[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 1997 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
32
National Defense
PARTS 1 TO 190
Revised as of July 1, 1997
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JULY 1, 1997
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
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U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1997
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
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Table of Contents
Page
Explanation................................................. v
Title 32:
Subtitle A--Department of Defense:
Chapter I--Office of the Secretary of Defense 5
Finding Aids:
Table of CFR Titles and Chapters.......................... 903
Alphabetical List of Agencies Appearing in the CFR........ 919
List of CFR Sections Affected............................. 929
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Cite this Code: CFR
To cite the regulations in this volume use title, part
and section number. Thus, 32 CFR 2.1 refers to title
32, part 2, section 1.
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EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
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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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of provisions in effect on a given date in the past by using the
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CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
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INQUIRIES
For a legal interpretation or explanation of any regulation in this
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Director,
Office of the Federal Register.
July 1, 1997.
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THIS TITLE
Title 32--National Defense is composed of six volumes. The parts in
these volumes are arranged in the following order: parts 1-190, parts
191-399, parts 400-629, parts 630-699, parts 700-799, and part 800 to
end. The contents of these volumes represent all current regulations
codified under this title of the CFR as of July 1, 1997.
The current regulations issued by the Department of Defense appear
in the volumes containing parts 1-190 and parts 191-399; those issued by
the Department of the Army appear in the volumes containing parts 400-
629 and parts 630-699; those issued by the Department of the Navy appear
in the volume containing parts 700-799, and those issued by the
Department of the Air Force, Defense Logistics Agency, Selective Service
System, Central Intelligence Agency, Information Security Oversight
Office, National Security Council, Office of Science and Technology
Policy, Office for Micronesian Status Negotiations, Office of the Vice
President of the United States, and Presidential Commission on the
Assignment of Women in the Armed Forces appear in the volume containing
parts 800 to end.
For this volume, Gwendolyn J. Henderson was Chief Editor. The Code
of Federal Regulations is published under the direction of Frances D.
McDonald, assisted by Alomha S. Morris.
[[Page viii]]
[[Page 1]]
TITLE 32--NATIONAL DEFENSE
(This book contains parts 1 to 190)
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SUBTITLE A--Department of Defense: Part
Chapter i--Office of the Secretary of Defense............... 2
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Subtitle A--Department
of Defense
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CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE
(Parts 1 to 190)
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Editorial Note: Cross reference to the Department of Defense Federal
Acquisition Regulations, see 48 CFR chapter 2.
SUBCHAPTER A--ACQUISITION
Part Page
1 [Reserved]
2 Pilot program policy........................ 11
3-20 [Reserved]
SUBCHAPTER B--DOD GRANTS REGULATIONS
23 Grants and agreements--military recruiting
on campus............................... 14
25 Governmentwide debarment and suspension
(nonprocurement) and governmentwide
requirements for drug-free workplace
(grants)................................ 15
28 New restrictions on lobbying................ 35
33 Uniform administrative requirements for
grants and cooperative agreements to
State and local governments............. 46
SUBCHAPTER C--PERSONNEL, MILITARY AND CIVILIAN
40 Standards of conduct cross-references....... 74
40a Defense contracting: reporting procedures on
defense related employment.............. 75
41 Enlisted administrative separations......... 84
42 Interception of wire and oral communications
for law enforcement purposes............ 105
43 Personal commercial solicitation on DoD
installations........................... 116
44 Screening the Ready Reserve................. 123
45 Certificate of release or discharge from
active duty (DD Form 214/5 Series)...... 127
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46 Federal voting assistance program........... 142
47 Active duty service for civilian or
contractual groups...................... 145
48 Retired serviceman's family protection plan. 150
51 The Department of Defense Military Equal
Opportunity Program..................... 160
53 Wearing of the uniform...................... 164
54 Allotments for child and spousal support.... 165
55 Physical examinations and annual
certificates of physical condition...... 169
56 Nondiscrimination on the basis of handicap
in programs and activities assisted or
conducted by the Department of Defense.. 170
57 Provision of early intervention and special
education services to eligible DOD
dependents in overseas areas............ 190
58 Human Immunodeficiency Virus (HIV-1)........ 211
59 Voluntary military pay allotments........... 218
61 Medical malpractice claims against military
and civilian personnel of the Armed
Forces.................................. 221
62 Alcohol and drug abuse by DoD personnel..... 221
62b Drunk and drugged driving by DoD personnel.. 224
63 Former spouse payments from retired pay..... 233
64 Management and mobilization of regular and
reserve retired military members........ 240
65 Accession of chaplains for the military
services................................ 244
67 Educational requirements for appointment of
reserve component officers to a grade
above first lieutenant or lieutenant
(junior grade).......................... 248
68 Provision of free public education for
eligible children pursuant to section 6,
Public Law 81-874....................... 249
69 School boards for Department of Defense
domestic dependent elementary and
secondary schools....................... 256
70 Discharge review board (DRB) procedures and
standards............................... 260
71 Eligibility requirements for education of
minor dependents in overseas areas...... 295
72 Voluntary education programs in overseas
areas................................... 300
73 Training simulators and devices............. 302
74 Appointment of doctors of osteopathy as
medical officers........................ 305
75 Conscientious objectors..................... 306
76 Mobilization of the Ready Reserve........... 314
77 Program to encourage public and community
service................................. 320
78 Voluntary State tax withholding from retired
pay..................................... 330
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79 Contributions to State retirement programs
for National Guard technicians.......... 333
80 Provision of early intervention services to
eligible infants and toddlers with
disabilities and their families, and
special education children with
disabilities within the section 6 school
arrangements............................ 335
81 Paternity claims and adoption proceedings
involving members and former members of
the Armed Forces........................ 358
83 Standards of conduct........................ 360
84 Joint ethics regulation..................... 361
85 Health promotion............................ 422
86 Criminal history background checks on
individuals in child care services...... 426
88 Transition assistance for military personnel 437
89 Civilian pay allotments..................... 440
93 Acceptance of service of process; release of
official information in litigation; and
testimony by NSA personnel as witnesses. 445
94 Naturalization of aliens serving in the
Armed Forces of the United States and of
alien spouses and/or alien adopted
children of military and civilian
personnel ordered overseas.............. 449
96 Acquisition and use of criminal history
record information by the military
services................................ 453
97 Release of official information in
litigation and testimony by DoD
personnel as witnesses.................. 454
98 Defense hotline program..................... 458
99 Procedures for States and localities to
request indemnification................. 470
100 Unsatisfactory performance of ready reserve
obligation.............................. 471
101 Participation in Reserve training programs.. 476
102 Uniform Reserve, training and retirement
categories.............................. 479
103 Enlistment, appointment, and assignment of
individuals in Reserve components....... 497
105 Employment and volunteer work of spouses of
military personnel...................... 498
107 Personal services authority for direct
health care providers................... 500
110 Standardized rates of subsistence allowance
and commutation instead of uniforms for
members of the Senior Reserve Officers'
Training Corps.......................... 501
111 Reserve Officers' Training Corps program for
secondary educational institutions...... 508
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112 Indebtedness of military personnel.......... 514
113 Indebtedness procedures of military
personnel............................... 517
114 Reserve components common personnel data
system (RCCPDS)......................... 534
115 Assignment to and transfer between Reserve
categories, and discharge from Reserve
status.................................. 575
132 Initial active duty for training in Reserve
components.............................. 577
142 Copyrighted sound and video recordings...... 579
143 DoD policy on organizations that seek to
represent or organize members of the
Armed Forces in negotiation or
collective bargaining................... 580
144 Service by members of the Armed Forces on
State and local juries.................. 583
145 Cooperation with the Office of Special
Counsel of the Merit Systems Protection
Board................................... 584
146 Compliance of DoD members, employees, and
family members outside the United States
with court orders....................... 590
SUBCHAPTER D--REGULATIONS PERTAINING TO MILITARY JUSTICE
150 Courts of criminal appeals rules of practice
and procedure........................... 593
151 Status of forces policies and information... 601
152 Review of the manual for courts-martial..... 607
SUBCHAPTER E--SECURITY
154 Department of Defense personnel security
program regulation...................... 610
155 Defense industrial personnel security
clearance program....................... 673
156 Department of defense personnel security
program (DoDPSP)........................ 681
157 Dissemination of DoD technical information.. 683
158 Guidelines for systematic declassification
review of classified information in
permanently valuable DoD records........ 687
159 DoD information security program............ 694
159a Information security program regulation..... 696
SUBCHAPTER F--DEFENSE CONTRACTING
160 Defense acquisition regulatory system....... 771
162 Productivity Enhancing Capital Investment
(PECI).................................. 773
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165 Recoupment of nonrecurring costs on sales of
U.S. items.............................. 777
168a National defense science and engineering
graduate fellowships.................... 781
169 Commercial activities program............... 782
169a Commercial activities program procedures.... 786
172 Disposition of proceeds from DoD sales of
surplus personal property............... 828
173 Competitive information certificate and
profit reduction clause................. 834
SUBCHAPTER G--CLOSURES AND REALIGNMENT
174 Revitalizing base closure communities....... 838
175 Revitalizing base closure communities-base
closure community assistance............ 839
176 Revitalizing base closure communities and
community assistance--Community
redevelopment and homeless assistance... 851
SUBCHAPTER H--CIVIL DEFENSE
185 Military support to civil authorities (MSCA) 861
186 The DoD Explosives Safety Board............. 872
SUBCHAPTERS I-K [RESERVED]
SUBCHAPTER L--ENVIRONMENT
187 Environmental effects abroad of major
Department of Defense actions........... 876
188 Environmental effects in the United States
of DoD actions.......................... 885
189 Mineral exploration and extraction on DoD
lands................................... 891
190 Natural Resources Management Program........ 893
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SUBCHAPTER A--ACQUISITION
PART 2--PILOT PROGRAM POLICY--Table of Contents
Sec.
2.1 Purpose.
2.2 Statutory relief for participating programs.
2.3 Regulatory relief for participating programs.
2.4 Designation of participating programs.
2.5 Criteria for designation of participating programs.
Authority: 10 U.S.C. 2340 note.
Source: 62 FR 17549, Apr. 10, 1997, unless otherwise noted.
Sec. 2.1 Purpose.
Section 809 of Public Law 101-510, ``National Defense Authorization
Act for Fiscal Year 1991,'' as amended by section 811 of Public Law 102-
484, ``National Defense Authorization Act for Fiscal Year 1993'' and
Public Law 103-160, ``National Defense Authorization Act for Fiscal Year
1994,'' authorizes the Secretary of Defense to conduct the Defense
Acquisition Pilot Program. In accordance with section 809 of Public Law
101-510, the Secretary may designate defense acquisition programs for
participation in the Defense Acquisition Pilot Program.
(a) The purpose of the pilot programs is to determine the potential
for increasing the efficiency and effectiveness of the acquisition
process. Pilot programs shall be conducted in accordance with the
standard commercial, industrial practices. As used in this policy, the
term ``standard commercial, industrial practice'' refers to any
acquisition management practice, process, or procedure that is used by
commercial companies to produce and sell goods and services in the
commercial marketplace. This definition purposely implies a broad range
of potential activities to adopt commercial practices, including
regulatory and statutory streamlining, to eliminate unique Government
requirements and practices such as government-unique contracting
policies and practices, government-unique specifications and standards,
and reliance on cost determination rather than price analysis.
(b) Standard commercial, industrial practices include, but are not
limited to:
(1) Innovative contracting policies and practices;
(2) Performance and commercial specifications and standards;
(3) Innovative budget policies;
(4) Establishing fair and reasonable prices without cost data;
(5) Maintenance of long-term relationships with quality suppliers;
(6) Acquisition of commercial and non-developmental items (including
components); and
(7) Other best commercial practices.
Sec. 2.2 Statutory relief for participating programs.
(a) Within the limitations prescribed, the applicability of any
provision of law or any regulation prescribed to implement a statutory
requirement may be waived for all programs participating in the Defense
Acquisition Pilot Program, or separately for each participating program,
if that waiver or limit is specifically authorized to be waived or
limited in a law authorizing appropriations for a program designated by
statute as a participant in the Defense Acquisition Pilot Program.
(b) Only those laws that prescribe procedures for the procurement of
supplies or services; a preference or requirement for acquisition from
any source or class of sources; any requirement related to contractor
performance; any cost allowability, cost accounting, or auditing
requirements; or any requirement for the management of, testing to be
performed under, evaluation of, or reporting on a defense acquisition
program may be waived.
(c) The requirements in section 809 of Public Law 101-510, as
amended by section 811 of Public Law 102-484, the requirements in any
law enacted on or after the enactment of Public Law 101-510 (except to
the extent that a waiver or limitation is specifically authorized for
such a defense acquisition program by statute), and any provision of law
that ensures the financial integrity of the conduct of a Federal
Government
[[Page 12]]
program or that relates to the authority of the Inspector General of the
Department of Defense may not be considered for waiver.
Sec. 2.3 Regulatory relief for participating programs.
(a) A program participating in the Defense Acquisition Pilot Program
will not be subject to any regulation, policy, directive, or
administrative rule or guideline relating to the acquisition activities
of the Department of Defense other than the Federal Acquisition
Regulation (FAR) \1\, the Defense FAR Supplement (DFARS) \2\, or those
regulatory requirements added by the Under Secretary of Defense for
Acquisition and Technology, the Head of the Component, or the DoD
Component Acquisition Executive.
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\1\ Copies of this Department of Defense publication may be obtained
from the Government Printing Office, Superintendent of Documents,
Washington, DC 20402.
\2\ See footnote 1 to Sec. 2.3(a).
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(b) Provisions of the FAR and/or DFARS that do not implement
statutory requirements may be waived by the Under Secretary of Defense
for Acquisition and Technology using appropriate administrative
procedures. Provisions of the FAR and DFARS that implement statutory
requirements may be waived or limited in accordance with the procedures
for statutory relief previously mentioned.
(c) Regulatory relief includes relief from use of government-unique
specifications and standards. Since a major objective of the Defense
Acquisition Pilot Program is to promote standard, commercial industrial
practices, functional performance and commercial specifications and
standards will be used to the maximum extent practical. Federal or
military specifications and standards may be used only when no practical
alternative exists that meet the user's needs. Defense acquisition
officials (other than the Program Manager or Commodity Manager) may only
require the use of military specifications and standards with advance
approval from the Under Secretary of Defense for Acquisition and
Technology, the Head of the DoD Component, or the DoD Component
Acquisition Executive.
Sec. 2.4 Designation of participating programs.
(a) Pilot programs may be nominated by a DoD Component Head or
Component Acquisition Executive for participation in the Defense
Acquisition Pilot Program. The Under Secretary of Defense for
Acquisition and Technology shall determine which specific programs will
participate in the pilot program and will transmit to the Congressional
defense committees a written notification of each defense acquisition
program proposed for participation in the pilot program. Programs
proposed for participation must be specifically designated as
participants in the Defense Acquisition Pilot Program in a law
authorizing appropriations for such programs and provisions of law to be
waived must be specifically authorized for waiver.
(b) Once included in the Defense Acquisition Pilot Program, decision
and approval authority for the participating program shall be delegated
to the lowest level allowed in the acquisition regulations consistent
with the total cost of the program (e.g., under DoD Directive 5000.1,
\3\ an acquisition program that is a major defense acquisition program
would be delegated to the appropriate Component Acquisition Executive as
an acquisition category IC program)
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\3\ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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(c) At the time of nomination approval, the Under Secretary of
Defense for Acquisition and Technology will establish measures to judge
the success of a specific program, and will also establish a means of
reporting progress towards the measures.
Sec. 2.5 Criteria for designation of participating programs.
(a) Candidate programs must have an approved requirement, full
program funding assured prior to designation, and low risk. Nomination
of a candidate program to participate in the Defense Acquisition Pilot
Program should occur as early in the program's life-cycle as possible.
Developmental programs will only be considered on an exception basis.
[[Page 13]]
(b) Programs in which commercial or non-developmental items can
satisfy the military requirement are preferred as candidate programs. A
nominated program will address which standard commercial, industrial
practices will be used in the pilot program and how those practices will
be applied.
(c) Nomination of candidate programs must be accompanied by a list
of waivers being requested to Statutes, FAR, DFARS, DoD Directives \4\
and Instructions,\5\ and where applicable, DoD Component regulations.
Waivers being requested must be accompanied by rationale and
justification for the waiver. The justification must include:
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\4\ See footnote 3 to Sec. 2.4(b).
\5\ See footnote 3 to Sec. 2.4(b).
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(1) The provision of law proposed to be waived or limited.
(2) The effects of the provision of law on the acquisition,
including specific examples.
(3) The actions taken to ensure that the waiver or limitation will
not reduce the efficiency, integrity, and effectiveness of the
acquisition process used for the defense acquisition program; and
(4) A discussion of the efficiencies or savings, if any, that will
result from the waiver or limitation.
(d) No nominated program shall be accepted until the Under Secretary
of Defense has determined that the candidate program is properly
planned.
[[Page 14]]
SUBCHAPTER B--DOD GRANTS REGULATIONS
PART 23--GRANTS AND AGREEMENTS--MILITARY RECRUITING ON CAMPUS--Table of Contents
Authority: 5 U.S.C. 301.
Source: 61 FR 9345, Mar. 8, 1996, unless otherwise noted.
Sec. 23.1 Military recruiting on campus.
(a) Purpose. The purpose of this section is to implement section 558
of the National Defense Authorization Act for Fiscal Year 1995 (Public
Law 103-337), as it specifically affects grants and cooperative
agreements (note that section 558 appears as a note to 10 U.S.C. 503).
This section thereby supplements DoD's primary implementation of section
558, in 32 part 216, ``Military Recruiting at Institutions of Higher
Education.''
(b) Definitions specific to this section. In this section:
(1) Directory information has the following meaning, given in
section 558(c) of Public Law 103-337. It means, with respect to a
student, the student's name, address, telephone listing, date and place
of birth, level of education, degrees received, and the most recent
previous educational institution enrolled in by the student.
(2) Institution of higher education has the following meaning, given
at 32 CFR 216.3(b). The term:
(i) Means a domestic college, university, or subelement of a
university providing postsecondary school courses of study, including
foreign campuses of such institutions. A subelement of a university is a
discrete (although not necessarily autonomous) organizational entity
that establishes policy or practices affecting military recruiting and
related actions covered by 32 CFR part 216. For example, a subelement
may be an undergraduate school, a law school, medical school, or
graduate school of arts and sciences.
(ii) Includes junior colleges, community colleges, and institutions
providing courses leading to undergraduate and post-graduate degrees.
(iii) Does not include entities that operate exclusively outside the
United States, its territories, and possessions.
(c) Statutory requirement. No funds available to the Department of
Defense may be provided by grant to any institution of higher education
that either has a policy of denying or that effectively prevents the
Secretary of Defense from obtaining, for military recruiting purposes,
entry to campuses or access to students on campuses or access to
directory information pertaining to students.
(d) Policy.--(1) Applicability to subordinate elements of
institutions of higher education. 32 CFR part 216, DoD's primary
implementation of section 558, establishes procedures by which the
Department of Defense identifies institutions of higher education that
have a policy or practice described in paragraph (c) of this section. In
cases where those procedures lead to a determination that specific
subordinate elements of an institution of higher education have such a
policy or practice, rather than the institution as a whole, 32 CFR part
216 provides that the prohibition on use of DoD funds applies only to
those subordinate elements.
(2) Applicability to cooperative agreements. As a matter of DoD
policy, the restriction of section 558, as implemented by 32 CFR part
216, apply to cooperative agreements, as well as grants.
(3) Deviations. Grants officers may not deviate from any provision
of this section without obtaining the prior approval of the Director of
Defense Research and Engineering. Requests for deviations shall be
submitted, through appropriate channels, to: Director for Research,
ODDR&E(R), 3080 Defense Pentagon, Washington, D.C. 20301-3080.
(e) Grants officers' responsibilities. A grants officer shall:
(1) Not award any grant or cooperative agreement to an institution
of higher education that has been identified pursuant to the procedures
of 32 CFR part 216. Such institutions are identified on the
Governmentwide ``List of Parties Excluded from Federal
[[Page 15]]
Procurement and Nonprocurement Programs,'' as being ineligible to
receive awards of DoD funds [note that 32 CFR 25.505(d) requires the
grants officer to check the list prior to determining that a recipient
is qualified to receive an award].
(2) Not consent to any subaward of DoD funds to such an
organization, under a grant or cooperative agreement to any recipient,
if such subaward requires the grants officer's consent.
(3) Include the clause in paragraph (f) of this section in each
grant or cooperative agreement with an institution of higher education.
Note that this requirement does not flow down (i.e., recipients are not
required to include the clause in subawards).
(4) If an institution of higher education refuses to accept the
clause in paragraph (f):
(i) Determine that the institution is not qualified with respect to
the award. The grants officer may award to an alternative recipient.
(ii) Transmit the name of the institution, through appropriate
channels, to the Director for Accession Policy, Office of the Assistant
Secretary of Defense for Force Management Policy, OASD (FMP), 4000
Defense Pentagon, Washington, D.C. 20301-4000. This will allow OASD
(FMP) to decide whether to initiate an evaluation of the institution
under 32 CFR part 216, to determine whether it is an institution that
has a policy or practice described in paragraph (c) of this section.
(f) Clause for award documents. The following clause is to be
included in grants and cooperative agreements with institutions of
higher education:
As a condition for receipt of funds available to the Department of
Defense (DoD) under this award, the recipient agrees that it is not an
institution of higher education (as defined in 32 CFR part 216) that has
a policy of denying, and that it is not an institution of higher
education that effectively prevents, the Secretary of Defense from
obtaining for military recruiting purposes: (A) entry to campuses or
access to students on campuses; or (B) access to directory information
pertaining to students. If the recipient is determined, using the
procedures in 32 CFR part 216, to be such an institution of higher
education during the period of performance of this agreement, and
therefore to be in breach of this clause, the Government will cease all
payments of DoD funds under this agreement and all other DoD grants and
cooperative agreements to the recipient, and it may suspend or terminate
such grants and agreements unilaterally for material failure to comply
with the terms and conditions of award.
PART 25--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)--Table of Contents
Subpart A--General
Sec.
25.100 Purpose.
25.105 Definitions.
25.110 Coverage.
25.115 Policy.
Subpart B--Effect of Action
25.200 Debarment or suspension.
25.205 Ineligible persons.
25.210 Voluntary exclusion.
25.215 Exception provision.
25.220 Continuation of covered transactions.
25.225 Failure to adhere to restrictions.
Subpart C--Debarment
25.300 General.
25.305 Causes for debarment.
25.310 Procedures.
25.311 Investigation and referral.
25.312 Notice of proposed debarment.
25.313 Opportunity to contest proposed debarment.
25.314 Debarring official's decision.
25.315 Settlement and voluntary exclusion.
25.320 Period of debarment.
25.325 Scope of debarment.
Subpart D--Suspension
25.400 General.
25.405 Causes for suspension.
25.410 Procedures.
25.411 Notice of suspension.
25.412 Opportunity to contest suspension.
25.413 Suspending official's decision.
25.415 Period of suspension.
25.420 Scope of suspension.
Subpart E--Responsibilities of GSA, Agencies and Participants
25.500 GSA responsibilities.
25.505 Military Departments and Defense Agencies' responsibility.
25.510 Participants' responsibilities.
[[Page 16]]
Subpart F--Drug-Free Workplace Requirements (Grants)
25.600 Purpose.
25.605 Definitions.
25.610 Coverage.
25.615 Grounds for suspension of payments, suspension or termination of
grants, or suspension or debarment.
25.616 Determinations of grantee violations.
25.620 Effect of violation.
25.625 Exception provision.
25.630 Certification requirements and procedures.
25.635 Reporting of and employee sanctions for convictions of criminal
drug offenses.
Appendix A to Part 25--Certification Regarding Debarment, Suspension,
and Other Responsibility Matters--Primary Covered Transactions
Appendix B to Part 25--Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion--Lower Tier Covered
Transactions
Appendix C to Part 25--Certification Regarding Drug-Free Workplace
Requirements
Authority: 41 U.S.C. 701 et seq.; sec. 2455, Pub. L. 103-355, 108
Stat. 3327 (31 U.S.C. 6101 note); E.O. 12549, 3 CFR, 1986 Comp.; 189;
E.O. 12689, 3 CFR, 1989 Comp., p. 235.
Source: 53 FR 19190 and 19204, May 26, 1988, unless otherwise noted.
Redesignated at 57 FR 6199, Feb. 21, 1992.
Cross Reference: See also Office of Management and Budget notice
published at 55 FR 21697, May 25, 1990, and 60 FR 33036, June 26, 1995.
Subpart A--General
Sec. 25.100 Purpose.
(a) Executive Order (E.O.) 12549 provides that, to the extent
permitted by law, Executive departments and agencies shall participate
in a governmentwide system for nonprocurement debarment and suspension.
A person who is debarred or suspended shall be excluded from Federal
financial and nonfinancial assistance and benefits under Federal
programs and activities. Debarment or suspension of a participant in a
program by one agency shall have governmentwide effect.
(b) These regulations implement section 3 of E.O. 12549 and the
guidelines promulgated by the Office of Management and Budget under
section 6 of the E.O. by:
(1) Prescribing the programs and activities that are covered by the
governmentwide system;
(2) Prescribing the governmentwide criteria and governmentwide
minimum due process procedures that each agency shall use;
(3) Providing for the listing of debarred and suspended
participants, participants declared ineligible (see definition of
``ineligible'' in Sec. 25.105), and participants who have voluntarily
excluded themselves from participation in covered transactions;
(4) Setting forth the consequences of a debarment, suspension,
determination of ineligibility, or voluntary exclusion; and
(5) Offering such other guidance as necessary for the effective
implementation and administration of the governmentwide system.
(c) These regulations also implement Executive Order 12689 (3 CFR,
1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec.
2455, 108 Stat. 3327) by--
(1) Providing for the inclusion in the List of Parties Excluded from
Federal Procurement and Nonprocurement Programs all persons proposed for
debarment, debarred or suspended under the Federal Acquisition
Regulation, 48 CFR Part 9, subpart 9.4; persons against which
governmentwide exclusions have been entered under this part; and persons
determined to be ineligible; and
(2) Setting forth the consequences of a debarment, suspension,
determination of ineligibility, or voluntary exclusion.
(d) Although these regulations cover the listing of ineligible
participants and the effect of such listing, they do not prescribe
policies and procedures governing declarations of ineligibility.
[60 FR 33040, 33053, June 26, 1995]
Sec. 25.105 Definitions.
The following definitions apply to this part:
Adequate evidence. Information sufficient to support the reasonable
belief that a particular act or omission has occurred.
Affiliate. Persons are affiliates of each other if, directly or
indirectly, either one controls or has the power to control the other,
or, a third person
[[Page 17]]
controls or has the power to control both. Indicia of control include,
but are not limited to: interlocking management or ownership, identity
of interests among family members, shared facilities and equipment,
common use of employees, or a business entity organized following the
suspension or debarment of a person which has the same or similar
management, ownership, or principal employees as the suspended,
debarred, ineligible, or voluntarily excluded person.
Agency. Any executive department, military department or defense
agency or other agency of the executive branch, excluding the
independent regulatory agencies.
(a) The meaning of agency in Subpart F of this part, Drug-Free
Workplace Requirements, is given at Sec. 25.605(b)(6) and is different
than the meaning given in this section for subparts A through E of this
part. Agency in Subpart F of this part means the Department of Defense
or a Military Department only, and does not include any Defense Agency.
(b) [Reserved]
Civil judgment. The disposition of a civil action by any court of
competent jurisdiction, whether entered by verdict, decision,
settlement, stipulation, or otherwise creating a civil liability for the
wrongful acts complained of; or a final determination of liability under
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).
Conviction. A judgment or conviction of a criminal offense by any
court of competent jurisdiction, whether entered upon a verdict or a
plea, including a plea of nolo contendere.
Debarment. An action taken by a debarring official in accordance
with these regulations to exclude a person from participating in covered
transactions. A person so excluded is ``debarred.''
Debarring official. An official authorized to impose debarment. The
debarring official is either:
(a) The agency head, or
(b) An official designated by the agency head.
(c) DoD Components' debarring officials for nonprocurement
transactions are the same officials identified in 48 CFR part 209,
subpart 209.4, as debarring officials for procurement contracts.
Indictment. Indictment for a criminal offense. An information or
other filing by competent authority charging a criminal offense shall be
given the same effect as an indictment.
Ineligible. Excluded from participation in Federal nonprocurement
programs pursuant to a determination of ineligibility under statutory,
executive order, or regulatory authority, other than Executive Order
12549 and its agency implementing regulations; for exemple, excluded
pursuant to the Davis-Bacon Act and its implementing regulations, the
equal employment opportunity acts and executive orders, or the
environmental protection acts and executive orders. A person is
ineligible where the determination of ineligibility affects such
person's eligibility to participate in more than one covered
transaction.
Legal proceedings. Any criminal proceeding or any civil judicial
proceeding to which the Federal Government or a State or local
government or quasi-governmental authority is a party. The term includes
appeals from such proceedings.
List of Parties Excluded from Federal Procurement and Nonprocurement
Programs. A list compiled, maintained and distributed by the General
Services Administration (GSA) containing the names and other information
about persons who have been debarred, suspended, or voluntarily excluded
under Executive Orders 12549 and 12689 and these regulations or 48 CFR
part 9, subpart 9.4, persons who have been proposed for debarment under
48 CFR part 9, subpart 9.4, and those persons who have been determined
to be ineligible.
Notice. A written communication served in person or sent by
certified mail, return receipt requested, or its equivalent, to the last
known address of a party, its identified counsel, its agent for service
of process, or any partner, officer, director, owner, or joint venturer
of the party. Notice, if undeliverable, shall be considered to have been
received by the addressee five days after being properly sent to the
last address known by the agency.
[[Page 18]]
Participant. Any person who submits a proposal for, enters into, or
reasonably may be expected to enter into a covered transaction. This
term also includes any person who acts on behalf of or is authorized to
commit a participant in a covered transaction as an agent or
representative of another participant.
Person. Any individual, corporation, partnership, association, unit
of government or legal entity, however organized, except: foreign
governments or foreign governmental entities, public international
organizations, foreign government owned (in whole or in part) or
controlled entities, and entities consisting wholly or partially of
foreign governments or foreign governmental entities.
Preponderance of the evidence. Proof by information that, compared
with that opposing it, leads to the conclusion that the fact at issue is
more probably true than not.
Principal. Officer, director, owner, partner, key employee, or other
person within a participant with primary management or supervisory
responsibilities; or a person who has a critical influence on or
substantive control over a covered transaction, whether or not employed
by the participant. Persons who have a critical influence on or
substantive control over a covered transaction are:
(a) Principal investigators.
(b) Reserved.
Proposal. A solicited or unsolicited bid, application, request,
invitation to consider or similar communication by or on behalf of a
person seeking to participate or to receive a benefit, directly or
indirectly, in or under a covered transaction.
Respondent. A person against whom a debarment or suspension action
has been initiated.
State. Any of the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, any territory or possession
of the United States, or any agency of a State, exclusive of
institutions of higher education, hospitals, and units of local
government. A State instrumentality will be considered part of the State
government if it has a written determination from a State government
that such State considers that instrumentality to be an agency of the
State government.
Suspending official. An official authorized to impose suspension.
The suspending official is either:
(a) The agency head, or
(b) An official designated by the agency head.
(c) DoD Components' suspending officials for nonprocurement
transactions are the same officials identified in 48 CFR part 209,
subpart 209.4, as suspending officials for procurement contracts.
Suspension. An action taken by a suspending official in accordance
with these regulations that immediately excludes a person from
participating in covered transactions for a temporary period, pending
completion of an investigation and such legal, debarment, or Program
Fraud Civil Remedies Act proceedings as may ensue. A person so excluded
is ``suspended.''
Voluntary exclusion or voluntarily excluded. A status of
nonparticipation or limited participation in covered transactions
assumed by a person pursuant to the terms of a settlement.
[53 FR 19190 and 19204, May 26, 1988. Redesignated at 57 FR 6199, Feb.
21, 1992, and amended at 60 FR 33041, 33053, June 26, 1995]
Sec. 25.110 Coverage.
(a) These regulations apply to all persons who have participated,
are currently participating or may reasonably be expected to participate
in transactions under Federal nonprocurement programs. For purposes of
these regulations such transactions will be referred to as ``covered
transactions.''
(1) Covered transaction. For purposes of these regulations, a
covered transaction is a primary covered transaction or a lower tier
covered transaction. Covered transactions at any tier need not involve
the transfer of Federal funds.
(i) Primary covered transaction. Except as noted in paragraph (a)(2)
of this section, a primary covered transaction is any nonprocurement
transaction between an agency and a person, regardless of type,
including: grants, cooperative agreements, scholarships, fellowships,
contracts of assistance, loans, loan guarantees, subsidies, insurance,
payments for specified use, donation
[[Page 19]]
agreements and any other nonprocurement transactions between a Federal
agency and a person. Primary covered transactions also include those
transactions specially designated by the U.S. Department of Housing and
Urban Development in such agency's regulations governing debarment and
suspension.
(ii) Lower tier covered transaction. A lower tier covered
transaction is:
(A) Any transaction between a participant and a person other than a
procurement contract for goods or services, regardless of type, under a
primary covered transaction.
(B) Any procurement contract for goods or services between a
participant and a person, regardless of type, expected to equal or
exceed the Federal procurement small purchase threshold fixed at 10
U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary
covered transaction.
(C) Any procurement contract for goods or services between a
participant and a person under a covered transaction, regardless of
amount, under which that person will have a critical influence on or
substantive control over that covered transaction. Such persons are:
(1) Principal investigators.
(2) Providers of federally-required audit services.
(2) Exceptions. The following transactions are not covered:
(i) Statutory entitlements or mandatory awards (but not subtier
awards thereunder which are not themselves mandatory), including
deposited funds insured by the Federal Government;
(ii) Direct awards to foreign governments or public international
organizations, or transactions with foreign governments or foreign
governmental entities, public international organizations, foreign
government owned (in whole or in part) or controlled entities, entities
consisting wholly or partially of foreign governments or foreign
governmental entities;
(iii) Benefits to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not excepted);
(iv) Federal employment;
(v) Transactions pursuant to national or agency-recognized
emergencies or disasters;
(vi) Incidental benefits derived from ordinary governmental
operations; and
(vii) Other transactions where the application of these regulations
would be prohibited by law.
(b) Relationship to other sections. This section describes the types
of transactions to which a debarment or suspension under the regulations
will apply. Subpart B, ``Effect of Action,'' Sec. 25.200, ``Debarment or
suspension,'' sets forth the consequences of a debarment or suspension.
Those consequences would obtain only with respect to participants and
principals in the covered transactions and activities described in
Sec. 25.110(a). Sections 25.325, ``Scope of debarment,'' and 25.420,
``Scope of suspension,'' govern the extent to which a specific
participant or organizational elements of a participant would be
automatically included within a debarment or suspension action, and the
conditions under which affiliates or persons associated with a
participant may also be brought within the scope of the action.
(c) Relationship to Federal procurement activities. In accordance
with E.O. 12689 and section 2455 of Public Law 103-355, any debarment,
suspension, proposed debarment or other governmentwide exclusion
initiated under the Federal Acquisition Regulation (FAR) on or after
August 25, 1995 shall be recognized by and effective for Executive
Branch agencies and participants as an exclusion under this regulation.
Similarly, any debarment, suspension or other governmentwide exclusion
initiated under this regulation on or after August 25, 1995 shall be
recognized by and effective for those agencies as a debarment or
suspension under the FAR.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199, Feb. 21, 1992; 60 FR 33041, 33053, June 26, 1995]
Sec. 25.115 Policy.
(a) In order to protect the public interest, it is the policy of the
Federal Government to conduct business only with responsible persons.
Debarment and suspension are discretionary actions that, taken in
accordance with
[[Page 20]]
Executive Order 12549 and these regulations, are appropriate means to
implement this policy.
(b) Debarment and suspension are serious actions which shall be used
only in the public interest and for the Federal Government's protection
and not for purposes of punishment. Agencies may impose debarment or
suspension for the causes and in accordance with the procedures set
forth in these regulations.
(c) When more than one agency has an interest in the proposed
debarment or suspension of a person, consideration shall be given to
designating one agency as the lead agency for making the decision.
Agencies are encouraged to establish methods and procedures for
coordinating their debarment or suspension actions.
Subpart B--Effect of Action
Sec. 25.200 Debarment or suspension.
(a) Primary covered transactions. Except to the extent prohibited by
law, persons who are debarred or suspended shall be excluded from
primary covered transactions as either participants or principals
throughout the Executive Branch of the Federal Government for the period
of their debarment, suspension, or the period they are proposed for
debarment under 48 CFR part 9, subpart 9.4. Accordingly, no agency shall
enter into primary covered transactions with such excluded persons
during such period, except as permitted pursuant to Sec. 25.215.
(b) Lower tier covered transactions. Except to the extent prohibited
by law, persons who have been proposed for debarment under 48 CFR part
9, subpart 9.4, debarred or suspended shall be excluded from
participating as either participants or principals in all lower tier
covered transactions (see Sec. 25.110(a)(1)(ii)) for the period of their
exclusion.
(c) Exceptions. Debarment or suspension does not affect a person's
eligibility for--
(1) Statutory entitlements or mandatory awards (but not subtier
awards thereunder which are not themselves mandatory), including
deposited funds insured by the Federal Government;
(2) Direct awards to foreign governments or public international
organizations, or transactions with foreign governments or foreign
governmental entities, public international organizations, foreign
government owned (in whole or in part) or controlled entities, and
entities consisting wholly or partially of foreign governments or
foreign governmental entities;
(3) Benefits to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not excepted);
(4) Federal employment;
(5) Transactions pursuant to national or agency-recognized
emergencies or disasters;
(6) Incidental benefits derived from ordinary governmental
operations; and
(7) Other transactions where the application of these regulations
would be prohibited by law.
[60 FR 33041, 33053, June 26, 1995]
Sec. 25.205 Ineligible persons.
Persons who are ineligible, as defined in Sec. 25.105(i), are
excluded in accordance with the applicable statutory, executive order,
or regulatory authority.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.210 Voluntary exclusion.
Persons who accept voluntary exclusions under Sec. 25.315 are
excluded in accordance with the terms of their settlements. Military
Departments and Defense Agencies shall, and participants may, contact
the original action agency to ascertain the extent of the exclusion.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.215 Exception provision.
Military Departments & Defense Agencies may grant an exception
permitting a debarred, suspended, or voluntarily excluded person, or a
person proposed for debarment under 48 CFR part 9, subpart 9.4, to
participate in a particular covered transaction upon a written
determination by the agency head or an authorized designee stating
[[Page 21]]
the reason(s) for deviating from the Presidential policy established by
Executive Order 12549 and Sec. 25.200. However, in accordance with the
President's stated intention in the Executive Order, exceptions shall be
granted only infrequently. Exceptions shall be reported in accordance
with Sec. 25.505(a).
[60 FR 33041, 33053, June 26, 1995]
Sec. 25.220 Continuation of covered transactions.
(a) Notwithstanding the debarment, suspension, proposed debarment
under 48 CFR part 9, subpart 9.4, determination of ineligibility, or
voluntary exclusion of any person by an agency, agencies and
participants may continue covered transactions in existence at the time
the person was debarred, suspended, proposed for debarment under 48 CFR
part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A
decision as to the type of termination action, if any, to be taken
should be made only after thorough review to ensure the propriety of the
proposed action.
(b) Agencies and participants shall not renew or extend covered
transactions (other than no-cost time extensions) with any person who is
debarred, suspended, proposed for debarment under 48 CFR part 9, subpart
9.4, ineligible or voluntary excluded, except as provided in
Sec. 25.215.
[60 FR 33041, 33053, June 26, 1995]
Sec. 25.225 Failure to adhere to restrictions.
(a) Except as permitted under Sec. 25.215 or Sec. 25.220, a
participant shall not knowingly do business under a covered transaction
with a person who is--
(1) Debarred or suspended;
(2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or
(3) Ineligible for or voluntarily excluded from the covered
transaction.
(b) Violation of the restriction under paragraph (a) of this section
may result in disallowance of costs, annulment or termination of award,
issuance of a stop work order, debarment or suspension, or other
remedies as appropriate.
(c) A participant may rely upon the certification of a prospective
participant in a lower tier covered transaction that it and its
principals are not debarred, suspended, proposed for debarment under 48
CFR part 9, subpart 9.4, ineligible, or voluntarily excluded from the
covered transaction (See Appendix B of these regulations), unless it
knows that the certification is erroneous. An agency has the burden of
proof that a participant did knowingly do business with a person that
filed an erroneous certification.
[60 FR 33041, 33053, June 26, 1995]
Subpart C--Debarment
Sec. 25.300 General.
The debarring official may debar a person for any of the causes in
Sec. 25.305, using procedures established in Secs. 25.310 through
25.314. The existence of a cause for debarment, however, does not
necessarily require that the person be debarred; the seriousness of the
person's acts or omissions and any mitigating factors shall be
considered in making any debarment decision.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.305 Causes for debarment.
Debarment may be imposed in accordance with the provisions of
Secs. 25.300 through 25.314 for:
(a) Conviction of or civil judgment for:
(1) Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public or private
agreement or transaction;
(2) Violation of Federal or State antitrust statutes, including
those proscribing price fixing between competitors, allocation of
customers between competitors, and bid rigging;
(3) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements,
receiving stolen property, making false claims, or obstruction of
justice; or
(4) Commission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects the
present responsibility of a person.
[[Page 22]]
(b) Violation of the terms of a public agreement or transaction so
serious as to affect the integrity of an agency program, such as:
(1) A willful failure to perform in accordance with the terms of one
or more public agreements or transactions;
(2) A history of failure to perform or of unsatisfactory performance
of one or more public agreements or transactions; or
(3) A willful violation of a statutory or regulatory provision or
requirement applicable to a public agreement or transaction.
(c) Any of the following causes:
(1) A nonprocurement debarment by any Federal agency taken before
October 1, 1988, the effective date of these regulations, or a
procurement debarment by any Federal agency taken pursuant to 48 CFR
subpart 9.4;
(2) Knowingly doing business with a debarred, suspended, ineligible,
or voluntarily excluded person, in connection with a covered
transaction, except as permitted in Sec. 25.215 or Sec. 25.220;
(3) Failure to pay a single substantial debt, or a number of
outstanding debts (including disallowed costs and overpayments, but not
including sums owed the Federal Government under the Internal Revenue
Code) owed to any Federal agency or instrumentality, provided the debt
is uncontested by the debtor or, if contested, provided that the
debtor's legal and administrative remedies have been exhausted;
(4) Violation of a material provision of a voluntary exclusion
agreement entered into under Sec. 25.315 or of any settlement of a
debarment or suspension action; or
(5) Violation of any requirement of subpart F of this part, relating
to providing a drug-free workplace, as set forth in Sec. 25.615 of this
part.
(d) Any other cause of so serious or compelling a nature that it
affects the present responsibility of a person.
[53 FR 19190 and 19204, May 26, 1988, as amended at 54 FR 4950, 4960,
Jan. 31, 1989. Redesignated and amended at 57 FR 6199 and 6200, Feb. 21,
1992]
Sec. 25.310 Procedures.
Military Departments and Defense Agencies shall process debarment
actions as informally as practicable, consistent with the principles of
fundamental fairness, using the procedures in Secs. 25.311 through
25.314.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.311 Investigation and referral.
Information concerning the existence of a cause for debarment from
any source shall be promptly reported, investigated, and referred, when
appropriate, to the debarring official for consideration. After
consideration, the debarring official may issue a notice of proposed
debarment.
Sec. 25.312 Notice of proposed debarment.
A debarment proceeding shall be initiated by notice to the
respondent advising:
(a) That debarment is being considered;
(b) Of the reasons for the proposed debarment in terms sufficient to
put the respondent on notice of the conduct or transaction(s) upon which
it is based;
(c) Of the cause(s) relied upon under Sec. 25.305 for proposing
debarment;
(d) Of the provisions of Secs. 25.311 through 25.314, and any other
Military Departments and Defense Agencies procedures, if applicable,
governing debarment decisionmaking; and
(e) Of the potential effect of a debarment.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.313 Opportunity to contest proposed debarment.
(a) Submission in opposition. Within 30 days after receipt of the
notice of proposed debarment, the respondent may submit, in person, in
writing, or through a representative, information and argument in
opposition to the proposed debarment.
(b) Additional proceedings as to disputed material facts. (1) In
actions not based upon a conviction or civil judgment, if the debarring
official finds that the respondent's submission in opposition raises a
genuine dispute over facts material to the proposed debarment,
respondent(s) shall be afforded
[[Page 23]]
an opportunity to appear with a representative, submit documentary
evidence, present witnesses, and confront any witness the agency
presents.
(2) A transcribed record of any additional proceedings shall be made
available at cost to the respondent, upon request, unless the respondent
and the agency, by mutual agreement, waive the requirement for a
transcript.
Sec. 25.314 Debarring official's decision.
(a) No additional proceedings necessary. In actions based upon a
conviction or civil judgment, or in which there is no genuine dispute
over material facts, the debarring official shall make a decision on the
basis of all the information in the administrative record, including any
submission made by the respondent. The decision shall be made within 45
days after receipt of any information and argument submitted by the
respondent, unless the debarring official extends this period for good
cause.
(b) Additional proceedings necessary. (1) In actions in which
additional proceedings are necessary to determine disputed material
facts, written findings of fact shall be prepared. The debarring
official shall base the decision on the facts as found, together with
any information and argument submitted by the respondent and any other
information in the administrative record.
(2) The debarring official may refer disputed material facts to
another official for findings of fact. The debarring official may reject
any such findings, in whole or in part, only after specifically
determining them to be arbitrary and capricious or clearly erroneous.
(3) The debarring official's decision shall be made after the
conclusion of the proceedings with respect to disputed facts.
(c) (1) Standard of proof. In any debarment action, the cause for
debarment must be established by a preponderance of the evidence. Where
the proposed debarment is based upon a conviction or civil judgment, the
standard shall be deemed to have been met.
(2) Burden of proof. The burden of proof is on the agency proposing
debarment.
(d) Notice of debarring official's decision. (1) If the debarring
official decides to impose debarment, the respondent shall be given
prompt notice:
(i) Referring to the notice of proposed debarment;
(ii) Specifying the reasons for debarment;
(iii) Stating the period of debarment, including effective dates;
and
(iv) Advising that the debarment is effective for covered
transactions throughout the executive branch of the Federal Government
unless an agency head or an authorized designee makes the determination
referred to in Sec. 25.215.
(2) If the debarring official decides not to impose debarment, the
respondent shall be given prompt notice of that decision. A decision not
to impose debarment shall be without prejudice to a subsequent
imposition of debarment by any other agency.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.315 Settlement and voluntary exclusion.
(a) When in the best interest of the Government, Military
Departments and Defense Agencies may, at any time, settle a debarment or
suspension action.
(b) If a participant and the agency agree to a voluntary exclusion
of the participant, such voluntary exclusion shall be entered on the
Nonprocurement List (see subpart E).
Sec. 25.320 Period of debarment.
(a) Debarment shall be for a period commensurate with the
seriousness of the cause(s). If a suspension precedes a debarment, the
suspension period shall be considered in determining the debarment
period.
(1) Debarment for causes other than those related to a violation of
the requirements of subpart F of this part generally should not exceed
three years. Where circumstances warrant, a longer period of debarment
may be imposed.
(2) In the case of a debarment for a violation of the requirements
of subpart F of this part (see Sec. 25.305(c)(5)), the period of
debarment shall not exceed five years.
[[Page 24]]
(b) The debarring official may extend an existing debarment for an
additional period, if that official determines that an extension is
necessary to protect the public interest. However, a debarment may not
be extended solely on the basis of the facts and circumstances upon
which the initial debarment action was based. If debarment for an
additional period is determined to be necessary, the procedures of
Secs. 25.311 through 25.314 shall be followed to extend the debarment.
(c) The respondent may request the debarring official to reverse the
debarment decision or to reduce the period or scope of debarment. Such a
request shall be in writing and supported by documentation. The
debarring official may grant such a request for reasons including, but
not limited to:
(1) Newly discovered material evidence;
(2) Reversal of the conviction or civil judgment upon which the
debarment was based;
(3) Bona fide change in ownership or management;
(4) Elimination of other causes for which the debarment was imposed;
or
(5) Other reasons the debarring official deems appropriate.
[53 FR 19190 and 19204, May 26, 1988, as amended at 54 FR 4950, 4960,
Jan. 31, 1989. Redesignated and amended at 57 FR 6199 and 6200, Feb. 21,
1992]
Sec. 25.325 Scope of debarment.
(a) Scope in general. (1) Debarment of a person under these
regulations constitutes debarment of all its divisions and other
organizational elements from all covered transactions, unless the
debarment decision is limited by its terms to one or more specifically
identified individuals, divisions or other organizational elements or to
specific types of transactions.
(2) The debarment action may include any affiliate of the
participant that is specifically named and given notice of the proposed
debarment and an opportunity to respond (see Secs. 25.311 through
25.314).
