Act of 2002, Section 208.
The Office of Management and Budget specifically directs that a PIA be
conducted, reviewed, and published for all new or significantly altered
information in identifiable form collected from or about the members of
the public. The PIA describes the appropriate administrative, technical,
and physical safeguards for new automated systems. This will assist in
the protection against any anticipated threats or hazards to the
security or integrity of data, which could result in substantial harm,
embarrassment, inconvenience, or unfairness to any individual on whom
information is maintained. Contact your local Information Officer for
guidance on conducting a PIA.
(ii) The development of appropriate safeguards must be tailored to
the requirements of the system as well as other factors, such as the
system environment, location, and accessibility.
Sec. 505.4 Collecting personal information.
(a) General provisions. (1) Employees will collect personal
information to the greatest extent practicable directly from the subject
of the record. This is especially critical, if the information may
result in adverse determinations about an individual's rights, benefits,
and privileges under federal programs (See 5 U.S.C. 552a(e)(2)).
(2) It is unlawful for any Federal, State, or local government
agency to deny anyone a legal right, benefit, or privilege provided by
law for refusing to give their SSN unless the law requires disclosure,
or a law or regulation adopted before January 1, 1975, required the SSN
or if DA uses the SSN to verify a person's identity in a system of
records established and in use before that date. Executive Order 9397
(issued prior to January 1, 1975) authorizes the Army to solicit and use
the SSN as a numerical identifier for individuals in most federal
records systems. However, the SSN should only be collected as needed to
perform official duties. Executive Order 9397 does not mandate the
solicitation of SSNs from Army personnel as a means of identification.
(3) Upon entrance into military service or civilian employment with
DA, individuals are asked to provide their SSN. The SSN becomes the
service or employment number for the individual and is used to establish
personnel, financial, medical, and other official records. After an
individual has provided his or her SSN for the purpose of establishing a
record, the Privacy Act Statement is not required if the individual is
only requested to furnish or verify the SSN for identification purposes
in connection with the normal use of his or her records. If the SSN is
to be used for a purpose other than identification, the individual must
be informed whether disclosure of the SSN is mandatory or voluntary; by
what statutory authority the SSN is solicited; and what uses will be
made of the SSN. This notification is required even if the SSN is not to
be maintained in a Privacy Act system of records.
(4) When asking an individual for his or her SSN or other personal
information that will be maintained in a system of records, the
individual must be provided with a Privacy Act Statement.
(b) Privacy Act Statement (PAS). (1) A Privacy Act Statement is
required whenever personal information is requested from an individual
and will become part of a Privacy Act system of records. The information
will be retrieved by the individual's name or other personal identifier
(See 5 U.S.C. 552a(e)(3)).
(2) The PAS will ensure that individuals know why the information is
being collected so they can make an informed decision as to providing
the personal information.
(3) In addition, the PAS will include language that is explicit,
easily understood, and not so lengthy as to deter an individual from
reading it.
[[Page 23]]
(4) A sign can be displayed in areas where people routinely furnish
this kind of information, and a copy of the PAS will be made available
upon request by the individual.
(5) Do not ask the person to sign the PAS.
(6) A Privacy Act Statement must include the following four items--
(i) Authority: Cite the specific statute or Executive Order,
including a brief title or subject that authorizes the DA to collect the
personal information requested.
(ii) Principal Purpose (s): Cite the principal purposes for which
the information will be used.
(iii) Routine Uses: A list of where and why the information will be
disclosed OUTSIDE of DOD. Applicable routine uses are published in the
applicable Privacy Act system of records notice(s). If none, the
language to be used is: ``Routine Use(s): None. However the `Blanket
Routine Uses' set forth at the beginning of the Army's compilation of
systems of records notices apply.''
(iv) Disclosure: Voluntary or Mandatory. Include in the Privacy Act
Statement specifically whether furnishing the requested personal data is
mandatory or voluntary. A requirement to furnish personal data is
mandatory ONLY when a federal statute, Executive Order, regulation, or
other law specifically imposes a duty on the individual to provide the
information sought, and when the individual is subject to a penalty if
he or she fails to provide the requested information. If providing the
information is only a condition of or prerequisite to granting a benefit
or privilege and the individual has the option of receiving the benefit
or privilege, providing the information is always voluntary. However,
the loss or denial of the privilege, benefit, or entitlement sought must
be listed as a consequence of not furnishing the requested information.
(7) Some acceptable means of administering the PAS are as follows,
in the order of preference--
(i) Below the title of the media used to collect the personal
information. The PAS should be positioned so that the individual will be
advised of the PAS before he or she provides the requested information;
(ii) Within the body with a notation of its location below the
title;
(iii) On the reverse side with a notation of its location below the
title;
(iv) Attached as a tear-off sheet; or
(v) Issued as a separate supplement.
(8) An example of a PAS is at appendix B of this part.
(9) Include a PAS on a Web site page if it collects information
directly from an individual and is retrieved by his or her name or
personal identifier (See Office of Management and Budget Privacy Act
Guidelines, 40 FR 28949, 28961 (July 9, 1975)).
(10) Army policy prohibits the collection of personally identifying
information on public Web sites without the express permission of the
user. Requests for exceptions must be forwarded to the Army CIO/G-6.
(See AR 25-1, para 6-4n.)
(c) Collecting personal information from third parties. (1) It may
not be practical to collect personal information directly from the
individual in all cases. Some examples of when collection from third
parties may be necessary are when--
(i) Verifying information;
(ii) Opinions or evaluations are needed;
(iii) The subject cannot be contacted; or
(iv) At the request of the subject individual.
(2) When asking third parties to provide information about other
individuals, they will be advised of--
(i) The purpose of the request; and
(ii) Their rights to confidentiality as defined by the Privacy Act
of 1974 (Consult with your servicing Staff Judge Advocate for potential
limitations to the confidentiality that may be offered pursuant to the
Privacy Act).
(d) Confidentiality promises. Promises of confidentiality must be
prominently annotated in the record to protect from disclosure any
information provided in confidence pursuant to 5 U.S.C. 552a(k)(2),
(k)(5), or (k)(7).
Sec. 505.5 Individual access to personal information.
(a) Individual access. (1) The access provisions of this part are
intended for use by individuals whose records are maintained in a
Privacy Act system of
[[Page 24]]
records. If a representative acts on their behalf, a written
authorization must be provided, with the exception of members of
Congress acting on behalf of a constituent.
(2) A Department of the Army ``Blanket Routine Use'' allows the
release of Privacy Act protected information to members of Congress when
they are acting on behalf of the constituent and the information is
filed and retrieved by the constituent's name or personal identifier.
The said ``Blanket Routine Use'' is listed below.
``Congressional Inquiries Disclosure Routine Use: Disclosure from a
system of records maintained by a DOD Component may be made to a
congressional office from the record of an individual in response to an
inquiry from the congressional office made at the request of that
individual.''
(3) Upon a written request, an individual will be granted access to
information pertaining to him or her that is maintained in a Privacy Act
system of records, unless--
(i) The information is subject to an exemption, the system manager
has invoked the exemption, and the exemption is published in the Federal
Register; or
(ii) The information was compiled in reasonable anticipation of a
civil action or proceeding.
(4) Legal guardians or parents acting on behalf of a minor child
have the minor child's rights of access under this part, unless the
records were created or maintained pursuant to circumstances where the
interests of the minor child were adverse to the interests of the legal
guardian or parent.
(5) These provisions should allow for the maximum release of
information consistent with Army and DOD's statutory responsibilities.
(b) Individual requests for access. (1) Individuals will address
requests for access to records in a Privacy Act system of records to the
system manager or the custodian of the record designated in DA systems
of records notices (See DA PAM 25-51 or the Defense Privacy Office's Web
site http://www.defenselink.mil/privacy).
(2) Individuals do not have to state a reason or justify the need to
gain access to records under the Act.
(3) Release of personal information to individuals under this
section is not considered a ``public release'' of information.
(c) Verification of identity for first party requesters. (1) Before
granting access to personal data, an individual will provide reasonable
verification of identity.
(2) When requesting records in writing, the preferred method of
verifying identity is the submission of a notarized signature. An
alternative method of verifying identity for individuals who do not have
access to notary services is the submission of an un-sworn declaration
in accordance with 28 U.S.C. 1746 in the following format:
(i) If executed within the United States, its territories,
possessions, or commonwealths: ``I declare (or certify, verify, or
state) under penalty of perjury that the foregoing is true and correct.
Executed on (date). (Signature)''.
(ii) If executed outside of the United States: ``I declare under
perjury or penalty under the laws of the United States of America that
the foregoing is true and correct. Executed on (date). (Signature).''
(3) When an individual seeks access in person, identification can be
verified by documents normally carried by the individual (such as
identification card, driver's license, or other license, permit or pass
normally used for identification purposes). However, level of proof of
identity is commensurate with the sensitivity of the records sought. For
example, more proof is required to access medical records than is
required to access parking records.
(4) Telephonic requests will not be honored.
(5) An individual cannot be denied access solely for refusal to
provide his or her Social Security Number (SSN) unless the SSN was
required for access by statute or regulation adopted prior to January 1,
1975.
(6) If an individual wishes to have his or her records released
directly to a third party or to be accompanied by a third party when
seeking access to his or her records, reasonable proof of authorization
must be obtained. The individual may be required to furnish a
[[Page 25]]
signed access authorization with a notarized signature or other proof of
authenticity (i.e. telephonic confirmation) before granting the third
party access.
(d) Individual access to medical records. (1) An individual must be
given access to his or her medical and psychological records unless a
judgment is made that access to such records could have an adverse
effect on the mental or physical health of the individual. This
determination normally should be made in consultation with a medical
doctor. Additional guidance is provided in DOD 5400.11-R, Department of
Defense Privacy Program. In this instance, the individual will be asked
to provide the name of a personal health care provider, and the records
will be provided to that health care provider, along with an explanation
of why access without medical supervision could be harmful to the
individual.
(2) Information that may be harmful to the record subject should not
be released to a designated individual unless the designee is qualified
to make psychiatric or medical determinations.
(3) DA activities may offer the services of a military physician,
other than the one who provided the treatment.
(4) Do not require the named health care provider to request the
records for the individual.
(5) The agency's decision to furnish the records to a medical
designee and not directly to the individual is not considered a denial
for reporting purposes under the Act and cannot be appealed.
(6) However, no matter what the special procedures are, DA has a
statutory obligation to ensure that access is provided the individual.
(7) Regardless of age, all DA military personnel and all married
persons are considered adults. The parents of these individuals do not
have access to their medical records without written consent of the
individual.
(8) DOD 6025.18-R, DOD Health Information Privacy Regulation, issued
pursuant to the Health Insurance Portability and Accountability Act
(HIPAA) of 1996, has placed additional procedural requirements on the
uses and disclosure of individually identifiable health information
beyond those found in the Privacy Act of 1974 and this part. In order to
be in compliance with HIPAA, the additional guidelines and procedures
will be reviewed before release of an individual's identifiable health
information.
(e) Personal notes. (1) The Privacy Act does not apply to personal
notes of individuals used as memory aids. These documents are not
Privacy Act records and are not subject to this part.
(2) The five conditions for documents to be considered personal
notes are as follows--
(i) Maintained and discarded solely at the discretion of the author;
(ii) Created only for the author's personal convenience and the
notes are restricted to that of memory aids;
(iii) Not the result of official direction or encouragement, whether
oral or written;
(iv) Not shown to others for any reason; and
(v) Not filed in agency files.
(3) Any disclosure from personal notes, either intentional or
through carelessness, removes the information from the category of
memory aids and the personal notes then become subject to provisions of
the Act.
(f) Denial or limitation of individual's right to access. (1) Even
if the information is filed and retrieved by an individual's name or
personal identifier, his or her right to access may be denied if--
(i) The records were compiled in reasonable anticipation of a civil
action or proceeding including any action where DA expects judicial or
administrative adjudicatory proceedings. The term ``civil action or
proceeding'' includes quasi-judicial, pre-trial judicial, and
administrative proceedings, as well as formal litigation;
(ii) The information is about a third party and does not pertain to
the requester. A third party's SSN and home address will be withheld.
However, information about the relationship between the individual and
the third party would normally be disclosed as it pertains to the
individual;
(iii) The records are in a system of records that has been properly
exempted by the Secretary of the Army from the access provisions of this
part and the information is exempt from release
[[Page 26]]
under a provision of the Freedom of Information Act (See appendix C of
this part for a list of applicable Privacy Act exemptions, exceptions,
and ``Blanket'' routine uses);
(iv) The records contain properly classified information that has
been exempted from the access provision of this part;
(v) The records are not described well enough to enable them to be
located with a reasonable amount of effort on the part of an employee
familiar with the file. Requesters should reasonably describe the
records they are requesting. They do not have to designate a Privacy Act
system of records notice identification number, but they should at least
identify a type of record or functional area. For requests that ask for
``all records about me,'' DA personnel should ask the requester for more
information to narrow the scope of his or her request; and
(vi) Access is sought by an individual who fails or refuses to
comply with Privacy Act established procedural requirements, included
refusing to pay fees.
(2) Requesters will not use government equipment, supplies,
stationery, postage, telephones, or official mail channels for making
Privacy Act requests. System managers will process such requests but
inform requesters that using government resources to make Privacy Act
requests is not authorized.
(3) When a request for information contained in a Privacy Act system
of records is denied in whole or in part, the Denial Authority or
designee shall inform the requester in writing and explain why the
request for access has been refused.
(4) A request for access, notification, or amendment of a record
shall be acknowledged in writing within 10 working days of receipt by
the proper system manager or record custodian.
(g) Relationship between the Privacy Act and the Freedom of
Information Act. (1) Not all requesters are knowledgeable of the
appropriate statutory authority to cite when requesting information. In
some instances, they may cite neither the PA nor the Freedom of
Information Act in their request. In some instances they may cite one
Act but not the other. The Freedom of Information Act and the PA works
together to ensure that requesters receive the greatest amount of
information possible.
(2) Do not deny the individual access to his or her records simply
because he or she failed to cite the appropriate statute or regulation.
(3) If the records are required to be released under the Freedom of
Information Act, the PA will never block disclosure to requester. If the
PA allows the DA activity to deny access to an individual, the Freedom
of Information Act must still be applied, and the information released
if required by the Freedom of Information Act.
(4) Unlike the Freedom of Information Act, the Privacy Act applies
only to U.S. citizens and aliens lawfully admitted for permanent
residence.
(5) Requesters who seek records about themselves contained in a
Privacy Act system of records (1st party requesters) and who cite or
imply only the Privacy Act, will have their request processed under the
provisions of both the PA and the Freedom of Information Act. If the
information requested is not contained in a Privacy Act system of
records or is not about the requester, the individual's request will be
processed under the provisions of the Freedom of Information Act only,
and the Freedom of Information Act processing requirements/time lines
will apply.
(6) Third party information. (i) Third party information contained
in a Privacy Act system of records that does not pertain to the
requester, such as SSN, home addresses, and other purely personal
information that is not about the requester, will be processed under the
provisions of Freedom of Information Act only. Third party information
that is not about the requester is not subject to the Privacy Act's
first party access provision.
(ii) Information about the relationship between the first party
requester and a third party is normally disclosed as pertaining to the
first party requester. Consult your servicing Staff Judge Advocate if
there is a question about the release of third party information to a
first party requester.
[[Page 27]]
(7) If an individual requests information about them contained in a
Privacy Act system of records, the individual may be denied the
information only if the information is exempt under both the PA and the
Freedom of Information Act. Both PA and Freedom of Information Act
exemptions will be cited in the denial letter and appeals will be
processed in accordance with both Acts.
(8) Each time a first party requester cites or implies the PA,
perform this analysis:
(i) Is the request from a United States living citizen or an alien
lawfully admitted for permanent residence?
(ii) Is the individual requesting an agency record?
(iii) Are the records within a PA system of records that are filed
and retrieved by an individual's name or other personal identifier? (If
the answer is ``yes'' to all of these questions, then the records should
be processed under the ``Privacy Act'') and
(iv) Does the information requested pertain exclusively to the
requester?
(A) If yes, no further consideration of Freedom of Information Act
exemptions required. Release all information unless a PA exemption
authorizes withholding.
(B) If no, process the information that is not about the requester
under the Freedom of Information Act and withhold only if a proper
Freedom of Information Act exemption applies.
(h) Functional requests. If an individual asks for his or her
records and does not cite or reasonably imply either the Privacy Act or
the Freedom of Information Act, and another prescribing directive or
regulation authorizes the release, the records should be released under
that other directive or regulation and not the PA or the FOIA. Examples
of functional requests are military members asking to see their Official
Military Personnel Records or civilian employees asking to see their
Official Personnel Folder.
(i) Procedures for denying or limiting an individual's right to
access or amendment and the role of the Denial Authority. (1) The only
officials authorized to deny a request for records or a request to amend
records in a PA system of records pertaining to the requesting
individual, are the appropriate Denial Authorities, their designees, or
the Secretary of the Army who will be acting through the General
Counsel.
(2) Denial Authorities are authorized to deny requests, either in
whole or in part, for notification, access and amendment of Privacy Act
records contained in their respective areas of responsibility.
(i) The Denial Authority may delegate all or part of their authority
to a division chief under his supervision within the Agency in the grade
of 0-5/GS-14 or higher. All delegations must be in writing.
(ii) The Denial Authority will send the names, office names, and
telephones numbers of their delegates to the DA Freedom of Information
and Privacy Office.
(iii) If a Denial Authority delegate denies access or amendment, the
delegate must clearly state that he or she is acting on behalf of the
Denial Authority, who must be identified by name and position in the
written response to the requester. Denial Authority designation will not
delay processing privacy requests/actions.
(iv) The official Denial Authorities are for records under their
authority (See appendix B of this part). The individuals designated as
Denial Authorities under this part are the same individuals designated
as Initial Denial Authorities under AR 25-55, the Department of the Army
Freedom of Information Act Program. However, delegation of Denial
Authority pursuant to this part does not automatically encompass
delegation of Initial Denial Authority under AR 25-55. Initial Denial
Authority must be expressly delegated pursuant to AR 25-55 for an
individual to take action on behalf of an Initial Denial Authority under
AR 25-55.
(3) The custodian of the record will acknowledge requests for access
made under the provisions of the Privacy Act within 10 working days of
receipt.
(4) Requests for information recommended for denial will be
forwarded to the appropriate Denial Authority, along with a copy of the
records and justification for withholding the record. At the same time,
notify the requester of the referral to the Denial
[[Page 28]]
Authority for action. All documents or portions thereof determined to be
releasable to the requester will be released to the requester before
forwarding the case to the Denial Authority.
(5) Within 30 working days, the Denial Authority will provide the
following notification to the requester in writing if the decision is to
deny the requester access to the information.
(6) Included in the notification will be:
(i) Denying Official's name, position title, and business address;
(ii) Date of the denial;
(iii) The specific reason for the denial, citing the appropriate
subsections of the Privacy Act, the Freedom of Information Act, AR 25-
55, The Department of the Army Freedom of Information Act Program and
this part; and
(iv) The individual's right to administratively appeal the denial
within 60 calendar days of the mailing date of the notice, through the
Denial Authority, to the Office of the General Counsel, Secretary of the
Army, 104 Army Pentagon, Washington, DC 20310-0104.
(7) The appeal must be in writing and the requester should provide a
copy of the denial letter and a statement of their reasons for seeking
review.
(8) For denials made by the DA when the record is maintained in a
Government-wide system of records, an individual's request for further
review must be addressed to each of the appropriate government Privacy
Act offices listed in the Privacy Act system of records notices. For a
current listing of Government-wide Privacy Act system of records notices
see the Defense Privacy Office's Web site http://www.defenselink.mil/
privacy or DA PAM 25-51.
(j) No records determinations. (1) Since a no record response may be
considered an ``adverse'' determination, the Denial Authority must make
the final determination that no records exist. The originating agency
shall notify the requester that an initial determination has been made
that there are no responsive records, however the final determination
will be made by the Denial Authority. A no records certificate must
accompany a no records determination that is forwarded to the Denial
Authority.
(2) The Denial Authority must provide the requester with appeal
rights.
(k) Referral of requests. (1) A request received by a DA activity
having no records responsive to a request shall be referred to another
DOD Component or DA activity, if the other Component or activity
confirms that they have the requested records, or verifies that they are
the proper custodian for that type of record. The requester will be
notified of the referral. In cases where the DA activity receiving the
request has reason to believe that the existence or nonexistence of the
record may in itself be classified, that activity will consult the
Component or activity having cognizance over the records in question
before referring the request. If the Component or activity that is
consulted determines that the existence or nonexistence of the records
is in itself classified, the requester shall be so notified by the DA
activity originally receiving the request that it can neither confirm
nor deny the existence of the record, and no referral shall take place.
(2) A DA activity shall refer a Privacy Act request for a classified
record that it holds to another DOD Component, DA activity, or agency
outside the Department of Defense, if the record originated in the other
DOD Component, DA activity, or outside agency, or if the classification
is derivative. The referring DA activity will provide the records and a
release recommendation with the referral action.
(3) Any DA activity receiving a request that has been misaddressed
will refer the request to the proper address and advise the requester.
(4) Within DA, referrals will be made directly to offices having
custody of the requested records (unless the Denial Authority is the
custodian of the requested records). If the office receiving the Privacy
Act request does not know where the requested records are located, the
office will contact the DA FOIA/P Office, to determine the appropriate
office for referral.
(5) The requester will be informed of the referral whenever records
or a portion of records are, after prior consultation, referred to
another activity for a release determination and direct
[[Page 29]]
response. Additionally, the DA activity referral letter will accomplish
the following--
(i) Fully describe the Privacy Act system of records from which the
document was retrieved; and
(ii) Indicate whether the referring activity claims any exemptions
in the Privacy Act system of records notice.
(6) Within the DA, an activity will refer a Privacy Act request for
records that it holds but was originated by another activity, to the
originating activity for direct response. An activity will not, in any
case, release or deny such records without prior consultation with the
originating activity. The requester will be notified of such referral.
(7) A DA activity may refer a Privacy Act request for records that
originated in an agency outside of DOD, or that is based on information
obtained from an agency outside the DOD, to that agency for direct
response to the requester, only if that agency is subject to the Privacy
Act. Otherwise, the DA activity must respond to the request.
(8) DA activities will not honor any Privacy Act requests for
investigative, intelligence, or any other type of records that are on
loan to the Department of Defense for a specific purpose, if the records
are restricted from further release in writing. Such requests will be
referred to the agency that provided the records.
(9) A DA activity will notify requesters seeking National Security
Council (NSC) or White House documents that they should write directly
to the NSC or White House for such documents. DA documents in which the
NSC or White House have a concurrent reviewing interest will be
forwarded to the Department of Defense, Office of Freedom of Information
and Security Review, which will coordinate with the NSC or White House,
and return the documents to the originating DA activity after NSC or
White House review. NSC or White House documents discovered in DA
activity files which are responsive to a Privacy Act request will be
forwarded to DOD for coordination and return with a release
determination.
(10) To the extent referrals are consistent with the policies
expressed above; referrals between offices of the same DA activity are
authorized.
(l) Reproduction fees. (1) Use fees only to recoup direct
reproduction costs associated with granting access.
(2) DA activities may use discretion in their decision to charge for
the first copy of records provided to an individual to whom the records
pertain. Thereafter, fees will be computed pursuant to the fee schedule
set forth in AR 25-55, including the fee waiver provisions.
(3) Checks or money orders for fees should be made payable to the
Treasurer of the United States and will be deposited in the
miscellaneous receipts of the treasury account maintained at the
activity's finance office.
(4) Reproduction costs shall only include the direct costs of
reproduction and shall not include costs of--
(i) Time or effort devoted to searching for or reviewing the records
by personnel;
(ii) Fees not associated with the actual cost of reproduction;
(iii) Producing a copy when it must be provided to the individual
without cost under another regulation, directive, or law;
(iv) Normal postage;
(v) Transportation of records or personnel; or
(vi) Producing a copy when the individual has requested only to
review the records and has not requested a copy, and the only means of
allowing review is to make a copy (e.g., the records are stored in a
computer and a copy must be printed to provide individual access, or the
activity does not wish to surrender temporarily the original records for
the individual to review).
(m) Privacy Act case files. (1) Whenever an individual submits a
Privacy Act request, a case file will be established. This Privacy Act
case file is a specific type of file that is governed by a specific
Privacy Act system of records notice. In no instance will the
individual's Privacy Act request and corresponding Army actions be
included in the individual's military personnel file or other military
filing systems, such as adverse action files or general legal files, and
in no instance will the Privacy Act case file be used
[[Page 30]]
to make an adverse determination about the individual.
(2) The case file will be comprised of the request for access/
amendment, grants, refusals, coordination action(s), and all related
papers.
Sec. 505.6 Amendment of records.
(a) Amended records. (1) Individuals are encouraged to periodically
review the information maintained about them in Privacy Act systems of
records and to familiarize themselves with the amendment procedures
established by this part.
(2) An individual may request to amend records that are retrieved by
his or her name or personal identifier from a system of records unless
the system has been exempted from the amendment provisions of the Act.
The standard for amendment is that the records are inaccurate as a
matter of fact rather than judgment, irrelevant, untimely, or
incomplete. The burden of proof is on the requester.
(3) The system manager or custodian must review Privacy Act records
for accuracy, relevance, timeliness, and completeness.
(4) Amendment procedures are not intended to permit individuals to
challenge events in records that have actually occurred. Amendment
procedures only allow individuals to amend those items that are
factually inaccurate and not matters of official judgment (e.g.,
performance ratings, promotion potential, and job performance
appraisals). In addition, an individual is not permitted to amend
records for events that have been the subject of judicial or quasi-
judicial actions/proceedings.
(b) Proper amendment requests. (1) Amendment requests, except for
routine administrative changes, will be in writing.
(2) When acting on behalf of a first party requester, an individual
must provide written documentation of the first party requester's
consent to allow the individual to view his or her records.
(3) Amendment is appropriate if it can be shown that--
(i) Circumstances leading up to the recorded event were found to be
inaccurately reflected in the document;
(ii) The record is not identical to the individual's copy; or
(iii) The document was not constructed in accordance with the
applicable recordkeeping requirements prescribed in AR 25-400-2, The
Army Records Information Management System (ARIMS).
(4) Under the amendment provisions, an individual may not challenge
the merits of an adverse determination.
(5) U.S. Army Criminal Investigation Command (USACIDC) reports of
investigations (PA system of records notice A0195-2a USACIDC, Source
Register; A0195-2b USACIDC, Criminal Investigation and Crime Laboratory
Files) have been exempted from the amendment provisions of the Privacy
Act. Requests to amend these reports will be considered under AR 195-2.
Actions taken by the Commander of U.S. Army Criminal Investigation
Command will constitute final action on behalf of the Secretary of the
Army under that regulation.
(6) Records placed in the National Archives are exempt from the
Privacy Act provision allowing individuals to request amendment of
records. Most provisions of the Privacy Act apply only to those systems
of records that are under the legal control of the originating agency;
for example, an agency's current operating files or records stored at a
Federal Records Center.
(7) Inspector General investigative files and action request/
complaint files (records in system notice A0021-1 SAIG, Inspector
General Records) have been exempted from the amendment provisions of the
Privacy Act. Requests to amend these reports will be considered under AR
20-1 by the Inspector General. Action by the Inspector General will
constitute final action on behalf of the Secretary of the Army under
that regulation.
(8) Other records that are exempt from the amendment provisions of
the Privacy Act are listed in the applicable PA system of records
notices.
(c) Amendment procedures. (1) Requests to amend records should be
addressed to the custodian or system manager of the records. The request
must reasonably describe the records to be amended and the changes
sought
[[Page 31]]
(e.g., deletion, addition, or amendment). The burden of proof is on the
requester. The system manager or records custodian will provide the
individual with a written acknowledgment of the request within 10
working days and will make a final response within 30 working days of
the date the request was received. The acknowledgment must clearly
identify the request and inform the individual that final action will be
forthcoming within 30 working days.
(2) Records for which amendment is sought must be reviewed by the
proper system manager or custodian for accuracy, relevance, timeliness,
and completeness.
(3) If the amendment is appropriate, the system manager or custodian
will physically amend the records accordingly. The requester will be
notified of such action.
(4) If the amendment is not warranted, the request and all relevant
documents, including reasons for not amending, will be forwarded to the
proper Denial Authority within 10 working days to ensure that the 30 day
time limit for the final response is met. In addition, the requester
will be notified of the referral.
(5) Based on the documentation provided, the Denial Authority will
either amend the records and notify the requester and the custodian of
the records of all actions taken, or deny the request. If the records
are amended, those who have received the records in the past will
receive notice of the amendment.
(6) If the Denial Authority determines that the amendment is not
warranted, he or she will provide the requester and the custodian of the
records reason(s) for not amending. In addition, the Denial Authority
will send the requester an explanation regarding his or her right to
seek further review by the DA Privacy Act Review Board, through the
Denial Authority, and the right to file a concise ``Statement of
Disagreement'' to append to the individual's records.
(i) On receipt of a request for further review by the Privacy Act
Review Board, the Denial Authority will append any additional records or
background information that substantiates the refusal or renders the
case complete;
(ii) Within 5 working days of receipt, forward the appeal to the DA
Privacy Act Review Board; and
(iii) Append the servicing Judge Advocate's legal review, including
a determination that the Privacy Act Review Board packet is complete.
(d) DA Privacy Act Review Board. (1) The DA Privacy Act Review Board
acts on behalf of the Secretary of the Army in deciding appeals of the
appropriate Denial Authority's refusal to amend records.
(2) The Board will process an appeal within 30 working days of its
receipt. The General Counsel may authorize an additional 30 days when
unusual circumstances and good cause so warrant.
(3) The Board membership consists of the following principal
members, comprised of three voting and two non-voting members, or their
delegates.
(4) Three voting members include--
(i) Administrative Assistant to the Secretary of the Army (AASA) who
acts as the Chairman of the Board;
(ii) The Judge Advocate General; and
(iii) The Chief, DA Freedom of Information and Privacy Division,
U.S. Army Records Management and Declassification Agency.
(5) In addition, two non-voting members include--
(i) The Chief Attorney, OAASA (or designee) who serves as the legal
advisor and will be present at all Board sessions to provide legal
advice as required; and
(ii) Recording Secretary provided by the Office of the
Administrative Assistant to the Secretary of the Army.
(e) DA Privacy Act Review Board meetings. (1) The meeting of the
Board requires the presence of all five members or their designated
representatives. Other non-voting members with subject matter expertise
may participate in a meeting of the Board, at the discretion of the
Chairman.
(2) Majority vote of the voting members is required to make a final
determination on a request before the Board.
(3) Board members, who have denial authority, may not vote on a
matter upon which they took Denial Authority action. However, an
individual who
[[Page 32]]
took Denial Authority action, or his or her representative, may serve as
a non-voting member when the Board considers matters in the Denial
Authority's area of functional specialization.
(4) The Board may seek additional information, including the
requester's official personnel file, if relevant and necessary to decide
the appeal.
(5) If the Board determines that an amendment is warranted (the
record is inaccurate as a matter of fact rather than judgment,
irrelevant, untimely, or incomplete) it will amend the record and notify
the requester, the Denial Authority, the custodian of the record, and
any prior recipients of the record, of the amendment.
(6) If the Board determines that amendment is unwarranted, they
will--
(i) Obtain the General Counsel's concurrence in writing;
(ii) Respond to the requester with the reasons for denial; and
(iii) Inform the requester of the right to file a ``Statement of
Disagreement'' with the Board's action and to seek judicial review of
the Army's refusal to amend. A ``Statement of Disagreement'' must be
received by the system manager within 120 days and it will be made an
integral part of the pertinent record. Anyone who may have access to,
use of, or need to disclose information from the record will be aware
that the record was disputed. The disclosing authority may include a
brief summary of the Board's reasons for not amending the disputed
record.
(7) It is inappropriate for the Privacy Act Review Board to consider
any record which is exempt from the amendment provision of the Privacy
Act.
Sec. 505.7 Disclosure of personal information to other agencies and third parties.
(a) Disclosing records to third parties. (1) DA is prohibited from
disclosing a record from a Privacy Act system of records to any person
or agency without the prior written consent of the subject of the
record, except when--
(i) Pursuant to the twelve Privacy Act exceptions. The twelve
exceptions to the ``no disclosure without consent'' rule are those
exceptions which permit the release of personal information without the
individual's/subject's consent (See appendix C of this part).
(ii) The FOIA requires the release of the record. One of the twelve
exceptions to Privacy Act is the FOIA Exception. If the FOIA requires
the release of information, the information must be released. The
Privacy Act can not prevent release to a third party if the FOIA
requires release. However, information must not be discretionarily
released under the FOIA if the information is subject to the Privacy
Act's ``no disclosure without consent'' rule.
(iii) A routine use applies. Another major exception to the ``no
disclosure without consent'' rule is the routine use exception. The
Privacy Act allows federal agencies to publish routine use exceptions to
the Privacy Act. Some routine uses are Army specific, DOD specific, and
Governmentwide. Routine uses exceptions are listed in the Privacy Act
system of records notice(s) applicable to the Privacy Act records in
question. The Army and other agencies' system of records notices may be
accessed at the Defense Privacy Office's Web site http://
www.defenselink.mil/privacy.
(2) The approved twelve exceptions to the Privacy Act ``no
disclosure without consent'' rule are listed at appendix C of this part.
(b) Disclosing records to other DOD components and to federal
agencies outside the DOD. (1) The twelve Privacy Act exceptions referred
to in appendix C of this part are available to other DOD components and
to federal agencies outside the DOD as exceptions to the Privacy Act's
``no disclosure without consent'' rule, with the exception of the FOIA
exception. The FOIA is not an appropriate mechanism for providing
information to other DOD components and to federal agencies outside the
DOD.
(2) A widely used exception to requests for information from local
and state government agencies and federal agencies not within the DOD is
the routine use exception to the Privacy Act.
(3) The most widely used exception to requests for information from
other DOD components is the ``intra-agency
[[Page 33]]
need to know'' exception to the Privacy Act. Officers and employees of
the DOD who have an official need for the records in the performance of
their official duties are entitled to Privacy Act protected information.
Rank, position, or title alone does not authorize access to personal
information about others. An official need for the information must
exist before disclosure.
(4) For the purposes of disclosure and disclosure accounting, the
Department of Defense (DOD) is considered a single agency.
(c) Disclosures under AR 25-55, the Freedom of Information Act
(FOIA) Program. (1) Despite Privacy Act protections, all records must be
disclosed if the Freedom of Information Act (FOIA) requires their
release. The FOIA requires release unless the information is exempted by
one or more of the nine FOIA exemptions.
(2) Required release under the FOIA. The following are examples of
personal information that is generally not exempt from the FOIA;
therefore, it must be released to the public, unless covered by
paragraphs (d)(2) and (d)(3) of this section. The following list is not
all inclusive:
(i) Military Personnel--
(A) Rank, date of rank, active duty entry date, basic pay entry
date, and gross pay (including base pay, special pay, and all allowances
except Basic Allowance for Housing);
(B) Present and past duty assignments, future stateside assignments;
(C) Office/unit name, duties address and telephone number (DOD
policy may require withholding of this information in certain
circumstances);
(D) Source of commission, promotion sequence number, military awards
and decorations, and professional military education;
(E) Duty status, at any given time;
(F) Separation or retirement dates;
(G) Military occupational specialty (MOS);
(H) Active duty official attendance at technical, scientific or
professional meetings; and
(I) Biographies and photos of key personnel (DOD policy may require
withholding of this information in certain circumstances).
(ii) Federal civilian employees--
(A) Present and past position titles, occupational series, and
grade;
(B) Present and past annual salary rates (including performance
awards or bonuses, incentive awards, merit pay amount, Meritorious or
Distinguished Executive Ranks, and allowances and differentials);
(C) Present and past duty stations;
(D) Office or duty telephone number (DOD policy may require
withholding of this information in certain circumstances); and
(E) Position descriptions, identification of job elements, and
performance standards (but not actual performance appraisals), the
release of which would not interfere with law enforcement programs or
severely inhibit agency effectiveness. Performance elements and
standards (or work expectations) may also be withheld when they are so
intertwined with performance appraisals, the disclosure would reveal an
individual's performance appraisal.
(d) Personal information that requires protection. (1) The following
are examples of information that is generally NOT releasable without the
written consent of the subject. This list is not all inclusive--
(i) Marital status;
(ii) Dependents' names, sex and SSN numbers;
(iii) Civilian educational degrees and major areas of study (unless
the request for the information relates to the professional
qualifications for Federal employment);
(iv) School and year of graduation;
(v) Home of record;
(vi) Home address and phone;
(vii) Age and date of birth;
(viii) Overseas assignments (present or future);
(ix) Overseas office or unit mailing address and duty phone of
routinely deployable or sensitive units;
(x) Race/ethnic origin;
(xi) Educational level (unless the request for the information
relates to professional qualifications for federal employment);
(xii) Social Security Number (SSN); and
(xiii) The information that would otherwise be protected from
mandatory disclosure under a FOIA exemption.
[[Page 34]]
(2) The Office of the Secretary of Defense issued a policy
memorandum in 2001 that provided greater protection of DOD personnel in
the aftermath of 9/11 by requiring information that personally
identifies DOD personnel be more carefully scrutinized and limited. In
general, the Department of Defense has specifically advised that DOD
components are not to release lists of names, duty addresses, present or
past position titles, grades, salaries, and performance standards of DOD
military members and civilian employees. At the office director level or
above, the release of information will be limited to the name, official
title, organization, and telephone number, provided a determination is
made that disclosure does not raise security or privacy concerns. No
other information, including room numbers, will normally be released
about these officials. Consistent with current policy, information on
officials below the office director level may continue to be released if
their positions or duties require frequent interaction with the public.
(3) Disclosure of records pertaining to personnel of overseas,
sensitive, or routinely deployed units shall be prohibited to the extent
authorized by 10 U.S.C. 130b.
(e) Release of home addresses and home telephone numbers. (1) The
release of home addresses and home telephone numbers normally is
prohibited. This release is normally considered a clearly ``unwarranted
invasion'' of personal privacy and is exempt from mandatory release
under the FOIA. However, home addresses and home telephone numbers may
still be released if--
(i) The individual has indicated previously in writing that he or
she has no objection to the release;
(ii) The source of the information to be released is a public
document such as commercial telephone directory or other public listing;
(iii) The release is required by Federal statute (for example,
pursuant to federally funded state programs to locate parents who have
defaulted on child support payments) (See 42 U.S.C. 653); or
(iv) The releasing of information is pursuant to the routine use
exception or the ``intra-agency need to know'' exception to the Privacy
Act.
(2) A request for a home address or telephone number may be referred
to the last known address of the individual for a direct reply by the
individual to the requester. In such cases, the requester shall be
notified of the referral.
(3) Do not sell or rent lists of individual names and addresses
unless such action is specifically authorized by the appropriate
authority.
(f) Emergency recall rosters. (1) The release of emergency recall
rosters normally is prohibited. Their release is normally considered a
clearly ``unwarranted invasion'' of personal privacy and is exempt from
mandatory release under the FOIA. Emergency recall rosters should only
be shared with those who have an ``official need to know'' the
information, and they should be marked ``For Official Use Only'' (See AR
25-55).
(2) Do not include a person's SSN on an emergency recall roster or
their spouse's name.
(3) Commanders and supervisors should give consideration to those
individuals with unlisted phone numbers. Commanders and supervisors
should consider limiting access to an unlisted number within the unit.
(g) Social rosters. (1) Before including personal information such
as a spouse's name, home addresses, home phone numbers, and similar
information on social rosters or social directories, which will be
shared with individuals, always ask for the individual's written
consent. Without their written consent, do not include this information.
(2) Collection of this information will require a Privacy Act
Statement which clearly tells the individual what information is being
solicited, the purpose, to whom the disclosure of the information is
made, and whether collection of the information is voluntary or
mandatory.
(h) Disclosure of personal information on group orders. (1) Personal
information will not be posted on group orders so that everyone on the
orders can view it. Such a disclosure of personal information violates
the Privacy Act and this part.
[[Page 35]]
(2) The following are some examples of personal information that
should not be contained in group orders. The following list is not all-
inclusive--
(i) Complete SSN;
(ii) Home addresses and phone numbers; or
(iii) Date of birth.
(i) Disclosures for established routine uses. (1) Records may be
disclosed outside the DOD without the consent of the individual to whom
they pertain for an established routine use.
(2) A routine use shall--
(i) Be compatible with and related to the purpose for which the
record was compiled;
(ii) Identify the persons or organizations to which the records may
be released; and
(iii) Have been published previously in the Federal Register.
(3) Establish a routine use for each user of the information outside
the Department of Defense who needs official access to the records.
(4) Routine uses may be established, discontinued, or amended
without the consent of the individuals involved. However, new or changed
routine uses must be published in the Federal Register at least 30 days
before actually disclosing any records.
(5) In addition to the routine uses listed in the applicable systems
of records notices, ``Blanket Routine Uses'' for all DOD maintained
systems of records have been established. These ``Blanket Routine Uses''
are applicable to every record system maintained within the DOD unless
specifically stated otherwise within a particular record system. The
``Blanket Routine Uses'' are listed at appendix C of this part.
(j) Disclosure accounting. (1) System managers must keep an accurate
record of all disclosures made from DA Privacy Act system of records,
including those made with the consent of the individual, except when
records are--
(i) Disclosed to DOD officials who have a ``need to know'' the
information to perform official government duties; or
(ii) Required to be disclosed under the Freedom of Information Act.
(2) The purpose for the accounting of disclosure is to--
(i) Enable an individual to ascertain those persons or agencies that
have received information about them;
(ii) Enable the DA to notify past recipients of subsequent
amendments or ``Statements of Dispute'' concerning the record; and
(iii) Provide a record of DA compliance with the Privacy Act of
1974, if necessary.
(3) Since the characteristics of records maintained within DA vary
widely, no uniform method for keeping the disclosure accounting is
prescribed.
(4) Essential elements to include in each disclosure accounting
report are--
(i) The name, position title, and address of the person making the
disclosure;
(ii) Description of the record disclosed;
(iii) The date, method, and purpose of the disclosure; and
(iv) The name, position title, and address of the person or agency
to which the disclosure was made.
(5) The record subject has the right of access to the disclosure
accounting except when--
(i) The disclosure was made for law enforcement purposes under 5
U.S.C. 552a(b)(7); or
(ii) The disclosure was made from a system of records for which an
exemption from 5 U.S.C. 552a(c)(3) has been claimed.
(6) There are no approved filing procedures for the disclosure of
accounting records; however, system managers must be able to retrieve
upon request. With this said, keep disclosure accountings for 5 years
after the disclosure, or for the life of the record, whichever is
longer.
(7) When an individual requests such an accounting, the system
manager or designee will respond within 20 working days.
Sec. 505.8 Training requirements.
(a) Training. (1) The Privacy Act requires all heads of Army Staff
agencies, field operating agencies, direct reporting units, Major
Commands, subordinate commands, and installations to establish rules of
conduct for all personnel involved in the design, development,
operation, and maintenance of any Privacy Act system of records and
[[Page 36]]
to train the appropriate personnel with respect to the privacy rules
including the penalties for non-compliance (See 5 U.S.C. 552a(e)(9)).
(2) To meet the training requirements, three general levels of
training must be established. They are--
(i) Orientation. Training that provides basic understanding of this
part as it applies to the individual's job performance. This training
will be provided to personnel, as appropriate, and should be a
prerequisite to all other levels of training;
(ii) Specialized training. Training that provides information as to
the application of specific provisions of this part to specialized areas
of job performance. Personnel of particular concern include, but are not
limited to, personnel specialists, finance officers, DOD personnel who
may be expected to deal with the news media or the public, special
investigators, paperwork managers, individuals working with medical and
security records, records managers, computer systems development
personnel, computer systems operations personnel, statisticians dealing
with personal data and program evaluations, contractors and anyone
responsible for implementing or carrying out functions under this part.
Specialized training should be provided on a periodic basis; and
(iii) Managerial training. Training designed to identify for
responsible managers (such as senior system managers, Denial
Authorities, and functional managers described in this section) issues
that they should consider when making management decisions affected by
the Privacy Act Program.
(b) Training tools. Helpful resources include--
(1) Privacy Act training slides for Major Commands and Privacy Act
Officers: Contact the DA FOIA/P Office, or slides can be accessed at the
Web site https://www.rmda.belvoir.army.mil/rmdaxml/rmda/FPHomePage.asp.
(2) The ``DOJ Freedom of Information Act Guide and Privacy Act
Overview'': The U.S. Department of Justice, Executive Office for United
States Attorneys, Office of Legal Education, 600 E. Street, NW., Room
7600, Washington, DC 20530, or training programs can be accessed at the
Web site www.usdoj.gov/usao/eousa/ole.html.
Sec. 505.9 Reporting requirements.
The Department of the Army will submit reports, consistent with the
requirements of DOD 5400.11-R, OMB Circular A-130, and as otherwise
directed by the Defense Privacy Office. Contact the DA FOIA/P Office for
further guidance regarding reporting requirements.
Sec. 505.10 Use and establishment of exemptions.
(a) Three types of exemptions. (1) There are three types of
exemptions applicable to an individual's right to access permitted by
the Privacy Act. They are the Special, General, and Specific exemptions.
(2) Special exemption (d)(5)--Relieves systems of records from the
access provision of the Privacy Act only. This exemption applies to
information compiled in reasonable anticipation of a civil action or
proceeding.
(3) General exemption (j)(2)--Relieves systems of records from most
requirements of the Act. Only Army activities actually engaged in the
enforcement of criminal laws as their primary function may claim this
exemption.
(4) Specific exemptions (k)(1)-(k)(7)-Relieves systems of records
from only a few provisions of the Act.
(5) To find out if an exemption is available for a particular
record, refer to the applicable system of records notices. System of
records notices will state which exemptions apply to a particular type
of record. System of records notices that are applicable to the Army are
contained in DA Pam 25-51 (available at the Army Publishing Directorate
Web site http://www.usapa.army.mil/), the Defense Privacy Office's Web
site http://www.defenselink.mil/privacy/), or in this section). Some of
the system of records notices apply only to the Army and the DOD and
some notices are applicable government-wide.
(6) Descriptions of current exemptions are listed in detail at
appendix C of this part.
(b) Exemption procedures. (1) For the General and Specific
exemptions to be applicable to the Army, the Secretary
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of the Army must promulgate exemption rules to implement them. This
requirement is not applicable to the one Special exemption which is
self-executing. Once an exemption is made applicable to the Army through
the exemption rules, it will be listed in the applicable system of
records notices to give notice of which specific types of records the
exemption applies to. When a system manager seeks to have an exemption
applied to a certain Privacy Act system of records that is not currently
provided for by an existing system of records notice, the following
information will be furnished to the DA FOIA/P Office--
(i) Applicable system of records notice;
(ii) Exemption sought; and
(iii) Justification.
(2) After appropriate staffing and approval by the Secretary of the
Army and the Defense Privacy Office, it will be published in the Federal
Register as a proposed rule, followed by a final rule 60 days later. No
exemption may be invoked until these steps have been completed.
Sec. 505.11 Federal Register publishing requirements.
(a) The Federal Register. There are three types of documents
relating to the Privacy Act Program that must be published in the
Federal Register. They are the DA Privacy Program policy and procedures
(AR 340-21), the DA exemption rules, and Privacy Act system of records
notices.
(b) Rulemaking procedures. (1) DA Privacy Program procedures and
exemption rules are subject to the formal rulemaking process.
(2) Privacy Act system of records notices are not subject to formal
rulemaking and are published in the Federal Register as Notices, not
Rules.
(3) The Privacy Program procedures and exemption rules are
incorporated into the Code of Federal Regulations (CFR). Privacy Act
system of records notices are not published in the CFR.
Sec. 505.12 Privacy Act enforcement actions.
(a) Judicial sanctions. The Act has both civil remedies and criminal
penalties for violations of its provisions.
(1) Civil remedies. The DA is subject to civil remedies for
violations of the Privacy Act. In addition to specific remedial actions,
5 U.S.C. 552a(g) may provide for the payment of damages, court costs,
and attorney's fees.
(2) Criminal penalties. A DA official or employee may be found
guilty of a misdemeanor and fined not more than $5,000 for willfully--
(i) Disclosing individually identifiable personal information to one
not entitled to the information;
(ii) Requesting or obtaining information from another's record under
false pretenses; or
(iii) Maintaining a system of records without first meeting the
public notice requirements of the Act.
(b) Litigation Status Sheet. (1) When a complaint citing the Privacy
Act is filed in a U.S. District Court against the Department of the
Army, an Army Component, a DA Official, or any Army employee, the
responsible system manager will promptly notify the Army Litigation
Division, 901 North Stuart Street, Arlington, VA 22203-1837.
(2) The Litigation Status Sheet at appendix E of this part provides
a standard format for this notification. At a minimum, the initial
notification will have items (a) through (f) provided.
(3) A revised Litigation Status Sheet must be provided at each stage
of the litigation.
(4) When a court renders a formal opinion or judgment, copies must
be provided to the Defense Privacy Office by the Army Litigation
Division.
(c) Administrative remedies--Privacy Act complaints. (1) The
installation level Privacy Act Officer is responsible for processing
Privacy Act complaints or allegations of Privacy Act violations.
Guidance should be sought from the local Staff Judge Advocate and
coordination made with the system manager to assist in the resolution of
Privacy Act complaints. The local Privacy Act officer is responsible
for--
(i) Reviewing allegations of Privacy Act violations and the evidence
provided by the complainants;
(ii) Making an initial assessment as to the validity of the
complaint, and taking appropriate corrective action;
[[Page 38]]
(iii) Coordinating with the local Staff Judge Advocate to determine
whether a more formal investigation such as a commander's inquiry or an
AR 15-6 investigation is appropriate; and
(iv) Ensuring the decision at the local level from either the
Privacy Act Officer or other individual who directed a more formal
investigation is provided to the complainant in writing.
(2) The decision at the local level may be appealed to the next
higher command level Privacy Act Officer.
(3) A legal review from the next higher command level Privacy Act
Officer's servicing Staff Judge Advocate is required prior to action on
the appeal.
Sec. 505.13 Computer Matching Agreement Program.
(a) General provisions. (1) Pursuant to the Privacy Act and this
part, DA records may be subject to computer matching, i.e., the computer
comparison of automated systems of records.
(2) There are two specific kinds of Matching Programs covered by the
Privacy Act--
(i) Matches using records from Federal personnel or payroll systems
of records; and
(ii) Matches involving Federal benefit programs to accomplish one or
more of the following purposes--
(A) To determine eligibility for a Federal benefit;
(B) To comply with benefit program requirements; and
(C) To effect recovery of improper payments or delinquent debts from
current or former beneficiaries.
(3) The comparison of records must be computerized. Manual
comparisons are not covered.
(4) Any activity that expects to participate in a Computer Matching
Program must contact the DA FOIA/P Office immediately.
(5) In all cases, Computer Matching Agreements are processed by the
Defense Privacy Office and approved by the Defense Data Integrity Board.
Agreements will be conducted in accordance with the requirements of 5
U.S.C. 552a, and OMB Circular A-130.
(b) Other matching. Several types of computer matching are exempt
from the restrictions of the Act such as matches used for statistics,
pilot programs, law enforcement, tax administration, routine
administration, background checks, and foreign counterintelligence. The
DA FOIA/P Office should be consulted if there is a question as to
whether the Act governs a specific type of computer matching.
Sec. 505.14 Recordkeeping requirements under the Privacy Act.
(a) AR 25-400-2, The Army Records Information Management System
(ARIMS). To maintain privacy records are required by the Army Records
Information Management System (ARIMS) to provide adequate and proper
documentation of the conduct of Army business so that the rights and
interests of individuals and the Federal Government are protected.
(b) A full description of the records prescribed by this part and
their disposition/retention requirements are found on the ARIMS Web site
at https://www.arims.army.mil.
Sec. Appendix A to Part 505--References
(a) The Privacy Act of 1974 (5 U.S.C. 552a, as amended).
(b) OMB Circular No. A-130, Management of Federal Information
Resources.
(c) AR 25-55, The Department of the Army Freedom of Information
Program.
(d) DA PAM 25-51, The Army Privacy Program--System of Records
Notices and Exemption Rules.
(e) DOD Directive 5400.11, Department of Defense Privacy Program.
(f) DOD 5400.11-R, Department of Defense Privacy Program.
(g) AR 25-2, Information Assurance
(h) AR 25-400-2, The Army Records Information Management System
(ARIMS).
(i) AR 27-10, Military Justice.
(j) AR 40-66, Medical Record Administration and Health Care
Documentation.
(k) AR 60-20 and AFR 147-14, Army and Air Force Exchange Service
Operating Policies.
(l) AR 190-45, Law Enforcement Reporting.
(m) AR 195-2, Criminal Investigation Activities.
(n) AR 380-5, Department of Army Information Security Program.
(o) DOD Directive 5400-7, DOD Freedom of Information Act (FOIA)
Program.
(q) DOD 5400.7-R, DOD Freedom of Information Program.
(r) DOD 6025.18-R, DOD Health Information Privacy Regulation
(HIPAA).
(s) U.S. Department of Justice, Freedom of Information Act Guide and
Privacy Act Overview.
[[Page 39]]
(t) Office of Secretary of Defense memorandum, dated July 15, 2005,
subject: Notifying Individuals when Personal Information is Lost,
Stolen, or Compromised located at http://www.army.mil/ciog6/referencs/
policy/dos/OSDprivateinfo.pdf.
Sec. Appendix B to Part 505--Denial Authorities for Records Under Their
Authority (Formerly Access and Amendment Refusal Authorities)
(a) The Administrative Assistant to the Secretary of the Army is
authorized to act for the Secretary of the Army on requests for all
records maintained by the Office of the Secretary of the Army and its
serviced activities, as well as requests requiring the personal
attention of the Secretary of the Army. This also includes civilian
Equal Employment Opportunity (EEO) actions. (See DCS, G-1 for Military
Equal Opportunity (EO) actions.) The Administrative Assistant to the
Secretary of the Army has delegated this authority to the Chief
Attorney, OAASA (See DCS, G1 for Military Equal Opportunity (EO)
actions).
(b) The Assistant Secretary of the Army (Financial Management and
Comptroller) is authorized to act on requests for finance and accounting
records. Requests for CONUS finance and accounting records should be
referred to the Defense Finance and Accounting Service (DFAS). The Chief
Attorney, OAASA, acts on requests for non-finance and accounting records
of the Assistant Secretary of the Army (Financial Management and
Comptroller).
(c) The Assistant Secretary of the Army (Acquisition, Logistics, &
Technology) is authorized to act on requests for procurement records
other than those under the purview of the Chief of Engineers and the
Commander, U.S. Army Materiel Command. The Chief Attorney, OAASA, acts
on requests for non-procurement records of the Assistant Secretary of
the Army (Acquisition, Logistics and Technology).
(d) The Deputy Assistant Secretary of the Army (Civilian Personnel
Policy)/Director of Civilian Personnel, Office of the Assistant
Secretary of the Army (Manpower and Reserve Affairs) is authorized to
act on requests for civilian personnel records, personnel administration
and other civilian personnel matters, except for EEO (civilian) matters
which will be acted on by the Administrative Assistant to the Secretary
of the Army. The Deputy Assistant Secretary of the Army (Civilian
Personnel Policy)/Director of Civilian Personnel has delegated this
authority to the Chief, Policy and Program Development Division (Note:
Requests from former civilian employees to amend a record in an Office
of Personnel Management system of records, such as the Official
Personnel Folder, should be sent to the Office of Personnel Management,
Assistant Director for Workforce Information, Compliance, and
Investigations Group: 1900 E. Street, NW., Washington, DC 20415-0001).
(e) The Chief Information Officer G-6 is authorized to act on
requests for records pertaining to Army Information Technology, command,
control communications and computer systems and the Information
Resources Management Program (automation, telecommunications, visual
information, records management, publications and printing).
(f) The Inspector General is authorized to act on requests for all
Inspector General Records.
(g) The Auditor General is authorized to act on requests for records
relating to audits done by the U.S. Army Audit Agency under AR 10-2.
This includes requests for related records developed by the Audit
Agency.
(h) The Director of the Army Staff is authorized to act on requests
for all records of the Chief of Staff and its Field Operating Agencies.
The Director of the Army Staff has delegated this authority to the Chief
Attorney and Legal Services Directorate, U.S. Army Resources & Programs
Agency (See The Judge Advocate General for the General Officer
Management Office actions). The Chief Attorney and Legal Services
Director, U.S. Army Resources & Programs Agency acts on requests for
records of the Chief of Staff and its Field Operating Agencies (See The
Judge Advocate General for the General Officer Management Office
actions).
(i) The Deputy Chief of Staff, G-3/5/7 is authorized to act on
requests for records relating to International Affairs policy, planning,
integration and assessments, strategy formulation, force development,
individual and unit training policy, strategic and tactical command and
control systems, nuclear and chemical matters, use of DA forces.
(j) The Deputy Chief of Staff, G-8 is authorized to act on requests
for records relating to programming, material integration and externally
directed reviews.
(k) The Deputy Chief of Staff, G-1 is authorized to act on the
following records: Personnel board records, Equal Opportunity (military)
and sexual harassment, health promotions, physical fitness and well-
being, command and leadership policy records, HIV and suicide policy,
substance abuse programs except for individual treatment records which
are the responsibility of the Surgeon General, retiree benefits,
services, and programs (excluding individual personnel records of
retired military personnel, which are the responsibility of the U.S.
Army Human Resources Command-St. Louis), DA dealings with Veterans
Affairs, U.S. Soldier's and Airmen's Home; all retention, promotion, and
separation records; all military
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education records including records related to the removal or suspension
from a military school or class; Junior Reserve Officer Training Corps
(JROTC) and Senior Reserve Officer Training Corps (SROTC) records; SROTC
instructor records; U.S. Military Academy Cadet Records; recruiting and
MOS policy issues, personnel travel and transportation entitlements,
military strength and statistics, The Army Librarian, demographics, and
Manprint.
(l) The Deputy Chief of Staff, G-4 is authorized to act on requests
for records relating to DA logistical requirements and determinations,
policy concerning materiel maintenance and use, equipment standards, and
logistical readiness.
(m) The Chief of Engineers is authorized to act on requests for
records involving civil works, military construction, engineer
procurement, and ecology; and the records of the U.S. Army Engineer
divisions, districts, laboratories, and field operating agencies.
(n) The Surgeon General/Commander, U.S. Army Medical Command, is
authorized to act on requests for medical research and development
records, and the medical records of active duty military personnel,
dependents, and persons given physical examination or treatment at DA
medical facilities, to include alcohol and drug treatment/test records.
(o) The Chief of Chaplains is authorized to act on requests for
records involving ecclesiastical relationships, rites performed by DA
chaplains, and nonprivileged communications relating to clergy and
active duty chaplains' military personnel files.
(p) The Judge Advocate General is authorized to act on requests for
records relating to claims, courts-martial, legal services,
administrative
(q) The Chief, National Guard Bureau, is authorized to act on
requests for all personnel and medical records of retired, separated,
discharged, deceased, and active Army National Guard military personnel,
including technician personnel, unless such records clearly fall within
another Denial Authority's responsibility. This authority includes, but
is not limited to, National Guard organization and training files;
plans, operations, and readiness files, policy files, historical files,
files relating to National Guard military support, drug interdiction,
and civil disturbances; construction, civil works, and ecology records
dealing with armories, facilities within the States, ranges, etc.; Equal
Opportunity investigative records; aviation program records and
financial records dealing with personnel, operation and maintenance, and
equipment budgets.
(r) The Chief, Army Reserve and Commander, U.S. Army Reserve Command
are authorized to act on requests for all personnel and medical records
of retired, separated, discharged, deceased, and reserve component
military personnel, and all U.S. Army Reserve (USAR) records, unless
such records clearly fall within another Denial Authority's
responsibility. Records under the responsibility of the Chief, Army
Reserve and the Commander, U.S. Army Reserve Command include records
relating to USAR plans, policies, and operations; changes in the
organizational status of USAR units; mobilization and demobilization
policies, active duty tours, and the Individual Mobilization
Augmentation program; and all other Office of the Chief, Army Reserve
(OCAR) records and Headquarters, U.S. Army Reserve Command records.
(s) The Commander, United States Army Materiel Command (AMC) is
authorized to act on requests for the records of AMC headquarters and to
subordinate commands, units, and activities that relate to procurement,
logistics, research and development, and supply and maintenance
operations.
(t) The Provost Marshal General is authorized to act on all requests
for provost marshal activities and law enforcement functions for the
Army, all matters relating to police intelligence, physical security,
criminal investigations, corrections and internment (to include
confinement and correctional programs for U.S. prisoners, criminal
investigations, provost marshal activities, and military police support.
The Provost Marshal General is responsible for the Office of Security,
Force Protection, and Law Enforcement Division and is the functional
proponent for AR 190-series (Military Police) and 195-series (Criminal
Investigation), AR 630-10 Absent Without Leave, Desertion, and
Administration of Personnel Involved in Civilian Court Proceedings, and
AR 633-30, Military Sentences to Confinement.
(u) The Commander, U.S. Army Criminal Investigation Command, is
authorized to act on requests for criminal investigative records of
USACIDC headquarters, and its subordinate activities, and military
police reports. This includes criminal investigation records,
investigation-in-progress records, and all military police records and
reports that result in criminal investigation reports. This authority
has been delegated to the Director, U.S. Army Crime Records Center.
(v) The Commander, U.S. Army Human Resources Command, is authorized
to act on requests for military personnel files relating to active duty
personnel including, but not limited to military personnel matters,
military education records including records related to the removal or
suspension from a military school or class; personnel locator, physical
disability determinations, and other military personnel administration
records; records relating to military casualty and memorialization
activities; heraldic activities, voting, records relating to
[[Page 41]]
identification cards, naturalization and citizenship, commercial
solicitation, Military Postal Service Agency and Army postal and
unofficial mail service. The Commander, U.S. Army Human Resources
Command, is also authorized to act on requests concerning all personnel
and medical records of retired, separated, discharged, deceased, and
reserve component military personnel, unless such records clearly fall
within another Denial Authority's authority.
(w) The Commander, U.S. Army Resources Command-St. Louis has been
delegated authority to act on behalf of the U.S. Army Human Resources
Commander for requests concerning all personnel and medical records of
retired, separated, discharged, deceased, and reserve component military
personnel, unless such records clearly fall within another Denial
Authority's authority. The authority does not include records relating
to USAR plans, policies, and operations; changes in the organizational
status of USAR units, mobilization and demobilization policies; active
duty tours, and the individual mobilization augmentation program.
(x) The Assistant Chief of Staff for Installation Management is
authorized to act on requests for records relating to planning,
programming, execution and operation of Army installations. This
includes base realignment and closure activities, environmental
activities other than litigation, facilities and housing activities, and
installation management support activities.
(y) The Commander, U.S. Army Intelligence and Security Command, is
authorized to act on requests for intelligence and security records,
foreign scientific and technological records, intelligence training,
intelligence threat assessments, and foreign liaison information,
mapping and geodesy information, ground surveillance records,
intelligence threat assessment, and missile intelligence data relating
to tactical land warfare systems.
(z) The Commander, U.S. Army Combat Readiness Center (formerly U.S.
Army Safety Center), is authorized to act on requests for Army safety
records.
(aa) The Commander, U.S. Army Test and Evaluation Command (ATEC), is
authorized to act on requests for the records of ATEC headquarters, its
subordinate commands, units, and activities that relate to test and
evaluation operations.
(bb) The General Counsel, Army and Air Force Exchange Service, is
authorized to act on requests for Army and Air Force Exchange Service
records, under AR 60-20/AFR 147-14.
(cc) The Commandant, United States Disciplinary Barracks (USDB) is
authorized to act on records pertaining to USDB functional area
responsibilities relating to the administration and confinement of
individual military prisoners at the USDB. This includes, but is not
limited to, all records pertaining to the treatment of military
prisoners; investigation of prisoner misconduct; management, operation,
and administration of the USDB confinement facility; and related
programs which fall directly within the scope of the Commandant's
functional area of command and control.
(dd) The Commander, U.S. Army Community and Family Support Center
(USACFSC) is authorized to act on requests for records pertaining to
morale, welfare, recreation, and entertainment programs; community and
family action programs; child development centers; non-appropriated
funds issues, and private organizations on Army installations.
(ee) The Commander, Military Surface Deployment and Distribution
Command (formerly Military Traffic Management Command) is authorized to
act on requests for records pertaining to military and commercial
transportation and traffic management records.
(ff) The Director, Installation Management Agency (IMA) is
authorized to act on requests for all IMA records.
(gg) Special Denial Authority's authority for time-event related
records may be designated on a case-by-case basis. These will be
published in the Federal Register. You may contact the Department of the
Army, Freedom of Information and Privacy Office to obtain current
information on special delegations.
Sec. Appendix C to Part 505--Privacy Act Statement Format
(a) Authority: The specific federal statute or Executive Order that
authorizes collection of the requested information.
(b) Principal Purpose(s): The principal purpose or purposes for
which the information is to be used.
(c) Routine Uses(s): Disclosure of the information outside DOD.
(d) Disclosure: Whether providing the information is voluntary or
mandatory and the effects on the individual if he or she chooses not to
provide the requested information.
(1) Example of a Privacy Act Statement
(i) Authority: Emergency Supplement Act of 2000; Public Law 106-246;
5 U.S.C. 3013, Secretary of the Army; 10 U.S.C. 5013, Secretary of the
Navy; 10 U.S.C. 8013, Secretary of the Air Force; Department of Defense
Directive 8500.aa, Information Assurance (IA); and E.O. 9397 (SSN).
(ii) Principal Purpose(s): To control access to DOD information,
information based systems and facilities by authenticating the identity
of a person using a measurable physical characteristic(s). This computer
system uses software programs to create biometrics templates and summary
statistics, which are used for purposes such as assessing
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system performance or identifying problem areas.
(iii) Routine Use(s): None. The DoD ``Blanket Routine Uses'' set
forth at the beginning of the Army's Compilations of System of Records
Notices applies to this system.
(iv) Disclosure: Voluntary; however, failure to provide the
requested information may result in denial of access to DOD information
based systems and/or DOD facilities.
(2) [Reserved]
Sec. Appendix D to Part 505--Exemptions; Exceptions; and DoD Blanket
Routine Uses
(a) Special Exemption. 5 U.S.C. 552a(d)(5)--Denies individual access
to any information compiled in reasonable anticipation of civil action
or proceeding.
(b) General and Specific Exemptions. The Secretary of the Army may
exempt Army systems of records from certain requirements of the Privacy
Act. The two kinds of exemptions that require Secretary of the Army
enactment are General and Specific exemptions. The Army system of
records notices for a particular type of record will state whether the
Secretary of the Army has authorized a particular General and Specific
exemption to a certain type of record. The Army system of records
notices are published in DA Pam 25-51 and on the Defense Privacy
Office's Web site http://www.defenselink.mil/privacy/.
(c) Twelve Exceptions to the ``No Disclosure without Consent'' rule
of the Privacy Act.
(1) 5 U.S.C. 552a(b)(1)--To DOD officers and employees who have a
need for the record in the performance of their official duties. This is
the ``official need to know concept.
(2) 5 U.S.C. 552a(b)(2)--FOIA requires release of the information.
(3) 5 U.S.C. 552a(b)(3)--The Routine Use Exception. The Routine Use
must be published in the Federal Register and the purpose of the
disclosure must be compatible with the purpose for the published Routine
Use. The applicable Routine Uses for a particular record will be listed
in the applicable Army Systems Notice.
(4) 5 U.S.C. 552a(b)(4)--To the Bureau of the Census to plan or
carry out a census or survey, or related activity pursuant to Title 13
of the U.S. Code.
(5) 5 U.S.C. 552a(b)(5)--To a recipient who has provided DA or DOD
with advance adequate written assurance that the record will be used
solely as a statistical research or reporting record, and the record is
to be transferred in a form that is not individually identifiable.
(6) 5 U.S.C. 552a(b)(6)--To the National Archives and Records
Administration as a record that has sufficient historical or other value
to warrant its continued preservation by the U.S. Government, or for
evaluation by the Archivist of the United States or the designee of the
Archivist to determine whether the record has such value.
Note: Records transferred to the Federal Records Centers for storage
remain under the control of the DA and no accounting for disclosure is
required under the Privacy Act.
(7) 5 U.S.C. 552a(b)(7)--To another agency or instrumentality of any
governmental jurisdiction within or under the control of the United
States for a civil or criminal law enforcement activity, if the activity
is authorized by law, and if the head of the agency or instrumentality
has made a written request to the Army or the DOD specifying the
particular portion desired and the law enforcement activity for which
the record is sought.
(8) 5 U.S.C. 552a(b)(8)--To a person pursuant to a showing of
compelling circumstances affecting the health or safety of an individual
if upon such disclosure, notification is transmitted to the last known
address of such individual.
(9) 5 U.S.C. 552a(b)(9)--To either House of Congress, or, to the
extent the matter is within its jurisdiction, any committee or
subcommittee thereof, or any joint committee of Congress or subcommittee
of any such joint committee. Requests from a Congressional member acting
on behalf of a constituent are not included in this exception, but may
be covered by a routine use exception to the Privacy Act (See applicable
Army system of records notice).
(10) 5 U.S.C. 552a(b)(10)--To the Comptroller General or authorized
representatives, in the course of the performance of the duties of the
Government Accountability Office.
(11) 5 U.S.C. 552a(b)(11)--Pursuant to the order of a court of
competent jurisdiction. The order must be signed by a judge.
(12) 5 U.S.C. 552a(b)(12)--To a consumer reporting agency in
accordance with section 3711(e) of Title 31 of the U.S. Code. The name,
address, SSN, and other information identifying the individual; amount,
status, and history of the claim; and the agency or program under which
the case arose may be disclosed. However, before doing so, agencies must
complete a series of steps designed to validate the debt and to offer
the individual an opportunity to repay it.
(d) DOD Blanket Routine Uses. In addition to specific routine uses
which are listed in the applicable Army system of record notices,
certain ``Blanket Routine Uses'' apply to all DOD maintained systems of
records. These are listed on the Defense Privacy Office's Web site
http://www.defenselink.mil/privacy/. These ``Blanket Routine Uses'' are
not specifically listed in each system of records notice as the specific
routine uses are. The current DOD ``Blanket Routine Uses'' are as
follows--
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(1) Law Enforcement Routine Use. If a system of records maintained
by a DOD component to carry out its functions indicates a violation or
potential violation of law, whether civil, criminal or regulatory in
nature, and whether arising by general statute or by regulation, rule,
or order issued pursuant thereto, the relevant records in the system of
records may be referred, as a routine use, to the agency concerned,
whether federal, state, local, or foreign, charged with the
responsibility of investigating or prosecuting such violation or charged
with enforcing or implementing the statute, rule, regulation or order
issued pursuant thereto.
(2) Disclosure When Requesting Information Routine Use. A record
from a system of records maintained by a DOD component may be disclosed
as a routine use to a Federal, State, or local agency maintaining civil,
criminal, or other relevant enforcement information or other pertinent
information, such as current licenses, if necessary to obtain
information relevant to a DOD Component decision concerning the hiring
or retention of an employee, the issuance of a security clearance, the
letting of a contract, or the issuance of a license, grant or other
benefit.
(3) Disclosure of Requested Information Routine Use. A record from a
system of records maintained by a DOD component may be disclosed to a
Federal agency, in response to its request, in connection with the
hiring or retention of an employee, the issuance of a security
clearance, the reporting of an investigation of an employee, the letting
of a contract, or the issuance of a license, grant, or other benefit by
the requesting agency, to the extent that the information is relevant
and necessary to the requesting agency's decision on the matter.
(4) Congressional Inquiries Disclosure Routine Use. Disclosure from
a system of records maintained by a DOD component may be made to a
congressional office from the record of an individual in response to an
inquiry from the congressional office made at the request of that
individual.
(5) Private Relief Legislation Routine Use. Relevant information
contained in all systems of records of DOD published on or before August
22, 1975, may be disclosed to Office of Management and Budget in
connection with the review of private relief legislation, as set forth
in OMB Circular A-19, at any stage of the legislative coordination and
clearance process as set forth in that Circular.
(6) Disclosures Required by International Agreements Routine Use. A
record from a system of records maintained by a DOD Component may be
disclosed to foreign law enforcement, security, investigatory, or
administrative authorities in order to comply with requirements imposed
by, or to claim rights conferred in, international agreements and
arrangements including those regulating the stationing and status in
foreign countries of DOD military and civilian personnel.
(7) Disclosure to State and Local Taxing Authorities Routine Use.
Any information normally contained in Internal Revenue Service Form W-2,
which is maintained in a record from a system of records maintained by a
DOD component, may be disclosed to state and local taxing authorities
with which the Secretary of the Treasury has entered into agreements
pursuant to 5 U.S.C. sections 5516, 5517, and 5520 and only to those
state and local taxing authorities for which an employee or military
member is or was subject to tax regardless of whether tax is or was
withheld. This routine use is in accordance with Treasury Fiscal
Requirements Manual Bulletin 76-07.
(8) Disclosure to the Office of Personnel Management Routine Use. A
record from a system of records subject to the Privacy Act and
maintained by a DA activity may be disclosed to the Office of Personnel
Management concerning information on pay and leave, benefits, retirement
deductions, and any other information necessary for Office of Personnel
Management to carry out its legally authorized Government-wide personnel
management functions and studies.
(9) Disclosure to the Department of Justice for Litigation Routine
Use. A record from a system of records maintained by a DOD component may
be disclosed as a routine use to any component of the Department of
Justice for the purpose of representing the Department of Defense, or
any officer, employee, or member of the Department in pending or
potential litigation to which the record is pertinent.
(10) Disclosure to Military Banking Facilities Overseas Routine Use.
Information as to current military addresses and assignments may be
provided to military banking facilities who provide banking services
overseas and who are reimbursed by the Government for certain checking
and loan losses. For personnel separated, discharged, or retired from
the Armed forces, information as to last known residential or home of
record address may be provided to the military banking facility upon
certification by a banking facility officer that the facility has a
returned or dishonored check negotiated by the individual or the
individual has defaulted on a loan and that if restitution is not made
by the individual, the U.S. Government will be liable for the losses the
facility may incur.
(11) Disclosure of Information to the General Services
Administration Routine Use. A record from a system of records maintained
by a DOD component may be disclosed as a routine use to the General
Services Administration for the purpose of records management
inspections conducted under authority of 44 U.S.C. Sections 2904 and
2906.
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(12) Disclosure of Information to National Archives and Records
Administration Routine Use. A record from a system of records maintained
by a DOD component may be disclosed as a routine use to NATIONAL
ARCHIVES AND RECORDS ADMINISTRATION for the purpose of records
management inspections conducted under authority of 44 U.S.C. sections
2904 and 2906.
(13) Disclosure to the Merit Systems Protection Board Routine Use. A
record from a system of records maintained by a DOD component may be
disclosed as a routine use to the Merit Systems Protection Board,
including the Office of the Special Counsel for the purpose of
litigation, including administrative procedures, appeals, special
studies of the civil service and other merit systems, review of Office
of Personnel Management or component rules and regulations,
investigation of alleged or possible prohibited personnel practices,
including administrative proceedings involving any individual subject of
a DOD investigation, and such other functions, promulgated in 5 U.S.C.
sections 1205 and 1206, or as may be authorized by law.
(14) Counterintelligence Purposes Routine Use. A record from a
system of records maintained by a DOD component may be disclosed as a
routine use outside the DOD or the U.S. Government for the purpose of
counterintelligence activities authorized by U.S. Law or Executive Order
or for the purpose of enforcing laws, which protect the national
security of the United States.
Sec. Appendix E to Part 505--Litigation Status Sheet
(a) Case Number: The number used by a DA activity for reference
purposes; Requester;
(b) Document Title or Description: Indicates the nature of the case,
such as ``Denial of access'', ``Refusal to amend,'' ``Incorrect
records'', or other violations of the Act (specify);
(c) Litigation: Date complaint filed, Court, and Case File Number;
(d) Defendants: DOD component and individual;
(e) Remarks: Brief explanation of what the case is about;
(f) Court action: Court's finding and disciplinary action (if
applicable); and
(g) Appeal (If applicable): Date complaint filed, court, case File
Number, court's finding, disciplinary action (if applicable).
Sec. Appendix F to Part 505--Example of a System of Records Notice
(a) Additional information and guidance on Privacy Act system of
records notices are found in DA PAM 25-51. The following elements
comprise a Privacy Act system of records notice for publication in the
Federal Register:
(b) System Identifier: A0025-55 AHRC--DA FOIA/P Office assigns the
notice number, for example, A0025-55, where ``A'' indicates ``Army,''
the next number represents the publication series number related to the
subject matter, and the final letter group shows the system manager's
command. In this case, it would be U.S. Army Human Resources Command.