(b) Imputing conduct. For purposes of determining the scope of
debarment, conduct may be imputed as follows:
(1) Conduct imputed to participant. The fraudulent, criminal or
other seriously improper conduct of any officer, director, shareholder,
partner, employee, or other individual associated with a participant may
be imputed to the participant when the conduct occurred in connection
with the individual's performance of duties for or on behalf of the
participant, or with the participant's knowledge, approval, or
acquiescence. The participant's acceptance of the benefits derived from
the conduct shall be evidence of such knowledge, approval, or
acquiescence.
(2) Conduct imputed to individuals associated with participant. The
fraudulent, criminal, or other seriously improper conduct of a
participant may be imputed to any officer, director, shareholder,
partner, employee, or other individual associated with the participant
who participated in, knew of, or had reason to know of the participant's
conduct.
(3) Conduct of one participant imputed to other participants in a
joint venture. The fraudulent, criminal, or other seriously improper
conduct of one participant in a joint venture, grant pursuant to a joint
application, or similar arrangement may be imputed to other participants
if the conduct occurred for or on behalf of the joint venture, grant
pursuant to a joint application, or similar arrangement may be imputed
to other participants if the conduct occurred for or on behalf of the
joint venture, grant pursuant to a joint application, or similar
arrangement or with the knowledge, approval, or acquiescence of these
participants. Acceptance of the benefits derived from the conduct shall
be evidence of such knowledge, approval, or acquiescence.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Subpart D--Suspension
Sec. 25.400 General.
(a) The suspending official may suspend a person for any of the
causes in Sec. 25.405 using procedures established in Secs. 25.410
through 25.413.
(b) Suspension is a serious action to be imposed only when:
(1) There exists adequate evidence of one or more of the causes set
out in Sec. 25.405, and
[[Page 25]]
(2) Immediate action is necessary to protect the public interest.
(c) In assessing the adequacy of the evidence, the agency should
consider how much information is available, how credible it is given the
circumstances, whether or not important allegations are corroborated,
and what inferences can reasonably be drawn as a result. This assessment
should include an examination of basic documents such as grants,
cooperative agreements, loan authorizations, and contracts.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.405 Causes for suspension.
(a) Suspension may be imposed in accordance with the provisions of
Secs. 25.400 through 25.413 upon adequate evidence:
(1) To suspect the commission of an offense listed in
Sec. 25.305(a); or
(2) That a cause for debarment under Sec. 25.305 may exist.
(b) Indictment shall constitute adequate evidence for purposes of
suspension actions.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.410 Procedures.
(a) Investigation and referral. Information concerning the existence
of a cause for suspension from any source shall be promptly reported,
investigated, and referred, when appropriate, to the suspending official
for consideration. After consideration, the suspending official may
issue a notice of suspension.
(b) Decisionmaking process. Military Departments and Defense
Agencies shall process suspension actions as informally as practicable,
consistent with principles of fundamental fairness, using the procedures
in Secs. 25.411 through 25.413.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.411 Notice of suspension.
When a respondent is suspended, notice shall immediately be given:
(a) That suspension has been imposed;
(b) That the suspension is based on an indictment, conviction, or
other adequate evidence that the respondent has committed irregularities
seriously reflecting on the propriety of further Federal Government
dealings with the respondent;
(c) Describing any such irregularities in terms sufficient to put
the respondent on notice without disclosing the Federal Government's
evidence;
(d) Of the cause(s) relied upon under Sec. 25.405 for imposing
suspension;
(e) That the suspension is for a temporary period pending the
completion of an investigation or ensuing legal, debarment, or Program
Fraud Civil Remedies Act proceedings;
(f) Of the provisions of Secs. 25.411 through 25.413 and any other
Military Departments and Defense Agencies procedures, if applicable,
governing suspension decisionmaking; and
(g) Of the effect of the suspension.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.412 Opportunity to contest suspension.
(a) Submission in opposition. Within 30 days after receipt of the
notice of suspension, the respondent may submit, in person, in writing,
or through a representative, information and argument in opposition to
the suspension.
(b) Additional proceedings as to disputed material facts. (1) If the
suspending official finds that the respondent's submission in opposition
raises a genuine dispute over facts material to the suspension,
respondent(s) shall be afforded an opportunity to appear with a
representative, submit documentary evidence, present witnesses, and
confront any witness the agency presents, unless:
(i) The action is based on an indictment, conviction or civil
judgment, or
(ii) A determination is made, on the basis of Department of Justice
advice, that the substantial interests of the Federal Government in
pending or contemplated legal proceedings based on the same facts as the
suspension would be prejudiced.
[[Page 26]]
(2) A transcribed record of any additional proceedings shall be
prepared and made available at cost to the respondent, upon request,
unless the respondent and the agency, by mutual agreement, waive the
requirement for a transcript.
Sec. 25.413 Suspending official's decision.
The suspending official may modify or terminate the suspension (for
example, see Sec. 25.320(c) for reasons for reducing the period or scope
of debarment) or may leave it in force. However, a decision to modify or
terminate the suspension shall be without prejudice to the subsequent
imposition of suspension by any other agency or debarment by any agency.
The decision shall be rendered in accordance with the following
provisions:
(a) No additional proceedings necessary. In actions: based on an
indictment, conviction, or civil judgment; in which there is no genuine
dispute over material facts; or in which additional proceedings to
determine disputed material facts have been denied on the basis of
Department of Justice advice, the suspending official shall make a
decision on the basis of all the information in the administrative
record, including any submission made by the respondent. The decision
shall be made within 45 days after receipt of any information and
argument submitted by the respondent, unless the suspending official
extends this period for good cause.
(b) Additional proceedings necessary. (1) In actions in which
additional proceedings are necessary to determine disputed material
facts, written findings of fact shall be prepared. The suspending
official shall base the decision on the facts as found, together with
any information and argument submitted by the respondent and any other
information in the administrative record.
(2) The suspending official may refer matters involving disputed
material facts to another official for findings of fact. The suspending
official may reject any such findings, in whole or in part, only after
specifically determining them to be arbitrary or capricious or clearly
erroneous.
(c) Notice of suspending official's decision. Prompt written notice
of the suspending official's decision shall be sent to the respondent.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.415 Period of suspension.
(a) Suspension shall be for a temporary period pending the
completion of an investigation or ensuing legal, debarment, or Program
Fraud Civil Remedies Act proceedings, unless terminated sooner by the
suspending official or as provided in paragraph (b) of this section.
(b) If legal or administrative proceedings are not initiated within
12 months after the date of the suspension notice, the suspension shall
be terminated unless an Assistant Attorney General or United States
Attorney requests its extension in writing, in which case it may be
extended for an additional six months. In no event may a suspension
extend beyond 18 months, unless such proceedings have been initiated
within that period.
(c) The suspending official shall notify the Department of Justice
of an impending termination of a suspension, at least 30 days before the
12-month period expires, to give that Department an opportunity to
request an extension.
Sec. 25.420 Scope of suspension.
The scope of a suspension is the same as the scope of a debarment
(see Sec. 25.325), except that the procedures of Secs. 25.410 through
25.413 shall be used in imposing a suspension.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Subpart E--Responsibilities of GSA, Agency and Participants
Sec. 25.500 GSA responsibilities.
(a) In accordance with the OMB guidelines, GSA shall compile,
maintain, and distribute a list of all persons who have been debarred,
suspended, or voluntarily excluded by agencies under Executive Order
12549 and these regulations, and those who have been determined to be
ineligible.
[[Page 27]]
(b) At a minimum, this list shall indicate:
(1) The names and addresses of all debarred, suspended, ineligible,
and voluntarily excluded persons, in alphabetical order, with cross-
references when more than one name is involved in a single action;
(2) The type of action;
(3) The cause for the action;
(4) The scope of the action;
(5) Any termination date for each listing; and
(6) The agency and name and telephone number of the agency point of
contact for the action.
Sec. 25.505 Military Departments and Defense Agencies' responsibilities.
(a) The agency shall provide GSA with current information concerning
debarments, suspension, determinations of ineligibility, and voluntary
exclusions it has taken. Until February 18, 1989, the agency shall also
provide GSA and OMB with information concerning all transactions in
which Military Departments and Defense Agencies has granted exceptions
under Sec. 25.215 permitting participation by debarred, suspended, or
voluntarily excluded persons.
(b) Unless an alternative schedule is agreed to by GSA, the agency
shall advise GSA of the information set forth in Sec. 25.500(b) and of
the exceptions granted under Sec. 25.215 within five working days after
taking such actions.
(c) The agency shall direct inquiries concerning listed persons to
the agency that took the action.
(d) Agency officials shall check the Nonprocurement List before
entering covered transactions to determine whether a participant in a
primary transaction is debarred, suspended, ineligible, or voluntarily
excluded (Tel. ).
(e) Agency officials shall check the Nonprocurement List before
approving principals or lower tier participants where agency approval of
the principal or lower tier participant is required under the terms of
the transaction, to determine whether such principals or participants
are debarred, suspended, ineligible, or voluntarily excluded.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.510 Participants' responsibilities.
(a) Certification by participants in primary covered transactions.
Each participant shall submit the certification in appendix A to this
part for it and its principals at the time the participant submits its
proposal in connection with a primary covered transaction, except that
States need only complete such certification as to their principals.
Participants may decide the method and frequency by which they determine
the eligibility of their principals. In addition, each participant may,
but is not required to, check the Nonprocurement List for its principals
(Tel. ). Adverse information on the certification will not necessarily
result in denial of participation. However, the certification, and any
additional information pertaining to the certification submitted by the
participant, shall be considered in the administration of covered
transactions.
(b) Certification by participants in lower tier covered
transactions. (1) Each participant shall require participants in lower
tier covered transactions to include the certification in appendix B to
this part for it and its principals in any proposal submitted in
connection with such lower tier covered transactions.
(2) A participant may rely upon the certification of a prospective
participant in a lower tier covered transaction that it and its
principals are not debarred, suspended, ineligible, or voluntarily
excluded from the covered transaction by any Federal agency, unless it
knows that the certification is erroneous. Participants may decide the
method and frequency by which they determine the eligiblity of their
principals. In addition, a participant may, but is not required to,
check the Nonprocurement List for its principals and for participants
(Tel. ).
(c) Changed circumstances regarding certification. A participant
shall provide immediate written notice to Military Departments and
Defense Agencies if at any time the participant learns that
[[Page 28]]
its certification was erroneous when submitted or has become erroneous
by reason of changed circumstances. Participants in lower tier covered
transactions shall provide the same updated notice to the participant to
which it submitted its proposals.
Subpart F--Drug-Free Workplace Requirements (Grants)
Source: 55 FR 21688, 21697, May 25, 1990, unless otherwise noted.
Redesignated at 57 FR 6199, Feb. 21, 1992.
Sec. 25.600 Purpose.
(a) The purpose of this subpart is to carry out the Drug-Free
Workplace Act of 1988 by requiring that--
(1) A grantee, other than an individual, shall certify to the agency
that it will provide a drug-free workplace;
(2) A grantee who is an individual shall certify to the agency that,
as a condition of the grant, he or she will not engage in the unlawful
manufacture, distribution, dispensing, possession or use of a controlled
substance in conducting any activity with the grant.
(b) Requirements implementing the Drug-Free Workplace Act of 1988
for contractors with the agency are found at 48 CFR subparts 9.4, 23.5,
and 52.2.
Sec. 25.605 Definitions.
(a) Except as amended in this section, the definitions of
Sec. 25.105 apply to this subpart.
(b) For purposes of this subpart--
(1) Controlled substance means a controlled substance in schedules I
through V of the Controlled Substances Act (21 U.S.C. 812), and as
further defined by regulation at 21 CFR 1308.11 through 1308.15;
(2) Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes;
(3) Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing, use, or
possession of any controlled substance;
(4) Drug-free workplace means a site for the performance of work
done in connection with a specific grant at which employees of the
grantee are prohibited from engaging in the unlawful manufacture,
distribution, dispensing, possession, or use of a controlled substance;
(5) Employee means the employee of a grantee directly engaged in the
performance of work under the grant, including:
(i) All direct charge employees;
(ii) All indirect charge employees, unless their impact or
involvement is insignificant to the performance of the grant; and,
(iii) Temporary personnel and consultants who are directly engaged
in the performance of work under the grant and who are on the grantee's
payroll.
This definition does not include workers not on the payroll of the
grantee (e.g., volunteers, even if used to meet a matching requirement;
consultants or independent contractors not on the payroll; or employees
of subrecipients or subcontractors in covered workplaces);
(6) Federal agency or agency means any United States executive
department, military department, government corporation, government
controlled corporation, any other establishment in the executive branch
(including the Executive Office of the President), or any independent
regulatory agency;
(7) Grant means an award of financial assistance, including a
cooperative agreement, in the form of money, or property in lieu of
money, by a Federal agency directly to a grantee. The term grant
includes block grant and entitlement grant programs, whether or not
exempted from coverage under the grants management government-wide
common rule on uniform administrative requirements for grants and
cooperative agreements. The term does not include technical assistance
that provides services instead of money, or other assistance in the form
of loans, loan guarantees, interest subsidies, insurance, or direct
appropriations; or any veterans' benefits to individuals,
[[Page 29]]
i.e., any benefit to veterans, their families, or survivors by virtue of
the service of a veteran in the Armed Forces of the United States;
(8) Grantee means a person who applies for or receives a grant
directly from a Federal agency (except another Federal agency);
(9) Individual means a natural person;
(10) State means any of the States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, any territory or
possession of the United States, or any agency of a State, exclusive of
institutions of higher education, hospitals, and units of local
government. A State instrumentality will be considered part of the State
government if it has a written determination from a State government
that such State considers the instrumentality to be an agency of the
State government.
[55 FR 21688 and 21697, May. 25, 1990. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.610 Coverage.
(a) This subpart applies to any grantee of the agency.
(b) This subpart applies to any grant, except where application of
this subpart would be inconsistent with the international obligations of
the United States or the laws or regulations of a foreign government. A
determination of such inconsistency may be made only by the agency head
or his/her designee.
(1) Heads of Defense Agencies, Heads of DoD Field Activities, and
their designees are authorized to make such determinations on behalf of
the Secretary of Defense.
(2) [Reserved]
(c) The provisions of subparts A, B, C, D and E of this part apply
to matters covered by this subpart, except where specifically modified
by this subpart. In the event of any conflict between provisions of this
subpart and other provisions of this part, the provisions of this
subpart are deemed to control with respect to the implementation of
drug-free workplace requirements concerning grants.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199, Feb. 21, 1992; 60 FR 33053, June 26, 1995]
Sec. 25.615 Grounds for suspension of payments, suspension or termination of grants, or suspension or debarment.
A grantee shall be deemed in violation of the requirements of this
subpart if the agency head or his or her official designee determines,
in writing, that--
(a) The grantee has made a false certification under Sec. 25.630;
(b) With respect to a grantee other than an individual--
(1) The grantee has violated the certification by failing to carry
out the requirements of paragraphs (A)(a)-(g) and/or (B) of the
certification (Alternate I to Appendix C) or
(2) Such a number of employees of the grantee have been convicted of
violations of criminal drug statutes for violations occurring in the
workplace as to indicate that the grantee has failed to make a good
faith effort to provide a drug-free workplace.
(c) With respect to a grantee who is an individual--
(1) The grantee has violated the certification by failing to carry
out its requirements (Alternate II to Appendix C); or
(2) The grantee is convicted of a criminal drug offense resulting
from a violation occurring during the conduct of any grant activity.
[55 FR 21688 and 21697, May 25, 1990. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.616 Determinations of grantee violations.
Heads of Defense Agencies, Heads of DoD Field Activities, and their
designees are authorized to make determinations of grantee violations
under Sec. 25.615.
[60 FR 33053, June 26, 1995]
Sec. 25.620 Effect of violation.
(a) In the event of a violation of this subpart as provided in
Sec. 25.615, and in accordance with applicable law, the grantee shall be
subject to one or more of the following actions:
(1) Suspension of payments under the grant;
(2) Suspension or termination of the grant; and
[[Page 30]]
(3) Suspension or debarment of the grantee under the provisions of
this part.
(b) Upon issuance of any final decision under this part requiring
debarment of a grantee, the debarred grantee shall be ineligible for
award of any grant from any Federal agency for a period specified in the
decision, not to exceed five years (see Sec. 25.320(a)(2) of this part).
[55 FR 21688 and 21697, May 25, 1990. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.625 Exception provision.
The agency head may waive with respect to a particular grant, in
writing, a suspension of payments under a grant, suspension or
termination of a grant, or suspension or debarment of a grantee if the
agency head determines that such a waiver would be in the public
interest. This exception authority cannot be delegated to any other
official.
Sec. 25.630 Certification requirements and procedures.
(a)(1) As a prior condition of being awarded a grant, each grantee
shall make the appropriate certification to the Federal agency providing
the grant, as provided in Appendix C to this part.
(2) Grantees are not required to make a certification in order to
continue receiving funds under a grant awarded before March 18, 1989, or
under a no-cost time extension of such a grant. However, the grantee
shall make a one-time drug-free workplace certification for a non-
automatic continuation of such a grant made on or after March 18, 1989.
(b) Except as provided in this section, all grantees shall make the
required certification for each grant. For mandatory formula grants and
entitlements that have no application process, grantees shall submit a
one-time certification in order to continue receiving awards.
(c) A grantee that is a State may elect to make one certification in
each Federal fiscal year. States that previously submitted an annual
certification are not required to make a certification for Fiscal Year
1990 until June 30, 1990. Except as provided in paragraph (d) of this
section, this certification shall cover all grants to all State agencies
from any Federal agency. The State shall retain the original of this
statewide certification in its Governor's office and, prior to grant
award, shall ensure that a copy is submitted individually with respect
to each grant, unless the Federal agency has designated a central
location for submission.
(d)(1) The Governor of a State may exclude certain State agencies
from the statewide certification and authorize these agencies to submit
their own certifications to Federal agencies. The statewide
certification shall name any State agencies so excluded.
(2) A State agency to which the statewide certification does not
apply, or a State agency in a State that does not have a statewide
certification, may elect to make one certification in each Federal
fiscal year. State agencies that previously submitted a State agency
certification are not required to make a certification for Fiscal Year
1990 until June 30, 1990. The State agency shall retain the original of
this State agency-wide certification in its central office and, prior to
grant award, shall ensure that a copy is submitted individually with
respect to each grant, unless the Federal agency designates a central
location for submission.
(3) When the work of a grant is done by more than one State agency,
the certification of the State agency directly receiving the grant shall
be deemed to certify compliance for all workplaces, including those
located in other State agencies.
(e)(1) For a grant of less than 30 days performance duration,
grantees shall have this policy statement and program in place as soon
as possible, but in any case by a date prior to the date on which
performance is expected to be completed.
(2) For a grant of 30 days or more performance duration, grantees
shall have this policy statement and program in place within 30 days
after award.
(3) Where extraordinary circumstances warrant for a specific grant,
the grant officer may determine a different date on which the policy
[[Page 31]]
statement and program shall be in place.
Sec. 25.635 Reporting of and employee sanctions for convictions of criminal drug offenses.
(a) When a grantee other than an individual is notified that an
employee has been convicted for a violation of a criminal drug statute
occurring in the workplace, it shall take the following actions:
(1) Within 10 calendar days of receiving notice of the conviction,
the grantee shall provide written notice, including the convicted
employee's position title, to every grant officer, or other designee on
whose grant activity the convicted employee was working, unless a
Federal agency has designated a central point for the receipt of such
notifications. Notification shall include the identification number(s)
for each of the Federal agency's affected grants.
(2) Within 30 calendar days of receiving notice of the conviction,
the grantee shall do the following with respect to the employee who was
convicted.
(i) Take appropriate personnel action against the employee, up to
and including termination, consistent with requirements of the
Rehabilitation Act of 1973, as amended; or
(ii) Require the employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such purposes by
a Federal, State, or local health, law enforcement, or other appropriate
agency.
(b) A grantee who is an individual who is convicted for a violation
of a criminal drug statute occurring during the conduct of any grant
activity shall report the conviction, in writing, within 10 calendar
days, to his or her Federal agency grant officer, or other designee,
unless the Federal agency has designated a central point for the receipt
of such notices. Notification shall include the identification number(s)
for each of the Federal agency's affected grants.
(Approved by the Office of Management and Budget under control number
0991-0002)
Appendix A to Part 25--Certification Regarding Debarment, Suspension,
and Other Responsibility Matters--Primary Covered Transactions
Instructions for Certification
1. By signing and submitting this proposal, the prospective primary
participant is providing the certification set out below.
2. The inability of a person to provide the certification required
below will not necessarily result in denial of participation in this
covered transaction. The prospective participant shall submit an
explanation of why it cannot provide the certification set out below.
The certification or explanation will be considered in connection with
the department or agency's determination whether to enter into this
transaction. However, failure of the prospective primary participant to
furnish a certification or an explanation shall disqualify such person
from participation in this transaction.
3. The certification in this clause is a material representation of
fact upon which reliance was placed when the department or agency
determined to enter into this transaction. If it is later determined
that the prospective primary participant knowingly rendered an erroneous
certification, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction for
cause or default.
4. The prospective primary participant shall provide immediate
written notice to the department or agency to which this proposal is
submitted if at any time the prospective primary participant learns that
its certification was erroneous when submitted or has become erroneous
by reason of changed circumstances.
5. The terms covered transaction, debarred, suspended, ineligible,
lower tier covered transaction, participant, person, primary covered
transaction, principal, proposal, and voluntarily excluded, as used in
this clause, have the meanings set out in the Definitions and Coverage
sections of the rules implementing Executive Order 12549. You may
contact the department or agency to which this proposal is being
submitted for assistance in obtaining a copy of those regulations.
6. The prospective primary participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter into any lower tier covered transaction
with a person who is proposed for debarment under 48 CFR part 9, subpart
9.4, debarred, suspended, declared ineligible, or voluntarily excluded
from participation in this covered
[[Page 32]]
transaction, unless authorized by the department or agency entering into
this transaction.
7. The prospective primary participant further agrees by submitting
this proposal that it will include the clause titled ``Certification
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-
Lower Tier Covered Transaction,'' provided by the department or agency
entering into this covered transaction, without modification, in all
lower tier covered transactions and in all solicitations for lower tier
covered transactions.
8. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that it is not proposed for debarment under 48 CFR part 9,
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded
from the covered transaction, unless it knows that the certification is
erroneous. A participant may decide the method and frequency by which it
determines the eligibility of its principals. Each participant may, but
is not required to, check the List of Parties Excluded from Federal
Procurement and Nonprocurement Programs.
9. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith
the certification required by this clause. The knowledge and information
of a participant is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business
dealings.
10. Except for transactions authorized under paragraph 6 of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is proposed for
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred,
ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction for
cause or default.
Certification Regarding Debarment, Suspension, and Other Responsibility
Matters--Primary Covered Transactions
(1) The prospective primary participant certifies to the best of its
knowledge and belief, that it and its principals:
(a) Are not presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded by any Federal department
or agency;
(b) Have not within a three-year period preceding this proposal been
convicted of or had a civil judgment rendered against them for
commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (Federal, State or local)
transaction or contract under a public transaction; violation of Federal
or State antitrust statutes or commission of embezzlement, theft,
forgery, bribery, falsification or destruction of records, making false
statements, or receiving stolen property;
(c) Are not presently indicted for or otherwise criminally or
civilly charged by a governmental entity (Federal, State or local) with
commission of any of the offenses enumerated in paragraph (1)(b) of this
certification; and
(d) Have not within a three-year period preceding this application/
proposal had one or more public transactions (Federal, State or local)
terminated for cause or default.
(2) Where the prospective primary participant is unable to certify
to any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.
[60 FR 33042, June 26, 1995]
Appendix B to Part 25--Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion--Lower Tier Covered Transactions
1Instructions for Certification
1. By signing and submitting this proposal, the prospective lower
tier participant is providing the certification set out below.
2. The certification in this clause is a material representation of
fact upon which reliance was placed when this transaction was entered
into. If it is later determined that the prospective lower tier
participant knowingly rendered an erroneous certification, in addition
to other remedies available to the Federal Government the department or
agency with which this transaction originated may pursue available
remedies, including suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate
written notice to the person to which this proposal is submitted if at
any time the prospective lower tier participant learns that its
certification was erroneous when submitted or had become erroneous by
reason of changed circumstances.
4. The terms covered transaction, debarred, suspended, ineligible,
lower tier covered transaction, participant, person, primary covered
transaction, principal, proposal, and voluntarily excluded, as used in
this clause, have the meaning set out in the Definitions and Coverage
sections of rules implementing Executive Order 12549. You may contact
the person to which this proposal is submitted for assistance in
obtaining a copy of those regulations.
5. The prospective lower tier participant agrees by submitting this
proposal that, should the proposed covered transaction be
[[Page 33]]
entered into, it shall not knowingly enter into any lower tier covered
transaction with a person who is proposed for debarment under 48 CFR
part 9, subpart 9.4, debarred, suspended, declared ineligible, or
voluntarily excluded from participation in this covered transaction,
unless authorized by the department or agency with which this
transaction originated.
6. The prospective lower tier participant further agrees by
submitting this proposal that it will include this clause titled
``Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion-Lower Tier Covered Transaction,'' without
modification, in all lower tier covered transactions and in all
solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that it is not proposed for debarment under 48 CFR part 9,
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded
from covered transactions, unless it knows that the certification is
erroneous. A participant may decide the method and frequency by which it
determines the eligibility of its principals. Each participant may, but
is not required to, check the List of Parties Excluded from Federal
Procurement and Nonprocurement Programs.
8. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith
the certification required by this clause. The knowledge and information
of a participant is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business
dealings.
9. Except for transactions authorized under paragraph 5 of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is proposed for
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred,
ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or agency with which this transaction
originated may pursue available remedies, including suspension and/or
debarment.
Certification Regarding Debarment, Suspension, Ineligibility an
Voluntary Exclusion--Lower Tier Covered Transactions
(1) The prospective lower tier participant certifies, by submission
of this proposal, that neither it nor its principals is presently
debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from participation in this transaction by any
Federal department or agency.
(2) Where the prospective lower tier participant is unable to
certify to any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.
[60 FR 33042, June 26, 1995]
Appendix C to Part 25--Certification Regarding Drug-Free Workplace
Requirements
Instructions for Certification
1. By signing and/or submitting this application or grant agreement,
the grantee is providing the certification set out below.
2. The certification set out below is a material representation of
fact upon which reliance is placed when the agency awards the grant. If
it is later determined that the grantee knowingly rendered a false
certification, or otherwise violates the requirements of the Drug-Free
Workplace Act, the agency, in addition to any other remedies available
to the Federal Government, may take action authorized under the Drug-
Free Workplace Act.
3. For grantees other than individuals, Alternate I applies.
4. For grantees who are individuals, Alternate II applies.
5. Workplaces under grants, for grantees other than individuals,
need not be identified on the certification. If known, they may be
identified in the grant application. If the grantee does not identify
the workplaces at the time of application, or upon award, if there is no
application, the grantee must keep the identity of the workplace(s) on
file in its office and make the information available for Federal
inspection. Failure to identify all known workplaces constitutes a
violation of the grantee's drug-free workplace requirements.
6. Workplace identifications must include the actual address of
buildings (or parts of buildings) or other sites where work under the
grant takes place. Categorical descriptions may be used (e.g., all
vehicles of a mass transit authority or State highway department while
in operation, State employees in each local unemployment office,
performers in concert halls or radio studios).
7. If the workplace identified to the agency changes during the
performance of the grant, the grantee shall inform the agency of the
change(s), if it previously identified the workplaces in question (see
paragraph five).
8. Definitions of terms in the Nonprocurement Suspension and
Debarment common rule and Drug-Free Workplace common rule apply to this
certification. Grantees' attention is called, in particular, to the
following definitions from these rules:
Controlled substance means a controlled substance in Schedules I
through V of the Controlled Substances Act (21 U.S.C. 812) and as
further defined by regulation (21 CFR 1308.11 through 1308.15);
[[Page 34]]
Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes;
Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing, use, or
possession of any controlled substance;
Employee means the employee of a grantee directly engaged in the
performance of work under a grant, including: (i) All direct charge
employees; (ii) All indirect charge employees unless their impact or
involvement is insignificant to the performance of the grant; and, (iii)
Temporary personnel and consultants who are directly engaged in the
performance of work under the grant and who are on the grantee's
payroll. This definition does not include workers not on the payroll of
the grantee (e.g., volunteers, even if used to meet a matching
requirement; consultants or independent contractors not on the grantee's
payroll; or employees of subrecipients or subcontractors in covered
workplaces).
Certification Regarding Drug-Free Workplace Requirements
Alternate I. (Grantees Other Than Individuals)
A. The grantee certifies that it will or will continue to provide a
drug-free workplace by:
(a) Publishing a statement notifying employees that the unlawful
manufacture, distribution, dispensing, possession, or use of a
controlled substance is prohibited in the grantee's workplace and
specifying the actions that will be taken against employees for
violation of such prohibition;
(b) Establishing an ongoing drug-free awareness program to inform
employees about--
(1) The dangers of drug abuse in the workplace;
(2) The grantee's policy of maintaining a drug-free workplace;
(3) Any available drug counseling, rehabilitation, and employee
assistance programs; and
(4) The penalties that may be imposed upon employees for drug abuse
violations occurring in the workplace;
(c) Making it a requirement that each employee to be engaged in the
performance of the grant be given a copy of the statement required by
paragraph (a);
(d) Notifying the employee in the statement required by paragraph
(a) that, as a condition of employment under the grant, the employee
will--
(1) Abide by the terms of the statement; and
(2) Notify the employer in writing of his or her conviction for a
violation of a criminal drug statute occurring in the workplace no later
than five calendar days after such conviction;
(e) Notifying the agency in writing, within ten calendar days after
receiving notice under paragraph (d)(2) from an employee or otherwise
receiving actual notice of such conviction. Employers of convicted
employees must provide notice, including position title, to every grant
officer or other designee on whose grant activity the convicted employee
was working, unless the Federal agency has designated a central point
for the receipt of such notices. Notice shall include the identification
number(s) of each affected grant;
(f) Taking one of the following actions, within 30 calendar days of
receiving notice under paragraph (d)(2), with respect to any employee
who is so convicted--
(1) Taking appropriate personnel action against such an employee, up
to and including termination, consistent with the requirements of the
Rehabilitation Act of 1973, as amended; or
(2) Requiring such employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such purposes by
a Federal, State, or local health, law enforcement, or other appropriate
agency;
(g) Making a good faith effort to continue to maintain a drug-free
workplace through implementation of paragraphs (a), (b), (c), (d), (e)
and (f).
B. The grantee may insert in the space provided below the site(s)
for the performance of work done in connection with the specific grant:
Place of Performance (Street address, city, county, State, zip code)
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
Check {time} if there are workplaces on file that are not identified
here.
Alternate II. (Grantees Who Are Individuals)
(a) The grantee certifies that, as a condition of the grant, he or
she will not engage in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance in conducting
any activity with the grant;
(b) If convicted of a criminal drug offense resulting from a
violation occurring during the conduct of any grant activity, he or she
will report the conviction, in writing, within 10 calendar days of the
conviction, to every grant officer or other designee, unless the Federal
agency designates a central point for the receipt of such notices. When
notice is made to such a central point, it shall include
[[Page 35]]
the identification number(s) of each affected grant.
[55 FR 21690, 21697, May 25, 1990. Redesignated at 57 FR 6200, Feb. 21,
1992]
PART 28--NEW RESTRICTIONS ON LOBBYING--Table of Contents
Subpart A--General
Sec.
28.100 Conditions on use of funds.
28.105 Definitions.
28.110 Certification and disclosure.
Subpart B--Activities by Own Employees
28.200 Agency and legislative liaison.
28.205 Professional and technical services.
28.210 Reporting.
Subpart C--Activities by Other Than Own Employees
28.300 Professional and technical services.
Subpart D--Penalties and Enforcement
28.400 Penalties.
28.405 Penalty procedures.
28.410 Enforcement.
Subpart E--Exemptions
28.500 Secretary of Defense.
Subpart F--Agency Reports
28.600 Semi-annual compilation.
28.605 Inspector General report.
Appendix A to Part 28--Certification Regarding Lobbying
Appendix B to Part 28--Disclosure Form to Report Lobbying
Authority: Section 319, Public Law 102-121 (31 U.S.C. 1352); 5
U.S.C. section 301; 10 U.S.C. 113.
Source: 55 FR 6737 and 6752, Feb. 26, 1990. Redesignated at 57 FR
6199, Feb. 21, 1992.
Cross reference: See also Office of Management and Budget notice
published at 54 FR 52306, December 20, 1989.
Subpart A--General
Sec. 28.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative ageement to pay any person
for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with any of the following
covered Federal actions: the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in Appendix A, that the person has not
made, and will not make, any payment prohibited by paragraph (a) of this
section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in Appendix B, if such person has
made or has agreed to make any payment using nonappropriated funds (to
include profits from any covered Federal action), which would be
prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in appendix A, whether that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a disclosure form, set forth in Appendix B, if that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
[[Page 36]]
Sec. 28.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal
executive departments and agencies as well as independent regulatory
commissions and Government corporations, as defined in 31 U.S.C.
9101(1).
(b) Covered Federal action means any of the following Federal
actions:
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan, or cooperative agreement.
Covered Federal action does not include receiving from an agency a
commitment providing for the United States to insure or guarantee a
loan. Loan guarantees and loan insurance are addressed independently
within this part.
(c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR), and any other acquisition contract for real or personal property
or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
(e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. The term does not
include technical assistance which provides services instead of money,
or other assistance in the form of revenue sharing, loans, loan
guarantees, loan insurance, interest subsidies, insurance, or direct
United States cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided
in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions
of Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under title 5, U.S. Code, including a position under a temporary
appointment;
(2) A member of the uniformed services as defined in section 101(3),
title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title
18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, title 5, U.S. Code
appendix 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer
[[Page 37]]
or employee for work that is not furnished to, not funded by, or not
furnished in cooperation with the Federal Government.
(n) Reasonable payment means, with respect to perfessional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(p) Regularly employed means, with respect to an officer or employee
of a person requesting or receiving a Federal contract, grant, loan, or
cooperative agreement or a commitment providing for the United States to
insure or guarantee a loan, an officer or employee who is employed by
such person for at least 130 working days within one year immediately
preceding the date of the submission that initiates agency consideration
of such person for receipt of such contract, grant, loan, cooperative
agreement, loan insurance commitment, or loan guarantee commitment. An
officer or employee who is employed by such person for less than 130
working days within one year immediately preceding the date of the
submission that initiates agency consideration of such person shall be
considered to be regularly employed as soon as he or she is employed by
such person for 130 working days.
(q) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or possession of
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and
powers.
Sec. 28.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form,
if required, with each submission that initiates agency consideration of
such person for:
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form,
if required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(2) A Federal loan or a commitment providing for the United States
to insure or guarantee a loan exceeding $150,000,
Unless such person previously filed a certification, and a disclosure
form, if required, under paragraph (a) of this section.
(c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraphs (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in
paragraphs (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a
Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a
Federal cooperative agreement,
[[Page 38]]
Shall file a certification, and a disclosure form, if required, to the
next tier above.
(e) All disclosure forms, but not certifications, shall be forwarded
from tier to tier until received by the person referred to in paragraphs
(a) or (b) of this section. That person shall forward all disclosure
forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e)
of this section shall be treated as a material representation of fact
upon which all receiving tiers shall rely. All liability arising from an
erroneous representation shall be borne solely by the tier filing that
representation and shall not be shared by any tier to which the
erroneous representation is forwarded. Submitting an erroneous
certification or disclosure constitutes a failure to file the required
certification or disclosure, respectively. If a person fails to file a
required certification or disclosure, the United States may pursue all
available remedies, including those authorized by section 1352, title
31, U.S. Code.
(g) For awards and commitments in process prior to December 23,
1989, but not made before that date, certifications shall be required at
award or commitment, covering activities occurring between December 23,
1989, and the date of award or commitment. However, for awards and
commitments in process prior to the December 23, 1989 effective date of
these provisions, but not made before December 23, 1989, disclosure
forms shall not be required at time of award or commitment but shall be
filed within 30 days.
(h) No reporting is required for an activity paid for with
appropriated funds if that activity is allowable under either subpart B
or C.
Subpart B--Activities by Own Employees
Sec. 28.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in Sec. 28.100
(a), does not apply in the case of a payment of reasonable compensation
made to an officer or employee of a person requesting or receiving a
Federal contract, grant, loan, or cooperative agreement if the payment
is for agency and legislative liaison activities not directly related to
a covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and legislative liaison activities are allowable only where
they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an
unsolicited proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an
agency pursuant to the provisions of the Small Business Act, as amended
by Public Law 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are
allowable under this section.
[55 FR 6737 and 6752, Feb. 26, 1990. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 28.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec. 28.100
(a), does not apply in the case of a payment of reasonable compensation
made to an officer or employee of a person requesting or receiving a
Federal contract, grant, loan, or cooperative agreement
[[Page 39]]
or an extension, continuation, renewal, amendment, or modification of a
Federal contract, grant, loan, or cooperative agreement if payment is
for professional or technical services rendered directly in the
preparation, submission, or negotiation of any bid, proposal, or
application for that Federal contract, grant, loan, or cooperative
agreement or for meeting requirements imposed by or pursuant to law as a
condition for receiving that Federal contract, grant, loan, or
cooperative agreement.
(b) For purposes of paragraph (a) of this section, ``professional
and technical services'' shall be limited to advice and analysis
directly applying any professional or technical discipline. For example,
drafting of a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly and
solely in the preparation, submission or negotiation of a covered
Federal action. Thus, for example, communications with the intent to
influence made by a lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of his or her client's
proposal, but generally advocate one proposal over another are not
allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are
allowable under this section.
[55 FR 6737 and 6752, Feb. 26, 1990. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 28.210 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
Subpart C--Activities by Other Than Own Employees
Sec. 28.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec. 28.100
(a), does not apply in the case of any reasonable payment to a person,
other than an officer or employee of a person requesting or receiving a
covered Federal action, if the payment is for professional or technical
services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirments in Sec. 28.110 (a) and (b) regarding
filing a disclosure form by each person, if required, shall not apply
with respect to professional or technical services rendered directly in
the preparation, submission, or negotiation of any commitment providing
for the United States to insure or guarantee a loan.
(c) For purposes of paragraph (a) of this section, ``professional
and technical services'' shall be limited to advice and analysis
directly applying any professional or technical discipline. For example,
drafting of a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly,
[[Page 40]]
technical advice provided by an engineer on the performance or
operational capability of a piece of equipment rendered directly in the
negotiation of a contract is allowable. However, communications with the
intent to influence made by a professional (such as a licensed lawyer)
or a technical person (such as a licensed accountant) are not allowable
under this section unless they provide advice and analysis directly
applying their professional or technical expertise and unless the advice
or analysis is rendered directly and solely in the preparation,
submission or negotiation of a covered Federal action. Thus, for
example, communications with the intent to influence made by a lawyer
that do not provide legal advice or analysis directly and solely related
to the legal aspects of his or her client's proposal, but generally
advocate one proposal over another are not allowable under this section
because the lawyer is not providing professional legal services.
Similarly, communications with the intent to influence made by an
engineer providing an engineering analysis prior to the preparation or
submission of a bid or proposal are not allowable under this section
since the engineer is providing technical services but not directly in
the preparation, submission or negotiation of a covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(e) Persons other than officers or employees of a person requesting
or receiving a covered Federal action include consultants and trade
associations.
(f) Only those services expressly authorized by this section are
allowable under this section.
[55 FR 6737 and 6752, Feb. 26, 1990. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Subpart D--Penalties and Enforcement
Sec. 28.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see
Appendix B) to be filed or amended if required herein, shall be subject
to a civil penalty of not less than $10,000 and not more than $100,000
for each such failure.
(c) A filing or amended filing on or after the date on which an
administrative action for the imposition of a civil penalty is commenced
does not prevent the imposition of such civil penalty for a failure
occurring before that date. An administrative action is commenced with
respect to a failure when an investigating official determines in
writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount
of any such penalty, by reason of a violation by any person, the agency
shall consider the nature, circumstances, extent, and gravity of the
violation, the effect on the ability of such person to continue in
business, any prior violations by such person, the degree of culpability
of such person, the ability of the person to pay the penalty, and such
other matters as may be appropriate.
(e) First offenders under paragraphs (a) or (b) of this section
shall be subject to a civil penalty of $10,000, absent aggravating
circumstances. Second and subsequent offenses by persons shall be
subject to an appropriate civil penalty between $10,000 and $100,000, as
determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not
prevent the United States from seeking any other remedy that may apply
to the same conduct that is the basis for the imposition of such civil
penalty.
[[Page 41]]
Sec. 28.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C.
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and
3812, insofar as these provisions are not inconsistent with the
requirements herein.
Sec. 28.410 Enforcement.
The head of each agency shall take such actions as are necessary to
ensure that the provisions herein are vigorously implemented and
enforced in that agency.
Subpart E--Exemptions
Sec. 28.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibition whenever the Secretary
determines, in writing, that such an exemption is in the national
interest. The Secretary shall transmit a copy of each such written
exemption to Congress immediately after making such a determination.
(b) The Department of Defense may issue supplemental regulations to
implement paragraph (a) of this section.
Subpart F--Agency Reports
Sec. 28.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure
reports (see appendix B) and, on May 31 and November 30 of each year,
submit to the Secretary of the Senate and the Clerk of the House of
Representatives a report containing a compilation of the information
contained in the disclosure reports received during the six-month period
ending on March 31 or September 30, respectively, of that year.
(b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
(c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
(d) Information that is classified under Executive Order 12356 or
any successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
(e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and
Budget (OMB), are required to provide machine-readable compilations to
the Secretary of the Senate and the Clerk of the House of
Representatives no later than with the compilations due on May 31, 1991.
OMB shall provide detailed specifications in a memorandum to these
agencies.
(g) Non-major agencies are requested to provide machine-readable
compilations to the Secretary of the Senate and the Clerk of the House
of Representatives.
(h) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.
Sec. 28.605 Inspector General report.
(a) The Inspector General, or other official as specified in
paragraph (b) of this section, of each agency shall prepare and submit
to Congress each year, commencing with submission of the President's
Budget in 1991, an evaluation of the compliance of that agency with, and
the effectiveness of, the requirements herein. The evaluation may
include any recommended changes that
[[Page 42]]
may be necessary to strengthen or improve the requirements.
(b) In the case of an agency that does not have an Inspector
General, the agency official comparable to an Inspector General shall
prepare and submit the annual report, or, if there is no such comparable
official, the head of the agency shall prepare and submit the annual
report.
(c) The annual report shall be submitted at the same time the agency
submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged
violations relating to the agency's covered Federal actions during the
year covered by the report, the actions taken by the head of the agency
in the year covered by the report with respect to those alleged
violations and alleged violations in previous years, and the amounts of
civil penalties imposed by the agency in the year covered by the report.
Appendix A to Part 28--Certification Regarding Lobbying
Certification for Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge and
belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by
or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress
in connection with this Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete and submit Standard Form-LLL,
``Disclosure Form to Report Lobbying,'' in accordance with its
instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all subawards at
all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Statement for Loan Guarantees and Loan Insurance
The undersigned states, to the best of his or her knowledge and
belief, that:
If any funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this commitment
providing for the United States to insure or guarantee a loan, the
undersigned shall complete and submit Standard Form-LLL, ``Disclosure
Form to Report Lobbying,'' in accordance with its instructions.
Submission of this statement is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required statement shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
[[Page 43]]
Appendix B to Part 28--Disclosure Form to Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC23OC91.000
[[Page 44]]
[GRAPHIC] [TIFF OMITTED] TC23OC91.001
[[Page 45]]
[GRAPHIC] [TIFF OMITTED] TC23OC91.002
[[Page 46]]
PART 33--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents
Subpart A--General
Sec.
33.1 Purpose and scope of this part.
33.2 Scope of subpart.
33.3 Definitions.
33.4 Applicability.
33.5 Effect on other issuances.
33.6 Additions and exceptions.
Subpart B--Pre-Award Requirements
33.10 Forms for applying for grants.
33.11 State plans.
33.12 Special grant or subgrant conditions for ``high-risk'' grantees.
Subpart C--Post-Award Requirements
Financial Administration
33.20 Standards for financial management systems.
33.21 Payment.
33.22 Allowable costs.
33.23 Period of availability of funds.
33.24 Matching or cost sharing.
33.25 Program income.
33.26 Non-Federal audit.
Changes, Property, and Subawards
33.30 Changes.
33.31 Real property.
33.32 Equipment.
33.33 Supplies.
33.34 Copyrights.
33.35 Subawards to debarred and suspended parties.
33.36 Procurement.
33.37 Subgrants.
Reports, Records Retention, and Enforcement
33.40 Monitoring and reporting program performance.
33.41 Financial reporting.
33.42 Retention and access requirements for records.
33.43 Enforcement.
33.44 Termination for convenience.
Subpart D--After-the-Grant Requirements
33.50 Closeout.
33.51 Later disallowances and adjustments.
33.52 Collections of amounts due.
Subpart E--Entitlements [Reserved]
Authority: 5 U.S.C. 301; 10 U.S.C. 113.
Source: 53 FR 8070, 8087, Mar. 11, 1988. Redesignated at 57 FR 6200,
Feb. 21, 1992.
Subpart A--General
Sec. 33.1 Purpose and scope of this part.
This part establishes uniform administrative rules for Federal
grants and cooperative agreements and subawards to State, local and
Indian tribal governments.
Sec. 33.2 Scope of subpart.
This subpart contains general rules pertaining to this part and
procedures for control of exceptions from this part.
Sec. 33.3 Definitions.
As used in this part:
Accrued expenditures mean the charges incurred by the grantee during
a given period requiring the provision of funds for:
(1) Goods and other tangible property received;
(2) Services performed by employees, contractors, subgrantees,
subcontractors, and other payees; and
(3) Other amounts becoming owed under programs for which no current
services or performance is required, such as annuities, insurance
claims, and other benefit payments.
Accrued income means the sum of:
(1) Earnings during a given period from services performed by the
grantee and goods and other tangible property delivered to purchasers,
and
(2) Amounts becoming owed to the grantee for which no current
services or performance is required by the grantee.
Acquisition cost of an item of purchased equipment means the net
invoice unit price of the property including the cost of modifications,
attachments, accessories, or auxiliary apparatus necessary to make the
property usable for the purpose for which it was acquired. Other charges
such as the cost of installation, transportation, taxes, duty or
protective in-transit insurance, shall be included or excluded from the
unit acquisition cost in accordance with the grantee's regular
accounting practices.
Administrative requirements mean those matters common to grants in
[[Page 47]]
general, such as financial management, kinds and frequency of reports,
and retention of records. These are distinguished from ``programmatic''
requirements, which concern matters that can be treated only on a
program-by-program or grant-by-grant basis, such as kinds of activities
that can be supported by grants under a particular program.
Awarding agency means:
(1) With respect to a grant, the Federal agency, and
(2) With respect to a subgrant, the party that awarded the subgrant.
Cash contributions means the grantee's cash outlay, including the
outlay of money contributed to the grantee or subgrantee by other public
agencies and institutions, and private organizations and individuals.
When authorized by Federal legislation, Federal funds received from
other assistance agreements may be considered as grantee or subgrantee
cash contributions.
Contract means (except as used in the definitions for ``grant'' and
``subgrant'' in this section and except where qualified by ``Federal'')
a procurement contract under a grant or subgrant, and means a
procurement subcontract under a contract.
Cost sharing or matching means the value of the third party in-kind
contributions and the portion of the costs of a federally assisted
project or program not borne by the Federal Government.
Cost-type contract means a contract or subcontract under a grant in
which the contractor or subcontractor is paid on the basis of the costs
it incurs, with or without a fee.
Equipment means tangible, nonexpendable, personal property having a
useful life of more than one year and an acquisition cost of $5,000 or
more per unit. A grantee may use its own definition of equipment
provided that such definition would at least include all equipment
defined above.
Expenditure report means:
(1) For nonconstruction grants, the SF-269 ``Financial Status
Report'' (or other equivalent report);
(2) For construction grants, the SF-271 ``Outlay Report and Request
for Reimbursement'' (or other equivalent report).
Federally recognized Indian tribal government means the governing
body or a governmental agency of any Indian tribe, band, nation, or
other organized group or community (including any Native village as
defined in section 3 of the Alaska Native Claims Settlement Act, 85
Stat. 688) certified by the Secretary of the Interior as eligible for
the special programs and services provided by him through the Bureau of
Indian Affairs.
Government means a State or local government or a federally
recognized Indian tribal government.
Grant means an award of financial assistance, including cooperative
agreements, in the form of money, or property in lieu of money, by the
Federal Government to an eligible grantee. The term does not include
technical assistance which provides services instead of money, or other
assistance in the form of revenue sharing, loans, loan guarantees,
interest subsidies, insurance, or direct appropriations. Also, the term
does not include assistance, such as a fellowship or other lump sum
award, which the grantee is not required to account for.
Grantee means the government to which a grant is awarded and which
is accountable for the use of the funds provided. The grantee is the
entire legal entity even if only a particular component of the entity is
designated in the grant award document.
Local government means a county, municipality, city, town, township,
local public authority (including any public and Indian housing agency
under the United States Housing Act of 1937) school district, special
district, intrastate district, council of governments (whether or not
incorporated as a nonprofit corporation under State law), any other
regional or interstate government entity, or any agency or
instrumentality of a local government.
Obligations means the amounts of orders placed, contracts and
subgrants awarded, goods and services received, and similar transactions
during a given period that will require payment by the grantee during
the same or a future period.
OMB means the United States Office of Management and Budget.
[[Page 48]]
Outlays (expenditures) mean charges made to the project or program.
They may be reported on a cash or accrual basis. For reports prepared on
a cash basis, outlays are the sum of actual cash disbursement for direct
charges for goods and services, the amount of indirect expense incurred,
the value of in-kind contributions applied, and the amount of cash
advances and payments made to contractors and subgrantees. For reports
prepared on an accrued expenditure basis, outlays are the sum of actual
cash disbursements, the amount of indirect expense incurred, the value
of inkind contributions applied, and the new increase (or decrease) in
the amounts owed by the grantee for goods and other property received,
for services performed by employees, contractors, subgrantees,
subcontractors, and other payees, and other amounts becoming owed under
programs for which no current services or performance are required, such
as annuities, insurance claims, and other benefit payments.
Percentage of completion method refers to a system under which
payments are made for construction work according to the percentage of
completion of the work, rather than to the grantee's cost incurred.
Prior approval means documentation evidencing consent prior to
incurring specific cost.
Real property means land, including land improvements, structures
and appurtenances thereto, excluding movable machinery and equipment.
Share, when referring to the awarding agency's portion of real
property, equipment or supplies, means the same percentage as the
awarding agency's portion of the acquiring party's total costs under the
grant to which the acquisition costs under the grant to which the
acquisition cost of the property was charged. Only costs are to be
counted--not the value of third-party in-kind contributions.
State means any of the several States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, any territory or
possession of the United States, or any agency or instrumentality of a
State exclusive of local governments. The term does not include any
public and Indian housing agency under United States Housing Act of
1937.
Subgrant means an award of financial assistance in the form of
money, or property in lieu of money, made under a grant by a grantee to
an eligible subgrantee. The term includes financial assistance when
provided by contractual legal agreement, but does not include
procurement purchases, nor does it include any form of assistance which
is excluded from the definition of ``grant'' in this part.
Subgrantee means the government or other legal entity to which a
subgrant is awarded and which is accountable to the grantee for the use
of the funds provided.
Supplies means all tangible personal property other than
``equipment'' as defined in this part.
Suspension means depending on the context, either:
(1) Temporary withdrawal of the authority to obligate grant funds
pending corrective action by the grantee or subgrantee or a decision to
terminate the grant, or
(2) An action taken by a suspending official in accordance with
agency regulations implementing E.O. 12549 to immediately exclude a
person from participating in grant transactions for a period, pending
completion of an investigation and such legal or debarment proceedings
as may ensue.
Termination means permanent withdrawal of the authority to obligate
previously-awarded grant funds before that authority would otherwise
expire. It also means the voluntary relinquishment of that authority by
the grantee or subgrantee. ``Termination'' does not include:
(1) Withdrawal of funds awarded on the basis of the grantee's
underestimate of the unobligated balance in a prior period;
(2) Withdrawal of the unobligated balance as of the expiration of a
grant;
(3) Refusal to extend a grant or award additional funds, to make a
competing or noncompeting continuation, renewal, extension, or
supplemental award; or
(4) Voiding of a grant upon determination that the award was
obtained fraudulently, or was otherwise illegal or invalid from
inception.
[[Page 49]]
Terms of a grant or subgrant mean all requirements of the grant or
subgrant, whether in statute, regulations, or the award document.
Third party in-kind contributions mean property or services which
benefit a federally assisted project or program and which are
contributed by non-Federal third parties without charge to the grantee,
or a cost-type contractor under the grant agreement.
Unliquidated obligations for reports prepared on a cash basis mean
the amount of obligations incurred by the grantee that has not been
paid. For reports prepared on an accrued expenditure basis, they
represent the amount of obligations incurred by the grantee for which an
outlay has not been recorded.
Unobligated balance means the portion of the funds authorized by the
Federal agency that has not been obligated by the grantee and is
determined by deducting the cumulative obligations from the cumulative
funds authorized.
Sec. 33.4 Applicability.
(a) General. Subparts A through D of this part apply to all grants
and subgrants to governments, except where inconsistent with Federal
statutes or with regulations authorized in accordance with the exception
provision of Sec. 33.6, or:
(1) Grants and subgrants to State and local institutions of higher
education or State and local hospitals.
(2) The block grants authorized by the Omnibus Budget Reconciliation
Act of 1981 (Community Services; Preventive Health and Health Services;
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child
Health Services; Social Services; Low-Income Home Energy Assistance;
States' Program of Community Development Block Grants for Small Cities;
and Elementary and Secondary Education other than programs administered
by the Secretary of Education under title V, subtitle D, chapter 2,
section 583--the Secretary's discretionary grant program) and titles I-
III of the Job Training Partnership Act of 1982 and under the Public
Health Services Act (section 1921), Alcohol and Drug Abuse Treatment and
Rehabilitation Block Grant and part C of title V, Mental Health Service
for the Homeless Block Grant).
(3) Entitlement grants to carry out the following programs of the
Social Security Act:
(i) Aid to Needy Families with Dependent Children (title IV-A of the
Act, not including the Work Incentive Program (WIN) authorized by
section 402(a)19(G); HHS grants for WIN are subject to this part);
(ii) Child Support Enforcement and Establishment of Paternity (title
IV-D of the Act);
(iii) Foster Care and Adoption Assistance (title IV-E of the Act);
(iv) Aid to the Aged, Blind, and Disabled (titles I, X, XIV, and
XVI-AABD of the Act); and
(v) Medical Assistance (Medicaid) (title XIX of the Act) not
including the State Medicaid Fraud Control program authorized by section
1903(a)(6)(B).
(4) Entitlement grants under the following programs of The National
School Lunch Act:
(i) School Lunch (section 4 of the Act),
(ii) Commodity Assistance (section 6 of the Act),
(iii) Special Meal Assistance (section 11 of the Act),
(iv) Summer Food Service for Children (section 13 of the Act), and
(v) Child Care Food Program (section 17 of the Act).
(5) Entitlement grants under the following programs of The Child
Nutrition Act of 1966:
(i) Special Milk (section 3 of the Act), and
(ii) School Breakfast (section 4 of the Act).
(6) Entitlement grants for State Administrative expenses under The
Food Stamp Act of 1977 (section 16 of the Act).
(7) A grant for an experimental, pilot, or demonstration project
that is also supported by a grant listed in paragraph (a)(3) of this
section;
(8) Grant funds awarded under subsection 412(e) of the Immigration
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the
Refugee Education Assistance Act of 1980 (Pub. L.
[[Page 50]]
96-422, 94 Stat. 1809), for cash assistance, medical assistance, and
supplemental security income benefits to refugees and entrants and the
administrative costs of providing the assistance and benefits;
(9) Grants to local education agencies under 20 U.S.C. 236 through
241-1(a), and 242 through 244 (portions of the Impact Aid program),
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for
Handicapped Children); and
(10) Payments under the Veterans Administration's State Home Per
Diem Program (38 U.S.C. 641(a)).
(b) Entitlement programs. Entitlement programs enumerated above in
Sec. 33.4(a) (3) through (8) are subject to subpart E.
[53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 33.5 Effect on other issuances.
All other grants administration provisions of codified program
regulations, program manuals, handbooks and other nonregulatory
materials which are inconsistent with this part are superseded, except
to the extent they are required by statute, or authorized in accordance
with the exception provision in Sec. 33.6.
[53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 33.6 Additions and exceptions.
(a) For classes of grants and grantees subject to this part, Federal
agencies may not impose additional administrative requirements except in
codified regulations published in the Federal Register.
(b) Exceptions for classes of grants or grantees may be authorized
only by OMB.
(c) Exceptions on a case-by-case basis and for subgrantees may be
authorized by the affected Federal agencies.
Subpart B--Pre-Award Requirements
Sec. 33.10 Forms for applying for grants.
(a) Scope. (1) This section prescribes forms and instructions to be
used by governmental organizations (except hospitals and institutions of
higher education operated by a government) in applying for grants. This
section is not applicable, however, to formula grant programs which do
not require applicants to apply for funds on a project basis.
(2) This section applies only to applications to Federal agencies
for grants, and is not required to be applied by grantees in dealing
with applicants for subgrants. However, grantees are encouraged to avoid
more detailed or burdensome application requirements for subgrants.
(b) Authorized forms and instructions for governmental
organizations. (1) In applying for grants, applicants shall only use
standard application forms or those prescribed by the granting agency
with the approval of OMB under the Paperwork Reduction Act of 1980.
(2) Applicants are not required to submit more than the original and
two copies of preapplications or applications.
(3) Applicants must follow all applicable instructions that bear OMB
clearance numbers. Federal agencies may specify and describe the
programs, functions, or activities that will be used to plan, budget,
and evaluate the work under a grant. Other supplementary instructions
may be issued only with the approval of OMB to the extent required under
the Paperwork Reduction Act of 1980. For any standard form, except the
SF-424 facesheet, Federal agencies may shade out or instruct the
applicant to disregard any line item that is not needed.
(4) When a grantee applies for additional funding (such as a
continuation or supplemental award) or amends a previously submitted
application, only the affected pages need be submitted. Previously
submitted pages with information that is still current need not be
resubmitted.
Sec. 33.11 State plans.
(a) Scope. The statutes for some programs require States to submit
plans before receiving grants. Under regulations implementing Executive
Order 12372, ``Intergovernmental Review of Federal Programs,'' States
are allowed to simplify, consolidate and substitute plans. This section
contains additional provisions for plans that are subject to
[[Page 51]]
regulations implementing the Executive order.
(b) Requirements. A State need meet only Federal administrative or
programmatic requirements for a plan that are in statutes or codified
regulations.
(c) Assurances. In each plan the State will include an assurance
that the State shall comply with all applicable Federal statutes and
regulations in effect with respect to the periods for which it receives
grant funding. For this assurance and other assurances required in the
plan, the State may:
(1) Cite by number the statutory or regulatory provisions requiring
the assurances and affirm that it gives the assurances required by those
provisions,
(2) Repeat the assurance language in the statutes or regulations, or
(3) Develop its own language to the extent permitted by law.
(d) Amendments. A State will amend a plan whenever necessary to
reflect: (1) New or revised Federal statutes or regulations or (2) a
material change in any State law, organization, policy, or State agency
operation. The State will obtain approval for the amendment and its
effective date but need submit for approval only the amended portions of
the plan.
Sec. 33.12 Special grant or subgrant conditions for ``high-risk'' grantees.
(a) A grantee or subgrantee may be considered ``high risk'' if an
awarding agency determines that a grantee or subgrantee:
(1) Has a history of unsatisfactory performance, or
(2) Is not financially stable, or
(3) Has a management system which does not meet the management
standards set forth in this part, or
(4) Has not conformed to terms and conditions of previous awards, or
(5) Is otherwise not responsible; and if the awarding agency
determines that an award will be made, special conditions and/or
restrictions shall correspond to the high risk condition and shall be
included in the award.
(b) Special conditions or restrictions may include:
(1) Payment on a reimbursement basis;
(2) Withholding authority to proceed to the next phase until receipt
of evidence of acceptable performance within a given funding period;
(3) Requiring additional, more detailed financial reports;
(4) Additional project monitoring;
(5) Requiring the grantee or subgrantee to obtain technical or
management assistance; or
(6) Establishing additional prior approvals.
(c) If an awarding agency decides to impose such conditions, the
awarding official will notify the grantee or subgrantee as early as
possible, in writing, of:
(1) The nature of the special conditions/restrictions;
(2) The reason(s) for imposing them;
(3) The corrective actions which must be taken before they will be
removed and the time allowed for completing the corrective actions and
(4) The method of requesting reconsideration of the conditions/
restrictions imposed.
Subpart C--Post-Award Requirements
Financial Administration
Sec. 33.20 Standards for financial management systems.
(a) A State must expand and account for grant funds in accordance
with State laws and procedures for expending and accounting for its own
funds. Fiscal control and accounting procedures of the State, as well as
its subgrantees and cost-type contractors, must be sufficient to--
(1) Permit preparation of reports required by this part and the
statutes authorizing the grant, and
(2) Permit the tracing of funds to a level of expenditures adequate
to establish that such funds have not been used in violation of the
restrictions and prohibitions of applicable statutes.
(b) The financial management systems of other grantees and
subgrantees must meet the following standards:
(1) Financial reporting. Accurate, current, and complete disclosure
of the financial results of financially assisted activities must be made
in accordance
[[Page 52]]
with the financial reporting requirements of the grant or subgrant.
(2) Accounting records. Grantees and subgrantees must maintain
records which adequately identify the source and application of funds
provided for financially-assisted activities. These records must contain
information pertaining to grant or subgrant awards and authorizations,
obligations, unobligated balances, assets, liabilities, outlays or
expenditures, and income.
(3) Internal control. Effective control and accountability must be
maintained for all grant and subgrant cash, real and personal property,
and other assets. Grantees and subgrantees must adequately safeguard all
such property and must assure that it is used solely for authorized
purposes.
(4) Budget control. Actual expenditures or outlays must be compared
with budgeted amounts for each grant or subgrant. Financial information
must be related to performance or productivity data, including the
development of unit cost information whenever appropriate or
specifically required in the grant or subgrant agreement. If unit cost
data are required, estimates based on available documentation will be
accepted whenever possible.
(5) Allowable cost. Applicable OMB cost principles, agency program
regulations, and the terms of grant and subgrant agreements will be
followed in determining the reasonableness, allowability, and
allocability of costs.
(6) Source documentation. Accounting records must be supported by
such source documentation as cancelled checks, paid bills, payrolls,
time and attendance records, contract and subgrant award documents, etc.
(7) Cash management. Procedures for minimizing the time elapsing
between the transfer of funds from the U.S. Treasury and disbursement by
grantees and subgrantees must be followed whenever advance payment
procedures are used. Grantees must establish reasonable procedures to
ensure the receipt of reports on subgrantees' cash balances and cash
disbursements in sufficient time to enable them to prepare complete and
accurate cash transactions reports to the awarding agency. When advances
are made by letter-of-credit or electronic transfer of funds methods,
the grantee must make drawdowns as close as possible to the time of
making disbursements. Grantees must monitor cash drawdowns by their
subgrantees to assure that they conform substantially to the same
standards of timing and amount as apply to advances to the grantees.
(c) An awarding agency may review the adequacy of the financial
management system of any applicant for financial assistance as part of a
preaward review or at any time subsequent to award.
Sec. 33.21 Payment.
(a) Scope. This section prescribes the basic standard and the
methods under which a Federal agency will make payments to grantees, and
grantees will make payments to subgrantees and contractors.
(b) Basic standard. Methods and procedures for payment shall
minimize the time elapsing between the transfer of funds and
disbursement by the grantee or subgrantee, in accordance with Treasury
regulations at 31 CFR part 205.
(c) Advances. Grantees and subgrantees shall be paid in advance,
provided they maintain or demonstrate the willingness and ability to
maintain procedures to minimize the time elapsing between the transfer
of the funds and their disbursement by the grantee or subgrantee.
(d) Reimbursement. Reimbursement shall be the preferred method when
the requirements in paragraph (c) of this section are not met. Grantees
and subgrantees may also be paid by reimbursement for any construction
grant. Except as otherwise specified in regulation, Federal agencies
shall not use the percentage of completion method to pay construction
grants. The grantee or subgrantee may use that method to pay its
construction contractor, and if it does, the awarding agency's payments
to the grantee or subgrantee will be based on the grantee's or
subgrantee's actual rate of disbursement.
(e) Working capital advances. If a grantee cannot meet the criteria
for
[[Page 53]]
advance payments described in paragraph (c) of this section, and the
Federal agency has determined that reimbursement is not feasible because
the grantee lacks sufficient working capital, the awarding agency may
provide cash or a working capital advance basis. Under this procedure
the awarding agency shall advance cash to the grantee to cover its
estimated disbursement needs for an initial period generally geared to
the grantee's disbursing cycle. Thereafter, the awarding agency shall
reimburse the grantee for its actual cash disbursements. The working
capital advance method of payment shall not be used by grantees or
subgrantees if the reason for using such method is the unwillingness or
inability of the grantee to provide timely advances to the subgrantee to
meet the subgrantee's actual cash disbursements.
(f) Effect of program income, refunds, and audit recoveries on
payment. (1) Grantees and subgrantees shall disburse repayments to and
interest earned on a revolving fund before requesting additional cash
payments for the same activity.
(2) Except as provided in paragraph (f)(1) of this section, grantees
and subgrantees shall disburse program income, rebates, refunds,
contract settlements, audit recoveries and interest earned on such funds
before requesting additional cash payments.
(g) Withholding payments. (1) Unless otherwise required by Federal
statute, awarding agencies shall not withhold payments for proper
charges incurred by grantees or subgrantees unless--
(i) The grantee or subgrantee has failed to comply with grant award
conditions or
(ii) The grantee or subgrantee is indebted to the United States.
(2) Cash withheld for failure to comply with grant award condition,
but without suspension of the grant, shall be released to the grantee
upon subsequent compliance. When a grant is suspended, payment
adjustments will be made in accordance with Sec. 33.43(c).
(3) A Federal agency shall not make payment to grantees for amounts
that are withheld by grantees or subgrantees from payment to contractors
to assure satisfactory completion of work. Payments shall be made by the
Federal agency when the grantees or subgrantees actually disburse the
withheld funds to the contractors or to escrow accounts established to
assure satisfactory completion of work.
(h) Cash depositories. (1) Consistent with the national goal of
expanding the opportunities for minority business enterprises, grantees
and subgrantees are encouraged to use minority banks (a bank which is
owned at least 50 percent by minority group members). A list of minority
owned banks can be obtained from the Minority Business Development
Agency, Department of Commerce, Washington, DC 20230.
(2) A grantee or subgrantee shall maintain a separate bank account
only when required by Federal-State agreement.
(i) Interest earned on advances. Except for interest earned on
advances of funds exempt under the Intergovernmental Cooperation Act (31
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C.
450), grantees and subgrantees shall promptly, but at least quarterly,
remit interest earned on advances to the Federal agency. The grantee or
subgrantee may keep interest amounts up to $100 per year for
administrative expenses.
[53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 33.22 Allowable costs.
(a) Limitation on use of funds. Grant funds may be used only for:
(1) The allowable costs of the grantees, subgrantees and cost-type
contractors, including allowable costs in the form of payments to fixed-
price contractors; and
(2) Reasonable fees or profit to cost-type contractors but not any
fee or profit (or other increment above allowable costs) to the grantee
or subgrantee.
(b) Applicable cost principles. For each kind of organization, there
is a set of Federal principles for determining allowable costs.
Allowable costs will be determined in accordance with the cost
principles applicable to the organization incurring the costs. The
following chart lists the kinds of organizations and the applicable cost
principles.
[[Page 54]]
------------------------------------------------------------------------
For the costs of a-- Use the principles in--
------------------------------------------------------------------------
State, local or Indian tribal government.. OMB Circular A-87.
Private nonprofit organization other than OMB Circular A-122.
an (1) institution of higher education,
(2) hospital, or (3) organization named
in OMB Circular A-122 as not subject to
that circular.
Educational institutions.................. OMB Circular A-21.
For-profit organization other than a 48 CFR part 31. Contract
hospital and an organization named in OBM Cost Principles and
Circular A-122 as not subject to that Procedures, or uniform cost
circular. accounting standards that
comply with cost principles
acceptable to the Federal
agency.
------------------------------------------------------------------------
Sec. 33.23 Period of availability of funds.
(a) General. Where a funding period is specified, a grantee may
charge to the award only costs resulting from obligations of the funding
period unless carryover of unobligated balances is permitted, in which
case the carryover balances may be charged for costs resulting from
obligations of the subsequent funding period.
(b) Liquidation of obligations. A grantee must liquidate all
obligations incurred under the award not later than 90 days after the
end of the funding period (or as specified in a program regulation) to
coincide with the submission of the annual Financial Status Report (SF-
269). The Federal agency may extend this deadline at the request of the
grantee.
Sec. 33.24 Matching or cost sharing.
(a) Basic rule: Costs and contributions acceptable. With the
qualifications and exceptions listed in paragraph (b) of this section, a
matching or cost sharing requirement may be satisfied by either or both
of the following:
(1) Allowable costs incurred by the grantee, subgrantee or a cost-
type contractor under the assistance agreement. This includes allowable
costs borne by non-Federal grants or by others cash donations from non-
Federal third parties.
(2) The value of third party in-kind contributions applicable to the
period to which the cost sharing or matching requirements applies.
(b) Qualifications and exceptions--(1) Costs borne by other Federal
grant agreements. Except as provided by Federal statute, a cost sharing
or matching requirement may not be met by costs borne by another Federal
grant. This prohibition does not apply to income earned by a grantee or
subgrantee from a contract awarded under another Federal grant.
(2) General revenue sharing. For the purpose of this section,
general revenue sharing funds distributed under 31 U.S.C. 6702 are not
considered Federal grant funds.
(3) Cost or contributions counted towards other Federal costs-
sharing requirements. Neither costs nor the values of third party in-
kind contributions may count towards satisfying a cost sharing or
matching requirement of a grant agreement if they have been or will be
counted towards satisfying a cost sharing or matching requirement of
another Federal grant agreement, a Federal procurement contract, or any
other award of Federal funds.
(4) Costs financed by program income. Costs financed by program
income, as defined in Sec. 33.25, shall not count towards satisfying a
cost sharing or matching requirement unless they are expressly permitted
in the terms of the assistance agreement. (This use of general program
income is described in Sec. 33.25(g).)
(5) Services or property financed by income earned by contractors.
Contractors under a grant may earn income from the activities carried
out under the contract in addition to the amounts earned from the party
awarding the contract. No costs of services or property supported by
this income may count toward satisfying a cost sharing or matching
requirement unless other provisions of the grant agreement expressly
permit this kind of income to be used to meet the requirement.
(6) Records. Costs and third party in-kind contributions counting
towards satisfying a cost sharing or matching requirement must be
verifiable from the records of grantees and subgrantee or cost-type
contractors. These records must show how the value placed on third party
in-kind contributions was derived. To the extent feasible, volunteer
services will be supported by the same methods that the organization
[[Page 55]]
uses to support the allocability of regular personnel costs.
(7) Special standards for third party in-kind contributions. (i)
Third party in-kind contributions count towards satisfying a cost
sharing or matching requirement only where, if the party receiving the
contributions were to pay for them, the payments would be allowable
costs.
(ii) Some third party in-kind contributions are goods and services
that, if the grantee, subgrantee, or contractor receiving the
contribution had to pay for them, the payments would have been an
indirect costs. Costs sharing or matching credit for such contributions
shall be given only if the grantee, subgrantee, or contractor has
established, along with its regular indirect cost rate, a special rate
for allocating to individual projects or programs the value of the
contributions.
(iii) A third party in-kind contribution to a fixed-price contract
may count towards satisfying a cost sharing or matching requirement only
if it results in:
(A) An increase in the services or property provided under the
contract (without additional cost to the grantee or subgrantee) or
(B) A cost savings to the grantee or subgrantee.
(iv) The values placed on third party in-kind contributions for cost
sharing or matching purposes will conform to the rules in the succeeding
sections of this part. If a third party in-kind contribution is a type
not treated in those sections, the value placed upon it shall be fair
and reasonable.
(c) Valuation of donated services--(1) Volunteer services. Unpaid
services provided to a grantee or subgrantee by individuals will be
valued at rates consistent with those ordinarily paid for similar work
in the grantee's or subgrantee's organization. If the grantee or
subgrantee does not have employees performing similar work, the rates
will be consistent with those ordinarily paid by other employers for
similar work in the same labor market. In either case, a reasonable
amount for fringe benefits may be included in the valuation.
(2) Employees of other organizations. When an employer other than a
grantee, subgrantee, or cost-type contractor furnishes free of charge
the services of an employee in the employee's normal line of work, the
services will be valued at the employee's regular rate of pay exclusive
of the employee's fringe benefits and overhead costs. If the services
are in a different line of work, paragraph (c)(1) of this section
applies.
(d) Valuation of third party donated supplies and loaned equipment
or space. (1) If a third party donates supplies, the contribution will
be valued at the market value of the supplies at the time of donation.
(2) If a third party donates the use of equipment or space in a
building but retains title, the contribution will be valued at the fair
rental rate of the equipment or space.
(e) Valuation of third party donated equipment, buildings, and land.
If a third party donates equipment, buildings, or land, and title passes
to a grantee or subgrantee, the treatment of the donated property will
depend upon the purpose of the grant or subgrant, as follows:
(1) Awards for capital expenditures. If the purpose of the grant or
subgrant is to assist the grantee or subgrantee in the acquisition of
property, the market value of that property at the time of donation may
be counted as cost sharing or matching,
(2) Other awards. If assisting in the acquisition of property is not
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of
this section apply:
(i) If approval is obtained from the awarding agency, the market
value at the time of donation of the donated equipment or buildings and
the fair rental rate of the donated land may be counted as cost sharing
or matching. In the case of a subgrant, the terms of the grant agreement
may require that the approval be obtained from the Federal agency as
well as the grantee. In all cases, the approval may be given only if a
purchase of the equipment or rental of the land would be approved as an
allowable direct cost. If any part of the donated property was acquired
with Federal funds, only the non-Federal share of the property may be
counted as cost-sharing or matching.
[[Page 56]]
(ii) If approval is not obtained under paragraph (e)(2)(i) of this
section, no amount may be counted for donated land, and only
depreciation or use allowances may be counted for donated equipment and
buildings. The depreciation or use allowances for this property are not
treated as third party in-kind contributions. Instead, they are treated
as costs incurred by the grantee or subgrantee. They are computed and
allocated (usually as indirect costs) in accordance with the cost
principles specified in Sec. 33.22, in the same way as depreciation or
use allowances for purchased equipment and buildings. The amount of
depreciation or use allowances for donated equipment and buildings is
based on the property's market value at the time it was donated.
(f) Valuation of grantee or subgrantee donated real property for
construction/acquisition. If a grantee or subgrantee donates real
property for a construction or facilities acquisition project, the
current market value of that property may be counted as cost sharing or
matching. If any part of the donated property was acquired with Federal
funds, only the non-Federal share of the property may be counted as cost
sharing or matching.
(g) Appraisal of real property. In some cases under paragraphs (d),
(e) and (f) of this section, it will be necessary to establish the
market value of land or a building or the fair rental rate of land or of
space in a building. In these cases, the Federal agency may require the
market value or fair rental value be set by an independent appraiser,
and that the value or rate be certified by the grantee. This requirement
will also be imposed by the grantee on subgrantees.
[53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 33.25 Program income.
(a) General. Grantees are encouraged to earn income to defray
program costs. Program income includes income from fees for services
performed, from the use or rental of real or personal property acquired
with grant funds, from the sale of commodities or items fabricated under
a grant agreement, and from payments of principal and interest on loans
made with grant funds. Except as otherwise provided in regulations of
the Federal agency, program income does not include interest on grant
funds, rebates, credits, discounts, refunds, etc. and interest earned on
any of them.
(b) Definition of program income. Program income means gross income
received by the grantee or subgrantee directly generated by a grant
supported activity, or earned only as a result of the grant agreement
during the grant period. ``During the grant period'' is the time between
the effective date of the award and the ending date of the award
reflected in the final financial report.
(c) Cost of generating program income. If authorized by Federal
regulations or the grant agreement, costs incident to the generation of
program income may be deducted from gross income to determine program
income.
(d) Governmental revenues. Taxes, special assessments, levies,
fines, and other such revenues raised by a grantee or subgrantee are not
program income unless the revenues are specifically identified in the
grant agreement or Federal agency regulations as program income.
(e) Royalties. Income from royalties and license fees for
copyrighted material, patents, and inventions developed by a grantee or
subgrantee is program income only if the revenues are specifically
identified in the grant agreement or Federal agency regulations as
program income. (See Sec. 33.34.)
(f) Property. Proceeds from the sale of real property or equipment
will be handled in accordance with the requirements of Secs. 33.31 and
33.32.
(g) Use of program income. Program income shall be deducted from
outlays which may be both Federal and non-Federal as described below,
unless the Federal agency regulations or the grant agreement specify
another alternative (or a combination of the alternatives). In
specifying alternatives, the Federal agency may distinguish between
income earned by the grantee and income earned by subgrantees and
between the sources, kinds, or amounts of income. When Federal agencies
authorize the alternatives in paragraphs (g) (2) and (3) of this
section, program
[[Page 57]]
income in excess of any limits stipulated shall also be deducted from
outlays.
(1) Deduction. Ordinarily program income shall be deducted from
total allowable costs to determine the net allowable costs. Program
income shall be used for current costs unless the Federal agency
authorizes otherwise. Program income which the grantee did not
anticipate at the time of the award shall be used to reduce the Federal
agency and grantee contributions rather than to increase the funds
committed to the project.
(2) Addition. When authorized, program income may be added to the
funds committed to the grant agreement by the Federal agency and the
grantee. The program income shall be used for the purposes and under the
conditions of the grant agreement.
(3) Cost sharing or matching. When authorized, program income may be
used to meet the cost sharing or matching requirement of the grant
agreement. The amount of the Federal grant award remains the same.
(h) Income after the award period. There are no Federal requirements
governing the disposition of program income earned after the end of the
award period (i.e., until the ending date of the final financial report,
see paragraph (a) of this section), unless the terms of the agreement or
the Federal agency regulations provide otherwise.
[53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 33.26 Non-Federal audit.
(a) Basic rule. Grantees and subgrantees are responsible for
obtaining audits in accordance with the Single Audit Act of 1984 (31
U.S.C. 7501-7) and Federal agency implementing regulations. The audits
shall be made by an independent auditor in accordance with generally
accepted government auditing standards covering financial and compliance
audits.
(b) Subgrantees. State or local governments, as those terms are
defined for purposes of the Single Audit Act, that receive Federal
financial assistance and provide $25,000 or more of it in a fiscal year
to a subgrantee shall:
(1) Determine whether State or local subgrantees have met the audit
requirements of the Act and whether subgrantees covered by OMB Circular
A-110, ``Uniform Requirements for Grants and Other Agreements with
Institutions of Higher Education, Hospitals and Other Nonprofit
Organizations'' have met the audit requirement. Commercial contractors
(private forprofit and private and governmental organizations) providing
goods and services to State and local governments are not required to
have a single audit performed. State and local govenments should use
their own procedures to ensure that the contractor has complied with
laws and regulations affecting the expenditure of Federal funds;
(2) Determine whether the subgrantee spent Federal assistance funds
provided in accordance with applicable laws and regulations. This may be
accomplished by reviewing an audit of the subgrantee made in accordance
with the Act, Circular A-110, or through other means (e.g., program
reviews) if the subgrantee has not had such an audit;
(3) Ensure that appropriate corrective action is taken within six
months after receipt of the audit report in instance of noncompliance
with Federal laws and regulations;
(4) Consider whether subgrantee audits necessitate adjustment of the
grantee's own records; and
(5) Require each subgrantee to permit independent auditors to have
access to the records and financial statements.
(c) Auditor selection. In arranging for audit services, Sec. 33.36
shall be followed.
[53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Changes, Property, and Subawards
Sec. 33.30 Changes.
(a) General. Grantees and subgrantees are permitted to rebudget
within the approved direct cost budget to meet unanticipated
requirements and may make limited program changes to the approved
project. However, unless waived by the awarding agency, certain types of
post-award changes in budgets and projects shall require the prior
[[Page 58]]
written approval of the awarding agency.
(b) Relation to cost principles. The applicable cost principles (see
Sec. 33.22) contain requirements for prior approval of certain types of
costs. Except where waived, those requirements apply to all grants and
subgrants even if paragraphs (c) through (f) of this section do not.
(c) Budget changes--(1) Nonconstruction projects. Except as stated
in other regulations or an award document, grantees or subgrantees shall
obtain the prior approval of the awarding agency whenever any of the
following changes is anticipated under a nonconstruction award:
(i) Any revision which would result in the need for additional
funding.
(ii) Unless waived by the awarding agency, cumulative transfers
among direct cost categories, or, if applicable, among separately
budgeted programs, projects, functions, or activities which exceed or
are expected to exceed ten percent of the current total approved budget,
whenever the awarding agency's share exceeds $100,000.
(iii) Transfer of funds allotted for training allowances (i.e., from
direct payments to trainees to other expense categories).
(2) Construction projects. Grantees and subgrantees shall obtain
prior written approval for any budget revision which would result in the
need for additional funds.
(3) Combined construction and nonconstruction projects. When a grant
or subgrant provides funding for both construction and nonconstruction
activities, the grantee or subgrantee must obtain prior written approval
from the awarding agency before making any fund or budget transfer from
nonconstruction to construction or vice versa.
(d) Programmatic changes. Grantees or subgrantees must obtain the
prior approval of the awarding agency whenever any of the following
actions is anticipated:
(1) Any revision of the scope or objectives of the project
(regardless of whether there is an associated budget revision requiring
prior approval).
(2) Need to extend the period of availability of funds.
(3) Changes in key persons in cases where specified in an
application or a grant award. In research projects, a change in the
project director or principal investigator shall always require approval
unless waived by the awarding agency.
(4) Under nonconstruction projects, contracting out, subgranting (if
authorized by law) or otherwise obtaining the services of a third party
to perform activities which are central to the purposes of the award.
This approval requirement is in addition to the approval requirements of
Sec. 33.36 but does not apply to the procurement of equipment, supplies,
and general support services.
(e) Additional prior approval requirements. The awarding agency may
not require prior approval for any budget revision which is not
described in paragraph (c) of this section.
(f) Requesting prior approval. (1) A request for prior approval of
any budget revision will be in the same budget formal the grantee used
in its application and shall be accompanied by a narrative justification
for the proposed revision.
(2) A request for a prior approval under the applicable Federal cost
principles (see Sec. 33.22) may be made by letter.
(3) A request by a subgrantee for prior approval will be addressed
in writing to the grantee. The grantee will promptly review such request
and shall approve or disapprove the request in writing. A grantee will
not approve any budget or project revision which is inconsistent with
the purpose or terms and conditions of the Federal grant to the grantee.
If the revision, requested by the subgrantee would result in a change to
the grantee's approved project which requires Federal prior approval,
the grantee will obtain the Federal agency's approval before approving
the subgrantee's request.
[53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 33.31 Real property.
(a) Title. Subject to the obligations and conditions set forth in
this section, title to real property acquired under a
[[Page 59]]
grant or subgrant will vest upon acquisition in the grantee or
subgrantee respectively.
(b) Use. Except as otherwise provided by Federal statutes, real
property will be used for the originally authorized purposes as long as
needed for that purposes, and the grantee or subgrantee shall not
dispose of or encumber its title or other interests.
(c) Disposition. When real property is no longer needed for the
originally authorized purpose, the grantee or subgrantee will request
disposition instructions from the awarding agency. The instructions will
provide for one of the following alternatives:
(1) Retention of title. Retain title after compensating the awarding
agency. The amount paid to the awarding agency will be computed by
applying the awarding agency's percentage of participation in the cost
of the original purchase to the fair market value of the property.
However, in those situations where a grantee or subgrantee is disposing
of real property acquired with grant funds and acquiring replacement
real property under the same program, the net proceeds from the
disposition may be used as an offset to the cost of the replacement
property.
(2) Sale of property. Sell the property and compensate the awarding
agency. The amount due to the awarding agency will be calculated by
applying the awarding agency's percentage of participation in the cost
of the original purchase to the proceeds of the sale after deduction of
any actual and reasonable selling and fixing-up expenses. If the grant
is still active, the net proceeds from sale may be offset against the
original cost of the property. When a grantee or subgrantee is directed
to sell property, sales procedures shall be followed that provide for
competition to the extent practicable and result in the highest possible
return.
(3) Transfer of title. Transfer title to the awarding agency or to a
third-party designated/approved by the awarding agency. The grantee or
subgrantee shall be paid an amount calculated by applying the grantee or
subgrantee's percentage of participation in the purchase of the real
property to the current fair market value of the property.
Sec. 33.32 Equipment.
(a) Title. Subject to the obligations and conditions set forth in
this section, title to equipment acquired under a grant or subgrant will
vest upon acquisition in the grantee or subgrantee respectively.
(b) States. A State will use, manage, and dispose of equipment
acquired under a grant by the State in accordance with State laws and
procedures. Other grantees and subgrantees will follow paragraphs (c)
through (e) of this section.
(c) Use. (1) Equipment shall be used by the grantee or subgrantee in
the program or project for which it was acquired as long as needed,
whether or not the project or program continues to be supported by
Federal funds. When no longer needed for the original program or
project, the equipment may be used in other activities currently or
previously supported by a Federal agency.
(2) The grantee or subgrantee shall also make equipment available
for use on other projects or programs currently or previously supported
by the Federal Government, providing such use will not interfere with
the work on the projects or program for which it was originally
acquired. First preference for other use shall be given to other
programs or projects supported by the awarding agency. User fees should
be considered if appropriate.
(3) Notwithstanding the encouragement in Sec. 33.25(a) to earn
program income, the grantee or subgrantee must not use equipment
acquired with grant funds to provide services for a fee to compete
unfairly with private companies that provide equivalent services, unless
specifically permitted or contemplated by Federal statute.
(4) When acquiring replacement equipment, the grantee or subgrantee
may use the equipment to be replaced as a trade-in or sell the property
and use the proceeds to offset the cost of the replacement property,
subject to the approval of the awarding agency.
(d) Management requirements. Procedures for managing equipment
(including replacement equipment), whether acquired in whole or in part
with grant funds, until disposition takes place
[[Page 60]]
will, as a minimum, meet the following requirements:
(1) Property records must be maintained that include a description
of the property, a serial number or other identification number, the
source of property, who holds title, the acquisition date, and cost of
the property, percentage of Federal participation in the cost of the
property, the location, use and condition of the property, and any
ultimate disposition data including the date of disposal and sale price
of the property.
(2) A physical inventory of the property must be taken and the
results reconciled with the property records at least once every two
years.
(3) A control system must be developed to ensure adequate safeguards
to prevent loss, damage, or theft of the property. Any loss, damage, or
theft shall be investigated.
(4) Adequate maintenance procedures must be developed to keep the
property in good condition.
(5) If the grantee or subgrantee is authorized or required to sell
the property, proper sales procedures must be established to ensure the
highest possible return.
(e) Disposition. When original or replacement equipment acquired
under a grant or subgrant is no longer needed for the original project
or program or for other activities currently or previously supported by
a Federal agency, disposition of the equipment will be made as follows:
(1) Items of equipment with a current per-unit fair market value of
less than $5,000 may be retained, sold or otherwise disposed of with no
further obligation to the awarding agency.
(2) Items of equipment with a current per unit fair market value in
excess of $5,000 may be retained or sold and the awarding agency shall
have a right to an amount calculated by multiplying the current market
value or proceeds from sale by the awarding agency's share of the
equipment.
(3) In cases where a grantee or subgrantee fails to take appropriate
disposition actions, the awarding agency may direct the grantee or
subgrantee to take excess and disposition actions.
(f) Federal equipment. In the event a grantee or subgrantee is
provided federally-owned equipment:
(1) Title will remain vested in the Federal Government.
(2) Grantees or subgrantees will manage the equipment in accordance
with Federal agency rules and procedures, and submit an annual inventory
listing.
(3) When the equipment is no longer needed, the grantee or
subgrantee will request disposition instructions from the Federal
agency.
(g) Right to transfer title. The Federal awarding agency may reserve
the right to transfer title to the Federal Government or a third part
named by the awarding agency when such a third party is otherwise
eligible under existing statutes. Such transfers shall be subject to the
following standards:
(1) The property shall be identified in the grant or otherwise made
known to the grantee in writing.
(2) The Federal awarding agency shall issue disposition instruction
within 120 calendar days after the end of the Federal support of the
project for which it was acquired. If the Federal awarding agency fails
to issue disposition instructions within the 120 calendar-day period the
grantee shall follow Sec. 33.32(e).
(3) When title to equipment is transferred, the grantee shall be
paid an amount calculated by applying the percentage of participation in
the purchase to the current fair market value of the property.
[53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57 FR
6199 and 6201, Feb. 21, 1992]
Sec. 33.33 Supplies.
(a) Title. Title to supplies acquired under a grant or subgrant will
vest, upon acquisition, in the grantee or subgrantee respectively.
(b) Disposition. If there is a residual inventory of unused supplies
exceeding $5,000 in total aggregate fair market value upon termination
or completion of the award, and if the supplies are not needed for any
other federally sponsored programs or projects, the grantee or
subgrantee shall compensate the awarding agency for its share.
[[Page 61]]
Sec. 33.34 Copyrights.
The Federal awarding agency reserves a royalty-free, nonexclusive,
and irrevocable license to reproduce, publish or otherwise use, and to
authorize others to use, for Federal Government purposes:
(a) The copyright in any work developed under a grant, subgrant, or
contract under a grant or subgrant; and
(b) Any rights of copyright to which a grantee, subgrantee or a
contractor purchases ownership with grant support.
Sec. 33.35 Subawards to debarred and suspended parties.
Grantees and subgrantees must not make any award or permit any award
(subgrant or contract) at any tier to any party which is debarred or
suspended or is otherwise excluded from or ineligible for participation
in Federal assistance programs under Executive Order 12549, ``Debarment
and Suspension.''
Sec. 33.36 Procurement.
(a) States. When procuring property and services under a grant, a
State will follow the same policies and procedures it uses for
procurements from its non-Federal funds. The State will ensure that
every purchase order or other contract includes any clauses required by
Federal statutes and executive orders and their implementing
regulations. Other grantees and subgrantees will follow paragraphs (b)
through (i) in this section.
(b) Procurement standards. (1) Grantees and subgrantees will use
their own procurement procedures which reflect applicable State and
local laws and regulations, provided that the procurements conform to
applicable Federal law and the standards identified in this section.
(2) Grantees and subgrantees will maintain a contract administration
system which ensures that contractors perform in accordance with the
terms, conditions, and specifications of their contracts or purchase
orders.
(3) Grantees and subgrantees will maintain a written code of
standards of conduct governing the performance of their employees
engaged in the award and administration of contracts. No employee,
officer or agent of the grantee or subgrantee shall participate in
selection, or in the award or administration of a contract supported by
Federal funds if a conflict of interest, real or apparent, would be
involved. Such a conflict would arise when:
(i) The employee, officer or agent,
(ii) Any member of his immediate family,
(iii) His or her partner, or
(iv) An organization which employs, or is about to employ, any of
the above, has a financial or other interest in the firm selected for
award. The grantee's or subgrantee's officers, employees or agents will
neither solicit nor accept gratuities, favors or anything of monetary
value from contractors, potential contractors, or parties to
subagreements. Grantee and subgrantees may set minimum rules where the
financial interest is not substantial or the gift is an unsolicited item
of nominal intrinsic value. To the extent permitted by State or local
law or regulations, such standards or conduct will provide for
penalties, sanctions, or other disciplinary actions for violations of
such standards by the grantee's and subgrantee's officers, employees, or
agents, or by contractors or their agents. The awarding agency may in
regulation provide additional prohibitions relative to real, apparent,
or potential conflicts of interest.
(4) Grantee and subgrantee procedures will provide for a review of
proposed procurements to avoid purchase of unnecessary or duplicative
items. Consideration should be given to consolidating or breaking out
procurements to obtain a more economical purchase. Where appropriate, an
analysis will be made of lease versus purchase alternatives, and any
other appropriate analysis to determine the most economical approach.
(5) To foster greater economy and efficiency, grantees and
subgrantees are encouraged to enter into State and local
intergovernmental agreements for procurement or use of common goods and
services.
(6) Grantees and subgrantees are encouraged to use Federal excess
and surplus property in lieu of purchasing new equipment and property
whenever such
[[Page 62]]
use is feasible and reduces project costs.
(7) Grantees and subgrantees are encouraged to use value engineering
clauses in contracts for construction projects of sufficient size to
offer reasonable opportunities for cost reductions. Value engineering is
a systematic and creative anaylsis of each contract item or task to
ensure that its essential function is provided at the overall lower
cost.
(8) Grantees and subgrantees will make awards only to responsible
contractors possessing the ability to perform successfully under the
terms and conditions of a proposed procurement. Consideration will be
given to such matters as contractor integrity, compliance with public
policy, record of past performance, and financial and technical
resources.
(9) Grantees and subgrantees will maintain records sufficient to
detail the significant history of a procurement. These records will
include, but are not necessarily limited to the following: rationale for
the method of procurement, selection of contract type, contractor
selection or rejection, and the basis for the contract price.
(10) Grantees and subgrantees will use time and material type
contracts only--
(i) After a determination that no other contract is suitable, and
(ii) If the contract includes a ceiling price that the contractor
exceeds at its own risk.
(11) Grantees and subgrantees alone will be responsible, in
accordance with good administrative practice and sound business
judgment, for the settlement of all contractual and administrative
issues arising out of procurements. These issues include, but are not
limited to source evaluation, protests, disputes, and claims. These
standards do not relieve the grantee or subgrantee of any contractual
responsibilities under its contracts. Federal agencies will not
substitute their judgment for that of the grantee or subgrantee unless
the matter is primarily a Federal concern. Violations of law will be
referred to the local, State, or Federal authority having proper
jurisdiction.
(12) Grantees and subgrantees will have protest procedures to handle
and resolve disputes relating to their procurements and shall in all
instances disclose information regarding the protest to the awarding
agency. A protestor must exhaust all administrative remedies with the
grantee and subgrantee before pursuing a protest with the Federal
agency. Reviews of protests by the Federal agency will be limited to:
(i) Violations of Federal law or regulations and the standards of
this section (violations of State or local law will be under the
jurisdiction of State or local authorities) and
(ii) Violations of the grantee's or subgrantee's protest procedures
for failure to review a complaint or protest. Protests received by the
Federal agency other than those specified above will be referred to the
grantee or subgrantee.
(c) Competition. (1) All procurement transactions will be conducted
in a manner providing full and open competition consistent with the
standards of Sec. 33.36. Some of the situations considered to be
restrictive of competition include but are not limited to:
(i) Placing unreasonable requirements on firms in order for them to
qualify to do business,
(ii) Requiring unnecessary experience and excessive bonding,
(iii) Noncompetitive pricing practices between firms or between
affiliated companies,
(iv) Noncompetitive awards to consultants that are on retainer
contracts,
(v) Organizational conflicts of interest,
(vi) Specifying only a ``brand name'' product instead of allowing
``an equal'' product to be offered and describing the performance of
other relevant requirements of the procurement, and
(vii) Any arbitrary action in the procurement process.
(2) Grantees and subgrantees will conduct procurements in a manner
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or
proposals, except in those cases where applicable Federal statutes
expressly mandate or encourage geographic preference. Nothing in this
section preempts State licensing laws. When contracting for
architectural and engineering (A/E) services,
[[Page 63]]
geographic location may be a selection criteria provided its application
leaves an appropriate number of qualified firms, given the nature and
size of the project, to compete for the contract.
(3) Grantees will have written selection procedures for procurement
transactions. These procedures will ensure that all solicitations:
(i) Incorporate a clear and accurate description of the technical
requirements for the material, product, or service to be procured. Such
description shall not, in competitive procurements, contain features
which unduly restrict competition. The description may include a
statement of the qualitative nature of the material, product or service
to be procured, and when necessary, shall set forth those minimum
essential characteristics and standards to which it must conform if it
is to satisfy its intended use. Detailed product specifications should
be avoided if at all possible. When it is impractical or uneconomical to
make a clear and accurate description of the technical requirements, a
``brand name or equal'' description may be used as a means to define the
performance or other salient requirements of a procurement. The specific
features of the named brand which must be met by offerors shall be
clearly stated; and
(ii) Identify all requirements which the offerors must fulfill and
all other factors to be used in evaluating bids or proposals.
(4) Grantees and subgrantees will ensure that all prequalified lists
of persons, firms, or products which are used in acquiring goods and
services are current and include enough qualified sources to ensure
maximum open and free competition. Also, grantees and subgrantees will
not preclude potential bidders from qualifying during the solicitation
period.
(d) Methods of procurement to be followed--(1) Procurement by small
purchase procedures. Small purchase procedures are those relatively
simple and informal procurement methods for securing services, supplies,
or other property that do not cost more than the simplified acquisition
threshold fixed at 41 U.S.C. 403(11) (currently set at $100,000). If
small purchase procedures are used, price or rate quotations shall be
obtained from an adequate number of qualified sources.