(c) System Name: Use a short, specific, plain language title that
identifies the system's general purpose (limited to 55 characters).
(d) System Location: Specify the address of the primary system and
any decentralized elements, including automated data systems with a
central computer facility and input or output terminals at separate
locations. Use street address, 2-letter state abbreviations and 9-digit
ZIP Codes. Spell out office names. Do not use office symbols.
(e) Categories of Individuals: Describe the individuals covered by
the system. Use non-technical, specific categories of individuals about
whom the Department of Army keeps records. Do not use categories like
''all Army personnel'' unless that is truly accurate.
(f) Categories of Records in the System: Describe in clear, plain
language, all categories of records in the system. List only documents
actually kept in the system. Do not identify source documents that are
used to collect data and then destroyed. Do not list form numbers.
(g) Authority for Maintenance of the System: Cite the specific law
or Executive Order that authorizes the maintenance of the system. Cite
the DOD directive/instruction or Department of the Army Regulation(s)
that authorizes the Privacy Act system of records. Always include titles
with the citations. Note: Executive Order 9397 authorizes using the SSN
as a personal identifier. Include this authority whenever the SSN is
used to retrieve records.
(h) Purpose(s): List the specific purposes for maintaining the
system of records by the activity.
(i) Routine Use(s): The blanket routine uses that appear at the
beginning of each Component compilation apply to all systems notice
unless the individual system notice specifically states that one or more
of them do not apply to the system. Blanket Routine Uses are located at
the beginning of the Component listing of systems notices and are not
contained in individual system of records notices. However, specific
routine uses are listed in each applicable system of records notice.
List the specific activity to which the record may be released, for
example ``To the Veterans Administration'' or ``To state and local
health agencies''. For each routine user identified, include a statement
as to the purpose or purposes for which the record is to release to that
activity. Do not use general
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statements, such as ``To other federal agencies as required'' or ``To
any other appropriate federal agency''.
(j) Polices and Practices for Storing, Retrieving, Accessing,
Retaining, and Disposing of Records in the System:
(k) Storage: State the medium in which DA maintains the records; for
example, in file folders, card files, microfiche, computer, or a
combination of those methods. Storage does not refer to the storage
container.
(l) Retrievability: State how the Army retrieves the records; for
example, by name, fingerprints or voiceprints.
(m) Safeguards: Identify the system safeguards; for example, storage
in safes, vaults, locked cabinets or rooms, use of guards, visitor
controls, personnel screening, computer systems software, and so on.
Describe safeguards fully without compromising system security.
(n) Retention and Disposal. State how long AR 25-400-2 requires the
activity to maintain the records. Indicate when or if the records may be
transferred to a Federal Records Center and how long the record stays
there. Specify when the Records Center sends the record to the National
Archives or destroys it. Indicate how the records may be destroyed.
(o) System Manager(s) and Address: List the position title and duty
address of the system manager. For decentralized systems, show the
locations, the position, or duty title of each category of officials
responsible for any segment of the system.
(p) Notification Procedures: List the title and duty address of the
official authorized to tell requesters if their records are in the
system. Specify the information a requester must submit; for example,
full name, military status, SSN, date of birth, or proof of identity,
and so on.
(q) Record Access Procedures: Explain how individuals may arrange to
access their records. Include the titles or categories of officials who
may assist; for example, the system manager.
(r) Contesting Records Procedures: The standard language to use is
``The Army's rules for accessing records, and for contesting contents
and appealing initial agency determinations are contained in Army
Regulation 25-71; 32 CFR part 505; or may be obtained from the system
manager.''
(s) Record Source Categories: Show categories of individuals or
other information sources for the system. Do not list confidential
sources protected by 5 U.S.C. 552a(k)(2), (k)(5), or (k)(7).
(t) Exemptions Claimed for the System: Specifically list any
approved exemption including the subsection in the Act. When a system
has no approved exemption, write ``none'' under this heading.
Sec. Appendix G to Part 505--Management Control Evaluation Checklist
(a) Function. The function covered by this checklist is DA Privacy
Act Program.
(b) Purpose. The purpose of this checklist is to assist Denial
Authorities and Activity Program Coordinators in evaluating the key
management controls listed below. This checklist is not intended to
cover all controls.
(c) Instructions. Answer should be based on the actual testing of
key management controls (e.g., document analysis, direct observation,
sampling, simulation, other). Answers that indicate deficiencies should
be explained and corrective action indicated in supporting
documentation. These management controls must be evaluated at least once
every five years. Certificate of this evaluation has been conducted and
should be accomplished on DA Form 11-2-R (Management Control Evaluation
Certification Statement).
Test Questions
a. Is a Privacy Act Program established and implemented in your
organization?
b. Is an individual appointed to implement the Privacy Act
requirements?
c. Are provisions of AR 25-71 concerning protection of OPSEC
sensitive information regularly brought to the attention of managers
responsible for responding to Privacy Act requests and those responsible
for control of the Army's records?
d. When more than twenty working days are required to respond, is
the Privacy Act requester informed, explaining the circumstance
requiring the delay and provided an appropriate date for completion.
e. Are Accounting Disclosures Logs being maintained?
Comments: Assist in making this a better tool for evaluating
management controls. Submit comments to the Department of Army, Freedom
of Information and Privacy Division.
Sec. Appendix H to Part 505--Definitions
Function
(a) Access. Review or copying a record or parts thereof contained in
a Privacy Act system of records by an individual.
(b) Agency. For the purposes of disclosing records subject to the
Privacy Act, Components of the Department of Defense are considered a
single agency. For other purposes including access, amendment, appeals
from denials of access or amendment, exempting systems of records, and
recordkeeping for release to non-DOD agencies, the Department of the
Army is considered its own agency.
(c) Amendment. The process of adding, deleting, or changing
information in a system
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of records to make the data accurate, relevant, timely, or complete.
(d) Computer Matching Agreement. An agreement to conduct a
computerized comparison of two or more automated systems of records to
verify eligibility for payments under Federal benefit programs or to
recover delinquent debts for these programs.
(e) Confidential Source. A person or organization who has furnished
information to the Federal Government under an express promise that the
person's or the organization's identity would be held in confidence or
under an implied promise of such confidentiality if this implied promise
was made before September 27, 1975.
(f) Cookie. A mechanism that allows the server to store its own
information about a user on the user's own computer. Cookies are
embedded in the HTML information flowing back and forth between the
user's computer and the servers. They allow user-side customization of
Web information. Normally, cookies will expire after a single session.
(g) Defense Data Integrity Board. The Board oversees and coordinates
all computer matching programs involving personal records contained in
systems of records maintained by the DOD Component; reviews and approves
all computer matching agreements between the Department of Defense (DOD)
and other Federal, State, and local governmental agencies, as well as
memoranda of understanding when the match is internal to the DOD.
(h) Disclosure. The transfer of any personal information from a
Privacy Act system of records by any means of communication (such as
oral, written, electronic mechanical, or actual review) to any persons,
private entity, or government agency, other than the subject of the
record, the subject's designated agent or the subject's legal guardian.
Within the context of the Privacy Act and this part, this term applies
only to personal information that is a part of a Privacy Act system of
records.
(i) Deceased Individuals. The Privacy Act confers no rights on
deceased persons, nor may their next-of-kin exercise any rights for
them. However, family members of deceased individuals have their own
privacy right in particularly sensitive, graphic, personal details about
the circumstances surrounding an individual's death. This information
may be withheld when necessary to protect the privacy interests of
surviving family members. Even information that is not particularly
sensitive in and of itself may be withheld to protect the privacy
interests of surviving family members if disclosure would rekindle
grief, anguish, pain, embarrassment, or cause a disruption of their
peace minds. Because surviving family members use the deceased's Social
Security Number to obtain benefits, DA personnel should continue to
protect the SSN of deceased individuals.
(j) Individual. A living person who is a citizen of the United
States or an alien lawfully admitted for permanent residence. The parent
or legal guardian of a minor also may act on behalf of an individual.
Members of the United States Armed Forces are individuals. Corporations,
partnerships, sole proprietorships, professional groups, businesses,
whether incorporated or unincorporated, and other commercial entities
are not individuals.
(k) Individual Access. The subject of a Privacy Act file or his or
her designated agent or legal guardian has access to information about
them contained in the Privacy Act file. The term individual generally
does not embrace a person acting on behalf of a commercial entity (for
example, sole proprietorship or partnership).
(l) Denial Authority (formerly Access and Amendment Refusal
Authority). The Army Staff agency head or major Army commander
designated authority by this part to deny access to, or refuse amendment
of, records in his or her assigned area or functional specialization.
(m) Maintain. Includes keep, collect, use or disseminate.
(n) Members of the Public. Individuals or parties acting in a
private capacity.
(o) Minor. An individual under 18 years of age, who is not married
and who is not a member of the Department of the Army.
(p) Official Use. Within the context of this part, this term is used
when Department of the Army officials and employees have demonstrated a
need for the use of any record or the information contained therein in
the performance of their official duties.
(q) Personal Information. Information about an individual that
identifies, relates, or is unique to, or describes him or her, e.g., a
social security number, age, military rank, civilian grade, marital
status, race, salary, home/office phone numbers, etc.
(r) Persistent cookies. Cookies that can be used to track users over
time and across different Web sites to collect personal information.
(s) Personal Identifier. A name, number, or symbol that is unique to
an individual, usually the person's name or SSN.
(t) System of Records. A group of records under the control of the
DA from which information is filed and retrieved by individuals' names
or other personal identifiers assigned to the individuals. System
notices for all systems of records must be published in the Federal
Register. A grouping of records arranged chronologically or subjectively
that are not retrieved by individuals' names or identifiers is not a
Privacy Act system of records, even though individual information could
be retrieved by individuals' names or personal identifiers, such as
through a paper-by-paper search.
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(u) Privacy Advisory. A statement required when soliciting
personally identifying information by a Department of the Army Web site
and the information is not maintained in a system of records. The
Privacy Advisory informs the individual why the information is being
solicited and how it will be used.
(v) Privacy Impact Assessment (PIA). An analysis, which considers
information sensitivity, vulnerability, and cost to a computer facility
or word processing center in safeguarding personal information processed
or stored in the facility.
(w) Privacy Act (PA) Request. A request from an individual for
information about the existence of, access to, or amendment of records
pertaining to that individual located in a Privacy Act system of
records. The request must cite or implicitly refer to the Privacy Act of
1974.
(x) Protected Personal Information. Information about an individual
that identifies, relates to, is unique to, or describes him or her
(e.g., home address, date of birth, social security number, credit card,
or charge card account, etc.).
(y) Records. Any item, collection, or grouping of information,
whatever the storage media (e.g., paper, electronic, etc), about an
individual that is maintained by a DOD Component, including but not
limited to, his or her education, financial transactions, medical
history, criminal or employment history and that contains his or her
name, or the identifying number, symbol, or other identifying particular
assigned to the individual, such as a finger or voice print or a
photograph.
(z) Records Maintenance and Use. Any action involving the storage,
retrieval, and handling of records kept in offices by or for the agency.
(aa) Review Authority. An official charged with the responsibility
to rule on administrative appeals of initial denials of requests for
notification, access, or amendment of records. Additionally, the Office
of Personnel Management is the review authority for civilian official
personnel folders or records contained in any other OMP record.
(bb) Routine Use. Disclosure of a record outside DOD without the
consent of the subject individual for a use that is compatible with the
purpose for which the information was collected and maintained by DA. A
routine use must be included in the notice for the Privacy Act system of
records published in the Federal Register.
(cc) Statistical record. A record in a system of records maintained
for statistical research or reporting purposes and not used in whole or
in part in making determinations about specific individuals.
(dd) System Manager. An official who has overall responsibility for
policies and procedures for operating and safeguarding a Privacy Act
system of records.
(ee) Third-party cookies. Cookies placed on a user's hard drive by
Internet advertising networks. The most common third-party cookies are
placed by the various companies that serve the banner ads that appear
across many Web sites.
(ff) Working Days. Days excluding Saturday, Sunday, and legal
holidays.
PART 507_MANUFACTURE AND SALE OF DECORATIONS, MEDALS, BADGES, INSIGNIA, COMMERCIAL USE OF HERALDIC DESIGNS AND HERALDIC QUALITY CONTROL PROGRAM--Table of Contents
Subpart A_Introduction
Sec.
507.1 Purpose.
507.2 References.
507.3 Explanation of abbreviations and terms.
507.4 Responsibilities.
507.5 Statutory authority.
Subpart B_Manufacture and Sale of Decorations, Medals, Badges, and
Insignia
507.6 Authority to manufacture.
507.7 Authority to sell.
507.8 Articles authorized for manufacture and sale.
507.9 Articles not authorized for manufacture or sale.
Subpart C_Commercial Use of Heraldic Designs
507.10 Incorporation of designs or likenesses of approved designs in
commercial articles.
507.11 Reproduction of designs.
507.12 Possession and wearing.
Subpart D_Heraldic Quality Control Program
507.13 General.
507.14 Controlled heraldic items.
507.15 Certification of heraldic items.
507.16 Violations and penalties.
507.17 Procurement and wear of heraldic items.
507.18 Processing complaints of alleged breach of policies.
Authority: 10 U.S.C. 3012, 18 U.S.C. 701, 18 U.S.C. 702
Source: 63 FR 27208, May 18, 1998, unless otherwise noted.
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Subpart A_Introduction
Sec. 507.1 Purpose.
This part prescribes the Department of the Army and the Air Force
policy governing the manufacture, sale, reproduction, possession, and
wearing of military decorations, medals, badges, and insignia. It also
establishes the Heraldic Item Quality Control Program to improve the
appearance of the Army and Air Force by controlling the quality of
heraldic items purchased from commercial sources.
Sec. 507.2 References.
Related publications are listed in paragraphs (a) through (f) of
this section. (A related publication is merely a source of additional
information. The user does not have to read it to understand this part).
Copies of referenced publications may be reviewed at Army and Air Force
Libraries or may be purchased from the National Technical Information
Services, U.S. Department of Commerce, 5285 Port Royal Road,
Springfield, VA 22161.
(a) AFI 36-2903, Dress and Personal Appearance of Air Force
Personnel.
(b) AR 360-5, Public Information.
(c) AR 670-1, Wear and Appearance of Army Uniforms and Insignia.
(d) AR 840-1, Department of the Army Seal, and Department of the
Army Emblem and Branch of Service Plaques.
(e) AR 840-10, Heraldic Activities, Flags, Guidons, Streamers,
Tabards and Automobile Plates.
(f) AFR 900-3, Department of the Air Force Seal, Organizational
Emblems, Use and Display of Flags, Guidons, Streamers, and Automobile
and Aircraft Plates.
Sec. 507.3 Explanation of abbreviations and terms.
(a) Abbreviations. (1) AFB--Air Force Base.
(2) DA--Department of the Army.
(3) DCSPER--Deputy Chief of Staff for Personnel.
(4) DSCP--Defense Supply Center Philadelphia.
(5) DUI--distinctive unit insignia.
(6) ROTC--Reserve Officers' Training Corps.
(7) SSI--shoulder sleeve insignia.
(8) TIOH--The Institute of Heraldry.
(9) USAF--United States Air Force.
(b) Terms--(1) Cartoon. A drawing six times actual size, showing
placement of stitches, color and size of yarn and number of stitches.
(2) Certificate of authority to manufacture. A certificate assigning
manufacturers a hallmark and authorizing manufacture of heraldic items.
(3) Hallmark. A distinguishing mark consisting of a letter and
numbers assigned to certified manufacturers for use in identifying
manufacturers of insignia.
(4) Heraldic items. All items worn on the uniform to indicate unit,
skill, branch, award or identification and a design has been established
by TIOH on an official drawing.
(5) Letter of agreement. A form signed by manufacturers before
certification, stating that the manufacturer agrees to produce heraldic
items in accordance with specific requirements
(6) Letter of authorization. A letter issued by TIOH that authorizes
the manufacture of a specific heraldic item after quality assurance
inspection of a preproduction sample.
(7) Tools. Hubs, dies, cartoons, and drawings used in the
manufacture of heraldic items.
Sec. 507.4 Responsibilities.
(a) Deputy Chief of Staff for Personnel (DCSPER), Army. The DCSPER
has staff responsibility for heraldic activities in the Army.
(b) The Director, The Institute of Heraldry (TIOH). The Director,
TIOH, will--
(1) Monitor the overall operation of the Heraldic Quality Control
Program.
(2) Authorize the use of insignia designs in commercial items.
(3) Certify insignia manufacturers.
(4) Inspect the quality of heraldic items.
(c) The Commander, Air Force Personnel Center, Randolph AFB, TX
78150-4739. The Commander has staff responsibility for heraldic
activities in the Air Force.
(d) The Chief, Air Force Personnel Center Commander's Programs
Branch (HQ AFPC/DPSFC), 550 C Street West, Suite 37, Randolph AFB, TX
78150-4739. The Chief, Commander's Programs Branch is responsible for
granting permission
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for the incorporation of certain Air Force badges and rank insignia
designs in commercial items.
(e) Commander, Air Force Historical Research Agency (AFHRA/RSO),
Maxwell AFB, AL 36112-6424. The Commander, AFHRA/RSO, is responsible for
granting permission for use of the Air Force seal, coat of arms, and
crest.
(f) Commanders. Commanders are responsible for purchasing heraldic
items that have been produced by manufacturers certified by TIOH.
Commanders will ensure that only those heraldic items that are of
quality and design covered in the specification and that have been
produced by certified manufacturers are worn by personnel under their
command.
Sec. 507.5 Statutory authority.
(a) The wear, manufacture, and sale of military decorations, medals,
badges, their components and appurtenances, or colorable imitations of
them, are governed by section 704, title 18, United States Code (18
U.S.C. 704).
(b) The manufacture, sale, possession, and reproduction of badges,
identification cards, insignia, or other designs, prescribed by the head
of a U.S. department or agency, or colorable imitations of them, are
governed by Title 18, United States Code, Section 701 (18 U.S.C. 701).
(c) This part incorporates the statutory provisions.
Subpart B_Manufacture and Sale of Decorations, Medals, Badges, and
Insignia.
Sec. 507.6 Authority to manufacture.
(a) A certificate of authority to manufacture heraldic articles may
be granted by the Institute of Heraldry.
(1) Certificates of authority will be issued only to companies who
have manufacturing capability and agree to manufacture heraldic items
according to applicable specifications or purchase descriptions.
(2) The certificate of authority is valid only for the individual or
corporation indicated.
(3) A hallmark will be assigned to each certified manufacturer. All
insignia manufactured will bear the manufacturer's hallmark.
(b) A certificate of authority may be revoked or suspended under the
procedures prescribed in subpart D of this part.
(c) Manufacturers will submit a preproduction sample to TIOH of each
item they manufacture for certification under the Heraldic Quality
Control Program. A letter of certification authorizing manufacture of
each specific item will be issued provided the sample meets quality
assurance standards.
(d) A copy of the certified manufactures list will be furnished to
the Army and Air Force Exchange Service and, upon request, to Army and
Air Force commanders.
Sec. 507.7 Authority to sell.
No certificate of authority to manufacture is required to sell
articles listed in Sec. 507.8 of this part; however, sellers are
responsible for insuring that any article they sell is manufactured in
accordance with Government specifications using government furnished
tools, bears a hallmark assigned by TIOH, and that the manufacturer has
received a certification to manufacture that specific item prior to
sale.
Sec. 507.8 Articles authorized for manufacture and sale.
(a) The articles listed in paragraphs (a) (1) through (10) of this
section are authorized for manufacture and sale when made in accordance
with approved specifications, purchase descriptions or drawings.
(1) All authorized insignia (AR 670-1 and AFI 36-2903).
(2) Appurtenances and devices for decorations, medals, and ribbons
such as oak leaf clusters, service stars, arrowheads, V-devices, and
clasps.
(3) Combat, special skill, occupational and qualification badges and
bars.
(4) Identification badges.
(5) Fourrageres and lanyards.
(6) Lapel buttons.
(7) Decorations, service medals, and ribbons, except for the Medal
of Honor.
(8) Replicas of decorations and service medals for grave markers.
Replicas are to be at least twice the size prescribed for decorations
and service medals.
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(9) Service ribbons for decorations, service medals, and unit
awards.
(10) Rosettes.
(11) Army emblem and branch of service plaques.
(b) Variations from the prescribed specifications for the items
listed in paragraph (a) of this section are not permitted without prior
approval, in writing, by TIOH.
Sec. 507.9 Articles not authorized for manufacture or sale.
The following articles are not authorized for manufacture and sale,
except under contract with DSCP:
(a) The Medal of Honor.
(b) Service ribbon for the Medal of Honor.
(c) Rosette for the Medal of Honor.
(d) Service flags (prescribed in AR 840-10 or AFR 900-3).
(e) Army seal.
(f) Commercial articles for public sale that incorporate designs or
likenesses of decorations, service medals, and service ribbons.
(g) Commercial articles for public sale that incorporate designs or
likenesses of designs of insignia listed in Sec. 507.8 of this part,
except when authorized by the Service concerned.
Subpart C_Commercial Use of Heraldic Designs
Sec. 507.10 Incorporation of designs or likenesses of approved designs in commercial articles.
The policy of the Department of the Army and the Department of the
Air Force is to restrict the use of military designs for the needs or
the benefit of personnel of their Services.
(a) Except as authorized in writing by the Department of the Army or
the Department of the Air Force, as applicable, the manufacture of
commercial articles incorporating designs or likenesses of official
Army/Air Force heraldic items is prohibited. However, certain designs or
likenesses of insignia such as badges or organizational insignia may be
incorporated in articles manufactured for sale provided that permission
has been granted as specified in paragraphs (a) (1) and (2) of this
section.
(1) Designs approved for use of the Army. The Director, The
Institute of Heraldry, 9325 Gunston Road, Room S-112, Fort Belvoir, VA
22060-5579, is responsible for granting permission for the incorporation
of certain Army insignia designs and the Army emblem in commercial
articles manufactured for sale. Permission for such use will be in
writing. Commanders of units authorized a SSI or DUI may authorize the
reproduction of their SSI or DUI on commercial articles such as shirts,
tie tacks, cups, or plaques. Permission for use of a SSI or DUI will be
submitted in writing to the commander concerned. Authorization for
incorporation of designs or likenesses of designs in commercial items
will be granted only to those manufacturers who agree to offer these
items for sale only to Army and Air Force Exchange Service and outlets
that sell primarily to military personnel and their dependents.
(2) Designs approved for use of the Air Force. Headquarters, Air
Force Personnel Center, Chief, Commander's Programs Branch (HQ AFPC/
DPSFC), 550 C Street West, Suite 37, Randolph AFB, TX 78150-4739, is
responsible for granting permission for the incorporation of certain Air
Force designs for commercial articles manufactured for sale. The
Commander, Air Force Historical Research Agency, AFHRA/RSO, Maxwell AFB,
AL 36112-6678, is responsible for granting permission for the
incorporation of the coat of arms, crest, seal and organizational
emblems. Such permission will be in writing. Authorization for
incorporation of designs or likenesses of designs in commercial items
will be granted only to those manufacturers who agree to offer these
items for sale only to the Army and Air Force Exchange Service, or to
those outlets that sell primarily to military personnel and their
dependents.
(b) In the case of the Honorable Service lapel button, a general
exception is made to permit the incorporation of that design in articles
manufactured for public sale provided that such articles are not
suitable for wear as lapel buttons or pins.
[[Page 51]]
Sec. 507.11 Reproduction of designs.
(a) The photographing, printing, or, in any manner making or
executing any engraving, photograph, print, or impression in the
likeness of any decoration, service medal, service ribbon, badge, lapel
button, insignia, or other device, or the colorable imitation thereof,
of a design prescribed by the Secretary of the Army or the Secretary of
the Air Force for use by members of the Army or the Air Force is
authorized provided that such reproduction does not bring discredit upon
the military service and is not used to defraud or to misrepresent the
identification or status of an individual, organization, society, or
other group of persons.
(b) The use for advertising purposes of any engraving, photograph,
print, or impression of the likeness of any Department of the Army or
Department of the Air Force decoration, service medal, service ribbon,
badge, lapel button, insignia, or other device (except the Honorable
Service lapel button) is prohibited without prior approval, in writing,
by the Secretary of the Army or the Secretary of the Air Force except
when used to illustrate a particular article that is offered for sale.
Request for use of Army insignia in advertisements or promotional
materials will be processed through public affairs channels in
accordance with AR 360-5, paragraph 3-37.
(c) The reproduction in any manner of the likeness of any
identification card prescribed by Department of the Army or Department
of the Air Force is prohibited without prior approval in writing by the
Secretary of the Army or Secretary of the Air Force.
Sec. 507.12 Possession and wearing.
(a) The wearing of any decoration, service medal, badge, service
ribbon, lapel button, or insignia prescribed or authorized by the
Department of the Army and the Department of the Air Force by any person
not properly authorized to wear such device, or the use of any
decoration, service medal, badge, service ribbon, lapel button, or
insignia to misrepresent the identification or status of the person by
whom such is worn is prohibited. Any person who violates the provision
of this section is subject to punishment as prescribed in the statutes
referred to in Sec. 507.5 of this part.
(b) Mere possession by a person of any of the articles prescribed in
Sec. 507.8 of this part is authorized provided that such possession is
not used to defraud or misrepresent the identification or status of the
individual concerned.
(c) Articles specified in Sec. 507.8 of this part, or any
distinctive parts including suspension ribbons and service ribbons) or
colorable imitations thereof, will not be used by any organization,
society, or other group of persons without prior approval in writing by
the Secretary of the Army or the Secretary of the Air Force.
Subpart D_Heraldic Quality Control Program
Sec. 507.13 General.
The heraldic quality control program provides a method of ensuring
that insignia items are manufactured with tools and specifications
provided by TIOH.
Sec. 507.14 Controlled heraldic items.
The articles listed in Sec. 507.8 of this part are controlled
heraldic items and will be manufactured in accordance with Government
specifications using Government furnished tools or cartoons. Tools and
cartoons are not provided to manufacturers for the items in paragraphs
(a) through (e) of this section. However, manufacture will be in
accordance with the Government furnished drawings.
(a) Shoulder loop insignia, ROTC, U.S. Army.
(b) Institutional SSI, ROTC, U.S. Army.
(c) Background trimming/flashes, U.S. Army.
(d) U.S. Air Force organizational emblems for other than major
commands.
(e) Hand embroidered bullion insignia.
Sec. 507.15 Certification of heraldic items.
A letter of certification to manufacture each heraldic item, except
those listed in Sec. 507.14 (a) through (e) of this part, will be
provided to the manufacturer upon submission of a preproduction sample.
Manufacture
[[Page 52]]
and sale of these items is not authorized until the manufacturer
receives a certification letter from TIOH.
Sec. 507.16 Violations and penalties.
A certificate of authority to manufacture will be revoked by TIOH
upon intentional violation by the holder thereof of any of the
provisions of this part, or as a result of not complying with the
agreement signed by the manufacturer in order to receive a certificate.
Such violations are also subject to penalties prescribed in the Acts of
Congress (Sec. 507.5 of this part). A repetition or continuation of
violations after official notice thereof will be deemed prima facie
evidence of intentional violation.
Sec. 507.17 Procurement and wear of heraldic items.
(a) The provisions of this part do not apply to contracts awarded by
the Defense Personnel Support Center for manufacture and sale to the
U.S. Government.
(b) All Army and Air Force service personnel who wear quality
controlled heraldic items that were purchased from commercial sources
will be responsible for ensuring that the items were produced by a
certified manufacturer. Items manufactured by certified manufacturers
will be identified by a hallmark and/or a certificate label certifying
the item was produced in accordance with specifications.
(c) Commanders will ensure that only those heraldic items that are
of the quality and design covered in the specifications and that have
been produced by certified manufacturers are worn by personnel under
their command. Controlled heraldic items will be procured only from
manufacturers certified by TIOH. Commanders procuring controlled
heraldic items, when authorized by local procurement procedures, may
forward a sample insignia to TIOH for quality assurance inspection if
the commander feels the quality does not meet standards.
Sec. 507.18 Processing complaints of alleged breach of policies.
The Institute of Heraldry may revoke or suspend the certificate of
authority to manufacture if there are breaches of quality control
policies by the manufacturer. As used in this paragraph, the term
quality control policies include the obligation of a manufacturer under
his or her ``Agreement to Manufacture,'' the quality control provisions
of this part, and other applicable instructions provided by TIOH.
(a) Initial processing. (1) Complaints and reports of an alleged
breach of quality control policies will be forwarded to the Director,
The Institute of Heraldry, 9325 Gunston Road, Room S-112, Fort Belvoir,
VA 22060-5579 (hereinafter referred to as Director).
(2) The Director may direct that an informal investigation of the
complaint or report be conducted.
(3) If such investigation is initiated, it will be the duty of the
investigator to ascertain the facts in an impartial manner. Upon
conclusion of the investigation, the investigator will submit a report
to the appointing authority containing a summarized record of the
investigation together with such findings and recommendations as may be
appropriate and warranted by the facts.
(4) The report of investigation will be forwarded to the Director
for review. If it is determined that a possible breach of quality
control policies has occurred, the Director will follow the procedures
outlined in paragraphs (b) through (g) of this section.
(b) Voluntary performance. The Director will transmit a registered
letter to the manufacturer advising of the detailed allegations of
breach and requesting assurances of voluntary compliance with quality
control policies. No further action is taken if the manufacturer
voluntarily complies with the quality control policies; however, any
further reoccurrence of the same breach will be considered refusal to
perform.
(c) Refusal to perform. (1) If the manufacturer fails to reply
within a reasonable time to the letter authorized by paragraph (b) of
this section, or refuses to give adequate assurances that future
performance will conform to quality control policies, or indicates by
subsequent conduct that the breach is continuous or repetitive, or
disputes the allegations of breach, the Director will direct that a
public hearing be conducted on the allegations.
[[Page 53]]
(2) A hearing examiner will be appointed by appropriate orders. The
examiner may be either a commissioned officer or a civilian employee
above the grade of GS-7.
(3) The specific written allegations, together with other pertinent
material, will be transmitted to the hearing examiner for introduction
as evidence at the hearing.
(4) Manufacturers may be suspended for failure to return a loaned
tool without referral to a hearing specified in paragraph (c)(1) of this
section; however, the manufacturer will be advised, in writing, that
tools are overdue and suspension will take effect if not returned within
the specified time.
(d) Notification to the manufacturer by examiner. Within a 7 day
period following receipt by the examiner of the allegations and other
pertinent material, the examiner will transmit a registered letter of
notification to the manufacturer informing him or her of the following:
(1) Specific allegations.
(2) Directive of the Director requiring the holding of a public
hearing on the allegations.
(3) Examiner's decision to hold the public hearing at a specific
time, date, and place that will be not earlier than 30 days from the
date of the letter of notification.
(4) Ultimate authority of the Director to suspend or revoke the
certificate of authority should the record developed at the hearing so
warrant.
(5) Right to--
(i) A full and fair public hearing.
(ii) Be represented by counsel at the hearing.
(iii) Request a change in the date, time, or place of the hearing
for purposes of having reasonable time in which to prepare the case.
(iv) Submit evidence and present witnesses in his or her own behalf.
(v) Obtain, upon written request filed before the commencement of
the hearing, at no cost, a verbatim transcript of the proceedings.
(e) Public hearing by examiner. (1) At the time, date, and place
designated in accordance with paragraph (d) (3) of this section, the
examiner will conduct the public hearing.
(i) A verbatim record of the proceeding will be maintained.
(ii) All previous material received by the examiner will be
introduced into evidence and made part of the record.
(iii) The Government may be represented by counsel at the hearing.
(2) Subsequent to the conclusion of the hearing, the examiner will
make specific findings on the record before him or her concerning each
allegation.
(3) The complete record of the case will be forwarded to the
Director.
(f) Action by the Director. (1) The Director will review the record
of the hearing and either approve or disapprove the findings.
(2) Upon arrival of a finding of breach of quality control policies,
the manufacturer will be so advised.
(3) After review of the findings, the certificate of authority may
be revoked or suspended. If the certificate of authority is revoked or
suspended, the Director will--
(i) Notify the manufacturer of the revocation or suspension.
(ii) Remove the manufacturer from the list of certified
manufacturers.
(iii) Inform the Army and Air Force Exchange Service of the action.
(g) Reinstatement of certificate of authority. The Director may,
upon receipt of adequate assurance that the manufacturer will comply
with quality control policies, reinstate a certificate of authority that
has been suspended or revoked.
PART 508_COMPETITION WITH CIVILIAN BANDS--Table of Contents
Authority: Secs. 3012, 3634, 70A Stat. 157, 207; 10 U.S.C. 3012,
3634.
Sec. 508.1 Utilization of Army bands.
(a) General. Participation of Army bandsmen in performances off
military reservations will not interfere with the customary employment
and regular engagement of local civilians in the respective arts,
trades, or professions. Such participation will not directly or
indirectly benefit or appear to benefit or favor any private individual,
commercial venture, sect, or political or fraternal group, except as may
be specifically authorized by the Secretary of Defense. The authority to
determine
[[Page 54]]
whether the use of an Army band at a public gathering is prohibited by
this section is delegated to major commanders.
(b) Suitability. Commanders authorizing participation by Army bands
(except the U.S. Army Band and the U.S. Army Field Band) in their
official capacties and in the performance of official duties will be
guided by the following conditions of suitability:
(1) When participation is an appropriate part of official occasions
attended by the senior officers of the Government or the Department of
Defense in their official capacities and in the performance of official
duties.
(2) For parades and ceremonies which are incident to gatherings of
personnel of the Armed Forces, veterans, and patriotic organizations.
(3) At public rallies and parades intended to stimulate national
interest in the Armed Forces and/or to further the community relation
program.
(4) For fund drives for officially recognized Armed Forces relief
agencies or charitable organizations such as the Red Cross when the
proceeds are donated to such agencies.
(5) For athletic contests in which one or more Armed Forces teams
are participating.
(6) In connection with recruiting activities for the Armed Forces.
(7) At official occasions and free social and entertainment
activities held on or off Armed Forces installations, provided that such
free social entertainment activities are conducted exclusively for the
benefit of personnel of the Armed Forces and their guests.
[25 FR 10700, Nov. 9, 1960]
PART 510_CHAPLAINS--Table of Contents
Authority: R.S. 1125; 10 U.S.C. 238.
Sec. 510.1 Private ministrations, sacraments, and ordinances.
Chaplains will conduct or arrange for appropriate burial services at
the interment of members of the military service, active and retired,
and for members of their families upon request. A chaplain may perform
the marriage rite, provided he complies with the civil law of the place
where the marriage is to be solemnized and provided all parties
concerned have complied with the requirements of the denomination the
chaplain represents and with any directives which may have been issued
by the military command or higher headquarters. The scope of the
chaplains' work will include such ministrations as are held by some
denominations or religious bodies as sacraments and by others as rites
or ordinances. Chaplains will administer or arrange for rites and
sacraments for military personnel and civilians under military
jurisdiction according to the respective beliefs and conscientious
practices of all concerned.
[16 FR 12931, Dec. 27, 1951]
PART 513_INDEBTEDNESS OF MILITARY PERSONNEL--Table of Contents
Sec.
513.1 General.
513.2 Administrative procedures for processing complaints.
513.3 Administrative and punitive actions.
513.4 Conditions creditors must meet before getting help in debt
processing.
513.5 Procedures governing nonactive duty or discharged personnel.
Appendix A to Part 513--References
Appendix B to Part 513--Standards of Fairness
Appendix C to Part 513--Glossary
Authority: 10 U.S.C. 3012.
Source: 51 FR 7268, Mar. 3, 1986, unless otherwise noted.
Sec. 513.1 General.
(a) Purpose. This regulation prescribes Department of the Army (DA)
policy, responsibilities, and procedures in handling debt claims against
soldiers.
(b) References. Required and related publications and prescribed and
referenced forms are listed in appendix A.
(c) Explanation of abbreviations and terms. Abbreviations and
special terms used in this regulation are explained in the glossary.
(d) Responsibilities. (1) The Deputy Chief of Staff for Personnel
will set policy on processing debt claims against soldiers.
(2) The Commanding General, U.S. Army Community and Family Support
Center (CG, USACFSC) will--
[[Page 55]]
(i) Set procedures for processing debt claims against soldiers.
(ii) Process debt claims received at USACFSC regarding soldiers.
(iii) Carry out the objectives of this regulation to protect the
rights of the soldier, his or her family members, and the interests of
the Army.
(iv) Advise and assist the directors of Headquarters, Department of
the Army (HQDA) agencies, commanders of the major Army commands, and
other commanders on matters pertaining to indebtedness of soldiers.
(3) Officers having general court-martial jurisdiction will--
(i) Ensure special emphasis on the indebtedness issue is given in
command information programs. This includes soldiers being informed of
their responsibility to manage their personal affairs satisfactorily and
pay their debts promptly. Also, inform soldiers of the possible
consequences of failure to pay their debts.
(ii) Take action on requests to file unfavorable information in a
soldier's official personnel file. (See Sec. 513.3.)
(4) First level field grade commanders will monitor instances of
soldiers' repeated failure to pay debts that are brought to their
attention. These commanders will take action, when proper.
(5) Immediate commanders will--
(i) Ensure that soldiers are informed of the following:
(A) DA policy on indebtedness.
(B) The possible consequences of failure to pay their debts.
(ii) Manage the processing of debt claims per the terms of this
regulation.
(iii) Answer all correspondence received from CG, USACFSC and other
DA officials.
(iv) Answer all correspondence received directly from claimants and
third parties (for example, Members of Congress). The commander will not
include unreleasable information without the soldier's written consent.
This complies with the Privacy Act of 1974. (See AR 340-21.) Commanders
should ask the Staff Judge Advocate (SJA) for guidance in unusual or
difficult situations.
(v) Inform the first level field grade commander of instances of
soldiers' repeated failure to pay their debts. Also, point out actions
taken or contemplated to correct the situation.
(vi) Refer correspondence or queries received from news media
organizations to the unit, installation, or command public affairs
officer for response.
(6) The unit, installation, or command public affairs officer will--
(i) Answer correspondence and queries received from news media
organizations.
(ii) Coordinate with the SJA before making any response.
(e) Policy. (1) Soldiers are required to manage their personal
affairs satisfactorily and pay their debts promptly. Failure to do so
damages their credit reputation and affects the Army's public image. The
Army, however, has no legal authority to force soldiers to pay their
debts. Also, the Army cannot divert any part of a soldier's pay even
though payment of the debt was decreed by a civil court. Only civil
authorities can enforce payment of private debts.
(2) Debt claims against corporations and organizations to which a
soldier belongs, or of which a soldier is an officer, will not be
processed under this regulation. In this situation, the matter should be
pursued in civil court. If a judgment is received specifically against
the soldier, then this regulation will apply.
(3) Creditors who follow Sec. 513.4 will have their debt complaints
processed.
(4) Requests for help that do not follow Sec. 513.4 will be
returned without action with an explanation as discussed in Sec.
513.4(d).
(5) The Army will revoke debt processing privileges for creditors
who--
(i) Refuse to abide by this regulation.
(ii) Try to use the Army as a debt collection agency. (See Sec.
513.4(e)).
(6) The Army does not try to judge or settle disputed debts, or
admit or deny whether claims are valid. The Army will not tell claimants
whether any adverse action has been taken against a soldier as a result
of the claim.
(7) If a soldier is not trying to resolve unpaid debts promptly or
complaints of repeated failure to pay debts are received, commanders
will consider the actions shown below. (See Sec. Sec. 513.2(a)(3)(xv)
and 513.3.)
[[Page 56]]
(i) Making the failure a matter of permanent record.
(ii) Denial of reenlistment (enlisted personnel).
(iii) Administrative separation from the Service.
(iv) Punishment under the Uniform Code of Military Justice (UCMJ).
When proper, such misconduct may be charged under articles 92, 123, 133,
or 134 of the UCMJ.
(8) Checks that are dishonored for any reason remain proof of
indebtedness until--
(i) Made good.
(ii) Proven to be the error of the financial institution on which
drawn, or the error of any other person or institution; such action then
absolves the soldier of fault. (See Sec. 513.2(c).)
(9) When necessary, commanders and soldiers are urged to seek help
from the SJA.
(f) Banks and credit unions. (1) Banks and credit unions located on
military bases must apply Department of Defense (DOD) Standards of
Fairness (app B) before making loans or credit agreements. Banks and
credit unions that do not meet this requirement will be denied help in
processing debt complaints.
(2) If soldiers are referred to off-base branches of an on-post bank
or credit union, the branches also must comply with the Standards of
Fairness before making loans or credit agreements.
(3) Interest rates and service charges for loans made by oversea
military banking facilities are set by DOD.
(g) Fair Debt Collection Practices Act (section 1692, title 15,
United States Code (15 U.S.C. 1692)). (1) A debt collector may not
contact any person other than the soldier, his or her lawyer or legal
counsel, or the creditor about any debt collection. The debt collector,
however, may contact the employer if he or she has a written and signed
consent from the soldier, or a court order permitting contact. The
written consent must include the debt collector's name. It is illegal
for debt collectors to use another name when collecting debts.
(2) Debt collectors who have obtained the needed written consent or
court order and who have followed Sec. 513.4 will have their debt
complaints processed.
(3) Creditors who collect only on their own behalf are exempt from
the Act.
(h) Individual repayment plan of the Bankruptcy Act. Chapter XIII of
the Bankruptcy Act (11 U.S.C. 1301, et seq.) provides for the protection
and relief of individuals with a regular income. It also sets rules for
paying debts under the supervision of U.S. Federal District Courts. Care
must be taken not to confuse ``bankruptcy'' and ``individual repayment
plans'' in order not to infringe on the rights of the soldier.
(i) Locator service. (1) Installations will honor requests for
central locator service by a banking office (AR 210-135) or credit union
(AR 210-24) located on a military installation. This service will be
free when banking offices and credit unions cite AR 37-60. This service
will be used to locate persons for settling accounts, checks that did
not clear, and delinquent loans. The U.S. Army Finance and Accounting
Center (USAFAC), Indianapolis, IN 46249-1016, will assist these banking
offices and credit unions to locate soldiers who cannot be located
locally.
(2) Current military addresses for all soldiers may be obtained by
writing the Commander, U.S. Army Enlisted Records and Evaluation Center,
Fort Benjamin Harrison, IN 46249-5301. All requests must include the
soldier's full name, rank, and social security number (SSN). They should
include the date and place of birth if the SSN is not known. A check or
money order for $3.50 payable to the Treasurer of the United States must
be enclosed with each request. (See AR 37-60.)
(3) A debt collector should not write to the U.S. Army Enlisted
Records and Evaluation Center (USAEREC) if he or she knows the soldier
is represented by a civilian lawyer or military legal counsel. However,
the debt collector may write to USAEREC if he or she--
(i) Does not know or cannot easily find out the name and address of
the lawyer or legal counsel.
(ii) Does not receive a response from the lawyer or legal counsel.
(4) If a debt collector writes to USAEREC, a postcard cannot be
used. Also, the request cannot state that the locator service is being
sought in order to collect a debt. These actions would
[[Page 57]]
violate the Fair Debt Collection Practices Act (Sec. 513.1(g)).
[51 FR 7269, Mar. 3, 1986; 51 FR 8824, Mar. 14, 1986, as amended at 51
FR 17961, May 16, 1986]
Sec. 513.2 Administrative procedures for processing complaints.
(a) Commander's actions. Upon receipt of a debt complaint, the
commander will--
(1) Review the case to ensure that the terms of this regulation have
been met.
(2) Consult the SJA if needed.
(3) Take the following actions:
(i) If any of the terms of Sec. 513.4(c) have not been met by the
creditor, return the complaint. Tell the writer that no action will be
taken until those terms are met.
(ii) Upon receipt of subsequent inquiries from USACFSC, Members of
Congress, or any other source, inform the writer that--
(A) The creditor has been told that his or her request lacked data
or documentation.
(B) The commander regrets that he or she cannot process the
complaint until the creditor supplies the necessary data.
(C) A reply previously has been made to the creditor. Enclose a copy
of the reply.
(iii) If the creditor refuses or repeatedly fails to comply with any
of these requirements, refer the complete case through channels to the
Commander, USACFSC, ATTN: DACF-IS-PA, ALEX VA 22231-0522. If it is
believed the creditor's debt processing privileges should be revoked,
include a recommendation stating the reasons.
(iv) If the soldier was not given full disclosure information when
the debt was incurred, refer him or her to the SJA office. The SJA
office will advise if the soldier has a right to file suit against the
creditor. The soldier may be entitled to twice the amount of the finance
charge, for a minimum of $100 up to a maximum of $1,000, plus court
costs and lawyer fees. This does not apply to debts incurred before 30
June 1969.
(v) If in doubt as to the legality of the contract, consult the SJA.
This action is to ensure that the contract terms do not violate Federal
and State laws.
(vi) Accept as valid proof, claims based on court judgments, orders,
or decrees.
(vii) If the debt or the amount of the debt is disputed or denied by
the soldier, reply directly to the creditor. Tell him or her that Army
policy requires that disputed debts be settled by civil courts. Do not,
in the reply, try to judge or settle any disputed debts, or admit or
deny the validity of the claim.
(viii) If the creditor has met all the requirements discussed in
Sec. 513.4, interview the soldier.
(A) Ensure that the soldier is properly advised of his or her rights
under the Privacy Act of 1974. DA Form 4817-R (Consent/Nonconsent To
Disclose Personal Information) will be completed.
(B) Notify the soldier of the debt complaint.
(C) Explain that the Army requires that soldiers pay their debts
promptly. Failure to do so damages credit reputations and affects the
Army's public image. Also, explain that the willful failure to resolve
unpaid debts may result in administrative or punitive actions as
described in Sec. 513.3.
(D) Tell the soldier of his or her legal rights and duties. If
appropriate, advise the soldier of his or her rights under article 31,
UCMJ. Also, inform the soldier that counseling service is available
under the Legal Assistance Program (AR 27-3).
(E) Review all available facts including the soldier's defenses,
rights, and counterclaims.
(F) Urge the soldier to seek budget counseling and consumer
protection advice, if proper. These services may be obtained from on-
post credit unions, Army Community Service Program Counselors (AR 608-
1), or through financial management seminars or workshops.
(G) Help the soldier in settling or in liquidating the debt. Give
the soldier a copy of DA Pam 360-520 if proper. Answer any questions
that he or she might have.
(H) Have the soldier sign a statement allowing or forbidding release
of information to the claimant (DA Form 4817-R). AR 340-17 and AR 340-
21, paragraph 3-3 govern this.
[[Page 58]]
(I) Ask the soldier about his or her intentions. Give the soldier
the chance to furnish a voluntarily signed statement admitting or
denying the complaint or declining to do either.
(ix) Advise the claimant promptly that the soldier has been told of
the complaint.
(x) Summarize the soldier's intentions if the soldier allows release
of the information.
(xi) If proper, advise the claimant that indebtedness disputes must
be resolved in a civil court of competent jurisdiction.
(xii) Ask the claimant to write, if necessary, directly to the
soldier or his or her commander.
(xiii) Retain the statement allowing or forbidding release of
information to the claimant with the case file for future reference.
(See Sec. 513.3)
(xiv) Monitor actions closely to ensure promises made to claimants
are being met.
(xv) Consider administrative or punitive action, if proper (See
Sec. Sec. 513.1(e)(7) and 513.3.)
(xvi) Inform the first level field grade commander of instances of
soldiers' repeated failure to pay their debts. Also, point out actions
taken or contemplated to correct the situation.
(b) Procedures for routing debt complaints. (1) Send debt complaints
through proper channels to the soldier's commander for action.
(2) If the soldier is a patient attached to a medical holding
detachment (MHD), the complaint will be sent there for action. The
commander of the MHD will take action per this regulation.
(3) The command receiving the complaint will acknowledge the letter
and tell the writer of the referral. DA Form 209 (Delay, Referral, or
Follow-Up Notice) may be used for this purpose.
(4) All correspondence to the President, received from outside of
DOD, will be processed per AR 1-9.
(5) Send complaints to the soldier's new duty station if the soldier
has been reassigned. Advise the claimant of the soldier's reporting date
and the unit address to which correspondence should be sent.
(6) See Sec. 513.5 for procedures governing processing of claims
for nonactive duty or discharged personnel.
(c) Processing debt complaints based on dishonored checks. (1)
Writing checks against an account with no or not enough funds is a
serious matter. It may be a misdemeanor or a felony. This depends on the
amount of the check and the laws or statutes of the jurisdiction where
the check is presented for payment. The soldier is responsible for
making sure that money is in his or her bank account to cover checks
written on that account. Writing bad checks may result in disciplinary
or administrative action. Whether or not such action is taken, a
dishonored check for not enough funds remains proof of an indebtedness
except as provided in Sec. 513.1(e)(8).
(2) Commanders must answer all check complaints, other than those
discussed in Sec. 513.2(c)(3), even if such complaints concerns checks
errors caused by oversight or negligence. (AR 210-60 outlines ways for
handling dishonored checks written on Army installations and in Army
facilities.)
(3) Checks made good within 5 days of notice do not require any
action if the complaint is based on--
(i) Bank or Government error.
(ii) Failure to date the check.
(iii) Inconsistent or not legible amounts shown on the check.
(iv) Lack of legible signature.
(4) Bad checks written by family members are not processed under
this regulation except in the following instance. The SJA finds that
these checks stand for debts for which the soldier may be held
personally liable under Federal or State laws (for example, checks
written for necessities such as rent, utilities, or food).
(d) Inquiries from USACFSC or DA officials. The commander must--
(1) Give USACFSC or DA officials complete data on all inquiries.
(2) Seek the advice of the SJA before replying to a court order if
necessary.
(3) State ``not applicable'' to items that do not apply.
(4) If applicable, advise USACFSC or DA officials--
(i) Whether the soldier acknowledges the debt.
[[Page 59]]
(ii) Of the corrective action taken (to include the amounts and
dates payments will be made).
(iii) Of the method of payment (for example, personal check).
(iv) Whether the soldier allowed or forbade release of the
information given. (See DA Form 4817-R.)
(v) Whether the soldier is following the terms of a court order.
(vi) Whether the soldier's actions follow Army policy as stated in
this regulation.
(vii) In the reply, include your name, unit address, and your
automatic voice network (AUTOVON) number. If no AUTOVON Number is
available, include a commercial or other number where the unit can be
reached.
(5) Return to USACFSC or DA officials inquiries received after the
soldier has been transferred. Include a copy of his or her permanent
change of station orders.
[51 FR 7270, Mar. 3, 1986; 51 FR 8824, Mar. 14, 1986]
Sec. 513.3 Administrative and punitive actions.
(a) Considerations. Commanders will not tolerate irresponsibility,
neglect, dishonesty, or evasiveness. Failure to pay debts promptly and
honorably may require disciplinary or administrative action. If a
soldier is not trying to resolve unpaid debts promptly or complaints of
repeated failure to pay debts are received, commanders will consider--
(1) Making it a matter of permanent record (Sec. 513.3(b)).
(2) Denial of reenlistment (enlisted members) (AR 601-280).
(3) Administrative separation from the Service (AR 635-100 or AR
635-200).
(4) Punishment under the UCMJ. (See Sec. 513.1(e)(7).)
(b) Official personnel files. (1) The Army requires that all-
inclusive information of the qualifications of its soliders be on file.
This prevents selection of soldiers for positions of leadership, trust,
and responsibility whose qualifications are questionable.
(2) Documents/records created or received in connection with debt
complaints will be filed per AR 600-37 and the Army Functional Files
System (AR 340-2 and AR 340-18).
(3) The soldier may show his or her negligence, disregard, or
unwillingness to resolve the matter by repeatedly failing to pay his or
her debts. In these cases, the commander will decide whether to place a
letter of reprimand, admonition, or censure in the soldier's official
personnel files. AR 600-37, chapter 2, governs action taken to file
unfavorable information.
(4) If information does not merit filing in the soldier's official
personnel files, the commander will--
(i) Continue to monitor the situation.
(ii) Furnish further guidance and help.
(iii) Consider later action (Sec. 513.3(b)(3)) if warranted by
further evidence.
Sec. 513.4 Conditions creditors must meet before getting help in debt processing.
(a) Statutory and other regulatory requirements. (1) The Truth-in-
Lending Act, Pub. L. 90-321 (15 U.S.C. 1601), lists the general
disclosure rules that must be met by creditors. It does not cover
private parties who extend credit only rarely to help a person. (See
Sec. 513.4(f)(1)).
(2) Federal Reserve Board Regulation Z (12 CFR part 226) lists
specific disclosure rules for all credit transactions under the Truth-
in-Lending Act.
(3) Certain States have rules that may apply to credit transactions
in lieu of Federal Reserve Board Regulation Z. However, the Federal
Reserve Board must first decide if the State sets largely the same rules
and enforcement measures. States currently exempted from Regulation Z
are Connecticut, Maine, Massachusetts, Oklahoma, and Wyoming.
(4) DOD Standards of Fairness (app B) define fair and just dealings
with soldiers. DA Pam 360-520, chapter 4, contains simplified
explanations of these standards. Note that certain debt complaints are
exempt (Sec. 513.4(f)).
(5) Certificate of Compliance certifies the creditor has complied
with the full disclosure requirements of Federal or State laws and
regulations, State laws regarding contact with the employer of the
debtor, and the application of the Standards of Fairness to the consumer
credit transaction.
[[Page 60]]
(6) Full disclosure information shows what the soldier should know
about contract terms.
(7) The Fair Debt Collection Practices Act contains other conditions
a creditor must meet. (See Sec. 513.1(g)).
(b) State laws. Florida, Louisiana, Maryland, Massachusetts, New
York, North Carolina, and Wisconsin have passed laws that forbid
creditors from contacting employers. This includes commanders, unless
certain conditions are met. These conditions are the reduction of a debt
to court judgment or the written permission of a debtor. The judgment
must conform to the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended (50 U.S.C. app, section 501 et seq., (1970)) if applicable. (See
DA Pam 27-166.) Other States may enact similar laws; if they do, the
same conditions will apply. Creditors wanting to make use of the debt
processing privilege must first certify their compliance with the
relevant State's law about contact with an employer. These laws,
however, do not apply if the debtor is located in a State that has not
passed such a law.
(c) Debt processing. (1) Creditors, other than private parties
described in 513.4(f)(1), must send--
(i) A signed copy of the Certificate of Compliance with DOD
Standards of Fairness (app B) showing compliance with one of the
following:
(A) The Truth-in-Lending Act.
(B) Federal Reserve Board Regulation Z.
(C) State regulations.
(ii) A true copy of the signed contract.
(iii) The general and specific disclosure information given the
soldier before signing the contract.
(iv) A copy of a judgment or written permission from the soldier
allowing the creditor to contact his or her employer about the debt, if
applicable. (See Sec. 513.4(b)).
(v) Photocopies of actual correspondence or documentary proof
showing that every effort has been made to get payment by direct contact
with the soldier. The creditor must give the soldier a chance to answer
each inquiry. (Forty-five days for those in the contiguous 48 States and
the District of Columbia; 60 days for all others.)
(2) Foreign-owned companies having debt complaints must send--
(i) A true copy of the terms of the debt.
(ii) A certification that they have met the DOD Standards of
Fairness.
(iii) An English translation of the above (if not already in
English).
(iv) Documentation as in Sec. Sec. 513.4(c)(1) (iv) and (v).
(3) Creditors not subject to Regulation Z, such as public utility
companies, will send a certification with their request. It must state
that no interest, finance charge, or other fee exceeds that permitted by
the laws of the State in which the service was requested.
(4) Creditors not subject to the Truth-in-Lending Act must send--
(i) Legible copies of actual correspondence. (See Sec.
513.4(c)(1)(v)).
(ii) Documentary proof showing that every effort has been made to
get the payment by direct contact with the soldier.
(5) Creditors who have followed these terms may contact the
soldier's commander for help. If the commander is contacted, the
creditor must give the commander a chance to answer the inquiry. (Forty-
five days for those in the contiguous 48 States and the District of
Columbia; 60 days for all others.) If unsuccessful, after reasonable
efforts to collect the debt, creditors may request help from USACFSC. In
such cases, the information must be the same as that sent the commander.
(See Sec. 513.4(c)(6)). The request should be sent to the Commander,
USACFSC, ATTN: DACF-IS-PA, ALEX VA 22331-0522.
(6) All requests for help must include--
(i) The soldier's full name, rank, and SSN.
(ii) Date and place of birth, if SSN is not known.
(iii) The amount and date of the original debt.
(iv) The terms of payment.
(v) The balance due.
(vi) Documents described in Sec. 513.4(c) (1) through (4) which
apply.
(7) Separate letters should be written on each account for prompt
and efficient processing.
(8) Letters lacking data will be returned for added documents.
[[Page 61]]
(d) Debt complaints returned to creditors without action. Requests
for help in processing debt complaints will be returned without action
with an explanation if--
(1) Creditors did not enclose the following:
(i) Documents showing compliance with the Truth-in-Lending Act,
Federal Reserve Board Regulation Z, or State regulation.
(ii) Signed copies of the Certificate of Compliance with DOD
Standards of Fairness.
(iii) A completed copy of form with the Full Disclosure Information.
(See Sec. 513.4(a)(6).)
(iv) Signed copies of the contract.
(v) Legible copies of actual correspondence or documentary proof
showing that every effort has been made to get the payment by direct
contact with the soldier. (See Sec. 513.4(c)(1)(v).)
(2) The soldier is located in a State whose laws forbid creditors
from contacting employers.
(3) The claim is obviously false or misleading.
(4) The finance charge does not conform to the State law where the
contract is signed.
(5) A U.S. company operating overseas exceeds the lowest interest
rate of the State or States where chartered or doing business in the
United States.
(6) The contract or loan agreement provides that the debtor must pay
the creditor's attorney fees, unless the following limitations in Sec.
513.4(d)(6) (i) through (iii) are included. No attorney's fee may be
charged for services done by a salaried employee of the creditor.
(i) The fees will have to be paid only in the event of a default by
the soldier.
(ii) The fees will have to be paid only if a lawsuit is filed.
(iii) The fees will not exceed 20 percent of the amount found due.
(7) A penalty for prepayment has been charged.
(8) A charge has been made for an insurance premium without
satisfactory proof of--
(i) A policy or insurance certificate having been issued.
(ii) Delivery of a policy or certificate to the soldier within 30
days of issuance.
(9) The late charge is in excess of 5 percent of the late payment,
or $5, whichever is the lesser amount. Only one late charge may be made
for any late installment. Late charges will not be made where an
allotment has been timely filed, but payment has been delayed.
(10) The creditor has not given the soldier a chance to answer a
previous inquiry. (Forty-five days for those in the contiguous 48 States
and the District of Columbia; 60 days for all others.)
(11) The claimant is a debt collector without a court order or a
signed letter of consent by the soldier. (See Sec. 513.1(g).)
(12) The debt is covered by an order of a bankruptcy court.
(e) Cancellation of debt processing privilege. (1) Creditors who
refuse or fail repeatedly to follow these terms will be referred through
channels to the Commander, USACFSC, Attn: DACF-IS-PA, Alex, Va 22331-
0522, by the commander.
(2) The CG, USACFSC will--
(i) Cancel debt processing privileges if the queries clearly show
that the creditor is--
(A) Not conforming with this regulation.
(B) Trying to make unreasonable use of the debt processing
privilege.
(C) Trying to use the Army as a collection agency.
(ii) Inform commanders worldwide by electrical message that the debt
processing privilege of a specific creditor has been revoked.
(iii) Inform the creditor that his or her debt processing privilege
has been revoked and state the reasons for this action.
(f) Exemptions from Full Disclosure and Standards of Fairness. The
debt complaints discussed below are exempt from the Full Disclosure and
Standards of Fairness. This does not prevent the debtor from questioning
service charges and negotiating a fair and reasonable settlement.
(1) Claims from private parties selling personal items (for example,
car,
[[Page 62]]
furniture, appliances) on a one-time basis.
(2) Claims from companies or individuals giving services in which
credit is given only to help the soldier (for example, utilities, milk,
laundry, medical, and related services).
(3) Claims by endorsers, comakers, or lenders who intend only to
help the soldier in getting credit. These claims, however, may not
benefit the above through receipt of interest or otherwise.
(4) Contract for the purchase, sale, or rental of real estate.
(5) Claims in which the total unpaid amount does not exceed $50.
(6) Claims based on a revolving or open-end credit account. The
account must show--
(i) The periodic interest rate and the equivalent annual rate.
(ii) The balance to which the interest is applied to compute the
charge.
(7) Claims as security liens on real property (for example, a
house). This does not include improvements or repairs.
(8) Attorneys representing parties under Sec. 513.4(f) (1) through
(7).
Sec. 513.5 Procedures governing nonactive duty or discharged personnel.
(a) Procedures governing nonactive duty personnel. (1) Debt
complaints against former soldiers or others not on active duty will be
sent to the Commander, U.S. Army Reserve Personnel Center (ARPERCEN),
ATTN: DARP-PSE-VS, 9700 Page Boulevard, St. Louis, MO 63132-5200.
(2) After ARPERCEN verifies the status, the following officials will
act as prescribed below.
(i) Chief, National Guard Bureau, Wash DC 20310-2500, for soldiers
of the Army National Guard.
(ii) The area commander concerned for Ready Reservists assigned to
troop program units under their control. (See AR 140-1, para 1-6.)
(iii) ARPERCEN for nonunit soldiers assigned to Control Groups of
the Ready Reserve, Standby Reserve, and Retired Reserve.
(3) The officials cited in Sec. 513.5(a)(2) will ensure that debt
complaints are delivered to the person concerned, using military
channels. When the complaint cannot be delivered through military
channels, it will be sent to the last known mailing address of the
person by certified mail, using PS Form 3811 (Return Receipt,
Registered, Insured, and Certified Mail). It should be marked Return
Receipt Requested--Deliver to Addressee Only. This form is available at
U.S. post offices.
(4) After delivery of correspondence, the responsible official will
advise the claimant--
(i) Of the date and method of delivery.
(ii) That the military department does not control the personal
affairs of nonactive duty personnel. These personnel usually are in a
civilian status and are not subject to military discipline. Therefore,
the matter has been left to the person's discretion.
(iii) Of the person's mailing address only if the conditions in
Sec. 513.5(c) are met.
(b) Procedures governing discharged personnel. (1) Debt complaints
against persons who have been discharged from the service (that is,
those now holding no military status) will be sent to ARPERCEN.
(2) ARPERCEN will return the correspondence, and all accompanying
documentation, and advise the claimaint--
(i) That the person is no longer a member of the Army or the Reserve
Components.
(ii) Of the date of discharge.
(iii) That the Army no longer has control or authority over the
discharged personnel. Therefore, the Army can take no further action in
this matter.
(iv) Of the person's mailing address only if the conditions in Sec.
513.5(c) are met.
(c) Conditions for disclosing mailing address. Nonactive duty and
discharged personnel's mailing addresses will not be disclosed unless--
(1) The person consents in writing to the release of his or her
address.
(2) The claimant sends a court order directing the release of the
address.
(3) Any other reason that does not constitute a violation of the
Privacy Act of 1974.
[[Page 63]]
(d) Retired personnel. (1) The claimant may be advised that
correspondence may be sent to the retired person as follows:
(i) Place correspondence in a stamped envelope with the retired
person's name typed or printed on the envelope.
(ii) Place a stamped envelope in a second envelope and mail to
Commander, ARPERCEN, Attn: DARP-PSE-VS, 9700 Page Boulevard, St. Louis,
MO 63131-5200.
(2) ARPERCEN will forward the correspondence to the retired person,
but cannot release the address per provisions of the Privacy Act of
1974.
Sec. Appendix A to Part 513--References
Section I
Required Publications.
AR 340-2
Maintenance and Dispostion of Records in TOE Units of the Active
Army, the Army Reserve and the National Guard. (Cited in Sec.
513.3(b)(2)).
AR 340-17
Release of Information and Records from Army Files. (Cited in Sec.
513.2(a)(3)(viii)(H)).
AR 340-18
The Army Functional Files System. (Cited in Sec. 513.3(b)(2)).
AR 340-21
The Army Privacy Program. (Cited in Sec. Sec. 513.1(d)(5)(iv) and
513.2(a)(3)(viii)(H)).
AR 600-37
Unfavorable Information. (Cited in Sec. 513.3(b) (2) and (3)).
DA Pam 27-166
Soldiers' and Sailors' Civil Relief Act. (Cited in Sec. 513.4(b)).
DA Pam 360-520
Credit: Master or Servant. (Cited in Sec. Sec. 513.2(a)(3)(viii)(G)
and 513.4(a)(4)).
Uniform Code of Military Justice. (Cited in Sec. Sec.
513.1(e)(7)(iv), 513.2(a)(3)(viii)(D) and 513.3(a)(4)).
Section II
Related Publications.
A related publication is merely a source of additional information.
The user does not have to read it to understand this regulation.
AR 1-9
White House Liaison, Communications, and Inspections.
AR 11-2
Internal Control Systems.
AR 27-3
Legal Assistance.
AR 37-60
Pricing for Materiel and Services.
AR 140-1
USAR--Mission, Organization, and Training.
AR 210-24
Credit Unions.
AR 210-60
Control and Prevention of Abuse of Check Cashing Privileges.
AR 210-135
Banking Service on Army Installations.
AR 601-280
Army Reenlistment Program.
AR 608-1
Army Community Service Program.
AR 608-99
Family Support, Child Custody, and Paternity.
AR 635-100
Officer Personnel (Separations).
AR 635-200
Enlisted Personnel (Separations).
DODD 1344.9
Indebtedness of Military Personnel.
Federal Reserve Board Regulation Z Truth in Lending.
Section III
Prescribed Forms.
DA Form 4817-R
Consent/Nonconsent to Disclose Personal Information. (Cited in
Sec. Sec. 513.2(a)(3)(viii) (A) and (H), and 513.2(d)(4)(iv)).
Section IV
Referenced Forms.
DA Form 209
Delay, Referral, or Follow-Up Notice.
[[Page 64]]
PS Form 3811
Return Receipt, Registered, Insured, and Certified Mail.
Sec. Appendix B to Part 513--Standards of Fairness
B-1. No finance charge contracted for, made, or received under any
contract shall be in excess of the charge which could be made for such
contract under the law of the place in which the contract is signed in
the United States by the military member.
a. In the event a contract is signed with a U.S. company in a
foreign country, the lowest interest rate of the State or States in
which the company is chartered or does business shall apply.
b. However, interest rates and service charges applicable to
overseas military banking facilities will be established by the
Department of Defense.
B-2. No contract or loan agreement shall provide for an attorney's
fee in the event of default unless suit is filed, in which event the fee
provided in the contract shall not exceed 20 percent of the obligation
found due. No attorney fees shall be authorized if the attorney is a
salaried employee of the holder.
B-3. In loan transactions, defenses which the debtor may have
against the original lender or its agent shall be good against any
subsequent holder of the obligation. In credit transactions, defenses
against the seller or its agent shall be good against any subsequent
holder of the obligation, provided that the holder had actual knowledge
of the defense or under conditions where reasonable inquiry would have
apprised the holder of this fact.
B-4. The military member shall have the right to remove any security
for the obligation beyond State or national boundaries if the military
member or family moves beyond such boundaries under military orders and
notifies the creditor, in advance of the removal, of the new address
where the security will be located. Removal of the security shall not
accelerate payment of the obligation.
B-5. No late charge shall be made in excess of 5 percent of the late
payment, or $5 whichever is the lesser amount, or as provided by law or
applicable regulatory agency determination. Only one late charge may be
made for any tardy installment. Late charges will not be levied where an
allotment has been timely filed, but payment of the allotment has been
delayed. Late charges by overseas banking facilities are a matter of
contract with the Department of Defense. Late charges by Federal credit
unions are set at 20 percent of the interest due with a minimum of not
less than 5 cents.
B-6. The obligation may be paid in full at any time or through
accelerated payments of any amount. There shall be no penalty for
prepayment and in the event of prepayment that portion of the finance
charges which has inured to the benefit of the seller of the creditor
shall be prorated on the basis of the charges which would have been
ratably payable had finance charges been calculated and payable as equal
periodic payments over the terms of the contract and only the prorated
amount to the date of prepayment shall be due. As an alternative the
``Rule of 78'' may be applied.
B-7. If a charge is made for loan insurance protection, it must be
evidenced by delivery of a policy or certificate of insurance to the
military member within 30 days.
B-8. If the loan or contract agreement provides for payments in
installments, each payment, other than the down payment, shall be in
equal or substantially equal amounts, and installments shall be
successive and of equal or substantially equal duration.
B-9. If the security for the debt is repossessed and sold in order
to satisfy or reduce the debt, the repossession and resale will be
governed by the laws of the State in which the security is requested.
B-10. A contract for personal goods and services may be terminated
at any time before delivery of the goods or services without charge to
the purchaser. However, if goods made to the special order of the
purchaser result in preproduction costs, or require preparation for
delivery, such additional costs will be listed in the order form or
contract.
a. No termination charge will be made in excess of this amount.
Contracts for delivery at future intervals may be terminated as to the
undelivered portion.
b. The purchaser shall be chargeable only for that proportion of the
total cost which the goods or services delivered bear to the total goods
called for by the contract. (This is in addition to the right to rescind
certain credit transactions involving a security interest in real estate
provided by Pub. L. 90-321, ``Truth-in-Lending Act,'' section 125 (15
U.S.C. 1601 (1976)) and the Federal Reserve Board Regulation Z (12 CFR
part 226 and Sec. Sec. 226.3, 226.9 (1978)).
Sec. Appendix C to Part 513--Glossary
Section I--Abbreviations
ARNGUS: Army National Guard of the United States
ARPERCEN: U.S. Army Reserve Personnel Center
AUTOVON: automatic voice network
DA: Department of the Army
DOD: Department of Defense
HQDA: Headquarters, Department of the Army
[[Page 65]]
MHD: medical holding detachment
SJA: staff judge advocate
SSN: social security number
UCMJ: Uniform Code of Military Justice
USACFSC: U.S. Army Community and Family Support Center
USAEREC: U.S. Army Enlisted Records and Evaluation Center
USAFAC: U.S. Army Finance and Accounting Center
USAR: U.S. Army Reserve
U.S.C. U.S. Code
Section II--Terms
Check: A written order, usually on a standard printed form, directing a
bank or credit union to pay money.
Creditor: Any person or business that offers or extends credit, or to
whom or to which a debt is owed. This term includes lending institutions
(such as centralized charge systems) which, although not parties to the
original transactions, seek help in collecting debts.
Debt: Any legal debt acknowledged by the soldier, or in which there is
no reasonable dispute as to the facts or law, or which has been reduced
to judgment.
Debt collector: Any person or business that solely collects debts owed
to another person or business. (A debt collector is not a creditor.)
Disputed debt: Any debt, not reduced to a judgment, in which there is a
genuine dispute between the parties as to the facts or law relating to
the debt which would affect the obligation the soldier to pay.
Family member: As used in this regulation, an individual who qualifies
for dependency benefits under certain conditions as set by Army
regulations. (For example, spouse or unmarried child, to include
stepchildren, and adopted or illegitimate children.)
Judgment: Any decision given by a court of justice or other competent
tribunal as a result of proceedings instituted therein. As defined, a
judgment includes any administrative enforcement order
(Vollstreckungsanordnung) issued by the German federal post office
(Deutsche Bundespost) regarding unpaid telephone bills. Such orders come
within the coverage of this regulation regardless of where the soldier
is stationed.
Soldier: Commissioned and warrant officers and enlisted personnel.
[51 FR 7275, Mar. 3, 1986; 51 FR 8824, Mar. 14, 1986]
PART 516_LITIGATION--Table of Contents
Subpart A_General
Sec.
516.1 Purpose.
516.2 References.
516.3 Explanation of abbreviations and terms.
516.4 Responsibilities.
516.5 Restriction on contact with DOJ.
516.6 Appearance as counsel.
516.7 Mailing addresses.
Subpart B_Service of Process
516.8 General.
516.9 Service of criminal process within the United States.
516.10 Service of civil process within the United States.
516.11 Service of criminal process outside the United States.
516.12 Service of civil process outside the United States.
516.13 Assistance in serving process overseas.
516.14 Service of process on DA or Secretary of Army.
Subpart C_Reporting Legal Proceedings to HQDA
516.15 General.
516.16 Individual and supervisory procedures upon commencement of legal
proceedings.
516.17 SJA or legal adviser procedures.
516.18 Litigation alleging individual liability.
516.19 Injunctive relief.
516.20 Habeas Corpus.
516.21 Litigation against government contractors.
516.22 Miscellaneous reporting requirements.
516.23 Litigation reports.
516.24 Preservation of evidence.
516.25 DA Form 4.
516.26 Unsworn declarations under penalty of perjury.
Subpart D_Individual Liability
516.27 Scope.
516.28 Policy.
516.29 Federal statutes and regulations.
516.30 Procedures for obtaining certification and DOJ representation.
516.31 Private counsel at government expense.
516.32 Requests for indemnification.
Subpart E_Legal Proceedings Initiated by the United States Medical Care
and Property Claims
516.33 General.
516.34 Referral of medical care and property claims for litigation.
516.35 Preparation of claims for litigation.
Assertion of Other Claims
516.36 Referral to Litigation Division.
[[Page 66]]
516.37 Proceedings to repossess government real property or quarters or
to collect delinquent rent.
Subpart F_Environmental Litigation
516.38 Scope.
516.39 Duties and procedures.
Subpart G_Release of Information and Appearance of Witnesses Scope
516.40 General.
516.41 Policy.
516.42 Reference to HQDA.
Release of Records in Connection With Litigation
516.43 Release of Army and other agency records.
516.44 Determination of release authorization.
516.45 Records determined to be releasable.
516.46 Records determined not to be releasable.
DA Personnel as Witnesses in Private Litigation
516.47 Response to subpoenas, orders, or requests for witnesses.
516.48 Official information.
516.49 Expert witnesses.
516.50 Interference with mission.
Litigation in Which the United States Has an Interest
516.51 Response to subpoenas, orders, or requests for witnesses.
516.52 Expert witnesses.
516.53 News media and other inquiries.
Status, Travel, and Expenses of Witnesses
516.54 Witnesses for the United States.
516.55 Witnesses for a State or private litigant.
516.56 Witnesses before foreign tribunals.
Subpart H_Remedies in Procurement Fraud and Corruption
516.57 Purpose.
516.58 Policies.
516.59 Duties and procedures.
516.60 Procurement fraud and irregularities programs at MACOMs.
516.61 Reporting requirements.
516.62 PFD and HQ USACIDC coordination.
516.63 Coordination with DOJ.
516.64 Comprehensive remedies plan.
516.65 Litigation reports in civil recovery cases.
516.66 Administrative and contractual actions.
516.67 Overseas cases of fraud or corruption.
516.68 Program Fraud Civil Remedies Act (PFCRA).
Subpart I_Cooperation With the Office of Special Counsel
516.69 Introduction.
516.70 Policy.
516.71 Duties.
516.72 Procedures.
516.73 Assistance from HQDA.
Subpart J_Soldiers Summoned To Serve on State and Local Juries
516.74 General.
516.75 Policy.
516.76 Exemption determination authority.
516.77 Procedures for exemption.
516.78 Status, fees, and expenses.
Appendix A to Part 516--References.
Appendix B to Part 516--Mailing Addresses.
Appendix C to Part 516--Department of Defense Directive 5405.2, Release
of Official Information in Litigation and Testimony by DOD
Personnel as Witnesses.
Appendix D to Part 516--Department of Defense Directive 7050.5,
Coordination of Remedies for Fraud and Corruption Related to
Procurement Activities.
Appendix E to Part 516--Department of Defense Directive 5505.5,
Implementation of the Program Fraud Civil Remedies Act.
Appendix F to Part 516--Glossary.
Appendix G to Part 516--Figures.
Authority: 5 U.S.C. 552; 10 U.S.C. 218, 1037, 1089, 1552, 1553,
2036; 18 U.S.C. 219, 3401; 28 U.S.C. 50, 513, 515, 543; 31 U.S.C. 3729
and 41 U.S.C. 51; 42 U.S.C. 290, 2651; 43 U.S.C. 666
Source: 59 FR 38236, July 27, 1994, unless otherwise noted.
Subpart A_General
Sec. 516.1 Purpose.
(a) This part prescribes policies and procedures for the following:
(1) Defensive and affirmative litigation in Federal and state
civilian courts where the Army or DOD has an interest in the matter.
(2) Proceedings before Federal or state administrative bodies, such
as utility rate commissions.
(3) Release of official information and testimony by DA personnel
with regard to litigation.
(4) Remedies for procurement fraud and corruption.
(5) Environmental civil litigation and administrative proceedings.
(6) Proceedings before the Office of Special Counsel.
[[Page 67]]
(b) This regulation does not apply to DA or DOD proceedings such as
courts-martial or administrative boards.
Sec. 516.2 References.
Applicable publications and forms are listed in appendix A to this
part.
Sec. 516.3 Explanation of abbreviations and terms.
(a) The Glossary contains explanations of abbreviations and terms.
(b) The masculine gender has been used throughout this regulation
for simplicity and consistency. Any reference to the masculine gender is
intended to include women.
Sec. 516.4 Responsibilities.
(a) United States Department of Justice (DOJ). DOJ will defend
litigation in domestic and foreign courts, against the United States,
its agencies and instrumentalities, and employees whose official conduct
is involved. The various U.S. Attorney Offices, under the oversight of
the Attorney General, will conduct much of the representation.
(b) The Judge Advocate General (TJAG). Subject to the ultimate
control of litigation by DOJ (including the various U.S. Attorney
Offices), and to the general oversight of litigation by the Army General
Counsel, TJAG is responsible for litigation in which the Army has an
interest except with respect to proceedings addressed in paragraph (i)
of this section, only TJAG (or Chief, Litigation Division) will
communicate to DOJ the army's position with regard to settlement of a
case.
(c) Assistant Judge Advocate General For Civil Law and Litigation
(AJAG-CL). Responsible to TJAG for litigation issues; supervises Chief,
Litigation Division.
(d) Chief, Litigation Division. Reports to AJAG-CL and is
responsible for the following:
(1) Supervising litigation in which the Army has an interest.
(2) Acting for TJAG and Secretary of the Army on litigation issues,
including the authority to settle or compromise cases, subject to the
supervision of TJAG and AJAG-CL.
(3) Delegating cases if appropriate.
(4) Serving as primary contact with DOJ on litigation.
(5) Accepting service of process for DA and for the Secretary of the
Army in his official capacity. See 32 CFR Sec. 257.5).
(e) Special Assistant U.S. Attorneys (SAUSAs) and DOJ Special
Attorneys. Army judge advocates and civilian attorneys, when appointed
as SAUSAs under 28 U.S.C. 543, will represent the Army's interests in
either criminal or civil matters in Federal court under the following
circumstances:
(1) Felony and misdemeanor prosecutions in Federal court. Army
attorneys, at the installation level, after being duly appointed (See AR
27-10), will prosecute cases, in which the Army has an interest, in
Federal court. Army attorneys who prosecute criminal cases will not
represent the United States in civil litigation without authorization
from Chief, Litigation Division.
(2) SAUSAs for civil litigation. By assignment of TJAG and upon the
approval of the U.S. Attorney, Judge Advocates will serve within a U.S.
Attorney's office to represent the government in litigation in which the
Army or DOD has an interest. These Judge Advocates have the same general
authority and responsibility as an Assistant U.S. Attorney.
(3) Special Attorneys assigned to DOJ. By assignment of TJAG and
with the concurrence of the appropriate DOJ official, Judge Advocates
will work as Special Attorneys for DOJ. Special Attorneys are authorized
to represent the United States in civil litigation in which the Army or
DOD has an interest.
(f) Attorneys at Army activities or commands. SJAs or legal
advisers, or attorneys assigned to them, will represent the United
States in litigation only if authorized by this regulation or delegated
authority in individual cases by the Chief, Litigation Division.
(g) Commander, U.S. Army Claims Service (USARCS). The Commander,
USARCS, and USARCS attorneys, subject to AR 27-20, Chapter 4, will
maintain direct liaison with DOJ in regard to administrative settlement
of claims under the Federal Tort Claims Act.
[[Page 68]]
(h) Chief, Contract Law Division, OTJAG. The Chief, Contract Law
Division, attorneys assigned to the Contract Law Division, and other
attorneys designated by the Chief, Contract Law Division, in litigation
involving taxation, will represent DA in negotiation, administrative
proceedings, and litigation, and maintain liaison with DOJ and other
governmental authorities.
(i) Legal Representatives of the Chief of Engineers. The Office of
Chief Counsel, attorneys assigned thereto, and other attorneys
designated by the Chief Counsel will maintain direct liaison with DOJ
and represent DA in litigation and administrative proceedings a rising
from the navigation, civil works, Clean Water Act 404 permit authority,
environmental response activities, and real property functions of the
U.S. Army Corps of Engineers.
(j) Chief Trial Attorney, Contract Appeals Division, USALSA. The
Chief Trial Attorney, attorneys assigned to the Contract Appeals
Division, and attorneys designated by the Chief Trial Attorney will
represent the government before the Armed Services Board of Contract
Appeals and the General Services Board of Contract Appeals. They will
maintain direct liaison with DOJ concerning appeals from ASBCA and GSBCA
decisions. The Chief Trial Attorney has designated COE attorneys to act
as trial attorneys in connection with COE contract appeals.
(k) Chief, Regulatory Law Office, USALSA. The Chief, Regulatory Law
Office, attorneys assigned to the Regulatory Law Office, and other
attorneys designated by the Chief, will represent DA consumer interests
in regulatory matters before state and Federal administrative agencies
and commissions, including but not limited to proceedings involving
rates and conditions for the purchase of services for communications
(except long-distance telephone), transportation, and utilities (gas,
electric, water and sewer). They will maintain direct liaison with DOJ
for communications, transportation, and utilities litigation.
(l) Chief, Intellectual Property Law Division, USALSA. The Chief,
Intellectual Property Law Division, and the attorneys assigned thereto
will represent DA in matters pertaining to patents, copyrights, and
trademarks. They will maintain direct liaison with DOJ concerning
intellectual property issues.
(m) Chief, Labor and Employment Law Office, OTJAG. The Chief, Labor
and Employment Law Office, attorneys assigned thereto, and attorneys
identified as labor counselors will represent DA in matters pertaining
to labor relations, civilian personnel, and Federal labor standards
enforcement before the following: Federal Labor Relations Authority;
Merit Systems Protection Board; Equal Employment Opportunity Commission;
Department of Labor; National Labor Relations Board; and, state
workmen's compensation commissions. In the event any individual
mentioned in this subparagraph intends to make a recommendation to DOJ
concerning an appeal of any case to a U.S. Court of Appeals, such
recommendation will first be coordinated with Litigation Division.
(n) Chief, Procurement Fraud Division, USALSA. The Chief,
Procurement Fraud Division, attorneys assigned thereto, and other
attorneys designated by the Chief will represent DA in all procurement
fraud and corruption matters before the Army suspension and debarment
authority and before any civil fraud recovery administrative body. They
will maintain liaison and coordinate remedies with DOJ and other
agencies in matters of procurement fraud and corruption.
(o) Chief, Environmental Law Division, USALSA. The Chief,
Environmental Law Division, attorneys assigned thereto, and other
attorneys designated by the Chief, ELD, will maintain direct liaison
with DOJ and represent DA in all environmental and natural resources
civil litigation and administrative proceedings involving missions and
functions of DA, its major and subordinate commands, installations
presently or previously managed by DA, and other sites or issues in
which DA has a substantial interest, except as otherwise specifically
provided in this part.
(p) Chief, Criminal Law Division, OTJAG. The Chief, Criminal Law
Division, will have general oversight of felony and magistrate court
prosecutions
[[Page 69]]
conducted by Army lawyers acting as Special Assistant U.S. Attorneys.
(See subpart G of this part). The Chief will coordinate with DOJ and
other governmental agencies concerning the overall conduct of these
prosecutions.
[59 FR 38236, July 27, 1994; 59 FR 45974, Sept. 6, 1994]
Sec. 516.5 Restriction on contact with DOJ.
(a) General rule. Except as authorized by TJAG, the General Counsel,
the Chief of Litigation Division, or this regulation, no Army personnel
will confer or correspond with DOJ concerning legal proceedings in which
the Army has an interest.
(b) Exceptions. This prohibition does not preclude contact with DOJ
required by the Memorandum of Understanding between DOJ and DOD relating
to the investigation and prosecution of certain crimes. (See AR 27-10,
para 2-7). In addition, an installation SJA or legal adviser is expected
to maintain a working relationship with the U.S. Attorney in each
district within his geographical area. An SJA or legal adviser should
request the U.S. Attorney to advise him immediately when litigation
involving DA or its personnel is served on the U.S. Attorney.
[59 FR 38236, July 27, 1994; 59 FR 45974, Sept. 6, 1994]
Sec. 516.6 Appearance as counsel.
(a) General. Military personnel on active duty and DA civilian
personnel will not appear as counsel before any civilian court or in any
preliminary proceeding, for example, deposition, in litigation in which
the Army has an interest without the prior written approval of TJAG,
except under the following conditions:
(1) The appearance is authorized by this regulation.
(2) The individual is a party to the proceeding.
(3) The appearance is authorized under an expanded legal assistance
program (See AR 27-3).
(4) The individual is a judge advocate assigned or detailed by TJAG
to DOJ to represent the United States in civil or criminal cases, for
example, a Special Assistant U.S. Attorney, or an attorney assigned to
Litigation Division.
(b) Procedure. All requests for appearance as counsel will be made
through Litigation Division to the Personnel, Plans and Training Office,
OTJAG. Requests for DA military or civilian attorneys to appear in any
civilian court or proceeding on behalf of a soldier who is also facing
UCMJ action will be delivered to the SJA, legal adviser, or Regional
Defense Counsel, as appropriate. The SJA or legal adviser will forward
the request to Litigation Division with an evaluation of the case and
recommendation. Regional Defense Counsel should send requests for USATDS
counsel to Chief, USATDS, who will forward the request to Litigation
Division. Privileged or otherwise sensitive client information should
only be submitted through USATDS channels.
Sec. 516.7 Mailing addresses.
Mailing addresses for organizations referenced in this regulation
are in appendix B to this part.
Subpart B_Service of Process
Sec. 516.8 General.
(a) Defined. Process is a legal document that compels a defendant in
an action to appear in court or to comply with the court's demands, for
example, in a civil case a summons or subpoena, or in a criminal case, a
warrant for arrest, indictment, contempt order, subpoena, or summons.
Service of process is the delivery of the document to a defendant to
notify him of a claim or charge against him.
(b) Policy. DA personnel will follow the guidance of this chapter
when civil officials attempt to serve civil or criminal process on
individuals on Federal property.
(c) Procedures. Provost marshals shall ensure that installation law
enforcement personnel are adequately trained to respond to situations
which arise with regard to service of civil and criminal process. SJAs
or legal advisers shall provide guidance to law enforcement personnel in
these matters.
[[Page 70]]
Sec. 516.9 Service of criminal process within the United States.
(a) Surrender of personnel. Guidance for surrender of military
personnel to civilian law enforcement officials is in Chapter 7 of AR
630-10 and AR l90-9. Army officials will cooperate with civilian law
enforcement authorities who seek the surrender of a soldier in
connection with criminal charges. Special rules apply when a bail
bondsman or other surety seeks custody of a soldier.
(b) Requests for witnesses or evidence in criminal proceedings. See
subpart G to this part.
[59 FR 38236, July 27, 1994; 59 FR 45975, Sept. 6, 1994]
Sec. 516.10 Service of civil process within the United States.
(a) Policy. DA officials will not prevent or evade the service or
process in legal actions brought against the United States or against
themselves in their official capacities. If acceptance of service of
process would interfere with the performance of military duties, Army
officials may designate a representative to accept service. DA personnel
sued in their individual capacity should seek legal counsel concerning
voluntary acceptance of process.
(b) Request for witnesses or evidence in civil proceedings. See
subpart G to this part.
(c) Process of Federal courts. Subject to reasonable restrictions
imposed by the commander, civil officials will be permitted to serve
Federal process. (See Fed. R. Civ. P. 4, 45).
(d) Process of state courts.
(1) In areas of exclusive Federal jurisdiction that are not subject
to the right to serve state process, the commander or supervisor will
determine whether the individual to be served wishes to accept service
voluntarily. A JA or other DA attorney will inform the individual of the
legal effect of voluntary acceptance. If the individual does not desire
to accept service, the party requesting service will be notified that
the nature of the exclusive Federal jurisdiction precludes service by
state authorities on the military installation.
(2) On Federal property where the right to serve process is reserved
by or granted to the state, in areas of concurrent jurisdiction, or
where the United States has only a proprietary interest, Army officials
asked to facilitate service of process will initially proceed as
provided in the preceding subparagraph. If the individual declines to
accept service, the requesting party will be allowed to serve the
process in accordance with applicable state law, subject to reasonable
restrictions imposed by the commander.
(e) Process of foreign courts. A U.S. District Court may order
service upon a person who resides in the judicial district of any
document issued in connection with a proceeding in a foreign or
international tribunal. (28 U.S.C. 1696). In addition, the U.S. State
Department has the power to receive a letter rogatory issued by a
foreign or international tribunal, to transmit it to a tribunal, officer
or agency in the United States, and to return it after execution. (28
U.S.C. 1781). Absent a treaty or agreement to the contrary, these
provisions will govern.
(f) Seizure of personal property. State and Federal courts issue
orders (for example, writ of attachment) authorizing a levy (seizure) of
property to secure satisfaction of a judgment. DA personnel will comply
with valid state or Federal court orders commanding or authorizing the
seizure of private property to the same extent that state or Federal
process is served.
[59 FR 38236, July 27, 1994; 59 FR 45975, Sept. 6, 1994]
Sec. 516.11 Service of criminal process outside the United States.
Army Regulation 630-10 and international treaties, such as status of
forces agreements, govern the service of criminal process of foreign
courts and the surrender of soldiers to foreign civilian law enforcement
officials.
Sec. 516.12 Service of civil process outside the United States.
(a) Process of foreign courts. In foreign countries service of
process issued by foreign courts will be made under the law of the place
of service, as modified by status of forces agreements, treaties or
other agreements. In foreign areas under exclusive U.S. jurisdiction,
service of process issued by
[[Page 71]]
foreign courts will be made under the law specified by appropriate U.S.
authority.
(b) Process of Federal courts. Service of process on U.S. citizens
or residents may be accomplished under the following provisions: The
Hague Convention, reprinted in 28 USCA Federal Rules of Civil Procedure,
following Rule 4; Fed. R. Civ. P. 4(i); 28 USC 1781 and 1783; and, the
rules of the Federal court concerned. If a DA official receives a
request to serve Federal process on a person overseas, he will determine
if the individual wishes to accept service voluntarily. Individuals will
be permitted to seek counsel. If the person will not accept service
voluntarily, the party requesting service will be notified and advised
to follow procedures prescribed by the law of the foreign country
concerned.
(c) Process of state courts. If a DA official receives a request to
serve state court process on a person overseas, he will determine if the
individual wishes to accept service voluntarily. Individuals will be
permitted to seek counsel. If the person will not accept service
voluntarily, the party requesting service will be notified and advised
to follow procedures prescribed by the law of the foreign country
concerned. (See, for example, The Hague Convention, reprinted in 28 USCA
Federal Rules of Civil Procedure, following Rule 4).
(d) Suits against the United States. DA personnel served with
foreign civil process will notify the appropriate SJA or legal adviser,
who will return the document to the issuing authority explaining the
lack of authority to accept service for the United States. Service on
the United States must be made upon DOJ through established diplomatic
channels.
Sec. 516.13 Assistance in serving process overseas.
(a) Europe. For information and assistance concerning service of
process of persons assigned to or accompanying U.S. Forces in Europe,
contact the Foreign Law Branch, International Law Division, Office of
The Judge Advocate, Headquarters U.S. Army, Europe, and Seventh Army,
Unit 29351, (Heidelberg, Germany) APO AE 09014.
(b) Korea. For information and assistance concerning service of
process of persons assigned to or accompanying U.S. Forces in Korea,
contact Staff Judge Advocate, US Forces Korea (Seoul, Republic of
Korea), APO AP 96205.
(c) Panama, Central and South America. For information and
assistance concerning service of process of persons assigned to or
accompanying forces in the U.S. Army Southern Command, contact Staff
Judge Advocate, HQ, US Army South, Fort Clayton, Panama, APO AA 34004-
5000.
Sec. 516.14 Service of process on DA or Secretary of Army.
The Chief, Litigation Division, shall accept service of process for
Department of the Army or for the Secretary of the Army in his official
capacity.
Subpart C_Reporting Legal Proceedings to HQDA
Sec. 516.15 General.
(a) Legal proceedings requiring reporting. Actions must be taken
upon commencement of litigation or administrative proceedings in which
the United States has an interest. Typically, the Secretary of the Army,
DA, the United States, or DA personnel are named as defendant in a
lawsuit or as respondent in an administrative proceeding. A nonexclusive
listing of cases in which the United States has an interest include the
following:
(1) Suits for damages, injunctive relief, or other action filed
against the government or against DA personnel in their official
capacity.
(2) Suits alleging individual liability arising from performance of
official duties by DA personnel.
(3) Actions affecting DA operations or activities or which might
require official action by DA personnel.
(4) Actions arising out of DA contracts, subcontracts, or purchase
orders wherein the government might be required to reimburse a
contractor for litigation expenses.
(5) Bankruptcy proceedings in which the United States or its
instrumentalities may have an interest, including bankruptcies involving
government contractors.
[[Page 72]]
(b) Command and agency responsibility. Commanders and supervisors of
Army units, installations, or organizations will ensure reports required
by this section are promptly submitted.
(c) Reports to HQDA. Reports required by this regulation will be
made telephonically or mailed to the responsible organization at DA.
Appendix B to this part contains mailing addresses for these offices.
Except in the situations described below, reports required by this
chapter will be made to Litigation Division:
(1) Actual or potential litigation (or administrative infringement
claims) involving patents, copyrights, or trademarks will be made to
Intellectual Property Law Division.
(2) Reports of pending or prospective litigation involving taxation
will be made to Contract Law Division.
(3) Communications, transportation, and utility services reports
will be made to Regulatory Law Office.
(4) Reports involving environmental and natural resource litigation
and administrative proceedings will be made to Environmental Law
Division.
(5) Potential civil recovery reports in cases of procurement fraud
and corruption will be made to Procurement Fraud Division.
(6) Reports involving the felony prosecution program and magistrate
court prosecutions will be made to Criminal Law Division, OTJAG.
(7) Cases before the Armed Services Board of Contract Appeals and
the General Services Board of Contract Appeals will be made to Contract
Appeals Division.
(d) Classified information. Information required by this regulation
will be submitted in an unclassified form if possible. If downgrading or
declassification is not feasible, the classified material should be
separated from the report and forwarded under separate cover.
(e) Other reporting requirements. Reports required by this chapter
are in addition to and do not satisfy any other reporting requirement,
such as the following: notifying the FBI of offenses pursuant to AR 27-
10; submitting serious incident reports pursuant to AR 190-40; reporting
procurement fraud or other irregularities per Defense Federal
Acquisition Regulation Supplement, section 209.406-3 (48 CFR 209.406-3);
reporting the exercise of criminal jurisdiction by foreign tribunals
over U.S. personnel pursuant to AR 27-50; or, reporting bankruptcies per
AR 37-103.
(f) Reports control exemption. The reports required herein are
exempt from reports control under AR 335-15, paragraphs 3-3a(5) and 5-
2e(4).
Sec. 516.16 Individual and supervisory procedures upon commencement of legal proceedings.
(a) Individual procedures. DA personnel served with civil or
criminal process concerning a proceeding in which the United States has
an interest (Sec. 516.15) will immediately inform their supervisor and
furnish copies of process and pleadings. There is no requirement to
notify supervisors of purely private litigation.
(b) Supervisory procedures. When supervisors learn that legal
proceedings in which the United States has an interest have commenced,
the supervisor will forward a copy of all process and pleadings, along
with other readily available information, to the SJA or legal adviser.
If no legal officer is available locally, the documents will be
forwarded to the SJA or legal adviser of the next higher headquarters.
Sec. 516.17 SJA or legal adviser procedures.
(a) Immediate notice to HQDA. When an SJA or legal adviser learns of
litigation in which the United States has an interest, and it appears
that HQDA is not aware of the action, the SJA or legal adviser will
telephonically notify the responsible HQDA office. (See Sec.
516.15(c)). Immediate notice is particularly important when litigation
involves one of the following: a lawsuit against an employee in his
individual capacity; a motion for a temporary restraining order or
preliminary injunction; a habeas corpus proceeding; a judicial or
administrative proceeding involving less than 60 days to file an answer;
and, actions with possible Congressional, Secretarial, or Army Staff
interest. For legal proceedings instituted in foreign tribunals, the SJA
or legal adviser will also notify the major
[[Page 73]]
overseas commander concerned and the appropriate U.S. Embassy or
Legation. A telephonic report to HQDA should include the following:
(1) Title or style of the proceeding.
(2) Full names and addresses of the parties.
(3) Tribunal in which the action is filed, date filed, docket
number, when and on whom service of process was made, and date by which
pleading or response is required.
(4) Nature of the action, amount claimed or relief sought.
(5) Reasons for immediate action.
(b) Transmission of process, pleadings, and related papers. Unless
instructed otherwise by HQDA, the SJA or legal adviser will FAX or mail
HQDA a copy of all process, pleadings, and related papers. Use of
express mail or overnight delivery service is authorized.
(c) Notice to U.S. Attorney. If the legal proceeding is instituted
in the United States, the SJA or legal adviser, unless instructed
otherwise by HQDA, will notify the appropriate U.S. Attorney and render
assistance as required.
Sec. 516.18 Litigation alleging individual liability.
See subpart D for procedures to follow when DA personnel, as a
result of performance of official duties, are either sued in their
individual capacities or face criminal charges.
Sec. 516.19 Injunctive relief.
(a) General. Plaintiffs may attempt to force government action or
restraint in important operational matters or pending personnel actions
through motions for temporary restraining orders (TRO) or preliminary
injunctions (PI). Because these actions can quickly impede military
functions, immediate and decisive action must be taken.
(b) Notification to HQDA and U.S. Attorney. The SJA or legal adviser
will immediately notify Litigation Division or other appropriate office
at HQDA when a motion for TRO or PI has been, or is about to be, filed.
The SJA or legal adviser will also notify the responsible U.S. Attorney.
(c) Actions by SJA or legal adviser. The SJA or legal adviser will
assist the DOJ or DA attorney responsible for the litigation.
Installation attorneys or support personnel should begin accumulating
relevant documentary evidence and identifying witnesses. If requested,
installation attorneys will prepare a legal memorandum concerning the
motion, giving particular attention to the following issues relevant to
a court granting injunctive relief:
(1) Plaintiff's likelihood of success on the merits.
(2) Whether plaintiff will be irreparably harmed if injunctive
relief is not granted.
(3) Harm to defendant and other parties if injunctive relief is
granted.
(4) The public interest.
Sec. 516.20 Habeas Corpus.
(a) General. A soldier may file a writ of habeas corpus to challenge
his continued custody (usually in a post court-martial situation) or
retention in the Army. As is the case with injunctive relief in the
preceding paragraph, installation SJAs and legal advisers must take
immediate action.
(b) Notification to Litigation Division and U.S. Attorney. The SJA
or legal adviser will notify Litigation Division and the responsible
U.S. Attorney's Office immediately upon learning that a petition for
writ of habeas corpus has been filed. All relevant documentary evidence
supporting the challenged action should be assembled immediately.
(c) Procedures in habeas corpus. Upon the filing of a petition for a
writ of habeas corpus, the court will dismiss the petition, issue the
writ, or order the respondent to show cause why it should not be
granted. If a writ or order to show cause is issued, the SJA or legal
adviser should be prepared to assist the responsible Litigation Division
or DOJ attorney in preparing a return and answer. If so directed, the
SJA will also prepare a memorandum of points and authorities to
accompany the return and answer. The government's response should cover
the following: whether the Army has custody of petitioner; whether
respondent and petitioner are within the judicial district; and, whether
appellate or administrative remedies have been exhausted.
[[Page 74]]
(d) Writs or orders issued by state courts. No state court, after
being judicially informed that a petitioner is in custody under the
authority of the United States, should interfere with that custody or
require that petitioner be brought before the state court. A deserter,
apprehended by any civil officer having authority to apprehend offenders
under the laws of the United States or of any state, district,
territory, or possession of the United States, is in custody by
authority of the United States. If a writ of habeas corpus is issued by
a state court, the SJA or legal adviser will seek guidance from
Litigation Division.
(e) Foreign court orders. A foreign court should not inquire into
the legality of restraint of a person held by U.S. military authority.
If a foreign court issues any process in the nature of a writ of habeas
corpus, the SJA or legal adviser will immediately report the matter to
the appropriate U.S. forces commander and to Litigation Division.
Sec. 516.21 Litigation against government contractors.
(a) General. A contract might require that the government reimburse
a contractor (or subcontractor) for adverse judgments or litigation
expenses. Unless a contractor or subcontractor facing a lawsuit requests
representation by DOJ, the Army presumes the contractor will obtain
private counsel to defend the case. If the contract so allows, however,
the contractor may request and HQDA may recommend that DOJ represent the
contractor if it is in the best interests of the United States.
(b) Actions by SJA or legal adviser. If a contractor or
subcontractor faces litigation and the underlying contract with the
government requires reimbursement for adverse judgments or costs of the
litigation, the SJA or legal adviser, through the contracting officer,
should determine if the contractor desires representation by DOJ. If so,
the contractor or authorized agent will sign a request for
representation. (See figure D-3, appendix G, of this part.) The SJA or
legal adviser will determine whether, in his opinion, representation by
DOJ should be granted. He will prepare a memorandum to support his
recommendation, especially concerning any issue regarding the
government's obligation to reimburse the contractor under the contract.
The SJA or legal adviser will forward his memorandum, along with the
contractor's request, to Litigation Division.
(c) Actions by Litigation Division. The Chief, Litigation Division,
will evaluate the submission and decide if it is in the Army's best
interest that the request be granted. He will prepare a memorandum
supporting his decision and send the packet to DOJ. The Chief's decision
constitutes the final DA position on the matter. If DOJ grants the
contractor's request, the Chief, Litigation Division, will ensure that
the contractor is notified through the SJA or legal adviser and the
contracting officer.
(d) Private Counsel. A contractor represented by DOJ may ask that
private counsel assist the DOJ attorney in the litigation. The DOJ
attorney will remain in control of the litigation, and the fees for
private counsel will not be reimbursable except under unusual
circumstances. The contractor must seek both DOJ and DA approval to
employ private counsel when DOJ representation has been granted. Even if
DOJ and DA grant authority to employ private counsel, the contracting
officer will determine whether a contractor will be reimbursed under the
contract for private counsel.
(e) Settlement. The contractor, unless the contract specifies
otherwise, will ultimately decide whether to compromise a suit.
Reimbursement under the contract is determined by the contracting
officer, with the advice of his attorney.
Sec. 516.22 Miscellaneous reporting requirements.
SJAs or legal advisers will comply with the directives cited below
concerning actual or prospective litigation involving the following
types of cases:
(a) Taxation.
(1) Contractor transactions. (FAR and DFARS, 48 CFR parts 29 and
229).
(2) Army and Air Force Exchange Service (AAFES) activities. (AR 60-
20).
(3) Purchase or sale of alcoholic beverages. (AR 215-2).
(4) Nonappropriated fund and related activities. (AR 215-1).
[[Page 75]]
(b) Tort and contract claims, insurance and litigation involving
nonappropriated fund activities. (AR 215-1).
(c) Annexation of Army lands. (AR 405-25).
(d) Communications, transportation, and utility services
administrative proceedings. Any contracting officer or other Army
official responsible for the acquisition of communications,
transportation, utilities (gas, electric, water and sewer), or military
mail services, who becomes aware of any action or proceeding of interest
to the Army, will promptly refer the matter to the SJA or legal adviser,
who will take the actions prescribed in Sec. 516.17 of this part.
Examples of actions requiring referral follow: new or amended rates,
regulations, or conditions of service; applications for authority to
discontinue or initiate service; changes in electromagnetic patterns
causing adverse communications interference; or, zoning proposals
affecting historic or aesthetic preservation. In addition, the SJA or
legal adviser will transmit the following to Regulatory Law Office:
(1) The names and addresses of any parties intervening and the
substance of their positions.
(2) Names of government users affected by any change.
(3) Copy of any proposed rates, rules, or regulations.
(4) A recommendation whether the Army should intervene in the action
or proceeding. If intervention is recommended, provide a memorandum to
support the recommendation.
(e) Legal proceedings overseas. Foreign communications,
transportation, and utility service proceedings need not be reported. In
other legal proceedings instituted in a foreign country, the SJA or
legal adviser will take the actions prescribed in Sec. 516.17 of this
part.
(f) Maritime claims. Admiralty and maritime claims within the
purview of Chapter 8, AR 27-20, which have been investigated and
processed under AR 55-19 or other applicable regulations, will be
referred to USARCS.
(g) Army and Air Force Exchange Service litigation. The SJA or legal
adviser will send a copy of all documents relating to litigation against
AAFES to General Counsel, AAFES, P.O. Box 660202, Dallas, TX 75266-0202.
(h) Bankruptcy. Reports of bankruptcy or insolvency proceedings
shall be made in accordance with this regulation and AR 37-103.
Sec. 516.23 Litigation reports.
The SJA or legal adviser will prepare a litigation report when
directed by HQDA. The report will contain the following sections:
Statement of Facts; Setoff or Counterclaim; Responses to Pleadings;
Memorandum of Law; Witness List; and, Exhibits.
(a) Statement of Facts. Include a complete statement of the facts
upon which the action and any defense thereto are based. Where possible,
support facts by reference to documents or witness statements. Include
details of previous administrative actions, such as the filing and
results of an administrative claim. If the action is predicated on the
Federal Tort Claims Act, include a description of the plaintiff's
relationship to the United States, its instrumentalities, or its
contractors. Also include a statement whether an insurance company or
other third party has an interest in the plaintiff's claim by
subrogation or otherwise and whether there are additional claims related
to the same incident.
(b) Setoff or Counterclaim. Discuss whether setoff or counterclaim
exists. If so, highlight the supportive facts.
(c) Responses to Pleadings. Prepare a draft answer or other
appropriate response to the pleadings. (See figure C-1, to this part).
Discuss whether allegations of fact are well-founded. Refer to evidence
that refutes factual allegations.
(d) Memorandum of Law. Include a brief statement of the applicable
law with citations to legal authority. Discussions of local law, if
applicable, should cover relevant issues such as measure of damages,
scope of employment, effect of contributory negligence, or limitations
upon death and survival actions. Do not unduly delay submission of a
litigation report to prepare a comprehensive memorandum of law.
(e) Potential witness information. List each person having
information
[[Page 76]]
relevant to the case and provide an office address and telephone number.
If there is no objection, provide the individual's social security
account number, home address, and telephone number. This is ``core
information'' required by Executive Order No. 12778 (Civil Justice
Reform). Finally, summarize the information or potential testimony that
each person listed could provide.
(f) Exhibits.
(1) Attach a copy of all relevant documents. This is ``core
information'' required by Executive Order No. 12778 (Civil Justice
Reform). Unless otherwise directed by HQDA, each exhibit should be
tabbed and internally paginated. References to exhibits in the
litigation report should be to page numbers of particular exhibits.
(2) Copies of relevant reports of claims officers, investigating
officers, boards or similar data should be attached, although such
reports will not obviate the requirement for preparation of a complete
litigation report.
(3) Prepare an index of tabs and exhibits.
(4) Where a relevant document has been released pursuant to a FOIA
request, provide a copy of the response, or otherwise identify the
requestor and the records released.
(g) Distribution and number of copies. Unless HQDA directs
otherwise, SJAs or legal advisers will mail (first class) an original
and one copy of the litigation report to the responsible HQDA office
(See Sec. 516.15 of this part) and one copy to the U.S. Attorney's
Office handling the case. If possible, record the litigation report onto
a magnetic diskette, using either WordPerfect, Enable, or ACSII, and
send it to Litigation Division.
Sec. 516.24 Preservation of evidence.
Because documents needed for litigation or administrative
proceedings are subject to routine destruction, the SJA or legal adviser
will ensure that all relevant documents are preserved.
Sec. 516.25 DA Form 4.
(a) General. The DA Form 4 (See figure C-2, appendix G, of this
part) is used to authenticate Army records or documents. Documents
attached to a properly prepared and sealed DA Form 4 are self-
authenticating. (See Fed. R. Evid. 902).
(b) Preparation at the installation level. A DA Form 4 need not be
prepared until the trial attorney presenting the government's case
identifies documents maintained at the installation level which he will
need at trial. Once documents are identified, the custodian of the
documents will execute his portion of the DA Form 4. (See figure C-2,
appendix G, of this part). The custodian certifies that the documents
attached to the DA Form 4 are true copies of official documents.
Documents attached to each form should be generally identified; each
document need not be mentioned specifically. Only the upper portion of
the form should be executed at the local level.
(c) Actions at HQDA. Upon receipt of the DA Form 4 with documents
attached thereto, HQDA will affix a ribbon and seal and deliver it to
the Office of the Administrative Assistant to the Secretary of the Army.
That office will place the official Army seal on the packet.
Sec. 516.26 Unsworn declarations under penalty of perjury.
(a) General. Under the provisions of 28 U.S.C. l746, whenever any
matter is required or permitted to be established or proven by a sworn
statement, oath or affidavit, such matter may also be established or
proven by an unsworn written declaration under penalty of perjury.
Because such declaration does not require a notary or other official to
administer oaths, individuals preparing statements for use in litigation
should consider using this format. (See figure C-3, appendix G, of this
part).
(b) When executed within the United States. Place the following at
the end of the witness statement:
I declare under penalty of perjury that the foregoing is true and
correct. (28 U.S.C. 1746).
Executed on
________________________________________________________________________
(Date) (Signature)
(c) When executed outside the United States. Place the following at
the end of the witness statement:
I declare under penalty of perjury under the laws of the United
States of America
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that the foregoing is true and correct. (28 U.S.C. 1746).
Executed on
________________________________________________________________________
(Date) (Signature)
Subpart D_Individual Liability
Sec. 516.27 Scope.
This subpart guidance when DA personnel, as a result of the
performance of their official duties, are either sued in their personal
capacity, or are charged in a criminal proceeding. Examples of civil
actions alleging individual liability include the following: a medical
malpractice lawsuit against health care providers; suits resulting from
motor vehicle accidents; constitutional torts; or, common law torts such
as assault, libel, or intentional infliction of emotional distress.
Likewise, state or Federal criminal charges can arise from the
performance of official duties, including environmental crimes or motor
vehicle accidents.
Sec. 516.28 Policy.
(a) General. Commanders, supervisors, and SJAs or legal advisers
will give highest priority to compliance with the requirements of this
chapter with regard to current or former DA personnel who face criminal
charges or civil litigation in their individual capacity as a result of
performance of their official duties.
(b) DOJ policy on representation. If in the best interest of the
United States, upon request of the individual concerned, and upon
certification by his agency that he was acting within the scope of his
employment, DOJ may represent present and former DA personnel sued
individually as a result of actions taken within the scope of their
employment. Representation can be declined for a variety of reasons,
including but not limited to the following: the employee was not acting
within the scope of his office; there is a conflict of interest; or,
actions were not taken in a good faith effort to conform to law.
Sec. 516.29 Federal statutes and regulations.
(a) Federal Tort Claims Act (FTCA). (28 U.S.C. 1346(b), 2671-2680).
A waiver of sovereign immunity which, with certain exceptions, makes the
United States liable for tort claims in the same manner as a private
individual.
(b) Federal Employees Liability Reform and Tort Compensation Act of
l988 (FELRTCA or the Westfall Act, Pub. L. No. 100-694, 102 Stat. 4563
(1988) (codified at and amending 28 U.S.C. 2671, 2674, 2679). FELRTCA,
by amending the Federal Tort Claims Act, makes the FTCA the exclusive
remedy for common law tort claims arising from actions taken by Federal
employees acting within the scope of employment. The law was passed to
eliminate problems caused by Westfall v. Erwin, 484 U.S. 292 (1988).
(c) 10 U.S.C. 1089 (Defense of certain suits arising out of medical
malpractice). This provision, commonly referred to as the Gonzales Act,
makes the FTCA the exclusive remedy for suits alleging medical
malpractice against a military health care provider.
(d) 28 CFR 50.15 (Representation of Federal officials and employees
by Department of Justice attorneys [. . .] in civil, criminal, and
congressional proceedings in which Federal employees are sued,
subpoenaed, or charged in their individual capacities). These DOJ
regulations set out the policy and procedures for requesting
representation in individual liability cases. See also 28 CFR part 15
(Defense of Certain Suits Against Federal Employees, etc.).
(e) 28 CFR 50.16 (Representation of Federal employees by private
counsel at Federal expense).
Sec. 516.30 Procedures for obtaining certification and DOJ representation.
(a) SJA or legal adviser procedures. When an SJA or legal adviser
learns of a criminal charge or of a lawsuit alleging individual
liability against DA personnel as a result of performance of official
duties, he will take the following actions:
(1) Immediately notify Litigation Division and the appropriate U.S.
Attorney and FAX or express deliver copies of process and pleadings to
each office. Where time for response is limited, request that the U.S.
Attorney either petition the court for an extension of time, or provide
temporary counsel and
[[Page 78]]
representation pending formal approval.
(2) Investigate whether the employee was acting within the scope of
his office or employment. Obtain, if possible, statements from the
defendant, supervisors, and witnesses.
(3) Advise the individual defendant of the rights and conditions set
out in 28 CFR 50.15, which include the following:
(i) His right to request representation by a DOJ attorney and, in
appropriate cases, certification that he was acting within the scope of
employment. (See 28 U.S.C. 2679; 28 CFR 50.15).
(ii) The right to request private counsel at government expense,
subject to the availability of funds. (See 28 CFR 50.16).
(iii) That the United States is not obligated to pay or indemnify
defendant for any judgment rendered against him in his individual
capacity.
(4) If the defendant desires certification or DOJ representation,
have him sign a request. (See figure D-1, appendix G, of this part).
Obtain a signed scope of employment statement from the defendant's
supervisor. (Figure D-2, appendix G, of this part).
(5) Prepare a report with, at a minimum, the following information:
facts surrounding the incident for which defendant is being sued and
those relating to scope of employment; the SJA's or legal adviser's
conclusions concerning scope of employment; and, a recommendation
whether certification by the Attorney General or representation by a DOJ
attorney should be granted.
(6) In cases involving National Guard personnel, address also the
following: whether defendant was acting in a state (Title 32 U.S.C.) or
Federal (Title 10 U.S.C.) capacity during relevant periods (include
orders); if defendant was acting under state authority, is it
nevertheless in the interest of the United States to represent the
individual; any impact on policies or practices of DA, the National
Guard Bureau, or DOD; whether the relief requested can be granted only
by a Federal officer or agency; and, whether Federal law or regulation
required actions by state officials.
(7) Send the report, request for representation, and scope of
employment statements to Chief, Litigation Division.
(b) Chief, Litigation Division, procedures. The Chief, Litigation
Division, will review the report and evidence regarding representation
and scope of employment and will determine whether certification and
representation are appropriate. He will send his recommendation to the
appropriate U.S. Attorney or office within DOJ. The Chief, Litigation
Division, will notify the defendant of DOJ's decision.
Sec. 516.31 Private counsel at government expense.
(a) General. DA personnel, sued in their individual capacity or
facing criminal charges as a result of performance of official duties,
have no right to employ a private sector counsel at government expense
or to expect reimbursement for the same. For proceedings in the United
States, a request for employment of counsel at government expense may be
approved by DOJ, contingent among other things upon availability of
funds and a determination that employment of private counsel at
government expense is in the best interests of the United States. (See
28 CFR 50.16). Special rules apply in overseas areas. (See paragraph (e)
of this section).
(b) Individual request procedures. The individual will prepare a
request that private counsel be employed for him at government expense.
The request must also contain the following statement: ``I understand
that the United States is not required to employ private counsel on my
behalf, and that I may be responsible for expenses incurred prior to
proper authorization by the Department of the Army or the Department of
Justice.''
(c) Supervisory and legal adviser procedures. The request will be
submitted through the individual's supervisors, who will make a
recommendation and forward the packet to the local SJA or legal adviser.
The SJA or legal adviser will prepare his own recommendation and forward
the matter to Litigation Division.
(d) Chief, Litigation Division, procedures. If the Chief, Litigation
Division, determines that the request for private counsel is
meritorious, he will prepare
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an appropriate recommendation and forward the packet to Civil Division,
DOJ, for final approval.
(e) Special actions in foreign countries. Employment of private
counsel in foreign proceedings is governed by AR 27-50 (Status of Forces
Policies, Procedures, and Information). Under the authority of 10 U.S.C.
1037, soldiers, as well as employees or those accompanying the armed
forces overseas, may be granted individual counsel in civil and criminal
proceedings, under the criteria of AR 27-50.
Sec. 516.32 Requests for indemnification.
(a) Policy. An individual liable for a judgment rendered against him
in his individual capacity has no right to reimbursement from DA. DA
will consider, however, a request for indemnification from DA personnel
where conduct within the scope of official duties has resulted in
personal liability and indemnification is in the best interests of the
United States. Indemnification is strictly contingent upon an
appropriation to pay the judgment, as well as availability of such
funds.
(b) Individual request procedures. An individual against whom an
adverse judgment has been rendered may request indemnification. The
request must include, at a minimum, the following: how the employee was
acting within the scope of his employment; whether the requestor has
insurance or any other source of indemnification; and, how reimbursement
is in the best interests of the United States. The request must also
contain the following statements: ``I understand that acceptance of this
request for indemnification for processing by DA does not constitute an
acceptance of any obligation to make such a payment. I also understand
that payment is contingent on availability of funds and that it will
only be made if such is determined to be in the best interests of the
United States.'' The individual should attach a copy of relevant
documents, for example, court's opinion, judgment, and other allied
papers.
(c) Supervisory and SJA procedures. The request for indemnification
will be submitted through supervisory channels to the local SJA or legal
adviser. Each supervisor will make a recommendation on the propriety of
reimbursement.
(d) Chief, Litigation Division, procedures. Requests for
indemnification will be forwarded to Chief, Litigation Division. The
Chief, Litigation Division, will examine the submission and, after
consultation with DOJ or other agencies, forward the packet with his
recommendation to the Army General Counsel. The General Counsel will
obtain a final decision by the Secretary of the Army or his designee on
the matter. There is no administrative appeal of the Secretary's (or his
designee's) decision.
Subpart E_Legal Proceedings Initiated by the United States Medical Care
and Property Claims
Sec. 516.33 General.
(a) Authorities.
(1) Federal Medical Care Recovery Act (42 U.S.C. 2651). The act
provides for the recovery of medical care expenses incurred because of a
tortfeasor's actions.
(2) Federal Claims Collection Act (31 U.S.C. 3711). The act provides
for the collection of claims for money or property arising from the
activities of Federal agencies.
(3) Third-party Collection Program (10 U.S.C. 1095). The statute
provides for collection of reasonable costs of health-care services,
provided in facilities of the uniformed services to covered
beneficiaries, from private insurers or third-party payers. In
accordance with DOD Instruction 6010.15, ``Third Party Collection (TPC)
Program,'' 7 March 1991, the authority to settle or waive a DOD claim
under the act is delegated to TJAG or to his designee.
(4) Executive Order No. 12778, (56 FR 55195; 3 CFR, 1991 Comp. p.
359), Civil Justice Reform. This order establishes several requirements
on Federal agencies involved in litigation or contemplating filing an
action on behalf of the United States.
(5) AR 27-20, Claims. Chapter l4 (Affirmative Claims) contains
comprehensive guidance for Recovery Judge Advocates (RJAs) in the
administrative determination, assertion, collection,
[[Page 80]]
settlement, and waiver of claims in favor of the U.S. for property
damage and for medical care claims.
(b) Duties and Procedures. In accordance with Chapter 14, AR 27-20,
Commander, USARCS, has supervisory responsibility over the
administrative processing of property and medical care claims by RJAs.
The Commander, U.S. Army Health Services Command (HSC), has supervisory
responsibility over the Third Party Collection Program (TPCP). The HSC
TPCP Implementation Plan effects DOD Instruction 6010.15 and establishes
procedures for processing TPC claims. Litigation Division, in
conjunction with DOJ and U.S. Attorneys, is responsible for pursuing,
through litigation, claims not resolved administratively. DOJ is
ultimately responsible for initiating litigation for the United States.
(28 U.S.C. 515).
(c) Assertion of claims on behalf of the United States by private
attorneys. The Army incurs potentially recoverable expenses when it
provides medical care to soldiers or dependents injured by tortfeasors
(for example, a soldier is hospitalized after an automobile accident).
When injured personnel employ a private attorney to sue the tortfeasor,
it may be in the Government's best interests to enter into an agreement
with the private attorney to include the Army's medical care claim.
(d) Statute of limitations. There is a three year statute of
limitations for actions in favor of the U.S. for money damages founded
upon tort. (28 U.S.C. 2415(b)). Limitations periods can vary, however,
depending upon the theory of liability and the jurisdiction involved.
RJAs must be alert to the applicable period of limitations. A case
referred for litigation should arrive at Litigation Division at least 6
months before the expiration of the limitations period.
(e) Reporting of recoveries. Amounts recovered through litigation
will be reported to USARCS by Tort Branch, Litigation Division, or,
where referred directly to a U.S. Attorney or the Nationwide Central
Intake Facility (NCIF), by the responsible RJA.
Sec. 516.34 Referral of medical care and property claims for litigation.
(a) Criteria for referral. The RJA will forward the claims file and
a litigation report (See Sec. 516.35 of this part) through USARCS to
Litigation Division when the claim has not been resolved
administratively and any of the following conditions exist:
(1) The claim exceeds $5,000;
(2) It involves collection from the injured party or his attorney;
(3) The claim raises an important question of policy; or,
(4) There is potential for a significant precedent.
(b) Alternative methods. When none of the conditions cited in the
preceding subparagraph are present, the RJA may refer the claim directly
to the U.S. Attorney for the district in which the prospective defendant
resides. Similar property claims may be referred through USARCS to DOJ's
Nationwide Central Intake Facility (NCIF) rather than directly to the
U.S. Attorney. Notice of all such referrals shall be provided through
USARCS to Tort Branch, Litigation Division. The RJA should be ready to
provide support to the U.S. Attorney if requested.
(c) Closing Files. A file referred directly to the U.S. Attorney
will be closed if the U.S. Attorney determines further action is
unwarranted. If the RJA disagrees, the file should be forwarded with the
RJA's recommendation through USARCS to Litigation Division.
Sec. 516.35 Preparation of claims for litigation.
(a) General. In preparing a referral for litigation the RJA will
ensure the file contains at least the following:
(1) A litigation report (See Sec. 516.23 of this part) that
demonstrates a factual basis for the claim and a theory of recovery
under applicable state law. (See Fed. R. Civ. P. 11)
(2) Copies of all medical records and bills reflecting the
reasonable value of the medical care furnished to the injured party,
including DA Form 2631-R (Medical Care-Third Party Liability
Notification), and DA Form 3154 (MSA Invoice and Receipt). These
documents should be authenticated as necessary on a DA Form 4.
[[Page 81]]
(3) Copies of all documents necessary to establish the value of lost
or damaged property.
(b) Transmittal letter. The letter of transmittal referring the
claim for litigation should briefly summarize the facts giving rise to
the claim and the collection actions previously taken by the Army and
the injured party.
Assertion of Other Claims
Sec. 516.36 Referral to Litigation Division.
(a) General. The majority of cases filed on behalf of the United
States will fall under this subpart E. All other civil cases which
cannot be resolved administratively or by direct referral to DOJ will be
forwarded through channels to Litigation Division with a litigation
report. (See Sec. 516.23 of this part).
(b) Government contractors. It may be in the Government's best
interest to authorize a Government contractor, whose contract provides
for the reimbursement of necessary legal expenses, to employ private
counsel to initiate legal proceedings against a third party. To obtain
authorization to employ private counsel in such instances the contractor
should follow the procedures in Sec. 516.21(c) of this part.
Sec. 516.37 Proceedings to repossess government real property or quarters or to collect delinquent rent.
(a) General. U.S. Attorneys are authorized to accept a Federal
agency's request for the following purposes: to initiate an action to
recover possession of real property from tenants, trespassers, and
others; to enjoin trespasses on Federal property; and, to collect
delinquent rentals or damages for use and occupancy of real property for
amounts less than $200,000.
(b) Procedures. When eviction or an action to collect delinquent
rent is necessary, the SJA or legal adviser will notify General
Litigation Branch, Litigation Division, of the situation. If approved by
Litigation Division, the SJA or legal adviser may ask the U.S. Attorney
to file suit. A copy of the complaint will be sent to Litigation
Division. DOJ can take action to evict the occupants for violation of
the terms of occupancy and collect delinquent rent or other charges.
Once the matter has been referred to the U.S. Attorney, payments for
rent should be sent to the U.S. Attorney. (See AR 210-50, chap 2.)
Subpart F_Environmental Litigation
Sec. 516.38 Scope.
This subpart contains guidance, policies, and procedures applicable
to all environmental and natural resources civil litigation and
administrative proceedings involving missions and functions of DA, its
major and subordinate commands, all installations presently or
previously managed by DA, and all other sites or issues in which DA has
a substantial interest. In this chapter, ``litigation'' includes civil
administrative proceedings.
Sec. 516.39 Duties and procedures.
(a) Water rights. Environmental Law Division will conduct direct
liaison with DOJ and will represent DA in State and Federal litigation
relating to availability and allocation of surface and ground water and
the establishment and protection of water rights for Army military
installations and activities. This will include litigation in State
general adjudications of water rights under the McCarran Amendment, 43
U.S.C. 666, for Army military installations and activities. Such
litigation relating solely to COE civil works projects or activities
will be handled by attorneys under the technical supervision of the
Chief Counsel, COE. With respect to any general adjudication which could
affect the civil works or real property functions of COE, The Judge
Advocate General, acting through the Chief, Environmental Law Division,
and Chief Counsel, COE, will jointly determine which office should
maintain primary direct liaison with DOJ and will scope and execute
appropriate coordination with each other and with the General Counsel
with respect to that litigation.
(b) Navigable waters. The Chief Counsel, COE, will conduct direct
liaison with DOJ and represent DA in civil litigation involving
activities in or across navigable waters of the United States or other
activities regulated under the Rivers and Harbors Act of 1899, 33 U.S.C.
401 et seq.
[[Page 82]]
(c) Waters of the United States. The Chief Counsel, COE, will
conduct direct liaison with DOJ and represent DA in civil litigation
involving The Clean Water Act section 404 (See 33 U.S.C. 1344) permit
authority of COE over the discharge of dredged or fill material into
waters of the United States.
(d) Enforcement. Environmental Law Division will conduct direct
liaison with DOJ and represent DA in all civil litigation involving
citizen or State enforcement of applicable State, Federal and local
requirements respecting the control or abatement of pollution and
involving the management of hazardous wastes, with respect to the
missions and functions of, and Federal facilities owned or controlled
by, DA, except for civil works facilities.
(e) Environmental response.
(1) Except as provided in (a)(2) of this section. Environmental Law
Division will conduct direct liaison with DOJ and represent DA in all
civil litigation seeking declaratory or injunctive relief or involving
claims of Army liability for the costs of response at Federal facilities
currently owned or controlled by DA and at other sites where the Army is
a potentially responsible party.
(2) The Chief Counsel, COE, will conduct direct liaison with DOJ and
represent DA in all civil litigation seeking declaratory or injunctive
relief or involving claims of Army liability for the costs of response
at civil works facilities, at former defense sites or at other sites
where the Army is a potentially responsible party due to the response
actions of the COE or its contractors.
(f) Fish and Wildlife, and Plants. Environmental Law Division will
conduct direct liaison with DOJ and represent DA in civil litigation
involving citizen or State enforcement of applicable State, Federal, and
local laws governing conservation of plant, fish, and wildlife resources
at Federal facilities owned or controlled by DA, except that such
litigation relating solely to the real estate, civil works, navigation
and Clean Water Act section 404 (See 33 U.S.C. 1344) permit functions
and activities of the COE will be handled by attorneys under the
technical supervision of the Chief Counsel, COE.
(g) Toxic torts.
(1) Except as otherwise provided in this part, Environmental Law
Division will conduct direct liaison with DOJ and represent DA in all
civil litigation involving claims of tort liability for exposure to
environmental contamination emanating from Federal facilities owned or
controlled by DA.
(2) Litigation Division will conduct liaison with DOJ and represent
DA in civil litigation involving claims of tort liability for singular
and discrete incidents of exposure to environmental contamination
emanating from any Federal facility owned or controlled by DA.
(3) The Chief Counsel, COE, will conduct direct liaison with DOJ and
will represent DA in civil litigation involving claims of tort liability
for exposure to environmental contamination (including singular and
discrete incidents) emanating from any civil works activities under the
jurisdiction of the Secretary of the Army.
(4) The Chief Counsel, COE, and Chief, Environmental Law Division,
will confer and jointly determine which office will conduct direct
liaison with DOJ and represent DA in civil litigation involving all
other claims of toxic tort liability.
Subpart G_Release of Information and Appearance of Witnesses Scope
Sec. 516.40 General.
(a) Introduction. This subpart implements DOD Directive 5405.2 (See
appendix C to this part and 32 CFR part 97). It governs the release of
official information and the appearance of present and former DA
personnel as witnesses in response to requests for interviews, notices
of depositions, subpoenas, and other requests or orders related to
judicial or quasi-judicial proceedings. Requests for records, if not in
the nature of legal process, should be processed under AR 25-55 (The
Department of the Army Freedom of Information Act Program) or AR 340-21
(The Army Privacy Program). This subpart pertains to any request for
witnesses, documents, or information for all types of litigation,
including requests by private litigants,
[[Page 83]]
requests by State or U.S. attorneys, requests by foreign officials or
tribunals, subpoenas for records or testimony, notices of depositions,
interview requests, civil cases, criminal proceedings, private
litigation, or litigation in which the United States has an interest.
(b) Definitions. (See appendix F to this part).
Sec. 516.41 Policy.
(a) General Rule. Except as authorized by this subpart, present or
former DA personnel will not disclose official information (See appendix
F--Glossary) in response to subpoenas, court orders, or requests.
(b) Exception. Present or former DA personnel may disclose official
information if they obtain the written approval of the appropriate SJA,
legal adviser, or Litigation Division.
(c) Referral to deciding official. If present or former DA personnel
receive a subpoena, court order, request for attendance at a judicial or
quasi-judicial proceeding, or request for an interview related to actual
or potential litigation, and it appears the subpoena, order, or request
seeks disclosures described in a above, the individual should
immediately advise the appropriate SJA or legal adviser. If the SJA or
legal adviser cannot informally satisfy the subpoena, order, or request
in accordance with Sec. Sec. 516.43 through 516.50 of this subpart, he
should consult with Litigation Division.
(d) Requesters' responsibilities. Individuals seeking official
information must submit, at least 14 days before the desired date of
production, a specific written request setting forth the nature and
relevance of the official information sought. (Requesters can be
referred to this subpart G). Subject to Sec. 516.47(a), present and
former DA personnel may only produce, disclose, release, comment upon,
or testify concerning those matters specified in writing and properly
approved by the SJA, legal adviser, or Litigation Division. (See United
States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951)).
(e) Litigation in which the United States has an interest. If a
subpoena, order, or request relates to litigation in which the United
States has an interest and for which litigation responsibility has not
been delegated, the SJA or legal adviser will coordinate with Litigation
Division under Sec. 516.42.
(f) Motions to stay or quash subpoenas. A subpoena should never be
ignored, and an SJA or legal adviser should seek assistance from
Litigation Division or the U.S. Attorney's office whenever necessary. If
a response to a subpoena or order is required before a release
determination can be made or before Litigation Division or the U.S.
Attorney can be contacted, the SJA or legal adviser will do the
following:
(1) Furnish the court or tribunal a copy of this regulation (32 CFR
part 516, subpart G) and applicable case law (See United States ex. rel.
Touhy v. Ragen, 340 U.S. 462 (1951));
(2) Inform the court or tribunal that the requesting individual has
not complied with this Chapter, as set out in 32 CFR 97 & 516, or that
the subpoena or order is being reviewed;
(3) Seek to stay the subpoena or order pending the requestor's
compliance with this chapter or final determination by Litigation
Division; and,
(4) If the court or other tribunal declines to quash or stay the
subpoena or order, inform Litigation Division immediately so a decision
can be made whether to challenge the subpoena or order. If Litigation
Division decides not to challenge the subpoena or order, the affected
personnel will comply with the subpoena or order. If Litigation Division
decides to challenge the subpoena or order, it will direct the affected
personnel to respectfully decline to comply with the subpoena or order.
(See United States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951)).
(g) Classified or sensitive information. Only Litigation Division
may authorize the release of official information or appearance of DA
personnel as witnesses in litigation involving terrorism, espionage,
nuclear weapons, or intelligence sources and methods.
(h) Requests for Inspector General records or testimony. IG records,
and information obtained through performance of IG duties, are official
information under the exclusive control of the Secretary of the Army.
(See AR 20-l, Chapter 3.) IG records frequently contain sensitive
official information that may be classified or obtained under
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guarantees of confidentiality. When justification exists, DA attorneys
will seek court protection from disclosure of IG records and
information. No DA personnel will release IG records or disclose
information obtained through performance of IG duties without the
approval of The Secretary of the Army, The Inspector General, TIG Legal
Advisor, or Chief, Litigation Division. When IG personnel receive a
subpoena, court order, request for attendance at a judicial or quasi-
judicial proceeding, or a request for an interview which the IG
reasonably believes is related to actual or potential litigation
concerning IG records or related information, they should immediately
notify the Inspector General Legal Adviser or the Chief, Litigation
Division. IG personnel will follow the guidance of this subpart
concerning actions to be taken regarding disclosure and testimony.
Sec. 516.42 Reference to HQDA.
(a) General. If the SJA or legal adviser is unable to resolve the
matter, it will be referred for approval or action by Litigation
Division under this chapter, by the most expeditious means, to General
Litigation Branch, Litigation Division, with the following exceptions:
(1) Those involving a case assigned to another branch of Litigation
Division will be submitted to that branch (appendix B to this part).
(2) Those involving affirmative litigation (for example, medical
care recovery or Army property damage or loss cases) under subpart E
will be submitted to Tort Branch.
(3) Those involving patents, copyrights, privately developed
technical information, or trademarks will be submitted to Intellectual
Property Law Division.
(4) Those involving taxation will be submitted to Contract Law
Division.
(5) Those involving communication, transportation, or utility
service proceedings will be submitted to the Regulatory Law Office.
(6) Those involving environmental matters will be submitted to the
Environmental Law Division.
(7) Those involving contract appeals cases before the ASBCA will be
submitted to the Contract Appeals Division.
(8) Those involving procurement fraud, including Qui Tam cases, will
be submitted to the Procurement Fraud Division.
(b) Information to be submitted. When referring matters pursuant to
paragraph (a) of this section, the following data should be provided:
(1) Parties (named or prospective) to the proceeding, their
attorneys, and case number, where appropriate.
(2) Party making the request (if a subpoena, indicate moving party)
and his attorney.
(3) Name of tribunal in which the proceeding is pending.
(4) Nature of the proceeding.
(5) Date of receipt of request or date and place of service of
subpoena.
(6) Name, grade, position, and organization of person receiving
request or served with subpoena.
(7) Date, time, and place designated in request or subpoena for
production of information or appearance of witness.
(8) Nature of information sought or document requested, and place
where document is maintained.
(9) A copy of each document requested. Contact the appropriate
office at HQDA if this would be burdensome and unnecessary to a decision
whether to release, redact, or withhold a particular document.
(10) Name of requested witness, expected testimony, requested
appearance time and date, and whether witness is reasonably available.
(11) Analysis of the problem with recommendations.
Release of Records in Connection With Litigation
Sec. 516.43 Release of Army and other agency records.
(a) Preservation of originals. To preserve the integrity of DA
records, DA personnel will submit properly authenticated copies rather
than originals of documents or records for use in legal proceedings,
unless directed otherwise by Litigation Division. (See 28 U.S.C. 1733.)
(b) Authentication of copies. Copies of DA records approved for
release can be
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authenticated for introduction in evidence by use of DA Form 4. (See
Sec. 516.25 for instructions.)
(1) Records maintained in U.S. Army Engineer Districts and Divisions
will be forwarded to HQDA(CECC-K), WASH DC 20314-1000.
(2) All other records will be forwarded to the appropriate office at
HQDA (See Sec. 516.42).
(c) Fees and charges. AR 37-60 prescribes the schedule of fees and
charges for searching, copying, and certifying Army records for release
in response to litigation-related requests.
(d) Release of records of other agencies. Normally an individual
requesting records originating in agencies outside DA (that is, FBI
reports, local police reports, civilian hospital records) that are also
included in Army records should be advised to direct his inquiry to the
originating agency.
Sec. 516.44 Determination of release authorization.
(a) Policy. DA policy is to make official information reasonably
available for use in Federal and state courts and by other governmental
bodies unless the information is classified, privileged, or otherwise
protected from public disclosure.
(b) Releasability factors. In deciding whether to authorize release
of official information, the deciding official should consider the
following:
(1) Has the requester complied with DA policy governing the release
of official documents in Sec. 516.41(d) of this part.
(2) Is the request unduly burdensome or otherwise inappropriate
under the applicable court rules?
(3) Is the disclosure appropriate under the rules of procedure
governing the matter in which the request arose?
(4) Would the disclosure violate a statute, executive order,
regulation, or directive?
(5) Is the disclosure appropriate under the relevant substantive law
concerning privilege?
(6) Would the disclosure reveal information properly classified
pursuant to the DOD Information Security Program under AR 380-5,
unclassified technical data withheld from public release pursuant to 32
CFR Sec. 250, or other matters exempt from unrestricted disclosure?
(7) Would disclosure interfere with ongoing enforcement proceedings,
compromise constitutional rights, reveal the identity of an intelligence
source or confidential informant, disclose trade secrets or confidential
commercial or financial information, or, otherwise be inappropriate
under the circumstances?
(8) Would the disclosure violate any person's expectation of
confidentiality or privacy?
Sec. 516.45 Records determined to be releasable.
If the deciding official, after considering the factors set forth in
Sec. 536.44, determines that all or part of requested official records
are releasable, copies of the records should be furnished to the
requester.
Sec. 516.46 Records determined not to be releasable.
(a) General. If the deciding official, after considering the factors
in Sec. 516.44, determines that all or part of requested official
records should not be released, he will promptly communicate directly
with the attorney or individual who caused the issuance of the subpoena,
order, or request and seek to resolve the matter informally. If the
subpoena or order is invalid, he should explain the basis of the
invalidity. The deciding official should also explain why the records
requested are privileged from release. The deciding official should
attempt to obtain the agreement of the requester to withdraw the
subpoena, order, or request or to modify the subpoena, order, or request
so that it pertains only to records which may be released. (See figure
G-1, appendix G, of this part.)
(b) Information protected by the Privacy Act.
(1) A subpoena duces tecum or other legal process signed by an
attorney or clerk of court for records protected by the Privacy Act, 5
U.S.C. 552a, does not justify the release of the protected records. The
deciding official should explain to the requester that the Privacy Act
precludes disclosure of records in a system of records without the
written consent of the subject of
[[Page 86]]
the records or ``pursuant to the order of a court of competent
jurisdiction.'' (See 5 U.S.C. 552a(b)(11)). An ``order of the court''
for the purpose of subsection 5 U.S.C. 552a(b)(11) is an order or writ
requiring the production of the records, signed by a judge or
magistrate.
(2) Unclassified records otherwise privileged from release under 5
U.S.C. 552a may be released to the court under either of the following
conditions:
(i) The subpoena is accompanied by an order signed by a judge or
magistrate, or such order is separately served, that orders the person
to whom the records pertain to release the specific records, or that
orders copies of the records be delivered to the clerk of court, and
indicates that the court has determined the materiality of the records
and the nonavailability of a claim of privilege.
(ii) The clerk of the court is empowered by local statute or
practice to receive the records under seal subject to request that they
be withheld from the parties until the court determines whether the
records are material to the issues and until any question of privilege
is resolved.
(iii) Subpoenas for alcohol abuse or drug abuse treatment records
must be processed under 42 U.S.C. 290dd-3 and 290ee-3, and Public Health
Service regulations published at 42 CFR 2.1-2.67.
(iv) Upon request, SJAs and legal advisers may furnish to the
attorney for the injured party or the tortfeasor's attorney or insurance
company a copy of the narrative summary of medical care that relates to
a claim under subpart E of this part. If additional medical records are
requested, only those that directly pertain to the pending action will
be furnished. If furnishing copies of medical records would prejudice
the cause of action, the matter will be reported to Litigation Division.
(c) Referral to Litigation Division. If the SJA or legal adviser is
not able to resolve a request for Army records informally, he should
contact Litigation Division.
(1) Litigation Division may respond to subpoenas or orders for
records privileged from release by informing the local U.S. Attorney
about the subpoena and requesting that office file a motion to quash the
subpoena or a motion for a protective order. The records privileged from
release should be retained by the custodian pending the court's ruling
upon the government's motion.
(2) When a motion to quash or for a protective order is not filed,
or the motion is unsuccessful, and the appropriate DA official has
determined that no further efforts will be made to protect the records,
copies of the records (authenticated if necessary) will be submitted to
the court (or to the clerk of court) in response to the subpoena or
order.
(d) Classified and privileged materials. Requests from DOJ, U.S.
Attorneys, or attorneys for other governmental entities for records
which are classified or otherwise privileged from release will be
referred to Litigation Division. (See Sec. 516.41(g).
DA Personnel as Witnesses in Private Litigation
Sec. 516.47 Response to subpoenas, orders, or requests for witnesses.
(a) Policy. The involvement of present or former DA personnel in
private litigation is solely a personal matter between the witness and
the requesting party, unless one or more of the following conditions
apply:
(1) The testimony involves official information. (See appendix F--
Glossary to this part).
(2) The witness is to testify as an expert.
(3) The absence of the witness from duty will seriously interfere
with the accomplishment of a military mission.
(b) Former DA personnel. Former DA personnel may freely respond to
requests for interviews and subpoenas except in instances involving
official information (paragraph (a)(1) of this section) or concerning
expert testimony prohibited by Sec. 516.49. In those instances, the
subject of the request or subpoena should take the action specified in
Sec. Sec. 516.41(c) and 516.42.
(c) Present DA personnel. Present DA personnel will refer all
requests for interviews and subpoenas for testimony in private
litigation through their supervisor to the appropriate SJA or legal
adviser.
[[Page 87]]
(d) Discretion to testify. Any individual not wishing to grant an
interview or to testify concerning private litigation may seek the
advice of an Army attorney concerning the consequences, if any, of
refusal. Any individual not authorized to consult with Army counsel
should consult with private counsel, at no expense to the government.
Sec. 516.48 Official information.
(a) In instances involving Sec. 516.47(a)(1), the matter will be
referred to the SJA or legal adviser serving the organization of the
individual whose testimony is requested, or to HQDA pursuant to Sec.
516.47(a). The deciding official will determine whether to release the
information sought under the principles established in Sec. 516.44. If
funding by the United States is requested, see Sec. 516.55(d).
(b) If the deciding official determines that the information may be
released, the individual will be permitted to be interviewed, deposed,
or to appear as a witness in court provided such interview or appearance
is consistent with the requirements of Sec. Sec. 516.49 and 516.50.
(See, for example, figure G-2, appendix G, to this part). A JA or DA
civilian attorney should be present during any interview or testimony to
act as legal representative of the Army. If a question seeks information
not previously authorized for release, the legal representative will
advise the witness not to answer. If necessary to avoid release of the
information, the legal representative will advise the witness to
terminate the interview or deposition, or in the case of testimony in
court, advise the judge that DOD directives and Army regulations
preclude the witness from answering without HQDA approval. Every effort
should be made, however, to substitute releasable information and to
continue the interview or testimony.
Sec. 516.49 Expert witnesses.
(a) General rule. Present DA personnel will not provide, with or
without compensation, opinion or expert testimony either in private
litigation or in litigation in which the United States has an interest
for a party other than the United States. Former DA personnel will not
provide, with or without compensation, opinion or expert testimony
concerning official information, subjects, or activities either in
private litigation or in litigation in which the United States has an
interest for a party other than the United States. (See figure G-3,
appendix G of this part). An SJA or legal adviser is authorized to deny
a request for expert testimony, which decision may be appealed to
Litigation Division.
(b) Exception to the general prohibition. If a requester can show
exceptional need or unique circumstances, and the anticipated testimony
will not be adverse to the interests of the United States, Litigation
Division may grant special written authorization for present or former
DA personnel to testify as expert or opinion witnesses at no expense to
the United States. In no event may present or former DA personnel
furnish expert or opinion testimony in a case in which the United States
has an interest for a party whose interests are adverse to the interests
of the United States.
(c) Exception for AMEDD personnel. Members of the Army medical
department or other qualified specialists may testify in private
litigation with the following limitations (See figure G-4, appendix G,
of this part):
(1) The litigation involves patients they have treated,
investigations they have made, laboratory tests they have conducted, or
other actions taken in the regular course of their duties.
(2) They limit their testimony to factual matters such as the
following: their observations of the patient or other operative facts;
the treatment prescribed or corrective action taken; course of recovery
or steps required for repair of damage suffered; and, contemplated
future treatment.
(3) Their testimony may not extend to expert or opinion testimony,
to hypothetical questions, or to a prognosis.
(d) Court-ordered expert or opinion testimony. If a court or other
appropriate authority orders expert or opinion testimony, the witness
will immediately notify Litigation Division. If Litigation Division
determines it will not challenge the subpoena or order, the witness will
comply with the subpoena
[[Page 88]]
or order. If directed by Litigation Division, however, the witness will
respectfully decline to comply with the subpoena or order. (See United
States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951)).
(e) Expert witness fees. All fees tendered to present DA personnel
as an expert or opinion witness, to the extent they exceed actual
travel, meals, and lodging expenses of the witness, will be remitted to
the Treasurer of the United States.
Sec. 516.50 Interference with mission.
If the absence of a witness from duty will seriously interfere with
the accomplishment of a military mission, the SJA or legal adviser will
advise the requesting party and attempt to make alternative
arrangements. If these efforts fail, the SJA or legal adviser will refer
the matter to Litigation Division.
Litigation in Which the United States Has an Interest
Sec. 516.51 Response to subpoenas, orders, or requests for witnesses.
(a) Referral to a deciding official. Requests, subpoenas, or orders
for official information, interviews or testimony of present or former
DA personnel in litigation or potential litigation in which the United
States has an interest, including requests from DOJ, will be resolved by
the SJA or legal adviser pursuant to the principles of this subpart.
Litigation Division will be consulted on issues that cannot be resolved
by the SJA or legal adviser.
(b) Reassignment of witnesses. When requested by the U.S. Attorney,
the SJA or legal adviser will ensure that no witnesses are reassigned
from the judicial district without advising the DOJ attorney. If a
witness is vital to the government's case and trial is imminent, the SJA
or legal adviser should make informal arrangements to retain the witness
in the command until trial. If this is not feasible, or if a
satisfactory arrangement cannot be reached with the DOJ attorney, the
SJA or legal adviser should notify Litigation Division.
Sec. 516.52 Expert witnesses.
Requests for present or former DA personnel as expert or opinion
witnesses from DOJ or other attorneys representing the United States
will be referred to Litigation Division unless the request involves a
matter that has been delegated by Litigation Division to an SJA or legal
adviser. In no event, may present or former DA personnel furnish expert
or opinion testimony in a case in which the United States has an
interest for a party whose interests are adverse to the interests of the
United States.
Sec. 516.53 News media and other inquiries.
News media inquiries regarding litigation or potential litigation
will be referred to the appropriate public affairs office. DA personnel
will not comment on any matter presently or potentially in litigation
without proper clearance. Local public affairs officers will refer press
inquiries to HQDA (SAPA), WASH DC 20310-1500, with appropriate
recommendations for review and approval by the Office of the Chief of
Public Affairs. All releases of information regarding actual or
potential litigation will be coordinated with Litigation Division prior
to release.
Status, Travel, and Expenses of Witnesses
Sec. 516.54 Witnesses for the United States.
(a) Status of witness. A military member authorized to appear as a
witness for the United States, including those authorized to appear
under Sec. 516.55(d), will be placed on temporary duty. If USAR or NG
personnel are requested as witnesses for the United States, and if their
testimony arises from their active duty service, they should be placed
on active duty to testify. The status of a civilian employee will be
determined under Federal Personnel Manual 630, subchapter 10. DA
personnel who appear as necessary witnesses for a party asserting the
government's claim for medical care expenses are witnesses for the
United States.
(b) Travel arrangements. Travel arrangements for witnesses for the
United States normally are made by DOJ through Litigation Division for
other than local travel. Litigation Division will issue instructions for
this
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travel, including fund citation, to the appropriate commander. A U.S.
Attorney, or an attorney asserting the government's medical care claim
under subpart E, may make arrangements for local travel through the SJA
or legal adviser for attendance of a witness who is stationed at an
installation within the same judicial district, or not more than 100
miles from the place where testifying. Other requests, including those
under Sec. 516.55(d), will be referred to Litigation Division. The
instructions from Litigation Division, or the request from the U.S.
Attorney or the attorney asserting the government's claim, will serve as
a basis for the issuance of appropriate travel orders by the local
commander.
(c) Travel and per diem expenses. The witness' commander or
supervisor should ensure the witness has sufficient funds to defray
expenses. The SJA or legal adviser will provide assistance.
(1) Where local travel is performed at the request of a U.S.
Attorney and the testimony does not involve information acquired in the
performance of duties, transportation arrangements and any per diem
expenses are the responsibility of the U.S. Attorney.
(2) An attorney asserting the government's medical care or property
claim may be required to advance local travel expense money to the
witness requested and to include these in recoverable costs where the
government's claim is not large enough to justify expenditures of
government travel funds.
(3) Other local travel and per diem expense for cases involving Army
activities or claims are proper expenses of the command issuing the
orders.
(4) Litigation Division will furnish travel expense and per diem
funds for other than local travel and will receive reimbursement from
DOJ or other government agencies as appropriate.
Sec. 516.55 Witnesses for a State or private litigant.
(a) Status of witness. If authorized to appear as a witness for a
state or private litigant, and the testimony to be given relates to
information obtained in the performance of official duties, a military
member will attend in a permissive TDY status. If authorized to appear
as a witness, but the testimony does not relate to information obtained
in the performance of official duties, a military member may be granted
a pass or permissive TDY under AR 630-5, or be required to take ordinary
leave. The status of a civilian employee will be determined under 5 CFR
Chapter I.
(b) Travel arrangements. The requesting party or state agency will
make all travel arrangements for attendance of DA personnel authorized
to appear as witnesses for a state or private litigant. The local
commander may issue appropriate orders when necessary.
(c) Travel expenses. The United States may not pay travel, meals,
and lodging expenses of the witness, other than normal allowances for
subsistence pursuant to the DOD Military Pay and Allowances Entitlements
Manual. These expenses are solely a matter between the witness and the
party seeking his appearance. Witnesses ordinarily should be advised to
require advance payment of such expenses. Military personnel authorized
to appear in a pass or permissive TDY status are not entitled to receive
witness attendance fees, but may accept travel, meals, and lodging
expense money from the requesting litigant. All witness fees tendered
the military member, to the extent they exceed such actual expenses of
the member, will be remitted to the Treasurer of the United States. A
civilian employee authorized to appear in his or her official capacity
will accept the authorized witness fees, in addition to the allowance
for travel and subsistence, and make disposition of the witness fees as
instructed by his or her personnel office.
(d) Funding by the United States. Requests for DA personnel to
appear at government expense as witnesses in state or local proceedings
for a party other than the United States, including cases involving
domestic violence or child abuse, will be referred to Litigation
Division. Litigation Division may authorize travel and per diem expenses
under Sec. 516.54 when the case is one in which the United States has a
significant interest.
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Sec. 516.56 Witnesses before foreign tribunals.
(a) Referral to the SJA. Requests or subpoenas from a foreign
government or tribunal for present DA personnel stationed or employed
within that country to be interviewed or to appear as witnesses will be
forwarded to the SJA of the command exercising general court-martial
jurisdiction over the unit to which the individual is assigned,
attached, or employed. The SJA will determine the following:
(1) Whether a consideration listed in Sec. 516.47(a)(1) through
(a)(3) applies.
(2) Whether the information requested is releasable under the
principles established in Sec. 516.43 through Sec. 516.46.
(3) Whether the approval of the American Embassy should be obtained
because the person is attached to the Embassy staff or a question of
diplomatic immunity may be involved.
(b) United States has an interest in the litigation. If the SJA
determines that the United States has an interest in the litigation, the
commander may authorize the interview or order the individual's
attendance in a temporary duty status. The United States will be deemed
to have an interest in the litigation if it is bound by treaty or other
international agreement to ensure the attendance of such personnel.