(2) Procurement by sealed bids (formal advertising). Bids are
publicly solicited and a firm-fixed-price contract (lump sum or unit
price) is awarded to the responsible bidder whose bid, conforming with
all the material terms and conditions of the invitation for bids, is the
lowest in price. The sealed bid method is the preferred method for
procuring construction, if the conditions in Sec. 33.36(d)(2)(i) apply.
(i) In order for sealed bidding to be feasible, the following
conditions should be present:
(A) A complete, adequate, and realistic specification or purchase
description is available;
(B) Two or more responsible bidders are willing and able to compete
effectively and for the business; and
(C) The procurement lends itself to a firm fixed price contract and
the selection of the successful bidder can be made principally on the
basis of price.
(ii) If sealed bids are used, the following requirements apply:
(A) The invitation for bids will be publicly advertised and bids
shall be solicited from an adequate number of known suppliers, providing
them sufficient time prior to the date set for opening the bids;
(B) The invitation for bids, which will include any specifications
and pertinent attachments, shall define the items or services in order
for the bidder to properly respond;
(C) All bids will be publicly opened at the time and place
prescribed in the invitation for bids;
(D) A firm fixed-price contract award will be made in writing to the
lowest responsive and responsible bidder. Where specified in bidding
documents, factors such as discounts, transportation cost, and life
cycle costs shall be considered in determining which bid is lowest.
Payment discounts will only be used to determine the low bid when prior
experience indicates that such discounts are usually taken advantage of;
and
(E) Any or all bids may be rejected if there is a sound documented
reason.
(3) Procurement by competitive proposals. The technique of
competitive proposals is normally conducted with
[[Page 64]]
more than one source submitting an offer, and either a fixed-price or
cost-reimbursement type contract is awarded. It is generally used when
conditions are not appropriate for the use of sealed bids. If this
method is used, the following requirements apply:
(i) Requests for proposals will be publicized and identify all
evaluation factors and their relative importance. Any response to
publicized requests for proposals shall be honored to the maximum extent
practical;
(ii) Proposals will be solicited from an adequate number of
qualified sources;
(iii) Grantees and subgrantees will have a method for conducting
technical evaluations of the proposals received and for selecting
awardees;
(iv) Awards will be made to the responsible firm whose proposal is
most advantageous to the program, with price and other factors
considered; and
(v) Grantees and subgrantees may use competitive proposal procedures
for qualifications-based procurement of architectural/engineering (A/E)
professional services whereby competitors' qualifications are evaluated
and the most qualified competitor is selected, subject to negotiation of
fair and reasonable compensation. The method, where price is not used as
a selection factor, can only be used in procurement of A/E professional
services. It cannot be used to purchase other types of services though
A/E firms are a potential source to perform the proposed effort.
(4) Procurement by noncompetitive proposals is procurement through
solicitation of a proposal from only one source, or after solicitation
of a number of sources, competition is determined inadequate.
(i) Procurement by noncompetitive proposals may be used only when
the award of a contract is infeasible under small purchase procedures,
sealed bids or competitive proposals and one of the following
circumstances applies:
(A) The item is available only from a single source;
(B) The public exigency or emergency for the requirement will not
permit a delay resulting from competitive solicitation;
(C) The awarding agency authorizes noncompetitive proposals; or
(D) After solicitation of a number of sources, competition is
determined inadequate.
(ii) Cost analysis, i.e., verifying the proposed cost data, the
projections of the data, and the evaluation of the specific elements of
costs and profits, is required.
(iii) Grantees and subgrantees may be required to submit the
proposed procurement to the awarding agency for pre-award review in
accordance with paragraph (g) of this section.
(e) Contracting with small and minority firms, women's business
enterprise and labor surplus area firms. (1) The grantee and subgrantee
will take all necessary affirmative steps to assure that minority firms,
women's business enterprises, and labor surplus area firms are used when
possible.
(2) Affirmative steps shall include:
(i) Placing qualified small and minority businesses and women's
business enterprises on solicitation lists;
(ii) Assuring that small and minority businesses, and women's
business enterprises are solicited whenever they are potential sources;
(iii) Dividing total requirements, when economically feasible, into
smaller tasks or quantities to permit maximum participation by small and
minority business, and women's business enterprises;
(iv) Establishing delivery schedules, where the requirement permits,
which encourage participation by small and minority business, and
women's business enterprises;
(v) Using the services and assistance of the Small Business
Administration, and the Minority Business Development Agency of the
Department of Commerce; and
(vi) Requiring the prime contractor, if subcontracts are to be let,
to take the affirmative steps listed in paragraphs (e)(2) (i) through
(v) of this section.
(f) Contract cost and price. (1) Grantees and subgrantees must
perform a cost or price analysis in connection with every procurement
action including contract modifications. The method and degree of
analysis is dependent on the facts surrounding the particular
[[Page 65]]
procurement situation, but as a starting point, grantees must make
independent estimates before receiving bids or proposals. A cost
analysis must be performed when the offeror is required to submit the
elements of his estimated cost, e.g., under professional, consulting,
and architectural engineering services contracts. A cost analysis will
be necessary when adequate price competition is lacking, and for sole
source procurements, including contract modifications or change orders,
unless price resonableness can be established on the basis of a catalog
or market price of a commercial product sold in substantial quantities
to the general public or based on prices set by law or regulation. A
price analysis will be used in all other instances to determine the
reasonableness of the proposed contract price.
(2) Grantees and subgrantees will negotiate profit as a separate
element of the price for each contract in which there is no price
competition and in all cases where cost analysis is performed. To
establish a fair and reasonable profit, consideration will be given to
the complexity of the work to be performed, the risk borne by the
contractor, the contractor's investment, the amount of subcontracting,
the quality of its record of past performance, and industry profit rates
in the surrounding geographical area for similar work.
(3) Costs or prices based on estimated costs for contracts under
grants will be allowable only to the extent that costs incurred or cost
estimates included in negotiated prices are consistent with Federal cost
principles (see Sec. 33.22). Grantees may reference their own cost
principles that comply with the applicable Federal cost principles.
(4) The cost plus a percentage of cost and percentage of
construction cost methods of contracting shall not be used.
(g) Awarding agency review. (1) Grantees and subgrantees must make
available, upon request of the awarding agency, technical specifications
on proposed procurements where the awarding agency believes such review
is needed to ensure that the item and/or service specified is the one
being proposed for purchase. This review generally will take place prior
to the time the specification is incorporated into a solicitation
document. However, if the grantee or subgrantee desires to have the
review accomplished after a solicitation has been developed, the
awarding agency may still review the specifications, with such review
usually limited to the technical aspects of the proposed purchase.
(2) Grantees and subgrantees must on request make available for
awarding agency pre-award review procurement documents, such as requests
for proposals or invitations for bids, independent cost estimates, etc.
when:
(i) A grantee's or subgrantee's procurement procedures or operation
fails to comply with the procurement standards in this section; or
(ii) The procurement is expected to exceed the simplified
acquisition threshold and is to be awarded without competition or only
one bid or offer is received in response to a solicitation; or
(iii) The procurement, which is expected to exceed the simplified
acquisition threshold, specifies a ``brand name'' product; or
(iv) The proposed award is more than the simplified acquisition
threshold and is to be awarded to other than the apparent low bidder
under a sealed bid procurement; or
(v) A proposed contract modification changes the scope of a contract
or increases the contract amount by more than the simplified acquisition
threshold.
(3) A grantee or subgrantee will be exempt from the pre-award review
in paragraph (g)(2) of this section if the awarding agency determines
that its procurement systems comply with the standards of this section.
(i) A grantee or subgrantee may request that its procurement system
be reviewed by the awarding agency to determine whether its system meets
these standards in order for its system to be certified. Generally,
these reviews shall occur where there is a continuous high-dollar
funding, and third-party contracts are awarded on a regular basis.
(ii) A grantee or subgrantee may self-certify its procurement
system. Such self-certification shall not limit the awarding agency's
right to survey the
[[Page 66]]
system. Under a self-certification procedure, awarding agencies may wish
to rely on written assurances from the grantee or subgrantee that it is
complying with these standards. A grantee or subgrantee will cite
specific procedures, regulations, standards, etc., as being in
compliance with these requirements and have its system available for
review.
(h) Bonding requirements. For construction or facility improvement
contracts or subcontracts exceeding the simplified acquisition
threshold, the awarding agency may accept the bonding policy and
requirements of the grantee or subgrantee provided the awarding agency
has made a determination that the awarding agency's interest is
adequately protected. If such a determination has not been made, the
minimum requirements shall be as follows:
(1) A bid guarantee from each bidder equivalent to five percent of
the bid price. The ``bid guarantee'' shall consist of a firm commitment
such as a bid bond, certified check, or other negotiable instrument
accompanying a bid as assurance that the bidder will, upon acceptance of
his bid, execute such contractual documents as may be required within
the time specified.
(2) A performance bond on the part of the contractor for 100 percent
of the contract price. A ``performance bond'' is one executed in
connection with a contract to secure fulfillment of all the contractor's
obligations under such contract.
(3) A payment bond on the part of the contractor for 100 percent of
the contract price. A ``payment bond'' is one executed in connection
with a contract to assure payment as required by law of all persons
supplying labor and material in the execution of the work provided for
in the contract.
(i) Contract provisions. A grantee's and subgrantee's contracts must
contain provisions in paragraph (i) of this section. Federal agencies
are permitted to require changes, remedies, changed conditions, access
and records retention, suspension of work, and other clauses approved by
the Office of Federal Procurement Policy.
(1) Administrative, contractual, or legal remedies in instances
where contractors violate or breach contract terms, and provide for such
sanctions and penalties as may be appropriate. (Contracts more than the
simplified acquisition threshold)
(2) Termination for cause and for convenience by the grantee or
subgrantee including the manner by which it will be effected and the
basis for settlement. (All contracts in excess of $10,000)
(3) Compliance with Executive Order 11246 of September 24, 1965,
entitled ``Equal Employment Opportunity,'' as amended by Executive Order
11375 of October 13, 1967, and as supplemented in Department of Labor
regulations (41 CFR chapter 60). (All construction contracts awarded in
excess of $10,000 by grantees and their contractors or subgrantees)
(4) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C.
874) as supplemented in Department of Labor regulations (29 CFR Part 3).
(All contracts and subgrants for construction or repair)
(5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7)
as supplemented by Department of Labor regulations (29 CFR Part 5).
(Construction contracts in excess of $2000 awarded by grantees and
subgrantees when required by Federal grant program legislation)
(6) Compliance with Sections 103 and 107 of the Contract Work Hours
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by
Department of Labor regulations (29 CFR Part 5). (Construction contracts
awarded by grantees and subgrantees in excess of $2000, and in excess of
$2500 for other contracts which involve the employment of mechanics or
laborers)
(7) Notice of awarding agency requirements and regulations
pertaining to reporting.
(8) Notice of awarding agency requirements and regulations
pertaining to patent rights with respect to any discovery or invention
which arises or is developed in the course of or under such contract.
(9) Awarding agency requirements and regulations pertaining to
copyrights and rights in data.
(10) Access by the grantee, the subgrantee, the Federal grantor
agency,
[[Page 67]]
the Comptroller General of the United States, or any of their duly
authorized representatives to any books, documents, papers, and records
of the contractor which are directly pertinent to that specific contract
for the purpose of making audit, examination, excerpts, and
transcriptions.
(11) Retention of all required records for three years after
grantees or subgrantees make final payments and all other pending
matters are closed.
(12) Compliance with all applicable standards, orders, or
requirements issued under section 306 of the Clean Air Act (42 U.S.C.
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive
Order 11738, and Environmental Protection Agency regulations (40 CFR
part 15). (Contracts, subcontracts, and subgrants of amounts in excess
of $100,000)
(13) Mandatory standards and policies relating to energy efficiency
which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act (Pub. L. 94-163,
89 Stat. 871).
[53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57 FR
6199 and 6201, Feb. 21, 1992; 60 FR 19639, Apr. 19, 1995]
Sec. 33.37 Subgrants.
(a) States. States shall follow State law and procedures when
awarding and administering subgrants (whether on a cost reimbursement or
fixed amount basis) of financial assistance to local and Indian tribal
governments. States shall:
(1) Ensure that every subgrant includes any clauses required by
Federal statute and executive orders and their implementing regulations;
(2) Ensure that subgrantees are aware of requirements imposed upon
them by Federal statute and regulation;
(3) Ensure that a provision for compliance with Sec. 33.42 is placed
in every cost reimbursement subgrant; and
(4) Conform any advances of grant funds to subgrantees substantially
to the same standards of timing and amount that apply to cash advances
by Federal agencies.
(b) All other grantees. All other grantees shall follow the
provisions of this part which are applicable to awarding agencies when
awarding and administering subgrants (whether on a cost reimbursement or
fixed amount basis) of financial assistance to local and Indian tribal
governments. Grantees shall:
(1) Ensure that every subgrant includes a provision for compliance
with this part;
(2) Ensure that every subgrant includes any clauses required by
Federal statute and executive orders and their implementing regulations;
and
(3) Ensure that subgrantees are aware of requirements imposed upon
them by Federal statutes and regulations.
(c) Exceptions. By their own terms, certain provisions of this part
do not apply to the award and administration of subgrants:
(1) Section 33.10;
(2) Section 33.11;
(3) The letter-of-credit procedures specified in Treasury
Regulations at 31 CFR part 205, cited in Sec. 33.21; and
(4) Section 33.50.
[53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57 FR
6199 and 6201, Feb. 21, 1992]
Reports, Records, Retention, and Enforcement
Sec. 33.40 Monitoring and reporting program performance.
(a) Monitoring by grantees. Grantees are responsible for managing
the day-to-day operations of grant and subgrant supported activities.
Grantees must monitor grant and subgrant supported activities to assure
compliance with applicable Federal requirements and that performance
goals are being achieved. Grantee monitoring must cover each program,
function or activity.
(b) Nonconstruction performance reports. The Federal agency may, if
it decides that performance information available from subsequent
applications contains sufficient information to meet its programmatic
needs, require the grantee to submit a performance report only upon
expiration or termination of grant support. Unless waived by the Federal
agency this report will be due on the same date as the final Financial
Status Report.
[[Page 68]]
(1) Grantees shall submit annual performance reports unless the
awarding agency requires quarterly or semi-annual reports. However,
performance reports will not be required more frequently than quarterly.
Annual reports shall be due 90 days after the grant year, quarterly or
semi-annual reports shall be due 30 days after the reporting period. The
final performance report will be due 90 days after the expiration or
termination of grant support. If a justified request is submitted by a
grantee, the Federal agency may extend the due date for any performance
report. Additionally, requirements for unnecessary performance reports
may be waived by the Federal agency.
(2) Performance reports will contain, for each grant, brief
information on the following:
(i) A comparison of actual accomplishments to the objectives
established for the period. Where the output of the project can be
quantified, a computation of the cost per unit of output may be required
if that information will be useful.
(ii) The reasons for slippage if established objectives were not
met.
(iii) Additional pertinent information including, when appropriate,
analysis and explanation of cost overruns or high unit costs.
(3) Grantees will not be required to submit more than the original
and two copies of performance reports.
(4) Grantees will adhere to the standards in this section in
prescribing performance reporting requirements for subgrantees.
(c) Construction performance reports. For the most part, on-site
technical inspections and certified percentage-of-completion data are
relied on heavily by Federal agencies to monitor progress under
construction grants and subgrants. The Federal agency will require
additional formal performance reports only when considered necessary,
and never more frequently than quarterly.
(d) Significant developments. Events may occur between the scheduled
performance reporting dates which have significant impact upon the grant
or subgrant supported activity. In such cases, the grantee must inform
the Federal agency as soon as the following types of conditions become
known:
(1) Problems, delays, or adverse conditions which will materially
impair the ability to meet the objective of the award. This disclosure
must include a statement of the action taken, or contemplated, and any
assistance needed to resolve the situation.
(2) Favorable developments which enable meeting time schedules and
objectives sooner or at less cost than anticipated or producing more
beneficial results than originally planned.
(e) Federal agencies may make site visits as warranted by program
needs.
(f) Waivers, extensions. (1) Federal agencies may waive any
performance report required by this part if not needed.
(2) The grantee may waive any performance report from a subgrantee
when not needed. The grantee may extend the due date for any performance
report from a subgrantee if the grantee will still be able to meet its
performance reporting obligations to the Federal agency.
Sec. 33.41 Financial reporting.
(a) General. (1) Except as provided in paragraphs (a) (2) and (5) of
this section, grantees will use only the forms specified in paragraphs
(a) through (e) of this section, and such supplementary or other forms
as may from time to time be authorized by OMB, for:
(i) Submitting financial reports to Federal agencies, or
(ii) Requesting advances or reimbursements when letters of credit
are not used.
(2) Grantees need not apply the forms prescribed in this section in
dealing with their subgrantees. However, grantees shall not impose more
burdensome requirements on subgrantees.
(3) Grantees shall follow all applicable standard and supplemental
Federal agency instructions approved by OMB to the extend required under
the Paperwork Reduction Act of 1980 for use in connection with forms
specified in paragraphs (b) through (e) of this section. Federal
agencies may issue substantive supplementary instructions only with the
approval of OMB. Federal agencies may shade out or instruct the
[[Page 69]]
grantee to disregard any line item that the Federal agency finds
unnecessary for its decisionmaking purposes.
(4) Grantees will not be required to submit more than the original
and two copies of forms required under this part.
(5) Federal agencies may provide computer outputs to grantees to
expedite or contribute to the accuracy of reporting. Federal agencies
may accept the required information from grantees in machine usable
format or computer printouts instead of prescribed forms.
(6) Federal agencies may waive any report required by this section
if not needed.
(7) Federal agencies may extend the due date of any financial report
upon receiving a justified request from a grantee.
(b) Financial Status Report--(1) Form. Grantees will use Standard
Form 269 or 269A, Financial Status Report, to report the status of funds
for all nonconstruction grants and for construction grants when required
in accordance with Sec. 33.41(e)(2)(iii).
(2) Accounting basis. Each grantee will report program outlays and
program income on a cash or accrual basis as prescribed by the awarding
agency. If the Federal agency requires accrual information and the
grantee's accounting records are not normally kept on the accural basis,
the grantee shall not be required to convert its accounting system but
shall develop such accrual information through and analysis of the
documentation on hand.
(3) Frequency. The Federal agency may prescribe the frequency of the
report for each project or program. However, the report will not be
required more frequently than quarterly. If the Federal agency does not
specify the frequency of the report, it will be submitted annually. A
final report will be required upon expiration or termination of grant
support.
(4) Due date. When reports are required on a quarterly or semiannual
basis, they will be due 30 days after the reporting period. When
required on an annual basis, they will be due 90 days after the grant
year. Final reports will be due 90 days after the expiration or
termination of grant support.
(c) Federal Cash Transactions Report--(1) Form. (i) For grants paid
by letter or credit, Treasury check advances or electronic transfer of
funds, the grantee will submit the Standard Form 272, Federal Cash
Transactions Report, and when necessary, its continuation sheet,
Standard Form 272a, unless the terms of the award exempt the grantee
from this requirement.
(ii) These reports will be used by the Federal agency to monitor
cash advanced to grantees and to obtain disbursement or outlay
information for each grant from grantees. The format of the report may
be adapted as appropriate when reporting is to be accomplished with the
assistance of automatic data processing equipment provided that the
information to be submitted is not changed in substance.
(2) Forecasts of Federal cash requirements. Forecasts of Federal
cash requirements may be required in the ``Remarks'' section of the
report.
(3) Cash in hands of subgrantees. When considered necessary and
feasible by the Federal agency, grantees may be required to report the
amount of cash advances in excess of three days' needs in the hands of
their subgrantees or contractors and to provide short narrative
explanations of actions taken by the grantee to reduce the excess
balances.
(4) Frequency and due date. Grantees must submit the report no later
than 15 working days following the end of each quarter. However, where
an advance either by letter of credit or electronic transfer of funds is
authorized at an annualized rate of one million dollars or more, the
Federal agency may require the report to be submitted within 15 working
days following the end of each month.
(d) Request for advance or reimbursement--(1) Advance payments.
Requests for Treasury check advance payments will be submitted on
Standard Form 270, Request for Advance or Reimbursement. (This form will
not be used for drawdowns under a letter of credit, electronic funds
transfer or when Treasury check advance payments are made to the grantee
automatically on a predetermined basis.)
(2) Reimbursements. Requests for reimbursement under nonconstruction
[[Page 70]]
grants will also be submitted on Standard Form 270. (For reimbursement
requests under construction grants, see paragraph (e)(1) of this
section.)
(3) The frequency for submitting payment requests is treated in
Sec. 33.41(b)(3).
(e) Outlay report and request for reimbursement for construction
programs--(1) Grants that support construction activities paid by
reimbursement method. (i) Requests for reimbursement under construction
grants will be submitted on Standard Form 271, Outlay Report and Request
for Reimbursement for Construction Programs. Federal agencies may,
however, prescribe the Request for Advance or Reimbursement form,
specified in Sec. 33.41(d), instead of this form.
(ii) The frequency for submitting reimbursement requests is treated
in Sec. 33.41(b)(3).
(2) Grants that support construction activities paid by letter of
credit, electronic funds transfer or Treasury check advance. (i) When a
construction grant is paid by letter of credit, electronic funds
transfer or Treasury check advances, the grantee will report its outlays
to the Federal agency using Standard Form 271, Outlay Report and Request
for Reimbursement for Construction Programs. The Federal agency will
provide any necessary special instruction. However, frequency and due
date shall be governed by Sec. 33.41(b) (3) and (4).
(ii) When a construction grant is paid by Treasury check advances
based on periodic requests from the grantee, the advances will be
requested on the form specified in Sec. 33.41(d).
(iii) The Federal agency may substitute the Financial Status Report
specified in Sec. 33.41(b) for the Outlay Report and Request for
Reimbursement for Construction Programs.
(3) Accounting basis. The accounting basis for the Outlay Report and
Request for Reimbursement for Construction Programs shall be governed by
Sec. 33.41(b)(2).
[53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57 FR
6199 and 6201, Feb. 21, 1992]
Sec. 33.42 Retention and access requirements for records.
(a) Applicability. (1) This section applies to all financial and
programmatic records, supporting documents, statistical records, and
other records of grantees or subgrantees which are:
(i) Required to be maintained by the terms of this part, program
regulations or the grant agreement, or
(ii) Otherwise reasonably considered as pertinent to program
regulations or the grant agreement.
(2) This section does not apply to records maintained by contractors
or subcontractors. For a requirement to place a provision concerning
records in certain kinds of contracts, see Sec. 33.36(i)(10).
(b) Length of retention period. (1) Except as otherwise provided,
records must be retained for three years from the starting date
specified in paragraph (c) of this section.
(2) If any litigation, claim, negotiation, audit or other action
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action
and resolution of all issues which arise from it, or until the end of
the regular 3-year period, whichever is later.
(3) To avoid duplicate recordkeeping, awarding agencies may make
special arrangements with grantees and subgrantees to retain any records
which are continuously needed for joint use. The awarding agency will
request transfer of records to its custody when it determines that the
records possess long-term retention value. When the records are
transferred to or maintained by the Federal agency, the 3-year retention
requirement is not applicable to the grantee or subgrantee.
(c) Starting date of retention period--(1) General. When grant
support is continued or renewed at annual or other intervals, the
retention period for the records of each funding period starts on the
day the grantee or subgrantee submits to the awarding agency its single
or last expenditure report for that period. However, if grant support is
continued or renewed quarterly, the retention period for each year's
records starts on the day the grantee submits
[[Page 71]]
its expenditure report for the last quarter of the Federal fiscal year.
In all other cases, the retention period starts on the day the grantee
submits its final expenditure report. If an expenditure report has been
waived, the retention period starts on the day the report would have
been due.
(2) Real property and equipment records. The retention period for
real property and equipment records starts from the date of the
disposition or replacement or transfer at the direction of the awarding
agency.
(3) Records for income transactions after grant or subgrant support.
In some cases grantees must report income after the period of grant
support. Where there is such a requirement, the retention period for the
records pertaining to the earning of the income starts from the end of
the grantee's fiscal year in which the income is earned.
(4) Indirect cost rate proposals, cost allocations plans, etc. This
paragraph applies to the following types of documents, and their
supporting records: indirect cost rate computations or proposals, cost
allocation plans, and any similar accounting computations of the rate at
which a particular group of costs is chargeable (such as computer usage
chargeback rates or composite fringe benefit rates).
(i) If submitted for negotiation. If the proposal, plan, or other
computation is required to be submitted to the Federal Government (or to
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of
such submission.
(ii) If not submitted for negotiation. If the proposal, plan, or
other computation is not required to be submitted to the Federal
Government (or to the grantee) for negotiation purposes, then the 3-year
retention period for the proposal plan, or computation and its
supporting records starts from end of the fiscal year (or other
accounting period) covered by the proposal, plan, or other computation.
(d) Substitution of microfilm. Copies made by microfilming,
photocopying, or similar methods may be substituted for the original
records.
(e) Access to records--(1) Records of grantees and subgrantees. The
awarding agency and the Comptroller General of the United States, or any
of their authorized representatives, shall have the right of access to
any pertinent books, documents, papers, or other records of grantees and
subgrantees which are pertinent to the grant, in order to make audits,
examinations, excerpts, and transcripts.
(2) Expiration of right of access. The rights of access in this
section must not be limited to the required retention period but shall
last as long as the records are retained.
(f) Restrictions on public access. The Federal Freedom of
Information Act (5 U.S.C. 552) does not apply to records Unless required
by Federal, State, or local law, grantees and subgrantees are not
required to permit public access to their records.
[53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57 FR
6199 and 6201, Feb. 21, 1992]
Sec. 33.43 Enforcement.
(a) Remedies for noncompliance. If a grantee or subgrantee
materially fails to comply with any term of an award, whether stated in
a Federal statute or regulation, an assurance, in a State plan or
application, a notice of award, or elsewhere, the awarding agency may
take one or more of the following actions, as appropriate in the
circumstances:
(1) Temporarily withhold cash payments pending correction of the
deficiency by the grantee or subgrantee or more severe enforcement
action by the awarding agency,
(2) Disallow (that is, deny both use of funds and matching credit
for) all or part of the cost of the activity or action not in
compliance,
(3) Wholly or partly suspend or terminate the current award for the
grantee's or subgrantee's program,
(4) Withhold further awards for the program, or
(5) Take other remedies that may be legally available.
(b) Hearings, appeals. In taking an enforcement action, the awarding
agency will provide the grantee or subgrantee an opportunity for such
hearing, appeal, or other administrative proceeding to which the grantee
or subgrantee
[[Page 72]]
is entitled under any statute or regulation applicable to the action
involved.
(c) Effects of suspension and termination. Costs of grantee or
subgrantee resulting from obligations incurred by the grantee or
subgrantee during a suspension or after termination of an award are not
allowable unless the awarding agency expressly authorizes them in the
notice of suspension or termination or subsequently. Other grantee or
subgrantee costs during suspension or after termination which are
necessary and not reasonably avoidable are allowable if:
(1) The costs result from obligations which were properly incurred
by the grantee or subgrantee before the effective date of suspension or
termination, are not in anticipation of it, and, in the case of a
termination, are noncancellable, and,
(2) The costs would be allowable if the award were not suspended or
expired normally at the end of the funding period in which the
termination takes effect.
(d) Relationship to debarment and suspension. The enforcement
remedies identified in this section, including suspension and
termination, do not preclude grantee or subgrantee from being subject to
``Debarment and Suspension'' under E.O. 12549 (see Sec. 33.35).
[53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57 FR
6199 and 6201, Feb. 21, 1992]
Sec. 33.44 Termination for convenience.
Except as provided in Sec. 33.43 awards may be terminated in whole
or in part only as follows:
(a) By the awarding agency with the consent of the grantee or
subgrantee in which case the two parties shall agree upon the
termination conditions, including the effective date and in the case of
partial termination, the portion to be terminated, or
(b) By the grantee or subgrantee upon written notification to the
awarding agency, setting forth the reasons for such termination, the
effective date, and in the case of partial termination, the portion to
be terminated. However, if, in the case of a partial termination, the
awarding agency determines that the remaining portion of the award will
not accomplish the purposes for which the award was made, the awarding
agency may terminate the award in its entirety under either Sec. 33.43
or paragraph (a) of this section.
[53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57 FR
6199 and 6201, Feb. 21, 1992]
Subpart D--After-The-Grant Requirements
Sec. 33.50 Closeout.
(a) General. The Federal agency will close out the award when it
determines that all applicable administrative actions and all required
work of the grant has been completed.
(b) Reports. Within 90 days after the expiration or termination of
the grant, the grantee must submit all financial, performance, and other
reports required as a condition of the grant. Upon request by the
grantee, Federal agencies may extend this timeframe. These may include
but are not limited to:
(1) Final performance or progress report.
(2) Financial Status Report (SF 269) or Outlay Report and Request
for Reimbursement for Construction Programs (SF-271) (as applicable).
(3) Final request for payment (SF-270) (if applicable).
(4) Invention disclosure (if applicable).
(5) Federally-owned property report:
In accordance with Sec. 33.32(f), a grantee must submit an inventory of
all federally owned property (as distinct from property acquired with
grant funds) for which it is accountable and request disposition
instructions from the Federal agency of property no longer needed.
(c) Cost adjustment. The Federal agency will, within 90 days after
receipt of reports in paragraph (b) of this section, make upward or
downward adjustments to the allowable costs.
(d) Cash adjustments. (1) The Federal agency will make prompt
payment to the grantee for allowable reimbursable costs.
(2) The grantee must immediately refund to the Federal agency any
balance of unobligated (unencumbered) cash
[[Page 73]]
advanced that is not authorized to be retained for use on other grants.
[53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57 FR
6199 and 6201, Feb. 21, 1992]
Sec. 33.51 Later disallowances and adjustments.
The closeout of a grant does not affect:
(a) The Federal agency's right to disallow costs and recover funds
on the basis of a later audit or other review;
(b) The grantee's obligation to return any funds due as a result of
later refunds, corrections, or other transactions;
(c) Records retention as required in Sec. 33.42;
(d) Property management requirements in Secs. 33.31 and 33.32; and
(e) Audit requirements in Sec. 33.26.
[53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57 FR
6199 and 6201, Feb. 21, 1992]
Sec. 33.52 Collection of amounts due.
(a) Any funds paid to a grantee in excess of the amount to which the
grantee is finally determined to be entitled under the terms of the
award constitute a debt to the Federal Government. If not paid within a
reasonable period after demand, the Federal agency may reduce the debt
by:
(1) Making an adminstrative offset against other requests for
reimbursements,
(2) Withholding advance payments otherwise due to the grantee, or
(3) Other action permitted by law.
(b) Except where otherwise provided by statutes or regulations, the
Federal agency will charge interest on an overdue debt in accordance
with the Federal Claims Collection Standards (4 CFR Ch. II). The date
from which interest is computed is not extended by litigation or the
filing of any form of appeal.
Subpart E--Entitlement [Reserved]
[[Page 74]]
SUBCHAPTER C--PERSONNEL, MILITARY AND CIVILIAN
Cross Reference: For a revision of Standards for a Merit System of
Personnel Administration, see 5 CFR part 900.
PART 40--STANDARDS OF CONDUCT CROSS-REFERENCES--Table of Contents
Sec.
40.1 18 U.S.C. 208(b) waivers.
40.2 Cross-reference to Standards of Ethical Conduct for Employees of
the Executive Branch.
40.3 Cross-reference to Financial Disclosure, Qualified Trusts, and
Certificates of Divestiture for Executive Branch Employees.
40.4 Cross-reference to Limitations on Outside Employment and
Prohibition of Honoraria; Confidential Reporting of Payments
to Charities in Lieu of Honoraria.
40.5 Cross-reference to Regulations Concerning Post-Employment Conflict
of Interest.
40.6 Cross-reference to Office of Government Ethics and Executive
Agency Ethics Program Responsibilities.
40.7 Cross-reference to Post-Employment Conflict of Interest
Restrictions.
Authority: 5 U.S.C. 7301.
Source: 58 FR 47624, Sept. 10, 1993, unless otherwise noted.
Sec. 40.1 18 U.S.C. 208(b) waivers.
Under 18 U.S.C. 208(b) categories of financial interests may be made
non-disqualifying for purposes of 18 U.S.C. 208(a) by a general
regulation published in the Federal Register. Shares of a widely held,
diversified mutual fund or regulated investment company have been
exempted by a general regulation as being too remote or inconsequential
to affect the integrity of Government personnel.
Sec. 40.2 Cross-reference to Standards of Ethical Conduct for Employees of the Executive Branch.
DoD employees should refer to the Office of Government Ethics (OGE)
regulation, Standards of Ethical Conduct for Employees of the Executive
Branch, 5 CFR part 2635, and the Department of Defense (DoD) regulation
that supplements the OGE regulation, 5 CFR 3601.101, for standards of
conduct provisions, including standards for gifts from outside sources,
gifts between employees, conflicting financial interests, impartiality
in performing official duties, seeking other employment, misuse of
position, and outside activities.
Sec. 40.3 Cross-reference to Financial Disclosure, Qualified Trusts, and Certificates of Divestiture for Executive Branch Employees.
DoD employees should refer to the OGE regulation, Financial
Disclosure, Qualified Trusts, and Certificates of Divestiture for
Executive Branch Employees, 5 CFR part 2634, for financial disclosure
provisions.
Sec. 40.4 Cross-reference to Limitations on Outside Employment and Prohibition of Honoraria; Confidential Reporting of Payments to Charities in Lieu of
Honoraria.
DoD employees should refer to the OGE regulation, Limitations on
Outside Employment and Prohibition of Honoraria; Confidential Reporting
of Payments to Charities in Lieu of Honoraria, 5 CFR part 2636, for
provisions on outside employment and honoraria.
Sec. 40.5 Cross-reference to Regulations Concerning Post-Employment Conflict of Interest.
DoD employees and former DoD employees should refer to the OGE
regulation, Regulations Concerning Post-Employment Conflict of Interest,
5 CFR part 2637, for provisions on post-employment applicable to those
who left DoD employment prior to January 1, 1991.
Sec. 40.6 Cross-reference to Office of Government Ethics and Executive Agency Ethics Program Responsibilities.
DoD employees should refer to the OGE regulation, Office of
Government Ethics and Executive Agency Ethics Program Responsibilities,
5 CFR part 2638, for provisions establishing executive branch ethics
programs, including ethics training programs.
[[Page 75]]
Sec. 40.7 Cross-reference to Post-Employment Conflict of Interest Restrictions.
DoD employees and former DoD employees should refer the to OGE
regulation, Post-Employment Conflict of Interest Restrictions, 5 CFR
part 2641, for provisions on post-employment applicable to those who
left DoD employment on or after January 1, 1991.
PART 40a--DEFENSE CONTRACTING: REPORTING PROCEDURES ON DEFENSE RELATED EMPLOYMENT--Table of Contents
Authority: 10 U.S.C. 2397
Source: 61 FR 16704, Apr. 17, 1996, unless otherwise noted.
40a.1 Department of Defense contractors receiving awards of $10 million or more.
Fiscal Year 1995
ACS Construction Co. of Mississippi
AG Marketing Inc.
AIL Systems Inc.
AAI Corp.
AAR Manufacturing Inc.
ABB Environmental Services
ABB Services Inc.
ABU Dhabi National Oil Co.
AEL Industries Inc.
AM General Corp.
ARC Professional Services Group
ASI Systems International
AT&T Communications, Inc.
AT&T Corp.
AT&T Global Information Solutions Co.
ATG Inc.
Abacus Technology Corp.
Abbyss Oil Co., Inc.
Actus Corp/Sundt, JV
Adler & Stern (1968), Ltd.
Adminastar Inc.
Advanced Electronic Co., Ltd.
Advance, Inc.
Advanced Communications Systems
Advanced Engineering & Technology
Advanced Integrated Technology Inc.
Advanced Marine Enterprises
Advanced Resource Technologies
Advanced Testing Technologies
Aepco, Inc.
Aerojet-General Corp.
Aeroquip Corp.
Aerospace Corp.
Agip SPA
Air Cruisers Co., Inc.
Ajax Navigation
Aksarben Foods, Inc.
Al Rashed & Al Orman Co.
Alcatel Network Systems, Inc.
Alfab Inc.
Alisud SPA
All Star Maintenance A Neveda Corp.
Alliant Techsystems, Inc.
Allied Petro, Inc.
Allied Research Corp.
AlliedSignal Technical Services
AlliedSignal, Inc.
Allison Engine Co., Inc.
Alpha Marine Services, Inc.
Altama Delta Corp.
Amerada Hess Corp.
American Apparel, Inc.
American Engineering Corp.
American Housing Technologies
American International Airways
American International Contrs
American Management Systems Inc.
American President Lines Ltd.
American Ship Building Co., Inc.
American Systems Corp.
Amerind, Inc.
Ametek, Inc.
Amoco Corp.
Amoco Energy Trading Corp.
Amtec Corp.
Anadac Inc.
Analysis & Technology, Inc.
Analytic Services, Inc.
Analytical Systems Engineering Corp.
Anderson-Tully Co.
Andrulis Research Corp.
Angelo, H. & Co., Inc.
Anixter, Inc.
Antares Development Corp.
Applications Generales D'Elect
Applied Data Technology, Inc.
Applied Measurement Systems
Applied Ordnance Technology
Applied Research Associates, Inc.
Aquidneck Management Association, Ltd.
Arango Construction Co.
Arcadia Refining & Marketing
Arctic Slope Regional Corp.
Arinc Inc.
Arinc Research Corp.
Arist Corporation Inc.
Arnold Truman Co.
Artro Contracting Inc.
Ashland Inc.
Assurance Technology Corp.
Atkins, Claude E. Enterprises
[[Page 76]]
Atlantic Research Corp.
Atlantic Richfield Co.
Autec Range Services
Avco Corp.
Avondale Industries, Inc.
BBA Equity Inc.
BBDO Worldwide Inc.
BDM Federal Inc.
BDM International, Inc.
BHP Petroleum International PT
BOC Group Inc A Delaware Corp
BP Chemicals Inc.
BP Exploration & Oil Inc.
BTG Inc.
BTG Technology Systems, Inc.
Babcock & Wilcox Co., The
Bachmann Construction, Inc.
Baker Michael Corp.
Baker Support Services, Inc.
Balfour Beatty Inc.
Ball Corp.
Baltimore Gas & Electric Co.
Bank of New York Co., Inc.
Barber-Colman Co. (Del)
Bates Worldwide (Delaware)
Bath Iron Works Corp.
Battelle Memorial Institute
Bay Tankers, Inc.
Bean, D D & Sons Co.
Bean, C.F. Corp.
Bechtel Corp.
Bechtel Environmental Inc.
Bell Atlantic Network Services, Inc.
Bell Atlantic Maryland, Inc.
Bell Atlantic-Virginia Inc.
Bell BCI Co.
Bell Corporation of Rochester
Bell Helicopter Textron, Inc.
Belleville Shoe Manufacturing, Co.
Beneco Enterprises, Inc.
Beretta USA Corp.
Bergen Brunswig Corp.
Bergen Brunswig Drug Co.
Berliner Elektro Holding Aktie
Betac Corp.
Bethlehem Steel Corp.
Big Bear Oil Co., Inc.
Black & Veatch
Blake Construction Co., Inc.
Boeing Aerospace Operations
Boeing Company, The
Boeing Sikorsky Aircraft Support
Boeing Skrsky Comanche Team JV
Boland, David, Inc.
Bollinger Shipyard Inc.
Bolt Beranek & Newman, Inc.
Bombardier International BV
Booz Allen & Hamilton, Inc.
Boro Developers Inc.
Bozell Jacobs Kenyon Eckhardt Inc.
Braswell Services Group Inc.
Brickle, Hyman & Son Inc.
British Aerospace Dynamics Div
Brown & Root Services Corp.
Brown & Williamson Tobacco Corp.
Brown, Dayton T., Inc.
Browning Construction Co.
Brunswick Corp.
Buckner & Moore, Inc.
Bulova Corp.
Burlington Industries, Inc.
Burns & McDonnell Inc.
Butt Construction Co., Inc.
Byler, W T Co., Inc.
CDM Federal Programs Corp.
CACI, Inc.
CAE (US) Inc.
CAS, Inc.
CBC Enterprises, Inc.
CBI Na-Con, Inc.
CFM International Inc.
CH2M Hill Companies, Ltd.
CIA Espanola De Petroleos SA
CIC Industries, Inc.
CMS Inc.
CNA Corp.
CSC Analytics Inc.
CTA Inc.
Caddell Construction Co., Inc.
Calibre Systems Inc.
California Microwave, Inc.
Calspan Advanced Tech Ctr.
Caltech Service Corp.
Caltex Petroleum Corp.
Camber Corp.
Campbell Soup Co.
Capco Inc.
Capital Health Services Inc.
Carnegie Mellon University
Carolina Power & Light Co.
Carothers Construction Inc.
Carter, J C Co., Inc.
Caterpillar Inc.
Celsius Invest AB
Centennial Contractors Enterprise
Centex Bateson Enterprises Inc.
Centex Construction Group Inc.
Centex-Rooney Enterprises, Inc.
Central Gulf Lines, Inc.
Ceridian Corp.
Cessna Aircraft Co.
Chamberlain Manufacturing Corp.
Chem-Nuclear Systems, Inc.
Chemical Waste Management Inc.
Chemins De Fer Nationaux Du Canada
Chevron USA, Inc.
Childers Construction Co.
Chromalloy American Corp.
[[Page 77]]
Chromalloy Gas Turbine Corp.
Chugoku Electric Power Co., Inc.
Cincinnati Bell Information Systems
Cincinnati Electronics Corp.
Coastal Corp.
Coastal Government Services
Colejon/Jones (JV)
Coleman Research Corp.
Colsa, Corp.
Coltec Industries Inc.
Colts Manufacturing Co., Inc.
Comarco, Inc.
Comil Compagnia Italiana Lavor
Communications Products Inc.
Compania Espanola De Petroleos
Compex Corp.
Comptek Federal Systems, Inc.
Comptek Research, Inc.
Computer Associates International
Computer Data Systems Inc.
Computer Science Applications
Computer Sciences Corp.
Computer Sciences Raytheon (JV)
Computer Systems Development
Computer Systems International
Comsat Corp.
Conagra, Inc.
Concurrent Computer Corp.
Concurrent Technologies Corp.
Condor Systems Inc.
Conoco Inc.
Consolidated Foodservice
Consolidated Services, Inc.
Constar L.P.
Contel Federal Systems Inc.
Contrack International, Inc.
Contraves Inc.
Control Data Systems Inc.
Cordant Holdings Corp.
Corporation of Mercer University
Corporcion Immbiliaria Textil
Cortez III Service Corp.
Cosmo Oil Co., Ltd.
Cray Research, Inc.
Cree Research Inc.
Crowley American Transport, Inc.
Crowley Maritime Corp.
Cubic Corp.
Cubic Defense Systems Inc.
Cummins Engine Co., Inc.
Cutler-Hammer Inc.
Cyprus Amox Coal Co.
D&K Construction Co., Inc.
DME Corp.
Dames & Moore Inc.
Daniel Mann Johnson Mendenhall
Datron Inc.
Dawson Construction Co.
Day & Zimmerman, Inc.
Day, SW Construction Corp.
Decision Systems Technologies
Del-Jen Inc.
Delaware Systems Engineering Management Co.
Delco Electronics Corp.
Denny, J.B., Co.
Detroit Diesel Corp.
Detyens Shipyards Inc.
Deutsche Bundespost
Deutsche Telekom Aktiengesells
Diagnostic/Retrieval Systems, Inc.
Diamond Shamrock Refining Marketing Co.
Digicon Corp.
Digital Equipment Corp.
Digital Systems Research, Inc.
Dillingham/A B B Susa JV
Dow Environmental Inc.
Dowty Group Plc
Draper, Charles Stark Lab Inc.
Dreadnought Marine, Inc.
Dual, Inc.
Dutra Construction Co., Inc.
Dynamic Science, Inc.
Dynamics Corporation of America
Dynamics Research Corp.
Dyncorp
Dyncorp/Dynair Corp.
Dynetics, Inc.
E-OIR Measurements Inc.
E-Systems, Inc.
EA Engineering & Science Technology
EC III JV
ECS Technologies, Inc.
EER Systems Corp.
EG&G, Inc.
EG&G Washington Analytical Services Center
ESI Holding Inc.
Eagan McAllister Associates
Eagle Aviation Inc.
Earl Industries Inc.
Earth Technology Corp, USA
Eastern Canvas Products Inc.
Eastern Chemical Products
Eastern Computers Inc.
Eastern General Contractors
Eastern JBI Joint Venture
Eastman Chemical Co.
Eastman Kodak Co.
Ebasco Services, Inc.
Ecology & Environment, Inc.
Eldyne, Inc.
Electro-Methods Inc.
Electronic Data Systems Corp.
Electronic Warfare Associates
Electronics & Space Corp.
Electrospace Systems, Inc.
[[Page 78]]
Elinpa Elektrik
Ellis-Don Construction Ltd.
Engineered Support Systems
Engineering & Professional Services
Ensafe/Allen & Hoshall
Ensco, Inc.
Entwistle Co., The
Envirocare of Utah Inc.
Environmental Chemical Corp.
Environmental Research Institute of Michigan
Environmental Science & Engineering
Environmental Technologies Group
Enzian Technology Inc.
Epoch Engineering Inc.
Equa Industries, Inc.
Ericsson Inc.
Esterline Technologies Corp.
Exide Electronics Group, Inc.
Exxon Corp.
F & M Manufacturing, Inc.
FKW, Inc.
FMC Corp.
FMS Corp.
FN Moteurs SA
FRC International Inc.
Fairchild Aircraft, Inc.
Fairchild Industrial Inc.
Fairchild Space & Def Corp.
Federal Data Corp.
Federal Express Corp.
Federal Prison Industries
Federal Republic of Germany
Ferguson-Williams Inc.
Ficon Corp.
Figgie International Inc.
Finney Co., The
Firan USA, Corp.
First Aviation Services, Inc.
Firth Construction Co., Inc.
Fitzpatrick & Associates Inc.
Fletcher General, Inc.
Flightsafety International
Flintco Companies, Inc., The
Flir Systems Inc.
Florida Power & Light Co.
Fluor Corp.
Force 3 Inc.
Ford, H.J. Associates, Inc.
Foss Maritime Co.
Foster Wheeler USA Corp.
Foster-Miller Inc.
Four Seasons Environmental
Freedom Forge Corp.
Frequency Sources Inc.
Frito Lay, Inc.
Frontier Engineering, Inc.
Fru-Con Construction Corp.
Fuentez Systems Concepts Inc.
Fugro Consultants International
GDE Systems Inc.
GE American Communications
GEC Inc.
GEC Marconi Electric System Corp.
GTE Corp.
GTE Government Systems Corp.
Galaxy Scientific Corp.
Gaskins, L.C. Construction Co.
General Atomics
General Dynamics Corp.
General Dynamics Land Systems
General Electric Co.
General Engineering Corp.
General Foods Corp.
General Mills, Inc.
General Motors Corp.
General Physics Corp.
General Research Corp.
General Scientific Corp.
Gentex Corp.
Geo-Centers Inc.
Geo-Marine Inc.
Georgia Technology Research Corp.
Giant Industries Inc.
Gibbs & Cox Inc.
Gibraltar, P.R. Inc.
Gichner Systems Group Inc.
Gilbert Associates Inc.
Godot Enterprises Inc.
Gold Line Refining, Ltd.
Golden Manufacturing Co., Inc.
Goodrich, B.F. Co., The
Goodyear Tire & Rubber Co., The
Government Systems, Inc.
Government Technology Services
Granite Construction Co.
Great Lakes Dredge & Dock Corp.
Greenland Contractors I/S
Greenwich Air Services Inc.
Greg Construction Co.
Grimberg, John C. Co., Inc.
Group Technologies Corp.
Grumman Aerospace Corp.
Grumman Corp.
Grumman Data Systems Corp.
Grunley Construction Co., Inc.
Gulf Coast Trailing Co.
Halifax Engineering, Inc.
Halliburton Nus Corp.
Harbert Bill International Construction
Harbert International, Inc.
Hardaway Co., Inc.
Hardaway Lawson Associates Inc.
Harper Construction Co.
Harper-Nielsen Construction Co.
Harris Corp.
Harsco Corp.
[[Page 79]]
Harvard Industries Inc.
Hawaiian Electric Co., Inc.
Hazeltine Corp.
Head, Inc.
Healthstaffers, Inc.
Heavy Constructors Inc.
Henderson, Jospeh J. & Son Inc.
Hensel Phelps Construction Co.
Hercules, Inc.
Hermes Consolidated, Inc.
Heroux Inc.
Hewett-Kier Construction Inc.
Kewlett-Packard Co.
High Technology Solutions
Holly Corp.
Honeywell, Inc.
Honolulu Shipyard Inc.
Hooks, Mike, Inc.
Horizons Technology, Inc.
Houston Associates Inc.
Howden Group America Inc.
Hughes Aircraft Co.