(c) United States has no interest in the litigation. If the SJA
determines that the United States does not have an interest in the
litigation, the commander may authorize the interview or the appearance
of the witness under the principles established in Sec. 516.47 through
Sec. 516.50.
(d) Witnesses located outside the requester's country. If the
requested witness is stationed in a country other than the requester's,
the matter will be referred to Litigation Division.
Subpart H_Remedies in Procurement Fraud and Corruption
Sec. 516.57 Purpose.
This subpart delineates the policies, procedures, and
responsibilities for reporting and resolving allegations of procurement
fraud or irregularities (PFI) within DA. It implements DOD Directive
7050.5. (See appendix D to this part.)
Sec. 516.58 Policies.
(a) Procurement fraud and irregularities will be promptly and
thoroughly addressed whenever encountered. Reports will be initiated in
a timely manner and will be supplemented as appropriate.
(b) Investigations will be monitored to see that interim corrective
action is taken and that final action is taken as expeditiously as
possible.
(c) This regulation establishes the Procurement Fraud Division
(PFD), U.S. Army Legal Services Agency, as the single centralized
organization within the Army to coordinate and monitor criminal, civil,
contractual, and administrative remedies in significant cases of fraud
or corruption relating to Army procurement.
(d) The key elements of the Army's procurement fraud program follow:
centralized policy making and program direction; fraud remedies
coordination; decentralized responsibility for operational matters, such
as reporting and remedial action; continuous case monitorship by PFD
from the initial report until final disposition; and, command-wide fraud
awareness training.
(e) Remedies for PFI will be pursued in a timely manner and properly
coordinated with other agencies. Every effort will be made to support
criminal investigation and prosecution of fraudulent activity.
(f) A specific remedies plan will be formulated for each significant
case of fraud or corruption involving procurement.
(g) Coordination on the status and disposition of cases will be
maintained between PFD, OTJAG, PFI Coordinators at MACOMs, and
Procurement Fraud Advisers at subordinate commands. Coordination of
procurement and personnel actions will be accomplished with
investigative agencies as required by those agencies.
(h) Training which relates to fraud and corruption in the
procurement process is a significant element of this program.
[[Page 91]]
Sec. 516.59 Duties and procedures.
(a) TJAG has overall responsibility for the coordination of remedies
in procurement fraud and corruption within the Army. This responsibility
has been delegated to PFD. Functions of PFD will include the following:
(1) Serving as the single centralized organization in the Army to
monitor the status of, and ensure the coordination of, criminal, civil,
contractual, and administrative remedies for each significant case of
fraud or corruption.
(2) Receiving reports of procurement fraud and corruption from any
source including, but not limited to the following: DOD criminal
investigative organizations; audit agencies; contracting officers;
inspectors general of the executive branch; correspondence from the
public; and, commanders. This provision does not repeal any other
reporting requirement but establishes PFD as a recipient of PFI
information at the earliest possible time.
(3) Establishing a monitoring system within OTJAG for all cases of
fraud and corruption that relate to Army procurement.
(4) Discussing regularly with the U.S. Army Criminal Investigation
Command (USACIDC) or the assigned DOD criminal investigative
organization the current status of significant fraud or corruption cases
and their coordination with prosecutive authorities.
(5) Ensuring that all criminal, civil, contractual, and
administrative remedies are considered in each significant fraud or
corruption case and that timely and applicable remedies are undertaken
by commanders, contracting officers, and suspension and debarment
authorities. For example, consideration of suspension or debarment of a
contractor or individual should normally be initiated within 30 days of
indictment or conviction.
(6) Coordinating, as appropriate, with other DOD components affected
by a significant fraud or corruption case being monitored by the Army.
(7) Developing, with the responsible DOD investigative organization,
Procurement Fraud Coordinators and Advisers, and other involved
agencies, a specific comprehensive remedies plan for each significant
fraud or corruption case.
(8) Coordinating remedies with DOJ. In the case of ongoing criminal
investigations, coordinate remedies through, or with the prior knowledge
of, the DOD criminal investigative organization responsible for the
case.
(9) In significant fraud or corruption cases, identifying and
documenting any known adverse impact on a DOD mission, and including the
information in any remedies plan.
(10) Providing the appropriate DOD criminal investigative
organization with information concerning final remedies as a result of
an investigation by that organization.
(11) Receiving notifications from criminal investigative agencies
concerning substituted, defective, and counterfeit hardware in which a
serious hazard to health, safety or operational readiness is indicated;
ensuring that appropriate safety, procurement and program officials are
informed in accordance with enclosure 3 of DOD Directive 7050.5. PFD
will specifically ensure that contract reviews (DD 350 reports) and
adverse impact statements (See Sec. 516.64(c)(2) are prepared, and that
such information is used to determine if further inquiry is warranted to
prevent reoccurrence and to detect other possible fraud. Impact
statements will not be released to prosecutive agencies until reviewed
by PFD. When appropriate, PFD will coordinate with other DOD agencies to
establish a lead agency for victim impact statements in multi-DOD agency
cases.
(b) The Commanding General, USACIDC, will take the following
actions:
(1) Notify PFD of any investigations involving fraud or corruption
related to procurement activities.
(2) Notify other DOD component criminal investigative organizations
when investigations involving fraud or corruption affect that component.
This includes evidence of fraud by a contractor, subcontractor, or
employee of either, on current or past contracts with, or affecting,
that component.
(3) Notify the Defense Investigative Service of any investigations
that develop evidence which affects DOD cleared industrial facilities or
personnel.
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(4) Determine the effect on any ongoing investigations or
prosecutions of any criminal, civil, contractual, or administrative
actions being considered by a centralized organization and advise of any
adverse impact.
(5) Promptly provide commanders, contracting officers, Procurement
Fraud Advisers, and suspension and debarment authorities, when needed to
allow consideration of applicable remedies, any court records,
documents, or other evidence of fraud or corruption from ongoing or
completed criminal investigations. In cases of indictment or conviction
of a contractor or individual, the information will be provided in time
for initiation, if appropriate, of suspension or debarment action within
30 days of the indictment or conviction.
(6) Provide prosecutive authorities and centralized organizations
with timely information on the adverse impact on a DOD mission of fraud
or corruption that relates to DOD procurement activities. This
information will be obtained from individuals such as the head of the
contracting agency, appropriate commanders, and staff agencies. Some
examples of adverse impact on a DOD mission are endangerment of
personnel or property, monetary loss, compromise of the procurement
process, or reduction or loss of mission readiness.
(7) Discuss regularly with Procurement Fraud Advisers the status of
significant investigations of fraud or corruption and their coordination
with prosecutive authorities and provide documents and reports resulting
from the investigations.
(c) Commanders of service schools conducting procurement or
procurement-related training (such as The Judge Advocate General's
School, the U.S. Military Police School, and the U.S. Army Logistics
Management Center) will ensure the following:
(1) All procurement and procurement-related training includes a
period of instruction on fraud and corruption in the procurement
process. The length of the period of instruction will be appropriate to
the duration and nature of the training.
(2) Training materials are developed to support that training.
(3) Training materials developed will be sent to MACOM PFI
Coordinators.
(d) MACOM commanders and heads of contracting activities will ensure
the following:
(1) Substantial indications of fraud or corruption relating to Army
contracts or Army administered contracts are reported promptly to the
supporting USACIDC element and the Procurement Fraud Division.
(2) Information provided includes reports by contracting officers
under DFARS 209.406-3.
Sec. 516.60 Procurement fraud and irregularities programs at MACOMs.
(a) Command counsel and SJAs at MACOMs will develop a program and
appoint an attorney as PFI Coordinator for their command. Chief counsel
and SJAs at commands with procurement advisory responsibility will
appoint an attorney as a Procurement Fraud Adviser (PFA) to manage the
PFI program at their installations as well.
(b) Provision may be made for activities not having sufficient
attorney assets to obtain assistance from nearby installations that have
a PFA.
(c) Reports and recommendations will be transmitted through command
channels to the PFI coordinator for the affected MACOM.
(d) Command counsel, chief counsel, and SJAs will exercise
supervisory authority to ensure effective operation of the fraud program
and coordination of remedies within their organizations.
(e) The MACOM PFI Coordinator will have overall responsibility for
the design and implementation of the MACOM's procurement fraud program.
(f) PFAs and PFI Coordinators will coordinate with the appropriate
local CID or Defense Criminal Investigative Service (DCIS) activity to
assure the prompt notification and coordination of all Procurement Fraud
cases.
Sec. 516.61 Reporting requirements.
(a) Typical fraud indicators during the procurement cycle are listed
in figure D-1, appendix G, to this part. The mere presence of one or
more of these indicators does not, by itself, require reporting under
paragraph b of this section. Reports should be submitted if
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there is a reasonable suspicion of procurement fraud or irregularity or
the procuring agency refers the matter for investigation.
(b) ``Procurement Flash Reports'' will be transmitted by FAX
directly to PFD whenever a PFI Coordinator or PFA receives notice of a
PFI involving the Army. To facilitate filing, a separate sheet should be
used for each case reported. These reports will provide a succinct
summary of the following available information:
(1) Name and address of contractor.
(2) Known subsidiaries of parent firms.
(3) Contracts involved in potential fraud.
(4) Nature of potential fraud.
(5) Summary of pertinent facts.
(6) Possible damages.
(7) Investigative agencies involved.
(8) Local PFAs (name and phone numbers).
Any of the above categories that cannot be completed will be annotated
as ``unknown at present.''
(c) When a report is required by DFARS or is requested by PFD, the
provisions of DFARS 209.406-3 (48 CFR 209.406-3) will be followed. That
paragraph provides the basic content and format for PFI reports.
(d) All personnel will cooperate to ensure that investigations and
prosecutions of procurement fraud are completed in a timely and thorough
manner. Requests for assistance from federal prosecutors should be
processed through the local PFA whenever possible. Requests for federal
investigators will be processed through the supporting USACIDC and the
PFA will be notified. When the conduct of criminal investigations and
prosecutions conflict with the progress of procurements, reasonable
deference will be given to criminal investigators and prosecutors
whenever possible. Any serious conflict that cannot be resolved at a
local level will be immediately reported to the PFI Coordinator or PFD
for action.
(e) PFI Coordinators and PFAs may request access to information
obtained during criminal investigations that is not protected by Fed. R.
Crim. P. 6(e) and use this information to assist them in taking
appropriate administrative, contractual, and civil remedies. Requests
for this information should be made directly to the appropriate federal
investigative agency. The investigative organization may withhold
requested information if release would compromise an investigation.
Difficulties in obtaining information which cannot be resolved locally
will be referred to PFD for appropriate action.
(f) USACIDC will notify, in writing, local PFAs as well as PFD
within 30 days, of initiation of a significant investigation of fraud or
corruption related to Army procurement activities. Such notification
will include the following:
(1) Case title.
(2) USACIDC Report of Investigation number.
(3) Responsible investigative agency or agencies.
(4) Office of primary responsibility.
(5) Date opened.
(6) Summary of facts.
(7) Suspected offense.
(g) The transmission of the information in f above may be delayed if
the Commanding General, USACIDC, or the head of another DOD criminal
investigation organization determines the transmission would compromise
the success of any case or its prosecution. The prosecutive authorities
dealing with the case will be consulted, when appropriate, in making
such determinations.
(h) USACIDC will obtain the following information at the earliest
possible point in an investigation of fraud or corruption that relates
to DOD procurement activities, whenever possible without reliance on
grand jury subpoenas:
(1) The individuals suspected to be responsible.
(2) The suspected firm's organizational structure.
(3) The firm's financial and contract history.
(4) The firm's organizational documents and records.
(5) Statements of witnesses.
(6) Monetary loss to the government.
(7) Other relevant information.
This information will be provided to PFD or other cognizant DOD
centralized organization.
[[Page 94]]
(i) PFD will provide written notification to the Defense
Investigative Service of all suspension or debarment actions taken by
the Army.
Sec. 516.62 PFD and HQ USACIDC coordination.
PFD and HQ USACIDC will coordinate as follows:
(a) Discuss the status of significant procurement fraud or
corruption investigations being conducted by USACIDC and possible
remedies. These discussions should take place on a regular basis.
(b) Discuss the coordination of possible criminal, civil,
contractual, or administrative remedies with prosecutive authorities.
(c) PFD will maintain liaison with other DOD centralized
organizations and will coordinate remedies with those centralized
organizations affected by a significant investigation of fraud or
corruption that relates to DOD procurement activities.
(d) Ascertain the effect on any ongoing investigation of the
initiation of civil, contractual, or administrative remedies as follows:
(1) PFD will maintain liaison with USACIDC and other DOD criminal
investigative organizations in order to determine the advisability of
initiating any civil, contractual, or administrative actions.
(2) USACIDC will advise PFD of any adverse effect on an
investigation or prosecution by the initiation of civil, contractual, or
administrative actions.
Sec. 516.63 Coordination with DOJ.
(a) PFD will establish and maintain liaison with DOJ and the Defense
Procurement Fraud Unit on significant fraud and corruption cases to
accomplish the following:
(1) Monitor criminal prosecutions.
(2) Initiate litigation for civil recovery.
(3) Coordinate administrative or contractual actions while criminal
or civil proceedings are pending.
(4) Coordinate settlement agreements or proposed settlements of
criminal, civil, and administrative actions.
(5) Respond to DOJ requests for information and assistance.
(b) In cases where there is an ongoing criminal investigation,
coordination with DOJ by any member of the Army normally will be
accomplished by or through USACIDC or the cognizant DOD criminal
investigative organization, or with the investigative organization's
advance knowledge. This does not apply to the routine exchange of
information between government attorneys in the course of civil
litigation or the routine referral of cases to DOJ for civil recovery.
(c) Initial contact by any attorney associated with the U.S. Army
with a U.S. Attorney's office or DOJ, whether initiated by the Army
attorney or not, will be reported to PFD. Activity after the initial
contact will only be reported to PFD when the Army attorney feels there
has been a significant event in the case. If the Army attorney is not a
PFI Coordinator or a PFA, the matter should be referred to one of these
two attorneys as soon as possible. Routine exchanges between Army
attorneys and U.S. Attorney's offices or DOJ do not need to be brought
to the attention of PFD.
Sec. 516.64 Comprehensive remedies plan.
(a) A specific, comprehensive remedies plan will be developed in
each significant investigation involving fraud or corruption that
relates to Army procurement activities. When possible, these plans
should be forwarded with the DFARS 209.406-3 reports. In no case,
however, should the report be delayed an appreciable time pending
completion of the plan. The format for a remedies plan is at figure H-2,
appendix G, to this part.
(b) The plan will be developed initially by the PFA with the
participation of the appropriate criminal investigators and other
relevant personnel such as the contracting officer. In significant cases
the PFA should also coordinate a remedies plan early with PFD. Defective
product/product substitution remedies plans must comply with the
requirements of appendix D to this part.
(c) A comprehensive remedies plan will include at a minimum the
following information and considerations:
(1) Summary of allegations and investigative results.
[[Page 95]]
(2) Statement of any adverse impact on a DOD mission. DOD
investigative organizations, commanders, or procurement officials will
also provide this information to prosecutive authorities to enhance
prosecution of offenses or to prepare a victim impact statement pursuant
to Fed. R. Crim. P. 32(c)(2).
(3) The impact upon combat readiness and safety.
(4) Consideration of each criminal, civil, contractual, and
administrative remedy available, and documentation of those remedies,
either planned, in progress, or completed.
(5) Restrictions on the pursuit of any remedies such as grand jury
information or possible compromise of the investigation.
(d) When remedies plans are received by PFD they will be coordinated
with the headquarters of the appropriate DOD criminal investigative
organization involved.
(e) Testing necessary to support the investigation and remedies plan
should comply with figure H-3, appendix G, to this part.
Sec. 516.65 Litigation reports in civil recovery cases.
(a) All substantiated PFI cases will be evaluated by PFAs to
determine whether it is appropriate to recommend civil recovery
proceedings.
(b) Recovery should be considered under both statutory and common
law theories, including but not limited to the following:
(1) False Claims Act, 31 USC 3729.
(2) Anti-Kickback Act, 41 USC 51.
(3) Sherman Act, 15 USC 1-7.
(4) Racketeer Influenced and Corrupt Organizations Act, 18 USC 1961-
1968.
(5) Common law fraud.
(6) Unjust enrichment.
(7) Constructive trust.
(8) Cases where contracts have been procured in violation of the
conflict of interest statute, 18 USC 218. See K&R Engineering Co. v.
United States, 616 F.2d 469 (Ct. Cl., 1980).
(c) When civil recovery appears possible, PFD should be consulted to
determine if a litigation report is necessary. If requested by PFD, the
report should summarize the available evidence and applicable theories
of recovery and be prepared under Sec. 516.23 of this part. To avoid
unnecessary duplication of effort, recovery reports may include and make
liberal references to other reports previously prepared on a given case
such as the DFARS 209.406-3 (48 CFR 209.406-3) report.
(d) The MACOM PFI coordinator and PFA will monitor all civil fraud
recovery efforts throughout the command and will provide training and
technical assistance as required. Status reports of all civil fraud
recovery efforts will be provided through channels as required by PFD.
Sec. 516.66 Administrative and contractual actions.
(a) The following remedial options should be considered in response
to confirmed fraudulent activity:
(1) Contractual.
(i) Termination of contract for default.
(ii) Nonaward of contract based upon a finding of contractor
nonresponsibility. (If this appears to be a valid option, a DFARS
209.406-3 (48 CFR 209.406-3) report must be prepared where contractor
nonresponsibility is based on lack of integrity).
(iii) Rescission of contract.
(iv) Revocation of acceptance.
(v) Use of contract warranties.
(vi) Withholding of payments to contractor. In the case of
withholding pursuant to DFARS 2032.173, the Chief, PFD, is the Army
Remedy Coordinating Official.
(vii) Offset of payments due to contractor from other contracts.
(viii) Revocation of facility security clearances.
(ix) Increased level of quality assurance.
(x) Refusal to accept nonconforming goods.
(xi) Denial of claims submitted by contractors.
(xii) Removal of contract from automated solicitation or payment
system.
(2) Administrative.
(i) Change in contracting forms and procedures.
(ii) Removal or reassignment of government personnel.
(iii) Review of contract administration and payment controls.
[[Page 96]]
(iv) Revocation of warrant of contracting officer.
(v) Suspension of contractor.
(vi) Debarment of contractor.
(b) In cases which are pending review or action by DOJ, PFAs should
coordinate with the DOJ attorney handling the case prior to initiating
any contractual or administrative remedy. In the case of ongoing
criminal investigations, this coordination will be accomplished through
the appropriate DOD criminal investigation organization.
Sec. 516.67 Overseas cases of fraud or corruption.
(a) Commanders of overseas major commands will establish procedures,
similar to this regulation and consistent with the DFARS, and
regulations and directives of their respective unified commands, for
reporting and coordination of available remedies in overseas procurement
fraud and corruption cases involving foreign firms and individuals.
Overseas major commands will also maintain liaison with PFD and provide
periodic reports of remedies coordination results.
(b) Overseas suspension and debarment actions are governed by DFARS
209.403 (48 CFR 209.403). The names of all firms and individuals
suspended or debarred will be expeditiously forwarded to PFD for
inclusion on the List of Parties Excluded From Federal Procurement or
NonProcurement Programs.
(c) Overseas cases of fraud or corruption related to the procurement
process that involve U.S. firms or U.S. citizens may be referred to PFD
for coordination of remedies under this regulation.
Sec. 516.68 Program Fraud Civil Remedies Act (PFCRA).
(a) PFCRA was enacted on 21 October 1986 (Public Law 99-509) and
implemented by DOD on 30 August 1988 (DOD Directive 5505.5). (See
appendix E to this part.)
(b) PFCRA expands the capability of the government to deter and
recover losses from false, fictitious or fraudulent claims and
statements. It is also applicable to program fraud and provides an
administrative remedy in addition to those otherwise available to the
Army in procurement fraud or pay and entitlements fraud cases.
(c) As part of the Army implementation, the Secretary of the Army's
duties and responsibilities under PFCRA as Authority Head are delegated
to the Army General Counsel. The Chief, Intellectual Property Law
Division, is the Army's Reviewing Official within the meaning of PFCRA.
Army implementation also requires DA to follow the policies and
procedures prescribed in enclosure 2 of DOD Directive 5505.5. (See
appendix E to this part.)
(d) The DOD Inspector General (IG) is the Investigating Official
within DOD. The duties of this position will be performed by the
Assistant IG For Investigations. This individual is vested with the
authority to investigate all allegations of liability under PFCRA. That
authority includes the power to task subordinate investigative agencies
to review and report on allegations that are subject to PFCRA. If the
Investigative Official concludes that an action under PFCRA is warranted
in an Army case, the official will submit a report containing the
findings and conclusions of such investigation through PFD to the Army
Reviewing Official.
(e) Pursuant to DOD IG guidance, USACIDC will forward appropriate
cases that appear to qualify for resolution under PFCRA to the
Investigating Official in a timely manner. Additionally, USACIDC will
forward current information regarding the status of remedies pending or
concluded. USACIDC may obtain remedies information by coordinating with
PFD and the cognizant command.
(f) In pay and entitlement or transportation operation fraud cases,
USACIDC will coordinate with the Office of the Secretary of the Army,
Financial Management, Review and Oversight Directorate (SAFM-RO), to
determine the status of any pending or proposed action under the Debt
Collection Act. This information, in addition to information obtained
under Sec. 517.68(e), will be forwarded with appropriate cases to the
Investigating Official.
(g) In those cases where the Investigating Official has submitted a
report
[[Page 97]]
to the Army Reviewing Official for action under PFCRA, PFD will, at the
direction of the Reviewing Official, prepare all legal memoranda as
necessary to transmit the Reviewing Official's intention to issue a
complaint. As part of this responsibility PFD will do the following:
coordinate with the affected command or agency to ensure that all
appropriate remedies have been considered; evaluate the overall
potential benefits to the Army; and, ensure that action under PFCRA is
not duplicative of other remedies already taken. In order to fully
supplement the Reviewing Official's file, PFD may request a litigation
report.
(h) PFD will coordinate all cases involving transportation
operations emanating from Military Traffic Management Command (MTMC)
activity, under the military transportation exception to the FAR, and
all cases involving pay and entitlements fraud with SAFM-RO, for
comments and recommendations. These matters will be forwarded with the
case file to the Reviewing Official.
(i) If the Attorney General approves the issuance of a complaint,
PFD, at the direction of the Army Reviewing Official, shall prepare the
complaint and all necessary memoranda as required. PFD shall also
designate attorneys to represent the Authority in hearings under PFCRA.
Subpart I_Cooperation With the Office of Special Counsel
Sec. 516.69 Introduction.
This subpart prescribes procedures for cooperation with the Office
of Special Counsel (OSC) when OSC is investigating alleged prohibited
personnel practices or other allegations of improper or illegal conduct
within DA activities.
Sec. 516.70 Policy.
(a) DA policy follows:
(1) Civilian personnel actions taken by management officials,
civilian and military, will conform to laws and regulations implementing
established merit system principles and will be free of any prohibited
personnel practices.
(2) Management officials will take vigorous corrective action when
prohibited personnel practices occur. Disciplinary measures under AR
690-700, Chapter 751, may be initiated after consultation and
coordination with appropriate civilian personnel office and labor
counselor.
(b) DA activities will cooperate with OSC in the following ways:
(1) Promoting merit system principles in civilian employment
programs within DA.
(2) Investigating and reporting allegations of improper or illegal
conduct forwarded to the activity by HQDA.
(3) Facilitating orderly investigations by the OSC of alleged
prohibited personnel practices and other matters assigned for
investigation to the OSC, such as violations of the Whistleblower
Protection Act of 1989, the Freedom of Information Act, or the Hatch
Act.
Sec. 516.71 Duties.
(a) DA General Counsel. The DA General Counsel is responsible for
the following:
(1) Provide overall guidance on all issues concerning cooperation
with OSC, including the investigation of alleged prohibited personnel
practices and allegations of improper or illegal conduct.
(2) Review for adequacy and legal sufficiency each OSC report of
investigation that must be personally reviewed by the Secretary of the
Army.
(3) Ensure compliance with the Civil Service Reform Act of 1978 by
obtaining a suitable investigation of allegations of improper or illegal
conduct received from OSC. This includes compliance with time limits for
reporting results of the investigation and personal review of the report
by the Secretary of the Army when required.
(4) Forward to the DOD Inspector General (DODIG) copies of each
allegation of improper or illegal conduct referred to DA by OSC.
(5) Delegate to The Judge Advocate General the authority to act on
behalf of the DA General Counsel in all OSC investigations of prohibited
personnel practices.
(6) Act upon requests for counsel from ``accused'' or ``suspected''
employees.
[[Page 98]]
(b) Chief, Labor and Employment Law Office. The Chief, Labor and
Employment Law Office, OTJAG (DAJA-LE) is responsible for the following:
(1) Act for TJAG as the Senior Management Official in cooperating
with OSC. As Senior Management Official, the Chief, DAJA-LE, through
TJAG, will be responsible to the DA General Counsel for administration
of the policies and procedures contained in this chapter.
(2) Promptly inform the DA General Counsel of any OSC investigation
and consult with the DA General Counsel on any legal or policy issue
arising from an OSC investigation.
(3) Serve as the HQDA point of contact in providing assistance to
OSC.
(4) Act as DA attorney-of-record in administrative matters initiated
by OSC before the MSPB which arise from an OSC investigation. As DA
attorney-of-record, the Chief, DAJA-LE, will file necessary pleadings
and make necessary appearances before the MSPB to represent DA
interests.
(5) Monitor ongoing OSC investigations within DA.
(6) Ensure that appropriate DA personnel are fully apprised of their
rights, duties and the nature and basis for an OSC investigation.
(7) Review and prepare recommendations to the General Counsel
concerning any OSC recommended corrective action referred to DA. Such
review and recommendations will address whether disciplinary action
should be taken against DA civilian employees or military members, and
whether the information warrants referral to appropriate authorities for
corrective and disciplinary action.
(8) Seek OSC approval of DA proposed disciplinary action against an
employee for an alleged prohibited personnel practice or other
misconduct which is the subject of or related to any OSC investigation.
(9) Review and prepare recommendations for DA General Counsel
concerning requests for counsel, to include identifying available DA
attorneys to act as individual representatives. Upon approval of DA
General Counsel, appoint DA civilian and military attorneys, to include
attorneys from the U.S. Army Materiel Command and the Corps of
Engineers, to represent individual military members or employees.
(10) Determine, to the extent practicable, whether an investigation
is being or has been conducted which duplicates, in whole or in part, a
proposed or incomplete OSC investigation, and convey that information to
the OSC whenever it might avoid redundant investigative efforts.
(11) Provide guidance and assistance to activity Labor Counselors in
fulfilling their duties as Liaison Officers.
(c) Activity Labor Counselor. The activity Labor Counselor will do
the following:
(1) Act as Liaison Officer for OSC investigations arising within the
command, activity or installation serviced by the Labor Counselor's
client Employment Office.
(2) Promptly inform the MACOM labor counselor and the Chief, DAJA-
LE, of any OSC inquiry or investigation.
(3) Act as the legal representative of the command, activity, or
installation.
(4) Assist the OSC investigator with administrative matters related
to the investigation, such as requests for witnesses and documents.
(5) Process all OSC requests for documents.
(6) Make appropriate arrangements for OSC requests to interview
civilian employees and military members.
(7) Ensure that personnel involved are advised of the nature and
basis for an OSC investigation, the authority of the OSC, and their
rights and duties.
(8) Consult with the Chief, DAJA-LE, on policy and legal issues
arising from the OSC investigation.
(9) Keep the Chief, DAJA-LE, informed of the status of the OSC
investigation.
(l0) Act as agency representative before the MSPB in actions
initiated by employees (individual right of action appeals).
Sec. 516.72 Procedures.
(a) Witnesses and counsel for consultation.
(1) DA military and civilian managers, supervisors, and employees
who are requested by OSC for an interview will be made available in
accordance
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with arrangements the Labor Counselor will establish. Requests for the
testimony of IGs will be coordinated with the Inspector General Legal
Office, SAIG-ZXL, DSN 227-9734 or Commercial (703) 697-9734.
(2) The Labor Counselor will ensure that witnesses are aware of
their obligation to answer OSC questions, their potential to be
considered ``suspects'' in OSC investigations, and their right to the
assistance of counsel during interviews with OSC representatives. If the
requested witness is not an ``accused'' or ``suspected'' individual and
the witness asks for assistance of counsel, a DA attorney will be made
available for the limited purpose of consultation regarding the witness'
rights and obligations. An attorney-client relationship will not be
established. (See appendix F to this part).
(3) The Labor Counselor will arrange for individual counsel for
consultation from local assets. If local assets are not sufficient,
assistance may be requested from other DOD activities in the area or
from HQDA, DAJA-LE. DA attorneys tasked to consult with one or more
witnesses individually will not be tasked to represent the DA activity
concerned.
(4) The Labor Counselor, as the legal representative of the
activity, is precluded from assisting or representing individual
witnesses during OSC interviews.
(b) ``Accused'' or ``suspected'' DA personnel and counsel for
representation.
(1) If the OSC identifies a DA civilian employee or a military
member as an ``accused'' or ``suspected'' individual, or if the Labor
Counselor concludes that an individual is a ``suspect,'' the Labor
Counselor will inform the individual. The Labor Counselor also will
advise the individual of the availability of counsel for representation
upon approval by DA General Counsel. (See Glossary, Counsel for
Representation).
(2) If the ``suspected'' individual desires legal representation by
DA, the individual must request counsel by submitting a written request
through DAJA-LE to DA General Counsel. (See figure I-1, appendix G, to
this part).
(3) During the investigation but prior to DA General Counsel
approval of the request for counsel, an ``accused'' or ``suspected''
individual will be provided the assistance of counsel for consultation
in the same manner as any other OSC requested witness. ``Accused'' or
``suspected'' individuals who do not request counsel for representation
will be provided counsel for consultation in the same manner as any
other OSC requested witness.
(4) If the DA General Counsel approves the request for counsel, the
Chief, DAJA-LE, will appoint a DA attorney to represent the individual.
This appointment may be made telephonically but will be confirmed in
writing. The Chief, DAJA-LE, will make appropriate coordination with
MACOM SJAs and command counsel to confirm availability of the attorney.
(5) An attorney appointed by DA may represent a civilian employee in
any proceeding initiated by OSC before the MSPB. However, counsel
provided by DA may not represent the employee in any proceeding
initiated by DA, in any appeal from a final decision by the MSPB, or in
any collateral proceeding before any forum other than the MSPB.
(6) OSC may not bring a disciplinary action before the MSPB against
a military member. Accordingly, DA counsel will not be required to
represent the military member in any MSPB disciplinary proceeding.
However, counsel may represent the member during the OSC investigation
with the understanding that the evidence obtained by OSC may be referred
to the member's command for possible disciplinary action under the UCMJ
or appropriate regulations. If DA initiates action against the military
member for misconduct disclosed in the OSC investigation, the member
will obtain counsel as provided under the UCMJ or relevant regulations.
(c) Records.
(1) OSC requests for records must be in writing. The Labor Counselor
will assist OSC representatives in identifying the custodian of specific
records sought during the inquiry.
(2) Generally, requested records should be furnished to OSC
representatives if such records would be released under AR 25-55 or AR
340-21 to other government agencies in the normal course of official
business. Records
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constituting attorney work product should not be released without
approval of the Chief, DAJA-LE. IG records will not be released without
the approval of the Inspector General. (AR 20-1). The Labor Counselor
should seek guidance from the Chief, DAJA-LE, if there is any doubt
concerning the release of records.
(3) If, after completion of the OSC investigation, the OSC files a
complaint against DA or a DA employee, release of records and other
information will be accomplished pursuant to MSPB rules of discovery (5
CFR part 1201, subpart B).
(d) Funding. The command, activity, or installation within which the
allegations of misconduct arose will provide funding for travel, per
diem and other necessary expenses related to the OSC investigation.
These expenses may include appropriate funding for witnesses, counsel
for consultation and DA General Counsel approved counsel for
representation.
Sec. 516.73 Assistance from HQDA.
Labor Counselors may seek guidance on questions arising from
implementation of this chapter by calling the Chief, DAJA-LE, DSN 225-
9476/9481 or Commercial (703) 695-9476/9481.
Subpart J_Soldiers Summoned To Serve on State and Local Juries
Sec. 516.74 General.
(a) This subpart implements 10 U.S.C. Sec. 982 and DOD Directive
5525.8. It establishes Army policy concerning soldiers on active duty
who are summoned to serve on state and local juries.
(b) This subpart does not apply to Army National Guard soldiers in
an annual training or full-time AGR (Active Guard Reserve) status under
Title 32, U.S. Code. Soldiers in a Title 32 status must refer to their
respective state law for relief from state or local jury duty.
Sec. 516.75 Policy.
(a) Active duty soldiers should fulfill their civic responsibility
by serving on state and local juries, so long as it does not interfere
with military duties.
(b) The following active duty soldiers are exempt from complying
with summons to serve on state and local juries:
(1) General officers.
(2) Commanders.
(3) Active duty soldiers stationed outside the United States, Puerto
Rico, Guam, the Northern Mariana Islands, American Samoa, and the Virgin
Islands.
(4) Active duty soldiers in a training status.
(5) Active duty soldiers assigned to forces engaged in operations.
(c) Other active duty soldiers may be exempted from serving on local
juries if compliance with such summons would have either of the
following effects:
(1) It would unreasonably interfere with performance of the
soldier's military duties; or,
(2) It would adversely affect the readiness of a summoned soldier's
unit, command, or activity.
Sec. 516.76 Exemption determination authority.
(a) The commander exercising special court-martial convening
authority (SPCMCA) over a unit has the authority to determine whether a
soldier of that unit, who has been served with a summons, is exempt from
serving on a state or local jury unless that authority has been limited
or withheld in accordance with paragraph (b) or (c) of this section.
This authority may not be delegated to a subordinate commander who does
not exercise SPCMCA.
(b) A commander superior to the SPCMCA, who also exercises SPCMCA or
general court-martial convening authority (GCMCA) over a unit, may limit
or withhold the exemption determination authority of subordinate
commanders.
(c) A GCMCA, who orders a unit or soldier assigned to one command to
be attached or detailed to another command for disciplinary purposes
(for example, ``for administration'' or ``for administration of military
justice''), may reserve exemption determination authority to the
commander exercising SPCMCA in the chain of command to which the unit or
soldier is assigned rather than the chain of command to which the unit
or soldier is attached or detailed.
[[Page 101]]
Sec. 516.77 Procedures for exemption.
(a) Active duty soldiers served with a summons to serve on a state
or local jury will promptly advise their commander and provide copies of
pertinent documents.
(b) Unit commanders will evaluate the summons considering both the
individual soldier's duties and the unit mission. Coordination with the
servicing judge advocate or legal adviser and with the appropriate state
or local official may be necessary to determine any impact on the
soldier's duties or on unit readiness.
(1) If the soldier is not exempt under Sec. 516.75 (b) or (c), the
commander will process the soldier for permissive TDY in accordance with
AR 630-5, Leaves and Passes.
(2) If the soldier is exempt under Sec. 516.75 (b) or (c), the
commander will forward the summons and any related documentation, with
recommendations, through the chain of command to the commander with
exemption determination authority over the soldier concerned.
(c) The commander with exemption determination authority over the
soldier concerned will determine whether the soldier is exempt. His
determination is final.
(d) The exemption determination authority will notify responsible
state or local officials whenever a soldier summoned for jury duty is
exempt. The notification will cite 10 U.S.C. 982 as authority.
Sec. 516.78 Status, fees, and expenses.
(a) Soldiers who are required to comply with summons to serve on
state or local juries will be placed on permissive TDY under the
provisions of AR 630-5.
(b) Jury fees accruing to soldiers for complying with the summons to
serve on state and local juries must be turned over to the appropriate
finance office for deposit into the U.S. Treasury. Commands will
establish procedures with local authorities and their servicing finance
and accounting activity to ensure that such jury fees are so deposited.
Soldiers, however, may keep any reimbursement from state or local
authority for expenses incurred in the performance of jury duty,
including transportation, meals, and parking.
Sec. Appendix A to Part 516--References
Publications referenced in this part can be obtained at the National
Technical Information Services, U.S. Department of Commerce, 5285 Port
Royal Road, Springfield, VA 22161.
Required Publications
AR 25-55, The Department of the Army Freedom of Information Act Program.
(Cited in Sec. Sec. 516.40, 516.72)
AR 27-10, Military Justice. (Cited in Sec. 516.4)
AR 27-20, Claims. (Cited in Sec. Sec. 516.4, 516.33, 516.22)
AR 27-60, Patents, Inventions, and Copyrights.
AR 37-60, Pricing for Material and Services. (Cited in Sec. 516.43.)
AR 37-103, Finance and Accounting for Installations: Disbursing
Operations. (Cited in Sec. 516.22.)
AR 60-20, Operating Policies. (Cited in Sec. 516.22.)
AR 190-9, Absentee Deserter Apprehension Program and Surrender of
Military Personnel to Civilian Law Enforcement Agencies.
(Cited in Sec. 516.9)
AR 210-47, State and Local Taxation of Lessee's Interest in Wherry Act
Housing (Title VIII of the National Housing Act).
AR 215-1, Administration of Army Morale, Welfare, and Recreation
Activities and Nonappropriated Fund Instrumentalities. (Cited
in Sec. 516.22.)
AR 215-2, The Management and Operation of Army Morale, Welfare, and
Recreation Activities and Nonappropriated Fund
Instrumentalities. (Cited in Sec. 516.22.)
AR 310-1, Publications, Blank Forms, and Printing Management.
AR 340-21, The Army Privacy Program. (Cited in Sec. Sec. 516.40,
516.72.)
AR 380-5, Department of the Army Information Security Program.
AR 405-25, Annexation. (Cited in Sec. 516.22.)
AR 630-5, Leaves and Passes. (Cited in Sec. Sec. 516.55, 516.77,
516.78.)
AR 630-10, Absence Without Leave, Desertion, and Administration of
Personnel Involved in Civilian Court Proceedings. (Cited in
Sec. 516.9)
Related Publications
A related publication is merely a source of additional information.
The user does not have to read it to understand the regulation.
AR 20-1, Inspector General Activities and Procedures. (Cited in
Sec. Sec. 516.41, 516.72.)
AR 27-1, Judge Advocate Legal Service.
AR 27-3, Legal Assistance. (Cited in Sec. 516.6.)
AR 27-10, Military Justice. (Cited in Sec. Sec. 516.4, 516.5, 516.15.)
[[Page 102]]
AR 27-50, Status of Forces Policies, Procedures, and Information. (Cited
in Sec. 516.15.)
AR 37-104-3, Military Pay and Allowances Procedures.
AR 37-105, Finance and Accounting for Installations: Civilian Pay
Procedures.
AR 55-19, Marine Casualties. (Cited in Sec. 516.22.)
AR 190-29, Misdemeanors and Uniform Violation Notices Referred to U.S.
Magistrates or District Courts.
AR 190-40, Serious Incident Report. (Cited in Sec. 516.15.)
AR 210-50, Family Housing Management. (Cited in Sec. 516.37.)
AR 335-15, Management Information Control System. (Cited in Sec.
516.15.)
AR 600-40, Apprehension, Restraint, and Release to Civil Authorities.
AR 600-50, Standards of Conduct for Department of the Army Personnel.
AR 690-700, Personnel Relations and Services. (Cited in Sec. 516.70.)
Prescribed Form
DA Form 4, Department of the Army Certification for Authentication of
Records. (Prescribed in Sec. 516.25, 516.35.)
Referenced Forms
DA Form 2631-R, Medical Care-Third Party Liability Notification.
DA Form 3154, MSA Invoice and Receipt.
Sec. Appendix B to Part 516--Mailing Addresses
The following is a list of frequently referred to Department of the
Army Services/Divisions/Offices and their mailing addresses:
COMMANDER (JACS-Z), U.S. ARMY CLAIMS SERVICE, OTJAG, BUILDING 4411, ROOM
206, LLEWELLYN AVENUE, FORT GEORGE G. MEADE, MD 20755-5360
(1) PERSONNEL CLAIMS AND RECOVERY DIVISION (JACS-PC), U.S. ARMY
CLAIMS SERVICE, OTJAG, BUILDING 4411, ROOM 206, LLEWELLYN AVENUE, FORT
GEORGE G. MEADE, MD 20755-5360
(2) TORT CLAIMS DIVISION (JACS-TC), U.S. ARMY CLAIMS SERVICE, OTJAG,
BUILDING 4411, ROOM 206, LLEWELLYN AVENUE, FORT GEORGE G. MEADE, MD
20755-5360
CONTRACT APPEALS DIVISION, HQDA(DAJA-CA), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
CONTRACT LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY PENTAGON,
WASHINGTON, DC 20310-2200
CRIMINAL LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY PENTAGON,
WASHINGTON, DC 20310-2200
ENVIRONMENTAL LAW DIVISION, HQDA(DAJA-EL), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
LABOR AND EMPLOYMENT LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY
PENTAGON, WASHINGTON, DC 20310-2200,
LITIGATION DIVISION, HQDA(DAJA-LT), 901 NORTH STUART STREET, ARLINGTON,
VA 22203-1837
(1) CIVILIAN PERSONNEL BRANCH, HQDA(DAJA-LTC), 901 NORTH STUART
STREET, ARLINGTON, VA 22203-1837
(2) GENERAL LITIGATION BRANCH, HQDA(DAJA-LTG), 901 NORTH STUART
STREET, ARLINGTON, VA 22203-1837
(3) MILITARY PERSONNEL BRANCH, HQDA(DAJA-LTM), 901 NORTH STUART
STREET, ARLINGTON, VA 22203-1837
(4) TORT BRANCH, HQDA(DAJA-LTT), 901 NORTH STUART STREET, ARLINGTON,
VA 22203-1837
PERSONNEL, PLANS, AND TRAINING OFFICE, THE JUDGE ADVOCATE GENERAL, 2200
ARMY PENTAGON, WASHINGTON, DC 20310-2200
PROCUREMENT FRAUD DIVISION, HQDA(DAJA-PF), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
INTELLECTUAL PROPERTY DIVISION, HQDA(JALS-IP), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
REGULATORY LAW OFFICE, HQDA(JALS-RL), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
THE JUDGE ADVOCATE GENERAL, 2200 ARMY PENTAGON, WASHINGTON, DC 20310-
2200
THE AJAG FOR CIVIL LAW & LITIGATION, THE JUDGE ADVOCATE GENERAL, 2200
ARMY PENTAGON, WASHINGTON, DC 20310-2200
U.S. ARMY TRIAL DEFENSE SERVICE, HQDA(JALS-TD), NASSIF BUILDING, FALLS
CHURCH, VA 22041-5013
Sec. Appendix C to Part 516--Department of Defense Directive 5405.2,
Release of Official Information in Litigation and Testimony by DoD
Personnel as Witnesses
Department of Defense Directive
July 23, 1985, Number 5405.2, GC, DOD
Subject: Release of Official Information in Litigation and Testimony by
DoD Personnel as Witnesses
References:
(a) Title 5, United States Code, Sections 301, 552, and 552a
(b) Title 10, United States Code, Section 133
[[Page 103]]
(c) DoD Directive 5220.6, ``Industrial Personnel Security Clearance
Program,'' December 20, 1976
(d) DoD Directive 5200.1-R, ``Information Security Program Regulation,''
August 1982, authorized by DoD Directive 5200.1, June 7, 1982
(e) DoD Directive 5230.25, ``Withholding of Unclassified Technical Data
from Public Disclosure,'' November 6, 1984
(f) DoD Instruction 7230.7, ``User Charges,'' January 29, 1985
(g) DoD Directive 5400.7-R, ``DoD Freedom of Information Act Program,''
December 1980, authorized by DoD Directive 5400.7, March 24,
1980
A. Purpose
Under Section 301 reference (a) and reference (b), this Directive
establishes policy, assigns responsibilities, and prescribes procedures
for the release of official DoD information in litigation and for
testimony by DoD personnel as witnesses during litigation.
B. Applicability and Scope
1. This Directive applies to the Office of the Secretary of Defense
(OSD), the Military Departments, the Organization of the Joint Chiefs of
Staff (OJCS), the Unified and Specified Commands, and the Defense
Agencies (hereafter referred to as ``DoD Components''), and to all
personnel of such DoD Components.
2. This Directive does not apply to the release of official
information or testimony by DoD personnel in the following situations:
a. Before courts-martial convened by the authority of the Military
Departments or in administrative proceedings conducted by or on behalf
of a DoD Component;
b. Pursuant to administrative proceedings conducted by or on behalf
of the Equal Employment Opportunity Commission (EEOC) or the Merit
Systems Protection Board (MSPB), or pursuant to a negotiated grievance
procedure under a collective bargaining agreement to which the
Government is a party;
c. In response to requests by Federal Government counsel in
litigation conducted on behalf of the United States;
d. As part of the assistance required in accordance with the Defense
Industrial Personnel Security Clearance Program under DoD Directive
5220.6 (reference (c)); or
e. Pursuant to disclosure of information to Federal, State, and
local prosecuting and law enforcement authorities, in conjunction with
an investigation conducted by a DoD criminal investigative organization.
3. This Directive does not supersede or modify existing laws or DoD
programs governing the testimony of DoD personnel or the release of
official DoD information during grand jury proceedings, the release of
official information not involved in litigation, or the release of
official information pursuant to the Freedom of Information Act, 5
U.S.C. Section 552 (reference (a)) or the Privacy Act, 5 U.S.C. Section
552a (reference (a)), nor does this Directive preclude treating any
written request for agency records that is not in the nature of legal
process as a request under the Freedom of Information or Privacy Acts.
4. This Directive is not intended to infringe upon or displace the
responsibilities committed to the Department of Justice in conducting
litigation on behalf of the United States in appropriate cases.
5. This Directive does not preclude official comment on matters in
litigation in appropriate cases.
6. This Directive is intended only to provide guidance for the
internal operation of the Department of Defense and is not intended to,
does not, and may not be relied upon to create any right or benefit,
substantive or procedural, enforceable at law against the United States
or the Department of Defense.
C. Definitions
1. Demand. Subpoena, order, or other demand of a court of competent
jurisdiction, or other specific authority for the production,
disclosure, or release of official DoD information or for the appearance
and testimony of DoD personnel as witnesses.
2. DoD Personnel. Present and former U.S. military personnel;
Service Academy cadets and midshipmen; and present and former civilian
employees of any Component of the Department of Defense, including
nonappropriated fund activity employees; non-U.S. nationals who perform
services overseas, under the provisions of status of forces agreements,
for the United States Armed Forces; and other specific individuals hired
through contractual agreements by or on behalf of the Department of
Defense.
3. Litigation. All pretrial, trial, and post-trial stages of all
existing or reasonably anticipated judicial or administrative actions,
hearings, investigations, or similar proceedings before civilian courts,
commissions, boards (including the Armed Services Board of Contract
Appeals), or other tribunals, foreign and domestic. This term includes
responses to discovery requests, depositions, and other pretrial
proceedings, as well as responses to formal or informal requests by
attorneys or others in situations involving litigation.
4. Official Information. All information of any kind, however
stored, that is in the custody and control of the Department of Defense,
relates to information in the custody and control of the Department, or
was acquired by DoD personnel as part of their official duties or
because of their official status
[[Page 104]]
within the Department while such personnel were employed by or on behalf
of the Department or on active duty with the United States Armed Forces.
D. Policy
It is DoD policy that official information should generally be made
reasonably available for use in Federal and state courts and by other
governmental bodies unless the information is classified, privileged, or
otherwise protected from public disclosure.
E. Responsibilities
1. The General Counsel, Department of Defense (GC, DoD), shall
provide general policy and procedural guidance by the issuance of
supplemental instructions or specific orders concerning the release of
official DoD information in litigation and the testimony of DoD
personnel as witnesses during litigation.
2. The Heads of DoD Components shall issue appropriate regulations
to implement this Directive and to identify official information that is
involved in litigation.
F. Procedures
1. Authority To Act
a. In response to a litigation request or demand for official DoD
information or the testimony of DoD personnel as witnesses, the General
Counsels of DoD, Navy, and the Defense Agencies; the Judge Advocates
General of the Military Departments; and the Chief Legal Advisors to the
JCS and the Unified and Specified Commands, with regard to their
respective Components, are authorized--after consulting and coordinating
with the appropriate Department of Justice litigation attorneys, as
required--to determine whether official information originated by the
Component may be released in litigation; whether DoD personnel assigned
to or affiliated with the Component may be interviewed, contacted, or
used as witnesses concerning official DoD information or as expert
witnesses; and what, if any, conditions will be imposed upon such
release, interview, contact, or testimony. Delegation of this authority,
to include the authority to invoke appropriate claims of privilege
before any tribunal, is permitted.
b. In the event that a DoD Component receives a litigation request
or demand for official information originated by another Component, the
receiving Component shall forward the appropriate portions of the
request or demand to the originating Component for action in accordance
with this Directive. The receiving Component shall also notify the
requestor, court, or other authority of its transfer of the request or
demand.
c. Notwithstanding the provisions of paragraphs F.1.a. and b., the
GC, DoD, in litigation involving terrorism, espionage, nuclear weapons,
intelligence means or sources, or otherwise as deemed necessary, may
notify Components that GC, DoD, will assume primary responsibility for
coordinating all litigation requests and demands for official DoD
information or the testimony of DoD personnel, or both; consulting with
the Department of Justice, as required; and taking final action on such
requests and demands.
2. Factors To Consider
In deciding whether to authorize the release of official DoD
information or the testimony of DoD personnel concerning official
information (hereinafter referred to as ``the disclosure'') pursuant to
paragraph F.1., DoD officials should consider the following types of
factors:
a. Whether the request or demand is unduly burdensome or otherwise
inappropriate under the applicable court rules;
b. Whether the disclosure, including release in camera, is
appropriate under the rules of procedure governing the case or matter in
which the request or demand arose;
c. Whether the disclosure would violate a statute, executive order,
regulation, or directive;
d. Whether the disclosure, including release in camera, is
appropriate or necessary under the relevant substantive law concerning
privilege;
e. Whether the disclosure, except when in camera and necessary to
assert a claim of privilege, would reveal information properly
classified pursuant to the DoD Information Security Program under DoD
5200.1-R (reference (d)), unclassified technical data withheld from
public release pursuant to DoD Directive 5230.25 (reference (e)), or
other matters exempt from unrestricted disclosure; and
f. Whether disclosure would interfere with ongoing enforcement
proceedings, compromise constitutional rights, reveal the identity of an
intelligence source or confidential informant, disclose trade secrets or
similarly confidential commercial or financial information, or otherwise
be inappropriate under the circumstances.
3. Decisions on Litigation Requests and Demands
a. Subject to paragraph F.3.e., DoD personnel shall not, in response
to a litigation request or demand, produce, disclose, release, comment
upon, or testify concerning any official DoD information without the
prior written approval of the appropriate DoD official designated in
paragraph F.1. Oral approval may be granted, but a record of such
approval shall be made and retained in accordance with the applicable
implementing regulations.
[[Page 105]]
b. If official DoD information is sought, through testimony or
otherwise, by a litigation request or demand, the individual seeking
such release or testimony must set forth, in writing and with as much
specificity as possible, the nature and relevance of the official
information sought. Subject to paragraph F.3.e., DoD personnel may only
produce, disclose, release, comment upon, or testify concerning those
matters that were specified in writing and properly approved by the
appropriate DoD official designated in paragraph F.1. See United States
ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
c. Whenever a litigation request or demand is made upon DoD
personnel for official DoD information or for testimony concerning such
information, the personnel upon whom the request or demand was made
shall immediately notify the DoD official designated in paragraph F.1.
for the Component to which the individual contacted is or, for former
personnel, was last assigned. In appropriate cases, the responsible DoD
official shall thereupon notify the Department of Justice of the request
or demands. After due consultation and coordination with the Department
of Justice, as required, the DoD official shall determine whether the
individual is required to comply with the request or demand and shall
notify the requestor or the court or other authority of the
determination reached.
d. If, after DoD personnel have received a litigation request or
demand and have in turn notified the appropriate DoD official in
accordance with paragraph F.3.c., a response to the request or demand is
required before instructions from the responsible official are received,
the responsible official designated in paragraph F.1. shall furnish the
requestor or the court or other authority with a copy of this Directive
and applicable implementing regulations, inform the requestor or the
court or other authority that the request or demand is being reviewed,
and seek a stay of the request or demand pending a final determination
by the Component concerned.
e. If a court of competent jurisdiction or other appropriate
authority declines to stay the effect of the request or demand in
response to action taken pursuant to paragraph F.3.d., or if such court
or other authority orders that the request or demand must be complied
with notwithstanding the final decision of the appropriate DoD official,
the DoD personnel upon whom the request or demand was made shall notify
the responsible DoD official of such ruling or order. If the DoD
official determines that no further legal review of or challenge to the
court's ruling or order will be sought, the affected DoD personnel shall
comply with the request, demand, or order. If directed by the
appropriate DoD official, however, the affected DoD personnel shall
respectfully decline to comply with the demand. See United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
4. Fees
Consistent with the guidelines in DoD Instruction 7230.7 (reference
(f)), the appropriate officials designated in paragraph F.1. are
authorized to charge reasonable fees, as established by regulation and
to the extent not prohibited by law, to parties seeking, by request or
demand, official DoD information not otherwise available under the DoD
Freedom of Information Act Program (reference (g)). Such fees, in
amounts calculated to reimburse the Government for the expense of
providing such information, may include the costs of time expended by
DoD employees to process and respond to the request or demand; attorney
time for reviewing the request or demand and any information located in
response thereto and for related legal work in connection with the
request or demand; and expenses generated by materials and equipment
used to search for, produce, and copy the responsive information. See
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978).
5. Expert or Opinion Testimony
DoD personnel shall not provide, with or without compensation,
opinion or expert testimony concerning official DoD information,
subjects, or activities, except on behalf of the United States or a
party represented by the Department of Justice. Upon a showing by the
requestor of exceptional need or unique circumstances and that the
anticipated testimony will not be adverse to the interests of the
Department of Defense or the United States, the appropriate DoD official
designated in paragraph F.1. may, in writing, grant special
authorization for DoD personnel to appear and testify at no expense to
the United States. If, despite the final determination of the
responsible DoD official, a court of competent jurisdiction, or other
appropriate authority, orders the appearance and expert or opinion
testimony of DoD personnel, the personnel shall notify the responsible
DoD official of such order. If the DoD official determines that no
further legal review of or challenge to the court's order will be
sought, the affected DoD personnel shall comply with the order. If
directed by the appropriate DoD official, however, the affected DoD
personnel shall respectfully decline to comply with the demand. See
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
G. Effective Date and Implementation
This Directive is effective immediately. Forward two copies of
implementing documents to the General Counsel, DoD, within 120 days.
Signed by William H. Taft, IV
Deputy Secretary of Defense.
[[Page 106]]
Sec. Appendix D to Part 516--Department of Defense Directive 7050.5,
Coordination of Remedies for Fraud and Corruption Related to Procurement
Activities
Department of Defense Directive
June 7, 1989, Number 7050.5, IG, DOD
Subject: Coordination of Remedies for Fraud and Corruption Related to
Procurement Activities
References:
(a) DoD Directive 7050.5, subject as above, June 28, 1985 (hereby
canceled)
(b) Public Law 97-291, ``The Victim and Witness Protection Act of
1982,'' October 12, 1982
(c) Defense FAR Supplement (DFARS), Subpart 4.6, ``Contract Reporting''
(d) DoD Instruction 4105.61, ``DoD Procurement Coding Manual,'' May 4,
1973
(e) DoD 4105.61-M, ``Procurement Coding Manual'' (Volume I), October
1988, authorized by DoD Instruction 4105.61 May 4, 1973
A. Reissuance and Purpose
This Directive reissues reference (a) to update policies,
procedures, and responsibilities for the coordination of criminal,
civil, administrative, and contractual remedies stemming from
investigation of fraud or corruption related to procurement activities.
More effective and timely communication of information developed during
such investigations will enable the Department of Defense to take the
most appropriate of the available measures.
B. Applicability
This Directive applies to the Office of the Secretary of Defense
(OSD); the Inspector General, Department of Defense (IG, DoD); the
Military Departments; the Defense Agencies; and the DoD Field Activities
(hereafter referred to collectively as ``DoD Components'').
C. Definitions
1. DoD Criminal Investigative Organizations. Refers to the U.S. Army
Criminal Investigation Command; the Naval Investigative Service Command;
the U.S. Air Force Office of Special Investigations; and the Defense
Criminal Investigative Service, Office of the IG, DoD (OIG, DoD).
2. Significant. Refers to all fraud cases involving an alleged loss
of $100,000, or more; all corruption cases related to procurement that
involved bribery, gratuities, or conflicts of interest; and any
investigation into defective products or product substitution in which a
SERIOUS HAZARD to health, safety, or operational readiness is indicated,
regardless of loss value.
D. Policy
It is DoD policy that:
1. Each of the DoD Components shall monitor, from its inception, all
significant investigations of fraud or corruption related to procurement
activities affecting its organizations, for the purpose of ensuring that
all possible criminal, civil, administrative, and contractual remedies
in such cases are identified to cognizant procurement and command
officials and that appropriate remedies are pursued expeditiously. This
process shall include appropriate coordination with all other affected
DoD Components.
2. All investigations of fraud or corruption related to procurement
activities shall be reviewed to determine and implement the appropriate
contractual and administrative actions that are necessary to recover
funds lost through fraud or corruption and to ensure the integrity of
DoD programs and operations.
3. Appropriate civil, contractual, and administrative actions,
including those set forth in enclosure 1, shall be taken expeditiously.
During an investigation and before prosecution or litigation, and when
based in whole or in part on evidence developed during an investigation,
such actions shall be taken with the advance knowledge of the
responsible DoD criminal investigative organization and, when necessary,
the appropriate legal counsel in the Department of Defense and the
Department of Justice (DoJ). When appropriate, such actions shall be
taken before final resolution of the criminal or civil case.
E. Responsibilities
1. The Heads of DoD Components shall:
a. Establish a centralized organization (hereafter referred to as
``the centralized organization'') to monitor and ensure the coordination
of criminal, civil, administrative, and contractual remedies for each
significant investigation of fraud or corruption related to procurement
activities affecting the DoD Component.
b. Establish procedures requiring the centralized organization to
discuss regularly with the assigned DoD criminal investigative
organization(s) such issues as the current status of significant
investigations and their coordination with prosecutive authorities.
c. Establish procedures requiring that all coordination involving
the DoJ, during the pendency of a criminal investigation, is
accomplished by or with the advance knowledge of the appropriate DoD
criminal investigative organization(s).
d. Establish procedures to ensure appropriate coordination of
actions between the
[[Page 107]]
centralized organizations of any DoD Components affected by a
significant investigation of fraud or corruption related to procurement
activities.
e. Establish procedures to ensure that all proper and effective
civil, administrative, and contractual remedies available to the
Department of Defense are, when found applicable and appropriate,
considered and undertaken promptly by the necessary DoD officials (e.g.,
commanders, programs officials, and contracting officers). This includes
initiation of any suspension and debarment action within 30 days of an
indictment or conviction. The centralized organization shall ensure that
all proposed actions are coordinated with appropriate investigative
organization.
f. Establish procedures to ensure that a specific comprehensive
remedies plan is developed for each significant investigation involving
fraud or corruption related to procurement activities. These procedures
shall include the participation of the appropriate DoD criminal
investigative organization in the development of the plan.
g. Establish procedures to ensure that in those significant
investigations of fraud or corruption related to procurement activities
when adverse impact on a DoD mission can be determined, such adverse
impact is identified and documented by the centralized organization.
This information is to be used by the centralized organization of the
DoD Component concerned in development of the remedies plan required in
paragraph E.1.f., above, and shall be furnished to prosecutors as stated
in paragraph E.2.e., below. The information shall also be used by the
centralized organizations in development and preparation of ``Victim
Impact Statements'' for use in sentencing proceedings, as provided for
P.L. 97-291 (reference (b)). Some examples of adverse impact on a DoD
mission are as follows:
(1) Endangerment of personnel or property.
(2) Monetary loss.
(3) Denigration of program or personnel integrity.
(4) Compromise of the procurement process.
(5) Reduction or loss of mission readiness.
h. Ensure training materials are developed on fraud and corruption
in the procurement process, and that all procurement and procurement-
related training includes a period of such instruction appropriate to
the duration and nature of the training.
i. Establish procedures enabling the centralized organization to
ensure that safety and readiness issues are examined and appropriately
dealt with for all cases in which a notice is required under paragraph
E.2.i., below. The minimum procedures to be followed by the centralized
organization are in enclosure 3.
j. Ensure that appropriate command, procurement, and investigative
organizations are provided sufficient information to determine if
further inquiry is warranted on their part to prevent reoccurrence and
detect other possible fraud within their activity.
2. The Secretaries of the Military Departments and the Inspector
General, Department of Defense (IG, DoD), or their designees, shall
establish procedures that ensure that their respective criminal
investigative organizations will:
a. Notify, in writing, the centralized organization for the affected
DoD Component of the start of all significant investigations involving
fraud or corruption that are related to procurement activities. Initial
notification shall include the following elements:
(1) Case title.
(2) Case control number.
(3) Investigative agency and office of primary responsibility.
(4) Date opened.
(5) Predication.
(6) Suspected offense(s).
b. Notify expeditiously the Defense Investigative Service (DIS) of
any investigations that develop evidence that would impact on DoD-
cleared industrial facilities or personnel.
c. Discuss regularly with the centralized organization such issues
as the current status of significant investigations and their
coordination with prosecutive authorities. If the DoD criminal
investigative organization has prepared any documents summarizing the
current status of the investigation, such documents shall be provided to
the centralized organization. Completed reports of significant
investigations also should be provided to the centralized organization.
d. Provide to the appropriate procurement officials, commanders, and
suspension and debarment authorities, when needed to allow consideration
of applicable remedies, any court records, documents, or other evidence
of fraud or corruption related to procurement activities. Such
information shall be provided in a timely manner to enable the
suspension and debarment authority to initiate suspension and debarment
action within 30 days of an indictment or conviction.
e. Provide expeditiously to prosecutive authorities the information
regarding any adverse impact on a DoD mission, that is gathered under
paragraph E.1.g., above, for the purpose of enhancing the
prosecutability of a case. Such information also should be used in
preparing a victim impact statement for use in sentencing proceedings as
provided for in Public Law 97-291.
f. Gather, at the earliest practical point in the investigation,
without reliance on grand jury subpoenas whenever possible, relevant
information concerning responsible individuals, the organizational
structure, finances, and contract history of DoD contractors
[[Page 108]]
under investigation for fraud or corruption related to procurement
activities, to facilitate the criminal investigation as well as any
civil, administrative, or contractual actions or remedies that may be
taken. Some available sources of such information are listed in
enclosure 2.
g. Provide timely notice to other cognizant DoD criminal
investigative organizations of evidence of fraud by a contractor,
subcontractor, or employees of either, on current or past contracts
with, or affecting, other DoD Components.
h. Ascertain the impact upon any ongoing investigation or
prosecution of civil, contractual, and administrative actions being
considered and advise the appropriate centralized organization of any
adverse impact.
i. Obtain a DD 350 report in every investigation into defective
products or product substitution in which a SERIOUS HAZARD to health,
safety, or operational readiness is indicated. Timely notification shall
be made to the centralized organization of each DoD Component that is
identified as having contract actions with the subject of the
investigation.
j. Obtain a DD 350 report in all significant fraud investigations,
as defined in subsection C.2. above, whether or not the case involved
defective products or product substitution. Timely notification shall be
made to the centralized organization of each DoD Component that is
identified as having contract actions with the subject of the
investigation.
3. The Inspector General, Department of Defense (IG, DoD), shall:
a. Develop training materials relating to fraud and corruption in
procurement related activities which shall be utilized in all
procurement related training in conjunction with training materials
developed by the DoD Components. (See paragraph E.1.h., above.)
b. Establish procedures for providing to the DoD criminal
investigative organizations, through the Office of the Assistant
Inspector General for Auditing (OAIG-AUD), reports of data contained in
the Individual Procurement Action Report (DD Form 350) System.
F. Procedures
Transmissions of information by DoD criminal investigative
organizations required by subsection E.2., above, shall be made as
expeditiously as possible, consistent with efforts not to compromise any
ongoing criminal investigation. The transmission of the information may
be delayed when, in the judgment of the head of the DoD criminal
investigative organization, failure to delay would compromise the
success of any investigation or prosecution. The prosecutive authorities
dealing with the investigation shall be consulted, when appropriate, in
making such determinations.
G. Effective Date and Implementation
This Directive is effective immediately. Forward two copies of
implementing documents to the Inspector General, Department of Defense,
within 120 days.
Donald J. Atwood,
Deputy Secretary of Defense.
Enclosures--3
1. Civil Contractual and Administrative Actions That Can Be Taken in
Response to Evidence of Procurement Fraud
2. Sources of Information Relating to Government Contractors
3. Actions to be Taken in Product Substitution Investigations
Civil, Contractual, and Administrative Actions That Can Be Taken in
Response to Evidence of Procurement Fraud
A. Civil
1. Statutory
a. False Claims Act (31 USC 3729 et seq.).
b. Anti-Kickback Act (41 USC 51 et seq.).
c. Voiding Contracts (18 USC 218).
d. Truth in Negotiations Act (10 USC 2306(f)).
e. Fraudulent Claims-Contract Disputes Act (41 USC 604)
2. Nonstatutory
a. Breach of contract.
b. Breach of warranty.
c. Money paid under mistake of fact.
d. Unjust enrichment.
e. Fraud and/or Deceit.
f. Conversion.
g. Recision and/or Cancellation.
h. Reformation.
i. Enforcement of performance bond/guarantee agreement.
3. Contractual
a. Termination of contract for default.
b. Termination of contract for convenience of Government.
c. Termination for default and exemplary damages under the
gratuities clause.
d. Recision of contract.
e. Contract warranties.
f. Withholding of payments to contractor.
g. Offset of payments due to contractor from other contracts.
h. Price reduction.
i. Correction of defects (or cost of correction).
j. Refusal to accept nonconforming goods.
k. Revocation of acceptance.
l. Denial of claims submitted by contractors.
m. Disallowance of contract costs.
n. Removal of the contractor from automated solicitation or payment
system.
[[Page 109]]
4. Administrative
a. Change in contracting forms and procedures.
b. Removal or reassignment of Government personnel.
c. Review of contract administration and payment controls.
d. Revocation of warrant contracting officer.
e. Suspension of contractor and contractor employees.
f. Debarment of contractor and contractor employees.
g. Revocation of facility security clearances.
h. Nonaward of contract based upon a finding of contractor
nonresponsibility.
i. Voluntary refunds.
Sources of Information Relating to Government Contractors
------------------------------------------------------------------------
Type of information Possible source
------------------------------------------------------------------------
Location, dollar value, type, and a. DD Form 350 Report.\1\
number of current contracts with the b. Defense Logistics Agency's
Department of Defense. (DLA) ``Contract
Administration Defense
Logistics Agency's (DLA)
Contract Administration Report
(CAR Report) on contracts DLA
administers.
2. Financial status of corporation, a. Dunn and Bradstreet Reports.
history of corporation, owners, and b. Corporate filings with local
officers. secretaries of the State, or
corporate recorders.
c. Securities and Exchange
Commission (public
corporations).
d. Small Business
Administration (SBA) (small
businesses).
e. General Accounting Office
(bid protests, and contractors
indebted to the Government).
f. Armed Services Board of
Contract Appeals (ASBCA) or
court litigation.
g. List of Contractors Indebted
to the United States
(maintained, published and
distributed by the U.S. Army
Finance and Accounting Center,
Indianapolis, Indiana 46249).
3. Security clearance background a. Defense Investigative
information on facility and officers. Service.
4. Performance history of contractor... a. Local contracting officers.
b. Defense Contract
Administration Service
preaward surveys.
c. SBA Certificate of
Competency records.
5. Name, location, offense alleged, and DLA Automated Criminal Case
previous investigative efforts Management System. (Available
involving DLA-awarded or DLA- through field offices of the
administered contracts. DLA Counsel's office.)
6. Bid protests, litigation, and Field offices of the DLA
bankruptcy involving DLA-awarded or Counsel's office.
DLA-administered contracts.
------------------------------------------------------------------------
\1\ A determination as to the contract history of any DoD contractor
with contracts in excess of $25,000 annually can be made through a
review of the ``Individual Procurement Action Report'' (DD Form 350)
system, as prescribed by Subpart 4.6 of the DoD FAR Supplement, DoD
Instruction 4105.61, and DoD 4105.61-M (references (c), (d), and (e)).
Actions to be Taken in Product Substitution Investigations
A. The centralized organization, in all cases involving allegations
of product substitution in which a SERIOUS HAZARD to health, safety, or
operational readiness is indicated shall:
1. Review the notice of the case immediately after receiving it from
the Defense criminal investigative organization. Review the notice to
determine any potential safety or readiness issues indicated by the
suspected fraud.
2. Notify all appropriate safety, procurement, and program officials
of the existence of the case.
3. Obtain a complete assessment from safety, procurement, and
program officials of the adverse impact of the fraud on DoD programs and
operations.
4. Ensure that the DoD Component provides the Defense criminal
investigative organization with full testing support to completely
identify the defective nature of the substituted products. Costs
associated with the testing shall be assumed by the appropriate
procurement program.
5. Prepare a comprehensive impact statement describing the adverse
impact of the fraud on DoD programs for use in any criminal, civil, or
contractual action related to the case.
B. In all cases involving allegations of product substitution that
affect more than one DoD Component, that centralized organizations of
the affected DoD Components shall identify a lead Agency. The lead
centralized organization shall ensure that information on the fraud is
provided to the centralized organization of all other affected DoD
Components. The lead centralized organization shall ensure compliance
with the requirements of section A., above. The lead centralized
organization shall then be responsible for preparing a comprehensive
``Victim Impact Statement'' as required by paragraph E.1.g. of this
Directive.
C. In all cases involving allegations of product substitution, the
Defense Criminal Investigative Organization shall:
[[Page 110]]
1. Immediately notify the appropriate centralized organization of
the beginning of the case.
2. Continue to provide to the centralized organization any
information developed during the course of the investigation that
indicates substituted products have been, or might be, provided to the
Department of Defense.
3. Ensure that any request for testing of substituted products is
provided to the centralized organization.
Sec. Appendix E to Part 516--Department of Defense Directive 5505.5,
Implementation of the Program Fraud Civil Remedies Act
DOD Directive 5505.5 is contained in 32 CFR part 277.
Sec. Appendix F to Part 516--Glossary
Abbreviations
AAFES: Army and Air Force Exchange Service
AMEDD: Army Medical Department
AFARS: Army Federal Acquisition Regulation Supplement
ASBCA: Armed Services Board of Contract Appeals
AUSA: Assistant United States Attorney
CFR: Code of Federal Regulations
COE: United States Army Corps of Engineers
DA: Department of the Army
DFARS: Defense Federal Acquisition Regulation Supplement
DOD: Department of Defense
DOJ: Department of Justice. In this regulation, reference to DOJ means
either United States Attorneys' Offices or The (main)
Department of Justice in Washington, DC
DCIS: Defense Criminal Investigative Service
e.g.: An abbreviation for exempli gratia, meaning ``for example''
et seq.: An abbreviation for et sequentes, meaning ``and the following''
FAR: Federal Acquisition Regulation
FAX: Facsimile Transmission
FBI: Federal Bureau of Investigation
Fed. R. Civ. P.: Federal Rules of Civil Procedure
Fed. R. Crim. P.: Federal Rules of Criminal Procedure
FOIA: Freedom of Information Act
GAO: General Accounting Office
HQDA: Headquarters, Department of the Army
i.e.: An abbreviation for id est, meaning ``that is''
IG: Inspector General
JA: Judge Advocate
MACOM: Major Command
MSPB: Merit Systems Protection Board
NAF: Nonappropriated Fund
OTJAG: Office of The Judge Advocate General
OSC: Office of Special Counsel
PFA: Procurement Fraud Advisor
PFCRA: Program Fraud Civil Remedies Act
PFD: Procurement Fraud Division
PFI: Procurement Fraud or Irregularities
RJA: Recovery Judge Advocate
SAUSA: Special Assistant U.S. Attorney
SJA: Staff Judge Advocate
TDY: temporary Duty
TJAG: The Judge Advocate General
UCMJ: Uniform Code of Military Justice
USACIDC: U.S. Army Criminal Investigation Command
USALSA: U.S. Army Legal Services Agency
USARCS: U.S. Army Claims Service
USATDS: U.S. Army Trial Defense Service
USMA: United States Military Academy
U.S.C.: United States Code
Terms
Active Duty
Full-time duty in the active military service of the United States.
Includes: full-time training duty; annual training duty; active duty for
training; attendance, while in the active military service, at a school
designated as a Service School by law or by the Secretary of the
military department concerned; and, attendance, while in the active
military service, at advanced civil schooling and training with
industry. It does not include full-time National Guard duty under Title
32, United States Code.
Army Activities
Activities of or under the control of the Army, one of its
instrumentalities, or the Army National Guard, including activities for
which the Army has been designated the administrative agency, and those
designated activities located in an area in which the Army has been
assigned single service claims responsibility by DOD directive.
Army Property
Real or personal property of the United States or its
instrumentalities and, if the United States is responsible therefore,
real or personal property of a foreign government which is in the
possession or control of the Army, one of its instrumentalities, or the
Army National Guard, including property of an activity for which the
Army has been designated the administrative agency, and property located
in an area in which the Army has been assigned single service claims
responsibility.
Centralized Organization
That organization of a DOD component responsible for coordinating
and monitoring of
[[Page 111]]
criminal, civil, contractual, and administrative remedies relating to
contract fraud. For DOD components other than the Army, the Centralized
organizations are as follows: the Office of General Counsel, Department
of the Air Force; the Office of the Inspector General, Department of the
Navy; and the Office of General Counsel, Defense Logistics Agency.
Claim
The Government's right to recover money or property from any
individual, partnership, association, corporation, governmental body, or
other legal entity (foreign and domestic) except an instrumentality of
the United States. A claim against several joint debtors or tortfeasors
arising from a single transaction or incident will be considered one
claim.
Claims Officer
A commissioned officer, warrant officer, or qualified civilian
employee designated by the responsible commander and trained or
experienced in the conduct of investigations and the processing of
claims.
Corruption
Practices that include, but are not limited to, solicitation, offer,
payment, or acceptance of bribes or gratuities; kickbacks; conflicts of
interest; or unauthorized disclosure of official information related to
procurement matters.
Counsel for Consultation
An attorney, provided by DA at no expense to the military member or
civilian employee, who will provide legal advice to the witness
concerning the authority of OSC, the nature of an OSC interview and
their individual rights and obligations. The counsel may accompany the
witness to the interview and advise the witness during the interview. No
attorney-client relationship is established in this procedure.
Counsel for Representation
An attorney, provided by DA at no expense to the military member or
civilian employee, who will act as the individual's lawyer in all
contacts with the MSPB and the OSC during the pendancy of the OSC
investigation and any subsequent OSC initiated action before the MSPB.
An attorney-client relationship will be established between the
individual and counsel for representation.
DA Personnel
DA personnel includes the following:
a. Military and civilian personnel of the Active Army and The U.S.
Army Reserve.
b. Soldiers of the Army National Guard of the United States (Title
10, U.S.C.) and, when specified by statute or where a Federal interest
is involved, soldiers in the Army National Guard (Title 32, U.S.C.). It
also includes technicians under 32 U.S.C. 709(a)(d).
c. USMA cadets.
d. Nonappropriated fund employees.
e. Foreign nationals who perform services for DA overseas.
f. Other individuals hired by or for the Army.
Debarment
Administrative action taken by a debarring authority to exclude a
contractor from Government contracting and Government-approved
subcontracting for a specified period.
Deciding Official (Chapter 7)
SJA, legal adviser, or Litigation Division attorney who makes the
final determination concerning release of official information.
DOD Criminal Investigation Organizations
Refers to the USACIDC; the Naval Investigative Service; the U.S. Air
Force Office of Special Investigations; and the Defense Criminal
Investigative Service, Office of the Inspector General, DOD.
Fraud
Any intentional deception of DOD (including attempts and
conspiracies to effect such deception) for the purpose of inducing DOD
action or reliance on that deception. Such practices include, but are
not limited to, the following: bid-rigging; making or submitting false
statements; submission of false claims; use of false weights or
measures; submission of false testing certificates; adulterating or
substituting materials; or conspiring to use any of these devices.
Improper or Illegal Conduct
a. A violation of any law, rule, or regulation in connection with
Government misconduct; or
b. Mismanagement, a gross waste of funds, an abuse of authority, or
a substantial and specific danger to public health or safety.
Information Exempt From Release To The Public
Those categories of information which may be withheld from the
public under one or more provisions of law.
Judge Advocate
An officer so designated (AR 27-1).
Legal Adviser
A civilian attorney who is the principal legal adviser to the
commander or operating head of any Army command or agency.
[[Page 112]]
Litigation
Legal action or process involving civil proceedings, i.e.,
noncriminal.
Litigation in Which The United States Has an Interest
a. A suit in which the United States or one of its agencies or
instrumentalities has been, or probably will be, named as a party.
b. A suit against DA personnel and arises out of the individual's
performance of official duties.
c. A suit concerning an Army contract, subcontract, or purchase
order under the terms of which the United States may be required to
reimburse the contractor for recoveries, fees, or costs of the
litigation.
d. A suit involving administrative proceedings before Federal,
state, municipal, or foreign tribunals or regulatory bodies that may
have a financial impact upon the Army.
e. A suit affecting Army operations or which might require, limit,
or interfere with official action.
f. A suit in which the United States has a financial interest in the
plaintiff's recovery.
g. Foreign litigation in which the United States is bound by treaty
or agreement to ensure attendance by military personnel or civilian
employees.
Medical Care
Includes hospitalization, outpatient treatment, dental care, nursing
service, drugs, and other adjuncts such as prostheses and medical
appliances furnished by or at the expense of the United States.
Misdemeanor
An offense for which the maximum penalty does not exceed
imprisonment for 1 year. Misdemeanors include those offenses categorized
as petty offenses (18 USC Sec. 3559).
Official Information
All information of any kind, however stored, that is in the custody
and control of the Department of Defense, relates to information in the
custody and control of the Department, or was acquired by DoD personnel
as part of their official duties or because of their official status
within the Department while such personnel were employed by or on behalf
of the Department or on active duty with the United States Armed Forces.
Operating Forces
Those forces whose primary missions are to participate in combat and
the integral supporting elements thereof. Within DA, the operating
forces consist of tactical units organized to conform to tables of
organization and equipment (TOE).
Personnel Action
These include--
a. Appointment.
b. Promotion.
c. Adverse action under 5 U.S.C. 7501 et seq. or other disciplinary
or corrective action.
d. Detail, transfer, or reassignment.
e. Reinstatement.
f. Restoration.
g. Reemployment.
h. Performance evaluation under 5 U.S.C. 4301 et seq.
i. Decision concerning pay, benefits, or awards, or concerning
education or training if the education or training may reasonably be
expected to lead to an appointment, promotion, performance evaluation,
or other personnel action.
j. Any other significant change in duties or responsibilities that
is inconsistent with the employee's salary or grade level.
Private Litigation
Litigation other than that in which the United States has an
interest.
Process
The legal document that compels a defendant in an action to appear
in court; e.g., in a civil case a summons or subpoena, or in a criminal
case, a warrant for arrest, subpoena or summons.
Prohibited Personnel Practice
Action taken, or the failure to take action, by a person who has
authority to take, direct others to take, recommend, or approve any
personnel action--
a. That discriminates for or against any employee or applicant for
employment on the basis of race, color, religion, sex, national origin,
age, handicapping condition, marital status, or political affiliation,
as prohibited by certain specified laws.
b. To solicit or consider any recommendation or statement, oral or
written, with respect to any individual who requests, or is under
consideration for, any personnel action, unless the recommendation or
statement is based on the personal knowledge or records of the person
furnishing it, and consists of an evaluation of the work performance,
ability, aptitude, or general qualifications of the individual, or an
evaluation of the character, loyalty, or suitability of such individual.
c. To coerce the political activity of any person (including the
providing of any political contribution or service), or take any action
against any employee or applicant for employment as a reprisal for the
refusal of any person to engage in such political activity.
d. To deceive or willfully obstruct any person with respect to such
person's right to compete for employment.
[[Page 113]]
e. To influence any person to withdraw from competition for any
position for the purpose of improving or injuring the prospects of any
other person for employment.
f. To grant any preference or advantage not authorized by law, rule,
or regulation to any employee or applicant for employment (including
defining the scope or manner of competition or the requirements for any
position) for the purpose of improving or injuring the prospects of any
particular person for employment.
g. To appoint, employ, promote, advance, or advocate for
appointment, employment, promotion, or advancement, in or to a civilian
position any individual who is a relative (as defined in 5 U.S.C. 3110)
of the employee, if the position is in the agency in which the employee
is serving as a public official or over which the employee exercises
jurisdiction or control as an official.
h. To take or fail to take a personnel action with respect to any
employee or applicant for employment as a reprisal for being a
whistleblower, as defined below.
i. To take or fail to take a personnel action against an employee or
applicant for employment as a reprisal for the exercise of any appeal
right granted by law, rule, or regulation.
j. To discriminate for or against any employee or applicant for
employment on the basis of conduct that does not adversely affect the
performance of the employee or applicant or the performance of others.
k. To take or fail to take any other personnel action if the taking
of, or failure to take, such action violates any law, rule, or
regulation implementing, or directly concerning, the merit system
principles contained in 5 U.S.C. 2301.
Prosecutive Authorities
These include--
a. A U.S. Attorney;
b. A prosecuting attorney of a State or other political subdivision
when the U.S. Attorney has declined to exercise jurisdiction over a
particular case or class of cases; and
c. An SJA of a general court-martial convening authority considering
taking action against a person subject to the UCMJ.
Recovery JA
A JA or legal adviser responsible for assertion and collection of
claims in favor of the United States for property claims and medical
expenses.
Significant Case of Fraud and Corruption
A procurement fraud case involving an alleged loss of $100,000 or
more; all corruption cases related to procurement that involve bribery,
gratuities, or conflicts of interest; any defective products or product
substitution in which a serious hazard to health, safety or operational
readiness is indicated, regardless of loss value; and, any procurement
fraud case that has received or is expected to receive significant media
coverage.
Staff Judge Advocate
An officer so designated (AR 27-1). The SJA of an installation, a
command or agency reporting directly to HQDA, or of a major subordinate
command of the U.S. Army Materiel Command, and the senior Army JA
assigned to a joint or unified command.
Subpoena
A process to cause a witness to appear and give testimony, e.g., at
a trial, hearing, or deposition.
Suspension
Administrative action taken by a suspending authority to temporarily
exclude a contractor from Government contracting and Government-approved
subcontracting.
Suspension and Debarment Authorities
Officials designated in DFARS, section 9.403, as the authorized
representative of the Secretary concerned.
Tortfeasor
A wrongdoer; one who commits a tort.
Sec. Appendix G to Part 516--Figures
This appendix contains figures cited or quoted throughout the text
of this part.
Figure C-1. Sample Answer to Judicial Complaint, With Attached
Certificate of Service
In the United States District Court for the Southern District of
Texas Corpus Christi Division, No. C-90-100
John Doe, Plaintiff v. Togo D. West, Jr., Secretary of the Army,
Department of the Army, Defendant.
First Affirmative Defense
The Complaint is barred by laches.
Figure C-3. Sample Answer to Judicial Complaint, with attached
Certificate of Service. This is intended to be used as a guide in
preparing a draft Answer as part of a Litigation Report.
Answer
For its answer to the complaint, defendant admits, denies and
alleges as follows:
1. Admits.
2. Denies.
3. Denies.
4. The allegations contained in paragraph 4 are conclusions of law
to which no response is required; to the extent they may be deemed
allegations of fact, they are denied.
[[Page 114]]
5. Denies the allegations contained in the first sentence of
paragraph 5; admits the allegations contained in the second sentence of
paragraph 5; denies the remainder of the allegations in paragraph 5.
6. Denies the allegations in paragraph 6 for lack of knowledge or
information sufficient to form a belief as to their truth.
7. Denies each allegation in the complaint not specifically admitted
or otherwise qualified.
Prayer for Relief
The remainder of plaintiff's Complaint contains his prayer for
relief, to which no answer is required. Insofar as an answer is
required, denies that plaintiff is entitled to any relief whatsoever.
Defendant respectfully prays that the Court dismiss plaintiff's
Complaint and award to defendant costs and such further relief as the
Court deems proper.
Respectfully submitted,
Ronald M. Ford,
United States Attorney.
Roy A. Andersen,
Assistant United States Attorney, 606 N. Carancua, Corpus Christi, Texas
78476, (512) 884-3454.
Captain Christopher N. Jones,
Department of the Army, Office of the Judge, Advocate General, 901 N.
Stuart St., Suite 400, Arlington, Virginia 22203-1837, (703)
696-1666.
Certificate of Service
I hereby certify that a true and correct copy of Defendant's Answer
has been placed in the mail, postage prepaid, this ---- day of --------
--, 1991, addressed to plaintiff's counsel as follows: Mr. Eugene
Henderson, 777 Fourth Street, Corpus Christi, TX 78888.
Roy A. Andersen,
Assistant United States Attorney.
Sample DA Form 4
Figure C-3. Unsworn Declaration Under Penalty of Perjury Executed Within
the United States
Declaration Under Penalty of Perjury
I am Private Paul Jones, currently assigned to Company B, 4th
Battalion, 325th Parachute Infantry Regiment, Fort Bragg, North
Carolina. I have personal knowledge of the following matters.
On the evening of 3 June 1970, I was present at the company party at
Lake Popolopen when the accident occurred. I saw a bright, full moon
that evening.
I declare under penalty of perjury that the foregoing is true and
correct. (28 U.S.C. Sec. 1746).
Executed on: ----------
Paul Jones,
Private, U.S. Army.
Figure D-1. Format for a Request for a Representation Using an Unsworn
Declaration Under Penalty of Perjury Executed Within the United States
Request for Representation
I request that the Attorney General of the United States, or his
agent, designate counsel to defend me in my official and individual
capacities in the case of John Doe v. Private Paul Jones, now pending in
the U.S. District Court for the Eastern District of North Carolina. I
have read the complaint filed in this case and I declare that all my
actions were performed in my official capacity, within the scope of my
official duties, and in a good faith belief that my actions conformed to
the law. I am not aware of any pending related criminal investigation.
I understand the following: if my request for representation is
approved, I will be represented by a U.S. Department of Justice
attorney; that the United States is not required to pay any final
adverse money judgment rendered against me personally, although I can
request indemnification; that I am entitled to retain private counsel at
my own expense; and, that the Army expresses no opinion whether I should
or should not retain private counsel.
I declare under penalty of perjury that the foregoing is true and
correct. (28 U.S.C. Sec. 1746).
Executed on: ----------
Paul Jones,
Private, U.S. Army.
Figure D-2. Format for Scope of Employment Statement Using an Unsworn
Declaration Under Penalty of Perjury Executed Outside the United States
Declaration
I am currently the Commander of HHC, 6th Armored Division, Bad
Vilbel, Germany. I have read the allegations concerning Private Paul
Jones in the complaint of John Doe v. Private Paul Jones, now pending in
the U.S. District Court for the Eastern District of North Carolina.
At all times relevant to the complaint, I was Private Jones' company
commander. His actions relevant to this case were performed within the
scope of his official duties as Assistant Charge of Quarters, Company B,
4th Battalion, 325th Parachute Infantry Regiment, Fort Bragg, North
Carolina.
I declare under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct. (28 U.S.C.
Sec. 1746).
Executed on: ----------
John Smith,
Captain, Infantry.
[[Page 115]]
Figure D-3. Format for Contractor Request for Representantion
Request for Representation
I am the President of the XYZ Corporation. I request the Attorney
General of the United States designate counsel to defend me and my
company in Doe v. XYZ, Inc., now pending in the U.S. District Court for
the Eastern District of North Carolina.
I understand that the assumption by the Attorney General of the
defense of this case does not alter or increase the obligations of the
United States under United States Contract No. WP-70-660415.
I further agree that such representation will not be construed as
waiver or estoppel to assert any rights which any interested party may
have under said contract.
Executed on: ----------
D.D. Tango,
President, XYZ, Inc.
Figure G-1. Sample ``Touhy'' Compliance Letter
Department of the Army, Office of the Staff Judge Advocate, Fort Smith,
North Dakota 84165, 15 April 1993
Mr. T. Hudson Taylor,
Attorney At Law, 105 Hay Street, Whynot, ND 84167
Dear Mr. Taylor: We have learned that you subpoenaed Captain Roberta
Selby to testify at a deposition in the case Kramer v. Kramer, currently
filed in state court, and that you directed her to bring her legal
assistance file concerning her client, SSG Kramer.
Under 32 CFR Sec. Sec. 97.6(c), 516.35, and 516.40, the Army must
authorize the appearance of its personnel or the production of official
documents in private litigation. In this case, the Army cannot authorize
Captain Selby to appear or produce the requested file absent the
following:
You must request in writing her appearance and the production of the
file in accordance with Department of Defense directives, 32 CFR Sec.
97.6(c), and Army regulations, 32 CFR Sec. Sec. 516.34-516.40. The
request must include the nature of the proceeding, 32 CFR Sec.
516.34(b), and the nature and relevance of the official information
sought. Id. Sec. 516.35(d). We cannot act on your request until we
receive the required information. See, for example, United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951); Boron Oil Co. v. Downie, 873
F.2d 67 (4th Cir. 1989); United States v. Bizzard, 674 F.2d 1382 (11th
Cir. 1982); United States v. Marino, 658 F.2d 1120 (6th Cir. 1981);
United States v. Allen, 554 F.2d 398 (10th Cir. 1977).
To overcome Federal statutory restrictions on the disclosure of the
requested file imposed by the Privacy Act, 5 U.S.C. Sec. 552a, you must
provide either a written release authorization signed by the individual
to whom the file pertains (that is, SSG Kramer) or a court ordered
release signed by a judge of a court of competent jurisdiction. A
subpoena signed by a clerk of court, notary, or other official is
insufficient. See, for example, Doe v. DiGenova, 779 F.2d 74 (DC Cir.
1985).
In this case, because of the attorney-client relationship between
Captain Selby and SSG Kramer, you must produce a written waiver of the
attorney-client privilege from SSG Kramer. Because the privilege may
protect both documents and testimony, Captain Selby may not divulge such
information without SSG Kramer's consent. See, for example, Rule of
Professional Conduct for Army Lawyers 1.6(a).
In addition to the above requirements, Captain Selby's supervisor
must approve her absence from duty. See 32 CFR Sec. 516.43. In this
regard, we suggest you take the deposition at Fort Smith. In any event,
however, you or your client must pay all travel expenses, as this is
purely private litigation and witness' appearance must be at no expense
to the United States. See id. Sec. 516.48(c).
Finally, if Captain Selby does appear as a witness, she may only
give factual testimony. She may not testify as an opinion or expert
witness. This limitation is based on Department of Defense and Army
policy that generally prohibits Government employees from appearing as
expert witnesses in private litigation. See id. Sec. Sec. 97.6(e),
516.42.
Our sole concern in this matter is to protect the interests of the
United States Army; the Army will not block access to witnesses or
documents to which you are lawfully entitled. So that the Army can
adequately protect its interests in this matter, I request that you
respond to this letter by 27 April 1993. If you have any questions,
please call CPT Taylor at 919-882-4500.
Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.
Figure G-2. Sample Fact Witness Approval Letter
Department of the Army, Office of the Staff Judge Advocate, Fort Smith,
North Dakota 84165, 15 April 1993
Mr. T. Hudson Taylor,
Attorney At Law, l05 Hay Street, Whynot, ND 84167
Dear Mr. Taylor: This letter responds to your request to interview
and depose Captain Buzz Sawyer as a witness in Morgan v. Jones. Subject
to the following conditions, your request is approved.
This grant of authority is limited to factual testimony only.
Captain Sawyer may not testify as an expert witness. This limitation is
based on Army policy prohibiting Government employees from appearing as
expert witnesses in private litigation. See 32 CFR Sec. 516.42. Captain
Sawyer may not provide official information that is classified,
[[Page 116]]
privileged, or otherwise protected from public disclosure.
The decision whether to testify in private litigation is within the
discretion of the prospective witness. This authorization is also
subject to the approval of the witness' supervisors to be absent during
the period involved. Finally, because this is private litigation, the
witness' participation must be at no expense to the United States. See
32 CFR Sec. 516.48.
If you have any questions, please call CPT Taylor at 919-882-4500.
Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law
Figure G-3. Sample Expert Witness Denial Letter
Department of the Army, Office of the Staff Judge Advocate, Fort Smith,
North Dakota 84165, 15 April 1993
Mr. T. Hudson Taylor,
Attorney At Law, l05 Hay Street, Whynot, ND 84167
Dear Mr. Taylor: This responds to your request for Mr. Charles
Montrose to appear as an expert witness in private litigation: Smithers
v. ABC Video. For the following reasons, the request is denied.
Army Regulation 27-40 forbids Army personnel from providing expert
testimony in private litigation, with or without compensation, except
under the most extraordinary circumstances. See 32 CFR Sec. Sec.
97.6(e), 516.42. Several reasons support the exercise of strict control
over such witness appearances.
The Army policy is one of strict impartiality in litigation in which
the Army is not a named party, a real party in interest, or in which the
Army does not have a significant interest. When a witness with an
official connection with the Army testifies, a natural tendency exists
to assume that the testimony represents the official view of the Army,
despite express disclaimers to the contrary.
The Army is also interested in preventing the unnecessary loss of
the services of its personnel in connection with matters unrelated to
their official responsibilities. If Army personnel testify as expert
witnesses in private litigation, their official duties are invariably
disrupted, often at the expense of the Army's mission and the Federal
taxpayer.
Finally, the Army is concerned about the potential for conflict of
interest inherent in the unrestricted appearance of its personnel as
expert witnesses on behalf of parties other than the United States. Even
the appearance of such conflicts of interest seriously undermines the
public trust and confidence in the integrity of our Government.
This case does not present the extraordinary circumstances necessary
to justify the requested witness' expert testimony. You have
demonstrated no exceptional need or unique circumstances that would
warrant (his or her) appearance. The expert testimony desired can be
secured from non-Army sources. Consequently, we are unable to grant you
an exception to the Army's policy.
If you have any questions, please call me or CPT Taylor at 919-882-
4500.
Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.
Figure G-4. Sample of Doctor Approval Letter
Department of the Army, Office of the Staff Judge Advocate, Fort Smith,
North Dakota 84165, 15 April 1993
Mr. T. Hudson Taylor,
Attorney At Law, 105 Hay Street, Whynot, ND 84167
Dear Mr. Taylor: This responds to your request to depose Dr. (MAJ)
J. McDonald, Fort Smith Medical Treatment Facility. Pursuant to 32 CFR
Sec. Sec. 516.33-516.49, you may depose him subject to the following
conditions:
He may testify as to his treatment of his patient, Sergeant Rock, as
to related laboratory tests he may have conducted, or other actions he
took in the regular course of his duties.
He must limit his testimony to factual matters such as his
observations of the patient or other operative facts, the treatment
prescribed or corrective action taken, course of recovery or steps
required for treatment of injuries suffered, or contemplated future
treatment.
His testimony may not extend to hypothetical questions or to a
prognosis. He may not testify as an ``expert.'' This limitation is based
on Department of Defense and Army policy prohibiting present or former
military personnel and Army civilian employees from providing opinion or
expert testimony concerning official information, subjects, or
activities in private litigation. See 32 CFR Sec. Sec. 97.6(e), 516.42.
The witnesses may not provide official information that is
classified, privileged, or otherwise protected from public disclosure.
To protect the Army's interests, CPT Taylor or another Army attorney
will be present during the depositions.
To overcome restrictions imposed by the Privacy Act, 5 U.S.C. Sec.
552a, Dr. McDonald may not discuss matters derived from the patient's
medical records absent the patient's written consent or a court order
signed by a judge. A subpoena issued by someone other than a judge or
magistrate is insufficient. See Doe v. DiGenova, 779 F.2d 74 (D.C. Cir.
1985); Stiles v. Atlanta Gas Light Co., 453 F. Supp. 798 (N.D. Ga.
1978).
[[Page 117]]
The decision whether to testify in private litigation is within the
discretion of the witness, subject to the approval of his supervisors to
be absent during the period involved.
Finally, because this is private litigation, the witnesses'
participation must be at no expense to the United States. See 32 CFR
Sec. 516.48.
If you have any questions, please call me or CPT Taylor at 919-882-
4500.
Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.
Figure H-1. Procurement Fraud Indicators
Procurement Fraud Indicators
1. During the identification of the government and services.
a. Need determinations for items currently scheduled for disposal or
reprocurement, or which have predetermined reorder levels.
b. Excessive purchase of ``expendables'' such as drugs or auto
parts.
c. Inadequate or vague need assessment.
d. Frequent changes in the need assessment or determination.
e. Mandatory stock levels and inventory requirements appear
excessive.
f. Items appear to be unnecessarily declared excess or sold as
surplus, while same items are being reprocured.
g. It appears that an item or service is being purchased more as a
result of aggressive marketing efforts rather than in response to a
valid requirement.
h. Need determination appears to be unnecessarily tailored in ways
that can only be met by certain contractors.
i. Items and services are continually obtained from the same source
due to an unwarranted lack of effort to develop second sources.
2. During the development of the statements of work and
specifications.
a. Statements of work and specifications appear to be intentionally
written to fit the products or capabilities of a single contractor.
b. Statements of work, specifications, or sole source justifications
developed by or in consultation with a preferred contractor.
c. Information concerning requirements and pending contracts is
released only to preferred contractors.
d. Allowing companies and industry personnel who participated in the
preparation of bid packages to perform on subsequent contracts in either
a prime or subcontractor capacity.
e. Release of information by firms or personnel participating in
design or engineering to companies competing for prime contract.
f. Prequalification standards or specifications appear designed to
exclude otherwise qualified contractors or their productions.
g. Requirements appear split up to allow for rotating bids, giving
each contractor his or her ``fair share.''
h. Requirements appear split up to meet small purchase requirements
(that is, $25,000) or to avoid higher levels of approval that would be
otherwise required.
i. Bid specifications or statement of work appear inconsistent with
the items described in the general requirements.
j. Specifications appear so vague that reasonable comparisons of
estimate would be difficult.
k. Specifications appear inconsistent with previous procurements of
similar items of services.
3. During the presolicitation phase.
a. Sole source justifications appear unnecessary or poorly
supported.
b. Statements justifying sole source or negotiated procurements
appear inadequate or incredible.
c. Solicitation documents appear to contain unnecessary requirements
which tend to restrict competition.
d. Contractors or their representatives appear to have received
advanced information related to the proposed procurement on a
preferential basis.
4. During the solicitation phase.
a. Procurement appears to be processed so as to exclude or impede
certain contractors.
b. The time for submission of bids appears to be unnecessarily
limited so that only those with advance information have adequate time
to prepare bids or proposals.
c. It appears that information concerning the procurement has been
revealed only to certain contractors, without being revealed to all
prospective competitors.
d. Bidders conferences are conducted in a way that apparently
invites bid rigging, price fixing, or other improper collusion between
contractors.
e. There is an apparent intentional failure to fairly publish notice
of the solicitation.
f. Solicitation appears vague as to the details such as time, place
and manner, of submitting acceptable bids.
g. There is evidence of improper communications or social contract
between contractors and government personnel.
h. Controls over the number and destination of bid packages sent to
interested bidders appear inadequate.
i. Indications that government personnel or their families may own
stock or have some other financial interest in either a contractor or
subcontractor.
j. Indications that government personnel are discussing possible
employment for themselves or a family member with a contractor or
subcontractor or indications that a proposal for future employment from
a contractor or subcontractor to a government employee or his or her
family members has not been firmly rejected.
[[Page 118]]
k. Indications that any contractor has received special assistance
in preparation of his or her bid or proposal.
l. It appears that a contract is given an expressed or implied
reference to a specific subcontractor.
m. Failure to amend solicitation to reflect necessary changes or
modifications.
5. During the submission of bids and proposals.
a. Improper acceptance of a late bid.
b. Documents, such as receipts, appear falsified to obtain
acceptance of a late bid.
c. Improperly attempting to change a bid after other bidders prices
are known.
d. Indications that mistakes have been deliberately planted in a bid
to support correction after bid opening.
e. Withdrawal by a low bidder who may later become a subcontractor
to a higher bidder who gets the contract.
f. Apparent collusion or bid rigging among the bidders.
g. Bidders apparently revealing their prices to each other.
h. Required contractor certifications appear falsified.
i. Information concerning contractor's qualifications, finances, and
capabilities appears falsified.
6. During the evaluation of bids and proposals.
a. Deliberately losing or discarding bids of certain contractors.
b. Improperly disqualifying the bids or proposals of certain
contractors.
c. Accepting apparently nonresponsive bids from preferred
contractors.
d. Unusual or unnecessary contacts between government personnel and
contractors during solicitation, evaluation, and negotiation.
e. Any apparently unauthorized release of procurement information to
a contractor or to non-government personnel.
f. Any apparent favoritism in the evaluation of the bid or proposal
of a particular contractor.
g. Apparent bias in the evaluation criteria or in the attitude or
actions of the members of the evaluation panel.
7. During contract formation and administration.
a. Defective pricing by the contractor usually associated with
submitting false cost and pricing data under the Truth in Negotiation
Act.
b. Cost/Labor mischarging.
c. Product substitution.
d. Progress payment fraud. For more details on these subjects see DA
PAM 27-153, Contract Law, paragraph 23-5.
Figure H-2. Guide for Preparing Remedies Plan
Guide for Preparing a Remedies Plan
(Date of Plan)
Section I (Administrative Data)
A. Subject of Allegation.
B. Principal Investigative Agency.
C. Investigative Agency File Number.
D. Subject's Location.
E. Location Where Offense Took Place.
F. Responsible Action Commander.
G. Responsible MACOM.
H. Contract Administrative Data (If Applicable):
1. Contract Number.
2. Type of Contract.
3. Dollar Amount of Contract.
4. Period of Contract.
I. Principal Case Agent (Name and Telephone Number).
J. Civilian Prosecutor (If Applicable) (Name, Address, and Telephone
Number).
K. Is Grand Jury Investigating This Matter? If So, Where is Grand Jury
Located?
L. Audit Agency Involved (If Applicable). Name and Telephone Number of
Principal Auditor.
M. Suspense Date for Update of This Plan.
Section II (Summary of Allegations and Investigative Results to Date)
(Provide sufficient detail for reviewers of the plan to evaluate the
appropriateness of the planned remedies. If information is ``close-
hold'' or if grand jury secrecy applies, so state.)
Section III (Adverse Impact Statement)
(Describe any adverse impact on the DA/DOD mission. Adverse impact
is described in DOD Directive 7050.5, paragraph E.1.g. Identify impact
as actual or potential. Describe the impact in terms of monetary loss,
endangerment to personnel or property, mission readiness, etc. This
information should be considered in formulating your remedies as
described below and provided to prosecutors for their use in prosecution
of the offenses.)
Section IV (Remedies Taken and/or Being Pursued)
A. Criminal Sanctions. (As a minimum, address the following: Are
criminal sanctions appropriate? If so, which ones? If not, why not? Has
the local U.S. Attorney or other civilian prosecutor been notified and
briefed? What actions have been taken or are intended? If and when
action is complete, describe action and final results of the action.
Other pertinent comments should be included.)
[[Page 119]]
B. Civil Remedies. (As a minimum address the following: Which civil
remedies are appropriate? Has the local U.S. Attorney or other civilian
prosecutor been notified and briefed? How, when, where and by whom are
the appropriate civil remedies implemented? If and when action is
completed, describe action and final results. Other pertinent comments
should be included.)
C. Contractual/Administrative Remedies. (As a minimum, address the
following: Are contractual and administrative remedies appropriate: If
so, which ones? If not, Why? If contractual or administrative remedies
are considered appropriate, describe how, when, and by whom the remedies
are implemented. If and when action is completed, describe action and
results of the action. Other pertinent comments should be included.)
D. Restrictions on Remedies Action. (Comment as to why obvious
remedies are not being pursued. For example, the U.S. Attorney requests
suspension action held in abeyance pending criminal action.)
Section V (Miscellaneous Comments/Information)
Section VI (Remedies Plan Participants)
(Record the name, grade, organization, and telephone number of all
Remedies Plan participants.)
Section VII (MACOM Coordination Comments)
(Record the name, grade, office symbol, and telephone number of all
MACOM officials providing coordination comments; record the date when
comments are submitted and append to the Remedies Plan the signed
comments provided.)
MACOM Focal Point
(Record the name, grade, office symbol, and telephone number of the
MACOM focal point.)
Section VIII (Coordination/Comments)
(Record the name, grade, organization, office symbol, and telephone
number of all officials with whom you have coordinated the Remedies Plan
or who have provided comments on your plan; append any comments provided
to the Remedies Plan.)
Figure H-3. Guide for Testing Defective Items Under Criminal or Civil
Investigation
Testing Defective Items Under Criminal or Civil Investigation
1. Under no circumstances is testing to proceed unless the command
has committed sufficient funding to cover the entire cost of the
projected testing.
2. No testing will be initiated unless there has been a written
request for the testing to the appropriate Procurement Fraud Advisor
from a criminal investigator or Assistant United States Attorney or
Department of Justice Attorney (AUSA is used in these procedures to
indicate either an AUSA or Department of Justice attorney). If they have
not already done so, criminal investigators should be requested to
coordinate their testing requests with the AUSA overseeing the
investigation.
3. Barring extraordinary circumstances, only one test will be
conducted to support the criminal and civil recovery efforts of a
procurement fraud/irregularity matter. Early coordination with the Civil
Division of Department of Justice or the local United States Attorneys
Office is necessary to ensure that testing funds are not wasted.
4. The request for testing should include a clear, concise statement
of the purpose of the testing to include a statement of the allegations
made and the contact number(s) involved. Any test plan which requires
destructive testing must be approved by the AUSA.
5. No testing will be initiated unless a test plan has been
developed which states the following:
a. the contract number(s) involved
b. the National Stock Number (NSN) of the item to be tested
c. the purpose of the testing
d. the alleged defect or the contractual requirement violated
e. the CID report of investigation (ROI) number or the DCIS case number
f. cost of the test (a cost proposal should be an attachment to the test
plan)
g. where the test will be conducted
h. how the test will be conducted
i. the name and telephone number of the test team leader
j. the names of all test team members
k. the approximate dates of the testing
l. the date that completion of the test is required
m. a clear statement of the desired product (that is test report, raw
data, analysis of results, evaluation of test results)
n. the PRON to fund the testing
o. a retention plan.
6. The test plan shall be coordinated with the concurrence received
in advance from the appropriate personnel in the Procurement
Directorate, Product Assurance and Test Directorate, the Procurement
Fraud Advisor, and the investigator/AUSA requesting the test. No testing
will be initiated until the criminal investigator/AUSA who requested the
testing has approved the test plan.
7. If the items tested are to be retained as evidence, the criminal
investigator should arrange for retention of the evidence. While the
Command will support evidence retention, this is primarily the
responsibility of the criminal investigators. Agents should be
[[Page 120]]
advised that putting items in Code L or similar non-use status is
insufficient to protect it from being released to the field. A decision
not to retain the tested items as evidence must have the approval of the
AUSA.
8. All items to be tested should be from a statistically valid
random sample. The sample should conform with the inspection
requirements of the contract or be in conformance with a random sample
specifically developed for the instant test plan. It is recommended that
a statistician be consulted to determine the feasibility of a random
sample specifically created to support the test plan.
9. Results of testing should be available to Command and DA
personnel for appropriate contractual and administrative remedies. Any
request for testing results that indicates that dissemination of the
testing results will be limited by Rule 6(e) of the Federal Rules of
Criminal Procedure is to be forwarded through the MACOM or AMC
Procurement Fraud Coordinator to DA Procurement Fraud Division prior to
the initiation of any testing.
10. Resolution of problems associated with testing requests should
be conducted at the local level. In AMC the authority to refuse a
testing request resides with the Office of Command Counsel. Any disputes
which cannot be resolved at the local level will be forwarded to the AMC
or MACOM Procurement Fraud Coordinator for resolution. This includes
disputes regarding funding or any time sensitive issues.
11. Second requests for testing of the same item due to a change in
the investigative plan require coordination by the PFA with the
investigator and AUSA overseeing the investigation to determine the
deficiencies in the earlier test. Disputes which cannot be resolved
between the AUSA, PFA, and investigator regarding testing are to be
forwarded simultaneously to the MACOM Procurement Fraud Coordinator and
PFD for resolution. The procedures established in paragraphs 5 and 6
apply for second requests for testing with the additional requirement
that the Assistant United States Attorney must be requested to approve
the test plan.
Figure I-1. Guide for Seeking Legal Advice and Representation Before
Office of Special Counsel
Guide for Seeking Legal Advice and Representation Before Office of
Special Counsel
1. Overview
a. DA employees or military members asked to provide information
(testimonial or documentary) to OSC may obtain legal advice through the
Labor Counselor from DA attorneys concerning their rights and
obligations. This includes assistance at any interviews with OSC
investigators. However, an attorney-client relationship will not be
established unless the employee or military member--
(1) Is suspected or accused by the OSC of committing a prohibited
personnel practice or other illegal or improper act; and
(2) Has been assigned counsel by the DA General Counsel.
b. Any military member or employee who reasonably believes that he
or she is suspected or has been accused by OSC of committing a
prohibited personnel practice or other illegal or improper act may
obtain legal representation from DA. The counsel assigned will be from
another DOD component whenever a DA attorney is likely to face a
conflict between the attorney's ethical obligation to the client and DA,
or when the suspected or accused individual has requested representation
from another DOD component. Outside legal counsel may be retained by DA
on behalf of the member or employee under unusual circumstances and only
with the personal approval of the DOD General Counsel.
c. The DA General Counsel will determine whether a conflict is
likely to occur if a DA attorney is assigned to represent a military
member or civilian. If the DA General Counsel determines a conflict may
occur, or if the suspected or accused employee has requested
representation from another DOD component, the DA General Counsel will
seek the assistance of another General Counsel in obtaining
representation outside DA.
2. Requests for Representation
a. To obtain legal representation, military members or civilian
employees must--
(1) Submit a written request for legal representation through the
Labor and Employment Law Office, Office of the Judge Advocate General,
Department of the Army, to DA General Counsel, explaining the
circumstances that justify legal representation. Copies of all process
and pleadings served should accompany the request.
(2) Indicate whether private counsel, at personal expense, has been
retained.
(3) Obtain written certification from their supervisor that--
(a) They were acting within the scope of official duties; and
(b) DA has not initiated any adverse or disciplinary action against
them for the conduct being investigated by the OSC.
b. Requests for DA legal representation must be approved by the DA
General Counsel.
c. The conditions of legal representation must be explained and
accepted in writing by the member or employee.
3. Limitations on Representation
a. DA will not provide legal representation with respect to a DA
initiated disciplinary
[[Page 121]]
action against a civilian employee for committing or participating in a
prohibited personnel practice or for engaging in illegal or improper
conduct. This prohibition applies regardless of whether the
participation or conduct is also the basis for the disciplinary action
proposed by the OSC.
b. In certain situations, counsel provided by DA may be limited to
representing the individual only with respect to some of the pending
matters, if other specific matters of concern to the OSC or MSPB do not
satisfy the requirements contained in this regulation.
4. Attorney-Client Relationship
a. An attorney-client relationship will be established and continued
between the suspected or accused individual and assigned DA counsel.
b. In representing a DA employee or military member, the DA attorney
designated as counsel will act as a vigorous advocate of the
individual's legal interests before the OSC or MSPB. The attorney's
professional responsibility to DA will be satisfied by fulfilling this
responsibility to the employee or military member. Legal representation
may be terminated only with the approval of the DA General Counsel and
normally only on the basis of information not available at the time the
attorney was assigned.
c. The attorney-client relationship may be terminated if the
assigned DA counsel determines, with the approval of the DA General
Counsel, that--
(1) The military member or civilian employee was acting outside the
scope of his or her official duties when engaging in the conduct that is
the basis for the OSC investigation or charge; and
(2) Termination is not in violation of the rules of professional
conduct applicable to the assigned counsel.
d. The DA attorney designated as counsel may request relief from the
duties of representation or counseling without being required to furnish
explanatory information that might compromise confidential
communications between the client and the attorney.
5. Funding
This regulation authorizes cognizant DA officials to approve
requests from military members or civilian employees for travel, per
diem, witness appearances, or other departmental support necessary to
ensure effective legal representation by the designated counsel.
6. Status
A military member's or civilian employee's participation in OSC
investigations, MSPB hearings, and other related proceedings will be
considered official departmental business for time and attendance
requirements and similar purposes.
7. Advice to Witnesses
The following advice to military members and civilian employees
questioned during the course of an OSC investigation may be appropriate
in response to these frequent inquiries:
a. A witness may decline to provide a ``yes'' or ``no'' answer in
favor of a more qualified answer when this is necessary to ensure
accuracy in responding to an OSC interviewer's question.
b. Requests for clarification of both questions and answers are
appropriate to avoid misinterpretation.
c. Means to ensure verifications of an interview by OSC
investigators are appropriate, whether or not the military member or
civilian employee is accompanied by counsel. Tape recorders may only be
used for this purpose when--
(1) The recorder is used in full view.
(2) All attendees are informed.
(3) The OSC investigator agrees to record the proceeding.
d. Any errors that appear in a written summary of an interview
prepared by the investigator should be corrected before the member or
employee signs the statement. The military member or civilian employee
is not required to sign any written summary that is not completely
accurate. A military member or civilian employee may receive a copy of
the summary as a condition of signing.
PART 518_THE FREEDOM OF INFORMATION ACT PROGRAM--Table of Contents
Subpart A_General Provisions
Sec.
518.1 Purpose.
518.2 References.
518.3 Explanation of abbreviations and terms.
518.4 Responsibilities.
518.5 Authority.
518.6 Public information.
518.7 FOIA terms defined.
518.8 Freedom of Information requirements.
Subpart B_FOIA Reading Rooms
518.9 Reading room.
518.10 ``(a)(2)'' materials.
518.11 Other materials.
Subpart C_Exemptions
518.12 General.
518.13 FOIA exemptions.
Subpart D_For Official Use Only
518.14 General.
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Subpart E_Release and Processing Procedures
518.15 General provisions.
518.16 Initial determinations.
518.17 Appeals.
518.18 Judicial actions.
Subpart F_Fee Schedule
518.19 General provisions.
518.20 Collection of fees and fee rates.
518.21 Collection of fees and fee rates for technical data.
Subpart G_Reports
518.22 Reports control.
518.23 Annual report content.
Appendixes to Part 518
Appendix A to Part 518--References.
Appendix B to Part 518--Addressing FOIA Requests.
Authority: 5 U.S.C. 551, 552, 552a, 5101-5108, 5110-5113, 5115,
5332-5334, 5341-42, 5504-5509, 7154; 10 U.S.C. 130, 1102, 2320-2321,
2328; 18 U.S.C. 798, 3500; 31 U.S.C. 3710; 35 U.S.C. 181-188; 42 U.S.C.
2162; 44 U.S.C. 33; and Executive Order 12600.
Source: 71 FR 9222, Feb. 22, 2006, unless otherwise noted.
Subpart A_General Provisions
Sec. 518.1 Purpose.
This part provides policies and procedures for implementation of the
Freedom of Information Act (5 U.S.C. 552, as amended) and Department of
Defense Directive (DoDD) 5400.7 and promotes uniformity in the
Department of Defense (DoD) Freedom of Information Act (FOIA) Program.
This Army regulation implements provisions for access and release of
information from all Army information systems (automated and manual) in
support of Army Information Management (AR 25-1).
Sec. 518.2 References.
Required and related publications are listed in Appendix A of this
part.
Sec. 518.3 Explanation of abbreviations and terms.
Abbreviations and special terms used in this part are explained in
the glossary of AR 25-55.
Sec. 518.4 Responsibilities.
(a) The Administrative Assistant to the Secretary of the Army (AASA)
is responsible for issuing policy and establishing guidance for the Army
FOIA Program. AASA has the responsibility to approve exceptions to this
regulation that are consistent with controlling law and regulations.
AASA may delegate the approval authority, in writing, to a division
chief, under its supervision, within that agency in the grade of O6 or
civilian equivalent.
(b) The Administrative Assistant to the Secretary of the Army,
(AASA), The Records and Programs Agency, (RPA), Records Management and
Declassification Agency (RMDA), is responsible for developing and
recommending policy to AASA concerning the Army FOIA program and overall
execution of the program under the policy and guidance of AASA.
(c) The Chief of Information Officer (CIO), G6 will provide
oversight of the FOIA program as necessary in compliance with Federal
Statutes, regulations, Office of Management and Budget (OMB), and the
Office of Secretary of Defense (OSD).
(d) Heads of Army Staff agencies, field operating agencies, major
Army commands (MACOMS), and subordinate commands are responsible for the
supervision and execution of the FOIA program in functional areas and
activities under their command.
(e) Heads of Joint Service agencies or commands for which the Army
is the Executive Agent, or otherwise has responsibility for providing
fiscal, logistical, or administrative support, will adhere to the
policies and procedures in this regulation.
(f) Commander, Army and Air Force Exchange Service (AAFES), is
responsible for the supervision of the FOIA program within that command
pursuant to this part.
Sec. 518.5 Authority.
(a) This part governs written FOIA requests from members of the
public. It does not preclude the release of personnel or other records
to agencies or individuals in the Federal Government for use in official
work.
(b) Soldiers and civilian employees of the Department of the Army
(DA) may, as private citizens, request DA or other agencies' records
under the FOIA. They
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must prepare requests at their own expense and on their own time. They
may not use Government equipment, supplies, or postage to prepare
personal FOIA requests. It is not necessary for soldiers or civilian
employees to go through the chain of command to request information
under the FOIA.
(c) Requests for DA records processed under the FOIA may be denied
only in accordance with the FOIA (5 U.S.C. 552(b)), as implemented by
this part. Guidance on the applicability of the FOIA is also found in
the Federal Acquisition Regulation (FAR).
(d) Release of some records may also be affected by the programs
that created them. They are discussed in the following regulations:
(1) AR 20-1 (Inspector General activities and procedures);
(2) AR 27-10 (military justice);
(3) AR 27-20 (claims);
(4) AR 27-40 (litigation: release of information and appearance of
witnesses);
(5) AR 27-60 (intellectual property);
(6) AR 36-2 (Government Accounting Office audits);
(7) AR 40-66, AR 40-68, and AR 40-400 (medical records);
(8) AR 70-31 (technical reports);
(9) AR 20-1, AR 385-40 and DA Pam 385-40 (aircraft accident
investigations);
(10) AR 195-2 (criminal investigation activities);
(11) AR 190-45 (Military Police records and reports);
(12) AR 360-1 (Army public affairs: public information, general
policies on release of information to the public);
(13) AR 380-5 and DoD 5200.1-R (national security classified
information);
(14) AR 380-5 paragraph 7-101e (policies and procedures for allowing
persons outside the Executive Branch to do unofficial historical
research in classified Army records);
(15) AR 380-10 (Technology Transfer for disclosure of information
and contacts with foreign representatives;
(16) AR 381-45 (U.S. Army Intelligence and Security Command
investigation files);
(17) AR 385-40 (safety reports and records);
(18) AR 600-8-104 (military personnel information management
records);
(19) AR 600-85 (alcohol and drug abuse records);
(20) AR 608-19 (family advocacy records); and
(21) AR 690 (series civilian personnel records, FAR, DoD Federal
Acquisition Regulation Supplement (DFARS) and the Army Federal
Acquisition Regulation Supplement (AFARS) procurement matters).
Sec. 518.6 Public information.
(a) Public information. The public has a right to information
concerning the activities of its Government. Army policy is to conduct
its activities in an open manner and provide the public with a maximum
amount of accurate and timely information concerning its activities,
consistent always with the legitimate public and private interests of
the American people. A record requested by a member of the public who
follows rules established by proper authority in DA shall not be
withheld in whole or in part unless the record is exempt from mandatory
partial or total disclosure under the FOIA. As a matter of policy, Army
activities shall make discretionary disclosures of exempt records or
information only after full and deliberate consideration of the
institutional, commercial, and personal privacy interests that could be
implicated by disclosure of the information. Activities must be prepared
to present a sound legal basis in support of their determinations. In
order that the public may have timely information concerning Army
activities, records requested through public information channels by
news media representatives that would not be withheld if requested under
the FOIA should be released upon request. Prompt responses to requests
for information from news media representatives should be encouraged to
eliminate the need for these requesters to invoke the provisions of the
FOIA and thereby assist in providing timely information to the public.
Similarly, requests from other members of the public for information
that would not be withheld under the FOIA should continue to be honored
through appropriate means without requiring the requester to invoke the
FOIA.
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(b) FOIA handbook. The Department of the Army Freedom of Information
Act/Privacy Act (DA FOIA/PA) Office shall prepare, in addition to FOIA
regulations, a handbook for the use of the public in obtaining
information from its organizations. This handbook will be a short,
simple explanation of what the FOIA is designed to do, and how a member
of the public can use it to access government records. The DA FOIA/PA
Office handbook will explain the types of records that can be obtained
through FOIA requests, why some records cannot, by law, be made
available, and how the Army activity determines whether or not the
record can be released. The handbook will also explain how to make a
FOIA request, how long the requester can expect to wait for a reply, and
appeal rights. The handbook will supplement other information locator
systems, such as the Government Information Locator Service (GILS), and
explain how a requester can obtain more information about those systems.
The handbook will be available on paper and through electronic means and
contain the following additional information, complete with electronic
links to the below elements: the location of reading room and the types
and categories of information available; the location of the World Wide
Web page; a reference to the Army FOIA regulation and how to obtain a
copy; a reference to the Army FOIA annual report and how to obtain a
copy; and the location of the GILS page. The DA FOIA handbook, ``A
Citizen's Guide to Request Army Records Under the Freedom of Information
Act (FOIA),'' can be accessed on-line at http://
www.rmda.belvoir.army.mil/. ``The Major Automated Information Systems
Descriptions'' can be accessed at http://www.defenselink.mil/pubs/foi.
(c) Control system. A request for records that invokes the FOIA
shall enter a formal control system designed to ensure accountability
and compliance with the FOIA. Any request for Army records that either
explicitly or implicitly cites the FOIA shall be processed under the
provisions of this part, unless otherwise required.
Sec. 518.7 FOIA terms defined.
(a) FOIA request. A written request for Army records that reasonably
describes the record(s) sought, made by any person, including a member
of the public (U.S. or foreign citizen/entity), an organization, or a
business, but not including a Federal Agency or a fugitive from the law,
that either explicitly or implicitly invokes the FOIA, DoDD 5400.7, DoD
5400.7-R, this part, or Army Activity supplementing regulations or
instructions. All requesters should also indicate a willingness to pay
fees associated with the processing of their request. Requesters may ask
for a waiver of fees, but should also express a willingness to pay fees
in the event of a waiver denial. Written requests may be received by
postal service or other commercial delivery means, by facsimile, or
electronically (such as e-mail). Requests received by facsimile or
electronically must have a postal mailing address included since it may
not be practical to provide a substantive response electronically. The
request is considered properly received, or perfected, when the
conditions in this paragraph have been met and the request arrives at
the FOIA office of the Activity in possession of the records.
(b) Agency record. The products of data compilation, such as all
books, papers, maps, photographs, and machine readable materials,
inclusive of those in electronic form or format, or other documentary
materials, regardless of physical form or characteristics, made or
received by an agency of the United States Government under Federal law
in connection with the transaction of public business and in DA
possession and control at the time the FOIA request is made.
(1) The following are not included within the definition of the word
``record'': Objects or articles, such as structures, furniture, vehicles
and equipment, whatever their historical value, or value as evidence;
Anything that is not a tangible or documentary record, such as an
individual's memory or oral communication; Personal records of an
individual not subject to
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agency creation or retention requirements, created and maintained
primarily for the convenience of an agency employee, and not distributed
to other agency employees for their official use. Personal papers fall
into three categories: Those created before entering Government service;
private materials brought into, created, or received in the office that
were not created or received in the course of transacting Government
business; and work-related personal papers that are not used in the
transaction of Government business in accordance with Public Law 86-36,
National Security Information Exemption.
(2) A record must exist and be in the possession and control of DA
at the time of the request to be considered subject to this part and the
FOIA. There is no obligation to create or compile a record to satisfy a
FOIA request.
(3) Hard copy or electronic records that are subject to FOIA
requests under 5 U.S.C. 552 (a)(3), and that are available to the public
through an established distribution system such as the Government
Printing Office (GPO), Federal Register, National Technical Information
Service (NTIS), or the Internet, normally need not be processed under
the provisions of the FOIA. If a request is received for such
information, Army Activities shall provide the requester with guidance,
inclusive of any written notice to the public, on how to obtain the
information. However, if the requester insists that the request be
processed under the FOIA, then the request shall be processed under the
FOIA. If there is any doubt as to whether the request must be processed,
contact DA, FOIA/PA Office.
(c) Army activity. A specific area of organizational or functional
responsibility within DA, authorized to receive and act independently on
FOIA requests.
(d) Initial denial authority (IDA). An official who has been granted
authority by the Secretary of the Army to deny records requested under
the FOIA based on one or more of the nine categories of exemptions from
mandatory disclosure. An IDA also: Denies a fee category claim by a
requester; denies a request for expedited processing due to demonstrated
compelling need; denies a request for a waiver or reduction of fees;
reviews a fee estimate; and confirms that no records were located in
response to a request.
(e) Appellate authority. The Secretary of the Army or designee
having jurisdiction for this purpose over the record, or any of the
other adverse determinations. The DA appellate authority is the Office
of the Army General Counsel (OGC).
(f) Administrative appeal. A request by a member of the general
public, made under the FOIA, asking the appellate authority of the Army
to reverse a decision to: Withhold all or part of a requested record;
deny a fee category claim by a requester; deny a request for expedited
processing due to demonstrated compelling need; deny a request for
waiver or reduction of fees; deny a request to review an initial fee
estimate; and confirm that no records were located during the initial
search. Requesters also may appeal the failure to receive a response
determination within the statutory time limits, a fee estimate, and any
determination that the requester believes is adverse in nature.
(g) Public interest. The interest in obtaining official information
that sheds light on an activity's performance of its statutory duties
because the information falls within the statutory purpose of the FOIA
to inform citizens about what their Government is doing. That statutory
purpose, however, is not fostered by disclosure of information about
private citizens accumulated in various governmental files that reveals
nothing about an agency's or official's own conduct.
(h) Electronic record. Records (including e-mail) that are created,
stored, and retrievable by electronic means.
(i) Federal agency. As defined by 5 U.S.C. 552 (f)(1), a Federal
agency is any executive department, military department, Government
corporation, Government controlled corporation, or other establishment
in the executive branch of the Government (including the Executive
Office of the President), or any independent regulatory agency.
(j) Law enforcement investigation. An investigation conducted by a
command
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or activity for law enforcement purposes relating to crime, waste, fraud
or national security. Such investigations may include gathering evidence
for criminal prosecutions and for civil or regulatory proceedings.
Sec. 518.8 Freedom of Information requirements.
(a) Compliance with the FOIA. Army personnel are expected to comply
with the FOIA, this part, and Army FOIA policy in both letter and
spirit. This strict adherence is necessary to provide uniformity in the
implementation of the Army FOIA Program and to create conditions that
will promote public trust.
(b) Openness with the public. The DA shall conduct its activities in
an open manner consistent with the need for security and adherence to
other requirements of law and regulation. Records not specifically
exempt from disclosure under the Act shall, upon request, be made
readily accessible to the public in accordance with rules promulgated by
competent authority, whether or not the Act is invoked.
(1) Operations Security (OPSEC). DA officials who release records
under the FOIA must also consider OPSEC. The Army implementing directive
is AR 530-1.
(2) DA Form 4948-R. This form lists references and information
frequently used for FOIA requests related to OPSEC. Persons who
routinely deal with the public (by telephone or letter) on such requests
should keep the form on their desks as a guide.
(c) Avoidance of procedural obstacles. Army Activities shall ensure
that procedural matters do not unnecessarily impede a requester from
obtaining DA records promptly. The Army shall provide assistance to
requesters to help them understand and comply with procedures
established by this part and any supplemental regulations published by
the Army Activities. Coordination of referral of requests with DA FOIA/
PA Office should be made telephonically in order to respond to the
requester in a timelier manner. Requests will not be mailed to the DA
FOIA/PA Office for disposition or coordination with other IDAs.
(d) Prompt action on requests and final response determinations.
Generally, when a member of the public complies with the procedures
established in this part or instructions for obtaining DA records, and
after the request is received by the official designated to respond,
Army Activities shall endeavor to provide a final response determination
within the statutory 20 working days. If a significant number of
requests, or the complexity of the requests prevent a final response
determination within the statutory time period, Army Activities shall
advise the requester of this fact, and explain how the request will be
responded to within its multitrack processing system. A final response
determination is notification to the requester that the records are
released or partially released, or will be released on a certain date,
or the records are withheld under an appropriate FOIA exemption, or the
records cannot be provided for one or more of the other reasons. Interim
responses acknowledging receipt of the request, negotiations with the
requester concerning the scope of the request, the response timeframe,
and fee agreements are encouraged; however, such actions do not
constitute a final response determination pursuant to the FOIA. If a
request fails to meet minimum requirements as set forth, Activities
shall contact the requester and inform the requester what would be
required to perfect or correct the request, or to limit the scope to
allow for the most expeditious response. The statutory 20 working day
time limit applies upon receipt of a perfected or correct FOIA request.
Before mailing a final response determination and those records or
portions thereof deemed releasable, records custodians will obtain a
written legal opinion from their servicing judge advocate concerning the
releasibility of the requested records. The legal opinion must cite
specific exemptions, appropriate justification, and identify if the
records were processed under the FOIA, PA (including the applicable
systems notice), or both.
(1) Multi-track processing. When an Army Activity has a significant
number of pending requests that prevents a response determination being
made within 20 working days, the requests
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shall be processed in a multitrack processing system, based on the date
of receipt, the amount of work and time involved in processing the
requests, and whether the request qualifies for expedited processing.
Army Activities may establish as many processing queues as they wish;
however, as a minimum, three processing tracks shall be established, all
based on a first-in, first-out concept, and rank ordered by the date of
receipt of the request. One track shall be a processing queue for simple
requests, one track for complex requests, and one track shall be a
processing queue for expedited processing. Determinations as to whether
a request is simple or complex shall be made by each Army Activity. Army
Activities shall provide a requester whose request does not qualify for
the fastest queue an opportunity to limit the scope of the request in
order to qualify for the fastest queue. This multitrack processing
system does not obviate an Activity's' responsibility to exercise due
diligence in processing requests in the most expeditious manner
possible.
(2) Expedited processing. A separate queue shall be established for
requests meeting the test for expedited processing. Expedited processing
shall be granted to a requester after the requester requests such and
demonstrates a compelling need for the information. Notice of the
determination as to whether to grant expedited processing in response to
a requester's compelling need shall be provided to the requester within
10 calendar days after receipt of the request in the Army Activity's
office that will determine whether to grant expedited processing. Once
the Army Activity has determined to grant expedited processing, the
request shall be processed as soon as practicable. Actions by Army
Activities to initially deny or affirm the initial denial on appeal of a
request for expedited processing and a failure to respond in a timely
manner shall be subject to judicial review. Initial determination of
denials of expedited processing will be immediately forwarded to the IDA
for action. If the IDA upholds the denial, the requester will be
informed of his or her right to appeal.
(i) Imminent threat. Compelling need means that the failure to
obtain the records on an expedited basis could reasonably be expected to
pose an imminent threat to the life or physical safety of an individual.
(ii) Alleged Federal Government activity. Compelling need also means
that the information is urgently needed by an individual primarily
engaged in disseminating information in order to inform the public
concerning actual or alleged Federal Government activity. An individual
primarily engaged in disseminating information means a person whose
primary activity involves publishing or otherwise disseminating
information to the public. Representatives of the news media would
normally qualify as individuals primarily engaged in disseminating
information. Other persons must demonstrate that their primary activity
involves publishing or otherwise disseminating information to the
public.
(iii) General public interest. Urgently needed means that the
information has a particular value that will be lost if not disseminated
quickly. Ordinarily this means a breaking news story of general public
interest. However, information of historical interest only or
information sought for litigation or commercial activities would not
qualify, nor would a news media publication or broadcast deadline
unrelated to the news breaking nature of the information.
(iv) Certified statement. A demonstration of compelling need by a
requester shall be made by a statement certified by the requester to be
true and correct to the best of his or her knowledge. This statement
must accompany the request in order to be considered and responded to
within the 10 calendar days required for decisions on expedited access.
(v) Other reasons for expedited processing. Another reason that
merits expedited processing by Army FOIA offices is an imminent loss of
substantial due process rights. A demonstration of imminent loss of
substantial due process rights shall be made by a statement certified by
the requester to be true and correct to the best of his or her
knowledge. The statement mentioned in paragraph (iv) of this section
must
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accompany the request in order to be considered and responded to within
the 10 calendar days required for decisions on expedited access. Once
the decision has been made to expedite the request for this reason, the
request may be processed in the expedited processing queue behind those
requests qualifying for compelling need.
(vi) Administrative appeals. These same procedures also apply to
requests for expedited processing of administrative appeals.
(e) Use of exemptions. It is Army policy to make records publicly
available, unless the record qualifies for exemption under one or more
of the nine exemptions. Discretionary releases of information protected
under the FOIA should be made only after full and deliberate
consideration of the institutional, commercial, and personal privacy
interests that could be implicated by disclosure of the information.
When Army activities determine to withhold information using one of the
nine exemptions, the Department of Justice (DOJ) will defend the
position unless it is found to be lacking a Sound Legal Basis for
denial.
(1) Parts of a requested record may be exempt from disclosure under
the FOIA. The proper DA official may delete exempt information and
release the remainder to the requester. The proper official also has the
discretion under the FOIA to release exempt information when
appropriate; he or she must exercise this discretion in a reasonable
manner, within regulations consistent with current policy
considerations. The excised copies shall clearly reflect the denied
information by the use of brackets, indicating the removal of
information. Bracketed areas must be sufficiently removed so as to
reveal no information. The best means to ensure illegibility is to cut
out the information from a copy of the document and reproduce the
appropriate pages.
(2) If the document is declassified, all classification markings
shall be lined through with a single black line, which will allow the
markings to be read. The document shall then be stamped
``Unclassified.''
(f) Public domain. Nonexempt records released under the authority of
this part are considered to be in the public domain. Such records may
also be made available in the DA reading room in paper form, as well as
electronically, to facilitate public access. Exempt records disclosed
without authorization by the appropriate Army FOIA official do not lose
their exempt status. Also, while authority may exist to disclose records
to individuals in their official capacity, the provisions of this part
apply if the same individual seeks the records in a private or personal
capacity.
(g) Creating a record. A record must exist and be in the possession
and control of DA at the time of the search to be considered subject to
this part and the FOIA. There is no obligation to create or compile a
record to satisfy a FOIA request. An Army Activity, however, may compile
a new record when so doing would result in a more useful response to the
requester, or be less burdensome to the agency than providing existing
records, and the requester does not object. Cost of creating or
compiling such a record may not be charged to the requester unless the
fee for creating the record is equal to or less than the fee that would
be charged for providing the existing record. Fee assessments shall be
in accordance with subpart F of this part.
(1) Concerning electronic data, the issue of whether records are
actually created or merely extracted from an existing database is not
always readily apparent. Consequently, when responding to FOIA requests
for electronic data where creation of a record, programming, or
particular format are questionable, Army Activities should apply a
standard of reasonableness.
(2) If the capability exists to respond to the request, and the
effort would be a business as usual approach, then the request should be
processed. However, the request need not be processed where the
capability to respond does not exist without a significant expenditure
of resources, thus not being a normal business as usual approach. As
used in this sense, a significant expenditure of resources in both time
and/or manpower that would cause a significant interference with the
operation of
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the Army Activity's automated information system would not be a business
as usual approach.
(h) Description of requested record. Identification of the record
desired is the responsibility of the requester. The requester must
provide a description of the desired record that enables the Government
to locate the record with a reasonable amount of effort. In order to
assist Army Activities in conducting more timely searches, requesters
should endeavor to provide as much identifying information as possible.
When an Army Activity receives a request that does not reasonably
describe the requested record, it shall contact the requester and afford
the requester the opportunity to perfect the request. Army Activities
are not obligated to act on the request until the requester perfects the
request. When practicable, Army Activities shall contact the requester
to aid in identifying the records sought and in reformulating the
request to reduce the burden on the agency in complying with the Act. DA
FOIA officials will reply to unclear requests by: Describing the defects
in the requests; explaining the types of information described below,
and ask the requester for such information; and explaining that no
action will be taken on the request until the requester replies to the
letter.
(1) The following guidelines are provided to deal with generalized
requests and are based on the principle of reasonable effort.
Descriptive information about a record may be divided into two broad
categories: Category I is file-related and includes information such as
type of record (for example, memorandum), title, index citation, subject
area, date of record creation, and originator; Category II is event-
related and includes the circumstances that resulted in the record being
created or the date and circumstances surrounding the event the record
covers.
(2) Generally, a record is not reasonably described unless the
description contains sufficient Category I information to permit an
organized, non random search based on the Army Activity's filing
arrangements and existing retrieval systems, or unless the record
contains sufficient Category II information to permit an inference of
the Category I elements needed to conduct such a search.
(3) The following guidelines deal with requests for personal
records. Ordinarily, when personal identifiers are provided only in
connection with a request for records concerning the requester, only
records in a PA system of records that can be retrieved by personal
identifiers need be searched. However, if an Army Activity has reason to
believe that records on the requester may exist in a record system other
than a PA system, the Army Activity shall search that system under the
provisions of the FOIA. In either case, Army Activities may request a
reasonable description of the records desired before searching for such
records under the provisions of the FOIA and the PA. If the record is
required to be released under the FOIA, the Privacy Act does not bar its
disclosure.
(4) The previous guidelines notwithstanding, the decision of the
Army Activity concerning reasonableness of description must be based on
knowledge of its files. If the description enables Army Activity
personnel to locate the record with reasonable effort, the description
is adequate. The fact that a FOIA request is broad or burdensome in its
magnitude does not, in and of itself, entitle an Army Activity to deny
the request on the ground that it does not reasonably describe the
records sought. The key factor is the ability of the Army Activity's
staff to reasonably ascertain and locate which records are being
requested.
(i) Referrals. The Army FOIA referral policy is based upon the
concept of the originator of a record making a release determination on
its information. If an Army Activity receives a request for records
originated by another Army Activity, it will contact the Army Activity
to determine if it also received the request, and if not, obtain
concurrence from the other Army Activity to refer the request. An Army
Activity shall refer a FOIA request for a classified record that it
holds to another Army Activity, DoD Component, or agency outside the
DoD, if the record originated in another Army Activity or DoD Component
or outside agency, or if the classification is derivative. In
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this situation, provide the record and a release recommendation on the
record with the referral action. In either situation, the requester
shall be advised of the action taken, unless exempt information would be
revealed. While referrals to originators of information result in
obtaining the best possible decision on release of the information, the
policy does not relieve Army Activities from the responsibility of
making a release decision on a record should the requester object to
referral of the request and the record. Should this situation occur,
Army Activities shall still coordinate with the originator of the
information prior to making a release determination. A request received
by an Army Activity having no records responsive to a request shall be
referred routinely to another Army Activity, if the other Army Activity
has reason to believe it has the requested records. Prior to notifying a
requester of a referral to another Army Activity, the Army Activity
receiving the initial request shall consult with the other Army Activity
to determine if that Army Activity's association with the material is
exempt. If the association is exempt, the Army Activity receiving the
initial request will protect the association and any exempt information
without revealing the identity of the protected Army Activity. The
protected Army Activity should be responsible for submitting the
justifications required in any litigation. Any Army Activity receiving a
request that has been misaddressed shall refer the request to the proper
address and advise the requester. Army Activities making referrals of
requests for records shall include with the referral, a point of contact
by name, a telephone number, and an e-mail address. If the office
receiving the FOIA request does not know where the requested records are
located, that activity will contact the DA, FOIA/PA Office, to determine
the office where the request should be referred.
(1) An Army Activity shall refer for response directly to the
requester a FOIA request for a record that it holds to another Army
Activity or agency outside the Army, if the record originated in the
other Army Activity or outside agency. Whenever a record or a portion of
a record is referred to another Army Activity or to a Government Agency
outside of the Army for a release determination and direct response, the
requester shall be informed of the referral, unless it has been
determined that notification would reveal exempt information. Referred
records shall only be identified to the extent consistent with security
requirements.
(2) An Army Activity may refer a request for a record that it
originated to another Army Activity or agency when the other Army
Activity or agency has a valid interest in the record, or the record was
created for the use of the other Army Activity or agency. In such
situations, provide the record and a release recommendation on the
record with the referral action. Include a point of contact with the
telephone number. An example of such a situation is a request for audit
reports prepared by the U.S. Army Audit Agency. These advisory reports
are prepared for the use of contracting officers and their release to
the audited contractor shall be at the discretion of the contracting
officer. A FOIA request shall be referred to the appropriate Army
Activity and the requester shall be notified of the referral, unless
exempt information would be revealed. Another example is a record
originated by an Army Activity or agency that involves foreign
relations, and could affect an Army Activity or organization in a host
foreign country. Such a request and any responsive records may be
referred to the affected Army Activity or organization for consultation
prior to a final release determination within DA.
(3) Within DA, an Army Activity shall ordinarily refer a FOIA
request and a copy of the record it holds but that originated with
another Army Activity or that contains substantial information obtained
from another Army Activity, to that Activity for direct response, after
direct coordination and obtaining concurrence from the Activity. The
requester then shall be notified of such referral. Army Activities shall
not, in any case, release or deny such records without prior
consultation with the other Army Activity.
(4) Army Activities that receive referred requests shall answer them
in
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accordance with the time limits established by the FOIA, this part, and
their multitrack processing queues, based upon the date of initial
receipt of the request at the referring Activity or agency.
(5) Agencies outside DA that are subject to the FOIA.
(i) An Army Activity may refer a FOIA request for any record that
originated in an agency outside DA or that is based on information
obtained from an outside agency to the agency for direct response to the
requester after coordination with the outside agency, if that agency is
subject to FOIA. Otherwise, the Army Activity must respond to the
request.
(ii) An Army Activity shall refer to the agency that provided the
record any FOIA request for investigative, intelligence, or any other
type of records that are on loan to DA for a specific purpose, if the
records are restricted from further release and so marked. However, if
for investigative or intelligence purposes, the outside agency desires
anonymity, an Army Activity may only respond directly to the requester
after coordination with the outside agency.
(6) Army Activities that receive requests for records of the
National Security Council (NSC), the White House, or the White House
Military Office (WHMO) shall process the requests. Army records in which
the NSC or White House has a concurrent reviewing interest, and NSC,
White House, or WHMO records discovered in Army Activity's files shall
be forwarded through DA, FOIA/PA Office, to the Washington Headquarters
Services, Office For Freedom of Information and Security Review
(OFOISR). The OFOISR shall coordinate with the NSC, White House, or WHMO
and return the records to the originating agency after coordination.
(7) To the extent referrals are consistent with the policies
expressed by this section, referrals between offices of the same Army
Activity are authorized.
(8) On occasion, the DA receives FOIA requests for Government
Accountability Office (GAO) records containing Army information. Even
though the GAO is outside the Executive Branch, and not subject to the
FOIA, all FOIA requests for GAO documents containing Army information
received either from the public or on referral from the GAO shall be
processed under the provisions of the FOIA.
(j) Authentication. Records provided under this part shall be
authenticated with an appropriate seal, whenever necessary, to fulfill
an official Government or other legal function. This service, however,
is in addition to that required under the FOIA and is not included in
the FOIA fee schedule. Army Activities may charge for the service at a
rate of $5.20 for each authentication.
(k) Records management. FOIA records shall be maintained and
disposed of in accordance with the National Archives and Records
Administration (NARA) General Records Schedule and DoD Component records
schedules.
(l) Record-keeping requirements in accordance with the Army Records
Information Management System (ARIMS). The records listed below are
required by ARIMS in the conduct of the daily business of the Army to
provide adequate and proper documentation to protect the rights and
interests of individuals and the Federal Government. The full
description of the records and their disposition is found at https://
www2.arims.army.mil.
(1) FOIA requests, access, and denials;
(2) FOIA administrative files;
(3) FOIA appeals;
(4) FOIA controls;
(5) FOIA reports;
(6) Access to information files;
(7) Safeguarded nondefense information releases;
(8) Nonsafeguarded information releases;
(9) Unauthorized disclosure reports;
(10) Acknowledgement; and
(11) Initial Denial Authority designations/appointments.
(m) Relationship between the FOIA and the Privacy Act (PA). Not all
requesters are knowledgeable of the appropriate statutory authority to
cite when requesting records, nor are all of them aware of appeal
procedures. In some instances, they may cite neither Act, but will imply
one or both Acts. For these
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reasons, the below guidelines are provided to ensure that requesters
receive the greatest amount of access rights under both Acts.
(1) If the record is required to be released under the FOIA, the PA
does not bar its disclosure. Unlike the FOIA, the PA applies only to
U.S. citizens and aliens lawfully admitted for permanent residence.
(2) Requesters who seek records about themselves contained in a PA
system of records and who cite or imply only the PA, will have their
requests processed under the provisions of both the PA and the FOIA. If
the PA system of records is exempt from the provisions of 5 U.S.C.
552a(d)(1) and if the records, or any portion thereof, are exempt under
the FOIA, the requester shall be so advised with the appropriate PA and
FOIA exemption. Appeals shall be processed under both Acts.
(3) Requesters who seek records about themselves that are not
contained in a Privacy Act system of records and who cite or imply the
PA will have their requests processed under the provisions of the FOIA,
since the PA does not apply to these records. Appeals shall be processed
under the FOIA.
(4) Requesters who seek records about themselves that are contained
in a PA system of records and who cite or imply the FOIA or both Acts
will have their requests processed under the provisions of both the PA
and the FOIA. If the PA system of records is exempt from the provisions
of 5 U.S.C. 552a(d)(1) and if the records, or any portion thereof, are
exempt under the FOIA, the requester shall be so advised with the
appropriate PA and FOIA exemption. Appeals shall be processed under both
Acts.
(5) Requesters who seek access to agency records that are not part
of a PA system of records, and who cite or imply the PA and FOIA, will
have their requests processed under the FOIA since the PA does not apply
to these records. Appeals shall be processed under the FOIA. Requesters
who seek access to agency records and who cite or imply the FOIA will
have their requests and appeals processed under the FOIA.
(6) Requesters shall be advised in the final response letter, which
Act(s) was (were) used, inclusive of appeal rights as outlined in
paragraphs (m)(1) through (5) of this section.
(n) Non-responsive information in responsive records. Army
Activities shall interpret FOIA requests liberally when determining
which records are responsive to the requests, and may release non-
responsive information. However, should Army Activities desire to
withhold non-responsive information, the following steps shall be
accomplished:
(1) Consult with the requester, and ask if the requester views the
information as responsive, and if not, seek the requester's concurrence
to delete the non-responsive information without a FOIA exemption.
Reflect this concurrence in the response letter.
(2) If the responsive record is unclassified, and the requester does
not agree to deletion of non-responsive information without a FOIA
exemption, release all non-responsive and responsive information that is
not exempt. For non-responsive information that is exempt, notify the
requester that even if the information were determined responsive, it
would likely be exempt under (state appropriate exemption(s)). Advise
the requester of the right to request this information under a separate
FOIA request. The separate request shall be placed in the same location
within the processing queue as the original request.
(3) If the responsive record is classified, and the requester does
not agree to deletion of non-responsive information without a FOIA
exemption, release all unclassified responsive and non-responsive
information that is not exempt. The classified, non-responsive
information need not be reviewed for declassification at this point.
Advise the requester that even if the classified information were
determined responsive, it would likely be exempt under 5 U.S.C.
552(b)(1), and other exemptions if appropriate. Advise the requester of
the right to request this information under a separate FOIA request. The
separate request shall be placed in the same location within the
processing queue as the original request.
(o) Honoring form or format requests. Army Activities shall provide
the
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record in any form or format requested by the requester if the record is
readily reproducible in that form or format. Army Activities shall make
reasonable efforts to maintain their records in forms or formats that
are reproducible. In responding to requests for records, Army Activities
shall make reasonable efforts to search for records in electronic form
or format, except when such efforts would significantly interfere with
the operation of the Army Activities' automated information system. Such
determinations shall be made on a case-by-case basis.
Subpart B_FOIA Reading Rooms
Sec. 518.9 Reading room.
(a) Reading room location. The DA shall provide an appropriate
facility or facilities where the public may inspect and copy or have
copied the records described in paragraphs (b)(1) through (4) of this
section. In addition to the records described, DA may elect to place
other records in their reading room, and also make them electronically
available to the public. The Army may share reading room facilities with
DoD Components if the public is not unduly inconvenienced, and also may
establish decentralized reading rooms. When appropriate, the cost of
copying may be imposed on the person requesting the material in
accordance with the provisions of subpart F of this part. The Army FOIA
Public Reading Room is operated by the DA, FOIA/PA Office.
(b) Record availability. The FOIA requires that records described in
5 U.S.C. 552(a)(2)(A), (B), (C), and (D) created on or after November 1,
1996, shall be made available electronically, as well as in hard copy in
the FOIA reading room for inspection and copying, unless such records
are published and copies are offered for sale. All portions determined
to be exempt in accordance with 5 U.S.C. 552 (reference (a)) shall be
deleted from all 5 U.S.C. 552(a)(2) records made available to the
general public. In every case, justification for the deletion must be
fully explained in writing, and the extent of such deletion shall be
indicated on the record that is made publicly available, unless such
indication would harm an interest protected by an exemption under which
the deletion was made. If technically feasible, the extent of the
deletion in electronic records or any other form of record shall be
indicated at the place in the record where the deletion was made.
However, the Army may publish in the Federal Register a description of
the basis upon which it will delete identifying details of particular
types of records to avoid clearly unwarranted invasions of privacy, or
competitive harm to business submitters. In appropriate cases, the Army
may refer to this description rather than write a separate justification
for each deletion. 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) records are:
(1) (a)(2)(A) records. Final opinions, including concurring and
dissenting opinions, and orders made in the adjudication of cases, as
defined in 5 U.S.C. 551, that may be cited, used, or relied upon as
precedents in future adjudications;
(2) (a)(2)(B) records. Statements of policy and interpretations that
have been adopted by the agency that are not published in the Federal
Register; and
(3) (a)(2)(C) records. Administrative staff manuals and
instructions, or portions thereof that establish Army policy or
interpretations of policy that affect a member of the public. This
provision does not apply to instructions for employees on tactics and
techniques to be used in performing their duties, or to instructions
relating only to the internal management of the Army. Examples of
manuals and instructions not normally made available are:
(i) Those issued for audit, investigation, and inspection purposes,
or those that prescribe operational tactics, standards of performance,
or criteria for defense, prosecution, or settlement of cases; and
(ii) Operations and maintenance manuals and technical information
concerning munitions, equipment, systems, and intelligence activities.
(4) (a)(2)(D) records. Those 5 U.S.C. 552(a)(3) records, which
because of the nature of the subject matter, have become or are likely
to become the subject of subsequent requests for substantially the same
records. These records
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are referred to as FOIA-processed (a)(2) records.
(i) Army Activities shall decide on a case by case basis whether
records fall into this category, based on previous experience of the
Army Activity with similar records; particular circumstances of the
records involved, including their nature and the type of information
contained in them; or the identity and number of requesters and whether
there is widespread press, historic, or commercial interest in the
records.
(ii) This provision is intended for situations where public access
in a timely manner is important, and it is not intended to apply where
there may be a limited number of requests over a short period of time
from a few requesters. Army Activities may remove the records from this
access medium when the appropriate officials determine that access is no
longer necessary.
(iii) Should a requester submit a FOIA request for FOIA-processed
(a)(2) records, and insist that the request be processed, Army
Activities shall process the FOIA request. However, Army Activities have
no obligation to process a FOIA request for 5 U.S.C. 552(a)(2)(A), (B),
and (C) records because these records are required to be made public and
not FOIA-processed under paragraph (a)(3) of the FOIA.
Sec. 518.10 ``(a)(2)'' materials.
(a) The DA FOIA/PA Office shall maintain in the facility an index of
materials described in paragraphs (b)(1) through (4) of Sec. 518.9,
that are issued, adopted, or promulgated after July 4, 1967. No
``(a)(2)'' materials issued, promulgated, or adopted after July 4, 1967
that are not indexed and either made available or published may be
relied upon, used or cited as precedent against any individual unless
such individual has actual and timely notice of the contents of such
materials. Such materials issued, promulgated, or adopted before July 4,
1967 need not be indexed, but must be made available upon request if not
exempted under this part.