Hughes Associates, Inc.
Hughes Electronics Corp.
Hughes Missile Systems Co.
Hughes Training Inc.
Human Factors Applications
Hunt Building Corp.
Hunt-Wesson Inc.
Hutchinson Contracting Co.
Hydro-Mill Co.
Hyman George Construction Co.
I-Net, Inc.
IBP Inc.
ICI Americas Inc.
IDB Communications Group Inc.
IIDA, T Contracting Ltd.
IIT Research Institute
IMCO General Construction
IMO Industries Inc.
INCA Construction Co., Inc.
IRISS Co.
ISX Corp.
IT Corp.
ITT Corp.
ITT Federal Services Corp.
ITT Federal Services International
Ideker Inc.
Ilex Systems Inc.
Industrial Acoustics Co., Inc.
Industrial Data Link Corp.
Information Network Systems
Information Spectrum, Inc.
Information Technology Solutions
Infotec Development, Inc.
Innovative Logistics Techniques
Innovative Technologies Corp.
Institute for Defense Analyses
Integrated Systems Analysts
Inter-National Research Institute
Intergraph Corp.
Intermarine, USA
Intermec Corp.
Intermetrics, Inc.
International Bridge Corp.
International Business Machines Corp.
International Data Products
International Terminal Operation Co.
International Computers Telecommunication
Interop (JV)
Interstate Electronics Corp.
J&E Associates, Inc.
J&J Maintenance, Inc.
J A J Holding Corp.
JSA Healthcare Corp.
JWK International Corp.
Jacobs Engineering Group, Inc.
James, T.L. & Co., Inc.
Jaycor
Jersey Central Power & Light Co.
Johns Hopkins University
Johnson Controls World Services Inc.
Johnson Controls Inc.
Johnson, Al Construction Co.
Jones, J.A. Construction Co.
Jones, J.A. Inc.
K&F Industries, Inc.
K&M Maintenance Services
KDI Corp.
KG Bominflot Bunkergesellschaf
KPMG Peat Marwick LLP
Kaiser Aerospace & Electronics Corp.
Kaiser Engineers International
Kaman Corp.
Kaman Diversified Technology Corp.
Kaman Sciences Corp.
Kay & Associates, Inc.
Kearfott Guidance Navigation Corp.
Keco Industries, Inc.
Keller Construction Co., Inc.
Kellogg Sales Co.
Kidde Industries Inc.
Kiewit Pacific Co.
Kilgallon Construction Co.
Kimberly-Clark Corp.
Kirlin, John J.
Klee KG/Ske Maintenance/Klee E
Klewin, C.R., Inc.
Koch Refining Co., Inc.
Kohly Construction Inc.
Kollmorgen Corp.
Korea Electric Power Corp.
Kovatch Mobile Equipment Corp.
Kraft Foods Inc.
Krause P C & Associates Inc.
Kremp Lumber Co.
Kuk Dong Construction Co., Ltd.
[[Page 80]]
Kuwait National Petroleum Co., K
Kyushu Electric Power Co., Inc.
L B M Inc.
LTV Aerospace & Defense, Co.
Laguna Industries, Inc.
Laidlaw Environmental Services
Lake Shore, Inc.
Lane Construction Corp.
Lanthier, R.J. Co., Inc.
Law Environmental, Inc.
Leland Electrosystems, Inc.
Libby Corporation
Light Helicopter Turbine Engine Co.
Little, Arthur D. Inc.
Litton Industries, Inc.
Litton Systems, Inc.
Lloyd-Lamont Design Inc.
Lobar, Inc.
Lockheed Corp.
Lockheed Engineering & Sciences Co.
Lokheed Martin Corp.
Lockheed Missiles & Space Co.
Lockheed Sanders, Inc.
Locot, Inc.
Logicon, Inc.
Logicon R & D Associates
Logistics Services International
Logistics Management Institute
Loral Aerospace Corp.
Loral Corp.
Loral Defense Systems Corp.
Loral Electro-Optical Systems
Loral Fairchild Corp.
Loral Federal Systems Co.
Loral Systems Co.
Loral Vought Systems Corp.
Loral/Rolm Mil-Spec Corp.
Lorall Aeronutronic
Lord Corp.
Louisiana Land Exploration, The
Lovering Johnson Inc.
Lucas Industries, Inc.
Lucky Goldstar International C.
Luhr Brothers, Inc.
Lykes Bros. Steamship Co., Inc.
MDP Construction Inc.
MVP Joint Venture
MW Builders Inc.
MAR, Inc.
MCC Construction Corp.
MCI International Inc.
MCI Telecommunications Corp.
MEI Holdings, Inc.
MEI Technology Corp.
MacGregor (USA) Inc.
Maden Technology Consulting, Inc.
Maersk Inc.
Maersk Line, Ltd.
Magnavox Electronic Systems Co.
Malcolm Pirnie Inc.
Management Consulting & Research
Management Consulting Inc.
Manson Construction & Engineering Co.
Mansour General Dynamics, Ltd.
Mantech International Corp.
Mantech Systems Engineering
Manufacturing Technology, Inc.
Marine Investment Co of Del
Marisco Ltd.
Mark Diversified Inc.
Martin Marietta Corp.
Martin Marietta Services, Inc.
Martin Marietta Technologies
Martin-Baker Aircraft Co., Ltd.
Marvin Engineering Co., Inc.
Mason Hanger-Silas Mason Co., WV
Mason Technologies Inc.
Massachusetts Institute of Technology
Massachusetts University of
Maxwell Laboratories, Inc.
Mayer Oscar Foods Corp.
McDonnell Douglas Coml Delta
McDonnell Douglas Corporation
McDonnell Douglas Finance Corp.
McDonnell Douglas Helicopter Co.
McKesson Corporation (Maryland)
McKnight Construction Co., Inc.
McLaughlin Research Corp.
McRae Industries Inc.
Meredith W.B. II., Inc.
Metcalf & Eddy, Inc.
Metric Systems Corporation
Metro Machine Corp.
Metroplex Corp.
Metters Industries, Inc.
Mevatec Corp.
Michelin Corp.
Micro Star Co., Inc.
Mid Eastern Builders
Midco Construction Corp.
Middleton Aerospace Corp.
Midsco, Inc.
Milcom Systems Corp.
Mills Manufacturing Corp.
Miltope Group, Inc.
Mine Safety Appliances Co.
Minnesota Mining & Manufacturing Co.
Mission Research Corp.
Mitre Corp.
Mobile Oil Corp.
Modern Technologies Corp.
Monarch Construction Co.
Montgomery Watson Americas
Moog, Inc.
Morrison Knudsen Corp., Del Corp.
Morrison Knudsen Corp., Ohio Corp.
Mortenson, M.A., Co.
[[Page 81]]
Motor Oils Hellas Corinth Refinery
Motorola Communications & Electronics, Inc.
Motorola, Inc.
Munro & Co., Inc.
Mystech Associates Inc.
NAI Technologies Inc.
NACCO Materials Handling Group
NASSCO Holdings Inc.
NCI Information Systems Inc.
Nabisco Holdings Corp.
Natco Limited Partnership
Nation, Inc.
National Academy of Sciences, USA
National Beef Packing Co., LP
National Defense Co., LLC
National Technologies Associates
Nato Maintenance & Supply Agency
Navcom Defense Electronics
Needham Inc.
Neosho, Inc.
Network Equipment Technologies, Inc.
New Mexico, State of
Newimar, S.A.
Newport News Shipbuilding & Drydock Co.
Nichols Research Corp.
Nippon Oil Co., Ltd.
Norfolk Dredging Co.
Norfolk Ship Repair Inc.
Norfolk Shipbuilding & DryDock Corp.
North American Mechanical Services
North Carolina Department Human Resources
North Florida Shipyards, Inc.
Northeast Construction Co.
Northern Telecom, Ltd.
Northrop Grumman Corp.
Northrop Worldwide Aircraft Services
Nova Group, Inc.
O'Gar-Hess Esnhrdt Armring Co.
OHM Remediation Services Corp.
OMI Corp.
OTC Tracor Aerospace, Inc.
OTC Tracor Applied Sciences
Oasis Aviation, Inc.
Ocean Shipholdings, Inc.
Oceaneering International Inc.
Oderbrecht SA
Ogden Allied Services GMBH
Ogden Environmental & Energy Services Co.
Ogden Technology Services Corp.
Okinawa City Waterworks
Okinawa Electric Power Co., Inc.
Oklahoma State University
Olin Corp.
Operational Technologies Corp.
Orbital Sciences Corp.
Oregon Iron Works, Inc.
Osborne Construction Co.
Oshkosh Truck Corp.
Otis Elevator Co.
Owl International, Inc.
PRB Associates Inc.
PW Construction, Inc.
PHP Healthcare Corp.
PRC Environmental Management, Inc.
PRC, Inc.
Pacer Systems, Inc.
Pacific Architects & Engineers, Inc.
Pacific Ship Repair & Fabrication
Pacific Sierra Research Corp.
Pacific Telecom, Inc.
Pacifica Services, Inc.
Pacificorp Financial Services, Inc.
Paramount Petroleum Corp.
Park Construction Co.
Parker Hannifin Corp.
Parsons Engineering--Science
Parsons, Ralph M., Co., The
Patrol Ofisi A S Genel Mud
Pearse, Jack F.
Pease Construction Inc.
Pemco Aeroplex, Inc.
Pence, Howard W., Inc.
Pennsylvania State University Inc.
Pepsi-Cola Metro Btlg Co., Inc.
Perrow, Wade Construction Inc.
Peterson Builders, Inc.
Petro Star Inc.
Phibro Energy USA, Inc.
Philip Morris, Inc.
Phoenix Air Group, Inc.
Physics International Co.
Pilkington PLC
Pine Bluff Sand & Gravel Co.
Pioneer U.A.V., Inc.
Piquniq Management Corp.
Pizzagalli Construction Co.
Planning Systems, Inc.
Pneumo Abex Corp.
Post Telephone & Telegraph Ministry
Power Conversion Inc.
Praxair Inc.
Pride Companies LP
Pride Industries Inc.
Proctor & Gamble Co., The
Proctor & Gamble Distributing Co., The
Propper International Inc.
Pueblo of Lagunda
Pulau Electronics Corp.
Pulsar Data Systems, Inc.
QED Systems Inc.
Quaker Oats Co., The
Quality Research Inc.
Questech Service Co.
[[Page 82]]
Questech, Inc.
Quintron Corp.
R&D Maintenance Services
RJO Enterprises, Inc.
RWE-DEA Aktiengesellschaft Fue
Racal Communications, Inc.
Radian Corp.
Radian Inc.
Rafael U.S.A.
Rail Co.
Ram Systems GMBH
Rand Corp.
Raytheon Aircraft Corp.
Raytheon Co.
Raytheon Engineers & Constructions
Raytheon Service Co.
Reflectone, Inc.
Reliable Mechanical Inc.
Research & Development Labs
Research Analysis & Maintenance
Reynolds, R.J., Co.
Richards, R.P., Inc.
Robbins-Gioia, Inc.
Rockwell International Corp.
Roe Enterprises Inc.
Roh Inc.
Rolls Royce PLC
Rooney Brothers Co.
Rosenblatt, M. & Son, Inc.
Roxco, Ltd.
Royal Maid Association for the Blind
Ruff, Thomas W. & Co.
Rust Engineering & Construction
Rust Environment & Infrastructure
Rutter-Rex, J.H., MFG. Co., Inc.
Ryan Co., Inc.
SFA, Inc.
SAAB Training Systems
SCI Technology, Inc.
SKF USA, Inc.
SRA International Inc.
SRI International
SRS Technologies, Inc.
SSI Services, Inc.
STM Joint Venture
Sabreliner Corp.
Saco Defense, Inc.
Sacramento Coca-Cola Bottling Inc.
San Francisco Drydock, Inc.
Sanders Engineering Co., Inc.
Saudi Operations & Maintenance Co.
Sauer Inc.
Schafer, W.J. Associates Inc.
Science Applications International Corp.
Scientific Research Corp.
Sea Crest Construction Corp.
Sea Land Service, Inc.
Seaward Marine Services Inc.
Sechan Electronics, Inc.
Selco, Inc.
Selecttech Services Corp.
Selmon Enterprises, Inc.
Semcor, Inc.
Sencom Corp.
Sentel Corp.
Sequa Corp.
Serv-Air Inc.
Service Engineering Industries
Sevenson Environmental Services, Inc.
Sharp, George G., Inc.
Shell Oil Co.
Shell Petroleum Co., Ltd, The
Sherikon, Inc.
Shin Cheon Co., Ltd.
Shinil Engineering Co. Ltd Choo
Siemens Aktiengesellschaft
Sierra Nevada Corp.
Sierra Technologies Inc.
Silicon Graphics Inc.
Silverton Construction Co.
Simtec Inc.
Slana Energy
Smiths Industries Aerospace Defense Systems
Smiths Industries PLC
Snap Contracting Corp.
So-Pak-Co Inc.
Societe Herstalienne Pour LA F
Sollitt, George Constr Co., The
Soltek of San Diego
Sonalysts, Inc.
Source Diversified Inc.
South Carolina Research Authority
Southeastern Public Service Authority
Southern Air Transport, Inc.
Southfork Systems, Inc.
Southwest Airport Services
Southwest Marine, Inc.
Southwest Mobile Systems Corp.
Southwest Research Institute
Southwestern Bell Telephone Co.
Space & Sensors Associates
Space Applications Corp.
Space Industries International
Sparta, Inc.
Sparton Electronics Florida, Inc.
Spaw Glass Holding Corp.
Specialty Group Inc.
Speedy Food Service, Inc.
Sperry Marine Inc.
Sprint Communications Co. Ltd. Partnership
Ssangyong Oil Refining Co., Ltd.
Stackpole Corp.
Standard Oil Co., The
Stanford Telecommunications
Sterling Software Inc.
[[Page 83]]
Stevedoring Services of America
Stewart & Stevenson Services, Inc
Storage Technology Corp.
Strong, Bill Enterprises, Inc.
Suburban Grading & Utility
Suffork Construction Co.
Sumaria Systems, Inc.
Summa Technology, Inc.
Sun Company, Inc.
Sun Microsystems Federal Inc.
Sun Microsystems Inc.
Sundstrand Corp.
Sundt Corp.
Sunkyong, Ltd.
Sunrise Balancing Group
Support Systems Associates
Supreme Beef Processors, Inc.
Sverdrup Civil Inc.
Sverdrup Technology Inc.
Swank Enterprises
Swinerton & Walberg Co.
Sylvest Management System
Synectics Corp.
Synoptic Systems Corp.
Syscon Corp.
Sysorex Information Systems
System Planning Corp.
System Resources Corp.
Systems Control Technology
Systems Engineering Solutions
Systems Engineering Energy & Management Association Inc.
Systems Integration & Research
Sytex Inc.
T Bear Consolidated Companies
T I/Martin Javeling JV
TASC Inc.
TDS Inc.
TRW, Inc.
Talley Defense Systems, Inc.
Talley Manufacturing & Technology Inc.
Tec-Masters, Inc.
Techcon Inc.
Techmatics, Inc.
Technical & Management Services Corp.
Technical Product Group Inc.
Technology Management & Analysis Corp.
Technology Service Corp.
Tecolote Research, Inc.
Tecom, Inc.
Telecommunication Systems
Teleconsult, Inc.
Teledyne, Inc.
Teledyne Industries Inc.
Telephonics Corp.
Telos Corp.
Tennessee Apparel Corp.
Tennier Industries Inc.
Tetra Tech, Inc.
Texas Instruments Inc.
Texas Utilities Co.
Texas--Capital Contractors Inc.
Texcom, Inc.
Textron Inc.
Therm, Inc.
Thermotrex Corp.
Thiokol Corp.
Thompson, J Walker Co.
Tiburon Systems, Inc.
Timeplex Federal Systems Inc.
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Todd Shipyards Corp.
Tohoku Electric Power Co., Inc.
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Tower Air, Inc.
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Trans-tec Services, Inc.
Translant, Inc.
Trataros Construction Inc.
Tri-Cor Industries, Inc.
Tri-State Design Construction, Inc.
Trimble Navigation Limited
Trinity Marine Group
Troy Systems Inc.
Turner Construction Co.
Tybrin Corp.
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U.S. Hardware Supply Inc.
U.S. Oil & Refining Co.
UES Inc.
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Unidyne Corp.
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Unisys Corp,
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United Defense LP
United International Engineering
United Native American Telecom
United States Tobacco Co.
United Technologies Corp.
Universal Systems & Technology
Universal Systems Inc.
Universal Technical Resource Services
University of California
University of Dayton, Inc.
University of Illinois
University of Southern California
University of Texas at Austin
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[[Page 84]]
Urban General Contractors, Inc.
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Utah State University
VSE Corp.
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Varian Associates, Inc.
Varo, Inc.
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Versar, Inc.
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Vinnell Corp.
Virtexco Corp.
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Vought Aircraft Co.
Vredenburg, R.M. & Co.
Wallenius Ferry AB
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Warehouses Services Agency SARL
Washington Beef, Inc.
Washington, University of
Waterman Steamship Corp.
Webb Electric Co. of Fla.
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Westinghouse Norden Systems
Weston, Roy F., Inc.
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Whiting-Turner Contracting Co., Inc.
Whittaker Corp.
Williams International Corp.
Wisconsin Physicians Service Insurance
Wolverine World Wide, Inc.
Woodward Governor Co.
Woodward-Clyde Consultants
Worldcorp, Inc.
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Xenotechnix Inc.
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Zenith Data Systems Corp Del.
PART 41--ENLISTED ADMINISTRATIVE SEPARATIONS--Table of Contents
Sec.
41.1 Purpose.
41.2 Applicability and scope.
41.3 Policy.
41.4 Responsibilities.
41.5 Effective date and implementation.
41.6 Definitions.
Appendix A to Part 41--Standards and Procedures
Authority: 10 U.S.C. 1162, 1163, 1169, 1170, 1172, and 1173.
Source: 47 FR 10174, Mar. 9, 1982, unless otherwise noted.
Sec. 41.1 Purpose.
This part establishes policies, standards, and procedures governing
the administrative separation of enlisted members from the Military
Services.
Sec. 41.2 Applicability and scope.
The provisions of this part apply to Office of the Secretary of
Defense and the Military Departments (including their reserve
components). The term ``Military Services,'' as used herein, refers to
the Army, Navy, Air Force and Marine Corps.
Sec. 41.3 Policy.
(a) It is the policy of the Department of Defense to promote the
readiness of the Military Services by maintaining high standards of
conduct and performance. Separation policy promotes the readiness of the
Military Services by providing an orderly means to:
(1) Ensure that the Military Services are served by individuals
capable of meeting required standards of duty performance and
discipline;
(2) Maintain standards of performance and conduct through
characterization of service in a system that emphasizes the importance
of honorable service;
(3) Achieve authorized force levels and grade distributions; and
(4) Provide for the orderly administrative separation of enlisted
personnel in a variety of circumstances.
(b) DoD separation policy is designed to strengthen the concept that
military service is a calling different from any civilian occupation.
[[Page 85]]
(1) The acquisition of military status, whether through enlistment
or induction, involves a commitment to the United States, the service,
and one's fellow citizens and servicemembers to complete successfully a
period of obligated service. Early separation for failure to meet
required standards of performance or discipline represents a failure to
fulfill that commitment.
(2) Millions of Americans from diverse backgrounds and with a wide
variety of aptitudes and attitudes upon entering military service have
served successfully in the armed forces. It is the policy of the
Department of Defense to provide servicemembers with the training,
motivation, and professional leadership that inspires the dedicated
enlisted member to emulate his or her predecessors and peers in meeting
required standards of performance and discipline.
(3) The Military Services make a substantial investment in training,
time, equipment, and related expenses when persons are enlisted or
inducted into military service. Separation prior to completion of an
obligated period of service is wasteful because it results in loss of
this investment and generates a requirement for increased accession.
Consequently, attrition is an issue of significant concern at all levels
of responsibility within the armed forces. Reasonable efforts should be
made to identify enlisted members who exhibit a likelihood for early
separation, and to improve their chances for retention through
counseling, retraining, and rehabilitation prior to initiation of
separation proceedings. Enlisted members who do not demonstrate
potential for further military service should be separated in order to
avoid the high costs in terms of pay, administrative efforts,
degradation of morale, and substandard mission performance that are
associated with retention of enlisted members who do not conform to
required standards of discipline and performance despite efforts at
counseling, retraining, or rehabilitation.
(c) Standards and procedures for implementation of these policies
are set forth in appendix A to this part.
Sec. 41.4 Responsibilities.
(a) The Secretaries of the Military Departments shall prescribe
implementing documents to ensure that the policies, standards, and
procedures set forth in this part are administered in a manner that
provides consistency in separation policy to the extent practicable in a
system that is based on command discretion. The implementing documents
also shall address the following matters:
(1) Processing goals. The Secretary concerned shall establish
processing time goals for the types of administrative separations
authorized by this part. Such goals shall be designed to further the
efficient administration of the armed forces and shall be measured from
the date of notification to the date of separation. Normally such goals
should not exceed 15 working days for the Notification Procedure (part
3, section B., appendix A) and 50 working days for the Administrative
Board Procedure (part 3, section C., appendix A) Goals for shorter
processing times are encouraged, particularly for cases in which
expeditious action is likely. Variations may be established for complex
cases or cases in which the Separation Authority is not located on the
same facility as the respondent. The goals, and a program for monitoring
effectiveness, shall be set forth in the implementing document of the
Military Department. Failure to process an administrative separation
within the prescribed goal for processing times shall not create a bar
to separation or characterization.
(2) Periodic explanations. The Secretary concerned shall prescribe
appropriate internal procedures for periodic explanation to enlisted
members of the types of separations, the basis for their issuance, the
possible effects of various actions upon reenlistment, civilian
employment, veterans' benefits, and related matters, and the effects of
10 U.S.C. 977 and Pub. L. 97-66, concerning denial of certain benefits
to members who fail to complete at least 2 years of an original
enlistment. Such explanation may be provided in the form of a written
fact sheet or similar document. The periodic explanation shall take
place at least each time the provisions of the Uniform Code of Military
Justice
[[Page 86]]
(UCMJ) are explained pursuant to Article 137 of the UCMJ. The
requirement that the effects of the various types of separations be
explained to enlisted members is a command responsibility, not a
procedural entitlement. Failure on the part of the member to receive or
to understand such explanation does not create a bar to separation or
characterization.
(3) Provision of information during separation processing. The
Secretary concerned shall ensure that information concerning the purpose
and authority of the Discharge Review Board and the Board for Correction
of Military/Naval Records, established under 10 U.S.C. 1552 and 1553 and
32 CFR part 70 (DoD Directive 1332.28) is provided during the separation
processing of all members, except when the separation is for the purpose
of an immediate reenlistment. Specific counseling is required under 38
U.S.C. 3103(a) which states that a discharge under other than honorable
conditions, resulting from a period of continuous, unauthorized absence
of 180 days or more, is a conditional bar to benefits administered by
the Veterans Administration, notwithstanding any action by a Discharge
Review Board. The information required by this paragraph should be
provided in the form of a written fact sheet or similar document.
Failure on the part of the member to receive or to understand such
explanation does not create a bar to separation or characterization.
(b) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) may modify or supplement the enclosures to this
Directive, and may delegate the authority to establish reporting
requirements for the reasons for separation (part 1, appendix A) to a
Deputy Assistant Secretary.
Sec. 41.5 Effective date and implementation.
(a) This part applies only to administrative separation proceedings
initiated on or after October 1, 1982.
(b) Part 41, effective December 29, 1976 shall continue to be used
for administrative separation proceedings initiated on or before
September 30, 1982.
Sec. 41.6 Definitions.
(a) Member. An enlisted member of a Military Service.
(b) Discharge. Complete severance from all military status gained by
the enlistment or induction concerned.
(c) Release from active duty. Termination of active duty status and
transfer or reversion to a reserve component not on active duty,
including transfer to the Individual Ready Reserve (IRR).
(d) Separation. A general term which includes discharge, release
from active duty, release from custody and control of the armed forces,
transfer to the IRR, and similar changes in active or reserve status.
(e) Military record. An individual's overall performance while a
member of a Military Service, including personal conduct and performance
of duty.
(f) Separation Authority. An official authorized by the Secretary
concerned to take final action with respect to a specified type of
separation.
(g) Convening Authority. (1) The Separation Authority or (2) a
commanding officer who has been authorized by the Secretary concerned to
process the case except for final action and who otherwise has the
qualifications to act as a Separation Authority.
(h) Respondent. A member of a Military Service who has been notified
that action has been initiated to separate the member.
(i) Entry level status. The first 180 days of continuous active
military service. For members of a reserve component who have not
completed 180 days of continuous active military service and who are not
on active duty, entry level status begins upon enlistment in a reserve
component (including a period of assignment to a delayed entry program)
and terminates 180 days after beginning an initial period of entry level
active duty training. For purposes of characterization of service or
description of separation, the member's status is determined by the date
of notification as to the initiation of separation proceedings.
[[Page 87]]
Appendix A to Part 41--Standards and Procedures
Table of Contents
Part 1--Reasons for Separation
A. Expiration of Service Obligation
1. Basis
2. Characterization or description
B. Selected Changes in Service Obligations
1. Basis
2. Characterization or description
C. Convenience of the Government
1. Basis
2. Characterization or description
3. Procedures
4. Reasons
a. Early release to further education
b. Early release to accept public office
c. Dependency or hardship
d. Pregnancy or childbirth
e. Parenthood
f. Conscientious objection
g. Surviving family member
h. Other designated physical or mental conditions
i. Additional grounds
D. Disability
1. Basis
2. Characterization or description
3. Procedures
E. Defective Enlistments and Inductions
1. Minority
a. Basis
(1) Under age 17
(2) Age 17
b. Description of separation
c. Procedure
2. Erroneous
a. Basis
b. Characterization or description
c. Procedure
3. Defective enlistment agreements
a. Basis
b. Characterization or description
c. Procedures
4. Fraudulent entry into military service
a. Basis
b. Characterization or description
c. Procedures
F. Entry Level Performance and Conduct
1. Basis
2. Counseling and rehabilitation
3. Description of separation
4. Procedures
G. Unsatisfactory Performance
1. Basis
2. Counseling and rehabilitation
3. Characterization or description
4. Procedures
H. Homosexuality
1. Basis
2. Characterization or description
3. Procedures
I. Drug Abuse Rehabilitation Failure
1. Basis
2. Characterization or description
3. Procedures
J. Alcohol Abuse Rehabilitation Failure
1. Basis
2. Characterization or description
3. Procedures
K. Misconduct
1. Basis
a. Reasons
b. Reporting
c. Related separations
2. Counseling and rehabilitation
3. Characterization or description
4. Procedures
L. Separation in Lieu of Trial by Court-Martial
1. Basis
2. Characterization or description
3. Procedures
M. Security
1. Basis
2. Characterization or description
N. Unsatisfactory Participation in the Ready Reserves
1. Basis
2. Characterization or description
3. Procedures
O. Secretarial Plenary Authority
1. Basis
2. Characterization or description
3. Procedures
P. Reasons Established by the Military Department
1. Basis
2. Counseling and rehabilitation
3. Characterization or description
4. Procedures
Part 2--Guidelines on Separation and Characterization
A. Separation
1. Scope
2. Guidance
3. Limitations on separation actions
B. Suspension of Separation
1. Suspension
2. Action during the period of suspension
C. Characterization of Service or Description of Separation
1. Types of characterization or description
2. Characterization of service
a. General considerations
b. Types of characterization
(1) Honorable
(2) General (under honorable conditions)
(3) Under Other Than Honorable
Conditions
c. Limitations on characterization
3. Uncharacterized separations
a. Entry Level Separation
b. Void enlistments or inductions
c. Dropping from the rolls
Part 3--Procedures for Separation
A. Scope
B. Notification Procedure
1. Notice
2. Additional notice requirements
[[Page 88]]
3. Response
4. Separation Authority
C. Administrative Board Procedure
1. Notice
2. Additional notice requirements
3. Response
4. Waiver
5. Hearing procedure
a. Composition
b. Presiding officer
c. Witnesses
d. Record of proceedings
e. Presentation of evidence
f. Rights of the respondents
g. Findings and recommendations
(1) Retention or separation
(2) Suspension or separation
(3) Characterization of service or description of separation
(4) Transfer to the Ready Reserves
6. Separation Authority
D. Additional Provisions Concerning Members Confined by Civil
Authorities
E. Additional Requirements for Certain Members of Reserve Components
1. Members of reserve components not on active duty
2. Tranfer to the IRR
F. Additional Requirements for Members beyond Military Control by Reason
of Unauthorized Absence
1. Determination of applicability
2. Notice
3. Members of reserve components
Part 1--Reasons for Separation
A. Expiration of Service Obligation. 1. Basis. A member may be
separated upon expiration of enlistment or fulfillment of service
obligation. This includes separation authorized by the Secretary
concerned when the member is within 30 days of the date of expiration of
term of service under the following circumstances:
a. The member is serving outside the continental United States
(CONUS); or
b. The member is a resident of a State, territory, or possession
outside CONUS and is serving outside the member's State, territory, or
possession of residence.
2. Characterization or description. Honorable, unless:
a. An Entry Level Separation is required under subsection C.3. of
part 2;
b. Characterization of service as General (under honorable
conditions) is warranted under section C. of part 2 on the basis of
numerical scores accumulated in a formal, Service-wide rating system
that evaluates conduct and performance on a regular basis; or
c. Another characterization is warranted upon discharge from the IRR
under section E. of part 3.
B. Selected Changes in Service Obligations. 1. Basis. A member may
be separated for the following reasons:
a. General demobilization or reduction in authorized strength.
b. Early separation of personnel under a program established by the
Secretary concerned. A copy of the document authorizing such program
shall be forwarded to the Assistant Secretary of Defense (Manpower,
Reserve Affairs, and Logistics (ASD(MRA&L)) on or before the date of
implementation.
c. Acceptance of an active duty commission or appointment, or
acceptance into a program leading to such a commission or appointment in
any branch of the Military Services.
d. Immediate enlistment or reenlistment.
e. Interservice transfer of inactive reserves in accordance with DoD
Directive 1205.5.
2. Characterization or description. Honorable, unless:
a. An Entry Level Separation is required under section C. of part 2;
b. Characterization of service as General (under honorable
conditions) is warranted under section C. of part 2 on the basis of
numerical scores accumulated in a formal, service-wide rating system
that evaluates conduct and performance on a regular basis; or
c. Another characterization is warranted upon discharge from the IRR
under section E. of part 3.
C. Convenience of the Government. 1. Basis. A member may be
separated for convenience of the government for the reasons set forth in
subsection C.4., below.
2. Characterization or description. Honorable, unless:
a. An Entry Level Separation is required under section C. of part 2;
or
b. Characterization of service as General (under honorable
conditions) is warranted under section C. of part 2.
3. Procedures. Procedural requirements may be established by the
Secretary concerned, subject to procedures established in subsection
C.4., below. Prior to characterization of service as General (under
honorable conditions), the member shall be notified of the specific
factors in the service record that warrant such a characterization, and
the Notification Procedure (section B. of part 3) shall be used. Such
notice and procedure is not required, however, when characterization of
service as General (under honorable conditions) is based upon numerical
scores accumulated in a formal, service-wide rating system that
evaluates conduct and performance on a regular basis.
4. Reasons. a. Early release to further education. A member may be
separated under DoD Directive 1332.15 to attend a college, university,
vocational school, or technical school.
b. Early release to accept public office. A member may be separated
to accept public office only under circumstances authorized
[[Page 89]]
by the Military Department concerned and consistent with DoD Directive
1344.10.
c. Dependency or hardship. (1) Upon request of the member and
concurrence of the government, separation may be directed when genuine
dependency or undue hardship exists under the following circumstances:
(a) The hardship or dependency is not temporary;
(b) Conditions have arisen or have been aggravated to an excessive
degree since entry into the Service, and the member has made every
reasonable effort to remedy the situation;
(c) The administrative separation will eliminate or materially
alleviate the condition; and
(d) There are no other means of alleviation reasonably available.
(2) Undue hardship does not necessarily exist solely because of
altered present or expected income, family separation, or other
inconveniences normally incident to Military Service.
d. Pregnancy or childbirth. A female member may be separated on the
basis of pregnancy or childbirth upon her request, unless retention is
determined to be in the best interests of the service under section A.
of part 2 and guidance established by the Military Department concerned.
e. Parenthood. A member may be separated by reason of parenthood if
as a result thereof it is determined under the guidance set forth in
section A. of part 2 that the member is unable satisfactorily to perform
his or her duties or is unavailable for worldwide assignment or
deployment. Prior to involuntary separation under this provision, the
Notification Procedure (section B. of part 3) shall be used. Separation
processing may not be initiated until the member has been counseled
formally concerning deficiencies and has been afforded an opportunity to
overcome those deficiencies as reflected in appropriate counseling or
personnel records.
f. Conscientious objection. A member may be separated if authorized
under 32 CFR part 75 (DoD Directive 1300.6).
g. Surviving family member. A member may be separated if authorized
under 32 CFR part 52 (DoD Directive 1315.14).
h. Other designated physical or mental conditions. (1) The Secretary
concerned may authorize separation on the basis of other designated
physical or mental conditions, not amounting to Disability (section D.,
below), that potentially interfere with assignment to or performance of
duty under the guidance set forth in section A. of part 2. Such
conditions may include but are not limited to chronic seasickness or
airsickness, enuresis, and personality disorder.1
---------------------------------------------------------------------------
1 Personality disorders are described in the Diagnostic and
Statistical Manual (DSM-III) of Mental Disorders, 3d Edition, Committee
on Nomenclature & Statistics, American Psychiatric Association,
Washington, DC, 1978.
---------------------------------------------------------------------------
(2) Separation processing may not be initiated until the member has
been counseled formally concerning deficiencies and has been afforded an
opportunity to overcome those deficiencies as reflected in appropriate
counseling or personnel records.
(3) Separation on the basis of personality disorder is authorized
only if a diagnosis by a psychiatrist or psychologist, completed in
accordance with procedures established by the Military Department
concerned, concludes, that the disorder is so severe that the member's
ability to function effectively in the military environment is
significantly impaired.
(4) Separation for personality disorder is not appropriate when
separation is warranted under sections A. through N. or section P. of
this part. For example, if separation is warranted on the basis of
unsatisfactory performance (section G.) or misconduct (section K.), the
member should not be separated under this section regardless of the
existence of a personality disorder.
(5) Nothing in this provision precludes separation of a member who
has such a condition under any other basis set forth under this section
(Convenience of the Government) or for any other reason authorized by
this part.
(6) Prior to involuntary separation under this provision, the
Notification Procedure (section B. of part 3) shall be used.
(7) The reasons designated by the Secretary concerned shall be
separately reported.
i. Additional grounds. The Secretary concerned may provide
additional grounds for separation for the convenience of the government.
A copy of the document authorizing such grounds shall be forwarded to
the ASD(MRA&L) on or before the date of implementation.
D. Disability. 1. Basis. A member may be separated for disability
under the provisions of 10 U.S.C. chapter 61.
2. Characterization or description. Honorable, unless:
a. An Entry Level Separation is required under section C. of part 2;
or
b. Characterization of service as General (under honorable
conditions) is warranted under section C. of part 2.
3. Procedures. Procedural requirements for separation may be
established by the Military Departments consistent with 10 U.S.C.
chapter 61. If separation is recommended, the following requirements
apply prior to characterization of service as General (under honorable
conditions): the member shall be notified of the specific factors in the
service
[[Page 90]]
record that warrant such a characterization, and the Notification
Procedure (section B. of part 3) shall be used. Such notice and
procedure is not required, however, when characterization of service as
General (under honorable conditions) is based upon numerical scores
accumulated in a formal, service-wide rating system that evaluates
conduct and performance on a regular basis.
E. Defective Enlistments and Inductions. 1. Minority. a. Basis. (1)
Under age 17. If a member is under the age of 17, the enlistment of the
member is void, and the member shall be separated.
(2) Age 17. A member shall be separated under 10 U.S.C. 1170 in the
following circumstances except when the member is retained for the
purpose of trial by court-martial:
(a) There is evidence satisfactory to the Secretary concerned that
the member is under 18 years of age;
(b) The member enlisted without the written consent of the member's
parent or guardian; and
(c) An application for the member's separation is submitted to the
Secretary concerned by the parent or guardian within 90 days of the
member's enlistment.
b. Description of separation. A member separated under subparagraph
E.1.a.(1), above, shall receive an order of release from the custody and
control of the armed forces (by reason of void enlistment or induction).
The separation of a member under subparagraph E.1.a.(2), above, shall be
described as an Entry Level Separation.
c. Procedure. The Notification Procedure (section B. of part 3)
shall be used.
2. Erroneous. a. Basis. A member may be separated on the basis of an
erroneous enlistment, induction, or extension of enlistment under the
guidance set forth in section A. of part 2. An enlistment, induction, or
extension of enlistment is erroneous in the following circumstances, if:
(1) It would not have occurred had the relevant facts been known by
the government or had appropriate directives been followed;
(2) It was not the result of fraudulent conduct on the part of the
member; and
(3) The defect is unchanged in material respects.
b. Characterization or description. Honorable, unless an Entry Level
Separation or an order of release from the custody and control of the
Military Services (by reason of void enlistment or induction) is
required under section C. of part 2.
c. Procedure. (1) If the command recommends that the individual be
retained in military service, the initiation of separation processing is
not required in the following circumstances:
(a) The defect is no longer present; or
(b) The defect is waivable and a waiver is obtained from appropriate
authority.
(2) If separation processing is initiated, the Notification
Procedure (section B. of part 3) shall be used.
3. Defective enlistment agreements. a. Basis. A defective enlistment
agreement exists in the following circumstances:
(1) As a result of a material misrepresentation by recruiting
personnel, upon which the member reasonably relied, the member was
induced to enlist with a commitment for which the member was not
qualified;
(2) The member received a written enlistment commitment from
recruiting personnel for which the member was qualified, but which
cannot be fulfilled by the Military Service; or
(3) The enlistment was involuntary. See 10 U.S.C. 802.
b. Characterization or description. Honorable, unless an Entry Level
Separation or an order of release from the custody and control of the
Military Services (by reason of void enlistment) is required under
section C. of part 2.
c. Procedures. This provision does not bar appropriate disciplinary
action or other administrative separation proceedings regardless of when
the defect is raised. Separation is appropriate under this provision
only in the following circumstances:
(1) The member did not knowingly participate in creation of the
defective enlistment;
(2) The member brings the defect to the attention of appropriate
authorities within 30 days after the defect is discovered or reasonably
should have been discovered by the member;
(3) The member requests separation instead of other authorized
corrective action; and
(4) The request otherwise meets such criteria as may be established
by the Secretary concerned.
4. Fraudulent entry into military service. a. Basis. A member may be
separated under guidance set forth in section A. of part 2 on the basis
of procurement of a fraudulent enlistment, induction, or period of
military service through any deliberate material misrepresentation,
omission, or concealment which, if known at the time of enlistment,
induction, or entry onto a period of military service, might have
resulted in rejection.
b. Characterization or description. Characterization of service or
description of separation shall be in accordance with section C. of part
2. If the fraud involves concealment of a prior separation in which
service was not characterized as Honorable, characterization normally
shall be Under Other Than Honorable Conditions.
c. Procedures. The Notification Procedure (section B. of part 3)
shall be used except as follows:
[[Page 91]]
(1) Characterization of service Under Other Than Honorable
Conditions may not be issued unless the Administrative Board Procedure
(section C. of part 3) is used.
(2) When the sole reason for separation is fraudulent entry,
suspension of separation (section B. of part 2) is not authorized. When
there are approved reasons for separation in addition to fraudulent
entry, suspension of separation is authorized only in the following
circumstances:
(a) A waiver of the fraudulent entry is approved; and
(b) The suspension pertains to reasons for separation other than the
fraudulent entry.
(3) If the command recommends that the member be retained in
military service, the initiation of separation processing is unnecessary
in the following circumstances:
(a) The defect is no longer present; or
(b) The defect is waivable and a waiver is obtained from appropriate
authority.
(4) If the material misrepresentation includes preservice
homosexuality (subsection H.1.), the standards of paragraph H.1.c. and
procedures of subsection H.3. shall be applied in processing a
separation under this section. In such a case the characterization or
description of the separation shall be determined under paragraph
E.4.b., above.
F. Entry Level Performance and Conduct. 1. Basis. a. A member may be
separated while in entry level status (Sec. 41.6(i)) when it is
determined under the guidance set forth in section A. of part 2 that the
member is unqualified for further military service by reason of
unsatisfactory performance or conduct (or both), as evidenced by
inability, lack of reasonable effort, failure to adapt to the military
environment or minor disciplinary infractions.
b. When separation of a member in entry level status is warranted by
unsatisfactory performance or minor disciplinary infractions (or both),
the member normally should be separated under this section. Nothing in
this provision precludes separation under another provision of this
Directive when such separation is authorized and warranted by the
circumstances of the case.
2. Counseling and rehabilitation. Separation processing may not be
initiated until the member has been counseled formally concerning
deficiencies and has been afforded an opportunity to overcome those
deficiencies as reflected in appropriate counseling or personnel
records. Counseling and rehabilitation requirements are important with
respect to this reason for separation. Because military service is a
calling different from any civilian occupation, a member should not be
separated when this is the sole reason unless there have been efforts at
rehabilitation under standards prescribed by the Secretary concerned.
3. Description of separation. Entry Level Separation.
4. Procedures. The Notification Procedure (section B. of part 3)
shall be used.
G. Unsatisfactory Performance. 1. Basis. A member may be separated
when it is determined under the guidance set forth in section A. of part
2 that the member is unqualified for further military service by reason
of unsatisfactory performance. This reason shall not be used if the
member is in entry level status (Sec. 41.6(i)).
2. Counseling and Rehabilitation. Separation processing may not be
initiated until the member has been counseled formally concerning
deficiencies and has been afforded an opportunity to overcome those
deficiencies as reflected in appropriate counseling or personnel
records. Counseling and rehabilitation requirements are of particular
importance with respect to this reason for separation. Because military
service is a calling different from any civilian occupation, a member
should not be separated when unsatisfactory performance is the sole
reason unless there have been efforts at rehabilitation under standards
prescribed by the Secretary concerned.
3. Characterization or description. The service shall be
characterized as Honorable or General (under honorable conditions) in
accordance with section C. of part 2.
4. Procedures. The Notification Procedure (section B. of part 3)
shall be used.
H. Homosexuality. 1. Basis. a. Homosexuality is incompatible with
military service. The presence in the military environment of persons
who engage in homosexual conduct or who, by their statements,
demonstrate a propensity to engage in homosexual conduct, seriously
impairs the accomplishment of the military mission. The presence of such
members adversely affects the ability of the Military Services to
maintain discipline, good order, and morale; to foster mutual trust and
confidence among servicemembers; to ensure the integrity of the system
of rank and command; to facilitate assignment and worldwide deployment
of servicemembers who frequently must live and work under close
conditions affording minimal privacy; to recruit and retain members of
the Military Services; to maintain the public acceptability of military
service; and to prevent breaches of security.
b. As used in this section:
(1) Homosexual means a person, regardless of sex, who engages in,
desires to engage in, or intends to engage in homosexual acts;
(2) Bisexual means a person who engages in, desires to engage in, or
intends to engage in homosexual and heterosexual acts; and
(3) A homosexual act means bodily contact, actively undertaken or
passively permitted, between members of the same sex for the purpose of
satisfying sexual desires.
c. The basis for separation may include preservice, prior service,
or current service conduct or statements. A member shall be
[[Page 92]]
separated under this section if one or more of the following approved
findings is made:
(1) The member has engaged in, attempted to engage in, or solicited
another to engage in a homosexual act or acts unless there are approved
further findings that:
(a) Such conduct is a departure from the member's usual and
customary behavior;
(b) Such conduct under all the circumstances is unlikely to recur;
(c) Such conduct was not accomplished by use of force, coercion, or
intimidation by the member during a period of military service;
(d) Under the particular circumstances of the case, the member's
continued presence in the Service is consistent with the interest of the
Service in proper discipline, good order, and morale; and
(e) The member does not desire to engage in or intend to engage in
homosexual acts.
(2) The member has stated that he or she is a homosexual or bisexual
unless there is a further finding that the member is not a homosexual or
bisexual.
(3) The member has married or attempted to marry a person known to
be of the same biological sex (as evidenced by the external anatomy of
the persons involved) unless there are further findings that the member
is not a homosexual or bisexual and that the purpose of the marriage or
attempt was the avoidance or termination of military service.
2. Characterization or description. Characterization of service or
description of separation shall be in accordance with the guidance in
section C. of part 2. When the sole basis for separation is
homosexuality, a characterization Under Other Than Honorable Conditions
may be issued only if such a characterization is warranted under section
C. of part 2 and there is a finding that during the current term of
service the member attempted, solicited, or committed a homosexual act
in the following circumstances:
a. By using force, coercion, or intimidation;
b. With a person under 16 years of age;
c. With a subordinate in circumstances that violate customary
military superior-subordinate relationships;
d. Openly in public view;
e. For compensation;
f. Aboard a military vessel or aircraft; or
g. In another location subject to military control under aggravating
circumstances noted in the finding that have an adverse impact on
discipline, good order, or morale comparable to the impact of such
activity aboard a vessel or aircraft.
3. Procedures. The Administrative Board Procedure (section C. of
part 3) shall be used, subject to the following guidance:
a. Separation processing shall be initiated if there is probable
cause to believe separation is warranted under paragraph H.1.c., above.
b. The Administrative Board shall follow the procedures set forth in
subsection C.5. of part 3, except with respect to the following matters:
(1) If the Board finds that one or more of the circumstances
authorizing separation under paragraph H.1.c., above, is supported by
the evidence, the Board shall recommend separation unless the Board
finds that retention is warranted under the limited circumstances
described in that paragraph.
(2) If the Board does not find that there is sufficient evidence
that one or more of the circumstances authorizing separation under
paragraph H.1.c. has occurred, the Board shall recommend retention
unless the case involves another basis for separation of which the
member has been duly notified.
c. In any case in which characterization of service Under Other Than
Honorable Conditions is not authorized, the Separation Authority may be
exercised by an officer designated under paragraph B.4.a. of part 3.
d. The Separation Authority shall dispose of the case according to
the following provisions:
(1) If the Board recommends retention, the Separation Authority
shall take one of the following actions:
(a) Approve the finding and direct retention; or
(b) Forward the case to the Secretary concerned with a
recommendation that the Secretary separate the member under the
Secretary's Authority (section O. of this part 1).
(2) If the Board recommends separation, the Separation Authority
shall take one of the following actions:
(a) Approve the finding and direct separation; or
(b) Disapprove the finding on the basis of the following
considerations:
1 There is insufficient evidence to support the finding; or
2 Retention is warranted under the limited circumstances described
in paragraph H.1.c., above.
(3) If there has been a waiver of Board proceedings, the Separation
Authority shall dispose of the case in accordance with the following
provisions:
(a) If the Separation Authority determines that there is not
sufficient evidence to support separation under paragraph H.1.c., the
Separation Authority shall direct retention unless there is another
basis for separation of which the member has been duly notified.
(b) If the Separation Authority determines that one or more of the
circumstances authorizing separation under paragraph H.1.c. has
occurred, the member shall be separated unless retention is warranted
under the limited circumstances described in that paragraph.
e. The burden of proving that retention is warranted under the
limited circumstances described in paragraph H.1.c. rests with the
[[Page 93]]
member, except in cases where the member's conduct was solely the result
of a desire to avoid or terminate military service.
f. Findings regarding the existence of the limited circumstances
warranting a member's retention under paragraph H.1.c. are required only
if:
(1) The member clearly and specifically raises such limited
circumstances; or
(2) The Board or Separation Authority relies upon such circumstances
to justify the member's retention.
g. Nothing in these procedures:
(1) Limits the authority of the Secretary concerned to take
appropriate action in a case to ensure that there has been compliance
with the provisions of this part;
(2) Precludes retention of a member for a limited period of time in
the interests of national security as authorized by the Secretary
concerned;
(3) Authorizes a member to seek Secretarial review unless authorized
in procedures promulgated by the Secretary concerned;
(4) Precludes separation in appropriate circumstances for another
reason set forth in this part; or
(5) Precludes trial by court-martial in appropriate cases.
I. Drug Abuse Rehabilitation Failure. 1. Basis. a. A member who has
been referred to a program of rehabilitation for personal drug and
alcohol abuse may be separated for failure through inability or refusal
to participate in, cooperate in, or successfully complete such a program
in the following circumstances:
(1) There is a lack of potential for continued military service; or
(2) Long-term rehabilitation is determined necessary and the member
is transferred to a civilian medical facility for rehabilitation.
b. Nothing in this provision precludes separation of a member who
has been referred to such a program under any other provision of this
part in appropriate cases.
c. Drug abuse rehabilitation failures shall be reported separately
from alcohol abuse rehabilitation failures. If separation is based on
both, the primary basis shall be used for reporting requirements.