(b) The DA FOIA/PA Office shall promptly publish quarterly or more
frequently, and distribute, by sale or otherwise, copies of each index
of ``(a)(2)'' materials or supplements thereto unless it publishes in
the Federal Register an order containing a determination that
publication is unnecessary and impracticable. A copy of each index or
supplement not published shall be provided to a requester at a cost not
to exceed the direct cost of duplication as set forth in subpart F of
this part.
(c) Each index of ``(a)(2)'' materials or supplement thereto shall
be arranged topically or by descriptive words rather than by case name
or numbering system so that members of the public can readily locate
material. Case name and numbering arrangements, however, may also be
included for Army convenience.
(d) A general index of FOIA-processed (a)(2) records shall be made
available to the public, both in hard copy and electronically.
Sec. 518.11 Other materials.
(a) Any available index of Army material published in the Federal
Register, such as material required to be published by section 552(a)(1)
of the FOIA, shall be made available in the Army FOIA Public Reading
Room, and electronically to the public.
(b) Although not required to be made available in response to FOIA
requests or made available in FOIA Reading Rooms, ``(a)(1)'' materials
shall, when feasible, be made available to the public in FOIA reading
rooms for inspection and copying, and by electronic means. Examples of
``(a)(1)'' materials are descriptions of an agency's central and field
organization, and to the extent they affect the public, rules of
procedures, descriptions of forms available, instruction as to the scope
and contents of papers, reports, or examinations, and any amendment,
revision, or report of the aforementioned.
Subpart C_Exemptions
Sec. 518.12 General.
Records that meet the exemption criteria of the FOIA may be withheld
from public disclosure and need not be published in the Federal
Register, made available in a library reading room, or provided in
response to a FOIA request.
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Sec. 518.13 FOIA exemptions.
The following types of records may be withheld in whole or in part
from public disclosure under the FOIA, unless otherwise prescribed by
law. A discretionary release of a record to one requester shall prevent
the withholding of the same record under a FOIA exemption if the record
is subsequently requested by someone else. However, a FOIA exemption may
be invoked to withhold information that is similar or related to that
which has been the subject of a discretionary release. In applying
exemptions, the identity of the requester and the purpose for which the
record is sought are irrelevant with the exception that an exemption may
not be invoked where the particular interest to be protected is the
requester's interest. However, if the subject of the record is the
requester for the record and the record is contained in a PA system of
records, it may only be denied to the requester if withholding is both
authorized by AR 25-71 and by a FOIA exemption.
(a) Number 1 (5 U.S.C. 552 (b)(1)). Those properly and currently
classified in the interest of national defense or foreign policy, as
specifically authorized under the criteria established by Executive
Order and implemented by regulations, such as DoD 5200.1-R. Although
material is not classified at the time of the FOIA request, a
classification review may be undertaken to determine whether the
information should be classified. The procedures in DoD 5200.1-R apply.
If the information qualifies as exemption 1 information, there is no
discretion regarding its release. In addition, this exemption shall be
invoked when the following situations are apparent:
(1) The fact of the existence or nonexistence of a record would
itself reveal classified information. In this situation, Army Activities
shall neither confirm nor deny the existence or nonexistence of the
record being requested. A ``refusal to confirm or deny'' response must
be used consistently, not only when a record exists, but also when a
record does not exist. Otherwise, the pattern of using a ``no record''
response when a record does not exist, and a ``refusal to confirm or
deny'' when a record does exist will itself disclose national security
information.
(2) Compilations of items of information that are individually
unclassified may be classified if the compiled information reveals
additional association or relationship that meets the standard for
classification under an existing executive order for classification and
DoD 5200.1-R, and is not otherwise revealed in the individual items of
information.
(b) Number 2 (5 U.S.C. 552(b)(2)). Those related solely to the
internal personnel rules and practices of the DoD or any of its
Components. This exemption has two profiles, high (b)(2) and low (b)(2).
Activities are encouraged to consult the DA, FOIA/PA Office, and the
U.S. DoJ ``Freedom of Information Act Guide & Privacy Act Overview'' for
a more in depth discussion on the legal history of the use of the low
(b)(2) exemption. When only a minimal Government interest would be
affected (administrative burden), Army Activities shall apply the sound
legal basis standard regarding disclosure of the information. Army
Activities shall apply the low 2 exemption as applicable.
(1) Records qualifying under high (b)(2) are those containing or
constituting statutes, rules, regulations, orders, manuals, directives,
instructions, security classification guides, and sensitive but
unclassified information related to America's homeland security and
critical infrastructure information the release of which would allow
circumvention of these records thereby substantially hindering the
effective performance or present an unwarranted risk of adverse impact
on the ability of other agencies to protect other important records of a
significant function of the DA. Examples include:
(i) Those operating rules, guidelines, and manuals for Army
investigators, inspectors, auditors, or examiners that must remain
privileged in order for the Army Activity to fulfill a legal
requirement;
(ii) Personnel and other administrative matters, such as examination
questions and answers used in training courses or in the determination
of the qualifications of candidates for employment, entrance on duty,
advancement, or promotion; and
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(iii) Computer software, the release of which would allow
circumvention of a statute, DoD or Army rules, regulations, orders,
manuals, directives, or instructions. In this situation, the use of the
software must be closely examined to ensure a circumvention possibility
exists.
(2) Records qualifying under the low (b)(2) profile are those that
are trivial and housekeeping in nature for which there is no legitimate
public interest or benefit to be gained by release, and it would
constitute an administrative burden to process the request in order to
disclose the records. Examples include rules of personnel's use of
parking facilities or regulation of lunch hours, statements of policy as
to sick leave, and administrative data such as file numbers, mail
routing stamps, initials, data processing notations, brief references to
previous communications, and other like administrative markings. Army
Activities shall apply the low 2 exemption as applicable.
(c) Number 3 (5 U.S.C. 552(b)(3)). Those concerning matters that a
statute specifically exempts from disclosure by terms that permit no
discretion on the issue, or in accordance with criteria established by
that statute for withholding or referring to particular types of matters
to be withheld. The DA, FOIA/PA Office, maintains a list of (b)(3)
statutes used within the DoD, and provides updated lists of these
statutes to Army Activities on a periodic basis. A few examples of such
statutes are:
(1) Personnel in Overseas, Sensitive, or Routinely Deployable Units:
nondisclosure of personally identifying information, 10 U.S.C. 130(b).
Additionally, the names and duty addresses (postal and/or e-mail) of
Army military and civilian personnel who are assigned to units that are
sensitive, routinely deployable, or stationed in foreign territories can
constitute a clearly unwarranted invasion of personal privacy and may
also be withheld in accordance with FOIA Exemption 3. Names and duty
addresses (postal and/or e-mail) published in telephone directories,
organizational charts, rosters and similar materials for personnel
assigned to units that are sensitive, routinely deployable, or stationed
in foreign territories are withholdable under this exemption, in
accordance with 10 U.S.C. 130 `Personnel in Overseas, Sensitive, or
Routinely Deployable Units';
(2) Classification and Declassification of Restricted Data, 42
U.S.C. 2162;
(3) Disclosure of Classified Information, 18 U.S.C. 798(a);
(4) Authority to Withhold from Public Disclosure Certain Technical
Data, 10 U.S.C. 130 and DoDD 5230.25;
(5) Confidentiality of Medical Quality Assurance Records: Qualified
Immunity for Participants, 10 U.S.C. 1102(f);
(6) Physical Protection of Special Nuclear Material: Limitation on
Dissemination of Unclassified Information, 10 U.S.C. 128;
(7) Protection of Intelligence Sources and Methods, 50 U.S.C. 403-
3(c)(6);
(8) Prohibition on Release of Contractor Submitted Proposals, 10
U.S.C. 2305(g);
(9) Restrictions on Disclosing and Obtaining Contractor Bid or
Proposal Information or Source Selection Information, 41 U.S.C. 423; and
(10) Secrecy of Certain Inventions and Filing Applications in a
Foreign Country, 35 U.S.C. 181-188. Any records containing information
relating to inventions that are the subject of patent applications on
which Patent Secrecy Orders have been issued.
(d) Number 4 (5 U.S.C. 552(b)(4)). Those containing trade secrets or
commercial or financial information that an Army Activity receives from
a person or organization outside the Government with the understanding
that the information or record will be retained on a privileged or
confidential basis in accordance with the customary handling of such
records. Records within the exemption must contain trade secrets, or
commercial or financial records, the disclosure of which is likely to
cause substantial harm to the competitive position of the source
providing the information, impair the Government's ability to obtain
necessary information in the future, or impair some other legitimate
Government interest. Commercial or financial information submitted on a
voluntary basis, absent any exercised authority prescribing criteria for
submission is protected
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without any requirement to show competitive harm. If the information
qualifies as exemption 4 information, there is no discretion in its
release. Examples include:
(1) Commercial or financial information received in confidence in
connection with loans, bids, contracts, or proposals set forth in or
incorporated by reference in a contract entered into between the Army
Activity and the offeror that submitted the proposal, as well as other
information received in confidence or privileged, such as trade secrets,
inventions, discoveries, or other proprietary data. Additionally, when
the provisions of 10 U.S.C. 2305(g) and 41 U.S.C. 423 are met, certain
proprietary and source selection information may be withheld under
exemption 3;
(2) Statistical data and commercial or financial information
concerning contract performance, income, profits, losses, and
expenditures, if offered and received in confidence from a contractor or
potential contractor;
(3) Personal statements given in the course of inspections,
investigations, or audits, when such statements are received in
confidence from the individual and retained in confidence because they
reveal trade secrets or commercial or financial information normally
considered confidential or privileged;
(4) Financial data provided in confidence by private employers in
connection with locality wage surveys that are used to fix and adjust
pay schedules applicable to the prevailing wage rate of employees within
the DA;
(5) Scientific and manufacturing processes or developments
concerning technical or scientific data or other information submitted
with an application for a research grant, or with a report while
research is in progress;
(6) Technical or scientific data developed by a contractor or
subcontractor exclusively at private expense, and technical or
scientific data developed in part with Federal funds and in part at
private expense, wherein the contractor or subcontractor has retained
legitimate proprietary interests in such data in accordance with 10
U.S.C. 2320-2311 and DoD Federal Acquisition Regulation Supplement
(DFARS), subpart 27.4. Technical data developed exclusively with Federal
funds may be withheld under Exemption Number 3 if it meets the criteria
of 10 U.S.C. 130 and DoDD 5230.25;
(7) Computer software, which is copyrighted in accordance with 17
U.S.C. 106, `Exclusive rights in Copyrighted Works,' the disclosure of
which would have an adverse impact on the potential market value of a
copyrighted work; and
(8) Proprietary information submitted strictly on a voluntary basis,
absent any exercised authority prescribing criteria for submission.
Examples of exercised authorities prescribing criteria for submission
are statutes, Executive Orders, regulations, invitations for bids,
requests for proposals, and contracts. Submission of information under
these authorities is not voluntary.
(e) Number 5 (5 U.S.C. 552(b)(5)). Those containing information
considered privileged in litigation, primarily under the deliberative
process privilege. Except as provided in paragraphs (e)(1) through (5)
of this section, internal advice, recommendations, and subjective
evaluations, as contrasted with factual matters that are reflected in
deliberative records pertaining to the decision-making process of an
agency, whether within or among agencies (as defined in 5 U.S.C.
552(e)), or within or among Army Activities. In order to meet the test
of this exemption, the record must be both deliberative in nature, as
well as part of a decision-making process. Merely being an internal
record is insufficient basis for withholding under this exemption. Also
potentially exempted are records pertaining to the attorney-client
privilege and the attorney work-product privilege. Discretionary
disclosure decisions should be made only after full and deliberate
consideration of the institutional, commercial, and personal privacy
interests that could be implicated by disclosure of the information.
(1) Examples of the deliberative process include:
(i) The non-factual portions of staff papers, to include after-
action reports, lessons learned, and situation reports containing staff
evaluations, advice, opinions, or suggestions;
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(ii) Advice, suggestions, or evaluations prepared on behalf of the
DA by individual consultants or by boards, committees, councils, groups,
panels, conferences, commissions, task forces, or other similar groups
that are formed for the purpose of obtaining advice and recommendations;
(iii) Those non-factual portions of evaluations by DoD Component
personnel of contractors and their products;
(iv) Information of a speculative, tentative, or evaluative nature
or such matters as proposed plans to procure, lease or otherwise acquire
and dispose of materials, real estate, facilities or functions, when
such information would provide undue or unfair competitive advantage to
private personal interests or would impede legitimate government
functions;
(v) Trade secret or other confidential research development, or
commercial information owned by the Government, where premature release
is likely to affect the Government's negotiating position or other
commercial interest;
(vi) Those portions of official reports of inspection, reports of
the Inspector Generals, audits, investigations, or surveys pertaining to
safety, security, or the internal management, administration, or
operation of one or more Army Activities, when these records have
traditionally been treated by the courts as privileged against
disclosure in litigation; and
(vii) Planning, programming, and budgetary information that is
involved in the defense planning and resource allocation process.
(2) If any such intra- or inter-agency record or reasonably
segregable portion of such record hypothetically would be made available
routinely through the discovery process in the course of litigation with
the Army, then it should not be withheld under the FOIA. If, however,
the information hypothetically would not be released at all, or would
only be released in a particular case during civil discovery where a
party's particularized showing of need might override a privilege, then
the record may be withheld. Discovery is the formal process by which
litigants obtain information from each other for use in the litigation.
Consult with legal counsel to determine whether exemption 5 material
would be routinely made available through the discovery process.
(3) Intra- or inter-agency memoranda or letters that are factual, or
those reasonably segregable portions that are factual, are routinely
made available through discovery, and shall be made available to a
requester, unless the factual material is otherwise exempt from release,
inextricably intertwined with the exempt information, so fragmented as
to be uninformative, or so redundant of information already available to
the requester as to provide no new substantive information.
(4) A direction or order from a superior to a subordinate, though
contained in an internal communication, generally cannot be withheld
from a requester if it constitutes policy guidance or a decision, as
distinguished from a discussion of preliminary matters or a request for
information or advice that would compromise the decision-making process.
(5) An internal communication concerning a decision that
subsequently has been made a matter of public record must be made
available to a requester when the rationale for the decision is
expressly adopted or incorporated by reference in the record containing
the decision.
(f) Number 6 (5 U.S.C. 552(b)(6)). Information in personnel and
medical files, as well as similar personal information in other files,
and lists of personally identifying information of Army personnel, that,
if disclosed to a requester, other than the person about whom the
information is about, would result in a clearly unwarranted invasion of
personal privacy. Release of information about an individual contained
in a Privacy Act System of Records that would constitute a clearly
unwarranted invasion of privacy is prohibited, and could subject the
releaser to civil and criminal penalties. If the information qualifies
as exemption 6 information, there is no discretion regarding its
release.
(1) Examples of other files containing personal information similar
to that contained in personnel and medical files include:
(i) Those compiled to evaluate or adjudicate the suitability of
candidates
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for civilian employment or membership in the Armed Forces, and the
eligibility of individuals (civilian, military, or contractor employees)
for security clearances, or for access to particularly sensitive
classified information; and
(ii) Files containing reports, records, and other material
pertaining to personnel matters in which administrative action,
including disciplinary action, may be taken.
(2) Army components shall ordinarily withhold lists of names
(including active duty military, civilian employees, contractors,
members of the National Guard and Reserves, and military dependents) and
other personally identifying information, including lists of e-mail
addresses of personnel currently or recently assigned within a
particular component, unit, organization, or office within the Army.
Home addresses, including private e-mail addresses, are normally not
releasable without the consent of the individuals concerned. This
includes lists of home addresses and military quarters' addressees
without the occupant's name.
(i) Privacy Interest. A privacy interest may exist in personal
information even though the information has been disclosed at some place
and time. If personal information is not freely available from sources
other than the Federal Government, a privacy interest exists in its
nondisclosure. The fact that the Federal Government expended funds to
prepare, index and maintain records on personal information, and the
fact that a requester invokes FOIA to obtain these records indicates the
information is not freely available.
(ii) The right to privacy of deceased persons is not entirely
settled, but the majority rule is that death extinguishes their privacy
rights. However, particularly sensitive, graphic, personal details about
the circumstances surrounding an individual's death may be withheld when
necessary to protect the privacy interests of surviving family members.
Even information that is not particularly sensitive in and of itself may
be withheld to protect the privacy interests of surviving family members
if disclosure would rekindle grief, anguish, pain, embarrassment, or
cause a disruption of their peace of minds. Additionally, the deceased's
social security number should be withheld since it is used by the next
of kin to receive benefits. Disclosures of the deceased's social
security number may be made to the immediate next of kin.
(iii) A clearly unwarranted invasion of the privacy of third parties
identified in a personnel, medical or similar record constitutes a basis
for deleting those reasonably segregable portions of that record. When
withholding third party personal information from the subject of the
record and the record is contained in a Privacy Act system of records,
consult with legal counsel.
(iv) This exemption also applies when the fact of the existence or
nonexistence of a responsive record would itself reveal personally
private information, and the public interest in disclosure is not
sufficient to outweigh the privacy interest. In this situation, Army
Activities shall neither confirm nor deny the existence or nonexistence
of the record being requested. This is a ``Glomar'' response, and
exemption 6 must be cited in the response. Additionally, in order to
ensure personal privacy is not violated during referrals, Army
Activities shall coordinate telephonically or in person with other Army
Activities or DoD Components or Federal Agencies before referring a
record that is exempt under the ``Glomar'' concept. See Phillippi v.
CIA, 546 F.2d 1009 (DC Cir. 1976).
(v) A ``refusal to confirm or deny'' response must be used
consistently, not only when a record exists, but also when a record does
not exist. Otherwise, the pattern of using a ``no records'' response
when a record does not exist and a ``refusal to confirm or deny'' when a
record does exist will itself disclose personally private information.
Refusal to confirm or deny should not be used when:
(A) The person whose personal privacy is in jeopardy has provided
the requester a waiver of his or her privacy rights;
(B) The person initiated or directly participated in an
investigation that lead to the creation of an agency record seeks access
to that record; or
(C) The person whose personal privacy is in jeopardy is deceased,
the
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Agency is aware of that fact, and disclosure would not invade the
privacy of the deceased's family.
(g) Number 7 (5 U.S.C. 552(b)(7)). Records or information compiled
for law enforcement purposes, i.e., civil, criminal, or military,
including the implementation of Executive Orders or regulations issued
pursuant to law. This exemption may be invoked to prevent disclosure of
documents not originally created for, but later gathered for law
enforcement purposes. With the exception of parts (C) and (F), this
exemption is discretionary. If information qualifies as exemption (7)(C)
or (7)(F) information, there is no discretion in its release.
(1) This exemption applies, however, only to the extent that
production of such law enforcement records or information could result
in the following:
(i) Could reasonably be expected to interfere with law enforcement
proceedings (5 U.S.C. 552(b)(7)(A));
(ii) Would deprive a person of the right to a fair trial or to an
impartial adjudication (5 U.S.C. 552(b)(7)(B));
(iii) Could reasonably be expected to constitute an unwarranted
invasion of the personal privacy of a living person, or to surviving
family members of an individual identified in such a record (5 U.S.C.
552(b)(7)(C));
(iv) This exemption also applies when the fact of the existence or
nonexistence of a responsive record would itself reveal personally
private information, and the public interest in disclosure is not
sufficient to outweigh the privacy interest. In this situation,
Activities shall neither confirm nor deny the existence or nonexistence
of the record being requested. This is a ``Glomar'' response, and
exemption (7)(C) must be cited in the response. Additionally, in order
to ensure personal privacy is not violated during referrals, Army
Activities shall coordinate with other Army Activities or DoD Components
or Federal Agencies before referring a record that is exempt under the
``Glomar'' concept;
(v) A ``refusal to confirm or deny'' response must be used
consistently, not only when a record exists, but also when a record does
not exist. Otherwise, the pattern of using a ``no records'' response
when a record does not exist and a ``refusal to confirm or deny'' when a
record does exist will itself disclose personally private information;
(vi) Refusal to confirm or deny should not be used when the person
whose personal privacy is in jeopardy has provided the requester with a
waiver of his or her privacy rights; or the person whose personal
privacy is in jeopardy is deceased, and the Agency is aware of that fact
and disclosure would not invade the privacy of the deceased's family;
(vii) Could reasonably be expected to disclose the identity of a
confidential source, including a source within DoD, a State, local, or
foreign agency or authority, or any private institution that furnishes
the information on a confidential basis; and could disclose information
furnished from a confidential source and obtained by a criminal law
enforcement authority in a criminal investigation or by an agency
conducting a lawful national security intelligence investigation (5
U.S.C. 552(b)(7)(D));
(viii) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law (5 U.S.C.
552(b)(7)(E)); or
(ix) Could reasonably be expected to endanger the life or physical
safety of any individual (5 U.S.C. 552(b)(7)(F)).
(2) Some examples of exemption 7 are:
(i) Statements of witnesses and other material developed during the
course of the investigation and all materials prepared in connection
with related Government litigation or adjudicative proceedings;
(ii) The identity of firms or individuals being investigated for
alleged irregularities involving contracting with the DoD when no
indictment has been obtained or any civil action filed against them by
the United States; and
(iii) Information obtained in confidence, expressed or implied, in
the course of a criminal investigation by a criminal law enforcement
agency or office within an Army Activity or a DoD
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Component, or a lawful national security intelligence investigation
conducted by an authorized agency or office within an Army Activity or a
DoD Component. National security intelligence investigations include
background security investigations and those investigations conducted
for the purpose of obtaining affirmative or counterintelligence
information.
(3) The right of individual litigants to investigative records
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500), is
not diminished.
(4) Excluded from exemption 7 are two situations applicable to DoD.
(Activities considering invoking an exclusion based on the following
scenarios should first consult through legal counsel, to the DoJ, Office
of Information and Privacy (DoJ OIP).
(i) Whenever a request is made that involves access to records or
information compiled for law enforcement purposes, and the investigation
or proceeding involves a possible violation of criminal law where there
is reason to believe that the subject of the investigation or proceeding
is unaware of its pendency, and the disclosure of the existence of the
records could reasonably be expected to interfere with enforcement
proceedings, Activities may, during only such times as that circumstance
continues, treat the records or information as not subject to the FOIA.
In such a situation, the response to the requester will state that no
records were found.
(ii) Whenever informant records maintained by a criminal law
enforcement organization within an Army Activity or a DoD Component
under the informant's name or personal identifier are requested by a
third party using the informant's name or personal identifier, the
Activity may treat the records as not subject to the FOIA, unless the
informant's status as an informant has been officially confirmed. If it
is determined that the records are not subject to 5 U.S.C. 552(b)(7),
the response to the requester will state that no records were found.
(h) Number 8 (5 U.S.C. 552 (b)(8)). Those contained in or related to
examination, operation or condition reports prepared by, on behalf of,
or for the use of any agency responsible for the regulation or
supervision of financial institutions.
(i) Number 9 (5 U.S.C. 552 (b)(9)). Those containing geological and
geophysical information and data (including maps) concerning wells.
Subpart D_For Official Use Only
Sec. 518.14 General.
Information that has not been given a security classification
pursuant to the criteria of an Executive Order, but which may be
withheld from the public because disclosure would cause harm to an
interest protected by one or more FOIA exemptions 2 through 9 (see
Subpart C of this part) shall be considered as being for official use
only (FOUO). No other material shall be considered FOUO and FOUO is not
authorized as an additional form of classification to protect national
security interests. Additional information on FOUO and other controlled,
unclassified information may be found in DoD 5200.1-R, ``Information
Security Program'' or by contacting the DA FOIA/PA Office.
Subpart E_Release and Processing Procedures
Sec. 518.15 General provisions.
(a) Since the policy of the DoD is to make the maximum amount of
information available to the public consistent with its other
responsibilities, written requests for an Army record made under the
provisions of 5 U.S.C. 552 (a)(3) of the FOIA may be denied only when:
(1) The record is subject to one or more of the exemptions of the
FOIA;
(2) The record has not been described well enough to enable the Army
Activity to locate it with a reasonable amount of effort by an employee
familiar with the files; or
(3) The requester has failed to comply with the procedural
requirements, including the written agreement to pay or payment of any
required fee imposed by the instructions of the Army Activity concerned.
When personally identifiable information in a record is requested by the
subject of the record or his attorney, notarization of the request, or a
statement certifying under
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the penalty of perjury that their identity is true and correct may be
required. Additionally, written consent of the subject of the record is
required for disclosure from a PA system of records, to include the
subject's attorney.
(4) Release of information under the FOIA can have an adverse impact
on OPSEC. The Army implementing directive for OPSEC is AR 530-1. It
requires that OPSEC points of contact be named for all HQDA staff
agencies and for all commands down to battalion level. The FOIA official
for the staff agency or command will use DA Form 4948-R to announce the
OPSEC/FOIA advisor for the command. Persons named as OPSEC points of
contact will be OPSEC/FOIA advisors. Command OPSEC/FOIA advisors should
implement the policies and procedures in AR 530-1, consistent with this
part and with the following considerations:
(i) Documents or parts of documents properly classified in the
interest of national security must be protected. Classified documents
may be released in response to a FOIA request only under AR 380-5,
Chapter III. AR 380-5 provides that if parts of a document are not
classified and can be segregated with reasonable ease, they may be
released, but parts requiring continued protection must be clearly
identified.
(ii) The release of unclassified documents could violate national
security. When this appears possible, OPSEC/FOIA advisors should request
a classification evaluation of the document by its proponent under AR
380-5, paragraphs 2-204, 2-600, 2-800, and 2-801. In such cases, other
FOIA exemptions may also apply.
(iii) A combination of unclassified documents, or parts of them,
could combine to supply information that might violate national security
if released. When this appears possible, OPSEC/FOIA advisors should
consider classifying the combined information per AR 380-5, paragraph 2-
211.
(iv) A document or information may not be properly or currently
classified when a FOIA request for it is received. In this case, the
request may not be denied on the grounds that the document or
information is classified except in accordance with Executive Order
12958 as amended, section 1.6(d), and AR 380-5, paragraph 2-204, and
with approval of the Army OGC.
(5) OPSEC/FOIA advisors will; advise persons processing FOIA
requests on related OPSEC requirements; help custodians of requested
documents prepare requests for classification evaluations; and help
custodians of requested documents identify the parts of documents that
must remain classified under this section and AR 380-5.
(6) OPSEC/FOIA advisors do not, by their actions, relieve FOIA
personnel and custodians processing FOIA requests of their
responsibility to protect classified or exempted information.
(b) The provisions of the FOIA are reserved for persons with private
interests as opposed to U.S. Federal Agencies seeking official
information. Requests from private persons will be made in writing, and
should clearly show all other addressees within the Federal Government
to which the request was also sent. This procedure will reduce
processing time requirements, and ensure better inter- and intra-agency
coordination. However, if the requester does not show all other
addressees to which the request was also sent, Army Activities shall
still process the request. Army Activities should encourage requesters
to send requests by mail, facsimile, or by electronic means. Disclosure
of records to individuals under the FOIA is considered public release of
information, except as provided in this paragraph. DA officials will
release the following records, upon request, to the persons specified
below, even though these records are exempt from release to the general
public. The statutory 20 working day limit applies.
(1) Medical records. Commanders or chiefs of medical treatment
facilities will release information:
(i) On the condition of sick or injured patients to the patient's
relatives to the extent permitted by law and regulation.
(ii) That a patient's condition has become critical to the nearest
known relative or to the person the patient has named to be informed in
an emergency.
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(iii) That a diagnosis of psychosis has been made to the nearest
known relative or to the person named by the patient.
(iv) On births, deaths, and cases of communicable diseases to local
officials (if required by local laws).
(v) Copies of records of present or former soldiers, dependents,
civilian employees, or patients in DA medical facilities will be
released to the patient or to the patient's representative on written
request. The attending physician can withhold records if he or she
thinks that release may injure the patient's mental or physical health;
in that case, copies of records will be released to the patient's next
of kin or legal representative or to the doctor or dentist chosen by the
patient. If the patient is adjudged insane, or dies, the copies will be
released, on written request, to the patient's next of kin or legal
representative.
(vi) Copies of records may be given to a Federal or State hospital
or penal institution if the person concerned is an inmate or patient
there.
(vii) Copies of records or information from them may be given to
authorized representatives of certain agencies. The National Academy of
Sciences, the National Research Council, and other accredited agencies
are eligible to receive such information when they are engaged in
cooperative studies, with the approval of The Surgeon General of the
Army. However, certain information on drug and alcohol use cannot be
released. AR 600-85 covers the Army's substance abuse program.
(viii) Copies of pertinent parts of a patient's records can be
furnished to the staff judge advocate or legal officer of the command in
connection with the Government's collection of a claim. If proper, the
legal officer can release this information to the tortfeasor's insurer
without the patient's consent.
Note: Information released to third parties must be accompanied by a
statement of the conditions of release. The statement will specify that
the information not be disclosed to other persons except as privileged
communication between doctor and patient.
(2) Military personnel records. Military personnel records will be
released under these conditions:
(i) DA must provide specific information about a person's military
service (statement of military service) in response to a request by that
person or with that person's written consent to his or her legal
representative;
(ii) Papers relating to applications for, designation of
beneficiaries under, and allotments to pay premiums for, National
Service Life Insurance or Serviceman's Group Life Insurance will be
released to the applicant or to the insured. If the insured is adjudged
insane (evidence of an insanity judgment must be included) or dies, the
records will be released, on request, to designated beneficiaries or to
the next of kin;
(iii) Copies of DA documents that record the death of a soldier, a
dependent, or a civilian employee will be released, on request, to that
person's next of kin, life insurance carrier, and legal representative.
A person acting on behalf of someone else concerned with the death
(e.g., the executor of a will) may also obtain copies by submitting a
written request that includes evidence of his or her representative
capacity. That representative may give written consent for release to
others; or
(iv) Papers relating to the pay and allowances or allotments of a
present or former soldier will be released to the soldier or his or her
authorized representative. If the soldier is deceased, these papers will
be released to the next of kin or legal representatives.
(3) Civilian personnel records. Civilian Personnel Officers (CPO)
with custody of papers relating to the pay and allowances or allotments
of current or former civilian employees will release them to the
employee or his or her authorized representative. If the employee is
deceased, these records will be released to the next of kin or legal
representative. However, a CPO cannot release statements of witnesses,
medical records, or other reports or documents pertaining to
compensation for injuries or death of a DA civilian employee.
(4) Accused persons. Release of information to the public concerning
accused persons before determination of the case. Such release may
prejudice the accused's opportunity for a fair and impartial
determination of the case. The following procedures apply:
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(i) The following information concerning persons accused of an
offense may be released by the convening authority to public news
agencies or media. The accused's name, grade or rank, unit, regular
assigned duties, and other information as allowed by AR 25-71, paragraph
3-3a. The substance or text of the offense of which the person is
accused. The identity of the apprehending or investigating agency and
the length or scope of the investigation before apprehension. The
factual circumstances immediately surrounding the apprehension,
including the time and place of apprehension, resistance, or pursuit.
The type and place of custody, if any;
(ii) Information that will not be released. Before evidence has been
presented in open court, subjective observations or any information not
incontrovertibly factual will not be released. Background information or
information relating to the circumstances of an apprehension may be
prejudicial to the best interests of the accused, and will not be
released unless it serves a law enforcement function. The following
kinds of information will not be released: Observations or comments on
an accused's character and demeanor, including those at the time of
apprehension and arrest or during pretrial custody. Statements,
admissions, confessions, or alibis attributable to an accused, or the
fact of refusal or failure of the accused to make a statement. Reference
to confidential sources, investigative techniques and procedures,
investigator notes, and activity files. This includes reference to
fingerprint tests, polygraph examinations, blood tests, firearms
identification tests, or similar laboratory tests or examinations.
Statements as to the identity, credibility, or testimony of prospective
witnesses. Statements concerning evidence or argument in the case,
whether or not that evidence or argument may be used at the trial. Any
opinion on the accused's guilt. Any opinion on the possibility of a plea
of guilty to the offense charged, or of a plea to a lesser offense;
(iii) Other considerations. Photographing or televising the accused.
DA personnel should not encourage or volunteer assistance to news media
in photographing or televising an accused or suspected person being held
or transported in military custody. DA representatives should not make
photographs of an accused or suspect available unless a law enforcement
function is served. Requests from news media to take photographs during
courts-martial are governed by AR 360-1;
(iv) Fugitives from justice. This section does not restrict the
release of information to enlist public aid in apprehending a fugitive
from justice; or
(v) Exceptional cases. Permission to release information from
military personnel records to public news agencies or media may be
requested from The Judge Advocate General (TJAG). Requests for
information from military personnel records will be processed according
to this part.
(5) Litigation, tort claims, and contract disputes. Release of
information or records under this section are subject to the time
limitations prescribed by the FOIA. The requester must be advised of the
reasons for nonrelease or referral.
(i) Litigation. Each request for a record related to pending
litigation involving the United States will be referred to the staff
judge advocate or legal officer of the command. He or she will promptly
inform the Litigation Division, U.S. Army Legal Services Agency
(USALSA), of the substance of the request and the content of the record
requested. (Mailing address: U.S. Army Litigation Center, 901 N. Stuart
Street, Arlington, VA 22203-1837. If information is released for use in
litigation involving the United States, the Chief, Army Litigation
Division (AR 27-40, para 1-4d) must be advised of the release. He or she
will note the release in such investigative reports. Information or
records normally exempted from release (i.e., personnel and medical
records) may be releasable to the judge or court concerned, for use in
litigation to which the United States is not a party. Refer such
requests to the local staff judge advocate or legal officer, who will
coordinate it with the Litigation Center, USALSA.
(ii) Tort claims. A claimant or a claimant's attorney may request a
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record that relates to a pending administrative tort claim filed against
the DA. Refer such requests promptly to the claims approving or
settlement authority that has monetary jurisdiction over the pending
claim. These authorities will follow AR 27-20. The request may concern
an incident in which the pending claim is not as large as a potential
claim; in such a case, refer the request to the authority that has
monetary jurisdiction over the potential claim. A potential claimant or
his or her attorney may request information under circumstances clearly
indicating that it will be used to file a tort claim, though none has
yet been filed. Refer such requests to the staff judge advocate or legal
officer of the command. That authority, when subordinate, will promptly
inform the Chief, U.S. Army Claims Service (USACS), of the substance of
the request and the content of the record. (Mailing address: U.S. Army
Claims Service, ATTN: JACS-TCC, Fort George G. Meade, MD 20755-5360. IDA
officials who receive requests will refer them directly to the Chief,
USACS. They will also advise the requesters of the referral and the
basis for it. The Chief, USACS, will process requests according to this
part and AR 27-20, paragraph 1-10.
(iii) Contract disputes. Each request for a record that relates to a
potential contract dispute or a dispute that has not reached final
decision by the contracting officer will be treated as a request for
procurement records and not as litigation. However, the officials will
consider the effect of release on the potential dispute. Those officials
may consult with the USALSA, Contract Appeals Division. (Mailing
address: U.S. Army Legal Services Agency, ATTN: JALS-CA, 901 North
Stuart Street, Arlington, VA 22203. If the request is for a record that
relates to a pending contract appeal to the Armed Services Board of
Contract Appeals, or to a final decision that is still subject to appeal
(i.e., 90 days have not lapsed after receipt of the final decision by
the contractor) then the request will be: Treated as involving a
contract dispute; and referred to the USALSA, Contract Appeals Division.
(6) Special nuclear material. Dissemination of unclassified
information concerning physical protection of special nuclear material.
(i) Unauthorized dissemination of unclassified information
pertaining to security measures, including security plans, procedures,
and equipment for the physical protection of special nuclear material,
is prohibited under 10 U.S.C. 128.
(ii) This prohibition shall be applied by the Deputy Chief of Staff,
G-3 as the IDA, to prohibit the dissemination of any such information
only if and to the extent that it is determined that the unauthorized
dissemination of such information could reasonably be expected to have a
significant adverse effect on the health and safety of the public or the
common defense and security by significantly increasing the likelihood
of illegal production of nuclear weapons, theft, diversion, or sabotage
of special nuclear materials, equipment, or facilities.
(iii) In making such a determination, Army personnel may consider
what the likelihood of an illegal production, theft, diversion, or
sabotage would be if the information proposed to be prohibited from
dissemination were at no time available for dissemination.
(iv) Army personnel shall exercise the foregoing authority to
prohibit the dissemination of any information described so as to apply
the minimum restrictions needed to protect the health and safety of the
public or the common defense and security, and upon a determination that
the unauthorized dissemination of such information could reasonably be
expected to result in a significant adverse effect on the health and
safety of the public or the common defense and security by significantly
increasing the likelihood of illegal production of nuclear weapons,
theft, diversion, or sabotage of special nuclear materials, equipment,
or facilities.
(v) Army employees shall not use this authority to withhold
information from the appropriate committees of Congress.
(7) Names and duty addresses. Lists of names, including telephone
directories, organizational charts, and/or staff directories published
by installations or activities, and other personally identifying
information will ordinarily be withheld when requested under the
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FOIA. This does not preclude a discretionary release of names and duty
information of personnel who, by the nature of their position and
duties, frequently interact with the public, such as general officers,
public affairs officers, and other personnel designated as official
command spokespersons. The IDA for telephone directories is delegated to
the DA, FOIA/PA Office. Public Affairs Offices may, after careful
analysis, release information determined to have legitimate news value,
such as notices of personnel reassignments to new units or installations
within the continental United States, results of selection/promotion
boards, school graduations/completions, and awards and similar personal
achievements. They may release the names and duty addresses of key
officials, if such release is determined to be in the interests of
advancing official community relation's functions.
(c) Requests from government officials. Requests from officials of
State or local Governments for Army Activity records shall be considered
the same as any other requester. Requests from members of Congress not
seeking records on behalf of a Congressional Committee, Subcommittee,
either House sitting as a whole, or made on behalf of their constituents
shall be considered the same as any other requester. Requests from
officials of foreign governments shall be considered the same as any
other requester; however, Army Intelligence elements are statutorily
prohibited from releasing records responsive to requests made by any
foreign government or a representative of a foreign government. Requests
from officials of foreign governments that do not invoke the FOIA shall
be referred to appropriate foreign disclosure channels and the requester
so notified.
(d) Privileged release outside of the FOIA to U.S. government
officials. Records exempt from release to the public under the FOIA may
be disclosed in accordance with Army regulations to agencies of the
Federal Government, whether legislative, executive, or administrative,
as follows:
(1) In response to a request of a Committee or Subcommittee of
Congress, or to either House sitting as a whole in accordance with DoDD
5400.4. The Army implementing directive is AR 1-20. Commanders or chiefs
will notify the Chief of Legislative Liaison of all releases of
information to members of Congress or staffs of congressional
committees. Organizations that in the normal course of business are
required to provide information to Congress may be excepted. Handle
requests by members of Congress (or staffs of congressional committees)
for inspection of copies of official records as follows:
(i) National security classified records, follow AR 380-5;
(ii) Civilian personnel records, members of Congressional
Committees, Subcommittees, or Joint Committees may examine official
personnel folders to the extent that the subject matter falls within
their established jurisdictions, as permitted by 5 CFR 297.401(i);
(iii) Information related to disciplinary action. This paragraph
refers to records of trial by courts-martial; nonjudicial punishment of
military personnel under the Uniform Code of Military Justice, Article
15; nonpunitive measures such as administrative reprimands and
admonitions; suspensions of civilian employees; and similar documents.
If DA has specific instructions on the request, the following will
apply. Subordinate commanders will not release any information without
securing the consent of the proper installation commander. The
installation commander may release the information unless the request is
for a classified or ``FOUO'' document. In that case the commander will
refer the request promptly to the Chief of Legislative Liaison for
action, including the recommendations of the transmitting agency and
copies of the requested records with the referral.
(iv) Military personnel records. Only HQDA can release information
from these records. Custodians will refer all requests from Congress
directly and promptly to the Chief of Legislative Liaison, HQDA,
Washington DC 20310-1600.
(v) Criminal investigation records. Only the Commanding General,
U.S. Army Criminal Investigation Command (USACIDC), can release any
USACIDC-originated criminal investigation file. For further information,
see AR 195-2.
[[Page 147]]
(vi) Other exempt records. Commanders or chiefs will refer requests
for all other categories of exempt information directly to the Chief of
Legislative Liaison. They will include a copy of the material requested
and, as appropriate, recommendations concerning release or denial.
(vii) All other records. The commander or chief with custody of the
records will furnish all other information promptly; to other Federal
Agencies, both executive and administrative, as determined by the head
of an Army Activity or designee; or in response to an order of a Federal
court, Army Activities shall release information along with a
description of the restrictions on its release to the public;
(viii) Disciplinary actions and criminal investigations. Requests
for access to, or information from, the records of disciplinary actions
or criminal investigations will be honored if proper credentials are
presented. Representatives of the Office of Personnel Management may be
given information from personnel files of employees actually employed at
organizations or activities. Each such request will be considered on its
merits. The information released will be the minimum required in
connection with the investigation being conducted.
(ix) Other types of requests. All other official requests received
by DA elements from agencies of the executive branch (including other
military departments) will be honored, if there are no compelling
reasons to the contrary. If there are reasons to withhold the records,
the requests will be submitted for determination of the propriety of
release to the appropriate addresses shown in Appendix B of this part.
(2) Army Activities shall inform officials receiving records under
the provisions of this section that those records are exempt from public
release under the FOIA. Army Activities also shall advise officials of
any special handling instructions. Classified information is subject to
the provisions of DoD 5200.1-R, and information contained in Privacy Act
systems of records is subject to DoD 5400.11-R.
(e) Consultation with affected DoD component. (1) When an Army
Activity receives a FOIA request for a record in which an affected Army
or DoD organization (including a Combatant Command) has a clear and
substantial interest in the subject matter, consultation with that
affected Army or DoD organization is required. As an example, where an
Army Activity receives a request for records related to DoD operations
in a foreign country, the cognizant Combatant Command for the area
involved in the request shall be consulted before a release is made.
Consultations may be telephonic, electronic, or in hard copy.
(2) The affected Activity shall review the circumstances of the
request for host-nation relations, and provide, where appropriate, FOIA
processing assistance to the responding DoD Component regarding release
of information. Responding Army Activities shall provide copies of
responsive records to the affected DoD Component when requested. The
affected DoD Component shall receive a courtesy copy of all releases in
such circumstances.
(3) Nothing in Sec. 518.19 shall impede the processing of the FOIA
request initially received by an Army Activity.
Sec. 518.16 Initial determinations.
(a) Initial denial authority. The DA officials are designated as the
Army's only IDAs. Only an IDA, his or her delegate, or the Secretary of
the Army can deny FOIA requests for DA records. Each IDA will act on
direct and referred requests for records within his or her area of
functional responsibility. (See the proper AR in the 10 series for full
discussions of these areas. Included are records created or kept within
the IDA's area of responsibility; records retired by, or referred to,
the IDA's headquarters or office; and records of predecessor
organizations. If a request involves the areas of more than one IDA, the
IDA to whom the request was originally addressed will normally respond
to it; however, the affected IDAs may consult on such requests and agree
on responsibility for them. IDAs will complete all required coordination
at initial denial level. This includes classified records retired to the
NARA when a mandatory declassification review is necessary. Requests
and/or responsive documents should not be sent to the DA FOIA/PA Office
for initial denial
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authority or to forward to other offices within the DA.
(b) FOIA requesters may ultimately appeal if they are dissatisfied
with adverse determinations. It is crucial to forward complete packets
to the IDAs. Ensure cover letters list all attachments and describe from
where the records were obtained, i.e., a PA system of records (including
the applicable systems notice), or other. If a FOIA action is
complicated, include a chronology of events to assist the IDA in
understanding what happened in the course of processing the FOIA
request. If a file does not include documentation described below,
include the tab, and insert a page marked ``not applicable'' or ``not
used.'' The order and contents of FOIA file attachments follow: (Tab A
or 1) The original FOIA request and envelope (if applicable); (Tab B or
2) The response letter; (Tab C or 3) Copies of all records entirely
released, single-sided; (Tab D or 4) Copies of administrative processing
documents, including extension letters and ``no records'' certificates,
in chronological order; (Tab E or 5) Copies of all records partially
released or entirely denied, single-sided. For partially released
records, mark in yellow highlighter (or other readable highlighter)
those portions withheld; and (Tab F or 6) Legal opinions(s).
(c) The initial determination of whether to make a record available
or grant a fee waiver upon request may be made by any suitable official
designated by the Army Activity in published regulations. The presence
of the marking ``FOUO'' does not relieve the designated official of the
responsibility to review the requested record for the purpose of
determining whether an exemption under this part is applicable and
should be invoked. IDAs may delegate all or part of their authority to a
division chief under its supervision within the Agency in the grade of
05/civilian equivalent. Requests for delegation authority below this
level must be submitted, after coordination, to the DA FOIA/PA Office,
with detailed justification, for approval. Such delegations must not
slow FOIA actions. If an IDA's delegate denies a FOIA or fee waiver
request, the delegate must clearly state that he or she is acting for
the IDA and identify the IDA by name and position in the written
response to the requester. IDAs will send only the names, offices, and
telephone numbers of their delegates to the DA, FOIA/PA Office. IDAs
will keep this information current.
(d) The officials designated by Army Activities to make initial
determinations should consult with public affairs officers (PAOs) to
become familiar with subject matters that are considered to be
newsworthy, and advise PAOs of all requests from news media
representatives. In addition, the officials should inform PAOs in
advance when they intend to withhold or partially withhold a record, if
it appears that the withholding action may be challenged in the media. A
FOIA release or denial action, appeal, or court review may generate
public or press interest. In such case, the IDA (or delegate) should
consult the Chief of Public Affairs or the command or organization PAO.
The IDA should inform the PAO contacted of the issue and obtain advice
and recommendations on handling its public affairs aspect. Any advice or
recommendations requested or obtained should be limited to this aspect.
Coordination must be completed within the statutory 20 working day FOIA
response limit. (The point of contact for the Army Chief of Public
Affairs is HQDA (SAPA-OSR), Washington DC 20310-1500). If the request
involves actual or potential litigation against the United States,
release must be coordinated with The Judge Advocate General (TJAG).
(e) The following officials are designated IDAs for the areas of
responsibility outlined below:
(1) The Administrative Assistant to the Secretary of the Army is
authorized to act for the Secretary of the Army on requests for all
records maintained by the Office of the Secretary of the Army and its
serviced activities as well as requests requiring the personal attention
of the Secretary of the Army. This also includes civilian Equal
Employment Opportunity (EEO) actions. (See DCS, G-1 for military Equal
Opportunity (EO) actions). The Administrative Assistant to the Secretary
of the Army has delegated its authority
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to the Chief Attorney and Legal Services Directorate, U.S. Army
Resources & Programs Agency. (See DCS, G-1 for military Equal
Opportunity (EO) actions).
(2) The Assistant Secretary of the Army (Financial Management and
Comptroller) is authorized to act on requests for finance and accounting
records. Requests for CONUS finance and accounting records should be
referred to the Defense Finance and Accounting Service (DFAS). The Chief
Attorney and Legal Services Directorate, acts on requests for non-
finance and accounting records of the Assistant Secretary of the Army
(Financial Management and Comptroller).
(3) The Assistant Secretary of the Army (Acquisition, Logistics, &
Technology) is authorized to act on requests for procurement records
other than those under the purview of the Chief of Engineers and the
Commander, U.S. Army Materiel Command. The Chief Attorney and Legal
Services Directorate, acts on requests for non-procurement records of
the Assistant Secretary of the Army (Acquisition, Logistics and
Technology).
(4) The Deputy Assistant Secretary of the Army (Civilian Personnel
Policy)/Director of Civilian Personnel, Office of the Assistant
Secretary of the Army (Manpower and Reserve Affairs) is authorized to
act on requests for civilian personnel records, personnel administration
and other civilian personnel matters, except for EEO (civilian) matters
which will be acted on by the Administrative Assistant to the Secretary
of the Army. The Deputy Assistant Secretary of the Army (Civilian
Personnel Policy)/Director of Civilian Personnel has delegated this
authority to the Chief, Policy and Program Development Division.
(5) The Chief Information Officer, G-6 is authorized to act on
requests for records pertaining to Army Information Technology, command,
control communications and computer systems and the Information
Resources Management Program (automation, telecommunications, visual
information, records management, publications and printing).
(6) The Inspector General is authorized to act on requests for all
Inspector General Records.
(7) The Auditor General is authorized to act on requests for records
relating to audits done by the U.S. Army Audit Agency under AR 10-2.
This includes requests for related records developed by the Audit
Agency.
(8) The Director of the Army Staff is authorized to act on requests
for all records of the Chief of Staff and its Field Operating Agencies.
The Director of the Army Staff has delegated its authority to the Chief
Attorney and Legal Services Directorate, U.S. Army Resources & Programs
Agency. The Chief Attorney and Legal Services Director, U.S. Army
Resources & Programs Agency acts on requests for records of the Chief of
Staff and its Field Operating Agencies. (See TJAG for the (GOMO)
actions).
(9) The Deputy Chief of Staff, G-3 is authorized to act on requests
for records relating to International Affairs policy, planning,
integration and assessments, strategy formulation, force development,
individual and unit training policy, strategic and tactical command and
control systems, nuclear and chemical matters, use of DA forces.
(10) The Deputy Chief of Staff, G-8 is authorized to act on requests
for records relating to programming, material integration and externally
directed reviews.
(11) The Office of the Deputy Chief of Staff, G-1 is authorized to
act on the following records: Personnel board actions, Equal Opportunity
(military) and sexual harassment, health promotions, physical fitness
and well being, command and leadership policy records, HIV and suicide
policy, substance abuse programs except for individual treatment records
which are the responsibility of the Surgeon General, retiree benefits,
services, and programs, (excluded are individual personnel records of
retired military personnel, which are the responsibility of the U.S.
Army Human Resources Command-St. Louis (AHRC-STL), DA dealings with
Veterans Affairs, U.S. Soldier's and Airmen's Home, retention,
promotion, and separation; recruiting
[[Page 150]]
and MOS policy issues, personnel travel and transportation entitlements,
military strength and statistics, The Army Librarian, demographics, and
Manprint.
(12) The Deputy Chief of Staff, G-4 is authorized to act on requests
for records relating to DA logistical requirements and determinations,
policy concerning materiel maintenance and use, equipment standards, and
logistical readiness.
(13) The Chief of Engineers is authorized to act on requests for
records involving civil works, military construction, engineer
procurement, and ecology; and the records of the U.S. Army Engineer
divisions, districts, laboratories, and field operating agencies.
(14) The Surgeon General, Commander, U.S. Army Medical Command, is
authorized to act on requests for medical research and development
records, and the medical records of active duty military personnel,
dependents, and persons given physical examination or treatment at DA
medical facilities, to include alcohol and drug treatment/test records.
(15) The Chief of Chaplains is authorized to act on requests for
records involving ecclesiastical relationships, rites performed by DA
chaplains, and nonprivileged communications relating to clergy and
active duty chaplains' military personnel files.
(16) The Judge Advocate General is authorized to act on requests for
records relating to claims, courts-martial, legal services,
administrative investigations, and similar legal records. TJAG is also
authorized to act on requests for the GOMO actions and records described
elsewhere in this regulation, especially if those records relate to
litigation in which the United States has an interest. In addition, TJAG
is authorized to act on requests for records that are not within the
functional areas of responsibility of any other IDA, including, but not
limited to requests for records for Commands, and activities.
(17) The Chief, National Guard Bureau, is authorized to act on
requests for all personnel and medical records of retired, separated,
discharged, deceased, and active Army National Guard military personnel,
including technician personnel, unless such records clearly fall within
another IDA's responsibility. This authority includes, but is not
limited to, National Guard organization and training files; plans,
operations, and readiness files, policy files, historical files, files
relating to National Guard military support, drug interdiction, and
civil disturbances; construction, civil works, and ecology records
dealing with armories, facilities within the States, ranges, etc. Equal
Opportunity investigative records; aviation program records and
financial records dealing with personnel, operation and maintenance, and
equipment budgets.
(18) The Chief of Army Reserve is authorized to act on requests for
all personnel and medical records of retired, separated, discharged,
deceased, and reserve component military personnel, and all U.S. Army
Reserve (USAR) records, unless such records clearly fall within another
IDA's responsibility. Records under the responsibility of the Chief of
Army Reserve include records relating to USAR plans, policies, and
operations; changes in the organizational status of USAR units;
mobilization and demobilization policies, active duty tours, and the
Individual Mobilization Augmentation program.
(19) The Commander, United States Army Materiel Command (AMC) is
authorized to act on requests for the records of AMC headquarters and to
subordinate commands, units, and activities that relate to procurement,
logistics, research and development, and supply and maintenance
operations.
(20) The Provost Marshal General (PMG) is authorized to act on all
requests for provost marshal activities and law enforcement functions
for the army, all matters relating to police intelligence, physical
security, criminal investigations, corrections and internment (to
include confinement and correctional programs for U.S. prisoners,
criminal investigations, provost marshal activities, and military police
support. The PMG is responsible for the Office of Security, Force
Protection, and Law Enforcement Division and is the functional proponent
for AR 190-series (Military Police) and 195-series
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(Criminal Investigation), AR 630-10 Absent Without Leave, Desertion, and
Administration of Personnel Involved in Civilian Court Proceedings, and
AR 633-30, Military Sentences to Confinement.
(21) The Commander, U.S. Army Criminal Investigation Command
(USACIDC), is authorized to act on requests for criminal investigative
records of USACIDC headquarters, its subordinate activities, and
military police reports. This includes criminal investigation records,
investigation-in-progress records, and all military police records and
reports.
(22) The Commander, United States Army Human Resources Command
(USAHRC), is authorized to act on requests for military personnel files
relating to active duty (other than those of reserve and retired
personnel) military personnel matters, personnel locator, physical
disability determinations, and other military personnel administration
records; records relating to military casualty and memorialization
activities; heraldic activities, voting, records relating to
identification cards, naturalization and citizenship, commercial
solicitation, Military Postal Service Agency and Army postal and
unofficial mail service.
(23) The Commander, USARC-StL has been delegated authority to act on
behalf of the USAHRC for requests concerning all personnel and medical
records of retired, separated, discharged, deceased, and reserve
component military personnel, unless such records clearly fall within
another IDA's authority. The authority does not include records relating
to USAR plans, policies, and operations; changes in the organizational
status of USAR units, mobilization and demobilization policies; active
duty tours, and the individual mobilization augmentation program.
(24) The Assistant Chief of Staff for Installation Management
(ACSIM) is authorized to act on requests for records relating to
planning, programming, execution and operation of Army installations.
This includes base realignment and closure activities, environmental
activities other than litigation, facilities and housing activities, and
installation management support activities.
(25) The Commander, United States Army Intelligence and Security
Command, is authorized to act on requests for intelligence and security
records, foreign scientific and technological records, intelligence
training, intelligence threat assessments, and foreign liaison
information.
(26) The Commander, U.S. Army Safety Center, is authorized to act on
requests for Army safety records.
(27) The Commander, United States Army Test and Evaluation Command
(ATEC), is authorized to act on requests for the records of ATEC
headquarters, its subordinate commands, units, and activities that
relate to test and evaluation operations.
(28) The General Counsel, Army and Air Force Exchange Service
(AAFES), is authorized to act on requests for AAFES records, under AR
60-20/AFR 147-14.
(29) Special IDA authority for time-event related records may be
designated on a case-by-case basis. These will be published in the
Federal Register. You may contact the DA, FOIA/PA Office to obtain
current information on special delegations.
(f) Reasons for not releasing a record. The following are reasons
for not complying with a request for a record under 5 U.S.C. 552(a)(3).
(1) No records. A reasonable search of files failed to identify
responsive records. The records custodian will prepare a detailed no
records certificate. This certificate must include, at a minimum, what
areas or offices were searched and how the search was conducted
(manually, by computer, etc.). The certificate will be signed by the
records custodian and will include his or her grade and title. The
original certificate will be forwarded to the IDA. Preprinted ``check-
the-block'' or ``fill-in-the-blank'' no records certificates are not
authorized.
(2) Referrals. The request is transferred to another Army Activity
or DoD Component, or to another Federal Agency.
(3) Request withdrawn. The request is withdrawn by the requester.
(4) Fee-related reason. The requester is unwilling to pay fees
associated with a
[[Page 152]]
request; the requester is past due in the payment of fees from a
previous FOIA request; or the requester disagrees with the fee estimate.
(5) Records not reasonably described. A record has not been
described with sufficient particularity to enable the Army or DoD
Component to locate it by conducting a reasonable search.
(6) Not a proper FOIA request for some other reason. The requester
has failed unreasonably to comply with procedural requirements, other
than fee-related, imposed by this part or Army Activity supplementing
regulations.
(7) Not an agency record. The information requested is not a record
within the meaning of the FOIA and this part.
(8) Duplicate request. The request is a duplicate request (e.g., a
requester asks for the same information more than once). This includes
identical requests received via different means (e.g., electronic mail,
facsimile, mail, and courier) at the same or different times.
(9) Other (specify). Any other reason a requester does not comply
with published rules other than those outlined in paragraphs (f)(1)
through (8) of this section.
(10) Partial or total denial. The record is denied in whole or in
part in accordance with procedures set forth in the FOIA.
(g) Denial tests. To deny a requested record that is in the
possession and control of an Army Activity, it must be determined that
the record is exempt under one or more of the exemptions of the FOIA. An
outline of the FOIA's exemptions is contained in subpart C of this part.
(h) Reasonably segregable portions. Although portions of some
records may be denied, the remaining reasonably segregable portions must
be released to the requester when it reasonably can be assumed that a
skillful and knowledgeable person could not reconstruct the excised
information. Unless indicating the extent of the deletion would harm an
interest protected by an exemption, the amount of deleted information
shall be indicated on the released portion of paper records by use of
brackets or darkened areas indicating removal of information. In no case
shall the deleted areas be left ``white'' without the use of brackets to
show the bounds of deleted information. In the case of electronic
deletion, or deletion in audiovisual or microfiche records, if
technically feasible, the amount of redacted information shall be
indicated at the place in the record such deletion was made, unless
including the indication would harm an interest protected by the
exemption under which the deletion is made. This may be done by use of
brackets, shaded areas, or some other identifiable technique that will
clearly show the limits of the deleted information. When a record is
denied in whole, the response advising the requester of that
determination will specifically state that it is not reasonable to
segregate portions of the record for release.
(i) Response to requester. Whenever possible, initial determinations
to release or deny a record normally shall be made and the decision
reported to the requester within 20 working days after receipt of a
proper request by the official designated to respond. When an Army
Activity has a significant number of pending requests which prevent a
response determination within the 20 working day period, the requester
shall be so notified in an interim response, and advised whether their
request qualifies for the fast track or slow track within the Army
Activity's multitrack processing system. Requesters who do not meet the
criteria for fast track processing shall be given the opportunity to
limit the scope of their request in order to qualify for fast track
processing.
(1) When a decision is made to release a record, a copy should be
made available promptly to the requester once he has complied with
preliminary procedural requirements.
(2) When a request for a record is denied in whole or in part, the
official designated to respond shall inform the requester in writing of
the name and title or position of the official who made the
determination, and shall explain to the requester the basis for the
determination in sufficient detail to permit the requester to make a
decision concerning appeal. The requester specifically shall be informed
of the exemptions on which the denial is based, inclusive of a brief
statement describing what the exemption(s) cover. When
[[Page 153]]
the initial denial is based in whole or in part on a security
classification, the explanation should include a summary of the
applicable Executive Order criteria for classification, as well as an
explanation, to the extent reasonably feasible, of how those criteria
apply to the particular record in question. The requester shall also be
advised of the opportunity and procedures for appealing an unfavorable
determination to a higher final authority within the Army Activity. The
IDA will inform the requester of his or her right to appeal, in whole or
part, the denial of the FOIA or fee waiver request and that the appeal
must be sent through the IDA to the Secretary of the Army (ATTN: OGC).
(3) The final response to the requester should contain information
concerning the fee status of the request, consistent with the provisions
of subpart F, of this part. When a requester is assessed fees for
processing a request, the requester's fee category shall be specified in
the response letter. Activities also shall provide the requester with a
complete cost breakdown (e.g., 115 pages of office reproduction at $0.15
per page; 5 minutes of computer search time at $43.50 per minute, 3
hours of professional level search at $44 per hour, etc.) in the
response letter.
(4) The explanation of the substantive basis for a denial shall
include specific citation of the statutory exemption applied under
provisions of this part; e.g., 5 U.S.C. 552 (b)(1). Merely referring to
a classification; to a ``FOUO'' marking on the requested record; or to
this part or an Army Activity's regulation does not constitute a proper
citation or explanation of the basis for invoking an exemption.
(5) When the time for response becomes an issue, the official
responsible for replying shall acknowledge to the requester the date of
the receipt of the request.
(6) When denying a request for records, in whole or in part, an Army
Activity shall make a reasonable effort to estimate the volume of the
records denied and provide this estimate to the requester, unless
providing such an estimate would harm an interest protected by an
exemption of the FOIA. This estimate should be in number of pages or in
some other reasonable form of estimation, unless the volume is otherwise
indicated through deletions on records disclosed in part.
(7) When denying a request for records in accordance with a statute
qualifying as a FOIA exemption 3 statute, Army Activities shall, in
addition to stating the particular statute relied upon to deny the
information, also state whether a court has upheld the decision to
withhold the information under the particular statute, and a concise
description of the scope of the information being withheld.
(j) Extension of time. In unusual circumstances, when additional
time is needed to respond to the initial request, the Army Activity
shall acknowledge the request in writing within 20 working days,
describe the circumstances requiring the delay, and indicate the
anticipated date for a substantive response that may not exceed 10
additional working days, except as provided below:
(1) With respect to a request for which a written notice has
extended the time limits by 10 additional working days, and the Activity
determines that it cannot make a response determination within that
additional 10 working day period, the requester shall be notified and
provided an opportunity to limit the scope of the request so that it may
be processed within the extended time limit, or an opportunity to
arrange an alternative time frame for processing the request or a
modified request. Refusal by the requester to reasonably modify the
request or arrange for an alternative time frame shall be considered a
factor in determining whether exceptional circumstances exist with
respect to Army Activity's request backlogs. Exceptional circumstances
do not include a delay that results from predictable activity backlogs,
unless the Army Activity demonstrates reasonable progress in reducing
its backlog.
(2) Unusual circumstances that may justify delay are: The need to
search for and collect the requested records from other facilities that
are separate from the office determined responsible for a release or
denial decision on the requested information; the need to
[[Page 154]]
search for, collect, and appropriately examine a voluminous amount of
separate and distinct records which are requested in a single request;
and the need for consultation, which shall be conducted with all
practicable speed, with other agencies having a substantial interest in
the determination of the request, or among two or more Army Activities
or DoD Components having a substantial subject-matter interest in the
request.
(3) Army Activities may aggregate certain requests by the same
requester, or by a group of requesters acting in concert, if the Army
Activity reasonably believes that such requests actually constitute a
single request, which would otherwise satisfy the unusual circumstances
set forth in paragraph (j)(2) of this section, and the requests involve
clearly related matters. Multiple requests involving unrelated matters
shall not be aggregated. If the requests are aggregated under these
conditions, the requester or requesters shall be so notified.
(4) In cases where the statutory time limits cannot be met and no
informal extension of time has been agreed to, the inability to process
any part of the request within the specified time should be explained to
the requester with a request that he agree to await a substantive
response by an anticipated date. It should be made clear that any such
agreement does not prejudice the right of the requester to appeal the
initial decision after it is made. Army Activities are reminded that the
requester still retains the right to treat this delay as a de facto
denial with full administrative remedies. Only the responsible IDA can
extend it, and the IDA must first coordinate with the OGC.
(5) As an alternative to the taking of formal extensions of time the
negotiation by the cognizant FOIA coordinating office of informal
extensions in time with requesters is encouraged where appropriate.
(k) Misdirected requests. Misdirected requests shall be forwarded
promptly to the Army Activity or other Federal Agency with the
responsibility for the records requested. The period allowed for
responding to the request misdirected by the requester shall not begin
until the request is received by the Army Activity that manages the
records requested.
(l) Records of non-U.S. Government source. When a request is
received for a record that falls under exemption 4, that was obtained
from a non-U.S. Government source, or for a record containing
information clearly identified as having been provided by a non-U.S.
Government source, the source of the record or information [also known
as ``the submitter'' for matters pertaining to proprietary data under 5
U.S.C. 552, FOIA, Exemption (b)(4)] and E.O. 12600], shall be notified
promptly of that request and afforded reasonable time (14 calendar days)
to present any objections concerning the release, unless it is clear
that there can be no valid basis for objection. This practice is
required for those FOIA requests for data not deemed clearly exempt from
disclosure under exemption (b)(4) of 5 U.S.C. 552, The FOIA. If, for
example, the record or information was provided with actual or
presumptive knowledge of the non-U.S. Government source and established
that it would be made available to the public upon request, there is no
obligation to notify the source. Any objections shall be evaluated. The
final decision to disclose information claimed to be exempt under
exemption (b)(4) shall be made by an official equivalent in rank to the
official who would make the decision to withhold that information under
FOIA. When a substantial issue has been raised, the Army Activity may
seek additional information from the source of the information and
afford the source and requester reasonable opportunities to present
their arguments on the legal and substantive issues involved prior to
making an agency determination. When the source seeks a restraining
order or take court action to prevent release of the record or
information, the requester shall be notified, and action on the request
normally shall not be taken until after the outcome of that court action
is known. When the requester brings court action to compel disclosure,
the submitter shall be promptly notified of this action.
(1) If the submitted information is a proposal in response to a
solicitation
[[Page 155]]
for a competitive proposal, and the proposal is in the possession and
control of DA (see 10 U.S.C. 2305(g)), the proposal shall not be
disclosed, and no submitter notification and subsequent analysis is
required. The proposal shall be withheld from public disclosure pursuant
to 10 U.S.C. 2305(g) and exemption (b)(3) of the FOIA. This statute does
not apply to bids, unsolicited proposals, or any proposal that is set
forth or incorporated by reference in a contract between an Army
Activity and the offeror that submitted the proposal. In such
situations, normal submitter notice shall be conducted except for sealed
bids that are opened and read to the public. The term, proposal, means
information contained in or originating from any proposal, including a
technical, management, or cost proposal submitted by an offeror in
response to solicitation for a competitive proposal, but does not
include an offeror's name or total price or unit prices when set forth
in a record other than the proposal itself. Submitter notice, and
analysis as appropriate, are required for exemption (b)(4) matters that
are not specifically incorporated in 10 U.S.C. 2305(g).
(2) If the record or information was submitted on a strictly
voluntary basis, absent any exercised authority that prescribes criteria
for submission, and after consultation with the submitter, it is
absolutely clear that the record or information would customarily not be
released to the public, the submitter need not be notified. Examples of
exercised authorities prescribing criteria for submission are statutes,
Executive Orders, regulations, invitations for bids, requests for
proposals, and contracts. Records or information submitted under these
authorities are not voluntary in nature. When it is not clear whether
the information was submitted on a voluntary basis, absent any exercised
authority, and whether it would customarily be released to the public by
the submitter, notify the submitter and ask that it describe its
treatment of the information, and render an objective evaluation. If the
decision is made to release the information over the objection of the
submitter, notify the submitter and afford the necessary time to allow
the submitter to seek a restraining order, or take court action to
prevent release of the record or information.
(3) The coordination provisions of this section also apply to any
non-U.S. Government record in the possession and control of the Army or
DoD from multi-national organizations, such as the North Atlantic Treaty
Organization (NATO), United Nations Commands, the North American
Aerospace Defense Command (NORAD), the Inter-American Defense Board, or
foreign governments. Coordination with foreign governments under the
provisions of this section may be made through Department of State, or
the specific foreign embassy.
(m) File of initial denials. Copies of all initial withholdings or
denials shall be maintained by each Army Activity in a form suitable for
rapid retrieval, periodic statistical compilation, and management
evaluation. Records denied for any of the reasons contained in Sec.
518.20 shall be maintained for a period of six years to meet the statute
of limitations requirement. Records will be maintained in accordance
with AR 25-400-2.
(n) Special mail services. Army Activities are authorized to use
registered mail, certified mail, certificates of mailing, and return
receipts. However, their use should be limited to instances where it
appears advisable to establish proof of dispatch or receipt of FOIA
correspondence. The requester shall be notified that they are
responsible for the full costs of special services.
(o) Receipt accounts. The Treasurer of the United States has
established two accounts for FOIA receipts, and all money orders or
checks remitting FOIA fees should be made payable to the U.S. Treasurer.
These accounts shall be used for depositing all FOIA receipts, except
receipts for industrially funded and non-appropriated funded activities.
Components are reminded that the below account numbers must be preceded
by the appropriate disbursing office two digit prefix. Industrially
funded and non-appropriated funded activity FOIA receipts shall be
deposited to the applicable fund.
(1) Receipt Account 3210 Sale of Publications and Reproductions,
FOIA.
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This account shall be used when depositing funds received from providing
existing publications and forms that meet the Receipt Account Series
description found in Federal Account Symbols and Titles. Deliver
collections within 30 calendar days to the servicing finance and
accounting office.
(2) Receipt Account 3210 Fees and Other Charges for Services, FOIA.
This account is used to deposit search fees, fees for duplicating and
reviewing (in the case of commercial requesters) records to satisfy
requests that could not be filled with existing publications or forms.
Sec. 518.17 Appeals.
(a) General. If the official designated by the Army Activity to make
initial determinations on requests for records declines to provide a
record because the official considers it exempt under one or more of the
exemptions of the FOIA, that decision may be appealed by the requester,
in writing, to a designated appellate authority. The appeal should be
accompanied by a copy of the letter denying the initial request. Such
appeals should contain the basis for disagreement with the initial
refusal. Appeal procedures also apply to the disapproval of a fee
category claim by a requester, disapproval of a request for waiver or
reduction of fees, disputes regarding fee estimates, review on an
expedited basis a determination not to grant expedited access to agency
records, for no record determinations when the requester considers such
responses adverse in nature, not providing a response determination to a
FOIA request within the statutory time limits, or any determination
found to be adverse in nature by the requester. Upon an IDA's receipt of
a no records determination appeal, the IDA will direct the records
custodian to conduct another records search and certify, in writing,
that it has made a good faith effort that reasonably could be expected
to produce the information requested. If no records are again found, the
original no records certificate will be forwarded to the IDA for
inclusion in the appeals packet. When denials have been made under the
provisions of the FOIA and the PA, and the denied information is
contained in a PA system of records, appeals shall be processed under
both the FOIA and the PA. If the denied information is not maintained in
a PA system of records, the appeal shall be processed under the FOIA. If
a request is merely misaddressed, and the receiving Army Activity or DoD
Component simply advises the requester of such and refers the request to
the appropriate Army or DoD Component, this shall not be considered a no
record determination.
(1) Appeals of adverse determinations from denial of records or ``no
record'' determination, received by Army IDAs must be forwarded through
the denying IDA to the Secretary of the Army (ATTN: OGC). On receipt of
an appeal, the IDA will--
(i) Send the appeal to the Office of the Secretary of the Army, OGC,
together with a copy of the documents that are the subject of the
appeal. The cover letter will list all attachments and describe from
where the records were obtained, i.e., a PA system of records (including
the applicable systems notice, or other. If a file does not include
documentation described below, include the tab, and insert a page marked
``not applicable'' or ``not used.'' The order and contents of FOIA file
attachments follow: (Tab A or 1) The original FOIA request and envelope
(if applicable); (Tab B or 2) The IDA denial letter; (Tab C or 3) Copies
of all records entirely released, single-sided; (Tab D or 4) Copies of
administrative processing documents, including extension letters and
``no records'' certificates, in chronological order; (Tab E or 5) Copies
of all records partially denied or completely denied, single-sided. For
records partially denied, mark in yellow highlighter (or other readable
highlighter) those portions withheld; and (Tab F or 6) Legal
opinions(s); and
(ii) Assist the OGC as requested during his or her consideration of
the appeal.
(2) Appeals of denial of records made by the OGC, AAFES, shall be
made to the Secretary of the Army when the Commander, AAFES, is an Army
officer. Appeals of denial of records made by the OGC, AAFES, shall be
made to
[[Page 157]]
the Secretary of the Air Force when the Commander is an Air Force
officer.
(b) Time of receipt. A FOIA appeal has been received by an Army
Activity when it reaches the office of an appellate authority having
jurisdiction, the OGC. Misdirected appeals should be referred
expeditiously to the OGC.
(c) Time limits. The requester shall be advised to file an appeal so
that it is postmarked no later than 60 calendar days after the date of
the initial denial letter. If no appeal is received, or if the appeal is
postmarked after the conclusion of this 60-day period, the case may be
considered closed. However, exceptions to the above may be considered on
a case-by-case basis. In cases where the requester is provided several
incremental determinations for a single request, the time for the appeal
shall not begin until the date of the final response. Records that are
denied shall be retained for a period of six years to meet the statute
of limitations requirement. Final determinations on appeals normally
shall be made within 20 working days after receipt. When an Army
Activity has a significant number of appeals preventing a response
determination within 20 working days, the appeals shall be processed in
a multitrack processing system, based at a minimum, on the three
processing tracks established for initial requests. All of the
provisions of the FOIA apply also to appeals of initial determinations,
to include establishing additional processing queues as needed.
(d) Delay in responding to an appeal. If additional time is needed
due to the unusual circumstances the final decision may be delayed for
the number of working days (not to exceed 10), that were not used as
additional time for responding to the initial request. If a
determination cannot be made and the requester notified within 20
working days, the appellate authority shall acknowledge to the
requester, in writing, the date of receipt of the appeal, the
circumstances surrounding the delay, and the anticipated date for
substantive response. Requesters shall be advised that, if the delay
exceeds the statutory extension provision or is for reasons other than
the unusual circumstances they may consider their administrative
remedies exhausted. They may, however, without prejudicing their right
of judicial remedy, await a substantive response. The Army Activity will
continue to process the case expeditiously.
(e) Response to the requester. When the appellate authority (OGC)
makes a final determination to release all or a portion of records
withheld by an IDA, a written response and a copy of the records so
released should be forwarded promptly to the requester after compliance
with any preliminary procedural requirements, such as payment of fees.
Final refusal of an appeal must be made in writing by the appellate
authority or by a designated representative. The response, at a minimum,
shall include the following:
(1) The basis for the refusal shall be explained to the requester in
writing, both with regard to the applicable statutory exemption or
exemptions invoked under provisions of the FOIA, and with respect to
other appeal matters;
(2) When the final refusal is based in whole or in part on a
security classification, the explanation shall include a determination
that the record meets the cited criteria and rationale of the governing
Executive Order, and that this determination is based on a
declassification review, with the explanation of how that review
confirmed the continuing validity of the security classification;
(3) The final denial shall include the name and title or position of
the official responsible for the denial;
(4) In the case of appeals for total denial of records, the response
shall advise the requester that the information being denied does not
contain meaningful portions that are reasonably segregable;
(5) When the denial is based upon an exemption 3 statute, the
response, in addition to citing the statute relied upon to deny the
information, shall state whether a court has upheld the decision to
withhold the information under the statute, and shall contain a concise
description of the scope of the information withheld; or
(6) The response shall advise the requester of the right to judicial
review.
(f) Consultation. Final refusal involving issues not previously
resolved or
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that the Army Activity knows to be inconsistent with rulings of other
DoD Components ordinarily should not be made before consultation with
the Army OGC. Tentative decisions to deny records that raise new or
significant legal issues of potential significance to other Agencies of
the Government shall be provided to the Army OGC.
Sec. 518.18 Judicial actions.
(a) This section states current legal and procedural rules for the
convenience of the reader. The statements of rules do not create rights
or remedies not otherwise available, nor do they bind the DA or DoD to
particular judicial interpretations or procedures. A requester may seek
an order from a U.S. District Court to compel release of a record after
administrative remedies have been exhausted; i.e., when refused a record
by the head of a Component or an appellate designee or when the Army
Activity has failed to respond within the time limits prescribed by the
FOIA and in this part.
(b) The requester may bring suit in the U.S. District Court in the
district, in which the requester resides or is the requester's place of
business, in the district in which the record is located, or in the
District of Columbia.
(c) The burden of proof is on the Army Activity to justify its
refusal to provide a record. The court shall evaluate the case de novo
(anew) and may elect to examine any requested record in camera (in
private) to determine whether the denial was justified.
(d) When an Army Activity has failed to make a determination within
the statutory time limits but can demonstrate due diligence in
exceptional circumstances, to include negotiating with the requester to
modify the scope of their request, the court may retain jurisdiction and
allow the Activity additional time to complete its review of the
records.
(1) If the court determines that the requester's complaint is
substantially correct, it may require the U. S. to pay reasonable
attorney fees and other litigation costs.