2. Characterization or description. When a member is separated under
this provision, characterization of service as Honorable or General
(under honorable conditions) is authorized except when an Entry Level
Separation is required under section C. of part 2. The relationship
between voluntary submission for treatment and the evidence that may be
considered on the issue of characterization is set forth in subparagraph
C.2.c.(6) of part 2. The relationship between mandatory urinalysis and
the evidence that may be considered on the issue of characterization is
set forth in subparagraph C.2.c.(7) of part 2.
3. Procedures. The Notification Procedure (section B. of part 3)
shall be used.
J. Alcohol Abuse Rehabilitation Failure. 1. Basis. a. A member who
has been referred to a program of rehabilitation for drug and alcohol
abuse may be separated for failure through inability or refusal to
participate in, cooperate in, or successfully complete such a program in
the following circumstances:
(1) There is a lack of potential for continued military service; or
(2) Long-term rehabilitation is determined necessary and the member
is transferred to a civilian medical facility for rehabilitation.
b. Nothing in this provision precludes separation of a member who
has been referred to such a program under any other provision of this
part in appropriate cases.
c. Alcohol abuse rehabilitation failures shall be reported
separately from drug abuse rehabilitation failures. If separation is
based on both, the primary basis shall be used for reporting purposes.
2. Characterization or description. When a member is separated under
this provision, characterization of service as Honorable or General
(under honorable conditions) is authorized except when an Entry Level
Separation is required under section C. of part 2.
3. Procedures. The Notification Procedure (section B. of part 3)
shall be used.
K. Misconduct. 1. Basis. a. Reasons. A member may be separated for
misconduct when it is determined under the guidance set forth in section
A. of part 2 that the member is unqualified for further military service
by reason of one or more of the following circumstances:
(1) Minor disciplinary infractions. A pattern of misconduct
consisting solely of minor disciplinary infractions. If separation of a
member in entry level status is warranted solely by reason of minor
disciplinary infractions, the action should be processed under Entry
Level Performance and Conduct (section F., above).
(2) A pattern of misconduct. A pattern of misconduct consisting of
(a) descreditable involvement with civil or military authorities or (b)
conduct prejudicial to good order and discipline.
(3) Commission of a serious offense. Commission of a serious
military or civilian offense if in the following circumstances:
(a) The specific circumstances of the offense warrant separation;
and
(b) A punitive discharge would be authorized for the same or a
closely related offense under the Manual for Courts-Martial, 1969
(Revised Edition), as amended.
(4) Civilian conviction. (a) Conviction by civilian authorities or
action taken which is tantamount to a finding of guilty, including
similar adjudications in juvenile proceedings, when the specific
circumstances of the offense warrant separation, and the following
conditions are present:
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1 A punitive discharge would be authorized for the same or a closely
related offense under the Manual for Courts-Martial; or
2 The sentence by civilian authorities includes confinement for six
months or more without regard to suspension or probation.
(b) Separation processing may be initiated whether or not a member
has filed an appeal of a civilian conviction or has stated an intention
to do so. Execution of an approved separation should be withheld pending
outcome of the appeal or until the time for appeal has passed, but the
member may be separated prior to final action on the appeal upon request
of the member or upon direction of the Secretary concerned.
b. Reporting. The Deputy Assistant Secretary (Military Personnel and
Force Management), Office of the ASD (MRA&L), shall require separate
reports under each subparagraph in paragraph K.1.a. for misconduct by
reason of drug abuse, unauthorized absence, and such other categories as
may be appropriate.
c. Related separations. Misconduct involving homosexuality shall be
processed under section H. Misconduct involving a fraudulent enlistment
is considered under subsection E.4., above.
2. Counseling and rehabilitation. Separation processing for a
pattern of misconduct (subparagraphs K.1.a. (1) and (2)) may not be
initiated until the member has been counseled formally concerning
deficiencies and has been afforded an opportunity to overcome those
deficiencies as reflected in appropriate counseling or personnel
records. If the sole basis of separation is a single offense
(subparagraph K.1.a.(3)) or a civilian conviction or a similar juvenile
adjudication (subparagraph K.1.a.(4)), the counseling and rehabilitation
requirements are not applicable.
3. Characterization or description. Characterization of service
normally shall be Under Other Than Honorable Conditions, but
characterization as General (under honorable conditions) may be
warranted under the guidelines in section C. of part 2. For respondents
who have completed entry level status, characterization of service as
Honorable is not authorized unless the respondent's record is otherwise
so meritorious that any other characterization clearly would be
inappropriate and the separation is approved by a commander exercising
general court-martial jurisdiction or higher authority as specified by
the Secretary concerned. When characterization of service Under Other
Than Honorable Conditions is not warranted for a member in entry level
status under section C. of part 2, the separation shall be described as
an Entry Level Separation.
4. Procedures. The Administrative Board Procedure (section C. of
part 3) shall be used, except that use of the Notification Procedure
(section B. of part 3) is authorized if separation is based upon
subparagraphs K.1.a.(1) and K.1.a.(2) and characterization of service
Under Other Than Honorable Conditions is not warranted under section C.
of part 2.
L. Separation in Lieu of Trial by Court-Martial. 1. Basis. A member
may be separated upon request of trial by court-martial if charges have
been preferred with respect to an offense for which a punitive discharge
is authorized and it is determined that the member is unqualified for
further military service under the guidance set forth in section A. of
part 2. This provision may not be used when section B. of paragraph 127c
of the Manual for Courts-Martial provides the sole basis for a punitive
discharge unless the charges have been referred to a court-martial
empowered to adjudge a punitive discharge.
2. Characterization or description. Characterization of service
normally shall be Under Other Than Honorable Conditions, but
characterization as General (under honorable conditions) may be
warranted under the guidelines in section C. of part 2. For respondents
who have completed entry level status, characterization of service as
Honorable is not authorized unless the respondent's record is otherwise
so meritorious that any other characterization clearly would be
inappropriate. When characterization of service Under Other Than
Honorable Conditions is not warranted for a member in entry level status
under section C. of part 2, the separation shall be described as an
Entry Level Separation.
3. Procedures. a. The request for discharge must be submitted in
writing and signed by the member.
b. The member shall be afforded opportunity to consult with counsel
qualified under Article 27(b)(1) of the UCMJ. If the member refuses to
do so, counsel shall prepare a statement to this effect, which shall be
attached to the file, and the member shall state that he or she has
waived the right to consult with counsel.
c. Except when the member has waived the right to counsel, the
request shall be signed by counsel.
d. In the written request, the member shall state that he or she
understands the following:
(1) The elements of the offense or offenses charged;
(2) That characterization of service Under Other Than Honorable
Conditions is authorized; and
(3) The adverse nature of such a characterization and possible
consequences thereof.
e. The Secretary concerned shall also require that one or both of
the following matters be included in the request:
(1) An acknowledgment of guilt of one or more of the offenses or any
lesser included offenses for which a punitive discharge is authorized;
or
[[Page 95]]
(2) A summary of the evidence or list of documents (or copies
thereof) provided to the member pertaining to the offenses for which a
punitive discharge is authorized.
f. The Separation Authority shall be a commander exercising general
court-martial jurisdiction or higher authority as specified by the
Secretary concerned.
g. Statements by the member or the member's counsel submitted in
connection with a request under this subsection are not admissible
against the member in a court-martial except as authorized under
Military Rule of Evidence 410, Manual for Courts-Martial.
M. Security. 1. Basis. When retention is clearly inconsistent with
the interest of national security, a member may be separated by reason
of security and under conditions and procedures established by the
Secretary of Defense in DoD 5200.2-R.
2. Characterization or description. Characterization of service or
description of a separation shall be in accordance with section C. of
part 2.
N. Unsatisfactory Participation in the Ready Reserve. 1. Basis. A
member may be separated for unsatisfactory participation in the Ready
Reserve under criteria established by the Secretary concerned under 32
CFR part 100 (DoD Directive 1215.13).
2. Characterization or description. Characterization of service or
description of a separation shall be in accordance with section C. of
part 2 and 32 CFR part 100 (DoD Directive 1215.13).
3. Procedures. The Administrative Board Procedure (section C. of
part 3) shall be used, except that the Notification Procedure (section
B. of part 3) may be used if characterization of service Under Other
Than Honorable Conditions is not warranted under section C. of part 2.
O. Secretarial Plenary Authority.
1. Basis. Notwithstanding any limitation on separations provided in
this part the Secretary concerned may direct the separation of any
member prior to expiration of term of service after determining it to be
in the best interests of the Service.
2. Characterization or description. Honorable or General (under
honorable conditions) as warranted under section C. of part 2 unless an
Entry Level Separation is required under section C. of part 2.
3. Procedures. Prior to involuntary separation, the Notification
Procedure (section B. of part 3) shall be used, except the procedure for
requesting an Administrative Board (paragraph B.1.g. of part 3) is not
applicable.
P. Reasons Established by the Military Departments. 1. Basis. The
Military Departments may establish additional reasons for separation for
circumstances not otherwise provided for in this part to meet specific
requirements, subject to approval by the ASD (MRA&L).
2. Counseling and rehabilitation. Separation processing may not be
initiated until the member has been counseled formally concerning
deficiencies and has been afforded an opportunity to overcome those
deficiencies as reflected in appropriate counseling or personnel records
except when the Military Department concerned provides in its
implementing document that counseling and rehabilitation requirements
are not applicable for the specific reason for separation.
3. Characterization or description. Characterization of service or
description of a separation shall be in accordance with section C. of
part 2.
4. Procedures. The procedures established by the Military
Departments shall be consistent with the procedures contained in this
part insofar as practicable.
Part 2--Guidelines on Separation and Characterization
A. Separation. 1. Scope. This general guidance applies when
referenced in part 1. Further guidance is set forth under the specific
reasons for separation in part 1.
2. Guidance. a. There is a substantial investment in the training of
persons enlisted or inducted into the Military Services. As a general
matter, reasonable efforts at rehabilitation should be made prior to
initiation of separation proceedings.
b. Unless separation is mandatory, the potential for rehabilitation
and further useful military service shall be considered by the
Separation Authority and, where applicable, the Administrative Board. If
separation is warranted despite the potential for rehabilitation,
consideration should be given to suspension of the separation, if
authorized.
c. Counseling and rehabilitation efforts are a prerequisite to
initiation of separation proceedings only insofar as expressly set forth
under specific requirements for separation in part 1. An alleged or
established inadequacy in previous rehabilitative efforts does not
provide a legal bar to separation.
d. The following factors may be considered on the issue of retention
or separation, depending on the circumstances of the case:
(1) The seriousness of the circumstances forming the basis for
initiation of separation proceedings, and the effect of the member's
continued retention on military discipline, good order, and morale.
(2) The likelihood of continuation or recurrence of the
circumstances forming the basis for initiation of separation
proceedings.
(3) The likelihood that the member will be a disruptive or
undesirable influence in present or future duty assignments.
(4) The ability of the member to perform duties effectively in the
present and in the future, including potential for advancement or
leadership.
(5) The member's rehabilitative potential.
[[Page 96]]
(6) The member's entire military record. (a) This may include:
1 Past contributions to the Service, assignments, awards and
decorations, evaluation ratings, and letters of commendation;
2 Letters of reprimand or admonition, counseling records, records of
nonjudicial punishment, records of conviction by court-martial and
records of involvement with civilian authorities; and
3 Any other matter deemed relevant by the Board, if any, or the
Separation Authority, based upon the specialized training, duties, and
experience of persons entrusted by this part with recommendations and
decisions on the issue of separation or retention.
(b) The following guidance applies to consideration of matter under
subparagraph A.2.d.(6)(a):
1 Adverse matter from a prior enlistment or period of military
service, such as records of nonjudicial punishment and convictions by
courts-martial, may be considered only when such records would have a
direct and strong probative value in determining whether separation is
appropriate. The use of such records ordinarily shall be limited to
those cases involving patterns of conduct manifested over an extended
period of time.
2 Isolated incidents and events that are remote in time normally
have little probative value in determining whether administrative
separation should be effected.
3. Limitations on separation actions. A member may not be separated
on the basis of the following:
a. Conduct that has been the subject of judicial proceedings
resulting in an acquittal or action having the effect thereof except in
the following circumstances:
(1) When such action is based upon a judicial determination not
going to the guilt or innocence of the respondent; or
(2) When the judicial proceeding was conducted in a State or foreign
court and the separation is approved by the Secretary concerned.
b. Conduct that has been the subject of a prior Administrative Board
in which the Board entered an approved finding that the evidence did not
sustain the factual allegations concerning the conduct except when the
conduct is the subject of a rehearing ordered on the basis of fraud or
collusion; or
c. Conduct that has been the subject of an administrative separation
proceeding resulting in a final determination by a Separation Authority
that the member should be retained, except in the following
circumstances:
(1) When there is subsequent conduct or performance forming the
basis, in whole or in part, for a new proceeding;
(2) When there is new or newly discovered evidence that was not
reasonably available at the time of the prior proceeding; or
(3) When the conduct is the subject of a rehearing ordered on the
basis of fraud or collusion.
B. Suspension of Separation. 1. Suspension. a. Unless prohibited by
this part a separation may be suspended for a specified period of not
more than 12 months by the Separation Authority or higher authority if
the circumstances of the case indicate a reasonable likelihood or
rehabilitation.
b. During the period of suspension, the member shall be afforded an
opportunity to meet appropriate standards of conduct and duty
performance.
c. Unless sooner vacated or remitted, execution of the approved
separation shall be remitted upon completion of the probationary period,
upon termination of the member's enlistment or period of obligated
service, or upon decision of the Separation Authority that the goal of
rehabilitation has been achieved.
2. Action during the period of suspension. a. During the period of
suspension, if there are further grounds for separation under part 1,
one or more of the following actions may be taken:
(1) Disciplinary action;
(2) New administrative action; or
(3) Vacation of the suspension accompanied by execution of the
separation if the member engages in conduct similar to that for which
separation was approved (but suspended) or otherwise fails to meet
appropriate standards of conduct and duty performance.
b. Prior to vacation of a suspension, the member shall be notified
in writing of the basis for the action and shall be afforded the
opportunity to consult with counsel (as provided in paragraph B.1.f. of
part 3) and to submit a statement in writing to the Separation
Authority. The respondent shall be provided a reasonable period of time,
but not less than 2 working days, to act on the notice. If the
respondent identifies specific legal issues for consideration by the
Separation Authority, the matter shall be reviewed by a judge advocate
or civilian lawyer employed by the government prior to final action by
the Separation Authority.
C. Characterization of Service or Description of Separation. 1.
Types of characterization or description. a. At separation, the
following types of characterization of service or description of
separation are authorized under this part:
(1) Separation with characterization of service as Honorable,
General (under honorable conditions), or Under Other Than Honorable
Conditions.
(2) Entry Level Separation.
(3) Order of release from the custody and control of the Military
Services by reason of void enlistment or induction.
(4) Separation by being dropped from the rolls of the Service.
[[Page 97]]
b. Any of the types of separation listed in this section may be used
in appropriate circumstances unless a limitation set forth in this
section or in part 1 (Reasons for Separation).
2. Characterization of service. a. General considerations. (1)
Characterization at separation shall be based upon the quality of the
member's service, including the reason for separation and guidance in
paragraph C.2.b., below, subject to the limitations set forth under
various reasons for separation in part 1. The quality of service will be
determined in accordance with standards of acceptable personal conduct
and performance of duty for military personnel. These standards are
found in the 10 U.S.C., sections 801-940, UCMJ, directives and
regulations issued by the Department of Defense and the Military
Departments, and the time-honored customs and traditions of military
service.
(2) The quality of service of a member on active duty or active duty
for training is affected adversely by conduct that is of a nature to
bring discredit on the Military Services or is prejudicial to good order
and discipline, regardless of whether the conduct is subject to UCMJ
jurisdiction. Characterization may be based on conduct in the civilian
community, and the burden is on the respondent to demonstrate that such
conduct did not adversely affect the respondent's service.
(3) The reasons for separation, including the specific circumstances
that form the basis for the separation, shall be considered on the issue
of characterization. As a general matter, characterization will be based
upon a pattern of behavior rather than an isolated incident. There are
circumstances, however, in which the conduct or performance of duty
reflected by a single incident provides the basis for characterization.
(4) Due consideration shall be given to the member's age, length of
service, grade, aptitude, physical and mental condition, and the
standards of acceptable conduct and performance of duty.
b. Types of characterization. (1) Honorable. The Honorable
characterization is appropriate when the quality of the member's service
generally has met the standards of acceptable conduct and performance of
duty for military personnel, or is otherwise so meritorious that any
other characterization would be clearly inappropriate. In the case of an
Honorable Discharge, an Honorable Discharge Certificate (DD Form 256)
will be awarded and a notation will be made on the appropriate copies of
the DD Form 214/5 in accordance with 32 CFR part 45 (DoD Directive
1336.1).
(2) General (under honorable conditions). If a member's service has
been honest and faithful, it is appropriate to characterize that service
under honorable conditions. Characterization of service as General
(under honorable conditions) is warranted when significant negative
aspects of the member's conduct or performance of duty outweigh positive
aspects of the member's military record.
(3) Under Other Than Honorable Conditions. (a) This characterization
may be issued in the following circumstances:
1 When the reason for separation is based upon a pattern of behavior
that constitutes a significant departure from the conduct expected of
members of the Military Services.
2 When the reason for separation is based upon one or more acts or
omissions that constitute a significant departure from the conduct
expected of members of the Military Services. Examples of factors that
may be considered include the use of force or violence to produce
serious bodily injury or death, abuse of a special position of trust,
disregard by a superior of customary superior-subordinate relationships,
acts or omissions that endanger the security of the United States or the
health and welfare of other members of the Military Services, and
deliberate acts or omissions that seriously endanger the health and
safety of other persons.
(b) This characterization is authorized only if the member has been
afforded the opportunity to request an Administrative Board, except as
provided in section L. of part 1 (Separation in Lieu of Trial by Courts-
Martial).
c. Limitations on characterization. Except as otherwise provided in
this paragraph, characterization will be determined solely by the
member's military record during the current enlistment or period of
service to which the separation pertains, plus any extensions thereof
prescribed by law or regulation or effected with the consent of the
member.
(1) Prior service activities, including records of conviction by
courts-martial, records of absence without leave, or commission of other
offenses for which punishment was not imposed shall not be considered on
the issue of characterization. To the extent that such matters are
considered on the issue of retention or separation (subsection A.2. of
this part 2), the record of proceedings may reflect express direction
that such information shall not be considered on the issue of
characterization.
(2) Preservice activities may not be considered on the issue of
characterization except as follows: in a proceeding concerning
fraudulent entry into military service (subsection E.4. of part 1),
evidence of preservice misrepresentations about matters that would have
precluded, postponed, or otherwise affected the member's eligibility for
enlistment or induction may be considered on the issue of
characterization.
(3) The limitations in subsection A.3., above, as to matters that
may be considered on the issue of separation are applicable to matters
that may be considered on the issue of characterization.
[[Page 98]]
(4) When the sole basis for separation is a serious offense which
resulted in a conviction by a court-martial that did not impose a
punitive discharge, the member's service may not be characterized Under
Other Than Honorable Conditions unless such characterization is approved
by the Secretary concerned.
(5) Conduct in the civilian community of a member of a reserve
component who is not on active duty or active duty for training may form
the basis for characterization Under Other Than Honorable Conditions
only if such conduct affects directly the performance of military
duties. Such conduct may form the basis of characterization as General
(under honorable conditions) only if such conduct has an adverse impact
on the overall effectiveness of the service, including military morale
and efficiency.
(6) A member's voluntary submission to a DoD treatment and
rehabilitation program (for personal use of drugs) and evidence provided
voluntarily by the member concerning personal use of drugs as part of
initial entry into such a program may not be used against the member on
the issue of characterization. This limitation does not preclude the
following actions:
(a) The introduction of evidence for impeachment or rebuttal
purposes in any proceeding in which the evidence of drug abuse (or lack
thereof) has been first introduced by the member; and
(b) Taking action based on independently derived evidence, including
evidence of drug abuse after initial entry into the treatment and
rehabilitation program.
(7) The results of mandatory urinalysis may be used on the issue of
characterization except as provided in the Deputy Secretary of Defense
Memorandum, ``Alcohol and Drug Abuse,'' December 28, 1981, and rules
promulgated thereunder.
3. Uncharacterized separations. a. Entry Level Separation. (1) A
separation shall be described as an Entry Level Separation if separation
processing is initiated while a member is in entry level status, except
in the following circumstances:
(a) When characterization Under Other Than Honorable Conditions is
authorized under the reason for separation (part 1) and is warranted by
the circumstances of the case; or
(b) The Secretary concerned, on a case-by-case basis, determines
that characterization of service as Honorable is clearly warranted by
the presence of unusual circumstances involving personal conduct and
performance of military duty. This characterization is authorized when
the member is separated under part 1 by reason of selected changes in
service obligation (section B.), Convenience of the Government (section
C.), Disability (section D.), Secretarial Plenary Authority (secton O.),
or an approved reason established by the Military Department (section
P.).
(2) In time of mobilization or in other appropriate circumstances,
the ASD (MRA&L) may authorize the Secretary concerned to delegate the
authority in subparagraph (1)(b), above, (concerning the Honorable
characterization) to a general court-martial convening authority with
respect to members serving in operational units.
(3) With respect to administrative matters outside this part that
require a characterization as Honorable or General, an Entry Level
Separation shall be treated as the required characterization. This
provision does not apply to administrative matters that expressly
require different treatment of an Entry Level Separation except as
provided in subparagraph (4), below.
(4) In accordance with 10 U.S.C. 1163, an Entry Level Separation for
a member of a Reserve Component separated from the Delayed Entry Program
is ``under honorable conditions.''
b. Void enlistments or inductions. A member shall not receive a
discharge, characterization of service at separation, or an Entry Level
Separation if the enlistment or induction is void except when a
constructive enlistment arises and such action is required under
subparagraph (3), below. If characterization or an Entry Level
Separation is not required, the separation shall be described as an
order of release from custody or control of the Military Services.
(1) An enlistment is void in the following circumstances:
(a) If it was effected without the voluntary consent of a person who
has the capacity to understand the significance of enlisting in the
Military Services, including enlistment of a person who is intoxicated
or insane at the time of enlistment. 10 U.S.C. 504; Article 2(b), UCMJ.
(b) If the person is under 17 years of age. 10 U.S.C. 505.
(c) If the person is a deserter from another Military Service. 10
U.S.C. 504.
(2) Although an enlistment may be void at its inception, a
constructive enlistment shall arise in the case of a person serving with
a Military Service who:
(a) Submitted voluntarily to military authority;
(b) Met the mental competency and minimum 10 U.S.C. age
qualifications of sections 504 and 505 of, at the time of voluntary
submission to military authority;
(c) Received military pay or allowances; and
(d) Performed military duties.
(3) If an enlistment that is void at its inception is followed by a
constructive enlistment within the same term of service,
characterization of service or description of separation shall be in
accordance with subsection
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C.2. or paragraph C.3.a. of this part 2, as appropriate; however, if the
enlistment was void by reason of desertion from another Military
Service, the member shall be separated by an order of release from the
custody and control of the Service regardless of any subsequent
constructive enlistment. The occurrence of such a constructive
enlistment does not preclude the Military Departments, in appropriate
cases, from either retaining the member or separating the member under
section E. of part 1 on the basis of the circumstances that occasioned
the original void enlistment or upon any other basis for separation
provided in this part.
c. Dropping from the rolls. A member may be dropped from the rolls
of the Service when such action is authorized by the Military Department
concerned and a characterization of service or other description of
separation is not authorized or warranted.
Part 3--Procedures For Separation
A. Scope. 1. The supplementary procedures in this part are
applicable only when required under a specific reason for separation
(part 1). These procedures are subject to the requirements set forth in
part 1 with respect to specific reasons for separation.
2. When a member is processed on the basis of multiple reasons for
separation, the following guidelines apply to procedural requirements
(including procedural limitations on characterization of service or
description of separation):
a. The requirements for each reason will be applied to the extent
practicable.
b. If a reason for separation set forth in the notice of proposed
action requires processing under the Administrative Board Procedure
(section C., below), the entire matter shall be processed under section
C.
c. If more than one reason for separation is approved, the guidance
on characterization that provides the greatest latitude may be applied.
d. When there is any other clear conflict between a specific
requirement applicable to one reason and a general requirement
applicable to another reason, the specific requirement shall be applied.
e. If a conflict in procedures cannot be resolved on the basis of
the foregoing principles, the procedure most favorable to the respondent
shall be used.
B. Notification Procedure. 1. Notice. If the Notification Procedure
is initiated under part 1, the respondent shall be notified in writing
of the matter set forth in this section.
a. The basis of the proposed separation, including the circumstances
upon which the action is based and a reference to the applicable
provisions of the Military Department's implementing regulation.
b. Whether the proposed separation could result in discharge,
release from active duty to a reserve component, transfer from the
Selected Reserve to the IRR, release from custody or control of the
Military Services, or other form of separation.
c. The least favorable characterization of service or description of
separation authorized for the proposed separation.
d. The right to obtain copies of documents that will be forwarded to
the Separation Authority supporting the basis of the proposed
separation. Classified documents may be summarized.
e. The respondent's right to submit statements.
f. The respondent's right to consult with counsel qualified under
Article 27(b)(1) of the UCMJ. Nonlawyer counsel may be appointed when
the respondent is deployed aboard a vessel or in similar circumstances
of separation from sufficient judge advocate resources as determined
under standards and procedures specified by the Secretary concerned. The
respondent also may consult with civilian counsel retained at the
member's own expense.
g. If the respondent has 6 or more years of total active and reserve
military service, the right to request an Administrative Board (section
C.).
h. The right to waive paragraphs d., e., f. or g., above, after
being afforded a reasonable opportunity to consult with counsel, and
that failure to respond shall constitute a waiver of the right.
2. Additional notice requirements. a. If separation processing is
initiated on the basis of more than one reason under part 1, the
requirements of paragraph B.1.a. apply to all proposed reasons for
separation.
b. If the respondent is in civil confinement, absent without leave,
or in a reserve component not on active duty or upon transfer to the
IRR, the relevant notification procedures in sections D., E., or F. of
this part 3 apply.
c. Additional notification requirements are set forth in part 1,
sections C. and D., when characterization of service as General (under
honorable conditions) is authorized and the member is processed for
separation by reason of Convenience of the Government or Disability.
3. Response. The respondent shall be provided a reasonable period of
time, but not less than 2 working days, to act on the notice. An
extension may be granted upon a timely showing of good cause by the
respondent. The decision of the respondent on each of the rights set
forth in paragraphs 1.d. through g., above, and applicable provisions
referenced in subsection 2. shall be recorded and signed by the
respondent and counsel, subject to the following limitation:
a. If notice by mail is authorized under sections D., E., or F. of
this part 3 and the respondent fails to acknowledge receipt or submit a
timely reply, that fact shall constitute
[[Page 100]]
a waiver of rights and an appropriate notation shall be recorded on a
retained copy of the appropriate form.
b. If the respondent declines to respond as to the selection of
rights, such declination shall constitute a waiver of rights and an
appropriate notation will be made on the form provided for respondent's
reply. If the respondent indicates that one or more of the rights will
be exercised, but declines to sign the appropriate form, the selection
of rights will be noted and an appropriate notation as to the failure to
sign will be made.
4. Separation Authority. a. The Separation Authority for actions
initiated under the Notification Procedure shall be a special court-
martial convening authority or higher authority. The Secretary concerned
also may authorize a commanding officer in grade 0-5 or above with a
judge advocate or legal advisor available to the command to act as a
Separation Authority for a specified reason for separation, subject to
approval by the ASD(MRA&L). When the case has been initiated under the
Administrative Board Procedure and the member has waived the right to a
hearing under section C.4., the Separation Authority shall be an
official designated under subsection C.6., below.
b. The action of the Separation Authority shall be recorded.
c. The Separation Authority shall determine whether there is
sufficient evidence to verify the allegations set forth in the
notification of the basis for separation. If an allegation is not
supported by a preponderance of the evidence, it may not be used as a
basis for separation.
d. If there is a sufficient factual basis for separation, the
Separation Authority shall determine whether separation is warranted
under the guidance in sections A. and B. of part 2. On the basis of that
guidance, the Separation Authority shall direct one of the following
actions:
(1) Retention;
(2) Separation for a specific reason under part 1; or
(3) Suspended separation in accordance with the guidance in section
B. part 2.
e. If the Separation Authority directs separation or suspended
separation on the basis of more than one reason under part 1, the
Separation Authority shall designate the most appropriate basis as the
primary reason for reporting purposes.
f. If separation or a suspended separation is directed, the
Separation Authority shall assign a characterization or description in
accordance with section C. of part 2.
g. Except when characterization Under Other Than Honorable
Conditions is directed or the member is separated on the basis of
homosexuality or a void enlistment or induction, the Secretary concerned
may authorize the Separation Authority or higher authority to make a
recommendation or determination as to whether the respondent should be
retained in the Ready Reserve as a mobilization asset to fulfill the
respondent's total military obligation. This option applies in cases
involving separation from active duty or from the Selected Reserve.
Section E. of this part 3 is applicable if such action is approved.
C. Administrative Board Procedure. 1. Notice. If an Administrative
Board is required, the respondent shall be notified in writing of the
matters set forth in this section.
a. The basis of the proposed separation, including the circumstances
upon which the action is based and reference to the applicable
provisions of the Military Department's implementing regulation.
b. Whether the proposed separation could result in discharge,
release from active duty to a reserve component, transfer from the
Selected Reserve to the IRR, release from the custody or control of the
Military Services, or other form of separation.
c. The least favorable characterization of service or description of
separation authorized for the proposed separation.
d. The respondent's right to consult with counsel as prescribed in
paragraph B.1.f. of this part 3. However, nonlawyer counsel may not
represent a respondent before an Administrative Board unless (1) the
respondent expressly declines appointment of counsel qualified under
Article 27(b) (1) of the UCMJ (10 U.S.C.) and requests a specific
nonlawyer counsel; or (2) the Separation Authority assigns nonlawyer
counsel as assistant counsel.
e. The right to obtain copies of documents that will be forwarded to
the Separation Authority supporting the basis of the proposed
separation. Classified documents may be summarized.
f. The respondent's right to request a hearing before an
Administrative Board.
g. The respondent's right to present written statements instead of
board proceedings.
h. The respondent's right to representation at the Administrative
Board either by military counsel appointed by the Convening Authority or
by military counsel of the respondent's own choice (if counsel of choice
is determined to be reasonably available under regulations of the
Secretary concerned) but not both.
i. The right to representation at the Administrative Board by
civilian counsel at the respondent's own expense.
j. The right to waive the rights in paragraphs d. through i., above.
k. That failure to respond after being afforded a reasonable
opportunity to consult with counsel constitutes a waiver of the rights
in paragraphs d. through i., above.
l. Failure to appear without good cause at a hearing constitutes
waiver of the right to be present at the hearing.
[[Page 101]]
2. Additional notice requirements. a. If separation processing is
initiated on the basis of more than one reason under part 1, the
requirements of paragraph C.1.a. apply to all proposed reasons for
separation.
b. If the respondent is in civil confinement, absent without leave,
or in a reserve component not on active duty or upon transfer to the
IRR, the relevant notification procedures in sections D., E., or F. of
this part 3 apply.
c. Additional notification requirements are set forth in sections C.
and D., part 1, when characterization of service as General (under
honorable conditions) is authorized and the member is processed for
separation by reason of Convenience of the Government or Disability.
3. Response. The respondent shall be provided a reasonable period of
time, but not less than 2 working days, to act on the notice. An
extension may be granted upon a timely showing of good cause by the
respondent. The decision of the respondent on each of the rights set
forth in paragraphs 1.d. through 1.i., above, and applicable provisions
referenced in subsection 2., above, shall be recorded and signed by the
respondent and counsel, subject to the following limitations:
a. If notice by mail is authorized under sections D., E., or F. of
this part 3 and the respondent fails to acknowledge receipt or submit a
timely reply, that fact shall constitute a waiver of rights and an
appropriate notation shall be recorded on a retained copy of the
appropriate form.
b. If the respondent declines to respond as to the selection of
rights, such declination shall constitute a waiver of rights and an
appropriate notation will be made on the form provided for respondent's
reply. If the respondent indicates that one or more of the rights will
be exercised, but declines to sign the appropriate form, the selection
of rights will be noted and an appropriate notation as to the failure to
sign will be made.
4. Waiver. a. If the right to a hearing before an Administrative
Board is waived, the case will be processed under subsection B.4. of
this part 3 (Notification Procedure), but the Separation Authority in
such cases shall be an official designated under subsection C.6.
b. When authorized by the Secretary concerned, a respondent entitled
to an Administrative Board may exercise a conditional waiver after a
reasonable opportunity to consult with counsel under paragraph C.1.d. A
conditional waiver is a statement initiated by a respondent waiving the
right to a board proceeding contingent upon receiving a characterization
of service or description of separation higher than the least favorable
characterization or description authorized for the basis of separation
set forth in the notice to the respondent.
5. Hearing procedure. If a respondent requests a hearing before an
Administrative Board, the following procedures are applicable:
a. Composition. (1) The Convening Authority shall appoint to the
Administrative Board at least three experienced commissioned, warrant,
or noncommissioned officers. Enlisted personnel appointed to the Board
shall be in grade E-7 or above, and shall be senior to the respondent.
At least one member of the Board shall be serving in the grade of 0-4 or
higher, and a majority shall be commissioned or warrant officers. The
senior member shall be the president of the Board. The Convening
Authority also may appoint to the Board a nonvoting recorder. A
nonvoting legal advisor may be appointed to assist the Board if
authorized by the Secretary concerned.
(2) If the respondent is an enlisted member of a reserve component
or holds an appointment as a reserve commissioned or warrant officer,
the Board shall include at least one Reserve officer as a voting member.
Voting members shall be senior to the respondent's reserve grade. See 10
U.S.C. 266.
(3) The Convening Authority shall insure that the opportunity to
serve on Administrative Boards is given to women and minorities. The
mere appointment or failure to appoint a member of such a group to the
Board, however, does not provide a basis for challenging the proceeding.
(4) The respondent may challenge a voting member of the Board or the
legal advisor, if any, for cause only.
b. Presiding officer. The president shall preside and rule finally
on all matters of procedure and evidence, but the rulings of the
president may be overruled by a majority of the Board. If appointed, the
legal advisor shall rule finally on all matters of evidence and
challenges except challenges to himself.
c. Witnesses. (1) The respondent may request the attendance of
witnesses in accordance with the implementing instruction of the
Military Department concerned.
(2) In accordance with such instructions, the respondent may submit
a written request for TDY or invitational travel orders for witnesses.
Such a request shall contain the following matter:
(a) A synoposis of the testimony that the witness is expected to
give.
(b) An explanation of the relevance of such testimony to the issues
of separation or characterization.
(c) An explanation as to why written or recorded testimony would not
be sufficient to provide for a fair determination.
(3) The Convening Authority may authorize expenditure of funds for
production of witnesses only if the presiding officer (after
consultation with a judge advocate) or the legal advisor (if appointed)
determines that:
(a) The testimony of a witness is not cumulative;
[[Page 102]]
(b) The personal appearance of the witness is essential to a fair
determination on the issues of separation or characterization;
(c) Written or recorded testimony will not accomplish adequately the
same objective;
(d) The need for live testimony is substantial, material, and
necessary for a proper disposition of the case; and
(e) The significance of the personal appearance of the witness, when
balanced against the practical difficulties in producing the witness,
favors production of the witness. Factors to be considered in relation
to the balancing test include, but are not limited to, the cost of
producing the witness, the timing of the request for production of the
witness, the potential delay in the proceeding that may be caused by
producing the witness, or the likelihood of significant interference
with military operational deployment, mission accomplishment, or
essential training.
(4) If the Convening Authority determines that the personal
testimony of a witness is required, the hearing will be postponed or
continued if necessary to permit the attendance of the witness.
(5) The hearing shall be continued or postponed to provide the
respondent with a reasonable opportunity to obtain a written statement
from the witness if a witness requested by the respondent is unavailable
in the following circumstances:
(a) When the presiding officer determines that the personal
testimony of the witness is not required;
(b) When the commanding officer of a military witness determines
that military necessity precludes the witness' attendance at the
hearing; or
(c) When a civilian witness declines to attend the hearing.
(6) Paragraph (5)(c), above, does not authorize a Federal employee
to decline to appear as a witness if directed to do so in accordance
with applicable procedures of the employing agency.
d. Record of proceedings. In cases where the Board recommends
separation, the record of the proceedings shall be kept in summarized
form unless a verbatim record is required by the Secretary concerned. In
cases where the Board recommends retention, a record of the proceedings
is optional unless required by the Secretary concerned. However, a
summarized or verbatim record shall be prepared in any cases where the
board recommends retention and the Separation Authority elects to
forward the matter to the Secretary concerned under subparagraph
C.6.d.(2)(6). The Board reporter shall retain all materials necessary to
prepare a transcript should the Separation Authority elect to forward
the case to the Secretary. In all cases, the findings and
recommendations of the Board shall be in verbatim form.
e. Presentation of evidence. The rules of evidence for courts-
martial and other judicial proceedings are not applicable before an
Administrative Board. Reasonable restrictions shall be observed,
however, concerning relevancy and competency of evidence.
f. Rights of the respondent. (1) The respondent may testify in his
or her own behalf, subject to the provisions of Article 31(a), UCMJ (10
U.S.C.).
(2) At any time during the proceedings, the respondent or counsel
may submit written or recorded matter for consideration by the Board.
(3) The respondent or counsel may call witnesses in his or her
behalf.
(4) The respondent or counsel may question any witness who appears
before the Board.
(5) The respondent or counsel may present argument prior to when the
Board closes the case for deliberation on findings and recommendations.
g. Findings and recommendations. (1) The Board shall determine its
findings and recommendations in closed session. Only voting members of
the Board shall be present.
(2) The Board shall determine whether each allegation set forth in
the notice of proposed separation is supported by a preponderance of the
evidence.
(3) The Board shall then determine under the guidance in section A.
of part 2 whether the findings warrant separation with respect to the
reason for separation set forth in the Notice. If more than one reason
was contained in the Notice, there shall be a separate determination for
each reason.
(4) The Board shall make recommendations on the following:
(a) Retention or separation. The Board shall recommend retention or
separation.
(b) Suspension of separation. If the Board recommends separation, it
may recommend that the separation be suspended in accordance with
section B. of part 2, but the recommendation of the Board as to
suspension is not binding on the Separation Authority.
(c) Characterization of service or description of separation. If
separation or suspended separation is recommended, the Board shall
recommend a characterization of service or description of separation as
authorized in part 1 (Reasons for Separation) in accordance with the
guidance in section C. of part 2.
(d) Transfer to the Ready Reserve. Except when the Board has
recommended separation on the basis of homosexuality or has recommended
characterization of service Under Other Than Honorable Conditions, the
Secretary Concerned may authorize the Board to make a recommendation as
to whether the respondent should be retained in the Ready Reserve as a
mobilization asset to fulfill the respondent's total military
obligation. This option applies to cases involving
[[Page 103]]
separation from active duty or from the Selected Reserve. Section E. of
this part 3 is applicable if the action is approved.
6. Separation Authority. A. The separation Authority for actions
initiated under the Administrative Board Procedure shall be a general
court-martial convening authority or higher authority. The Secretary
concerned also may authorize a commanding officer in grade 0-7 or above
with a judge advocate or legal advisor available to his command to act
as a separation authority in specified circumstances. When an
Administrative Board recommends characterization of service as Honorable
or General (under honorable conditions), the Separation Authority may be
exercised by an officer designated under subsection B.4. When the case
has been initiated under the Notification Procedure and the hearing is a
result of a request under paragraph B.1.g., the Separation Authority
shall be as designated in subsection B.4.
b. In every case in which characterization of sevice Under Other
Than Honorable Conditions is recommended, the record of the Board's
proceedings will be reviewed by a judge advocate or civilian attorney
employed by the Military Department prior to action by the Separation
Authority. Such review is not required when another characterization is
recommended unless the respondent identifies specific legal issues for
consideration by the Separation Authority.
c. The respondent will be provided with a copy of the Board's
statement of facts and recommendations.
d. The Separation Authority shall take action in accordance with
this subparagraph, the requirements of part 1 with respect to the reason
for separation, and the guidance in part 2 on separation and
characterization.
(1) If the Separation Authority approves the recommendations of the
Board on the issue of separation or characterization (or both) this
constitutes approval of the Board's findings and recommendations under
paragraph C.5.g. unless the Separation Authority expressly modifies such
findings or recommendations.
(2) If the Board recommends retention, the Separation Authority may
take one of the following actions:
(a) Approve the recommendation.
(b) Forward the matter to the Secretary concerned with a
recommendation for separation based upon the circumstances of the case.
In such a case, the Secretary may direct retention or separation. If the
Secretary approves separation, the characterization of service or
description of separation will be Honorable, General (under honorable
conditions) or an Entry Level Separation under the guidance in section
C. of part 2.
(3) If the Board recommends separation, the Separation Authority
may:
(a) Approve the Board's recommendation;
(b) Approve the Board's recommendation, but modify the
recommendations by one or more of the following actions when
appropriate:
1 Approve the separation but suspend execution as provided in
section B. of part 2.
2 Change the character of service or description of separation to a
more favorable characterization or description.
3 Change the Board's recommendation, if any, concerning transfer to
the IRR.
(c) Disapprove the Board's recommendation and retain the respondent.
(4) If the Separation Authority approves the Board's findings and
recommendations in whole or in part with respect to more than one reason
under part 1, the Separation Authority shall designate the most
appropriate basis as the primary reason for reporting purposes.
(5) If the Separation Authority finds legal prejudice to a
substantial right of the respondent or determines that the findings of
the Board have been obtained by fraud or collusion, the case may be
referred to a new board. No member of the new board shall have served on
a prior board that considered the case. The Separation Authority may not
approve findings and recommendations less favorable to the respondent
than those rendered by the previous board unless the Separation
Authority finds that fraud or collusion in the previous board is
attributable to the respondent or an individual acting on the
respondent's behalf.
D. Additional Provisions Concerning Members Confined by Civil
Authorities. 1. If proceedings under this part have been initiated
against a respondent confined by civil authorities, the case may be
processed in the absence of the respondent. Paragraph C.5.e. of this
part 3 is not applicable except insofar as such rights can be exercised
by counsel on behalf of the respondent.
2. The following requirements apply:
a. The notice shall contain the matter set forth in subsection B.1.
of this part or subsection C.1. (Notice in the Administrative Board
Procedure), as appropriate. The notice shall be delivered personally to
the respondent or sent by registered mail or certified mail, return
receipt requested (or by an equivalent form of notice if such service is
not available for delivery by U.S. mail at an address outside the United
States). If the member refuses to acknowledge receipt of notice, the
individual who mails the notification shall prepare a Sworn Affidavit of
Service by Mail (see 32 CFR part 100) [DoD Directive 1215.13], which
will be inserted in the member's personnel file together with PS Form
3800.
b. If delivered personally, receipt shall be acknowledged in writing
by the respondent. If the respondent does not acknowledge receipt, the
notice shall be sent by mail as provided in paragraph 2.a., above.
[[Page 104]]
c. The notice shall state that the action has been suspended until a
specific date (not less than 30 days from the date of delivery) in order
to give the respondent the opportunity to exercise the rights set forth
in the notice. If respondent does not reply by such date, the separation
authority shall take appropriate action under subsection B.4. of this
part 3.
d. The name and address of the military counsel for appointed
consultation shall be specified in the notice.
e. If the case involves entitlement to an Administrative Board, the
respondent shall be notified that the board will proceed in the
respondent's absence and that the case may be presented on respondent's
behalf by counsel for the respondent.
E. Additional Requirements for Certain Members of Reserve
Components. 1. Members of reserve components not on active duty. a. If
proceedings under this chapter have been initiated against a member of a
reserve component not on active duty, the case may be processed in the
absence of the member in the following circumstances:
(1) At the request of the member;
(2) If the member does not respond to the notice of proceedings on
or before the suspense date provided therein; or
(3) If the member fails to appear at a hearing as provided in
paragraph C.1.1.
b. The notice shall contain the matter set forth in subsections B.1.
or C.1. of this part 3, as appropriate.
c. If the action involves a transfer to the IRR under circumstances
in which the procedures in this Appendix A are applicable, the member
will be notified that the character of service upon transfer to the IRR
also will constitute the character of service upon discharge at the
completion of the military service obligation unless specified
conditions established by the Secretary concerned are met.
2. Transfer to the IRR. Upon transfer to the IRR, the member will be
notified of the following:
a. The character of service upon transfer from active duty or the
Selected Reserve to the IRR, and that the character of service upon
completion of the military service obligation will be the same unless
specified conditions established by the Secretary concerned are met.
b. The date upon which the military service obligation will expire.
c. The date by which the member must submit evidence of satisfactory
completion of the specified conditions.
3. If the member submits evidence of completion of the specified
conditions but the Military Department proposes to issue a discharge
other than an Honorable Discharge, the Notification Procedure shall be
used. An Administrative Board is not required at this point
notwithstanding the member's years of service.
4. If the member does not submit such information on or before the
date specified in the notice, no further proceedings are required. The
character of discharge at the completion of the military service
obligation shall be the same as the character of service upon transfer
from the Selected Reserve to the IRR.
5. The following requirements apply to the notices required by
subsections E.1. and E.2. of this part 3.
a. Reasonable effort should be made to furnish copies of the notice
to the member through personal contact by a representative of the
command. In such a case, a written acknowledgment of the notice shall be
obtained.
b. If the member cannot be contacted or refuses to acknowledge
receipt of the notice, the notice shall be sent by registered or
certified mail, return receipt requested (or by an equivalent form of
notice if such service by U.S. Mail is not available for delivery at an
address outside the United States) to the most recent address furnished
by the member as an address for receipt or forwarding of official mail.
The individual who mails the notification shall prepare a Sworn
Affidavit of Service by Mail (see 32 CFR part 100 (DoD Directive
1215.13)), which will be inserted in the member's personnel file
together with PS Form 3800.
F. Additional Requirements for Members Beyond Military Control by
Reason of Unauthorized Absence. 1. Determination of applicability. If
the general court-martial convening authority or higher authority
determines that separation is otherwise appropriate under this part, a
member may be separated without return to military control in one or
more of the following circumstances:
a. Absence without authority after receiving notice of initiation of
separation processing.
b. When prosecution of a member who is absent without authority
appears to be barred by the statute of limitations, Article 43, UCMJ.
c. When a member who is an alien is absent without leave and appears
to have gone to a foreign country where the United States has no
authority to apprehend the member under a treaty or other agreement.
2. Notice. Prior to execution of the separation under paragraphs
1.b. or 1.c., the member will be notified of the imminent action by
registered mail or certified mail, return receipt requested (or by an
equivalent form of Notice if such service by U.S. Mail is not available
for delivery at an address outside the United States) to the member's
last known address or the next of kin under regulations prescribed by
the Military Department concerned. The notice shall contain the matter
set forth in subsections B.1. or C.1.,
[[Page 105]]
as appropriate, and shall specify that the action has been suspended
until a specific date (not less than 30 days from the date of mailing)
in order to give the respondent the opportunity to return to military
control. If the respondent does not return to military control by such
date, the separation authority shall take appropriate action under
subsection B.4. of this part 3.
3. Members of reserve components. See 10 U.S.C 1163 with respect to
limitations on separation of members of reserve components.
[47 FR 10174, Mar. 9, 1982, as amended at 52 FR 46997, Dec. 11, 1987]
PART 42--INTERCEPTION OF WIRE AND ORAL COMMUNICATIONS FOR LAW ENFORCEMENT PURPOSES--Table of Contents
Sec.
42.1 Reissuance and purpose.
42.2 Applicability and scope.
42.3 Policy.
42.4 Waivers.
42.5 Responsibilities.
42.6 Definitions.
42.7 Procedures, record administration and reports.
42.8 Information to be included in reports of interceptions and pen
register operations.
Authority: 5 U.S.C. 301.
Source: 43 FR 39988, Sept. 8, 1978, unless otherwise noted.
Sec. 42.1 Reissuance and purpose.
This part reissues part 42 to update established policies,
procedures, and restrictions governing interception of wire and oral
communications and the use of pen registers and related devices for law
enforcement purposes, both in the United States and abroad, in
accordance with 47 U.S.C. 605 and 18 U.S.C. 2510-2520.
Sec. 42.2 Applicability and scope.
(a) The provisions of this part apply to the Office of the Secretary
of Defense, the military departments, the Organization of the Joint
Chiefs of Staff, the defense agencies, and the unified and specified
commands (hereafter referred to collectively as ``DoD components'').
(b) This part does not affect status of forces or other specific
agreements that may otherwise limit implementation of its provisions in
any particular geographical area abroad.
Sec. 42.3 Policy.
(a) The interception of wire and oral communications for law
enforcement purposes is prohibited unless conducted in accordance with
this part and applicable law.