(2) When the court orders the release of denied records, it may also
issue a written finding that the circumstances surrounding the
withholding raise questions whether Army Activity personnel acted
arbitrarily and capriciously. In these cases, the special counsel of the
Merit Systems Protection Board shall conduct an investigation to
determine whether or not disciplinary action is warranted. The Army
Activity is obligated to take the action recommended by the special
counsel.
(3) The court may punish the responsible official for contempt when
an Army Activity fails to comply with the court order to produce records
that it determines have been withheld improperly.
(e) Non-U. S. Government source information. A requester may bring
suit in an U.S. District Court to compel the release of records obtained
from a non-government source or records based on information obtained
from a non-government source. Such source shall be notified promptly of
the court action. When the source advises that it is seeking court
action to prevent release, the Army Activity shall defer answering or
otherwise pleading to the complainant as long as permitted by the Court
or until a decision is rendered in the court action of the source,
whichever is sooner.
(f) FOIA litigation. Personnel responsible for processing FOIA
requests at the DoD Component level shall be aware of litigation under
the FOIA. Such information will provide management insights into the use
of the nine exemptions by Component personnel. Whenever a complaint
under the FOIA is filed in an U.S. District Court, the Army Activity
named in the complaint shall forward a copy of the complaint by any
means to HQDA, OTJAG (DAJA-LT), with an information copy to the Army
OGC. In the DA, HQDA OTJAG (DAJA-LT), WASH D.C. 20310-2210 is also
responsible for forwarding this information to the Office of the Army
OGC and to the DA FOIA/PA Office.
(1) Bases for FOIA Lawsuits. In general, there are four categories
of complaints in a FOIA lawsuit: failure to respond to a request within
time frames
[[Page 159]]
established in the FOIA statute; challenge to the adequacy of search for
responsive records; challenge to application of a FOIA Exemption; and
procedural challenges, such as application of waiver of fees. The
guidance below is intended to cover all categories of complaints. In
responding to litigation support requests, bear in mind the type of
complaint that has given rise to the lawsuit and provide information,
which addresses the specific reason(s) for the complaint.
(2) Responsibility for FOIA litigation. For the Army, under the
general oversight of the OGC, FOIA litigation is the responsibility of
the General Litigation Branch, Army Litigation Division. If you are
notified of a FOIA lawsuit involving the Army, contact the General
Litigation Branch immediately at: U.S. Army Litigation Center, General
Litigation Branch (JALS-LTG), 901 North Stuart Street, Suite 700,
Arlington, VA 22203-1837. The General Litigation Branch will provide
guidance on gathering information and assembling a litigation report
necessary to respond to FOIA litigation.
(3) Litigation reports for FOIA lawsuits. As with any lawsuit, the
Army Litigation Division and DOJ will require a litigation report. This
report should be prepared with the assistance, and under the supervision
of, the legal advisor. For general guidance on litigation reports, see
Army Regulation 27-40, paragraph 3-9. Unlike the usual 60-day time
period to respond to complaints under the Federal Rules of Civil
Procedure, complaints under the FOIA must be answered within 30 days of
the service of the complaint. Therefore, it is imperative to contact the
Litigation Division immediately and to begin preparing the litigation
report without delay.
(4) Specific guidance for FOIA litigation reports. The following is
specific guidance for preparing a litigation report in FOIA Litigation.
The required material should be indexed and assembled under the
following categories:
(i) Statement of facts. (Tab A). Provide a chronological statement
of all facts related to the FOIA request, beginning with receipt of the
request, responses to the request, and searches for responsive records.
The statement of facts should refer to supporting enclosed exhibits
whenever possible.
(ii) Responses to pleadings. (Tab B). If you have been provided a
copy of the complaint, provide a line-by-line answer to the factual
statements in the pleadings, along with recommendations on whether to
admit or deny the allegation.
(iii) Memorandum of law. (Tab C). No memorandum of law is necessary
in FOIA lawsuits. If records were withheld, provide a written statement
explaining the FOIA Exemption used to withhold the information and the
rationale for its application in the particular facts of your case.
Include here a copy of any legal review regarding the withholding of the
records.
(iv) Potential witness information. (Tab D). List the names,
addresses, telephone number, facsimile number and e-mail addresses of
all potential witnesses. At a minimum, this must include all of the
following: the FOIA Officer or Coordinator or other person responsible
for processing FOIA requests; the individual(s) who actually conducted
the search for responsive records; the legal advisor(s) who reviewed or
provided advice on the request; and the point of contact at any office
or agency to which the FOIA request was referred.
(v) Exhibits. (Tab E). Provide copies of all correspondence
regarding the FOIA request. This includes all correspondence between the
agency and the requester, including any enclosures; any referrals or
forwarding of the request to other agencies or offices; copies of all
documents released to the requester pursuant to the request in
litigation. If any information is withheld or redacted, provide a
complete copy of all withheld information. Identify withheld information
by placing brackets around all information withheld and note in the
margins of the document the specific FOIA exemption applied to deny
release of the document; all records and correspondence forwarded to the
IDA, if applicable; all appeals by the requester; if the withheld
document is classified, provide a summary of each document withheld. The
Summary of classified documents should include the following:
[[Page 160]]
(A) The classification of the document;
(B) The date of the document;
(C) The number of pages of the document;
(D) The author or creator of the document;
(E) The intended or actual recipient of the document;
(F) The subject of the document and an unclassified description of
the document sufficient to inform the court of the nature of the
contents of the document; and
(G) An explanation of the reason for withholding, including the
specific provision(s) of Executive Order 12,958 which permit
classification of the information.
(vi) Draft declarations. (Tab F). A declaration is a statement for
use in litigation made under penalty of perjury pursuant to specific
statutory authority (28 U.S.C. 1746) which need not be notarized.
Declarations may be used by the Army to support a motion to dismiss or
to grant summary judgment. Depending on the basis for the lawsuit, with
the assistance of their legal advisor, witnesses should prepare a draft
declaration to be included with the litigation report.
(vii) The following is some general guidance on the content of a
declaration in FOIA litigation. Identify the declarant and describe his
or her qualifications and responsibilities as they relate to the FOIA;
provide a statement indicating that the declarant is familiar with the
specific request and the general subject matter of the records; include
a statement of the searcher's understanding of the exact nature of the
request, including any modification (narrowing or expanding the search
based on communications with the requester); generally, the factual
portion of the declaration should be organized as a chronological
statement beginning with receipt of the request; provide a specific
description of the system of records searched; and provide a description
of procedures used to search for the requested records, (manual search
of records, computer database search, etc.). This portion of the
declaration is especially important when no records are found. The
declaration must reflect an adequate and reasonable search for records
in locations where responsive records are likely to be found.
(5) Special guidance for initial denial authorities. If any
information was withheld, the IDA or person with specific knowledge of
the withholding must provide a specific statement of any Exemptions to
the FOIA, which were applied to the records.
(i) Withheld records. For withheld records, describe in reasonably
specific detail all records or parts of records withheld. If the number
of records is extensive, use an index of the records and consider
numbering the documents to facilitate reference. It is also permissible
(and frequently helpful) to include redacted portions of records
withheld as attachments or exhibits to the declarations.
(ii) Exemptions. Include in the declaration a specific statement
demonstrating that all the elements of each FOIA exemption are met.
(iii) Segregation. The FOIA requires that all information not
subject to an exemption to the FOIA, which can be reasonably segregated
from exempt information, must be released to FOIA requesters. In any
instance where an entire document is withheld, the individual
authorizing the withholding must specifically address that segregation
and release of non-exempt material was not possible without rendering
the record essentially meaningless. If applicable, this issue must be
specifically addressed in the declaration.
(iv) Sound Legal Basis. Army policy promotes careful consideration
of FOIA requests and discretionary decisions to disclose information
protected under the FOIA. Discretionary disclosures should be made only
after full and deliberate consideration of the institutional,
commercial, and personal privacy interests that could be implicated by
disclosure of the information. The decision to withhold records, in
whole or in part, otherwise exempt from disclosure under the FOIA must
exhibit a sound legal basis or present an unwarranted risk of adverse
impact on the ability of other agencies to protect other important
records.
[[Page 161]]
Subpart F_Fee Schedule
Sec. 518.19 General provisions.
(a) Authorities. The FOIA, as amended; the Paperwork Reduction Act
(44 U.S.C. 35), as amended; the PA of 1974, as amended; the Budget and
Accounting Act of 1921 and the Budget and Accounting Procedures Act, as
amended (see 31 U.S.C.); and 10 U.S.C. 2328).
(b) Application. The fees described in this Subpart apply to FOIA
requests, and conform to the Office of Management and Budget Uniform
Freedom of Information Act Fee Schedule and Guidelines. They reflect
direct costs for search, review (in the case of commercial requesters),
and duplication of documents, collection of which is permitted by the
FOIA. They are neither intended to imply that fees must be charged in
connection with providing information to the public in the routine
course of business, nor are they meant as a substitute for any other
schedule of fees, such as DoD 7000.14-R, which does not supersede the
collection of fees under the FOIA. Nothing in this subpart shall
supersede fees chargeable under a statute specifically providing for
setting the level of fees for particular types of records. A ``statute
specifically providing for setting the level of fees for particular
types of records'' (5 U.S.C. 552 FOIA, (a)(4)(A)(vi)) means any statute
that enables a Government Agency such as the GPO or the NTIS, to set and
collect fees. Components should ensure that when documents that would be
responsive to a request are maintained for distribution by agencies
operating statutory-based fee schedule programs such as GPO or NTIS,
they inform requesters of the steps necessary to obtain records from
those sources.
(1) The term ``direct costs'' means those expenditures an Activity
actually makes in searching for, reviewing (in the case of commercial
requesters), and duplicating documents to respond to a FOIA request.
Direct costs include, for example, the salary of the employee performing
the work (the basic rate of pay for the employee plus 16 percent of that
rate to cover benefits), and the costs of operating duplicating
machinery. Not included in direct costs are overhead expenses such as
costs of space, heating or lighting the facility in which the records
are stored.
(2) The term ``search'' includes all time spent looking, both
manually and electronically, for material that is responsive to a
request. Search also includes a page-by-page or line-by-line
identification (if necessary) of material in the record to determine if
it, or portions thereof are responsive to the request. Activities should
ensure that searches are done in the most efficient and least expensive
manner so as to minimize costs for both the Activity and the requester.
For example, Activities should not engage in line-by-line searches, when
duplicating an entire document known to contain responsive information,
would prove to be the less expensive and quicker method of complying
with the request. Time spent reviewing documents in order to determine
whether to apply one or more of the statutory exemptions is not search
time, but review time.
(3) The term ``duplication'' refers to the process of making a copy
of a document in response to a FOIA request. Such copies can take the
form of paper copy, microfiche, audiovisual, or machine-readable
documentation (e.g., magnetic tape or disc), among others. Every effort
will be made to ensure that the copy provided is in a form that is
reasonably useable, the requester shall be notified that the copy
provided is the best available and that the Activity's master copy shall
be made available for review upon appointment. For duplication of
computer-stored records, the actual cost, including the operator's time,
shall be charged. In practice, if an Activity estimates that assessable
duplication charges are likely to exceed $25.00, it shall notify the
requester of the estimate, unless the requester has indicated in advance
his or her willingness to pay fees as high as those anticipated. Such a
notice shall offer a requester the opportunity to confer with Activity
personnel with the object of reformulating the request to meet his or
her needs at a lower cost.
(4) The term ``review'' refers to the process of examining documents
located in response to a FOIA request to determine whether one or more
of the
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statutory exemptions permit withholding. It also includes processing the
documents for disclosure, such as excising them for release. Review does
not include the time spent resolving general legal or policy issues
regarding the application of exemptions. It should be noted that charges
for commercial requesters may be assessed only for the initial review.
Activities may not charge for reviews required at the administrative
appeal level of an exemption already applied. However, records or
portions of records withheld in full under an exemption, which is
subsequently determined not to apply, may be reviewed again to determine
the applicability of other exemptions not previously considered. The
costs for such a subsequent review would be properly assessable.
(c) Fee restrictions. No fees may be charged by any Army Activity if
the costs of routine collection and processing of the fee are likely to
equal or exceed the amount of the fee. With the exception of requesters
seeking documents for a commercial use, Activities shall provide the
first two hours of search time, and the first one hundred pages of
duplication without charge. For example, for a request (other than one
from a commercial requester) that involved two hours and fifteen minutes
of search time, and resulted in one hundred and twenty-five pages of
documents, an Activity would determine the cost of only ten minutes of
search time, and only five pages of reproduction. If this processing
cost was equal to, or less than the cost to the Activity for billing the
requester and processing the fee collected, no charges would result.
(1) Requesters receiving the first two hours of search and the first
one hundred pages of duplication without charge are entitled to such
only once per request. Consequently, if an Activity, after completing
its portion of a request, finds it necessary to refer the request to a
subordinate office, another Army Activity or DoD Component, or another
Federal Agency for action their portion of the request, the referring
Activity shall inform the recipient of the referral of the expended
amount of search time and duplication cost to date.
(2) The elements to be considered in determining the ``cost of
collecting a fee'' are the administrative costs to the Activity of
receiving and recording a remittance, and processing the fee for deposit
in the Department of Treasury's special account. The cost to the
Department of Treasury to handle such remittance is negligible and shall
not be considered in the Activity's determinations.
(3) For the purposes of these restrictions, the word ``pages''
refers to paper copies of a standard size, which will normally be ``8\1/
2\ x 11'' or ``11 x 14''. Thus, requesters would not be entitled to 100
microfiche or 100 computer disks, for example. A microfiche containing
the equivalent of 100 pages or 100 pages of computer printout, however,
might meet the terms of the restriction.
(4) In the case of computer searches, the first two free hours will
be determined against the salary scale of the individual operating the
computer for the purposes of the search. As an example, when the direct
costs of the computer central processing unit, input-output devices, and
memory capacity equal $40.00 (two hours of equivalent search at the
clerical level), amounts of computer costs in excess of that amount are
chargeable as computer search time. In the event the direct operating
cost of the hardware configuration cannot be determined, computer search
shall be based on the salary scale of the operator executing the
computer search.
(d) Fee waivers. Documents shall be furnished without charge, or at
a charge reduced below fees assessed to the categories of requesters
when the Activity determines that waiver or reduction of the fees is in
the public interest because furnishing the information is likely to
contribute significantly to public understanding of the operations or
activities of DA and is not primarily in the commercial interest of the
requester.
(1) When assessable costs for a FOIA request total $15.00 or less,
fees shall be waived automatically for all requesters, regardless of
category.
(2) Decisions to waive or reduce fees that exceed the automatic
waiver threshold shall be made on a case-by-
[[Page 163]]
case basis. Disclosure of the information ``is in the public interest
because it is likely to contribute significantly to public understanding
of the operations or activities of the Government.''
(i) Activities should analyze whether the subject matter of the
request involves issues that will significantly contribute to the public
understanding of the operations or activities of DA or DoD. Requests for
records in the possession of the Army or DoD, which were originated by
non-government organizations and are sought for their intrinsic content,
rather than informative value, will likely not contribute to public
understanding of the operations or activities of either DA or DoD. An
example of such records might be press clippings, magazine articles, or
records forwarding a particular opinion or concern from a member of the
public regarding an Army or DoD activity. Similarly, disclosures of
records of considerable age may or may not bear directly on the current
activities of either DA or DoD; however, the age of a particular record
shall not be the sole criteria for denying relative significance under
this factor. It is possible to envisage an informative issue concerning
the current activities of DA or DoD, based upon historical
documentation. Requests of this nature must be closely reviewed
consistent with the requester's stated purpose for desiring the records
and the potential for public understanding of the operations and
activities of DA or DoD.
(ii) The informative value of the information to be disclosed
requires a close analysis of the substantive contents of a record, or
portion of the record, to determine whether disclosure is meaningful,
and shall inform the public on the operations or activities of DA or
DoD. While the subject of a request may contain information that
concerns operations or activities of DA or DoD, it may not always hold
great potential for contributing to a meaningful understanding of these
operations or activities. An example of such would be a previously
released record that has been heavily redacted, the balance of which may
contain only random words, fragmented sentences, or paragraph headings.
A determination as to whether a record in this situation will contribute
to the public understanding of the operations or activities of DA or DoD
must be approached with caution, and carefully weighed against the
arguments offered by the requester. Another example is information
already known to be in the public domain. Disclosure of duplicative, or
nearly identical information already existing in the public domain may
add no meaningful new information concerning the operations and
activities of DA or DoD.
(iii) The contribution to an understanding of the subject by the
general public is likely to result from disclosure that will inform, or
have the potential to inform the public, rather than simply the
individual requester or small segment of interested persons. The
identity of the requester is essential in this situation in order to
determine whether such requester has the capability and intention to
disseminate the information to the public. Mere assertions of plans to
author a book, researching a particular subject, doing doctoral
dissertation work, or indigence are insufficient without demonstrating
the capacity to further disclose the information in a manner that will
be informative to the general public. Requesters should be asked to
describe their qualifications, the nature of their research, the purpose
of the requested information, and their intended means of dissemination
to the public.
(iv) Activities must differentiate the relative significance or
impact of the disclosure against the current level of public knowledge,
or understanding, which exists before the disclosure. In other words,
will disclosure on a current subject of wide public interest be unique
in contributing previously unknown facts, thereby enhancing public
knowledge, or will it basically duplicate what is already known by the
general public? A decision regarding significance requires objective
judgment, rather than subjective determination, and must be applied
carefully to determine whether disclosure will likely lead to a
significant public understanding of the issue. Activities shall
[[Page 164]]
not make value judgments as to whether the information is important
enough to be made public.
(3) Disclosure of the information ``is not primarily in the
commercial interest of the requester.''
(i) If the request is determined to be of a commercial interest,
Activities should address the magnitude of that interest to determine if
the requester's commercial interest is primary, as opposed to any
secondary personal or non-commercial interest. In addition to profit-
making organizations, individual persons or other organizations may have
a commercial interest in obtaining certain records. Where it is
difficult to determine whether the requester is of a commercial nature,
Activities may draw inference from the requester's identity and
circumstances of the request. Activities are reminded that in order to
apply the commercial standards of the FOIA, the requester's commercial
benefit must clearly override any personal or non-profit interest.
(ii) Once a requester's commercial interest has been determined,
Activities should then determine if the disclosure would be primarily in
that interest. This requires a balancing test between the commercial
interest of the request against any public benefit to be derived as a
result of that disclosure. Where the public interest is served above and
beyond that of the requester's commercial interest, a waiver or
reduction of fees would be appropriate. Conversely, even if a
significant public interest exists, and the relative commercial interest
of the requester is determined to be greater than the public interest,
then a waiver or reduction of fees would be inappropriate. As examples,
news media organizations have a commercial interest as business
organizations; however, their inherent role of disseminating news to the
general public can ordinarily be presumed to be of a primary interest.
Therefore, any commercial interest becomes secondary to the primary
interest in serving the public. Similarly, scholars writing books or
engaged in other forms of academic research, may recognize a commercial
benefit, either directly, or indirectly (through the institution they
represent); however, normally such pursuits are primarily undertaken for
educational purposes, and the application of a fee charge would be
inappropriate. Conversely, data brokers or others who merely compile
government information for marketing can normally be presumed to have an
interest primarily of a commercial nature.
(4) Activities are reminded that the factors and examples used in
this section are not all inclusive. Each fee decision must be considered
on a case-by-case basis and upon the merits of the information provided
in each request. When the element of doubt as to whether to charge or
waive the fee cannot be clearly resolved, Activities should rule in
favor of the requester.
(5) In addition, the following additional circumstances describe
situations where waiver or reduction of fees are most likely to be
warranted:
(i) A record is voluntarily created to prevent an otherwise
burdensome effort to provide voluminous amounts of available records,
including additional information not requested; or
(ii) A previous denial of records is reversed in total, or in part,
and the assessable costs are not substantial (e.g., $15.00--$30.00).
(e) Fee assessment. Fees may not be used to discourage requesters,
and to this end, FOIA fees are limited to standard charges for direct
document search, review (in the case of commercial requesters) and
duplication.
(1) In order to be as responsive as possible to FOIA requests while
minimizing unwarranted costs to the taxpayer, Activities shall adhere to
the following procedures:
(i) Each request must be analyzed to determine the category of the
requester. If the Activity determination regarding the category of the
requester is different than that claimed by the requester, the Activity
should notify the requester to provide additional justification to
warrant the category claimed, and that a search for responsive records
will not be initiated until agreement has been attained relative to the
category of the requester. Absent further category justification from
the requester, and within a reasonable period of time (i.e., 30 calendar
days), the Activity shall render a final category determination, and
notify the
[[Page 165]]
requester of such determination, to include normal administrative appeal
rights of the determination. The requester should be advised that,
notwithstanding any appeal, a search for responsive records will not be
initiated until the requester indicates a willingness to pay assessable
costs appropriate for the category determined by the Activity;
(ii) Requesters should submit a fee declaration appropriate for the
below categories. Commercial requesters should indicate a willingness to
pay all search, review and duplication costs. Educational or
Noncommercial Scientific Institution or News Media requesters should
indicate a willingness to pay duplication charges, if applicable, in
excess of 100 pages if more than 100 pages of records are desired. All
other requesters should indicate a willingness to pay assessable search
and duplication costs;
(iii) Activities must be prepared to provide an estimate of
assessable fees if desired by the requester. While it is recognized that
search situations will vary among Activities, and that an estimate is
often difficult to obtain prior to an actual search, requesters who
desire estimates are entitled to such before committing to a willingness
to pay. Should Activities' actual costs exceed the amount of the
estimate or the amount agreed to by the requester, the amount in excess
of the estimate or the requester's agreed amount shall not be charged
without the requester's agreement;
(iv) No Army Activity may require advance payment of any fee; i.e.,
payment before work is commenced or continued on a request, unless the
requester has previously failed to pay fees in a timely fashion, or the
agency has determined that the fee will exceed $250.00. As used in this
sense, a timely fashion is 30 calendar days from the date of billing
(the fees have been assessed in writing) by the Activity;
(v) Where an Activity estimates or determines that allowable charges
that a requester may be required to pay are likely to exceed $250.00,
the Activity shall notify the requester of the likely cost and obtain
satisfactory assurance of full payment where the requester has a history
of prompt payments, or require an advance payment of an amount up to the
full estimated charges in the case of requesters with no history of
payment;
(vi) Where a requester has previously failed to pay a fee charged in
a timely fashion (i.e., within 30 calendar days from the date of the
billing), the Activity may require the requester to pay the full amount
owed, plus any applicable interest, or demonstrate that he or she has
paid the fee, and to make an advance payment of the full amount of the
estimated fee before the Activity begins to process a new or pending
request from the requester. Interest will be at the rate prescribed in
31 U.S.C. 3717, and confirmed with respective Finance and Accounting
Offices;
(vii) After all work is completed on a request, and the documents
are ready for release, Activities may request payment before forwarding
the documents, particularly for those requesters who have no payment
history, or for those requesters who have failed previously to pay a fee
in a timely fashion (i.e., within 30 calendar days from the date of the
billing;
(viii) The administrative time limits of the FOIA will begin only
after the Activity has received a willingness to pay fees and
satisfaction as to category determination, or fee payments (if
appropriate); and
(ix) Activities may charge for time spent searching for records,
even if that search fails to locate records responsive to the request.
Activities may also charge search and review (in the case of commercial
requesters) time if records located are determined to be exempt from
disclosure. In practice, if the Activity estimates that search charges
are likely to exceed $25.00, it shall notify the requester of the
estimated amount of fees, unless the requester has indicated in advance
his or her willingness to pay fees as high as those anticipated. Such a
notice shall offer the requester the opportunity to confer with Activity
personnel with the object of reformulating the request to meet his or
her needs at a lower cost.
(2) Commercial requesters. Fees shall be limited to reasonable
standard charges for document search, review
[[Page 166]]
and duplication when records are requested for commercial use.
Requesters must reasonably describe the records sought.
(i) The term ``commercial use'' request refers to a request from, or
on behalf of one who seeks information for a use or purpose that
furthers the commercial, trade, or profit interest of the requester or
the person on whose behalf the request is made. In determining whether a
requester properly belongs in this category, Activities must determine
the use to which a requester will put the documents requested. Moreover,
where an Activity has reasonable cause to doubt the use to which a
requester will put the records sought, or where that use is not clear
from the request itself, Activities should seek additional clarification
before assigning the request to a specific category.
(ii) When Activities receive a request for documents for commercial
use, they should assess charges, which recover the full direct costs of
searching for, reviewing for release, and duplicating the records
sought. Commercial requesters (unlike other requesters) are not entitled
to two hours of free search time, nor 100 free pages of reproduction of
documents. Moreover, commercial requesters are not normally entitled to
a waiver or reduction of fees based upon an assertion that disclosure
would be in the public interest. However, because use is the exclusive
determining criteria, it is possible to envision a commercial enterprise
making a request that is not for commercial use. It is also possible
that a non-profit organization could make a request that is for
commercial use. Such situations must be addressed on a case-by-case
basis.
(3) Educational institution requesters. Fees shall be limited to
only reasonable standard charges for document duplication (excluding
charges for the first 100 pages) when the request is made by an
educational institution whose purpose is scholarly research. Requesters
must reasonably describe the records sought. The term ``educational
institution'' refers to a pre-school, a public or private elementary or
secondary school, an institution of graduate high education, an
institution of undergraduate higher education, an institution of
professional education, and an institution of vocational education,
which operates a program or programs of scholarly research. Fees shall
be waived or reduced in the public interest if the criteria above have
been met.
(4) Non-commercial scientific institution requesters. Fees shall be
limited to only reasonable standard charges for document duplication
(excluding charges for the first 100 pages) when the request is made by
a non-commercial scientific institution whose purpose is scientific
research. Requesters must reasonably describe the records sought. The
term ``non-commercial scientific institution'' refers to an institution
that is not operated on a ``commercial'' basis and that is operated
solely for the purpose of conducting scientific research, the results of
which are not intended to promote any particular product or industry.
(5) Activities shall provide documents to requesters for the cost of
duplication alone, excluding charges for the first 100 pages. To be
eligible for inclusion in these categories, requesters must show that
the request is being made under the auspices of a qualifying institution
and that the records are not sought for commercial use, but in
furtherance of scholarly (from an educational institution) or scientific
(from a non-commercial scientific institution) research.
(6) Representatives of the news media. Fees shall be limited to only
reasonable standard charges for document duplication (excluding charges
for the first 100 pages) when the request is made by a representative of
the news media. Requesters must reasonably describe the records sought.
(i) The term ``representative of the news media'' refers to any
person actively gathering news for an entity that is organized and
operated to publish or broadcast news to the public. The term ``news''
means information that is about current events or that would be of
current interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large and
publishers of periodicals (but only in those instances when they can
qualify as disseminators of ``news'') who make
[[Page 167]]
their products available for purchase or subscription by the general
public. These examples are not meant to be all-inclusive. Moreover, as
traditional methods of news delivery evolve (e.g., electronic
dissemination of newspapers through telecommunications services), such
alternative media would be included in this category. In the case of
``freelance'' journalists, they may be regarded as working for a news
organization if they can demonstrate a solid basis for expecting
publication through that organization, even though not actually employed
by it. A publication contract would be the clearest proof, but
Activities may also look to the past publication record of a requester
in making this determination.
(ii) To be eligible for inclusion in this category, a requester must
meet the criteria in paragraph (e) (6) (i) of this section, and his or
her request must not be made for commercial use. A request for records
supporting the news dissemination function of the requester shall not be
considered to be a request that is for a commercial use. For example, a
document request by a newspaper for records relating to the
investigation of a defendant in a current criminal trial of public
interest could be presumed to be a request from an entity eligible for
inclusion in this category, and entitled to records at the cost of
reproduction alone (excluding charges for the first 100 pages).
(iii) ``Representative of the news media'' does not include private
libraries, private repositories of Government records, information
vendors, data brokers or similar marketers of information whether to
industries and businesses, or other entities.
(7) All other requesters. Activities shall charge requesters who do
not fit into any of the categories, fees which recover the full direct
cost of searching for and duplicating records, except that the first two
hours of search time and the first 100 pages of duplication shall be
furnished without charge. Requesters must reasonably describe the
records sought. Requests from subjects about themselves will continue to
be treated under the fee provisions of the Privacy Act of 1974, which
permit fees only for duplication. Activities are reminded that this
category of requester may also be eligible for a waiver or reduction of
fees if disclosure of the information is in the public interest as
defined in paragraph (6) (ii) in this section.
(f) Aggregating requests. Except for requests that are for a
commercial use, an Activity may not charge for the first two hours of
search time or for the first 100 pages of reproduction. However, a
requester may not file multiple requests at the same time, each seeking
portions of a document or documents, solely in order to avoid payment of
fees. When an Activity reasonably believes that a requester or, on rare
occasions, a group of requesters acting in concert, is attempting to
break a request down into a series of requests for the purpose of
avoiding the assessment of fees, the agency may aggregate any such
requests and charge accordingly. One element to be considered in
determining whether a belief would be reasonable is the time period in
which the requests have occurred. For example, it would be reasonable to
presume that multiple requests of this type made within a 30-day period
had been made to avoid fees. For requests made over a longer period,
however, such a presumption becomes harder to sustain and Activities
should have a solid basis for determining that aggregation is warranted
in such cases. Activities are cautioned that before aggregating requests
from more than one requester, they must have a concrete basis on which
to conclude that the requesters are acting in concert and are acting
specifically to avoid payment of fees. In no case may Activities
aggregate multiple requests on unrelated subjects from one requester.
(g) Debt Collection Act of 1982 (Pub. L. 97-365). The Debt
Collection Act provides for a minimum annual rate of interest to be
charged on overdue debts owed the Federal Government. Activities may
levy this interest penalty for any fees that remain outstanding 30
calendar days from the date of billing (the first demand notice) to the
requester of the amount owed. The interest rate shall be as prescribed
in 31 U.S.C. 3717. Activities should verify the current interest rate
with respective Finance and Accounting Offices. After one demand letter
has been sent, and 30
[[Page 168]]
calendar days have lapsed with no payment, Activities may submit the
debt to respective Finance and Accounting Offices for collection
pursuant to the Debt Collection Act.
(h) Computation of fees. The fee schedule shall be used to compute
the search, review (in the case of commercial requesters) and
duplication costs associated with processing a given FOIA request. Costs
shall be computed on time actually spent. Neither time-based nor dollar-
based minimum charges for search, review and duplication are authorized.
The appropriate fee category of the requester shall be applied before
computing fees. DD Form 2086 (Record of Freedom of Information (FOI)
Processing Cost) will be used to annotate fees for processing FOIA
information.
(i) Refunds. In the event that an Activity discovers that it has
overcharged a requester or a requester has overpaid, the Activity shall
promptly refund the charge to the requester by reimbursement methods
that are agreeable to the requester and the Activity.
Sec. 518.20 Collection of fees and fee rates.
(a) Collection of fees. Collection of fees will be made at the time
of providing the documents to the requester or recipient when the
requester specifically states that the costs involved shall be
acceptable or acceptable up to a specified limit that covers the
anticipated costs. Collection of fees may not be made in advance unless
the requester has failed to pay previously assessed fees within 30
calendar days from the date of the billing by the Activity, or the
Activity has determined that the fee will be in excess of $250.
(b) Search time-(1) Costs for manual searches.
------------------------------------------------------------------------
Hourly rate
Type Grade ($)
------------------------------------------------------------------------
Clerical........................... E9/GS 8 and below..... 20
Professional....................... 1-06/GS 9-GS 15....... 44
Executive.......................... 07/ST/SL/SES-1 and 75
above.
Contractor......................... ...................... 44
------------------------------------------------------------------------
(2) Computer search. Fee assessments for computer search consists of
two parts; individual time (hereafter referred to as human time), and
machine time.
(i) Human time. Human time is all the time spent by humans
performing the necessary tasks to prepare the job for a machine to
execute the run command. If execution of a run requires monitoring by a
human, that human time may be also assessed as computer search. The
terms ``programmer/operator'' shall not be limited to the traditional
programmers or operators. Rather, the terms shall be interpreted in
their broadest sense to incorporate any human involved in performing the
computer job (e.g. technician, administrative support, operator,
programmer, database administrator, or action officer).
(ii) Machine time. Machine time involves only direct costs of the
Central Processing Unit (CPU), input/output devices, and memory capacity
used in the actual computer configuration. Only this CPU rate shall be
charged. No other machine related costs shall be charged. In situations
where the capability does not exist to calculate CPU time, no machine
costs can be passed on to the requester. When CPU calculations are not
available, only human time costs shall be assessed to requesters. Should
Army Activities lease computers, the services charged by the lesser
shall not be passed to the requester under the FOIA.
(c) Duplication costs.
------------------------------------------------------------------------
Type Cost per page (cents)
------------------------------------------------------------------------
Pre-printed material...................... .02
Office Copy............................... .15
Microfiche................................ .25
Computer copies (tapes, discs or Actual cost of duplicating
printouts). the tape, disc or printout
(includes operator's time
and cost of the medium)
------------------------------------------------------------------------
(d) Review time costs (in the case of commercial requesters).
------------------------------------------------------------------------
Hourly rate
Type Grade ($)
------------------------------------------------------------------------
Clerical........................... E9/GS 8 and below..... 20
Professional....................... 01-06/GS 9-GS 15...... 44
Executive.......................... 07/ST/SL/SES-1 and 75
above.
Contractor......................... ...................... 44
------------------------------------------------------------------------
(e) Audiovisual documentary materials. Search costs are computed as
for any other record. Duplication cost is the
[[Page 169]]
actual direct cost of reproducing the material, including the wage of
the person doing the work. Audiovisual materials provided to a requester
need not be in reproducible format or quality. Army audiovisual
materials are referred to as ``visual information.''
(f) Other records. Direct search and duplication cost for any record
not described above shall be computed in the manner described for
audiovisual documentary material.
(g) Costs for special services. Complying with requests for special
services is at the discretion of the Activities. Neither the FOIA, nor
its fee structure cover these kinds of services. Therefore, Activities
may recover the costs of special services requested by the requester
after agreement has been obtained in writing from the requester to pay
for one or more of the following services:
(1) Certifying that records are true copies; and/or
(2) Sending records by special methods such as express mail, etc.
Sec. 518.21 Collection of fees and fee rates for technical data.
(a) Fees for technical data. Technical data, other than technical
data that discloses critical technology with military or space
application, if required to be released under the FOIA, shall be
released after the person requesting such technical data pays all
reasonable costs attributed to search, duplication and review of the
records to be released. Technical data, as used in this section, means
recorded information, regardless of the form or method of the recording
of a scientific or technical nature (including computer software
documentation). This term does not include computer software, or data
incidental to contract administration, such as financial and/or
management information. Army Activities shall retain the amounts
received by such a release, and it shall be merged with and available
for the same purpose and the same time period as the appropriation from
which the costs were incurred in complying with request. All reasonable
costs as used in this sense are the full costs to the Federal Government
of rendering the service, or fair market value of the service, whichever
is higher. Fair market value shall be determined in accordance with
commercial rates in the local geographical area. In the absence of a
known market value, charges shall be based on recovery of full costs to
the Federal Government. The full costs shall include all direct and
indirect costs to conduct the search and to duplicate the records
responsive to the request. This cost is to be differentiated from the
direct costs allowable for other types of information released under the
FOIA. DD Form 2086-1 will be used to annotate fees for technical data.
The form is available through normal publication channels.
(b) Waiver. Activities shall waive the payment of costs described in
paragraph (a) of this section, which are greater than the costs that
would be required for release of this same information if the request is
made by a citizen of the United States or a United States corporation,
and such citizen or corporation certifies that the technical data
requested is required to enable it to submit an offer, or determine
whether it is capable of submitting an offer to provide the product to
which the technical data relates to the United States or a contractor
with the United States. However, Activities may require the citizen or
corporation to pay a deposit in an amount equal to not more than the
cost of complying with the request, which will be refunded upon
submission of an offer by the citizen or corporation;
(1) The release of technical data is requested in order to comply
with the terms of an international agreement; or,
(2) The Activity determines that such a waiver is in the interest of
the United States.
(c) Fee rates-(1) Costs for a manual search of technical data.
------------------------------------------------------------------------
Hourly rate
Type Grade ($)
------------------------------------------------------------------------
Clerical........................... E9/GS 8 and below..... 13.25
Minimum Charge..................... ...................... 8.30
------------------------------------------------------------------------
Notes: Professional and Executive (To be established at actual hourly
rate prior to search. A minimum charge will be established at \1/2\
hourly rates.
(2) Computer search is based on the total cost of the cpu, input-
output devices, and memory capacity of the actual computer
configuration. The wage
[[Page 170]]
for the computer operator and/or programmer determining how to conduct,
and subsequently executing the search will be recorded as part of the
computer search.
(d) Duplication costs for technical data.
------------------------------------------------------------------------
Cost
Type ($)
------------------------------------------------------------------------
Aerial photograph, maps, specifications, permits, charts, 2.50
blueprints, and other technical engineering documents.........
Engineering data (microfilm)...................................
a. Aperture cards
Silver duplicate negative, per card............................ .75
When key punched and verified, per card........................ .85
Diazo duplicate negative, per card............................. .65
When key punched and verified, per card........................ .75
b. 35 mm roll film, per frame.............................. .50
c. 16 mm roll film, per frame.............................. .45
d. Paper prints (engineering drawings), each............... 1.50
e. Paper reprints of microfilm indices, each............... .10
------------------------------------------------------------------------
(e) Review time costs of technical data.
------------------------------------------------------------------------
Hourly
Type Grade rate
($)
------------------------------------------------------------------------
Clerical............................. E9/GS 8 and below....... 13.25
Minimum Charge ........................ 8.30
------------------------------------------------------------------------
Notes: Professional and Executive (To be established at actual hourly
rate prior to search. A minimum charge will be established at \1/2\
hourly rates.
(f) Other technical data records. Charges for any additional
services not specifically consistent with Volume 11A of DoD 7000.14-R,
shall be made by Activities at the following rates:
------------------------------------------------------------------------
Cost
Type ($)
------------------------------------------------------------------------
1. Minimum charge for office copy (up to six images)........... 3.50
2. Each additional image....................................... .10
3. Each typewritten page....................................... 3.50
4. Certification and validation with seal, each................ 5.20
5. Hand-drawn plots and sketches, each hour or fraction thereof 12.00
------------------------------------------------------------------------
Subpart G_Reports
Sec. 518.22 Reports control.
(a) General. (1) The Annual FOIA Report is mandated by the statute
and reported on a fiscal year basis. Due to the magnitude of the
requested statistics and the need to ensure accuracy of reporting, Army
Activities shall track this data as requests are processed. This will
also facilitate a quick and accurate compilation of statistics. Army
Activities shall forward their report to DA, FOIA/PA Office, no later
than October 15 following the fiscal year's close. It may be submitted
electronically and via hard copy accompanied by a computer diskette. In
turn, DA and DoD will produce a consolidated report for a submission to
the Attorney General and ensure that a copy of the consolidated report
is placed on the Internet for public access.
(2) Existing Army standards and registered data elements are to be
utilized to the greatest extent possible in accordance with the
provisions of DoD 8320.1-M, ``Data Administration Procedures.''
(3) The reporting requirement outlined is assigned Report Control
Symbol DD-DA&M(A)1365, FOIA Report to Congress.
(b) Reporting time. Each DA IDA shall prepare statistics and
accumulate paperwork for the preceding fiscal year on those items
prescribed for the annual report. The IDAs will follow guidelines below
and submit the information to the DA, FOIA/PA Office, on or before the
15th day of each October.
(1) Each reporting activity will submit the information requested on
the DD Form 2564, ``Annual Report Freedom of Information Act.'' The form
is available through normal publication channels.
(2) Each IDA will submit the information requested on the DD Form
2564, excluding items 3, 4, and 9c.
(3) The Judge Advocate General (DAJA) and Chief of Engineers (COE)
will submit the information requested on the Form DD 2564, item 9c.
(4) The General Counsel (SAGC) will submit the information requested
on the DD Form 2564, items 3 and 4.
(5) The DA, FOIA/PA Office will compile the data submitted in the
Army's Annual Report. This report will be submitted to the DoD Office
for Freedom of Information and Security Review on or before the 30th day
of each November.
Sec. 518.23 Annual report content.
The current edition of DD Form 2564 shall be used to submit Activity
input. Instructions for completion follows:
(a) ITEM 1 Initial Request Determinations. Please note that initial
PA requests, which are also processed as initial FOIA requests, are
reported here.
[[Page 171]]
(1) Total requests processed. Enter the total number of initial FOIA
requests responded to (completed) during the fiscal year. This should
include pending cases at the end of the prior fiscal year, Total Actions
is the sum of Items 1b through 1e, on the DD Form 2564. This total may
exceed Total Requests Processed.
(2) Granted in full. Enter the total number of initial FOIA requests
responded to that were granted in full during the fiscal year. (This may
include requests granted by your office, yet still requiring action by
another office).
(3) Denied in part. Enter the total number of initial FOIA requests
responded to and denied in part based on one or more of the FOIA
exemptions. (Do not report ``Other Reason Responses'' as a partial
denial here, unless a FOIA exemption is also used).
(4) Denied in full. Enter the total number of initial FOIA requests
responded to and denied in full based on one or more of the FOIA
exemptions. (Do not report ``Other Reason Responses'' as denials here,
unless a FOIA exemption is also used).
(5) ``Other Reason'' responses. Enter the total number of initial
FOIA requests in which you were unable to provide all or part of the
requested information based on an ``Other Reason'' response.
(6) Total actions. Enter the total number of FOIA actions taken
during the fiscal year. This number will be the sum of items 1b, through
1e. Total Actions must be equal to or greater than the number of Total
Requests Processed.
(b) ITEM 2 Initial Request Exemptions and Other Reasons--(1)
Exemptions invoked on initial request determinations. Enter the number
of times an exemption was claimed for each request that was denied in
full or in part. Since more than one exemption may be claimed when
responding to a single request, this number will be equal to or greater
than the sum of (3) and (4), above. The (b)(7) exemption is reported by
subcategories (A) through (F): (A) Interfere with Enforcement; (B) Fair
Trial Right; (C) Invasion of Privacy; (D) Protect Confidential Source;
(E) Disclose Techniques, and (F) Endanger Life or Safety.
(2) ``Other Reasons'' cited on initial determinations. Identify the
``Other Reason'' response cited when responding to a FOIA request and
enter the number of times each was claimed.
(i) No records. Enter the number of times a reasonable search of
files failed to identify records responsive to subject request.
(ii) Referrals. Enter the number of times a request was referred to
another DoD Component or Federal Agency for action.
(iii) Request withdrawn. Enter the number of times a request and/or
appeal was withdrawn by a requester.
(iv) Fee-related reason. Requester is unwilling to pay the fees
associated with a request; the requester is past due in the payment of
fees from a previous FOIA request; or the requester disagrees with a fee
estimate.
(v) Records not reasonably described. Enter the number of times a
FOIA request could not be acted upon since the record had not been
described with sufficient particularity to enable the Army Activity to
locate it by conducting a reasonable search.
(vi) Not a proper FOIA request for some other reason. Enter the
number of times the requester has failed unreasonably to comply with
procedural requirements, other than fee-related imposed by this part or
an Army Activity's supplementing regulation.
(vii) Not an agency record. Enter the number of times a requester
was provided a response indicating the requested information was not a
record within the meaning of the FOIA and this part.
(viii) Duplicate request. Record number of duplicate requests closed
for that reason (e.g., request for the same information by the same
requester). This includes identical requests received via different
means (e.g., electronic mail, facsimile, mail, and courier) at the same
or different times.
(ix) Other (specify). Any other reason a requester does not comply
with published rules, other than those reasons outlined in paragraphs
(b)(2)(i) through (viii) of this section.
[[Page 172]]
(x) Total. Enter the sum of paragraphs (b)(2)(i) through (ix) of
this section, in the block provided on the form (total other reasons).
This number will be equal to or greater than the number in item 1e on
the report form, since more than one reason may be claimed for each
``Other Reason'' response.
(3) (b)(3) Statutes invoked on initial determinations. Identify the
number of times you have used a specific statute to support each (b)(3)
exemption. List the statutes used to support each (b)(3) exemption; the
number of instances in which the statute was cited; note whether or not
the statute has been upheld in a court hearing; and provide a concise
description of the material withheld in each individual case by the
statute's use. Ensure you cite the specific sections of the acts
invoked. The total number of instances reported will be equal to or
greater than the total number of (b)(3) exemptions listed in Item 2a on
the report form.
(c) ITEM 3 Appeal Determinations. Please note that PA appeals, which
are also processed as FOIA appeals, are reported here.
(1) Total appeal responses. Enter the total number of FOIA appeals
responded to (completed) during the fiscal year.
(2) Granted in full. Enter the total number of FOIA appeals
responded to and granted in full during the year.
(3) Denied in part. Enter the total number of FOIA appeals responded
to and denied in part based on one or more of the FOIA exemptions. (Do
not report ``Other Reason Responses'' as a partial denial here, unless a
FOIA exemption is used also.)
(4) Denied in full. Enter the total number of FOIA appeals responded
to and denied in full based on one or more of the FOIA exemptions. (Do
not report ``Other Reason Responses'' as denials here, unless a FOIA
exemption is used also).
(5) ``Other Reason'' responses. Enter the total number of FOIA
appeals in which you were unable to provide the requested information
based on an ``Other Reason'' response.
(6) Total actions. Enter the total number of FOIA appeal actions
taken during the fiscal year. This number will be the sum of items 3b,
through 3e, and should be equal to or greater than the number of Total
Appeal Responses, item 3a on the report form.
(d) ITEM 4 Appeal Exemptions and Other Reasons-(1) Exemptions
invoked on appeal determinations. Enter the number of times an exemption
was claimed for each appeal that was denied in full or in part. Since
more than one exemption may be claimed when responding to a single
request, this number will be equal to or greater than the sum of items
3c, and 3d on the report form. Note that the (b)(7) exemption is
reported by subcategory (A) through (F): (A) Interfere with Enforcement;
(B) Fair Trial Right; (C) Invasion of Privacy; (D) Protect Confidential
Source; (E) Disclose Techniques, and (F) Endanger Life or Safety.
(2) ``Other Reasons'' cited on appeal determinations. Identify the
``Other Reason'' response cited when responding to a FOIA appeal and
enter the number of times each was claimed. This number may be equal to
or possibly greater than the number in item 3e on the report form, since
more than one reason may be claimed for each ``Other Reason'' response.
(3) (b)(3) Statutes invoked on appeal determinations. Identify the
number of times a specific statute has been used to support each (b)(3)
exemption identified in item 4a on the report form DD 2564. List the
statutes used to support each (b)(3) exemption; the number of instances
in which the statute was cited; note whether or not the statute has been
upheld in a court hearing; and provide a concise description of the
material withheld in each individual case by the statute's use. Ensure
citation to the specific sections of the statute invoked. The total
number of instances reported will be equal to or greater than the total
number of (b)(3) exemptions listed in Item 4a on the report form.
(e) ITEM 5 Number and Median Age of Initial Cases Pending:
(1) Total initial cases pending:
(i) Beginning and ending report period: Midnight, 2400 hours,
September 30, of the Preceding Year--or--0001 hours, October 1, is the
beginning of the report period. Midnight, 2400 hours, is the close of
the reporting period.
[[Page 173]]
(ii) The number for the beginning report period must be the same
number reported as of the end of the report period from the previous
report.
(2) Median age of initial requests pending: Report the median age in
days (including holidays and weekends) of initial requests pending.
(3) Examples of median calculation. (i) If given five cases aged 10,
25, 35, 65, and 100 days from date of receipt as of the previous
September 30th, the total requests pending is five (5). The median age
(days) of open requests is the middle, not average value, in this set of
numbers (10, 25, 35, 65, and 100), 35 (the middle value in the set).
(ii) If given six pending cases, aged 10, 20, 30, 50, 120, and 200
days from date of receipt, as of the previous September 30th, the total
requests pending is six (6). The median age (days) of open requests 40
days (the mean [average] of the two middle numbers in the set, in this
case the average of middle values 30 and 50).
(4) Accuracy of calculations. Activities must ensure the accuracy of
calculations. As backup, the raw data used to perform calculations
should be recorded and preserved. This will enable recalculation of
median [and mean values] as necessary. Activities may require
subordinate elements to forward raw data, as deemed necessary and
appropriate.
(5) Average. If an Activity believes that ``average'' (mean)
processing time is a better measure of performance, then report
``averages'' (means) as well as median values (e.g., with data reflected
and plainly labeled on plain bond as an attachment to the report).
However, ``average'' (mean) values will not be included in the
consolidated Army report unless all Activities report it.
(f) ITEM 6 Number of Initial Requests Received During the Fiscal
Year. Enter the total number of initial FOIA requests received during
the reporting period (fiscal year being reported).
(g) ITEM 7 Types of Requests Processed and Median Age. Information
is reported for three types of initial requests completed during the
reporting period: Simple; Complex; and Expedited Processing. The
following items of information are reported for these requests:
(1) Total number of initial requests. Enter the total number of
initial requests processed [completed] during the reporting period
(fiscal year) by type (Simple, Complex and Expedited Processing) in the
appropriate row on the form.
(2) Median age (days). Enter the median number of days [calendar
days including holidays and weekends] required to process each type of
case (Simple, Complex and Expedited Processing) during the period in the
appropriate row on the form.
(3) Example. Given seven initial requests, multitrack--simple
completed during the fiscal year, aged 10, 25, 35, 65, 79, 90 and 400
days when completed. The total number of requests completed was seven
(7). The median age (days) of completed requests is 65, the middle value
in the set.
(h) ITEM 8 Fees Collected From the Public. Enter the total amount of
fees collected from the public during the fiscal year. This includes
search, review and reproduction costs only.
(i) ITEM 9 FOIA Program Costs-(1) Number of full time staff. Enter
the number of personnel your agency had dedicated to working FOIA full
time during the fiscal year. This will be expressed in work-years [man-
years]. For example: ``5.1, 3.2, 1.0, 6.5, et al.''
Table 7-1--Sample Computation of Work Years for Full Time Staff
------------------------------------------------------------------------
Number of
Employee months Work-years Note
worked
------------------------------------------------------------------------
Smith, Jane.................. 6 .50 Hired full time
at middle of
fiscal year
Public, John Q............... 4 .34 Dedicated to
full time FOIA
processing
last quarter
of the fiscal
year
Brown, Tom................... 12 1.00 Worked FOIA
full time all
fiscal year
--------------------------
Totals....................... 22 1.84 ...............
------------------------------------------------------------------------
(2) Number of part time staff. Enter the number of personnel your
agency had dedicated to working FOIA part time during the fiscal year.
This will be expressed in work-years [man-years]. For example: ``5.1,
3.2, 1.0, 6.5, et al.''
[[Page 174]]
Table 7-2--Computation of Work Years for Part Time Staff
------------------------------------------------------------------------
Number of
Employee months Work-years Note
worked
------------------------------------------------------------------------
Public, John Q............... 200 .1 Amount of time
devoted to
part time FOIA
processing
before
becoming full
time FOIA
processor in
previous
example
White, Sally................. 400 .2 Processed FOIAs
part time
while working
as paralegal
in General
Counsel's
Office
Peters, Ron.................. 1,000 .5 Part time
employee
dedicated to
FOIA
processing
-------------
Totals....................... 1,600/2,000
(hours
worked in a
year)
equals 0.8
work-years
------------------------------------------------------------------------
(3) Estimated litigation cost. Report your best estimate of
litigation costs for the FY. Include all direct and indirect expenses
associated with FOIA litigation in U.S. District Courts, U.S. Circuit
Courts of Appeals, and the U.S. Supreme Court.
(4) Total program cost. Report the total cost of FOIA program
operation within your agency. Include your litigation costs in this
total. While you do not have to report detailed cost information as in
the past, you should be able to explain the techniques by which you
derived you agency's total cost figures if the need arises.
(i) Before the close of each fiscal year, the DoD OFOISR will
dispatch the latest OSD Composite Rate Chart for military personnel to
DoD Components. This information may be used in computing military
personnel costs.
(ii) Army Activities should compute their civilian personnel costs
using rates from local Office of Personnel Management (OPM) Salary
Tables and shall add 16% for benefits.
(iii) Data captured on DD Form 2086, and DD Form 2086-1, shall be
summarized and used in computing total costs.
(iv) An overhead rate of 25% shall be added to all calculated costs
for supervision, space, and administrative support.
(j) ITEM 10 Authentication. The official that approves the agency's
report submission to DA will sign and date; enter typed name and duty
title; and provide both the agency's name and phone number for questions
about the report. The consolidated Annual FOIA Report will be made
available to the public in electronic format by DoD.
Sec. Appendix A to Part 518--References
(a) References.
(1) AR 1-20 Legislative Liaison;
(2) AR 20-1 Inspector General Activities and Procedures;
(3) AR 25-1 The Army Information Management;
(4) AR 25-11 Record Communications and the Privacy Communications
System;
(5) AR 25-400-2 The Army Records Information Management System
(ARIMS);
(6) AR 27-20 Claims;
(7) AR 36-2 Audit Reports and Follow-up;
(8) AR 40-66 Medical Record Administration and Health Care
Documentation;
(9) AR 40-68 Quality Assurance Administration;
(10) AR 40-400 Patient Administration;
(11) AR 195-2 Criminal Investigation Activities;
(12) AR 25-71 The Army Privacy Program;
(13) AR 360-1 The Army Public Affairs Program;
(14) AR 380-5 Department of the Army Information Security Program;
(15) AR 381-10 U.S. Army Intelligence Activities;
(16) AR 381-12 Subversion and Espionage Directed Against The U.S.
Army (SAEDA);
(17) AR 381-20 The Army Counterintelligence Program;
(18) AR 530-1 Operations Security (OPSEC);
(19) AR 600-85 Army Substance Abuse Program; and
(20) AR 608-18 The Army Family Advocacy Program.
(b) Related publications. A related publication is merely a source
of additional information. The user does not have to read it to
understand this part.
(1) AR 10-5 Headquarters, Department of the Army;
(2) AR 27-10 Military Justice;
(3) AR 27-40 Litigation;
(4) AR 27-60 Intellectual Property;
(5) AR 60-20 Army and Air Force Exchange Service Operating Policies
AFR 147-14;
(6) AR 70-31 Standards for Technical Reporting;
(7) AR 190-45 Law Enforcement Reporting;
(8) AR 380-10 Foreign Disclosure and Contacts with Foreign
Representatives;
(9) AR 381-45 Investigative Records Repository;
[[Page 175]]
(10) AR 385-40 Accident Reporting and Records;
(11) DA Pam 25-30 Consolidated Army Publications and Index Forms;
(12) DA Pam 25-51 The Army Privacy Program--System of Records
Notices and Exemption Rules;
(13) DoD Directive 5100.3 Support of the Headquarters of Combatant
and Subordinate Joint Commands, November 15, 1999;
(14) DoD Directive 5230.24 Distribution Statements on Technical
Documents, March 18, 1987;
(15) DoD Directive 5230.25 Withholding of Unclassified Technical
Data From Public Disclosure, November 6, 1984;
(16) DoD Directive 5230.9 Clearance of DoD Information for Public
Release, April 9, 1996;
(17) DoD Directive 5400.4 Provision of Information to Congress,
January 30, 1978;
(18) DoD Directive 5400.7 DoD Freedom of Information Act (FOIA)
Program, September 29, 1997;
(19) DoD Directive 5400.11 DOD Privacy Program, December 13, 1999;
(20) DoD Directive 7650.1 Government Accountability Office (GAO) and
Comptroller General Access to Records, September 11, 1997;
(21) DoD Directive 7650.2 Government Accountability Office Reviews
and Reports, July 13, 2000;
(22) DoD Directive 8910.1 Management and Control of Information
Requirements, June 11, 1993;
(23) DoD Federal Acquisition Regulation Supplement (DFARS), Part 227
Patents, Data, and Copyrights. See also 48 CFR part 227;
(24) Department of Defense Financial Management Regulation
(Reimbursable Operations, Policy and Procedures) Volume 11A, April 2003
authorized by DoD Instruction 7000.14, DoD Financial Management Policy
and Procedures, November 15, 1992;
(25) DoD Instruction 5400.10 OSD Implementation of DoD Freedom of
Information Act Program, January 24, 1991;
(26) DoD 5200.1-R Information Security Program, January 1997,
authorized by DoD Directive 5200.1, December 13, 1996, DoD Information
Security Program;
(27) DoD 5400.7-R DoD Freedom of Information Act Program, September
4, 1998;
(28) DoD 5400.11-R Department of Defense Privacy Program, August
1983, authorized by DoD Directive 5400.11, December 13, 1999, DoD
Privacy Program;
(29) Executive Order 12600 Predisclosure Notification Procedures for
Confidential Commercial Information, June 23, 1987, 52 FR 23781;
(30) Public Law 86-36 National Security Information Exemption,
Codified at 50 U.S.C. 402, as amended;
(31) Public Law 104-191 Health Insurance Portability and
Accountability Act of 1996, Codified at 42 U.S.C. 1171-1179, as amended;
(32) Section 822 of the National Defense Authorization Act for FY 90
and 91 (Pub. L. 101-189, November 29, 1989: 103 Stat. 1382, 1503);
(33) 5 U.S.C. 551-559, Administrative Procedures Act;
(34) 5 U.S.C. 552, as amended: public information; agency rules,
opinions, orders, records, and proceedings. (FOIA);
(35) 5 U.S.C. 552a, as amended: records about individuals, (PA of
1974);
(36) 10 U.S.C. 128, Physical Protection of Special Nuclear Material:
Limitation on Dissemination of Unclassified Information;
(37) 10 U.S.C. 130, Authority to Withhold from Public Disclosure
Certain Technical Data;
(38) 10 U.S.C. 130(b), Personnel in Overseas, Sensitive, or
Routinely Deployable Units: nondisclosure of personally identifying
information;
(39) 10 U.S.C. 1102(f), Confidentiality of Medical Quality Assurance
Records: Qualified Immunity for Participants;
(40) 10 U.S.C. 2305(g) Prohibition on Release of Contractor
Proposals;
(41) 10 U.S.C. 2320-2321, Rights in Technical Data;
(42) 10 U.S.C. 2328, Release of Technical Data under Freedom of
Information Act: Recovery of Costs;
(43) 17 U.S.C. 106, Exclusive Rights in Copyrighted Works;
(44) 18 U.S.C. 798, Disclosure of Classified Information;
(45) 18 U.S.C. 3500, The Demands for Production of Statements and
Reports of Witnesses (The Jencks Act);
(46) 31 U.S.C. 3717, Interest and Penalty on Claims;
(47) 32 CFR part 518, The Army FOIA Program;
(48) 35 U.S.C. 181-188, Secrecy of Certain Inventions and Filing of
Application in Foreign Country;
(49) 41 U.S.C. 423, Restrictions on Disclosing and Obtaining
Contractor Bid or Proposal Information or Source Selection Information;
(50) 42 U.S.C. 2162, Classification and Declassification of
Restricted Data;
(51) 44 U.S.C. 3301-3324, Disposal of Records;
(52) 45 CFR part 164, Security and Privacy of Individually
Identifiable Health Information; and
(53) 50 U.S.C. 403-3, War and National Defense, Protection of
Intelligence Sources and Methods.
Sec. Appendix B to Part 518--Addressing FOIA Requests
(a) General. Army records may be requested from those Army officials
who are listed in 32 CFR part 518 (see appendix A). Contact the
[[Page 176]]
DA FOIA/PA Office, to coordinate the referral of requests if there is
uncertainty as to which Army activity may have the records. Send
requests to particular installations or organizations as follows:
(1) Current publications and records of DA field commands,
installations, and organizations. See also: http://books.army.mil/.
(2) Send the request to the commander of the command, installation,
or organization, to the attention of the FOIA Official.
(3) Consult AR 25-400-2 (ARIMS) for more detailed listings of all
record categories kept in DA offices.
(4) Contact the installation or organization public affairs officer
for help if you cannot determine the official within a specific
organization to whom your request should be addressed.
(b) Department of the Army publications. Send requests for current
administrative, training, technical, and supply publications to the
National Technical Information Service, U.S. Department of Commerce,
5285 Port Royal Road, Springfield, VA 22161. NTIS handles general public
requests for unclassified, uncopyrighted, and nondistribution-restricted
Army publications not sold through the Superintendent of Documents.
(c) Military personnel records. Send requests for military personnel
records of information as follows:
(1) Army Reserve personnel not on active duty and retired
personnel--Commander, U.S. Army Human Resources Command, St. Louis, 1
Reserve Way, St. Louis, MO 63132-5200.
(2) Army officer personnel discharged or deceased after July 1, 1917
and Army enlisted personnel discharged or deceased after November 1,
1912--Director, National Personnel Records Center, 9700 Page Ave., St.
Louis, MO 63132-5100.
(3) Army personnel separated before the dates specified in paragraph
(2), above--Old Military and Civilian Records Unit (Archives 1),
National Archives and Records Administration, Washington, DC 20408-0001.
(4) Army National Guard officer personnel--Chief, National Guard
Bureau. Army National Guard enlisted personnel--Adjutant General of the
proper State.
(5) Active duty commissioned and warrant officer personnel--
Commander, U.S. Army Human Resources Command, ATTN: AHRC-FOI,
Alexandria, VA 22332-0404. Active duty enlisted personnel--Commander,
U.S. Army Enlisted Records and Evaluation Center, ATTN: PCRE-RP, 8899
East 56th Street, Indianapolis, IN 46249-5301.
(d) Medical records.
(1) Medical records of non-active duty military personnel. Use the
same addresses as for military personnel records.
(2) Medical records of military personnel on active duty. Address
the medical treatment facility where the records are kept. If necessary
request locator service.
(3) Medical records of civilian employees and all dependents.
Address the medical treatment facility where the records are kept. If
the records have been retired, send requests to the Director, National
Personnel Records Center, Civilian Records Facility, 111 Winnebago St.,
St. Louis, MO 63118-4199.
(e) Legal records.
(1) Records of general courts-martial and special courts-martial in
which bad conduct discharge was approved. For cases not yet forwarded
for appellate review, apply to the staff judge advocate of the command
having jurisdiction over the case. For cases forwarded for appellate
review and for old cases, apply to the U.S. Army Legal Services Agency,
ATTN: JALS-CCO, 901 North Stuart Street, Arlington, VA 22203.
(2) Records of special courts-martial not involving a bad conduct
discharge. These records are kept for 10 years after completion of the
case. If the case was completed within the past three years, apply to
the staff judge advocate of the headquarters where it was reviewed. If
the case was completed from 3 to 10 years ago, apply to the National
Personnel Records Center (Military Records), 9700 Page Ave., St. Louis,
MO 63132-5100. If the case was completed more than 10 years ago, the
only evidence of conviction is the special courts-martial order in the
person's permanent records.
(3) Records of summary courts-martial. Locally maintained records
are retired 3 years after action of the supervisory authority. Request
records of cases less than 3 years old from the staff judge advocate of
the headquarters where the case was reviewed. After 10 years, the only
evidence of conviction is the summary courts-martial order in the
person's permanent records.
(4) Requests submitted under paragraphs (e) (2) and (3), of this
appendix. These requests will be processed in accordance with subpart E
of this part. The IDA is The Judge Advocate General, HQDA (DAJA-CL),
Washington, DC 20310-2200.
(5) Administrative settlement of claims. Apply to the Chief, U.S.
Army Claims Service, ATTN: JACS-TC, Building 4411, Llewellyn Avenue,
Fort George G. Meade, MD 20755-5360.
(6) Records involving debarred or suspended contractors. Apply to
U.S. Army Legal Services Agency (JALS-PF), 901 North Stewart Street,
Arlington, VA 22203.
(7) Records of all other legal matters (other than records kept by a
command, installation, or organization staff judge advocate). Apply to
HQDA (DAJA-AL), Washington, DC 20310-2200.
(f) Civil works program records. Civil works records include those
relating to construction, operation, and maintenance for the improvement
of rivers, harbors, and waterways
[[Page 177]]
for navigation, flood control, and related purposes, including shore
protection work by the Army. Apply to the proper division or district
office of the Corps of Engineers. If necessary to determine the proper
office, contact the Commander, U.S. Army Corps of Engineers, 20
Massachusetts Avenue, ATTN: CECC-K, Washington, DC 20314-1000.
(g) Civilian personnel records. Send requests for personnel records
of current civilian employees to the employing installation. Send
requests for personnel records of former civilian employees to the
Director, National Personnel Records Center, Civilian Records Facility,
111 Winnebago St., St. Louis, MO 63118-4199.
(h) Procurement records. Send requests for information about
procurement activities to the contracting officer concerned or, if not
feasible, to the procuring activity. If the contracting officer or
procuring activity is not known, send inquiries as follows:
(1) Army Materiel Command procurement: Commander, U.S. Army Materiel
Command, ATTN: AMCID-F, 5001 Eisenhower Ave., Alexandria, VA 22333-0001.
(2) Corps of Engineers procurement: Commander, U.S. Army Corps of
Engineers, 20 Massachusetts Avenue, ATTN: CECC-K, Washington, DC 20314-
1000.
(3) All other procurement: HQDA (DAJA-KL), 2200 Army Pentagon,
Washington, DC 20310-2200.
(i) Criminal investigation files. Send requests involving criminal
investigation files to the Commander, U.S. Army Criminal Investigation
Command, ATTN: CICR-FP, 6010 6th St., Bldg. 1465, Ft. Belvoir,
VA 22060-5585. Only the Commanding General, USACIDC, can release any
USACIDC-originated criminal investigation file.
(j) Personnel security investigation files and general Army
intelligence records. Send requests for personnel security investigation
files, intelligence investigation and security records, and records of
other Army intelligence matters to the Commander, U.S. Army Intelligence
and Security Command, ATTN: IAMG-CIC-FOI/PO, 4552 Pike Road, Fort George
G. Meade, MD 20755-5995.
(k) Inspector General records. Send requests involving records
within the Inspector General system to HQDA (SAIG-ZXL), 1700 Army
Pentagon, Washington, DC 20310-1700. AR 20-1 governs such records.
(l) Army records in Government records depositories. Non-current
Army records are in the National Archives of the United States,
Washington, DC 20408-0001; in Federal Records Centers of NARA; and in
other records depositories. Requesters must write directly to the heads
of these depositories for copies of such records. A list of pertinent
records depositories is published in AR 25-400-2, table 10-1.
PART 525_ENTRY AUTHORIZATION REGULATION FOR KWAJALEIN MISSILE RANGE--Table of Contents
Sec.
525.1 General.
525.2 Background and authority.
525.3 Criteria.
525.4 Entry authorization (policy).
525.5 Entry authorization (procedure).
Authority: 44 U.S.C. 1681, 50 U.S.C. 797, 18 U.S.C. 1001, and E.O.
11021.
Source: 48 FR 34028, July 27, 1983, unless otherwise noted.
Sec. 525.1 General.
(a) Purpose. This regulation prescribes policies and procedures
governing entry of persons, ships, and aircraft into the Kwajalein
Missile Range (KMR), Kwajalein Atoll, Marshall Islands.
(b) Scope. (1) This regulation is applicable to all persons, ships
and aircraft desiring entry into KMR.
(2) The entry authorizations issued under this authority are limited
to KMR and do not apply to entry to any other areas of the Marshall
Islands.
(3) In addition to the controls covered by this regulation movement
within the Kwajalein Missile Range, the territorial sea thereof and
airspace above, is subject to local control by the Commander, Kwajalein
Missile Range, and as installation commander.
(4) This regulation is not applicable to entry authorized by the
President of the United States pursuant to the United Nations (U.N.)
Charter and to Article 13 of the Trusteeship Agreement for the Former
Japanese Mandated Islands.
(c) Explanation of terms--(1) Department of Defense. A department of
the executive branch of the U.S. Government which includes the
Departments of the Army, the Navy, and the Air Force.
(2) Entry Authorization. Authorization by designated authority for a
person, a ship, or an aircraft to enter Kwajalein Missile Range, the
surrounding territorial sea, and the airspace above.
(3) National Range Commander. The Commander, Ballistic Missile
Defense Systems Command, is the National Range Commander.
[[Page 178]]
Address: National Range Commander, Kwajalein Missile Range,
Ballistic Missile Defense Systems Command, ATTN: BDMSC-R, P.O. Box 1500,
Huntsville, Alabama 35807.
Electrical Address: CDRBMDSCOM HUNTSVILLE AL//BMDSC-R//.
(4) Commander. KMR. The Commander of the Kwajalein Missile Range is
located at Kwajalein Island, Republic of the Marshall Islands.
Address: Commander, Kwajalein Missile Range, P.O. Box 26, APO San
Francisco 96555.
Electrical Address: CDRKMR MI //BMDSC-RK//
(5) Excluded person. A person who has been notified by the National
Range Commander or the Commander, KMR, that authority for said person to
enter Kwajalein Missile Range or to remain in Kwajalein Missile Range
has been denied or revoked.
(6) Unauthorized person. A person who does not hold a currently
valid entry authorization for the Kwajalein Missile Range and does not
possess entry rights under authority of paragraph 4-1.a.
(7) Aliens. Persons who are neither citizens of, nor nationals of,
nor aliens to the United States of America.
(8) Permanent resident aliens. Persons who are not citizens of the
United States of America but who have entered the United States under an
immigrant quota.
(9) Military installation. A military (Army, Navy, Air Force, Marine
Corps, and/or Coast Guard) activity ashore, having a commanding officer,
and located in an area having fixed boundaries, within which all persons
are subject to military control and to the immediate authority of a
commanding officer.
(10) Public ship or aircraft. A ship, boat, or aircraft owned by or
belonging to a Government and not engaged in commercial activity.
(11) Kwajalein Missile Range. Kwajalein Missile Range is defined as
all those defense sites in the Kwajalein Atoll, Marshall Islands,
including airspace and adjacent territorial waters, to which the United
States Government has exclusive rights and entry control by agreement
with the Trust Territory of the Pacific Islands and the Republic of the
Marshall Islands.
(12) Territorial waters. In accordance with title 19, chapter 3,
section 101 of the Code of the Trust Territory of the Pacific Islands
territorial waters mean, ``that part of the sea comprehended within the
envelope of all arcs of circles having a radius of three marine miles
drawn from all points of the barrier reef, fringing reef, or other reef
system of the Trust Territory, measured from the low water line, or, in
the absence of such a reef system, the distance to be measured from the
low water line of any island, islet, reef, or rocks within the
jurisdiction of the Trust Territory.''
(13) Kwajalein Missile Range Airspace. The air lying above the
Kwajalein Atoll, including that above the territorial waters.
(14) Trust Territory Republic of the Marshall Islands Registry.
Registration of a ship or aircraft in accordance with the laws of the
Trust Territory of the Pacific Islands or the Republic of the Marshall
Islands.
(15) U.S. Registry. Registration of a ship or aircraft in accordance
with the laws and regulations of the United States.
(16) U.S. Armed Forces. Military personnel of the Department of
Defense and the United States Coast Guard.
(17) Principal. A resident of Kwajalein Missile Range who is
authorized to have his or her dependent(s) reside or visit with him
(her) on Kwajalein Missile Range.
(18) Dependent. (i) Spouse of principal.
(ii) Unmarried child of principal less than 21 years of age.
(iii) Sponsored individual meeting the dependency criteria of
section 152, Internal Revenue Code (26 U.S.C. 152), and approved by the
Commander, Kwajalein Missile Range.
Sec. 525.2 Background and authority.
(a) Background. (1) Certain areas, due to their strategic nature or
for purposes of defense, have been subjected to restrictions regarding
the free entry of persons, ships, and aircraft. Free entry into the
areas listed and defined in this regulation, and military installations
contiguous to or within the boundaries of defense site areas, is subject
to control as provided for in the Executive
[[Page 179]]
Order 11021 of May 7, 1962 and Departments of Interior and Defense
Agreement effective July 1, 1963, or other regulations. Such
restrictions are imposed for defense purposes because of the unique
strategic nature of the area and for the protection of the United States
Government military bases, stations, facilities, and other
installations, and the personnel, property, and equipment assigned to or
located therein. Persons, ships, and aircraft are excluded from KMR
unless and until they are granted permission to enter under applicable
regulations.
(2) The control of entry into or movement within KMR by persons,
ships, or aircraft will be exercised so as to protect fully the physical
security of, and insure the full effectiveness of, bases, stations,
facilities, other installations, and individuals within KMR. However,
unnecessary interference with the free movement of persons, ships, and
aircraft is to be avoided.
(3) This regulation will be administered to provide the prompt
processing of all applications and to insure uniformity of
interpretation and application insofar as changing conditions permit.
(4) In cases of doubt, the determination will be made in favor of
the course of action which will best serve the interests of the United
States and national defense as distinguished from the private interests
of an individual or group.
(b) Authority. (1) The Trust Territory of the Pacific Islands is a
strategic area administered by the United States under the provisions of
the Trusteeship Agreement for the Former Japanese Mandated Islands,
approved by the United Nations April 2, 1947. Congress, by 48 U.S.C.
Sec. 1681, gave responsibility for this area to the President. By
Executive Order 11021, the President delegated this authority to the
Secretary of Interior. By agreement between the Secretary of Interior
and Secretary of Defense, the Navy became responsible for all entry
control July 1, 1963. With approval of the Secretary of Defense and
Director of the Office of Territories, the authority to control entry
into KMR was transferred to the Army in July of 1964.
(2) The authority of the Department of the Army to control entry of
persons, ships, and aircraft into Kwajalein Missile Range is exercised
through the Commander, Ballistic Missile Defense Systems Command, who is
the National Range Commander.
(3) Penalties are provided by law for:
(i) Violation of regulations imposed for the protection or security
of military or naval aircraft, airports, air facilities, vessels,
harbors, ports, piers, waterfront facilities, bases, forts, posts,
laboratories, stations, vehicles, equipment, explosives, or other
property or places subject to the jurisdiction of, administration of, or
in the custody of the Department of Defense (sec. 21 of the Internal
Security Act of 1950 (50 U.S.C. 797) and Department of Defense Directive
5200.8 of 29 July 1980.
(ii) Knowingly and willfully making a false or misleading statement
or representation in any matter within the jurisdiction of any
department or agency of the United States (18 U.S.C. 1001).
Sec. 525.3 Criteria.
(a) General. (1) Entry authorizations may be issued only after the
National Range Commander, the Commander, KMR, or a duly authorized
subordinate has determined that the presence of the person, ship, or
aircraft will not, under existing or reasonably forseeable future
conditions, endanger, place an undue burden upon, or otherwise
jeopardize the efficiency, capability or effectiveness of any military
installation located within Kwajalein Missile Range or areas contiguous
thereto. Factors to be considered shall include, but not be limited to,
the true purpose of the entry, the possible burdens or threats to the
defense facilities which the presence of the ship, aircraft, or the
individual or individuals involved impose or might reasonably be
expected to impose on those islands in the Kwajalein Atoll under U.S.
Army jurisdiction.
(2) Request for entry authorizations will be evaluated and adjudged
as to whether the entry at the time and for the purpose stated will or
will not be inimical to the purposes of U.S. national defense.
[[Page 180]]
(b) Aliens and permanent resident aliens. (1) Entry of aliens for
employment or residence (except as specified in paragraph 3-2.b.) in an
area entirely within the borders of Kwajalein Missile Range is not
authorized except when such entry would serve the interests of the U.S.
Government, and then only for specified periods and under prescribed
conditions. Entry application shall include the name and nationality of
the person desiring entry.
(2) Alien and immigrant spouses and dependents of U.S. citizen
sponsors or principals assigned to Kwajalein Missile Range may be
granted entry authorization by the National Range Commander so long as
U.S. sponsor or principal remains on duty or resides within Kwajalein
Missile Range.
(c) Excluded persons. Excluded persons, as defined in 1-3.e., are
normally prohibited from entering Kwajalein Missile Range. Excluded
persons may enter Kwajalein Missile Range only when a bona fide
emergency exists and the Commander, Kwajalein Missile Range, grants
permission for them to enter or transit the Kwajalein Missile Range.
While they are within the jurisdiction of the Commander, Kwajalein
Missile Range, they will be subject to such restrictions and regulations
as he may impose.
(d) Unauthorized persons. Persons not authorized to enter Kwajalein
will not normally be allowed to debark from authorized ships or aircraft
at Kwajalein Island or other islands in the Kwajalein Atoll to which the
U.S. Government has lease rights, except that continuing aircraft
passengers may be allowed at the discretion of the Commander, Kwajalein
Missile Range, to debark during aircraft ground time to remain within
specified portions of the terminal building designated by the Commander,
Kwajalein Missile Range. In emergency situations, entry of unauthorized
personnel may be granted by the Commander, Kwajalein Missile Range.
(e) Entrance to other areas of the Trust Territory. No person,
unless a citizen, national, or permanent resident alien of the Marshall
Islands, will be permitted to debark at Kwajalein Missile Range for the
purpose of transiting to areas under the jurisdiction of the Republic of
the Marshall Islands without possessing a permit issued by its Chief of
Immigration.
Address: Chief of Immigration, Office of the Attorney General, Republic
of the Marshall Islands, Majuro, MI 96960.
(f) Unauthorized marine vessels and aircraft. No unauthorized marine
vessel or aircraft shall enter Kwajalein Missile Range unless a bona
fide emergency exists and the Commander, Kwajalein Missile Range, has
granted such permission. The Commander, Kwajalein Missile Range, shall
use all means at his disposal to prevent unauthorized vessels and
aircraft from entering Kwajalein Missile Range. Unauthorized marine
vessels and aircraft will be seized for prosecution along with the crew,
passengers, and cargo.
(g) Military areas. Entries authorized under this instruction do not
restrict the authority of the Commander, Kwajalein Missile Range, to
impose and enforce proper regulations restricting movement into or
within portions of Kwajalein Missile Range reserved for military
operations.
(h) Waivers. No one except the National Range Commander, or his duly
authorized representative, has authority to waive the requirements of
this regulation. Any waiver shall be in writing and signed.
(i) Security clearances. Organizations, including U.S. Government
contractors, responsible for the assignment of personnel to KMR on
either a temporary or permanent basis will comply with security
clearance requirements for the assignment. A copy of the security
clearance notification will be forwarded to Cdr, BMDSCOM, ATTN: BMDSC-
AU.
Sec. 525.4 Entry authorization (policy).
(a) Personnel. (1) Persons in the following categories may enter
Kwajalein Missile Range without obtaining specific entry authorization
provided the Commander, Kwajalein Missile Range, is notified of
impending entry 14 days prior to entry date:
(i) Personnel being assigned to Kwajalein Missile Range as
permanent-party and traveling on official orders.
[[Page 181]]
(ii) Personnel being temporarily assigned to Kwajalein Missile Range
and who are traveling on official orders.
(iii) Dependents of permanent-party personnel who are accompanying
their sponsors and are traveling on official orders.
(iv) Crew members on ships and aircraft authorized to enter
Kwajalein Missile Range.
(2) Persons in the following categories will submit request for
entry authorization to the Commander, Kwajalein Missile Range, ATTN:
BMDSC-RKE-S:
(i) Dependents of KMR-based permanent-party personnel for the
purpose of joining their sponsors (already stationed at KMR) on either a
permanent or temporary basis.
(ii) Citizens, nationals and permanent resident aliens of the
Republic of the Marshall Islands except those who deplaned for the
purpose of transiting Kwajalein Defense Site.
(iii) Citizens of the Trust Territory of the Pacific Islands.
(iv) U.S. citizen employees and officials of the Trust Territory of
the Pacific Islands.
(3) All other personnel, except news media representatives, will
submit request for entry authorization to the National Range Commander,
BMDSCOM, ATTN: BMDSC-R (electrical address: CDRBMDSCOM HUNTSVILLE AL //
BMDSC-RA//).
(4) All requests and notifications will include the following data
(as applicable):
(i) Full name(s).
(ii) Citizenship.
(iii) Organization.
(iv) Purpose of entry.
(v) Point of contact at Kwajalein Missile Range.
(vi) Inclusive dates of stay.
(vii) Return address.
(viii) Proof of security clearance (if access to classified
information is required).
(5) News media representatives require authority from the National
Range Commander to visit Kwajalein Missile Range (news media
representatives wishing to transit Kwajalein Island to visit any island
not within the Kwajalein Missile Range must obtain entry authorization
from the Republic of the Marshall Islands and present same to the air
carrier at the point of departure to Kwajalein Island). Requests should
be addressed to the National Range Commander, BMDSCOM, ATTN: BMDSC-S
(electrical address: CDRBMDSCOM HUNTSVILLE AL//BMDSC-S//) and contain
the following information:
(i) Name.
(ii) Date and place of birth.
(iii) Citizenship.
(iv) Organization(s) represented.
(v) Objective(s) of visit.
(vi) Desired and alternative arrival and departure dates.
(vii) Address(es) and telephone number(s) for additional information
and/or reply.
(b) Ship. (1) Ships or other marine vessels in the following
categories, except those which have been denied entry or have had a
prior entry authorization revoked, may enter the Kwajalein Missile Range
territorial waters upon request to and approval of the Commander,
Kwajalein Missile Range:
(i) U.S. private ships which are:
(A) Under charter to the Military Sealift Command, or
(B) Employed exclusively in support of and in connection with a
Department of Defense construction, maintenance, or repair contract.
(ii) Trust Territory of the Pacific Islands/RMI ships which have
been approved by the resident representative on Kwajalein.
(iii) Any ship in distress.
(iv) U.S. public ships which are providing a service to the
Kwajalein Atoll in accordance with their agency responsibilities.
(2) All other ships or marine vessels must obtain an entry
authorization from the National Range Commander before entering the
Kwajalein Atoll territorial sea. The entry authorization application
should reach the National Range Commander at least 14 days prior to the
desired entry date and should include the following information:
(i) Name of ship.
(ii) Place of registry and registry number.
(iii) Name, nationality, and address of operator.
[[Page 182]]
(iv) Name, nationality, and address of owner.
(v) Gross tonnage of ship.
(vi) Nationality and numbers of officers and crew (include crew list
when practicable).
(vii) Number of passengers (include list when practicable).
(viii) Last port of call prior to entry into area for which
clearance is requested.
(ix) Purpose of visit.
(x) Proposed date of entry and estimated duration of stay.
(xi) Whether ship is equipped with firearms or photographic
equipment.
(xii) Whether crew or passengers have in their possession firearms
or cameras.
(3) Entry authorizations may be granted for either single or
multiple entries.
(4) Captains of ships and/or marine vessels planning to enter
Kwajalein Missile Range shall not knowingly permit excluded persons to
board their vessels.
(5) U.S. public ships which are authorized to enter defense areas by
the controlling Defense Department agency may enter the Kwajalein Atoll
territorial sea without the specific approval of either the National
Range Commander or the Commander, KMR, provided that the Commander, KMR,
is notified as far in advance of the impending entry as is consistent
with the security requirements pertaining to such movement.
(c) Aircraft. (1) Aircraft in the following categories, except those
aircraft which have been denied entry or have had a prior entry
authorization revoked, may enter Kwajalein Atoll airspace upon request
to and approval of the Commander, KMR:
(i) U.S. private aircraft which are under charter to the Military
Airlift Command.
(ii) Public aircraft of the Trust Territory of the Pacific Islands/
RMI which have been approved by the resident representative on
Kwajalein.
(iii) Private aircraft registered with and approved by the
Commander, KMR, which are based on Kwajalein Island.
(iv) Any aircraft in distress.
(v) Private aircraft operated by a common carrier which is providing
scheduled air service to or through the Kwajalein Atoll under a current
license issued by the Department of the Army.
(vi) U.S. public aircraft which are providing a service to the
Kwajalein Atoll in accordance with their agency responsibilities.
(2) All aircraft, except those categorized in paragraph 4-3.a., must
obtain an entry authorization from the National Range Commander before
entering Kwajalein Atoll airspace. The entry authorization application
should reach the National Range Commander at least 14 days prior to the
desired entry date and should include the following information:
(i) Type and serial number of aircraft.
(ii) Nationality and name of registered owner.
(iii) Name and rank of senior pilot.
(iv) Nationality and number of crew (include crew list when
practicable).
(v) Number of passengers (include list when practicable).
(vi) Purpose of flight.
(vii) Plan of flight route, including the point of origin of flight
and its designation and estimated date and times of arrival and
departure of airspace covered by this procedure.
(viii) Radio call signs of aircraft and radio frequencies available.
(ix) Whether aircraft is equipped with firearms or photographic
equipment.
(x) Whether crew or passengers have in their possession firearms or
cameras.
(3) Entry authorizations may be granted for either single or
multiple entries.
(4) Captains of aircraft planning to enter Kwajalein Missile Range
airspace shall not knowingly permit excluded persons to board their
aircraft.
(5) U.S. public aircraft which are authorized to enter defense areas
by the controlling Defense Department agency may enter the Kwajalein
Atoll airspace with the specific approval of either the National Range
Commander or the Commander, KMR, provided that the Commander, KMR, is
notified as far in advance of the impending entry as is consistent with
the security requirement pertaining to such movements.
[[Page 183]]
Sec. 525.5 Entry authorization (procedure).
(a) Processing. (1) Upon receipt of an application, the appropriate
officer (either the National Range Commander, the Commander, Kwajalein
Missile Range or the designated representative) shall take the following
actions:
(i) Determine that the entry of the applicant is, or is not, in
accordance with the criteria set forth in chapter 3. After having made a
determination, the reviewing authority shall either:
(A) Issue an entry authorization as requested, or with modifications
as circumstances require; or
(B) Deny the request and advise the applicant of his/her right to
appeal in accordance with the provisions of paragraph 5-2.
(ii) If the reviewing authority feels that additional information is
required before reaching a decision, the reviewing authority will
request that information from the applicant and then proceed as in
paragraph 5-1.a.(1).
(iii) If, after having obtained all pertinent information, the
reviewing authority cannot reach a decision, he/she will forward the
application to the next higher headquarters. A statement containing the
following information shall accompany the application:
(A) A summary of the investigation conducted by the reviewing
organization.
(B) The reason the application is being forwarded.
(C) Appropriate comments and/or recommendations.
(2) All applicants will be kept fully informed of actions/decisions
pertaining to his/her application. Normally a response will be forwarded
to the applicant within ten working days after receipt of an
application. When the National Range Commander responds to an
application, he/she will send a copy of that response to the Commander,
KMR. When the Commander, Kwajalein Missile Range, responds to an
application, and the National Range Commander has an interest in the
visit, the Commander, KMR, will concurrently send a copy of that
response to the National Range Commander.
(3) Entry authorizations shall state the purpose for which the entry
is authorized and such other information and conditions as are pertinent
to the particular authorization.
(b) Revocations. (1) Entry authorizations may be revoked by the
National Range Commander or the Commander, Kwajalein Missile Range, for
misconduct, or termination of status, or upon being advised of the
discovery of information which would have been grounds for denial of the
initial request. Such a revocation will be confirmed in writing to the
holder of an entry authorization. When an entry authorization is
revoked, a one-way permit will be normally issued as appropriate, to
permit the ship, aircraft, or person to depart the area.
(2) When Commander, Kwajalein Missile Range revokes an entry
authorization, he shall forward a copy of such revocation with
supporting documentation to the National Range Commander.
(c) Appeals. (1) Appeals from entry denial or revocation by
Commander, Kwajalein Missile Range will be filed with the National Range
Commander. An appeal shall contain a complete statement of the purpose
of the proposed entry and a statement or reasons why the entry should be
authorized, or why revocation of entry authorization should not be
enforced.
(2) Final appeal letters will be forwarded promptly by the National
Range Commander to the BMD Program Manager with an indorsement setting
forth in detail the facts and circumstances surrounding the action
taken.
(d) Renewals. Entry authorizations having been granted and utilized
may be extended or renewed upon request at the expiration of the period
for which the entry was originally authorized or extended provided the
justification for remaining in the area or for making a reentry meets
the criteria set forth in this procedure. It shall be the responsibility
of every applicant to depart Kwajalein Missile Range upon expiration of
the time prescribed in the entry authorization, unless such
authorization has been extended or renewed. Failure to comply herewith
will be considered as evidence or violation of this procedure and may
result in denial of future authorizations.
[[Page 184]]
SUBCHAPTER B_CLAIMS AND ACCOUNTS
PART 534_MILITARY COURT FEES--Table of Contents
Sec.
534.1 General.
534.2 Allowable expenses for reporters.
534.3 Allowable expenses for witnesses.
534.4 Other fees.
Authority: Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012.
Cross Reference: General Accounting Office, see 4 CFR chapter I.
Source: 26 FR 9989, Oct. 25, 1961, unless otherwise noted.
Sec. 534.1 General.
(a) Applicability. This part applies to court reporters and
interpreters appointed under the Uniform Code of Military Justice,
Article 28 (10 U.S.C. 828), and witnesses both in Government employ and
those not in Government employ when subpoenaed to appear before a court.
(b) Use of term ``court''. The term ``court'' as used in this part
will be construed to include court-martial, court of inquiry, military
commission, or retiring board. ``Military commission'' includes any
United States tribunal, by whatever name described, convened in the
exercise of military government, martial law, or the laws of war.
Sec. 534.2 Allowable expenses for reporters.
(a) General. Reporters appointed under the Uniform Code of Military
Justice, Article 28, are entitled to payment for their services in such
capacity at the rates specified in paragraphs (b) through (i) of this
section, or at such lower rates as may be stated in the appointing
instrument.
(b) Per diem pay. A reporter is entitled to a per diem payment of
not to exceed $5 for each day or fraction thereof in attendance at
court. Only one such payment is authorized for any 1 day even if the
reporter attends two or more courts. For the purpose of this payment,
the day ends at midnight and any fraction will be considered a whole
day.
(c) Hourly pay. A reporter is entitled to an hourly payment of not
to exceed 50 cents for each hour, or fractional part equal to or greater
than one-half hour, actually spent in court during the trial or hearing.
A fractional part of an hour, less than one-half hour, will be
disregarded, except that if the total time in attendance in one day or
at one court in one day is less than 1 hour, such time will be
considered as 1 hour. Time will be computed separately for each day if
only one court is attended in such day. If more than one court is
attended in 1 day, time in attendance at each court will be computed
separately. The hourly pay is in addition to the per diem prescribed in
paragraph (b) of this section.
(d) Piece-work pay--(1) Rates. In addition to per diem and hourly
pay prescribed in paragraphs (b) and (c) of this section, a reporter
will be paid on a piece-work basis for transcribing notes and copy work
based on the following rates:
(i) Transcribing notes and making that portion of the original
record which is required to be typewritten--25 cents for each 100 words.
(ii) Each carbon copy of the record when authorized by the convening
authority--10 cents for each 100 words.
(iii) Copying papers material to the inquiry--15 cents for each 100
words.
(iv) Each carbon copy of the papers referred to in paragraph
(d)(1)(iii) of this section when ordered by the court for its use--2
cents for each 100 words.
(2) Counting number of words. The certifying officer may determine
the total number of words by counting the words on a sufficient number
of pages to arrive at a fair average of words per page and multiplying
such average by the total number of pages. Abbreviations ``Q'' and ``A''
for ``Questions'' and ``Answer'' and all dates such as ``25th'' and
``1957'' will each be counted as one word. Punctuation marks will not be
counted as words.
(e) Mileage. A reporter is entitled to 8 cents a mile for travel
from his home or usual place of employment to the court and for his
return journey, computed on the basis of the Rand McNally
[[Page 185]]
Standard Highway Mileage Guide. Mileage is not authorized for return
trips each night unless the sessions of the court are held on
nonconsecutive days. The fact that a reporter may serve two or more
courts in the same day does not warrant a duplication of his mileage
allowance.
(f) Allowance in lieu of subsistence--(1) General. When the official
of the court having control in such matters keeps the reporter at his
own expense away from his usual place of employment for 24 hours or more
on public business referred to the court, a per diem allowance of not to
exceed $4 in lieu of subsistence will be paid to the reporter for
himself. A like allowance when ordered by the court will be paid to the
reporter for each necessary assistant. The fact that a reporter returns
each night to his home does not preclude the view that he is kept away
from his usual place of employment for 24 hours. Service as reporter
before two or more courts in the same day does not warrant duplication
of the per diem allowance in lieu of subsistence.
(2) Computation. The time for which the per diem allowance for
expenses is to be paid will be computed in the manner prescribed in
Sec. 534.3(b)(3) for a civilian witness not in Government employ.
(g) Allowance for constructive attendance. A reporter duly employed
but who after arrival at court performs no service because of
adjournment is entitled to mileage; to a day's pay as prescribed in
paragraph (c) of this section; and also to the per diem allowance
prescribed in paragraph (f) of this section if kept away from his usual
place of employment for 24 hours.
(h) Detail of enlisted members. Enlisted members may be detailed to
serve as stenographic reporters for military courts, boards, and
commissions, but will receive no extra pay for such service.
(i) Persons receiving pay from Government. Compensation for clerical
duties performed for a court will not be paid to a person who is in the
pay of the Government, except retired military members to the extent
permitted under the dual compensation laws.
Sec. 534.3 Allowable expenses for witnesses.
(a) Military members--(1) On active duty. Members in the military
service, on active duty, when required to appear as witnesses before
courts will receive the appropriate travel and transportation allowances
prescribed in chapter 4, Joint Travel Regulations.
(2) Retired members. Retired military members, not on active duty,
when called as witnesses (other than expert witnesses), are entitled for
their services as such to the mileage and other fees prescribed in
paragraph (b)(3) of this section, for civilian witnesses not in
Government employ.
(b) Civilians--(1) General. (i) Persons not subject to military law
when called as witnesses are entitled to the fees and mileage allowed to
wintesses attending courts of the United States.
(Article 47, Uniform Code of Military Justice (10 U.S.C. 847; 1 Comp.
Gen. 347))
(ii) When the court is sitting in a foreign country, the oversea
commander within whose command the court is convened will fix fees and
allowances to be paid to witnesses, not in excess of maximum rates
permitted to witnesses attending the courts of the United States or the
courts of the foreign country, whichever rates may be higher.
(2) In Government employ. Any officer or employee of the United
States or any agency thereof, summoned as a witness on behalf of the
United States, shall be paid his necessary expenses incident to travel
by common carrier, or, if travel is made by privately owned automobile,
mileage at a rate not to exceed 10 cents per mile, together with a per
diem allowance not to exceed the rate of $12 a day.
(62 Stat. 950, 63 Stat. 103, 704, 69 Stat. 394; 28 U.S.C. 1823(a))
(3) Not in Government employ--(i) Excluding Alaska and Canal Zone. A
witness attending in any court of the United States or before a United
States commissioner or person taking his deposition pursuant to any
order of the court of the United States, will receive $4 for each day's
attendance and for the time necessarily occupied in going to
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and returning from the same, and 8 cents per mile for going from and
returning to his place of residence. Witnesses who are not salaried
employees of the Government and who are not in custody and who attend at
point so far removed from their respective residences as to prohibit
return thereto from day to day will be entitled to an additional
allowance of $8 per day for expenses of subsistence including the time
necessarily occupied in going to and returning from the place of
attendance. In lieu of the mileage allowance provided for herein,
witnesses who are required to travel between the Territories,
possessions, or to and from the continental United States, will be
entitled to the actual expenses of travel at the lowest first-class rate
available at the time of reservation for passage, by means of
transportation employed. When a witness is detained in prison for want
of security for his appearance, he will be entitled, in addition to his
subsistence, to a compensation of $1 a day.
(ii) In Alaska and Canal Zone. (a) In Alaska such witnesses are
entitled to the witness fees and mileage prescribed for witnesses before
the United States district court in the judicial division in which the
trial or hearing is held. Fees vary in the different judicial divisions.
(b) In the Canal Zone such witnesses are entitled to the witness
fees and mileage as are prescribed for witnesses before the United
States court in the Canal Zone.
(c) Responsible officers in Alaska and in the Panama Canal Zone will
keep informed as to the fees payable in United States courts in those
places.
(c) Mileage--(1) General. A civilian witness not in Government
employ, when furnished transportation in kind by the Government, is
entitled to 8 cents per mile less the cost of transportation furnished.
A civilian witness residing within the jurisdiction of the court, who is
subpoenaed and attends the trial in obedience to such subpoena, is
entitled to mileage between his residence and the place of trial,
regardless of whether both are in the same city.
(2) Computation. Mileage at the rate of 8 cents per mile will be
computed on the basis of the Rand McNally Standard Highway Mileage Guide
regardless of the mode of transportation used.
(d) Subsistence per diem allowance--(1) When payable. The
subsistence per diem allowance is payable only when the place of trial
is so far removed from the place of residence as to prohibit return of
the witness thereto from day to day and such fact is properly certified.
(See 6 Comp. Gen. 835.)
(2) Computation. In computing the subsistence per diem allowance
prescribed in paragraph (b)(3)(i) of this section, the calendar day
beginning at midnight is the unit, and the subsistence per diem
allowance accrues from the time it is necessary for the witness to leave
his home in order to arrive at the place of trial at the appointed time
until the time he could arrive at his home by first available
transportation after his discharge from attendance, any fractional part
of a day under such transportation to be regarded as a day for per diem
purposes. (See 5 Comp. Gen. 1028, as modified by 6 Comp. Gen. 480 and 6
id. 835.)
(e) Attendance fees--(1) Attendance at more than one case on same
day. A person attending as a witness in more than one case on the same
day under a general subpoena to appear and testify is entitled to only
one per diem for each day's attendance. If separate subpoenas are issued
in each case, the defendants being different, the witness is entitled to
separate per diem for actual attendance in each case. The duplication of
fees on account of attendance as witness in more than one case on the
same day does not apply to the 8-cent mileage allowance and does not
apply to the per diem on $8 in lieu of subsistence.
(2) Attendance before officer taking deposition. A witness who is
required to appear before an officer (civil or military) empowered to
take depositions and there to give testimony under oath to be used
before a court is entitled for such service and for the necessary travel
incident thereto, including return travel, to the allowances prescribed
in paragraphs (a) and (b) of this section, the same as though his
appearance were before a court. (See 8 Comp. Gen. 18.)
(3) Attendance before military courts or boards of limited
jurisdiction. A subpoena
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or other compulsory process addressed to a civilian by a military court
or board which has not express statutory authority to issue such
process, such as a board of officers convened to investigate and report
upon the facts connected with the death of an enlisted member while on
temporary duty, is void. Civilian witnesses who appear before such a
board in response to such void process must be regarded as having done
so voluntarily and are not entitled to witness fees, in the absence of a
specific appropriation therefor. (See 8 Comp. Gen. 64.)
(4) Computation. The provisions of paragraph (d)(2) of this section
are equally applicable for computation of the attendance fee.
(f) Expert--(1) Fees paid. An expert witness employed in accordance
with Manual for Courts-Martial, 1951, paragraph 116, may be paid
compensation at the rate prescribed in advance by the official empowered
to authorize his employment. (See 11 Comp. Gen. 504.) In the absence of
such advance authorization no fees, other than ordinary witness fees,
may be paid for the employment of an individual as an expert witness.
(See paragraph 116, Manual for Courts-Martial (Executive Order 10214).)
(2) Limitations. (i) An expert while employed on behalf of the
Government is an officer or employee of the United States within the
laws affecting traveling and subsistence expenses of officers and
employees of the Government generally. His traveling allowances are
therefore subject to the limitations prescribed in the Travel Expense
Act of 1949 (63 Stat. 166; 5 U.S.C. 835-842) and the Standardized
Government Travel Regulations. (See 6 Comp. Gen. 712.)
(ii) There is no authority for payment by the Government of fees to
an expert, who was employed by an officer or employee of the Government
to aid in the performance of his duties, other than an expert witness
who actually appears as such (paragraph (b)(2) of this section).
(iii) A retired officer, not on active duty, employed as an expert
witness is not entitled to any compensation in addition to his retired
pay for such service. The traveling allowances of such a retired
officer, so employed, are subject to the limitations prescribed in the
Travel Expense Act of 1949 and the Standardized Government Travel
Regulations. (See 6 Comp. Gen 712.)
(g) Witness not subpoenaed--(1) Compelled to testify. A person who,
although not subpoenaed, is present at trial or hearing before a court
or other body authorized to compel the attendance of witnesses by
compulsory process, and who is compelled or required to testify at such
hearing, is entitled to fees and mileage allowances payable to
witnesses.
(2) Voluntarily testifies. A person who was neither subpoenaed nor
requested to appear as a witness, but who voluntarily requested and was
granted permission to testify to certain matters considered pertinent to
an inquiry being conducted, is not entitled to mileage and witness fees.
(See 9 Comp. Gen. 255.)
Sec. 534.4 Other fees.
(a) Service of subpoena. Fees or compensation for the service of a
subpoena by a civilian are not prescribed by the laws of the United
States. Fees and mileage allowed by the local law for similar services
may be paid. If no specific fee or mileage is fixed by local law,
reasonable allowances may be paid. (See Dig. Op. JAG, 1912-40, sec.
379.)
(b) Taking of depositions--(1) Fees of civil officers. A civil
officer before whom a deposition is taken may be paid the fees allowed
by law of the place where the deposition is taken (or a reasonable fee
if no specific fee is fixed by local laws), but no mileage or other
allowance for travel of the civil officer to the witness is provided for
or authorized by law. (See 2 Comp. Gen. 65.)
(2) Travel of witnesses. If the witness and the civil officer before
whom the deposition is to be taken do not reside at the same place, the
witness should be required to perform the necessary travel, and he is
entitled to mileage or other travel allowance therefor as prescribed in
Sec. 534.3(e)(2).
(3) Oaths in matters of military administration. Where the service
of one of the officers designated in the Uniform Code of Military
Justice, Article 136, is not available, fees may be paid to civil
officers for administering oaths in matters
[[Page 188]]
relating to military administration, subject to the conditions indicated
in paragraph (b)(1) of this section.
(c) Interpreters. An interpreter appointed under the Uniform Code of
Military Justice, Article 28 (10 U.S.C. 828), is entitled for his
services as such to the allowances prescribed for witnesses (Sec.
534.3).
(d) Furnishing copies of official records or documents. The fees
provided by the local laws may be paid to the proper officials for
furnishing such certified copies of public records or documents and
expenses in connection with the procurement of photostatic copies,
photographs, and negatives as are required by the court.
(e) Attendance upon civil courts--(1) Cases involving performance of
official duties. A military member on active duty or a civilian in
Government employ appearing on behalf of the United States in cases
arising out of the performance of their official duties is entitled to
transportation and per diem as prescribed in Sec. 534.3(a)(1) and
(b)(1). Payment may be made by Department of the Army finance and
accounting officers and will be charged to Department of the Army
appropriations available for travel expenses of military personnel and
civilian employees.
(2) Cases involving other than performance of official duties. A
military member on active duty or a civilian in Government employ
appearing on behalf of the United States in cases involving other than
the performance of their official duties is entitled to transportation
or transportation allowances and per diem as may be prescribed by The
Attorney General. The subpoena or letter requesting attendance will
specify the rates payable and will cite the appropriation chargeable.
Payment may be made by a Department of the Army finance and accounting
officer and reimbursement obtained from the Department of Justice.
(3) Cases in which civilians not in Government employ are called as
witnesses. Payments to civilians out of Government employ will not be
made by Department of the Army finance and accounting officers. Such
payments will be made by the Department of Justice.
PART 536_CLAIMS AGAINST THE UNITED STATES--Table of Contents
Subpart A_The Army Claims System
Sec.
536.1 Purpose of the Army Claims System.
536.2 Claims authorities.
536.3 Command and organizational relationships.
536.4 Designation of claims attorneys.
536.5 The Judge Advocate General.
536.6 The Army claims mission.
536.7 Responsibilities of the Commander USARCS.
536.8 Responsibilities and operations of command claims services.
536.9 Responsibilities and operations of area claims offices.
536.10 Responsibilities and operations of claims processing offices.
536.11 Chief of Engineers.
536.12 Commanding General, U.S. Army Medical Command.
536.13 Chief, National Guard Bureau.
536.14 Commanders of major Army commands.
536.15 Claims policies.
536.16 Release of information policies.
536.17 Single-service claims responsibility (DODD 5515.8 and DODD
5515.9).
536.18 Cross-servicing of claims.
536.19 Disaster claims planning.
536.20 Claims assistance visits.
536.21 Annual claims award.
Subpart B_Investigation and Processing of Claims
536.22 Claims investigative responsibility--General.
536.23 Identifying claims incidents both for and against the government.
536.24 Delegation of investigative responsibility.
536.25 Procedures for accepting claims.
536.26 Identification of a proper claim.
536.27 Identification of a proper claimant.
536.28 Claims acknowledgment.
536.29 Revision of filed claims.
536.30 Action upon receipt of claim.
536.31 Opening claim files.
536.32 Transfer of claims among armed services branches.
536.33 Use of small claims procedures.
536.34 Determination of correct statute.
536.35 Unique issues related to environmental claims.
536.36 Related remedies.
536.37 Importance of the claims investigation.
536.38 Elements of the investigation.
536.39 Use of experts, consultants and appraisers.
536.40 Conducting the investigation.
536.41 Determination of liability--generally.
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536.42 Constitutional torts.
536.43 Incident to service.
536.44 FECA and LSHWCA claims exclusions.
536.45 Statutory exceptions.
536.46 Other exclusions.
536.47 Statute of limitations.
536.48 Federal employee requirement.
536.49 Scope of employment requirement.
536.50 Determination of damages--applicable law.
536.51 Collateral source rule.
536.52 Subrogation.
536.53 Evaluation of claims--general rules and guidelines.
536.54 Joint tortfeasors.
536.55 Structured settlements.
536.56 Negotiations--purpose and extent.
536.57 Who should negotiate.
536.58 Settlement negotiations with unrepresented claimants.
536.59 Settlement or approval authority.
536.60 Splitting property damage and personal injury claims.
536.61 Advance payments.
536.62 Action memorandums.
536.63 Settlement agreements.
536.64 Final offers.
536.65 Denial notice.
536.66 The ``Parker'' denial.
536.67 Mailing procedures.
536.68 Appeal or reconsideration.
536.69 Retention of file.
536.70 Preparation and forwarding of payment vouchers.
536.71 Fund sources.
536.72 Finality of settlement.
Subpart C_Claims Cognizable Under the Military Claims Act
536.73 Statutory authority for the Military Claims Act.
536.74 Scope for claims under the Military Claims Act.
536.75 Claims payable under the Military Claims Act.
536.76 Claims not payable under the Military Claims Act.
536.77 Applicable law for claims under the Military Claims Act.
536.78 Settlement authority for claims under the Military Claims Act.
536.79 Action on appeal under the Military Claims Act.
536.80 Payment of costs, settlements, and judgments related to certain
medical malpractice claims.
536.81 Payment of costs, settlements, and judgments related to certain
legal malpractice claims.
536.82 Reopening an MCA claim after final action by a settlement
authority.
Subpart D_Claims Cognizable Under the Federal Tort Claims Act
536.83 Statutory authority for the Federal Tort Claims Act.
536.84 Scope for claims under the Federal Tort Claims Act.
536.85 Claims payable under the Federal Tort Claims Act.
536.86 Claims not payable under the Federal Tort Claims Act.
536.87 Applicable law for claims under the Federal Tort Claims Act.
536.88 Settlement authority for claims under the Federal Tort Claims
Act.
536.89 Reconsideration of Federal Tort Claims Act claims.
Subpart E_Claims Cognizable Under the Non-Scope Claims Act
536.90 Statutory authority for the Non-Scope Claims Act.
536.91 Scope for claims under the Non-Scope Claims Act.
536.92 Claims payable under the Non-Scope Claims Act.
536.93 Claims not payable under the Non-Scope Claims Act.
536.94 Settlement authority for claims under the Non-Scope Claims Act.
536.95 Reconsideration of Non-Scope Claims Act claims.
Subpart F_Claims Cognizable Under the National Guard Claims Act
536.96 Statutory authority for the National Guard Claims Act.
536.97 Scope for claims under the National Guard Claims Act.
536.98 Claims payable under the National Guard Claims Act.
536.99 Claims not payable under the National Guard Claims Act.
536.100 Applicable law for claims under the National Guard Claims Act.
536.101 Settlement authority for claims under the National Guard Claims
Act.
536.102 Actions on appeal under the National Guard Claims Act.
Subpart G_Claims Cognizable Under International Agreements
536.103 Statutory authority for claims cognizable under international
claims agreements.
536.104 Current agreements in force.
536.105 Responsibilities generally/international agreements claims.
536.106 Definitions for international agreements claims.
536.107 Scope for international agreements claims arising in the United
States.
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536.108 Claims payable under international agreements (for those arising
in the United States).
536.109 Claims not payable under international agreements (for those
arising in the United States).
536.110 Notification of incidents arising under international agreements
(for claims arising in the United States).
536.111 Investigation of claims arising under international agreements
(for those claims arising in the United States).
536.112 Settlement Authority for claims arising under international
agreements (for those claims arising in the United States).
536.113 Assistance to foreign forces for claims arising under
international agreements (as to claims arising in the United
States).
536.114 Scope for claims arising overseas under international
agreements.
536.115 Claims procedures for claims arising overseas under
international agreements.
536.116 Responsibilities as to claims arising overseas under
international agreements.
Subpart H_Maritime Claims
536.117 Statutory authority for maritime claims.
536.118 Related statutes for maritime claims.
536.119 Scope for maritime claims.
536.120 Claims payable as maritime claims.
536.121 Claims not payable as maritime claims.
536.122 Limitation of settlement of maritime claims.
536.123 Limitation of liability for maritime claims.
536.124 Settlement authority for maritime claims.
Subpart I_Claims Cognizable Under Article 139, Uniform Code of Military
Justice
536.125 Statutory authority for the Uniform Code of Military Justice
(UCMJ) claims.
536.126 Purpose of UCMJ claims.
536.127 Proper claimants; unknown accused--under the UCMJ.
536.128 Effect of disciplinary action, voluntary restitution, or
contributory negligence for claims under the UCMJ.
536.129 Claims cognizable as UCMJ claims.
536.130 Claims not cognizable as UCMJ claims.
536.131 Limitations on assessments arising from UCMJ claims.
536.132 Procedure for processing UCMJ claims.
536.133 Reconsideration of UCMJ claims.
536.134 Additional claims judge advocate and claims attorney
responsibilities (for UCMJ claims).
Subpart J_Claims Cognizable Under the Foreign Claims Act
536.135 Statutory authority for the Foreign Claims Act.
536.136 Scope for claims arising under the Foreign Claims Act.
536.137 Claims payable under the Foreign Claims Act.
536.138 Claims not payable under the Foreign Claims Act.
536.139 Applicable law for claims under the Foreign Claims Act.
536.140 Appointment and functions of Foreign Claims Commissions.
536.141 Composition of Foreign Claims Commissions.
536.142 Qualification of members of Foreign Claims Commissions.
536.143 Settlement authority of Foreign Claims Commissions.
536.144 Reopening a claim after final action by a Foreign Claims
Commission.
536.145 Solatia payment.
Subpart K_Nonappropriated Fund Claims
536.146 Claims against nonappropriated fund employees--generally.
536.147 Claims by NAFI employees for losses incident to employment.
536.148 Claims generated by the acts or omissions of NAFI employees.
536.149 Identification of persons whose actions may generate liability.
536.150 Claims payable from appropriated funds.
536.151 Settlement authority for claims generated by acts or omissions
of NAFI employees.
536.152 Payment of claims generated by acts or omissions of NAFI
employees.
536.153 Claims involving tortfeasors other than nonappropriated fund
employees: NAFI contractors.
536.154 Claims involving tortfeasors other than nonappropriated fund
employees: NAFI risk management program (RIMP) claims.
536.155 Claims payable involving tortfeasors other than nonappropriated
fund employees.
536.156 Procedures for claims involving tortfeasors other than
nonappropriated fund employees.
536.157 Settlement/approval authority for claims involving tortfeasors
other than nonappropriated fund employees.
Authority: 10 U.S.C. 2733; 10 U.S.C. 1089; 10 U.S.C. 1054; 28 U.S.C.
1291, 2401-2402, 2411-2412, 2671-2680; 10 U.S.C. 2737; 32 U.S.C. 715; 10
U.S.C. 2734a, 2734b; 10 U.S.C. 2734; 10 U.S.C. 4801, 4802, 4806; 46
U.S.C. app. 740; 39 U.S.C. 411; 10 U.S.C. 939; 10 U.S.C. 2736; 10 U.S.C.
2735; 10 U.S.C. 2731.
[[Page 191]]
Source: 71 FR 69360, Nov. 30, 2006, unless otherwise noted.
Subpart A_The Army Claims System
Sec. 536.1 Purpose of the Army Claims System.
This part sets forth policies and procedures that govern the
investigating, processing, and settling of claims against, and in favor
of, the United States under the authority conferred by statutes,
regulations, international and interagency agreements, and Department of
Defense Directives (DODDs). It is intended to ensure that claims are
investigated properly and adjudicated according to applicable law, and
valid recoveries and affirmative claims are pursued against carriers,
third-party insurers, and tortfeasors.
Sec. 536.2 Claims authorities.
(a) General. Claims cognizable under the following list of statutes
and authorities are processed and settled under DA Pam 27-162 and this
part. All of these materials may be viewed on the USARCS Web site,
https://www.jagcnet.army.mil/85256F33005C2B92/(JAGCNETDocID)/
HOME?OPENDOCUMENT. Select the link ``Claims Resources.''
(1) Tort claims. (i) The Military Claims Act (MCA), 10 United States
Code (U.S.C.) 2733 (see subpart C of this part). The ``incident-to-
service'' provision, applicable to both military and civilian personnel
of the Department of Defense, is contained in the MCA.
(ii) The Gonzales Act, 10 U.S.C. 1089. This act permits individual
suits against health care providers for certain torts (see Sec.
536.80).
(iii) Certain suits arising out of legal malpractice, 10 U.S.C.
1054, discussed at Sec. 536.81 and at DA Pam 27-162, paragraph 2-62f.
(iv) The Federal Tort Claims Act (FTCA), 28 U.S.C. 1291, 1402, 2401-
2402, 2411-2412, and 2671-2680 (see subpart D of this part). The
Westfall Act, 28 U.S.C. 2679, an integral part of the FTCA, provides
absolute immunity from individual suit for common law torts for
employees of the United States acting within the scope of their
employment.
(A) The legislative history of the FTCA.
(B) Regulations of the Attorney General implementing the Federal
Tort Claims Act, 28 CFR Part 14.
(C) An appendix to 28 CFR Part 14 sets forth certain delegations of
settlement authority to the Secretary of Veterans Affairs, the
Postmaster General, the Secretary of Defense, the Secretary of
Transportation, and the Secretary of Health and Human Services.
(v) The Non-Scope Claims Act (NSCA), 10 U.S.C. 2737 (see subpart E
of this part).
(vi) The National Guard Claims Act (NGCA), 32 U.S.C. 715 (see
subpart F of this part).
(vii) Claims under International Agreements or the Foreign Claims
Act.
(A) International Agreements Claims Act (IACA), 10 U.S.C. 2734a and
2734b.
(B) Foreign Claims Act (FCA), 10 U.S.C. 2734 (see subpart J of this
part).
(viii) The Army Maritime Claims Settlement Act (AMCSA), 10 U.S.C.
4801, 4802 and 4806. Affirmative claims under the AMCSA are processed
under 10 U.S.C. 4803 and 4804 (see Sec. 537.16 of this chapter).
(ix) Admiralty Extension Act (AEA), 46 U.S.C. app. 740 (see subpart
H of this part).
(x) Claims against nonappropriated fund (NAF) activities and the
risk management program (RIMP) (see subpart K of this part), processed
under Army Regulation (AR) 215-1 and AR 608-10.
(xi) Claims by the U.S. Postal Service for losses or shortages in
postal accounts caused by unbonded Army personnel (39 U.S.C. 411 and
Department of Defense (DOD) Manual 4525.6-M).
(2) Personnel claims (subpart I of this part and AR 27-20, chapter
11).
(i) The Personnel Claims Act (PCA), 31 U.S.C. 3721 (see AR 27-20,
chapter 11).
(ii) Redress of injuries to personal property, Uniform Code of
Military Justice (UCMJ), Article 139, 10 U.S.C. 939 (see subpart I of
this part).
(3) Affirmative claims (32 CFR Part 537).
(i) The Federal Claims Collection Act (FCCA), 31 U.S.C. 3711-3720E.
(ii) The Federal Medical Care Recovery Act (FMCRA), 42 U.S.C. 2651-
2653.
[[Page 192]]
(iii) Collection from third-party payers of reasonable costs of
healthcare services, 10 U.S.C. 1095.
(b) Fund source authority for claims under Title 10 statutes. 10
U.S.C. 2736, advance payments for certain property claims (see Sec.
536.71).
(c) Fund source authority for tort claims paid by Financial
Management Service (FMS). 31 U.S.C. 1304, provides authority for
judgments, awards and compromise settlements.
(d) Additional authorities under Title 10. (1) 10 U.S.C. 2735,
establishes that settlements (or ``actions'') under the Title 10 claims
processing statutes are final and conclusive.
(2) 10 U.S.C. 2731, provides a definition of the word ``settle.''
(e) Related remedies statutes. The Army frequently receives claims
or inquiries that are not cognizable under the statutory and other
authorities administered by the U.S. Army under this publication and DA
Pam 27-162. Every effort should be made to refer the claim or inquiry to
the proper authority following the guidance in Sec. 536.34 or Sec.
536.36. (See also the corresponding paragraphs 2-15 and 2-17,
respectively, in DA Pam 27-162). Some authorities for related remedies
are used more frequently than others. Where an authority for a related
remedy is frequently used, it is listed below and is posted on the
USARCS Web site (for the address see Sec. 536.2(a)).
(1) Tucker Act, 28 U.S.C. 1346, provides exclusive jurisdiction in
the Court of Federal Claims over causes of actions alleging property
loss caused by a Fifth Amendment ``taking.''
(2) Maritime authority statutes, Public Vessels Act (PVA), 46 U.S.C.
app. 781-790, Suits in Admiralty Act (SIAA), 46 U.S.C. app. 741-752, and
the Rivers and Harbors Act, 33 U.S.C. 408 and 412.
(3) Federal Employees Compensation Act (FECA), two excerpts: 5
U.S.C. 8116 and 8140, providing guidance on personal injury and death
claims by civilian employees arising within the scope of their
employment (see DA Pam 27-162, paragraph 2-15b) and information on
certain claims by Reserve Officers Training Corps (ROTC) cadets,
respectively, (see DA Pam 27-162, paragraph 2-17d(2)).
(4) Longshore and Harbor Workers Compensation Act (LHWCA), 33 U.S.C.
901-950.
(5) Claims for consequential property damage by civilian employees
may only be considered in the Court of Federal Claims pursuant to 28
U.S.C. 1491.
(f) Additional materials. There are some additional authoritative
materials for the processing of claims, mostly of an administrative
nature. For a complete listing of all of the supplementary materials
relevant to claims processing under this publication and DA Pam 27-162
see appendix B of DA Pam 27-162.
(g) Conflict of authorities. Where a conflict exists between a
general provision of this publication and a specific provision found in
one of this publication's subparts implementing a specific statute, the
specific provision, as set forth in the statute, will control.
Sec. 536.3 Command and organizational relationships.
(a) The Secretary of the Army. The Secretary of the Army (SA) heads
the Army Claims System and acts on certain claims appeals directly or
through a designee.
(b) The Judge Advocate General. The SA has delegated authority to
The Judge Advocate General (TJAG) to assign areas of responsibility and
designate functional responsibility for claims purposes. TJAG has
delegated authority to the Commander USARCS to carry out the
responsibilities assigned in Sec. 536.7 and as otherwise lawfully
delegable.
(c) U.S. Army Claims Service. USARCS, a command and component of the
Office of TJAG, is the agency through which the SA and TJAG discharge
their responsibilities for the administrative settlement of claims
worldwide (see AR 10-72). USARCS' mailing address is: U.S. Army Claims
Service, 4411 Llewellyn Ave., Fort George G. Meade, MD 20755-5360,
Commercial: (301) 677-7009.
(d) Command claims services. (1) Command claims services exercise
general supervisory authority over claims matters arising within their
assigned areas of operation. Command claims services will:
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(i) Effectively control and supervise the investigation of
potentially compensable events (PCEs) occurring within the command's
geographic area of responsibility, in other areas for which the command
is assigned claims responsibility, and during the course of the
command's operations.
(ii) Provide services for the processing and settlement of claims
for and against the United States.
(2) The Commander USARCS, may delegate authority to establish a
command claims service to the commander of a major overseas command or
other commands that include areas outside the United States, its
territories and possessions.
(i) When a large deployment occurs, the Commander USARCS, may
designate a command claims service for a limited time or purpose, such
as for the duration of an operation and for the time necessary to
accomplish the mission. The appropriate major Army command (MACOM) will
assist the Commander USARCS, in obtaining resources and personnel for
the mission.
(ii) In coordination with the Commander USARCS, the MACOM will
designate the area of responsibility for each new command claims
service.
(3) A command claims service may be a separate organization with a
designated commander or chief. If it is part of the command's Office of
the Staff Judge Advocate (SJA), the SJA will also be the chief of the
command claims service, however, the SJA may designate a field grade
officer as chief of the service.
(e) Area claims offices. The following may be designated as area
claims offices (ACOs):
(1) An office under the supervision of the senior judge advocate
(JA) of each command or organization so designated by the Commander
USARCS. The senior JA is the head of the ACO.
(2) An office under supervision of the senior JA of each command in
the area of responsibility of a command claims service so designated by
the chief of that service after coordination with the Commander USARCS.
The senior JA is the head of the ACO.
(3) The office of counsel of each U.S. Army Corps of Engineers (COE)
district within the United States and such other COE commands or
agencies as designated by the Commander USARCS, with concurrence of the
Chief Counsel, Office of the Chief of Engineers, for all claims
generated within such districts, commands or agencies. The district
counsel or the attorney in charge of the command's or agency's legal
office is the head of the ACO.
(f) Claims processing offices. Claims processing offices (CPOs) are
normally small legal offices or ACO subordinate elements, designated by
the Commander USARCS, a command claims service or an ACO. These offices
are established for the investigation of all actual and potential claims
arising within their jurisdiction, on either an area, command or agency
basis. There are four types of claims processing offices (see Sec.
536.10):
(1) Claims processing offices without approval authority.
(2) Claims processing offices with approval authority.
(3) Medical claims processing offices.
(4) Special claims processing offices.
(g) Limitations on delegation of authority under any subpart. (1)
The Commander USARCS, commanders or chiefs of command claims services,
or the heads of ACOs or CPOs with approval authority may delegate, in
writing, all or any portion of their monetary approval authority to
subordinate JAs or claims attorneys in their services or offices.
(2) The authority to act upon appeals or requests for
reconsideration, to deny claims (including disapprovals based on
substantial fraud), to grant waivers of maximum amounts allowable, or to
make final offers will not be delegated except that the Commander USARCS
may delegate this authority to USARCS Division Chiefs.
(3) CPOs will provide copies of all delegations affecting them to
the ACO and, if so directed, to command claims services.
Sec. 536.4 Designation of claims attorneys.
(a) Who may designate. The Commander USARCS, the senior JA of a
command having a command claims service, the chief of a command claims
service, the head of an ACO, or the Chief Counsel of a COE District, may
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designate a qualified attorney other than a JA as a claims attorney. The
head of an ACO may designate a claims attorney to act as a CPO with
approval authority.
(b) Eligibility. To qualify as a claims attorney, an individual must
be a civilian employee of the Department of the Army (DA) or DOD, a
member of the bar of a state, the District of Columbia, or a
jurisdiction where U.S. federal law applies, serving in the grade of GS-
11 or above, and performing primary duties as a legal adviser.
Sec. 536.5 The Judge Advocate General.
TJAG has worldwide Army Staff responsibility for administrative
settlement of claims by and against the U.S. government, generated by
employees of the U.S. Army and DOD components other than the Departments
of the Navy and Air Force. Where the Army has single-service
responsibility, TJAG has responsibility for the Army. See DODD 5515.9.
Certain claims responsibilities of TJAG are exercised by The Assistant
Judge Advocate General (TAJAG) as set forth in this part and directed by
TJAG.
Sec. 536.6 The Army claims mission.
(a) Promptly investigate potential claims incidents with a view to
determining the degree of the Army's exposure to liability, the damage
potential, and when the third party is at fault, whether the Army should
take action to collect for medical expenses, lost wages and property
damage.
(b) Efficiently and expeditiously dispose of claims against the U.S.
by fairly settling meritorious claims at the lowest level within the
claims system commensurate with monetary jurisdiction delegated, or by
denying non-meritorious claims.
(c) Develop a system that has a high level of proficiency, so that
litigation and appeals can be avoided or kept to a minimum.
Sec. 536.7 Responsibilities of the Commander USARCS.
The Commander USARCS shall:
(a) Supervise and inspect claims activities worldwide.
(b) Formulate and implement claims policies and uniform standards
for claims office operations.
(c) Investigate, process and settle claims beyond field office
monetary authority and consider appeals and requests for reconsideration
on claims denied by the field offices.
(d) Supervise the investigation, processing, and settlement of
claims against, and in favor of, the United States under the statutes
and regulations listed in Sec. 536.2 and pursuant to other appropriate
statutes, regulations, and authorizations.
(e) Designate ACOs, CPOs, and claims attorneys within DA and DOD
components other than the Departments of the Navy and Air Force, subject
to concurrence of the commander concerned.
(f) Designate continental United States (CONUS) geographic areas of
claims responsibility.
(g) Recommend action to be taken by the SA, TJAG or the U.S.
Attorney General, as appropriate, on claims in excess of $25,000 or the
threshold amount then current under the FTCA, on claims in excess of
$100,000 or the threshold amount then current under the FCA, the MCA,
the NGCA, AMCSA, FCCA and FMRCA and on other claims that have been
appealed. Direct communication with Department of Justice (DOJ) and the
SA's designee is authorized.
(h) Operate the ``receiving State office'' for claims arising in the
United States, its territories, commonwealths and possessions cognizable
under Article VIII of the North Atlantic Treaty Organization (NATO)
Status of Forces Agreement (SOFA), Partnership for Peace (PFP) SOFA,
Article XVI of the Singapore SOFA, and other SOFAs which have reciprocal
claims provisions as delegated by TJAG, as implemented by 10 U.S.C.
2734a and 2734b (subpart G of this part).
(i) Settle claims of the U.S. Postal Service for reimbursement under
39 U.S.C. 411 (see DOD Manual 4525.6-M).
(j) Settle claims against carriers, warehouse firms, insurers, and
other third parties for loss of, or damage to, personal property of DA
or DOD soldiers or civilians incurred while the goods are in storage or
in transit at
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government expense (AR 27-20, chapter 11).
(k) Formulate and recommend legislation for Congressional enactment
of new statutes and the amendment of existing statutes considered
essential for the orderly and expeditious administrative settlement of
noncontractual claims.
(l) Perform post-settlement review of claims.
(m) Prepare, justify, and defend estimates of budgetary requirements
and administer the Army claims budget.
(n) Maintain permanent records of claims for which TJAG is
responsible.
(o) Assist in developing disaster and maneuver claims plans designed
to implement the responsibilities set forth in Sec. 536.9(a)(12).
(p) Develop and maintain plans for a disaster or civil disturbance
in those geographic areas that are not under the jurisdiction of an area
claims authority and in which the Army has single-service responsibility
or in which the Army is likely to be the predominant Armed Force.
(q) Take initial action, as appropriate, on claims arising in
emergency situations.
(r) Provide assistance as available or take appropriate action to
ensure that command claims services and ACOs are carrying out their
responsibilities as set forth in Sec. Sec. 536.8 and 536.9, including
claims assistance visits.
(s) Serve as proponent for the database management systems for
torts, personnel and affirmative claims and provide standard automated
claims data management programs for worldwide use.
(t) Ensure proper training of claims personnel.
(u) Coordinate claims activities with the Air Force, Navy, Marine
Corps, and other DOD agencies to ensure a consistent and efficient joint
service claims program.
(v) Investigate, process and settle, and supervise the field office
investigation and processing of, medical malpractice claims arising in
Army medical centers within the United States; provide medical claims
judge advocates (MCJAs), medical claims attorneys, and medical claims
investigators assigned to such medical centers with technical guidance
and direction on such claims.
(w) Coordinate support with the U.S. Army Medical Command (MEDCOM)
on matters relating to medical malpractice claims.
(x) Issue an accounting classification to all properly designated
claims settlement and approval authorities.
(y) Perform the investigation, processing, and settlement of claims
arising in areas outside command claims service areas of operation.
(z) Maintain continuous worldwide deployment and operational
capability to furnish claims advice to any legal office or command
throughout the world. When authorized by the chain of command or
competent authority, issue such claims advice or services, including
establishing a claims system within a foreign country, interpreting
claims aspects of international agreements, and processing claims
arising from Army involvement in civil disturbances, chemical accidents
under the Chemical Energy Stockpile Program, other man-made or natural
disasters, and other claims designated by competent authority.
(aa) Upon receiving both the appropriate authority's directive or
order and full fiscal authorization, disburse the funds necessary to
administer civilian evacuation, relocation, and similar initial response
efforts in response to a chemical disaster arising at an Army facility.
(bb) Respond to all inquiries from the President, members of
Congress, military officials, and the general public on claims within
USARCS' responsibility.
(cc) Serve as the proponent for this publication and DA Pam 27-162,
both of which set forth guidance on personnel, tort, disaster and
affirmative claims, as well as claims management and administration.
(dd) Provide supervision for the Army's affirmative claims and
carrier recovery programs, as well as other methods for recovering legal
debts.
(ee) Provide support for the overseas environmental claims program
as designated by the DA.
(ff) Execute other claims missions as designated by DOD, DA, TJAG
and other competent authority.
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(gg) Appoint Foreign Claims Commissions outside Command Claims
Services' geographic areas of responsibility.
(hh) Budget for and fund claims investigations and activities; such
as per diem and transportation of claims personnel, claimants and
witnesses; independent medical examinations; appraisals; independent
expert opinions; long distance telephone calls; recording and
photographic equipment; use of express mail or couriers; and other
necessary expenses.
Sec. 536.8 Responsibilities and operations of command claims services.
(a) Chiefs of command claims services. Chiefs of command claims
services shall:
(1) Exercise claims settlement authority as specified in this part,
including appellate authority where so delegated.
(2) Supervise the investigation, processing, and settlement of
claims against, and in favor of the United States under the statutes and
regulations listed in Sec. 536.2, and pursuant to other appropriate
statutes, regulations, and authorizations.
(3) Designate and grant claims settlement authority to ACOs. A grant
of such authority will not be effective until coordinated with the
Commander USARCS, and assigned an office code. However, the chief of a
command claims service may redesignate a CPO that already has an
assigned office code as an ACO without coordination with the Commander
USARCS. The Commander USARCS will be informed of such a designation.
(4) Designate and grant claims approval authority to CPOs. Only CPOs
staffed with a claims judge advocate (CJA) or claims attorney may be
granted approval authority. A grant of such authority will not be
effective until coordinated with the Commander USARCS, and assigned an
office code.
(5) Train claims personnel and monitor their operations and ongoing
claims administration. Conduct a training course annually.
(6) Implement pertinent claims policies.
(7) Prepare and publish command claims directives.
(8) Administer the command claims expenditure allowance, providing
necessary data, estimates, and reports to USARCS on a regular basis.
(9) Perform the responsibilities of an ACO (see Sec. 536.9), as
applicable, ensure that SOFA claims are investigated properly and timely
filed with the receiving State and adequately funded.
(10) Serve as the United States ``sending State office,'' if so
designated, when operating in an area covered by a SOFA.
(11) Supervise and provide technical assistance to subordinate ACOs
within the command claims service's geographic area of responsibility.
(12) Appoint FCCs.
(b) Operations of command claims services. The SJA of the command
shall supervise the command claims service. The command SJA may
designate a field grade JA as the chief of the service. An adequate
number of qualified claims personnel shall be assigned to ensure that
claims are promptly investigated and acted upon. With the concurrence of
the Commander USARCS, a command claims service may designate ACOs within
its area of operations to carry out claims responsibilities within
specified geographic areas subject to agreement by the commander
concerned.
Sec. 536.9 Responsibilities and operations of area claims offices.
(a) Heads of ACOs. Heads of ACOs, including COE offices (see Sec.
536.3(e)(3)) shall:
(1) Ensure that claims and potential claims incidents in their area
of responsibility are promptly investigated in accordance with this
part.
(2) Ensure that each organization or activity (for example, U.S.
Army Reserve (USAR) or Army National Guard of the United States (ARNGUS)
unit, ROTC detachment, recruiting company or station, or DOD agency)
within the area appoints a claims officer to investigate claims
incidents not requiring investigation by a JA (see Sec. 536.23) and
ensure that this officer is adequately trained.
(3) Supervise the investigation, processing, and settlement of
claims against, and in favor of, the United
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States under the statutes and regulations listed in Sec. 536.2 and
pursuant to other appropriate statutes, regulations, and authorizations.
(4) Act as a claims settlement authority on claims that fall within
the appropriate monetary jurisdictions set forth in this part and
forward claims exceeding such jurisdictions to the Commander USARCS, or
to the chief of a command claims service, as appropriate, for action.
(5) Designate CPOs and request that the Commander USARCS, or the
chief of a command claims service, as appropriate, grant claims approval
authority to a CPO for claims that fall within the jurisdiction of that
office.
(6) Supervise the operations of CPOs within their area.
(7) Implement claims policies and guidance furnished by the
Commander USARCS.
(8) Ensure that there are adequate numbers of qualified and
adequately trained CJAs or claims attorneys, RCJAs or attorneys,
recovery claims clerks, claims examiners, claims adjudicators and claims
clerks in all claims offices within their areas to act promptly on
claims.
(9) Budget for and fund claims investigations and activities, such
as: per diem and transportation of claims personnel, claimants and
witnesses; independent medical examinations; appraisals and independent
expert opinions; long distance telephone calls; recording and
photographic equipment; use of express mail or couriers; and other
necessary expenses.
(10) Within the United States and its territories, commonwealths and
possessions, procure and disseminate, within their areas of
jurisdiction, appropriate legal publications on state or territorial law
and precedent relating to tort claims.
(11) Notify the Commander USARCS, of all claims and potentially
compensable events (PCEs) as required by Sec. 536.22(c); notify the
chief of a command claims service of all claims and PCEs.
(12) Develop and maintain written plans for a disaster or civil
disturbance. These plans may be internal SJA office plans or an annex to
an installation or an agency disaster response plan.
(13) Implement the Army's Article 139 claims program. (See subpart I
of this part).
(14) Notify USARCS of possible deployments and ensure adequate FCCs
are appointed by USARCS and are trained.
(b) Operations of area claims offices. (1) The ACO is the principal
office for the investigation and adjudication or settlement of claims,
and shall be staffed with qualified legal personnel under the
supervision of the SJA, command JA, or COE district or command legal
counsel.
(2) In addition to the utilization of unit claims officers required
by Sec. 536.10(a), if indicated, the full-time responsibility for
investigating and processing claims arising within or related to the
activities of a unit or organization located within a section of the
designated area may be delegated to another command, unit, or activity
by establishing a CPO at the command, unit, or activity (see Sec.
536.10(b)(4)). Normally, all CPOs will operate under the supervision of
the ACO in whose area the CPO is located. Where a proposed CPO is not
under the command of the ACO parent organization, this designation may
be achieved by a support agreement or memorandum of understanding
between the affected commands.
(3) Normally, claims that cannot be settled by a COE ACO will be
forwarded directly to the Commander USARCS, with notice of referral to
the Chief Counsel, COE. However, as part of his or her responsibility
for litigating suits that involve civil works and military construction
activities, the Chief Counsel, COE, may require that a COE ACO forward
claims through COE channels, provided that such requirement does not
preclude the Commander USARCS from taking final action within the time
limitations set forth in subparts D and H of this part.
Sec. 536.10 Responsibilities and operations of claims processing offices.
(a) Heads of CPOs. Heads of CPOs will:
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(1) Investigate all potential and actual claims arising within their
assigned jurisdiction, on either an area, command, or agency basis. Only
a CPO that has approval authority may adjudicate and pay presented
claims within its monetary jurisdiction.
(2) Ensure that units and organizations within their jurisdiction
have appointed claims officers for the investigation of claims not
requiring a JA's investigation. (See Sec. 536.22).
(3) Budget for and fund claims investigations and activities;
including, per diem and transportation of claims personnel, claimants
and witnesses; independent medical examinations; appraisals; independent
expert opinions; long distance telephone calls; recording and
photographic equipment; use of express mail or couriers; and other
necessary expenses.
(4) Within CONUS, procure and maintain legal publications on local
law relating to tort claims pertaining to their jurisdiction.
(5) Notify the Commander USARCS of all claims and claims incidents,
as required by Sec. 536.22 and AR 27-20, paragraph 2-12.
(6) Implement the Army's Article 139 claims program (see subpart I
of this part).
(b) Operations of claims processing offices--(1) Claims processing
office with approval authority. A CPO that has been granted approval
authority must provide for the investigation of all potential and actual
claims arising within its assigned jurisdiction, on an area, command, or
agency basis, and for the adjudication and payment of all claims
presented within its monetary jurisdiction. If the estimated value of a
claim, after investigation, exceeds the CPO's payment authority, or if
disapproval is the appropriate action, the claim file will be forwarded
to the ACO unless otherwise specified in this part, or forwarded to
USARCS or the command claims service, if directed by such service.
(2) Claims processing offices without approval authority. A CPO that
has not been granted claims approval authority will provide for the
investigation of all potential and actual claims arising within its
assigned jurisdiction on an area, command, or agency basis. Once the
investigation has been completed, the claim file will be forwarded to
the appropriate ACO for action. Alternatively, an ACO may direct the
transfer of a claim investigation from a CPO without approval authority
to another CPO with approval authority, located within the ACO's
jurisdiction.
(3) Medical claims processing offices. The MCJAs or medical claims
attorneys at Army medical centers, other than Walter Reed Army Medical
Center, may be designated by the SJA or head of the ACO for the
installation on which the center is located as CPOs with approval
authority for medical malpractice claims only. Claims for amounts
exceeding a medical CPO's approval authority will be investigated and
forwarded to the Commander USARCS.
(4) Special claims processing offices-- (i) Designation and
authority. The Commander USARCS, the chief of a command claims service,
or the head of an ACO may designate special CPOs within his or her
command for specific, short-term purposes (for example, maneuvers, civil
disturbances and emergencies). These special CPOs may be delegated the
approval authority necessary to effect the purpose of their creation,
but in no case will this delegation exceed the maximum monetary approval
authority set forth in other subparts of this part for regular CPOs. All
claims will be processed under the claims expenditure allowance and
claims command and office code of the authority that established the
office or under a code assigned by USARCS. The existence of any special
CPO must be reported to the Commander USARCS, and the chief of a command
claims service, as appropriate.
(ii) Maneuver damage and claims office jurisdiction. A special CPO
is the proper organization to process and approve maneuver damage
claims, except when a foreign government is responsible for adjudication
pursuant to an international agreement (see subpart G of this part).
Personnel from the maneuvering command should be used to investigate
claims and, at the ACO's discretion, may be assigned to the special CPO.
The ACO will process claims filed after the maneuver terminates. The
special CPO will investigate claims
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arising while units are traveling to or from the maneuver within the
jurisdiction of other ACOs, and forward such claims for action to the
ACO in whose area the claims arose. Claims for damage to real or
personal property arising on private land that the Army has used under a
permit may be paid from funds specifically budgeted by the maneuver for
such purposes in accordance with AR 405-15.
(iii) Disaster claims and civil disturbance. A special CPO provided
for a disaster or civil disturbance should include a claims approving
authority with adequate investigatory, administrative, and logistical
support, including damage assessment and finance and accounting support.
It will not be dispatched prior to notification of the Commander USARCS,
whose concurrence must be obtained before the first claim is paid.
(5) Supervisory requirements. The CPOs discussed in paragraphs
(b)(2) through (b)(4) of this section must be supervised by an assigned
CJA or claims attorney in order to exercise delegated approval
authority.
Sec. 536.11 Chief of Engineers.
The Chief of Engineers, through the Chief Counsel, shall:
(a) Provide general supervision of the claims activities of COE
ACOs.
(b) Ensure that each COE ACO has a claims attorney designated in
accordance with Sec. 536.4.
(c) Ensure that claims personnel are adequately trained, and monitor
their ongoing claims administration.
(d) Implement pertinent claims policies.
(e) Provide for sufficient funding in accordance with existing Army
regulations and command directives for temporary duty (TDY), long
distance telephone calls, recording equipment, cameras, and other
expenses for investigating and processing claims.
(f) Procure and maintain adequate legal publications on local law
relating to claims arising within the United States, its territories,
commonwealths and possessions.
(g) Assist USARCS in evaluation of claims by furnishing qualified
expert and technical advice from COE resources, on a non-reimbursable
basis except for temporary duty (TDY) and specialized lab services
expenses.
Sec. 536.12 Commanding General, U.S. Army Medical Command.
(a) After consulting with the Commander USARCS on the selection of
medical claims attorneys, the Commander of the U.S. Army MEDCOM, the
European Medical Command, or other regional medical command, through his
or her SJA/Center Judge Advocate, shall ensure that an adequate number
of qualified MCJAs or medical claims attorneys and medical claims
investigators are assigned to investigate and process medical
malpractice claims arising at Army medical centers under the Commander's
control. In accordance with an agreement between TJAG and The Surgeon
General, such personnel shall be used primarily to investigate and
process medical malpractice claims and affirmative claims and will be
provided with the necessary funding and research materials to carry out
this function.
(b) Upon request of a claims judge advocate or claims officer, shall
provide a qualified health care provider at a medical treatment facility
(MTF) to examine a claimant for his injuries even if the claimant is not
otherwise entitled to care at an MTF (See AR 40-400, Patient
Administration, paragraph 3-47).
Sec. 536.13 Chief, National Guard Bureau.
The Chief, National Guard Bureau (NGB), shall:
(a) Ensure the designation of a point of contact for claims matters
in each State Adjutant General's office.
(b) Provide the name, address, and telephone number of these points
of contact to the Commander USARCS.
(c) Designate claims officers to investigate claims generated by
ARNG personnel and forward investigations to the Active Army ACO that
has jurisdiction over the area in which the claims incident occurred.
Sec. 536.14 Commanders of major Army commands.
Commanders of MACOMs, through their SJAs, shall:
(a) Assist USARCS in monitoring ACOs and CPOs under their respective
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commands for compliance with the responsibilities assigned in Sec. Sec.
536.9 and 536.10.
(b) Assist claims personnel in obtaining qualified expert and
technical advice from command units and organizations on a
nonreimbursable basis (although the requesting office may be required to
provide TDY funding).
(c) Assist TJAG, through the Commander USARCS, in implementing the
functions set forth in Sec. 536.7.
(d) Coordinate with the ACO within whose jurisdiction a maneuver is
scheduled, to ensure the prompt investigation and settlement of any
claims arising from it.
Sec. 536.15 Claims policies.
(a) General. The following policies will be adhered to in processing
and adjudicating claims falling within this regulation. The Commander
USARCS is authorized to publish new policies or rescind existing
policies from time to time as the need arises.
(1) Notification. The Commander USARCS must be notified as soon as
possible of both potential and actual claims which are serious incidents
that cannot be settled within the monetary jurisdiction of a Command
Claims Service or an ACO, including those which occur in the area of
responsibility of a CPO. On such claims, the USARCS Area Action Officer
(AAO) must coordinate with the field office as to all aspects of the
investigation, evaluation and determination of liability. An offer of
settlement or the assertion of an affirmative claim must be the result
of a discussion between the AAO and the field office. Payment of a
subrogated claim may commit the United States to liability as to larger
claims. On the other hand, where all claims out of an incident can be
paid within field authority they should be paid promptly with maximum
use of small claims procedures.
(2) Consideration under all subparts. Prior to denial, a claim will
be considered under all subparts of this part, regardless of the form on
which the claim is presented. A claim presented as a personnel claim
will be considered as a tort prior to denial. A claim presented as a
tort will first be considered as a personnel claim, and if not payable,
then considered as a tort. If deniable, the claim will be denied both as
a personnel claim and as a tort.
(3) Compromise. DA policy seeks to compromise claims in a manner
that represents a fair and equitable result to both the claimant and the
United States. This policy does not extend to frivolous claims or claims
lacking factual or legal merit. A claim should not be settled solely to
avoid further processing time and expense. All claims, regardless of
amount, should be evaluated. Congress imposed no minimum limit on
payable claims nor did it intend that small non-meritous claims be paid.
Practically any claim, regardless of amount, may be subject to
compromise through direct negotiation. A CJA or claims attorney should
develop expertise in assessing liability and damages, including small
property damage claims. For example, a property damage claim may be
compromised by deducting the cost of collection, i.e., attorney fees and
costs, even where liability is certain.
(4) Expeditious processing at the lowest level. Claims investigation
and adjudication should be accomplished at the lowest possible level,
such as the CPO or ACO that has monetary authority over the estimated
total value of all claims arising from the incident. The expeditious
investigation and settlement of claims is essential to successfully
fulfilling the Army's responsibilities under the claims statutes
implemented by this part.
(5) Notice to claimants of technical errors in claim. When technical
errors are found in a claim's filing or contents, claimants should be
advised of such errors and the need to correct the claim. If the errors
concern a jurisdictional matter, a record should be maintained and the
claimant should be immediately warned that the error must be corrected
before the statute of limitations (SOL) expires.
(b) Cooperative investigative environment. Any person who indicates
a desire to file a claim against the United States cognizable under one
of the subparts of this part will be instructed concerning the procedure
to follow. The claimant will be furnished claim forms and, when
necessary, assisted in completing claim forms, and may be
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assisted in assembling evidence. Claims personnel may not assist any
claimant in determining what amount to claim. During claims
investigation, every effort should be made to create a cooperative
environment that engenders the free exchange of information and
evidence. The goal of obtaining sufficient information to make an
objective and fair analysis should be paramount. Personal contact with
claimants or their representatives is essential both during
investigation and before adjudication. When settlement is not feasible,
issues in dispute should be clearly identified to facilitate resolution
of any reconsideration, appeal or litigation.
(c) Claims directives and plans--(1) Directives. Two copies of
command claims directives will be furnished to the Commander USARCS. ACO
directives will be distributed to all DA and DOD commands, installations
and activities within the ACO's area of responsibility, with an
information copy to the Commander USARCS.
(2) Disaster and civil preparedness plan. One copy of all ACOs'
disaster or civil disturbance plans or annexes will be furnished to the
Commander USARCS.
(d) Interpretations. The Commander USARCS will publish written
interpretations of this part. Interpretations will have the same force
and effect as this part.
(e) Authority to grant exceptions to and deviations from this part.
If, in particular instances, it is considered to be in the best
interests of the government, the Commander USARCS may authorize
deviations from this part's specific requirements, except as to matters
based on statutes, treaties and international agreements, executive
orders, controlling directives of the Attorney General or Comptroller
General, or other publications that have the force and effect of law.
(f) Guidance. The Commander USARCS, may publish bulletins, manuals,
handbooks and notes, and a DA Pamphlet that provides guidance to claims
authorities on administrative and procedural rules implementing this
part. These will be binding on all Army claims personnel.
(g) Communication. All claims personnel are authorized to
communicate directly with USARCS personnel for guidance on matters of
policy or on matters relating to the implementation of this part.
(h) Private relief bills. The issue of a private relief bill is one
between a claimant and his or her Congressional representative. There is
no established procedure under which the DA sponsors private relief
legislation. Claims personnel shall remain neutral in all private relief
matters and shall not make any statement that purports to reflect the
DA's position on a private relief bill.
Sec. 536.16 Release of information policies.
(a) Conflict of interest. Except as part of their official duties,
government personnel are forbidden from advising or representing
claimants or from receiving any payment or gratuity for services
rendered. They may not accept any share or interest in a claim or assist
in its presentation, under penalty of federal criminal law (18 U.S.C.
203 and 205).
(b) Release of information. (1) Relevant statutes pertinent to the
release of information include the Privacy Act of 1974, 5 U.S.C. 552a
and 552b, the Freedom of Information Act (FOIA), 5 U.S.C. 552 and the
Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C.
1320d through 1320d-8.
(2) It is the policy of USARCS that unclassified attorney work
product may be released with or without a request from the claimant or
attorney, whenever such release may help settle the claim or avoid
unnecessary litigation.
(3) A statutory exemption or privilege may not be waived. Similarly,
documents subject to such statutorily required nondisclosure, exemption,
or privilege may not be released. Regarding other exemptions and
privileges, authorities may waive such exemptions or privileges and
direct release of the protected documents, upon balancing all pertinent
factors, including finding that release of protected records will not
harm the government's interest, will promote settlement of a claim and
will avoid unnecessary litigation, or for other good cause.
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(4) All requests for records and information made pursuant to the
FOIA, 5 U.S.C. 552, the Privacy Act of 1974, 5 U.S.C. 552a, or HIPAA, 42
U.S.C. 1320d, will be processed in accordance with the procedures set
forth in AR 25-55 and AR 340-21, respectively as well as 45 CFR Parts
160 and 164, DODD 6025.18-R, this part, and DA Pam 27-162.
(i) Any request for DOD records that either explicitly or implicitly
cites the FOIA shall be processed under the provisions of AR 25-55.
Requests for DOD records submitted by a claimant or claimant's attorney
will be processed under both the FOIA and under the Privacy Act when the
request is made by the subject of the records requested and those
records are maintained in a system of records. Such requests will be
processed under the FOIA time limits and the Privacy Act fee provisions.
Withheld information must be exempt from disclosure under both Acts.
(ii) Requests that cite both Acts or neither Act are processed under
both Acts, using the FOIA time limits and the Privacy Act fee
provisions. For further guidance, see AR 25-55, paragraphs 1-301 and 1-
503.
(5) The following records may not be disclosed:
(i) Medical quality assurance records exempt from disclosure
pursuant to 10 U.S.C. 1102(a).
(ii) Records exempt from disclosure pursuant to appropriate
balancing tests under FOIA exemption (6) (clearly unwarranted invasion
of personal privacy), exemption (7)(c) (reasonably constitutes
unwarranted invasion of privacy), and law enforcement records (5 U.S.C.
Sec. 552(b)) unless requested by the subject of the record.
(iii) Records protected by the Privacy Act.
(iv) Records exempt from disclosure pursuant to FOIA exemption (1)
(National security) (5 U.S.C. 552(b)), unless such records have been
properly declassified.
(v) Records exempt from disclosure pursuant to the attorney-client
privilege under FOIA exemption (5) (5 U.S.C. 552(b)), unless the client
consents to the disclosure.
(6) Records within a category for which withholding of the record is
discretionary (AR 25-55, paragraph 3-101), such as exemptions under the
deliberative process or attorney work product privileges (exemption (5)
(5 U.S.C. 552(b)) may be released when there is no foreseeable harm to
government interests in the judgment of the releasing authority.
(7) When it is determined that exempt information should not be
released, or a question as to its releaseability exists, forward the
request and two copies of the responsive documents to the Commander
USARCS. The Commander USARCS, acting on behalf of TJAG (the initial
denial authority), may deny release of records processed under the FOIA
only. The Commander USARCS, will forward to TJAG all such requests
processed under both the FOIA and PA. TJAG is the denial authority for
Privacy Act requests (AR 340-21, paragraph 1-7i).
(c) Claims assistance. In the vicinity of a field exercise, maneuver
or disaster, claims personnel may disseminate information on the right
to present claims, procedures to be followed, and the names and location
of claims officers and the COE repair teams. When the government of a
foreign country in which U.S. Armed Forces are stationed has assumed
responsibility for the settlement of certain claims against the United
States, officials of that country will be furnished as much pertinent
information and evidence as security considerations permit.
Sec. 536.17 Single-service claims responsibility (DODD 5515.8 and DODD 5515.9).
(a) Assignment for DOD claims. The army is responsible for
processing DOD claims pursuant to DODD 5515.9 (posted on the USARCS Web
site; for the address see Sec. 536.2(a)).
(b) Statutes and agreements. DOD has assigned single-service
responsibility for the settlement of certain claims in certain
countries, pursuant to DODD 5515.8 (posted on the USARCS Web site; for
the address see Sec. 536.2(a)) under the following statutes and
agreements:
(1) FCA (10 U.S.C. 2734);
(2) MCA (10 U.S.C. 2733);
(3) Status of Forces Agreements (10 U.S.C. 2734a and 2734b);
(4) NATO SOFA (4 U.S.T. 1792, Treaties and International Acts Series
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(T.I.A.S.) 2846) and other similar agreements;
(5) FCCA (31 U.S.C. 3711-3720E) and FMCRCA (42 U.S.C. 2651-2653);
(6) Claims not cognizable under any other provision of law, 10
U.S.C. 2737; and
(7) Advance payments, 10 U.S.C. 2736.
(c) Specified foreign countries. Responsibility for the settlement
of claims cognizable under the laws listed above has been assigned to
military departments pursuant to DODD 5515.8, as supplemented by
executive agreement and other competent directives.
(d) When claims responsibility has not been assigned. When necessary
to implement contingency plans, the unified or specified commander with
authority over the geographic area in question may, on an interim basis
before receiving confirmation and approval from the General Counsel,
DOD, assign single-service responsibility for processing claims in
countries where such assignment has not already been made.
Note to Sec. 536.17: See also Sec. 536.32 for information on
transferring claims among armed services branches.