(b) The only DoD components authorized to intercept wire and oral
communications and conducts pen register operations under this part are
the Departments of the Army, Navy, and Air Force. Within these
components, authority to use this technique shall be limited to those
offices specifically designated in writing by the head of the component.
(c) Interception of wire and oral communications is a special
technique which shall not be considered as a substitute for normal
investigative procedures and shall be authorized only in those
circumstances where it is demonstrated that the information is necessary
for a criminal investigation and cannot reasonably be obtained in some
other, less intrusive manner.
(d) Nonconsensual interception of wire and oral communications is
prohibited unless there exists probable cause to believe that:
(1) In the case of interceptions within the United States, a
criminal offense listed in 18 U.S.C. 2516(1) has been, is being, or is
about to be committed;
(2) In the case of interceptions abroad conducted pursuant to an
order issued by a military judge under Sec. 42.7(a)(1)(ii)(A), one of
the following violations of the Uniform Code of Military Justice has
been, is being, or is about to be committed by a person subject to the
Uniform code of Military Justice under article 2, 10 U.S.C. 802:
(i) The offense of murder, kidnapping, gambling, robbery, bribery,
extortion, espionage, sabotage, treason, fraud against the Government,
or dealing in narcotic drugs, marihuana, or other dangerous drugs; or
(ii) Any other offense dangerous to life, limb, or property, and
punishable by death or confinement for 1 year or more; or
(iii) Any conspiracy to commit any of the foregoing offenses.
[[Page 106]]
(3) In the case of other interceptions abroad, one of the following
offenses has been, is being, or is about to be committed:
(i) An offense listed in 18 U.S.C. 2516(1); or
(ii) Fraud against the Government or any other offense dangerous to
life, limb, or property and punishable under title 18 of the U.S. Code
by death or confinement for more than 1 year; or
(iii) Any conspiracy to commit any of the foregoing offenses.
(e) Consensual interceptions of wire and oral communications shall
be undertaken only when at least one of the parties to the conversation
has consented to the interception and when the investigation involves:
(1) A criminal offense punishable, under the United States Code or
Uniform Code of Military Justice, by death or confinement for 1 year or
more; or
(2) A telephone call involving obscenity, harassment, extortion,
bribery, bomb threat, or threat of bodily harm that has been made to a
person authorized to use the telephone of a subscriber-user on an
installation, building, or portion thereof, under Department of Defense
jurisdiction or control, and when the subscriber-user has also consented
to the interception.
(f) The prohibitions and restrictions of this part apply regardless
of the official use or dissemination of the intercepted information. Any
questions as to whether the use of a particular device may involve
prohibited wire or oral interception shall be submitted with supporting
facts through channels to the general counsel of the Department of
Defense for resolution.
(g) No otherwise privileged wire or oral communication intercepted
in accordance with this part shall lose its privileged character.
Sec. 42.4 Waivers.
Waivers of the requirements enunciated in this part will be
authorized on a case-by-case basis only when directed in writing by the
Secretary of Defense. Waivers will be authorized only under the most
limited circumstances and when consistent with applicable law.
Sec. 42.5 Responsibilities.
(a) The Department of Defense General counsel or a single designee,
shall:
(1) Determine whether to approve or deny requests for authorization
to conduct nonconsensual interceptions under this part (Sec. 42.7(a)(1)
(i) and (ii)).
(2) Determine whether to seek Attorney General authorization for
emergency nonconsensual interceptions (Sec. 42.7(a)(1)(iii)).
(3) In the absence of the Secretary of the military department
concerned, or a designee, determine whether to approve or deny requests
to conduct consensual interceptions (Sec. 42.7(a)(2)(i)).
(4) Provide overall policy guidance for the implementation of this
part.
(b) The Assistant Secretary of Defense (Comptroller) (ASD(C)), or a
designee, shall:
(1) In consultation with the DoD General Counsel, act for the
Secretary of Defense to insure compliance with the provisions of this
part.
(2) Receive, process, and transmit to the DoD General Counsel all
requests from the heads of the DoD components, or their designees, for
authority to conduct nonconsensual interception of wire and oral
communications.
(3) Furnish to the Attorney General those reports required by
Sec. 42.7(f)(1) and provide a copy of such reports to the DoD General
Counsel.
(4) Receive those reports required by Sec. 42.7(f)(1) and provide a
copy of such reports to the DoD General Counsel.
(c) The head of each DoD component or a designee shall insure
compliance with the policies and procedures set forth or referenced in
this part.
(d) The secretary of each military department, or a designee, shall:
(1) Determine whether to approve or deny requests to conduct
consensual interceptions (Sec. 42.7(a)(2)(i)). This approval authority
shall not be delegated to an official below the level of assistant
secretary or assistant to the secretary of the military department.
(2) Review requests for nonconsensual interception of wire or oral
communications (Sec. 42.7(a)(1)).
(3) Designate a control point of contact and so advise the DoD
General Counsel and the ASD(C) for:
(i) Interception activities and related applications covered by this
part.
[[Page 107]]
(ii) Compilation of reports and forwarding other submissions to the
ASD(C) as required by the provisions of this part.
(iii) Maintaining a file of information regarding all interceptions
of wire and oral communications by any element of the Department.
(4) Furnish to the ASD(C) the reports required by Sec. 42.7(f)(2).
(e) The judge advocate general of each military department shall
assign military judges, certified in accordance with the provisions of
article 26(b) of the Uniform Code of Military Justice, 10 U.S.C. 826(b):
(1) To receive applications for intercept authorization orders and
to determine whether to issue such orders in accordance with
Sec. 42.7(a)(1)(ii)(A). The authorization of such military judges to
issue intercept authorization orders shall be limited to interceptions
occurring abroad and targeted against persons subject to the Uniform
Code of Military Justice.
(2) To receive applications to conduct pen register operations and
to issue orders authorizing such operations in accordance with
Sec. 42.7(b)(1). The authority of such military judges to issue orders
authorizing pen register operations shall be limited to operations
conducted on a military installation and targeted against persons
subject to the Uniform Code of Military Justice.
Sec. 42.6 Definitions.
(a) Abroad. Outside the United States. An interception takes place
abroad when the interception device is located and operated outside the
United States and the target of the interception is located outside the
United States.
(b) Application for court order. A document containing specified
information prepared for and forwarded to a judge of the U.S. district
court or the U.S. court of appeals, or a military judge.
(c) Consensual interception. An interception of a wire or oral
communication after verbal or written consent for the interception is
given by one or more of the parties to the communication.
(d) Court order. An order issued by a judge of a U.S. district
court or a U.S. court of appeals or by a military judge authorizing a
wire or oral interception or a pen register operation.
(e) Electronic, mechanical, or other device. Any device or
apparatus that can be used to intercept a wire or oral communication
other than any telephone equipment furnished to the subscriber or user
by a communications common carrier in the ordinary course of its
business and used by the subscriber or user in the ordinary course of
its business or used by an investigative or law enforcement officer in
the ordinary course of duty (18 U.S.C. 2510(5)).
(f) Interception. The aural acquisition of the contents of any wire
or oral communication through the use of any electronic, mechanical, or
other device (18 U.S.C. 2510(4)). The term ``contents'' includes any
information concerning the identity of the parties to such communication
or the existence, substance, purport, or meaning of that communication
(18 U.S.C. 2510(8)).
(g) Oral communication. Any oral communication uttered by a person
exhibiting an expectation that such communication is not subject to
interception, under circumstances justifying such expectation (18 U.S.C.
2510(2)).
(h) Pen register. A device connected to a telephone instrument or
line that permits the recording of telephone numbers dialed from a
particular telephone instrument. ``Pen register'' also includes decoder
devices used to record the numbers dialed from a touch-tone telephone.
``Pen register'' does not include equipment used to record the numbers
dialed for and duration of long-distance telephone calls when the
equipment is used to make such records for an entire telephone system
and for billing or communications management purposes.
(i) Telephone tracing. A technique or procedure to determine the
origin, by telephone number and location, of a telephone call made to a
known telephone instrument. The terms ``lock-out'' and ``trapping'' may
also be used to describe this technique.
(j) United States. For the purposes of this part, the term ``United
States'' includes the 50 States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, and any territory or
possession of the United States.
[[Page 108]]
(k) United States person. For purposes of this part the term ``U.S.
person'' means a United States citizen, an alien admitted to the United
States for permanent residence, a corporation incorporated in the United
States, an unincorporated association organized in the United States and
substantially composed of United States citizens or aliens admitted to
the United States for permanent residence.
(l) Wire communication. Any communication made in whole or in part
through the use of facilities for the transmission of communications by
the aid of wire, cable, or other like connection between the point of
origin and the point of reception furnished or operated by any person
engaged as a common carrier in providing or operating such facilities
for the transmission of interstate or foreign communications. 18 U.S.C.
2510(1).
Sec. 42.7 Procedures, record administration and reports.
(a) Procedures governing interception of wire and oral
communications--(1) Nonconsensual interception--(i) Nonconsensual
interception in the United States. When an interception is deemed
necessary for a criminal investigation, the following procedures are
applicable:
(A) The requesting component shall prepare and forward through
channels a ``request for authorization'' to the Assistant Secretary of
Defense (Comptroller), or an official designated by the ASD(C). This
application shall be transmitted by expeditious means and protected to
preclude unauthorized access or any danger to the officials or other
persons cooperating in the case. Each request for authorization will
contain the following information:
(1) The identity of the DoD investigative or law enforcement
official making the application;
(2) A complete description of the facts and circumstances relied
upon by the applicant to justify the intended interception, including:
(i) The particular offense that has been, is being, or is about to
be committed;
(ii) A description of the nature and location of the facilities from
which or the place where the communication is to be intercepted;
(iii) A description of the type of communication sought to be
intercepted with a statement of the relevance of that communication to
the investigation; and
(iv) The identity of the person, if known, committing the offense
and whose communications are to be intercepted;
(3) A statement as to whether other investigative procedures have
been tried and failed or why they reasonably appear to be unlikely to
succeed if tried or to be too dangerous;
(4) An identification of the type of equipment to be used to make
the interception;
(5) A statement of the period of time for which the interception is
required to be maintained. If the nature of the investigation is such
that the interception will not terminate automatically when the
described type of communication has been first obtained, a description
of the facts establishing probable cause to believe that additional
communications of the same type will occur thereafter;
(6) The procedures to minimize the acquisition, retention, and
dissemination of information unrelated to the purpose of the
interception;
(7) A complete statement of the facts concerning each previous
application for approval of interceptions of wire or oral communications
known to the applicant and involving any of the same persons, facilities
or places specified in the application and the action taken thereon; and
(8) When the application is for an extension of an order, a
statement setting forth the results thus far obtained from the
interception, or an explanation of the failure to obtain such results.
(B) The ASD(C), or an official designated by the ASD(C), will
recommend to the DoD General Counsel that the request be approved or
disapproved. Approval or disapproval of all requests for authorization
will be made in writing by the DoD General Counsel, or a single
designee.
(C) If the request is approved by the DoD General Counsel, the
official making the request will coordinate directly with an attorney
from the Department
[[Page 109]]
of Justice or from a U.S. Attorney's office for preparation of documents
necessary to obtain a court order in accordance with 18 U.S.C. 2518.
These documents will be forwarded by the Department of Justice attorney
to the Attorney General, or to the designated Assistant Attorney
General, for approval in accordance with 18 U.S.C. 2516.
(D) Upon approval by the Attorney General, or the designated
Assistant Attorney General, formal application for a court order will be
made by the appropriate attorney from the Department of Justice,
assisted by the appropriate military lawyer.
(ii) Nonconsensual interceptions abroad. Unless otherwise authorized
by direction of the President or the Attorney General, the following
procedures are applicable to interceptions for law enforement purposes
when the interception takes place abroad and when a DoD component, or
members thereof, conduct or participate in the interception; or when the
interception takes place abroad, is targeted against a U.S. person, and
is conducted pursuant to a request by a DoD component:
(A) When the target of the interception is a person subject to the
Uniform Code of Military Justice under Article 2, U.S.C. 802.
(1) The request for authorization shall include the information
required by paragraph (a)(1)(i)(A) of this section, and shall be
forwarded through channels to the Assistant Secretary of Defense
(Comptroller), or the ASD(C)'s, designee. The ASD(C), or a designee,
shall recommend to the DoD General Counsel that the request be approved
or disapproved. Approval or disapproval of all Requests for
Authorization shall be made in writing by the DoD General Counsel, or a
single designee.
(2) Upon written approval of the DoD General Counsel, the DoD
investigative or law enforcement officer shall prepare a formal
application for a court order in accordance with the procedures of 18
U.S.C. 2518(1). The application shall be submitted to a military judge
assigned to consider such applications pursuant to Sec. 42.5(e).
(3) Only military judges assigned by the Judge Advocate General of
their service to receive applications for intercept authorization orders
shall have the authority to issue such orders. The authority of military
judges to issue intercept authorization orders shall be limited to
interceptions conducted abroad and targeted against persons subject to
the Uniform Code of Military Justice.
(i) A military judge shall be ineligible to issue an order
authorizing an interception if, at the time of application, the judge
(A) is involved in any investigation under Article 32 of the Uniform
Code of Military Justice, 10 U.S.C. 832; or (B) is engaged in any other
investigative or prosecutorial function in connection with any case; or
if the judge has previously been involved in any investigative or
prosecutorial activities in connection with the case for which the
intercept authorization order is sought.
(ii) No military judge who has issued an order authorizing
interceptions may act as the accuser, be a witness for the prosecution,
or participate in any investigative or prosecutorial activities in the
case for which the order was issued. A military judge who has issued an
order authorizing interceptions is not disqualified from presiding over
the trial in the same case.
(iii) A military judge otherwise qualified under
Sec. 42.7(a)(1)(ii)(C)(i) and (ii) enclosure shall not be disqualified
from issuing orders authorizing interceptions because the judge is a
member for a service different from that of the target of the
interception or from that of the investigative or law enforcement
officers applying for the order.
(4) The military judge may enter an ex parte order, as requested or
as modified, authorizing or approving an interception of wire or oral
communications if the judge determines on the basis of the facts
submitted by the applicant that:
(i) There is probable cause to believe that a person subject to the
Uniform Code of Military Justice is committing, has committed, or is
about to commit a particular offense enumerated in Sec. 42.3(d)(2);
(ii) There is probable cause to believe that particular
communications concerning that offense will be obtained through such
interception;
[[Page 110]]
(iii) Normal investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or to be
too dangerous;
(iv) There is probable cause to believe that the facilities from
which, or the place where, the wire or oral communications are to be
intercepted are being used, or are about to be used, in connection with
the commission of such offense, or are leased to, listed in the name of,
or commonly used by such person; and
(v) The interception will not violate the relevant status of forces
agreement or the applicable domestic law of the host nation.
(5) Each order authorizing an interception shall specify:
(i) The identity of the person, if known, whose communications are
to be intercepted;
(ii) The nature and location of the communications facilities as to
which, or the place where, authority to intercept is granted;
(iii) A particular description of the type of communication sought
to be intercepted, and a statement of the particular offense to which it
relates;
(iv) The identity of the agency authorized to intercept the
communications, and of the person authorizing the application; and
(v) The period of time during which such interception is authorized,
including a statement as to whether the interception shall terminate
automatically when the described communication has been first obtained.
(6) Every order and extension thereof shall contain a provision that
the authorization to intercept shall be executed as soon as practicable,
shall be conducted in such a way as to minimize the interception of
communications not otherwise subject to interception under this part,
and shall be terminated upon attainment of the authorized objective.
(7) No order entered by a military judge may authorize an
interception for any period longer than is necessary to achieve the
objective of the authorization, nor in any event longer than 60 days.
Extensions of an order may be granted, but only upon application for an
extension made in accordance with the procedures of 18 U.S.C. 2518(1),
and after the military judge makes the findings required by paragraph
(a)(1)(ii)(A)(4) of this section. The period of extension shall be no
longer than is necessary to achieve the purpose for which it was granted
and in no event for longer than 60 days.
(8) The contents of communications intercepted pursuant to an order
issued by a military judge shall, if possible, be recorded on tape or
wire or other comparable device. The recording of the contents of such
communications shall be done in such a way as will protect the recording
from editing or other alterations. Custody of the recording shall be
wherever required by the regulations promulgated under paragraph (e)(1)
of this section and it shall not be destroyed except pursuant to
paragraph (e)(4) of this section.
(9) The contents of a communication intercepted abroad, or evidence
derived therefrom, shall be inadmissible in any court-martial
proceeding, in any proceeding under Article 15 of the Uniform Code of
Military Justice, 10 U.S.C. 815, or in any other proceeding if the:
(i) Communication was intercepted in violation of this part or
applicable law;
(ii) Order of authorization under which it was intercepted is
insufficient on its face; or
(iii) Interception was not made in conformity with the order of
authorization.
(B) When the target of an interception conducted abroad is a person
who is not subject to the Uniform Code of Military Justice:
(1) The request for authorization shall be prepared and forwarded
for approval in accordance with the procedures in paragraph (a)(1)(i)
(A) and (B) of this section.
(2) The DoD General Counsel shall determine whether to approve the
request and what further approval is required by law to conduct the
interception.
(iii) Emergency nonconsensual interceptions in the United States and
abroad. If, in the judgment of the head of the DoD component concerned,
or a designee, the emergency need for a nonconsensual interception
precludes obtaining the advance written approval and court order
required by paragraph (a)(1) (i) and (ii) of this section, the component
[[Page 111]]
head or designee shall notify the DoD General Counsel who shall
determine whether to seek the authorization of the Attorney General for
an emergency nonconsensual interception in accordance with the
procedures of 18 U.S.C. 2518(7).
(iv) Time limits. Nonconsensual interceptions within the United
States may be approved for a period not to exceed 30 days. Nonconsensual
interceptions outside the United States may be approved for a period not
to exceed 60 days. Renewal requests for specified periods of not more
than 30 days each (60 days for interceptions outside the United States),
may be submitted to the approving authority for consideration. The
interception in all instances shall be terminated as soon as the desired
information is obtained, or when the interception proves to be
nonproductive.
(2) Consensual interceptions. (i) The following procedures are
applicable to all consensual interceptions of oral or wire
communications:
(A) When one of the parties to the conversation consents to an
intended interception of a communication, the DoD investigative or law
enforcement official shall prepare a request containing the following
information:
(1) A description of the facts and circumstances requiring the
intended interception, the means by which it would be conducted, the
place in which it would be conducted, and its expected duration;
(2) The names of all the persons whose conversations are expected to
be intercepted and their roles in the crime being investigated. When the
name of the nonconsenting party or parties is not known at the time the
request is made, the official making the request shall supply such
information within 30 days after termination of the interception. If
such information is not known at the end of this period, it shall be
supplied whenever it is later discovered;
(3) A statement that in the judgment of the person making the
request the interception is warranted in the interest of effective law
enforcement.
(B) An application for a court interception order is not necessary
in this situation. Written approval of the request shall be made by the
Secretary of a military department, or a designee, or, in their absence,
the DoD General Counsel. This approval authority shall not be delegated
to an official below the level of Assistant Secretary or Assistant to
the Secretary of a military department.
(C) The Secretaries of the military departments shall designate an
official to act upon telephonic requests when emergency needs preclude
advance written approval. A written record of such requests shall be
made.
(ii) The following restrictions are applicable to all consensual
interceptions of oral or wire communications:
(A) Within the United States, approval shall be granted for a period
of no more than 30 days. Abroad, approval may be granted for 60 days.
Renewal requests for specified periods of not more than 30 days each (60
days for interception outside the United States) may be submitted to the
approving authority for consideration. The interception in all instances
shall be terminated as soon as the desired information is obtained, or
when the interception proves to be nonproductive.
(B) The authorization for consensual interception of communications
shall define clearly the manner in which the interception is to be
accomplished. A ``consensual interception'' shall not involve the
installation of equipment in violation of the constitutionally protected
rights of any nonconsenting person whose communications will be
intercepted.
(b) Procedures governing the use of pen registers and similar
devices or techniques. The procedures of this section apply to the use
of pen registers, touch-tone telephone decoders, and similar devices.
Unless otherwise authorized by direction of the President or the
Attorney General, pen register and similar operations shall be conducted
only upon probable cause and pursuant to a court order.
(1) Operations conducted on a military installation and targeted
against persons subject to the Uniform Code of Military Justice. Except
as provided in Sec. 42.7(b)(3), when a pen register operation is
conducted on a military installation, in the United States or abroad,
and when the target of the operation is
[[Page 112]]
a person subject to the Uniform Code of Military Justice, the following
procedures apply:
(i) The application for a court order authorizing the operation
shall be made in writing upon oath or affirmation and shall be submitted
to a military judge assigned by the Judge Advocates General, pursuant to
paragraph (f)(5) of this section, to receive such applications. An
application shall include the following information:
(A) The identity of the DoD investigative or law enforcement officer
making the application;
(B) A complete statement of the facts and circumstances relied upon
by the application to justify the applicant's belief that there exists
probable cause to believe that the operation will produce evidence of a
crime, including a description of the particular offense involved, a
description of the nature and location of the facilities from which the
intercepted information originates, and the identity of the person, if
known, who has committed, is about to commit, or is committing the
offense and who is the target of the operation;
(C) A statement of the period of time for which the operation is
required to be maintained.
(ii) Subject to the limitations of paragraph (a)(1)(ii)(C) (i),
(ii), and (iii) of this section, a military judge assigned to receive
applications for orders authorizing operations covered by this
subsection may enter an order authorizing the operation upon finding
that the target of the operation is a person subject to the Uniform Code
of Military Justice, that the operation will be conducted on a military
installation, and that there exists probable cause to believe that the
operation will produce evidence of a crime. Each order shall specify
the:
(A) Identity of the person, if known, who is the target of the
operation;
(B) Location of the facilities from which the intercepted
information originates and of the facilities on which the operation will
take place;
(C) Period of time during which such operation is authorized.
(iii) When the application is for an operation conducted abroad, the
military judge may not authorize the operation if it would violate the
relevant Status of Forces Agreement or the applicable domestic law of
the host nation.
(2) Other pen register operations. (i) When the target of a pen
register operation abroad is a person who is not subject to the Uniform
Code of Military Justice:
(A) The application for authority to conduct a pen register
operation shall include the information in paragraph (b)(1)(i) of this
section and shall be forwarded to the DoD General Counsel.
(B) The DoD General Counsel shall determine whether to approve the
request and what further approval is required by law to conduct the pen
register operation.
(ii) Except as provided in paragraph (b)(3) of this section, all
other pen register and similar operations in the United States shall be
conducted pursuant to a search warrant (or other judicial order
authorizing the operation) issued by a judge of competent jurisdiction.
(3) Pen register operations which include nonconsensual
interceptions of wire communications. When an operation under this
section is to be conducted in conjunction with a nonconsensual
interception of a wire communication under Sec. 42.7(a)(1), procedures
of Sec. 42.7(a)(1) shall apply to the entire operation.
(c) Procedures governing telephone tracing. When prior consent of
one or more parties to a telephone tracing operation has been obtained,
the use of telephone tracing equipment and techniques shall be
authorized only after coordination with appropriate judge advocate
personnel or other component legal counsel. The local military facility
commander may approve consensual telephone tracing operations on
military facilities. For use outside military jurisdiction, the local
military commanders, in coordination with judge advocate personnel,
shall coordinate with local civilian or host country authorities when
appropriate. In all
[[Page 113]]
cases, use of this technique must comply with the provisions of DoD
directive 5200.27.1
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1 Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, 5801 Tabor Ave., Philadelphia, Pa. 19120,
attention code 301.
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(d) Interception equipment--(1) Control of interception equipment.
(i) DoD Components other than the military departments are not
authorized to procure or maintain equipment primarily useful for the
interception of wire and oral communications described in this part. The
heads of military departments shall establish controls to insure that
only the minimum quantity of interception equipment required to
accomplish assigned missions is procured and retained in inventories.
(ii) Interception equipment shall be safeguarded to prevent
unauthorized access or use, with appropriate inventory records to
account for all equipment at all times. Storage shall be centralized to
the maximum extent possible consistent with operational requirements.
When equipment is withdrawn from storage a record shall be made as to
the times of withdrawal and of its return to storage. Equipment should
be returned to storage when not in actual use, except to the extent that
returning the equipment would interfere with its proper utilization. The
individual to whom the equipment is assigned shall account fully, in a
written report, for the use made of the equipment during the time it was
removed from storage. Copies of the completed inventories of equipment,
the times of withdrawal and return and the written reports of the agents
specifying the uses made of the equipment shall be retained for at least
10 years.
(2) Disposal of interception equipment. (i) Federal law prohibits
the sale or possession of any device by any person who knows or has
reason to know that ``the design of such device renders it primarily
useful for the purpose of the surreptitious interception of wire or oral
communications * * *.'' Accordingly, disposal outside the Government of
such interception equipment is prohibited.
(ii) If there is any question as to what purpose an item of
equipment is primarily useful for, then the officials involved should,
in the exercise of due caution, prohibit its sale pending referral to
the DoD General Counsel for a determination as to the proper
classification of such devices under the law.
(e) Records administration--(1) General. All recordings and records
of information obtained through interception activities conducted under
the provisions of this part shall be safeguarded to preclude
unauthorized access, theft, or use. Both the interest of the Government
and the rights of private individuals involved shall be considered in
the development of safeguarding procedures. The Secretaries of the
military departments shall promulgate regulations specifying storage and
access requirements for applications, orders, recordings, and other
records of information obtained through interception activities. These
regulations shall include provisions for storage and access while the
case is active and after the case has become inactive and the records
have been transferred to a centralized facility. Copies of all issuances
and revisions shall be provided to the DoD General Counsel and the
ASD(C) as promulgated.
(2) Indexing--(i) Interceptions. The records of consensual and
nonconsensual interceptions shall be prepared and maintained to provide
for centralized, readily accessible records or indices that include the
following:
(A) Names, citizenship, and other available identifying data for
each reasonably identifiable person intercepted (intentionally or
otherwise), whether a case subject or not. If available, the social
security account number and the date and place of birth of the
individuals intercepted and identified;
(B) The telephone numbers of radio telephone call signs involved in
the interception;
(C) The case number or other identifier for the interception;
(D) The address of the location of the interception;
(E) The inclusive dates of the interception.
(ii) Denied interception applications. Records of all applications
submitted to and disapproved by a Federal or military judge for
authorization to conduct a nonconsensual interception
[[Page 114]]
of a wire or oral communication shall be prepared and maintained in a
separate, centralized index which shall include the following
information:
(A) Names and other available identifying data for each reasonably
identifiable target of the interception applied for;
(B) The telephone numbers or radio telephone call signs involved in
the application;
(C) The address of the location of the interception applied for;
(D) The case number or other identifier for the application; and
(E) A statement of the other facts concerning the application and
the reason that the application was refused.
(3) Dissemination controls. (i) The index and records maintained
pursuant to paragraph (e)(2)(ii) of this section, shall be used only as
required to satisfy the requirements of 18 U.S.C. 2518(1)(e), paragraph
(a)(1)(i)(A)(7), (a)(1)(ii) (A) and (B) (statement of prior
applications) and (f) (1) and (2) of this section.
(ii) In all cases, access to information obtained by interception
activities conducted under the provisions of this part shall be
restricted to those individuals having a defined need-to-know clearly
related to the performance of their duties.
(iii) The information may be disseminated outside the Department of
Defense only when:
(A) Required for the purposes described in 18 U.S.C. 2517;
(B) Required by law (including the Privacy Act of 1974, as amended,
and the Freedom of Information Act of 1967, as amended, or order of a
Federal court;
(C) Requested by a committee of the Congress and approved for
release by the DoD General Counsel; or
(D) Required by the provisions of Status of Forces or other
international agreements.
(iv) Secretaries of the military departments shall promulgate
regulations, policies and procedural controls and designate responsible
officials for both internal and external dissemination of the
information described above. Procedures shall include sufficient records
reflecting dissemination of this information. Copies of all issuances
and revisions for these purposes shall be provided the DoD General
Counsel and the ASD(C) as promulgated.
(4) Retention and disposition of records. Records and recordings of
interception shall be retained for 10 years after termination of the
interception and then disposed of in accordance with component records
retirement procedures. If the interception was conducted in the United
States under the provisions of 18 U.S.C. 2516, the records may be
destroyed only pursuant to order of the court involved.
(f) Reports--(1) By the Assistant Secretary of Defense
(Comptroller). The ASD(C), or a designee, shall submit the following
reports to the Attorney General:
(i) Quarterly. For the quarters ending in March, June, September,
and December, to be submitted by the end of each following month, a
report of all consensual interceptions of oral communications by DoD
components in the United States and abroad. This report shall specify
for each interception the means by which the interception was conducted,
the place in which it was conducted, its duration, and the use made of
the information acquired. This report shall also contain the names and
positions of persons authorized to approve consensual interceptions of
oral communications, including those persons authorized to approve
emergency, telephonic requests.
(ii) Annually. (A) By January 31, a report of all nonconsensual
interceptions of wire or oral communications conducted for investigative
or law enforcement purposes abroad by DoD components during the
preceding year and of all unsuccessful applications for orders to
conduct such interceptions during the preceding year. This report shall
contain the information required in 18 U.S.C. 2519(2).
(B) By July 31, an inventory of all DoD electronic or mechanical
equipment primarily useful for interception of wire or oral
communications.
(2) By the Secretaries of the military departments. The Secretaries
of the military departments, or their designees, shall submit the
following reports to the ASD(C):
[[Page 115]]
(i) Quarterly. For the quarters ending in March, June, September,
and December, to be received by the 15th day of each following month, a
report of all interceptions of wire and oral communications, pen
register operations, and unsuccessful applications for nonconsensual
interceptions conducted by the military departments in the United States
and abroad. This report shall include the information listed in
Sec. 42.8.
(ii) Annually. By July 15, a complete inventory of all devices in
the DoD component that are primarily useful for interception of wire or
oral communications or for operations covered by paragraph (b) of this
section. This report shall include a statement that the amount of
equipment is being maintained at the lowest level consistent with
operational requirements.
Sec. 42.8 Information to be included in reports of interceptions and pen register operations.
(a) Consensual interceptions. (1) Identity of DoD component making
this report.
(2) Indicate whether the report is a wire or oral interception
operation and whether the interception included the use of a pen
register. (If more than one operation is authorized, a separate entry
should be made for each.)
(3) Purpose or objective of operation. Specify offense being
investigated and included a brief synopsis of the case.
(4) Investigative case number or identifier for the operation.
(5) Location of the operation.
(6) Type of equipment used and method of installation.
(7) Identity of the performing organizational unit. (Indicate if the
interception was conducted for a DoD component other than the component
making the report or for a non-DoD activity.)
(8) Identity of DoD investigative or law enforcement officer who
requested or applied for the interception.
(9) Approval authority and date of approval.
(10) Length and dates for which operation was approved.
(11) Actual date operation was initiated, and date terminated.
(12) If operation was extended, state name of authority approving
extension and dates to which extended.
(13) State where tapes, transcripts, and notes are stored.
(14) Evaluation of results of operations, including the use made of
the information in subsequent investigation or prosecution.
(15) The names and positions of persons authorized to approve
consensual interceptions, including those persons authorized to approve
emergency, telephonic requests.
(16) Indicate whether the interception took place in the United
States or abroad.
(b) Nonconsensual interceptions in the United States. In addition to
items in Sec. 42.8(a) (1)-(14), include the following:
(1) Identity of court and judge who issued the intercept
authorization order and date of order.
(2) Nature and frequency of incriminating communications intercepted
(specify dates and approximate duration of each communication).
(3) Nature and frequency of other communications intercepted.
(4) Number of persons whose communications were intercepted.
Indicate number of U.S. persons known to have been intercepted and
whether such persons were targets or incidentals.
(c) Nonconsensual interceptions abroad. In addition to items in
paragraphs (a) (1)-(14) and (b) (1)-(4) of this section, include the
following:
(1) Number of persons located in the United States whose
communications were intercepted.
(2) In the report for the last quarter of each calendar year,
include:
(i) The number of arrests and trials resulting from each
interception conducted during the year. Indicate the offense for each
interception.
(ii) The number of convictions resulting from the interceptions
conducted during the year and the offenses for which convictions were
obtained.
(d) Pen register operations. Pen register operations conducted in
conjunction with nonconsensual interceptions should be included in
Sec. 42.8 (a) and (b). For all other pen register operations include
items (1)-(15) from Sec. 42.8(a), items (1)-(4) from Sec. 42.8(b), and
indicate whether the operation was conducted in the United States or
abroad.
[[Page 116]]
(e) Unsuccessful applications for nonconsensual interception
authorization orders. (1) Identity of applying organizational unit.
(Indicate if the application was on behalf of a DoD component other than
the component making the report or on behalf of a non-DoD activity.)
(2) Investigative case number or identifier for the application.
(3) Identity of applying DoD investigative or law enforcement
officer.
(4) Approval authority and date of approval of DoD request.
(5) Identity of judge who denied the application and date of denial.
(6) Offense specified in the application.
(7) Whether the application was for a wire or oral interception
order, and whether the application was for an interception in the United
States or abroad.
(8) Purpose or object of the interception applied for. Include a
brief synopsis of the case.
(9) If the application was for an extension, indicate the dates,
duration, and results of the previous interception.
(10) Specific location of the interception applied for.
(11) Number of U.S. persons named as targets in the application.
(12) Reason why the application was denied.
PART 43--PERSONAL COMMERCIAL SOLICITATION ON DoD INSTALLATIONS--Table of Contents
Sec.
43.1 Reissuance and purpose.
43.2 Applicability and scope.
43.3 Definitions.
43.4 Policy.
43.5 Responsibilities.
43.6 Procedures.
Appendix A to Part 43--Life Insurance Products and Securities
Appendix B to Part 43--The Overseas Life Insurance Accreditation Program
Authority: 5 U.S.C. 301.
Source: 51 FR 7552, Mar. 5, 1986, unless otherwise noted.
Sec. 43.1 Reissuance and purpose.
This part:
(a) Consolidates into a single document parts 43 and 276 of this
title and update DoD policies and procedures governing personal
commercial solicitation and insurance sales on DoD installations.
(b) Continues the established annual DoD accreditation requirements
for life insurance companies operating in overseas areas where neither
Federal nor State consumer protection regulations apply.
Sec. 43.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense
(OSD), the Military Departments, the Organization of the Joint Chiefs of
Staff (OJCS), the Unified Commands, and the Defense Agencies (hereafter
referred to collectively as ``DoD Components''). The term ``Military
Services,'' as used herein, refers to the Army, Navy, Air Force, Marine
Corps, and Coast Guard.
(b) The provisions of this part do not apply to services furnished
by commercial companies, such as deliveries of milk, laundry, and
related residence services when such services are authorized by the DoD
installation commander.
(c) Nothing in this part should be construed to preclude private,
non-profit, tax-exempt organizations composed of active and retired
members of the Military Services from holding membership meetings which
do not involve commercial solicitation on DoD installations. Attendance
at these meetings shall be voluntary and the time and place of such
meetings are subject to the discretion of the installation commander or
his or her designee.
[51 FR 7552, Mar. 5, 1986, as amended at 52 FR 25008, July 2, 1987]
Sec. 43.3 Definitions.
Agent. An individual who receives remuneration as a salesperson or
whose remuneration is dependent on volume of sales of a product or
products.
Association. Any organization, whether or not the word
``Association'' appears in its title, composed of and serving
exclusively members of the Military Services on active duty, in a
Reserve status, in a retired status, and their dependents, which
officers its
[[Page 117]]
members life insurance coverage, either as part of the membership dues,
or as a separately purchased plan made available through an insurance
carrier or the association as a self-insurer, or a combination of both.
DoD installation. Any Federally owned, leased, or operated base,
reservation, post, camp, building, or other facility to which DoD
personnel are assigned for duty, including barracks, transient housing,
and family quarters.
DoD personnel. All active duty officers (commissioned and warrant)
and enlisted members of the Military Services and all civilian
employees, including nonappropriated fund employees and special
Government employees of all offices, agencies, and departments carrying
on functions on a Defense installation.
General agent. A person who has a legal contract to represent a
company solely and exclusively.
Insurance carrier. An insurance company issuing insurance through an
association or reinsuring or coinsuring such insurance.
Insurance product. A policy, annuity, or certificate of insurance
issued by an insurer or evidence of insurance coverage issued by a self-
insured association.
Insurer. Any company or association engaged in the business of
selling insurance policies to DoD personnel.
Normal home enterprises. Sales or services which are customarily
conducted in a domestic setting and do not compete with an
installation's officially sanctioned commerce.
Securities. Mutual funds, stocks, bonds, or any product registered
with the Securities and Exchange Commission except for any insurance or
annuity product issued by a corporation subject to supervision by State
insurance authorities.
Solicitation. The conduct of any private business, including the
offering and sale of insurance on a military installation. Solicitation
on installations is a privilege as distinguished from a right, and its
control is a responsibility vested in the DoD installation commander.
Sec. 43.4 Policy.
It is the policy of the Department of Defense to safeguard and
promote the welfare of DoD personnel as consumers by setting forth a
uniform approach to the conduct of all personal commercial solicitation
and sales to them by dealers and their agents.
Sec. 43.5 Responsibilities.
(a) The Assistant Secretary of Defense (Force Management and
Personnel) (ASD(FM&P)) shall be responsible for developing policies and
procedures governing personal commercial solicitation activities
conducted on DoD installations.
(b) The Heads of DoD Components, or their designees, shall assure
implementation of this Directive and compliance with its provisions.
Sec. 43.6 Procedures.
(a) General. (1) No person has authority to enter upon a DoD
installation and transact personal commercial solicitation as a matter
of rights. Personal commercial solicitation will be permitted only if
the following requirements are met:
(i) The solicitor is duly licensed under applicable Federal, State,
or municipal laws and has complied with installation regulations in
accordance with paragraph (c) of this section.
(ii) Personal commercial solicitation is permitted by the local
installation commander.
(iii) A specific appointment has been made with the individual
concerned and conducted in family quarters or in other areas designated
by the installation commander.
(2) Those seeking to transact personal commercial solicitation on
overseas installations shall be required to observe, in addition to the
above, the applicable laws of the host country and, upon demand, present
documentary evidence to the installation commander, or designee, that
the company they represent, and its agents, meet the licensing
requirements of the host country.
(3) Organizations involved in sales are permitted to display
literature on DoD installations in locations selected by the commander.
[[Page 118]]
(b) Life insurance products and securities. (1) Life insurance
products and securities offered and sold to DoD personnel must meet the
prerequisites described in Appendix A.
(2) Insurers and their agents are authorized to solicit on DoD
installations provided they are licensed under the insurance laws of the
State in which the installation is located. In overseas areas, DoD
Components shall limit this authorization to those insurers accredited
under the provisions of Appendix B.
(3) The conduct of all insurance business on DoD installations shall
be by specific appointment. When establishing the appointment, insurance
agents must identify themselves to the prospective purchaser as an agent
for a specific company.
(4) Installation commanders shall designate areas where interviews
by appointment may be conducted. Invitations to conduct interviews shall
be extended to all agents on an equitable basis. Where space and other
considerations limit the number of agents using the interviewing area,
the installation commander may develop and publish local policy
consistent with this concept.
(5) Installation commanders shall make disinterested third-party
counseling available to DoD personnel desiring counseling.
(6) In addition to the solicitation prohibitions contained in
paragraph (d) of this section, DoD Components shall prohibit:
(i) DoD personnel from representing any insurer, or dealing directly
or indirectly with any insurer or any recognized representative of any
insurer on the installation, as an agent or in any official or business
capacity with or without compensation.
(ii) The use of an agent as a participant in any Military Services-
sponsored insurance education or orientation program.
(iii) The designation of any agent or the use by any agent of titles
such as ``Battalion Insurance Counselor,'' ``Unit Insurance Advisor,''
``Servicemen's Group Life Insurance Conversion Consultant,'' etc.
(iv) The assignment of desk space for interviews for other than a
specific prearranged appointment. During such appointment, the agent
shall not be permitted to display desk or other signs announcing his or
her name or company affiliation.
(v) The use of the ``Daily Bulletin'' or any other notice, official
or unofficial, announcing the presence of an agent and his or her
availability.
(c) Supervision of on-base commercial activities. (1) All pertinent
installation regulations shall be posted in a place easily accessible to
those conducting personal commercial solicitation activities on the
installation.
(2) When practicable, as determined by the installation commander, a
copy of the applicable installation regulations shall be given to those
conducting on-base commercial activities with the warning that any
infractions of the regulations will result in the withdrawal of
solicitation privileges.
(d) Prohibited practices. The following commercial solicitation
practices shall be prohibited on all DoD installations:
(1) Solicitation of recruits, trainees, and transient personnel in a
``mass'' or ``captive'' audience.
(2) Making appointments with or soliciting military personnel who
are in an ``on-duty'' status.
(3) Soliciting without appointment in areas utilized for the housing
or processing of transient personnel, in barracks areas used as
quarters, in unit areas, in family quarters areas, and in areas provided
by installation commanders for interviews by appointment.
(4) Use of official identification cards by retired or reserve
members of the Military Services to gain access to DoD installations for
the purpose of soliciting.
(5) Procuring, or attempting to procure, or supplying roster
listings of DoD personnel for purposes of commercial solicitation,
except for releases granted in accordance with DoD Directive 5400.7.
(6) Offering unfair, improper, and deceptive inducements to purchase
or trade.
(7) Using rebates to facilitate transactions or to eliminate
competition.
[[Page 119]]
(8) Using manipulative, deceptive, or fraudulent devices, schemes,
or artifices, including misleading advertising and sales literature.
(9) Using oral or written representations to suggest or give the
appearance that the Department of Defense sponsors or endorses any
particular company, its agents, or the goods, services, and commodities
it sells.
(10) Full-time DoD personnel making personal commercial
solicitations or sales to DoD personnel who are junior in rank or grade
as provided in DoD Directive 5500.7\1\.
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\1\Copies may be obtained, if needed, from the US Naval Publications
and Forms Center 5801 Tabor Avenue, ATTN: Code 301, Philadelphia PA
19120.
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(11) Entering into any unauthorized or restricted area.
(12) Using any portion of installation facilities, including
quarters, as a showroom or store for the sale of goods or services,
except as specifically authorized by DoD Directives 1330.9\2\ and
1330.17\3\ and DoD Instructions 1330.18\4\ and 1000.15\5\. This is not
intended to preclude normal home enterprises, providing applicable State
and local laws are complied with.
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2--5See footnote 1 to paragraph (d)(10) of this section.
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(13) Soliciting door to door.
(14) Advertising addresses or telephone numbers of commercial sales
activities conducted on the installation, except for authorized
activities conducted by members of military families residing in family
housing.
(e) Denial and revocation of on-base solicitation. (1) The
installation commander shall deny or revoke permission to a company and
its agents to conduct commercial activities on the base if such action
is in the best interests of the command. The grounds for taking this
action shall include, but not be limited to, the following:
(i) Failure to meet the licensing and other regulatory requirements
prescribed in paragraphs (a) and (b) of this section.
(ii) Commission of any of the practices prohibited in paragraphs
(b)(6) and (d) of this section.
(iii) Substantiated complaints or adverse reports regarding quality
of goods, services, and commodities and the manner in which they are
offered for sale.
(iv) Knowing and willful violations of Pub. L. 90-321.
(v) Personal misconduct by a company's agent or representative while
on the installation.
(vi) The possession of or any attempt to obtain supplies of
allotment forms used by the Military Departments, or possession or use
of facsimiles thereof.
(vii) Failure to incorporate and abide by the Standards of Fairness
policies contained in DoD Directive 1344.9.\6\
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\6\ See footnote 1 to paragraph (d)(10) of this section.
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(2) In withdrawing solicitation privileges, the commander shall
determine whether to limit it to the agent alone or extend it to the
company the agent represents. This decision shall be communicated to the
agent and to the company the agent represents and shall be based on the
circumstances of the particular case, including, among others, the
nature of the violations, frequency of violations, the extent to which
other agents of the company have engaged in such practices, and any
other matters tending to show the company's culpability.
(i) Upon withdrawing solicitation privileges, the commander shall
promptly inform the agent and the company the agent represents orally or
in writing.
(ii) If the grounds for the action involve the eligibility of the
agent or company to hold a State license or to meet other regulatory
requirements, the appropriate authorities will be notified.
(iii) The commander shall afford the individual or company an
opportunity to show cause why the action should not be taken. To ``show
cause'' means an opportunity must be given for the grieved party to
present facts on his or her behalf on an informal basis for the
consideration of the installation commander.
(iv) If warranted, the commander shall recommend to the Military
Department concerned that the action taken be extended to other DoD
installations. If so approved, and when appropriate, the Assistant
Secretary of
[[Page 120]]
Defense (Force Management and Personnel) (ASD(FM&P)), following
consultation with the Military Department concerned, shall order the
action extended to other Military Departments.
(v) All denials or withdrawals of privileges will be for a set
period of time, at the end of which the individual may reapply for
permission to solicit through the Military Department originally
imposing the restriction. Denial or withdrawal of soliciting privileges
may or may not be continued, as warranted.
(vi) When such denials or withdrawals are lifted, the Office of the
ASD(FM&P) shall be notified for parallel action if the same denial or
withdrawal has been extended to other Military Departments.
(vii) The commanding officer may, if circumstances dictate, make
immediate suspensions of solicitation privileges for a period of 30 days
while an investigation is conducted. Exceptions to this amount of time
must be approved by the Military Department concerned.
(3) Upon receipt of the information outlined above, the Secretaries
of the Military Departments may direct the Armed Forces Disciplinary
Control Boards in all geographical areas in which the grounds for action
have occurred to consider the charges and take appropriate action.
(f) Advertising policies. (1) The Department of Defense expects
voluntary observance of the highest business ethics both by commercial
enterprises soliciting DoD personnel through advertisements in
unofficial military publications, and by the publishers of those
publications in describing goods, services, and commodities, and the
terms of the sale (including guarantees, warranties, and the like).
(2) The advertising of credit terms shall conform to the provisions
of Pub. L. 90-321 as implemented by Regulation Z.
(g) Educational programs. (1) The Military Departments shall develop
and disseminate information and education programs for members of the
Military Services on how to conduct their personal commercial affairs,
including such subjects as the Truth-in-Lending Act, insurance,
Government benefits, savings, and budgeting. The services of
representatives of credit unions, banks, and those nonprofit military
associations (provided such associations are not underwritten by a
commercial insurance company) approved by the Military Departments may
be used for this purpose. Under no circumstances shall commercial
agents, including representatives of loan, finance, insurance or
investment companies, be used for this purpose. Educational materials
prepared or presented by outside organizations expert in this field may,
with appropriate disclaimers and permission, be adapted or used if
approved by the Military Department concerned. Presentations by approved
organizations shall only be conducted at the express request of the
installation commander.
(2) The Military Departments shall also make qualified personnel and
facilities available for individual counseling on loans and consumer
credit transactions in order to encourage thrift and financial
responsibility and promote a better understanding of the wise use of
credit, as prescribed in DoD Directive 1344.9.\7\
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\7\ See footnote 1 to Sec. 43.6(d)(10).
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(3) Military members shall be encouraged to seek advice from a legal
assistance officer or their own lawyer before making a substantial loan
or credit commitment.
(4) Each Military Department shall provide advice and guidance to
military personnel who have a complaint under Pub. L. 90-321 or who
allege a criminal violation of its provisions, including referral to the
appropriate regulatory agency for processing of the complaint.
[51 FR 7552, Mar. 5, 1986, as amended at 52 FR 25008, July 2, 1987]
Appendix A to Part 43--Life Insurance Products and Securities
A. Life Insurance Product Content Prerequisites
1. Insurance products, other than certificates or other evidence of
insurance issued by a self-insured association, offered and sold
worldwide to personnel on DoD installations, must:
[[Page 121]]
a. Comply with the insurance laws of the State or country in which
the installation is located and the procedural requirements of this
Directive.
b. Contain no restrictions by reason of military service or military
occupational specialty of the insured, unless such restrictions are
clearly indicated on the face of the contract.
c. Plainly indicate any extra premium charges imposed by reason of
military service or military occupational specialty.
d. Contain no variation in the amount of death benefit or premium
based upon the length of time the contract has been in force, unless all
such variations are clearly described therein.
2. To comply with paragraphs A.1.b., c., and d., above, an
appropriate reference stamped on the face of the contract shall draw the
attention of the policyholder to any extra premium charges and any
variations in the amount of death benefit or premium based upon the
length of time the contract has been in force.
3. Variable life insurance products may be offered provided they
meet the criteria of the appropriate insurance regulatory agency and the
Securities and Exchange Commission.
4. Premiums shall reflect only the actual premiums payable for the
life insurance product.
B. Sale of Securities
1. All securities must be registered with the Securities and
Exchange Commission.
2. All sales of securities must comply with existing and appropriate
Securities and Exchange Commission regulations.
3. All securities representatives must apply directly to the
commander of the installation on which they desire to solicit the sale
of securities.
4. Where the accredited insurer's policy permits, an overseas
accredited life insurance agent--if duly qualified to engage in security
activities either as a registered representative of the National
Association of Securities Dealers or as an associate of a broker or
dealer registered with the Securities and Exchange Commission--may offer
life insurance and securities for sale simultaneously. In cases of
commingled sales, the allotment of pay for the purchase of securities
cannot be made to the insurer.
C. Use of the Allotment of Pay System
1. Allotments of military pay for life insurance products shall be
made in accordance with DoD Directive 7330.1.\8\
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\8\ See footnote 1 to Sec. 43.6(d)(10).
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2. For personnel in pay grades E-1, E-2, and E-3, at least seven
days shall elapse for counseling between the signing of a life insurance
application and the certification of an allotment. The purchaser's
commanding officer may grant a waiver of this requirement for good
cause, such as the purchaser's imminent permanent change of station.
D. Association--General
The recent growth and general acceptability of quasimilitary
associations offering various insurance plans to military personnel are
acknowledged. Some associations are not organized within the supervision
of insurance laws of either a State or the Federal Government. While
some are organized for profit, others function as nonprofit associations
under Internal Revenue Service regulations. Regardless of the manner in
which insurance plans are offered to members, the management of the
association is responsible for complying fully with the instructions
contained herein and the spirit of this part.
Appendix B to Part 43--The Overseas Life Insurance Accreditation Program
A. Accreditation Criteria
1. Initial Accreditation.
a. Insurers must demonstrate continuous successful operation in the
life insurance business for a period of not less than five years on
December 31 of the year preceding the date of filing the application.
b. Insurers must be listed in Best's Life-Health Insurance Reports
and be assigned a rating of B+ (Very Good) or better for the business
year preceding the Government's fiscal year for which accreditation is
sought.
2. Reaccreditation.
a. Insurers must demonstrate continuous successful operation in the
life insurance business, as described in subsection A.1.a., above.
b. Insurers must retain a Best's rating of B+ or better, as
described in paragraph A.1.b., above.
c. Insurers must establish an agency sales force in one of the
overseas commands within two years of initial accreditation.
3. Waiver Provisions.
Waivers of the initial accreditation and reaccreditation provisions
will be considered for those insurers demonstrating substantial
compliance with the aforementioned criteria.
B. Application Instructions
1. Applications Filed Annually. During the months of May and June of
each year insurers may apply for solicitation privileges for personnel
assigned to U.S. military installations in foreign areas for the fiscal
year beginning the following October 1.
[[Page 122]]
2. Application Prerequisites. A letter of application, signed by the
president, vice president, or designated official of the insurance
company shall be forwarded to the Assistant Secretary of Defense (Force
Management and Personnel), Attention: Personnel Administration and
Services Directorate, ODASD(MM&PP), The Pentagon, Washington, DC 20301-
4000. The letter shall contain the information set forth below,
submitted in the order listed. Where not applicable, so state.
a. The overseas commands (e.g., European, Pacific, Atlantic ,
Southern) where the company is presently soliciting, or planning to
solicit on U.S. military installations.
b. A statement that the company has complied with, or will comply
with, the applicable laws of the country or countries wherein it
proposes to solicit. ``Laws of the country'' means all natural,
provincial, city, or county laws or ordinances of any country, as
applicable.
c. A statement that the products to be offered for sale conform to
the standards prescribed in Appendix A and contain only the standard
provisions such as those prescribed by the laws of the State where the
company's headquarters are located.
d. A statement that the company shall assume full responsibility for
the acts of its agents with respect to solicitation. Sales personnel
will be limited in numbers to one general agent and no more than 50
sales personnel for each overseas area. If warranted, the number of
agents may be further limited by the overseas command concerned.
e. A statement that the company will not utilize agents who have not
been accredited by the appropriate overseas command to sell to DoD
personnel on or off its DoD installations.
f. Any explanatory or supplemental comments that will assist in
evaluating the application.
g. If the Department of Defense requires facts or statistics beyond
those normally involved in accreditation, the company shall make
separate arrangements to provide them.
h. A statement that the company's general agent and other accredited
agents are appointed in accordance with the prerequisites established in
section C., below.
3. If a company is a life insurance company subsidiary, it must be
accredited separately on its own merits.
C. Agent Requirements
Unified commanders shall apply the following principles:
1. An agent must possess a current State license. The overseas
commander may waive this requirement for an accredited agent
continuously residing and successfully selling life insurance in foreign
areas, who, through no fault of his or her own, due to State law (or
regulation) governing domicile requirements, or requiring that the
agent's company be licensed to do business in that State, forfeits
eligibility for a State license. The request for a waiver shall contain
the name of the State or jurisdiction which would not renew the agent's
license.
2. General agents and agents shall represent only one accredited
commercial insurance company. This requirement may be waived by the
overseas commander if multiple representation can be proven to be in the
best interest of DoD personnel.
3. An agent must have at least one year of successful life insurance
underwriting in the United States or its territories, generally within
the five years preceding the date of application, in order to be
designated as accredited and employed for overseas solicitation.
4. Appropriate overseas commanders shall exercise further agent
control procedures as deemed necessary.
5. An agent, once accredited in an overseas area, may not change
affiliation from the staff of one general agent to another and retain
accreditation, unless the previous employer certifies in writing that
the release is without justifiable prejudice. Unified commanders will
have final authority to determine justifiable prejudice. Indebtedness of
an agent to a previous employer is an example of justifiable prejudice.
D. Announcement of Findings
1. Accreditation by the Department of defense upon annual
applications of insurers shall be announced as soon as practicable by a
notice to each applicant and by a listing released annually in September
to the appropriate overseas commander. This approval does not constitute
DoD endorsement of the insurer. Any advertising by insurers which
suggests such endorsement is prohibited.
2. In the event accreditation is denied, specific reasons for such
findings shall be submitted to the applicant.
a. Upon receipt of notification of an unfavorable finding, the
insurer shall have 30 days from the receipt of such notification
(forwarded certified mail, return recipt requested) in which to request
reconsideration of the original decision. This request must be
accompanied by substantiating data or information in rebuttal of the
specific reasons upon which the adverse findings are based.
b. Action by the Assistant Secretary of Defense (Force Management
and Personnel) on appeal is final.
c. If the applicant is presently accredited as an insurer, up to 90
days from final action on an unfavorable finding shall be granted in
which to close out operations.
3. Upon receiving the annual letter of accreditation, each company
shall send to the applicable unified commander a verified list of agents
currently accredited for overseas
[[Page 123]]
solicitation. Where applicable, the company shall also include the names
of new agents for whom original accreditation and permission to solicit
on base is requested. Insurers initially accredited will be furnished
instructions by the Department of Defense for agent accreditation
procedures in overseas areas.
4. Material changes affecting the corporate status and financial
conditions of the company which may occur during the fiscal year of
accreditation must be reported as they occur.
a. The Department of Defense reserves the right to terminate
accreditation if such material changes appear to substantially affect
the financial and operational criteria described in section A., above,
on which accreditation was based.
b. Failure to report such material changes can result in termination
of accreditation regardless of how it affects the criteria.
5. If an analysis of information furnished by the company indicates
that unfavorable trends are developing which may possibly adversely
affect its future operations, the Department of Defense may, at its
option, bring such matters to the attention of the company and request a
statement as to what action, if any, is contemplated to deal with such
unfavorable trends.
PART 44--SCREENING THE READY RESERVE--Table of Contents
Sec.
44.1 Purpose.
44.2 Applicability.
44.3 Definitions.
44.4 Policy.
44.5 Procedures.
44.6 Responsibilities.
44.7 Information requirements.
Appendix A to Part 44--Letter Format to Cognizant Reserve Personnel
Center Requesting That Employee Be Removed From the Ready
Reserve
Appendix B to Part 44--List of Reserve Personnel Centers to Which
Reserve Screening Determination and Removal Requests Shall be
Forwarded
Authority: Title 10 U.S.C. 269, 271, 272, 652, 672, 673, 674, 685,
and 1005 and E.O. 11190.
Source: 49 FR 30067, July 26, 1984, unless otherwise noted.
Sec. 44.1 Purpose.
This part updates and clarifies DoD policy, procedures, and
responsibilities governing the screening of Ready Reservists, consistent
with title 10 U.S.C. 269, 271, 272, 652, 672, 673, 674, 685, and 1005
and E.O. 11190.
Sec. 44.2 Applicability.
This part applies to the Office of the Secretary of Defense and the
Military Departments (including their reserve components). The term
``Military Services,'' as used herein, refers to the Army, the Navy, the
Air Force, the Marine Corps, and the Coast Guard (by agreement with the
Department of Transportation). Reserve components include the Army
National Guard, the Army Reserve, the Naval Reserve, the Marine Corps
Reserve, the Air National Guard, the Air Force Reserve, and the Coast
Guard Reserve.
Sec. 44.3 Definitions.
(a) Defense support industry. Any business or corporation so
determined by FEMA.
(b) Extreme community hardship. A situation that, because a
reservist is mobilized, may have a substantially adverse effect on the
health, safety, or welfare of the community. Any request for a
determination of such hardship shall be made by the reservist and must
be supported by documentation as required by the Secretary of the
Military Department concerned.
(c) Extreme personal hardship. An adverse impact upon a reservist's
dependents resulting from his or her mobilization. Any request for a
determination of such hardship shall be made by the reservist and must
be supported by documentation as required by the Secretary of the
Military Department concerned.
(d) Key employee. Any Federal employee occupying a key position.
(e) Key position. A Federal position that cannot be vacated during a
national emergency or mobilization without seriously impairing the
capability of the parent Federal agency or office to function
effectively. There are three categories of Federal key positions. The
first two categories are, by definition, key positions. Only the final
category requires a case-by-case determination and designation:
(1) The Vice President of the United States or any official
specified in the order of presidential succession as set forth in 3
U.S.C. 19.
(2) Members of Congress, heads of Federal agencies appointed by the
[[Page 124]]
President with the consent of the Senate, and the Federal judiciary
(District, Circuit, and Supreme Court judges and justices only; all
other positions within the Federal judiciary shall be considered under
the provisions of paragraph (e)(3) of this section). For the purposes of
the definition contained in this paragraph, the terms ``heads of Federal
agencies'' does not include any person appointed by the President with
the consent of the Senate to a Federal agency as a member of a
multimember board or commission. Positions occupied by such persons may
be designated as key positions only by the application of the criteria
set forth in Sec. 44.5(b)(2) of this part.
(3) Other Federal positions determined by Federal agency heads, or
their designees, to be key positions in accordance with the guidelines
specified in Sec. 44.5(b)(2) of this part.
(f) Ready Reserve. Units and individual reservists liable for active
duty as outlined in 10 U.S.C. 672 and 673.
(g) Selected Reserve. Part of the Ready Reserve of each reserve
component consisting of units and individuals who participate actively
in paid training periods and serve on paid active duty for training each
year.
(h) Standby Reserve. Units or members of the reserve components,
other than those in the Ready Reserve or Retired Reserve, who are liable
for active duty as provided in sections 672 and 674 of title 10, U.S.C.
Sec. 44.4 Policy.
It is DoD policy that members of the Selected Reserve and other
Ready Reservists who are not on active duty shall be screened at least
annually to provide a Ready Reserve force composed of members who:
(a) Meet Military Service wartime standards of mental, moral,
professional, and physical fitness.
(b) Possess the military qualifications required in the various
ranks, grades, ratings, and specialties.
(c) Are available immediately for active duty during a mobilization
(or during a war or national emergency or in response to a presidential
order to augment the active forces for an operational mission).
Sec. 44.5 Procedures.
(a) Reserve component screening activities. The following general
procedures shall be followed to ensure the immediate availability of a
Ready Reserve force:
(1) Annual screening. All Ready Reservists shall be screened at
least annually to ensure their availability. Upon mobilization, all
screening activity ceases, and all those remaining in the Ready Reserve
shall be considered immediately available for active duty service.
(2) Maintaining current data. The development and maintenance of
current information pertaining to the mobilization availability of Ready
Reservists shall be the responsibility of the Secretary of the Military
Department concerned.
(3) Civilian employment. After a mobilization is ordered, no
deferment, delay, or exemption from mobilization will be granted to
Ready Reservists because of their civilian employment.
(4) Retention in the Ready Reserve. All Ready Reservists shall be
retained in the Ready reserve for the entire period of their statutory
obligation or voluntary contract. Exceptions to this policy are made in
this part or may be made by the Secretaries of the Military Departments
(10 U.S.C. 269).
(5) Transfer of National Guard members to the Standby Reserve. In
accordance with section 269(g) of title 10, U.S.C., a member of the Army
National Guard or the Air National Guard may be transferred to the
Standby Reserve only with the consent of the governor or other
appropriate authority of the State, commonwealth, or territory concerned
(including the District of Columbia).
(6) Transfer from the Standby Reserve to the Ready Reserve. Under
section 272 of title 10, U.S.C., any eligible member of the Standby
Reserve may be transferred back to the Ready Reserve when the reason for
the member's transfer to the Standby Reserve no longer exists (32 CFR
part 100).
(7) Extreme hardship. The Secretaries of the Military Departments
shall screen extreme hardship cases (section 271a(5) of title 10,
U.S.C.). Ready Reservists whose immediate recall to active duty during
an emergency would
[[Page 125]]
create an extreme personal or community hardship shall be transferred to
the Standby Reserve or the Retired Reserve or shall be discharged, as
appropriate.
(8) Miscellaneous screening requirements. Ready Reservists
identified in the following categories shall be processed as follows:
(i) Civilian employment restrictions. Ready Reservists who are also
DoD civilian employees may not hold a mobilization assignment to the
same positions that they fill as civilian employees. These Ready
Reservists shall be reassigned or transferred, as appropriate. Reserve
component unit civilian technicians, as members of reserve units, are
excluded from this provision.
(ii) Theological students. Ready Reservists who are preparing for
the ministry in an accredited theological or divinity school cannot be
involuntarily called to active duty or required to participate in
inactive duty training (10 U.S.C. 685). Accordingly, such Ready
Reservists (other than those participating in a military Chaplain
Candidate or Theological Student Program) shall be transferred to the
Standby Reserve (active status) for the duration of their ministerial
studies at accredited theological or divinity schools. Ready Reservists
participating in a military Chaplain Candidate or Theological Student
Program may continue their Ready Reserve affiliation and engage in
active duty and inactive duty training.
(iii) Health care professionals. Ready Reservists may not be
transferred from the Ready Reserve solely because they are students,
interns, residents, or fellows in the health care professions. Upon
mobilization, they either shall be deferred or shall be mobilized in a
student, intern, resident, or fellow status until qualified in the
appropriate military specialty as prescribed by the Military Department
Secretaries (DoD Directive 1215.4).
(9) Availability determinations. The Secretaries of the Military
Departments shall make determinations for mobilization availability on a
case-by-case basis, consistent with this part, and not by class or group
determinations.
(10) Removal determinations. Under this part, the Secretaries of the
Military Departments shall review recommendations for removal of
employees from the Ready Reserve submitted by employers and shall take
appropriate action.
(b) Screening activities by employers of Ready Reservists. In
addition to the Ready Reserve screening activities prescribed in this
part to be conducted by the Military Departments, employers of Ready
Reservists also have certain screening responsibilities under the law.
(1) Nonfederal employers. Under 44 CFR part 333, nonfederal
employers of Ready Reservists, particularly in the fields of public
health and safety and defense support industries, are encouraged to
adopt personnel management procedures designed to preclude conflicts
between the emergency manpower needs of civilian activities and the
military during a mobilization. Employers also are encouraged to use the
Federal key position guidelines contained herein for making their own
key position designations and, when applicable, for recommending key
employees for removal from the Ready Reserve.
(2) Federal employers. Federal Preparedness Circular (FPC) 9
promulgated policy for Ready Reserve screening activities that shall be
accomplished by Federal sector employers. To ensure that Federal
employees essential to the continuity of the Federal government are not
retained as members of the Ready Reserve, the following procedures shall
apply:
(i) Key positions. Some Federal employees occupy positions that
cannot be vacated during a national emergency or mobilization without
seriously impairing the capability of their agency to function
effectively. Because of the essential nature of these positions, the
Federal agency head, or designee, concerned shall designate such
positions as key positions and shall require that they not be filled by
Ready Reservists to preclude such positions from being vacated during a
mobilization. The Military Department Secretaries shall transfer Ready
Reservists occupying key positions to the
[[Page 126]]
Standby Reserve or the Retired Reserve or shall discharge them, as
appropriate, under 10 U.S.C. 271(b). However, reserve officers with a
remaining military service obligation at the time of their removal from
the Ready Reserve may be transferred only to the Standby Reserve, Active
Status (section 1005 of title 10, U.S.C.).
(ii) Key position designation guidelines. In determining whether or
not a position should be designated as a key position, the following
questions should be considered by the Federal agency concerned:
(A) Can the position be filled in a reasonable time after
mobilization?
(B) Does the position require technical or managerial skills that
are possessed uniquely by the incumbent imployee?
(C) Is the position associated directly with defense mobilization?
(D) Does the position include a mobilization or relocation
assignment in an agency having emergency functions as designated by E.O.
11490?
(E) Is the position directly associated with industrial or manpower
mobilization as designated in E.O. 11490 and E.O. 10480?
(F) Are there other factors related to national defense, health, or
safety that would make the incumbent of the position unavailable for
mobilization?
(c) Removal Recommendations. All employers who determine that a
Ready Reservist is a key employee, in accordance with the guidelines
contained in this part, promptly should report that determination to the
cognizant reserve. The letter format shown in Appendix A should be used
for such recommendations and should be mailed to the cognizant reserve
personnel center listed in Appendix B. All the information shown in the
letter format should be provided so the reserve personnel center can
assess properly the matter and take appropriate action.
(d) Resolution of conflicting manpower needs. In accordance with 44
CFR part 333, the Federal Emergency Management Agency (FEMA) has the
authority to adjudicate, before mobilization, conflicts between the
mobilization manpower needs of the civilian sector and the military that
the Ready Reserve screening process has identified but has not resolved.
(e) Individual responsibilities of Ready Reservists. (1) Each Ready
Reservist who is not a member of the Selected Reserve is obligated to
notify the Secretary of the Military Department concerned of any change
of address, marital status, number of dependents, or civilian employment
and any other change that would prevent the member from meeting
mobilization standards prescribed by the Military Service concerned (10
U.S.C. 652).
(2) All Ready Reservists shall inform their employers of their
Reserve military obligation.
Sec. 44.6 Responsibilities.
(a) The Assistant Secretary of Defense (Reserve Affairs) (ASD(RA))
shall manage and control the overall Ready Reserve screening program in
accordance with section 271 of title 10, U.S.C., E.O. 11190, and House
Appropriations Committee Report 95-451.
(b) The Secretaries of the Military Departments shall:
(1) Screen, at least annually, all Ready Reservists under their
jurisdiction to ensure their immediate availability for active duty.
(2) Ensure that personnel records systems incorporate information on
any factors that limit the mobilization availability of a Ready
Reservist.
(3) Ensure that all Ready Reservists have a favorably completed
National Agency Check (NAC) or Entrance National Agency Check (ENTNAC)
on file.
(4) Ensure that Ready Reservists not on active duty are examined as
to physical fitness in accordance with DoD Directive 1205.9.
(5) Process members of the Ready Reserve who do not participate
satisfactorily in accordance with parts 100, 101, and 115 of this title.
(6) Transfer Ready Reservists identified as occupying key positions
to the Standby Reserve or the Retired Reserve or discharge them, as
appropriate.
(7) After making a removal determination in response to a petition
for such action, promptly transmit the results of that determination to
the Ready Reservist concerned and his or her employer.
[[Page 127]]
Sec. 44.7 Information requirements.
The ASD(RA) shall provide:
(a) Federal agencies with a listing of all Federal employees who are
also Ready Reservists to assist them in conducting employer screening
activities required in FPC-9. Responses from Federal agencies shall be
reported under Interagency Report Control Number 0912-DoD-AN. Standard
data elements shall be used in the report in accordance with DoD
Directive 5000.11.
(b) The House Appropriations Committee with an annual report on the
status of Ready Reservists employed by the Federal government.
Appendix A to Part 44--Letter Format to Cognizant Reserve Personnel
Center Requesting That Employee Be Removed From the Ready Reserve
(Date)
_______________________________________________________________________
(YYMMDD)
From: (employer-agency or company)
To: (appropriate reserve personnel center)
Subject: Request for Employee to Be Removed from the Ready Reserve
This is to certify that the employee identified below is vital to
the nation's defense efforts in (his or her) civilian job and can't be
mobilized with the Military Services in an emergency for the following
reasons:
Therefore, I request that (he or she) be removed from the Ready
Reserve and that you advise me accordingly when this action has been
completed.
The employee is:
Name of employee (last, first, M.I.)
Military grade and reserve component
Social security number
Current home address (street, city, State, and ZIP code)
Military unit to which assigned (location and unit number)
Title of employee's civilian position
Grade or salary level of civilian position
Date (YYMMDD) hired or assigned to position.
_______________________________________________________________________
Signature and title of agency or company official
Appendix B to Part 44--List of Reserve Personnel Centers To Which
Reserve Screening Determination and Removal Requests Shall Be Forwarded
Army National Guard and Army Reserve
Headquarters, Department of the Army, Attn: DAPE-PSM, Washington, DC
20310
Naval Reserve
Officers: Commander, Naval Military Personnel Center, Attention: NMPC-
911, Washington, DC 20370
Enlisted: Commanding Officer, Naval Reserve Personnel Center, New
Orleans, LA 70149
Marine Corps Reserve
Commandant (Code RES), Headquarters, U.S. Marine Corps, Washington, DC
20380
Air Force Reserve
Commander (ARPC/DP), Air Reserve Personnel Center, 7300 East First
Avenue, Denver, CO 80280
Air National Guard
Submit requests to the adjutant general of the appropriate State,
commonwealth, or territory (including the District of Columbia).
Coast Guard Reserve
Commandant (G-RA/55), U.S. Coast Guard Headquarters, 2100 Second Street
SW., Washington, DC 20593.
PART 45--CERTIFICATE OF RELEASE OR DISCHARGE FROM ACTIVE DUTY (DD FORM 214/5 SERIES)--Table of Contents
Sec.
45.1 Purpose.
45.2 Applicability and scope.
45.3 Policy and procedures.
45.4 Responsibilities.
Appendix A to Part 45--DD Form 214
Appendix B to Part 45--DD Form 214WS
Appendix C to Part 45--DD Form 215
Appendix D to Part 45--State Directors of Veterans Affairs
Authority: 10 U.S.C. 1168 and 972.
Source: 54 FR 7409, Feb. 21, 1989, unless otherwise noted.
[[Page 128]]
Sec. 45.1 Purpose.
(a) This document revises 32 CFR part 45.
(b) Prescribes procedures concerning the preparation and
distribution of revised DD Form 214 to comport with the requirements of
10 U.S.C. 1168, 972, and 32 CFR part 41 and the control and publication
of separation program designators (SPDs).
Sec. 45.2 Applicability and scope.
(a) The provisions of this part apply to the Office of the Secretary
of Defense, the Military Services, the Joint Staff, and the Defense
Agencies (hereafter referred to as ``DoD Components''). The term
``Military Services,'' as used here, refers to the Army, Navy, the Air
Force, the Marine Corps and, by agreement with the Department of
Transportation, to the Coast Guard.
(b) Its provisions include procedures on the preparation and
distribution of DD Forms 214, 214WS, 215 (Appendices A, B, and C) which
record and report the transfer or separation of military personnel from
a period of active duty. (NOTE: Computer-generated formats are
acceptable substitutes provided Assistant Secretary of Defense (Force
Management and Personnel) approval is obtained.) DD Forms 214 and 215
(or their substitutes) will provide:
(1) The Military Services with a source of information relating to
military personnel for administrative purposes, and for making
determinations of eligibility for enlistment or reenlistment.
(2) The Service member with a brief, clear-cut record of the
member's active service with the Armed Forces at the time of transfer,
release, or discharge, or when the member changes status or component
while on active duty.
(3) Appropriate governmental agencies with an authoritative source
of information which they require in the administration of Federal and
State laws applying to personnel who have been discharged, otherwise
released, or transferred to a Reserve component while on active duty.
(c) Its provisions include procedures on the control and
distribution of all lists of SPDs.
Sec. 45.3 Policy and procedures.
(a) Administrative issuance or reissuance of DD Forms 214 and 215.
(1) The DD Form 214 will normally be issued by the command from
which the member was separated. In those instances where a DD Form 214
was not issued, the Services concerned may establish procedures for
administrative issuance.
(2) The DD Form 214, once issued, will not be reissued except:
(i) When directed by appropriate appellate authority, Executive
Order, or by the Secretary concerned.
(ii) When it is determined by the Service concerned that the
original DD Form 214 cannot be properly corrected by issuance of a DD
Form 215 or if the correction would require issuance of more than two DD
Forms 215.
(iii) When two DD Forms 215 have been issued and an additional
correction is required.
(3) Whenever a DD Form 214 is administratively issued or reissued,
an appropriate entry stating that fact and the date of such action will
be made in Block 18, Remarks, of the DD Form 214 unless the appellate
authority, Executive Order, or Secretarial directive specifies
otherwise.
(b) The Military Services will ensure that every member (except as
limited in paragraph (b)(2) of this section and excluding those listed
in paragraph (c) of this section being separated from the Military
Services is given a completed DD Form 214 describing relevant data
regarding the member's service, and the circumstances of termination. DD
Form 214 may also be issued under other circumstances prescribed by the
Military Service concerned. A continuation sheet, if required, will be
bond paper, and will reference: The DD Form 214 being continued;
information from blocks 1 through 4; the appropriate block(s) being
continued; the member's signature, date; and the authorizing official's
signature. DD Forms 214 are not intended to have any legal effect on
termination of the member's service.
(1) Release or discharge from active service. (i) The original of DD
Form 214 showing separation from a period of active service with a
Military Service, including release from a status that is legally
determined to be void, will be
[[Page 129]]
physically delivered to the separate prior to departure from the
separation activity on the effective date of separation; or on the date
authorized travel time commences.
(A) Copy No. 4, containing the statutory or regulatory authority,
reentry code, SPD code, and narrative reason for separation also will be
physically delivered to the separatee prior to departure, if he/she so
requested by initiating Block 30, Member Requests Copy 4.
(B) Remaining copies of DD Form 214 will be distributed on the day
following the effective date of separation.
(ii) When separation is effected under emergency conditions which
preclude physical delivery, or when the recipient departs in advance of
normal departure time (e.g., on leave in conjunction with retirement; or
at home awaiting separation for disability), the original DD Form 214
will be mailed to the recipient on the effective date of separation.
(iii) If the separation activity is unable to complete all items on
the DD Form 214, the form will be prepared as completely as possible and
delivered to the separatee. The separatee will be advised that a DD Form
215 will be issued by the Military Service concerned when the missing
information becomes available; and that it will not be necessary for the
separatee to request a DD Form 215 for such information.
(iv) If an optical character recognition format is utilized by a
Military Service, the first carbon copy of the document will be
physically delivered or mailed to the separatee as prescribed in
paragraphs (b) (i) through (iii) of this section.
(2) Release from active duty for training, full-time training duty,
or active duty for special work. Personnel being separated from a period
of active duty for training, full-time training duty, or active duty for
special work will be furnished a DD Form 214 when they have served 90
days or more, or when required by the Secretary concerned for shorter
periods. Personnel shall be furnished a DD Form 214 upon separation for
cause or for physical disability regardless of the length of time served
on active duty.
(3) Continuing on active duty. Members who change their status or
component, as outlined below, while they are serving on active duty will
be provided a completed DD form 214 upon:
(i) Discharge for immediate enlistment or reenlistment (optional--at
the discretion of the Military Services). However, Military Services not
providing the DD Form 214 will furnish the member a DD Form 256,
``Honorable Discharge Certificate,'' and will issue instructions
requiring those military offices which maintain a member's records to
provide necessary Service data to the member for application to
appropriate civilian individuals, groups, and governmental agencies.
Such data will include Service component, entry data and grades.
(ii) Termination of enlisted status to accept an appointment to
warrant or commissioned officer grade.
(iii) Termination of a temporary appointment to accept a permanent
warrant or commission in the Regular or Reserve components of the Armed
Forces.
(iv) Termination of an officer appointment in one of the Military
Services to accept appointment in another Service.
(c) DD Form 214 need not be prepared for: (1) Personnel found
disqualified upon reporting for active duty and who do not enter
actively upon duties in accordance with orders.
(2) Personnel whose active duty, active duty for training, full-time
training duty or active duty for special work is terminated by death.
(3) Personnel being removed from the Temporary Disability Retired
List.
(4) Enlisted personnel receiving temporary appointments to warrant
or commissioned officer grades.
(5) Personnel whose temporary warrant or commissioned officer status
is terminated and who remain on active duty to complete an enlistment.
(6) Personnel who terminate their Reserve component status to
integrate into a Regular component.
(7) Personnel separated or discharged who have been furnished a
prior edition of this form, unless that form is in need of reissuance
for some other reason.
[[Page 130]]
(d) Preparation. The Military Departments will issue instructions
governing the preparation of DD Form 214, consistent with the following:
(1) DD Form 214 is an important record of service which must be
prepared accurately and completely. Any unavoidable corrections and
changes made in the unshaded areas of the form during preparation shall
be neat, legible and initialed on all copies by the authenticating
official. The recipient will be informed that making any unauthorized
change or alteration of the form will render it void.
(2) Since DD Form 214 is often used by civilian personnel,
abbreviations should be avoided.
(3) Copies of DD Form 214 transmitted to various governmental
agencies shall be legible, especially those provided to the Veterans
Administration (Department of Veterans Affairs, effective March 15,
1989, in accordance with section 18(a), Public Law 100-527 and the
Department of Labor).
(4) The authority for a member's transfer or discharge will be cited
by reference to the appropriate Military Service regulation,
instruction, or manual, followed by the appropriate separation program
designator on copies 2, 4, 7, and 8 only. A narrative description to
identify the reason for transfer or separation will not be used on copy
1.
(5) To assist the former Service member in employment placement and
job counseling, formal inservice training courses successfully completed
during the period covered by the form will be listed in Block 14,
Military Education; e.g., medical, dental, electronics, supply,
administration, personnel or heavy equipment operations. Training
courses for combat skills will not be listed. See 1978 Guide to the
Evaluation of Educational Experiences in the Armed Services for commonly
accepted course titles and abbreviations.
(6) For the purpose of reemployment rights (DoD Directive 1205.12)
\1\) all extensions of service, except those under 10 U.S.C. 972, are
considered to be at the request and for the convenience of the
Government. In these cases, Block 18 of DD Form 214 will be annotated to
indicate ``Extension of service was at the request and for the
convenience of the Government.''
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\1\ Copies may be obtained if needed, from the U.S. Naval
Publications and forms Center, Attn: Code 1062, 5801 Tabor Avenue,
Philadelphia, PA.
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(7) When one or more of the data items on the DD Form 214 are not
available and the document is issued to the separatee, the applicable
block(s) will be annotated ``See Remarks.'' In such cases, Block 18 will
contain the entry ``DD Form 215 will be issued to provide missing
information.'' When appropriate, Block 18 will also reflect the amount
of disability pay, and the inclusive dates of any nonpay/excess leave
days.
(8) The authorizing official (E-7, GS-7 or above) will sign the
original in ink ensuring that the signature is legible on all carbon
copies. If not, a second signature may be necessary on a subsequent
carbon copy. The authorized official shall be an E-7, GS-7, or higher
grade, except that the Service concerned may authorize chiefs of
installation separation activities (E-5, GS-5, or above) to serve in
this capacity if designated in writing by the responsible commander and/
or director (0-4, or above).
(9) The following are the only authorized entries in Block 24,
Character of Service, as appropriate: ``Honorable,'' ``Under Honorable
Conditions (General),'' ``Under Other Than Honorable Conditions,'' ``Bad
Conduct,'' ``Dishonorable,'' or ``Uncharacterized.'' When a discharge
has been upgraded, the DD Form 214 will be annotated on copies 2 through
8 in Block 18 to indicate the character of service has been upgraded;
the date the application for upgrade was made; and the effective date of
the corrective action.
(10) The date entered in Block 12.a. shall be the date of enlistment
for the earliest period of continuous active service for which a DD Form
214 was not previously issued. For members who have previously
reenlisted without being issued a DD Form 214, and who are being
separated with any discharge characterization except ``Honorable,'' the
following statement shall appear as the first entry in Block 18.,
``Remarks,'' on the DD Form 214: ``CONTINUOUS HONORABLE ACTIVE
[[Page 131]]
SERVICE FROM (applicable date) UNTIL (applicable date).'' The ``from''
date shall be the date of initial entry into active duty, or the first
day of service for which a DD Form 214 was not previously issued, as
applicable; the ``until'' date shall be the date before commencement of
the current enlistment.
(11) For Service members retiring from active duty enter in Block
18., ``Subject to active duty recall by Service Secretary.''
(12) For Service members being transferred to the Individual Ready
Reserve, enter in Block 18., ``Subject to active duty recall and/or
annual screening.''
(e) Distribution. The Military Services will prescribe procedures
governing the distribution of copies of the DD Forms 214 and 215,
consistent with their internal requirements, and the following:
(1) DD Form 214--(i) Copy No. 1 (original). To the member.
(ii) Copy No. 2. To be used as the Military Services' record copy.
(iii) Copy No. 3. To the Veterans Administration (Department of
Veterans Affairs, effective March 15, 1989, in accordance with section
18(a), Data Processing Center (214), 1614 E. Woodword Street, Austin,
Texas 78772. A reproduced copy will also be provided to the hospital
with the medical records if the individual is transferred to a VA
hospital. If the individual completes VA Form 21-5267, ``Veterans
Application for Compensation or Pension,'' include a copy of the DD Form
214 with medical records forwarded to the VA regional office having
jurisdiction over the member's permanent address. When an individual is
in Service and enlisting or reenlisting in an active duty status or
otherwise continuing on active duty in another status, copy No. 3 will
not be forwarded to the VA.
(iv) Copy No. 4. To the member, if the member so requested by having
initialed Block 30. If the member does not request this copy, it may be
retained in the master military personnel record, to be available in
case the member requests a copy later.
(v) Copy No. 5. To Louisiana UCX/UCFE, Claims Control Center,
Louisiana Department of Labor, P.O. Box 94246, Capitol Station, Baton
Rouge, Louisiana 70804-9246.
(vi) Copy No. 6. To the appropriate State Director of Veterans
Affairs (see enclosure 4), if the member so requested by having checked
``Yes'' in Block 20, ``Member Requests Copy Be Sent to Director of
Veterans Affairs.'' The member must specify the State. If the member
does not request the copy be mailed, it may be utilized as prescribed by
the Military Service concerned.
(vii) Copies No. 7 and 8. To be distributed in accordance with
regulations issued by the Military Service concerned.
(viii) Additional Copy Requirements. Discharged Alien Deserters.
Provide one reproduced copy of Copy No. 1 to the U.S. Department of
State, Visa Office--SCA/VO, State Annex No. 2, Washington, DC 20520, to
assist the Visa Office in precluding the unwarranted issuance of visas
to discharged and alien deserters in accordance with DoD Directive
1325.2 \2\. Place of birth will be entered in Block 18.
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\2\ See footnote 1 to Sec. 545.3(d)(6).
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(2) DD Form 214-ws. Utilized to facilitate the preparation of DD
Form 214. The document will be used and disposed of in accordance with
regulations issued by the Military Service concerned.
(3) DD Form 215. Utilized to correct errors in DD Form 214
discovered after the original has been delivered and/or distribution of
copies of the form has been made, and to furnish to separatee
information not available when the DD Form 214 was prepared. The
distribution of DD Form 215 will be identical to the distribution of DD
Form 214.
(4) Requests for Copies of DD Form 214 Subsequent to Separation.
Agencies maintaining a separatee's DD Form 214 will provide a copy only
upon written request by the member. Agencies will provide the member
with 1 copy with the Special Additional Information section, and 1 copy
with that information deleted. In the case of DD Form 214 issued prior
to July 1, 1979, agencies will provide the member with 1 copy containing
all items of information
[[Page 132]]
completed, and 1 copy with the following items deleted from the form:
Specific authority and narrative reason for separation, reenlistment
eligibility code, and separation program designator/number.
(i) In those cases where the member has supplied an authorization to
provide a copy of the DD Form 214 to another individual or group, the
copy furnished will not contain the Special Additional Information
section or, in the case of DD forms issued prior to July 1, 1979, those
items listed in paragraph (e)(4) of this section.
(ii) A copy will be provided to authorized personnel for official
purposes only.
(f) Procurement. Arrangements for procurement of DD Forms 214, 214-
ws, and 215 will be made by the Military Services.
(g) Modification of Forms. The modification of the content or format
of DD Forms 214, 214-ws, and 215 may not be accomplished without prior
authorization of the Assistant Secretary of Defense (Force Management
and Personnel) (ASD(FM&P)). Requests to add or delete information will
be coordinated with the other Military Services in writing, prior to
submission to the ASD(FM&P). If a Military Service uses computer
capability to generate forms, the items of information may be arranged,
the size of the information blocks may be increased or decreased, and
copies 7 and/or 8 may be deleted at the discretion of the Service.
Sec. 45.4 Responsibilities.
(a) The DD Forms 214 and 215 are a source of significant and
authoritative information used by civilian and governmental agencies to
validate veteran eligibility for benefits. As such, they are valuable
forms and, therefore, vulnerable to fraudulent use. Since they are
sensitive, the forms must be safeguarded at all times. They will be
transmitted, stored, and destroyed in a manner which will prevent
unauthorized use. The Military Services will issue instructions
consistent with the following:
(1) All DD Forms 214 will be surprinted with a reproducible screen
tint using appropriate security ink on Blocks 1, 3, 4.a, 4.b, 12, and 18
through 30. In addition Blocks 1, 3, 5, and 7 of the DD Form 215 will be
similarly surprinted to make alterations readily discernible. No
corrections will be permitted in the screened areas.
(2) All forms will be secured after duty hours.
(3) All obsolete forms will be destroyed.
(4) All forms to be discarded, including those which are blank or
partially completed, and reproduced copies of DD Form 214, will be
destroyed. No forms will be discarded intact.
(5) Blank forms given to personnel for educational or instructional
purposes, and forms maintained for such use, are to be clearly voided in
an unalterable manner.
(6) The commander or commanding officer of each unit or activity
authorized to issue DD Form 214 will appoint, in writing, a commissioned
officer, warrant officer, enlisted member (grade E-7 or above), or DoD
civilian (GS-7 or above) who will requisition, control, and issue blank
DD Forms 214 and 215. The Service concerned may authorize an E-5 or GS-5
to serve in this capacity.
(7) The Military Services will monitor the use of DD Form 214 and
review periodically its issuance to insure compliance with procedures
for safeguarding.
(b) The DD Form 214-ws will contain the word ``WORKSHEET'' on the
body of the form (see Appendix B). This DD Form 214-ws will be treated
in the same manner as the DD Form 214.
(c) The Military Services will issue appropriate instructions to
separation activities stressing the importance of the DD Forms 214 and
215 in obtaining veterans benefits, reemployment rights, and
unemployment insurance.
(d) Standard separation program designator (SPD) codes for officer
and enlisted personnel developed under the provisions of DoD Instruction
5000.12 \3\ are published in DoD 5000.12-M.
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\3\ See footnote 1 to Sec. 45.3(d)(6).
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(1) Requests to add, change, or delete an SPD code shall be
forwarded by the DoD Component concerned with appropriate justification
to the Assigned Responsible Agency accountable for evaluating,
recommending approval of, and
[[Page 133]]
maintaining such codes: Department of the Navy, Office of The Chief of
Naval Operations, (Attention: OP-161), room 1514, Arlington Annex,
Washington, DC 20350-2000.
(2) Requests to add, change, or delete an SPD code will be submitted
in accordance with section V., DoD Instruction 5000.12 with prior
written approval by the ASD (FM&P), or his/her designee.
(e) All lists of SPD codes, including supplemental lists, published
by the DoD Components will be stamped ``For Official Use Only'' and will
not be furnished to any agency or individual outside the Department of
Defense.
(1) Appropriate provisions of the Freedom of Information Act will be
used to deny the release of the lists to the public. An individual being
separated or discharged is entitled access only to his/her SPD code. It
is not intended that these codes stigmatize an individual in any manner.
They are intended for internal use by the Department of Defense in
collecting data to analyze statistical reporting trends that may, in
turn, influence changes in separation policy.
(2) Agencies or individuals who come into the possession of these
lists are cautioned on their use because a particular list may be
outdated and not reveal correctly the full circumstances relating to an
individual's separation or discharge.
[[Page 134]]
APPENDIX A TO PART 45--DD FORM 214
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[GRAPHIC] [TIFF OMITTED] TC23OC91.006
[54 FR 9985, Mar. 9, 1989]
[[Page 138]]
APPENDIX B TO PART 45--DD FORM 214WS
[GRAPHIC] [TIFF OMITTED] TC23OC91.007
[[Page 139]]
APPENDIX C TO PART 45--DD FORM 215
[GRAPHIC] [TIFF OMITTED] TC21OC91.050
[[Page 140]]
Appendix D to Part 45--State Directors of Veterans Affairs
Alabama
Director, Department of Veterans Affairs, P.O. Box 1509, Montgomery, AL
36192-3701.
Alaska
Director, Division of Veterans Affairs, Department of Military &
Veterans Affairs, 3601 C Street, suite 620, Anchorage, AK 99503.
American Samoa
Veterans Affairs Officer, Office of Veterans Affairs, American Samoa
Government, P.O. Box 2586, Pago Pago, AS 96799.
Arizona
Director of Veterans Affairs, Arizona Veterans Service Commission, 3225
N. Central Avenue, suite 910, Phoenix, AZ 85012.
Arkansas
Director, 1200 West 3rd, room 105, Box 1280, Little Rock, AR 72201.
California
Director, Department of Veterans Affairs, 1227 O Street, room 200A,
Sacramento, CA 95814.
Colorado
Director, Division of Veterans Affairs, Department of Social Services,
1575 Sherman Street, room 122, Denver, CO 80203.
Delaware
Chairman, Commission of Veterans Affairs, P.O. Box 1401, Dover, DE
19901.
District of Columbia
Chief, Office of Veterans Affairs, 941 North Capitol Street NE., room
1211 F, Washington, DC 20421.
Florida
Director, Division of Veterans Affairs, P.O. Box 1437, St. Petersburg,
FL 33731.
Georgia
Commissioner, Department of Veterans Service, Floyd Veterans Memorial
Bldg, suite E-970, Atlanta, GA 30334.
Guam
Office of Veterans Affairs, P.O. Box 3279, Agana, Guam 96910.
Hawaii
Director, Department of Social Services & Housing, Veterans Affairs
Section, 3949 Diamond Head Road, Honolulu, HI 96809-0339.
Idaho
Administrator, Division of Veterans Service, P.O. Box 6675, Boise, ID
83707.
Connecticut
Commandant, Veterans Home and Hospital, 287 West Street, Rocky Hill, CT
06067.
Indiana
Director, Department of Veterans Affairs, 707 State Office Building, 100
N. Senate Avenue, Indianapolis, IN 46204.
Iowa
Administrator, Veterans Affairs Division, 7700 NW. Beaver Drive, Camp
Dodge, Johnston, IA 50131-1902.
Kansas
Executive Director, Kansas Veterans Commission, Jayhawk Tower, suite
701, 700 SW. Jackson Street, Topeka, KS 66603-3150.
Kentucky
Director, Kentucky Center for Veterans Affairs, 600 Federal Place room
1365, Louisville, KY 40202.
Louisiana
Executive Director, Department of Veterans Affairs, P.O. Box 94095,
Capitol Station, Baton Rouge, LA 70804-4095.
Maine
Director, Bureau of Veterans Services, State Office Building Station
117, Augusta, ME 04333.
Maryland
Executive Director, Maryland Veterans Commission, Federal Bldg.--room
110, 31 Hopkins Plaza, Baltimore, MD 21201.
Illinois
Director, Department of Veterans Affairs, 208 West Cook Street,
Springfield, IL 62705.
Michigan
Director, Michigan Veterans Trust Fund, P.O. Box 30026, Ottawa Bldg, No.
Tower, 3rd Floor, Lansing, MI 48909.
Minnesota
Commissioner, Department of Veterans Affairs, Veterans Service Building,
2nd Floor, St. Paul, MN 55155.
Mississippi
President, State Veterans Affairs Board, 120 North State Street, War
Memorial Building, room B-100, Jackson, MS 39201.
[[Page 141]]
Missouri
Director, Division of Veterans Affairs, P.O. Drawer 147, Jefferson City,
MO 65101.
Montana
Administrator, Veterans Affairs Division, P.O. Box 5715, Helena, MT
59604.
Nebraska
Director, Department of Veterans Affairs, P.O. Box 95083, State Office
Building, Lincoln, NE 68509.
Nevada
Commissioner, Commission for Veterans Affairs, 1201 Terminal Way, room
108, Reno, NV 89520.
Massachusetts
Commissioner, Department of Veterans Services, 100 Cambridge Street--
room 1002, Boston, MA 02202.
New Jersey
Director, Division of Veterans Programs & Special Services, 143 E. State
Street, room 505, Trenton, NJ 08608.
New Mexico
Director, Veterans Service Commission, P.O. Box 2324, Santa Fe, NM
87503.
New York
Director, Division of Veterans Affairs, State Office Building 6A-19,
Veterans Highway, Hauppauge, NY 11788.
North Carolina
Asst Secretary for Veterans Affairs, Division of Veterans Affairs, 227
E. Edenton Street, Raleigh, NC 27601.
North Dakota
Commissioner, Department of Veterans Affairs, 15 North Broadway, suite
613, Fargo, ND 58102.
Ohio
Director, Division of Soldiers Claims & Veterans Affairs, State House
Annex, room 11, Columbus, OH 43215.
Oklahoma
Director, Department of Veterans Affairs, P.O. Box 53067, Oklahoma City,
OK 73152.
New Hampshire
Director, State Veterans Council, 359 Lincoln Street, Manchester, NH
03103.
Oregon
Director, Department of Veterans Affairs, Oregon Veterans Building, 700
Summer Street NE., suite 150, Salem, OR 97310-1270.
Pennsylvania
Director, Department of Military Affairs, Bureau for Veterans Affairs,
Fort Indiantown Gap, Bldg 5-0-47, Annville, PA 17003-5002.
Puerto Rico
Director, Bureau of Veterans Affairs & Human Resources, Department of
Labor, 505 Munoz Rivera Avenue, Hato Rey, PR 00918.
Rhode Island
Chief, Veterans Affairs Office, Metacom Avenue, Bristol, RI 02809.
South Carolina
Director, Department of Veterans Affairs, Brown State Office Building,
1205 Pendleton Street, Columbia, SC 29201.
South Dakota
Director, Division of Veterans Affairs, 500 East Capitol Avenue, State
Capitol Building, Pierre, SD 57501-5083.
Tennessee
Commissioner, Department of Veterans Affairs, 215 8th Avenue, North,
Nashville, TN 37203.
Texas
Executive Director, Veterans Affairs Commission of Texas, Box 12277,
Capitol Station, Austin, TX 78711.
Utah
No DVA.
Vermont
Director, Veterans Affairs Office, State Office Building, Montpelier, VT
05602.
Virginia
Director, Division of War Veterans Claims, 210 Franklin Road, SW., room
1002, P.O. Box 809, Roanoke, VA 24004.
Virgin Islands
Director, Division of Veterans Affairs, P.O. Box 890, Christiansted, St.
Croix, VI 00820.
Washington
Director, Department of Veterans Affairs, P.O. Box 9778, Mail Stop PM-
41, Olympia, WA 95804.
[[Page 142]]
West Virginia
Director, Department of Veterans Affairs, 605 Atlas Building,
Charleston, WV 25301-9778.
Wisconsin
Secretary, Department of Veterans Affairs, P.O. Box 7843, 77 North
Dickinson Street, Madison, WI 53707.
PART 46--FEDERAL VOTING ASSISTANCE PROGRAM--Table of Contents
Sec.
46.1 Reissuance and purpose.
46.2 Applicability and scope.
46.3 Definitions.
46.4 Policy.
46.5 Organization.
46.6 Responsibilities.
Authority: Pub. L. 296, 84th Congress and 10 U.S.C. 133.
Source: 45 FR 84766, Dec. 23, 1980, unless otherwise noted.
Sec. 46.1 Reissuance and purpose.
This rule reissues this part dated September 25, 1963, and
implements the Provisions of Executive Order 10646, November 23, 1955,
wherein the Secretary of Defense was designated the Federal Coordinator
for assigning responsibility and prescribing procedures to implement the
absentee voting program authorized by the Federal Voting Assistance Act
of 1955 (FVAA) and the Overseas Citizens Voting Rights Act of 1975
(OCVRA). This part assigns responsibility and delegates authority to the
Deputy Assistant Secretary of Defense (Administration) to carry out this
program on behalf of the Secretary of Defense.
Sec. 46.2 Applicability and scope.
(a) The provisions of this part apply to the Office of the Secretary
of Defense, the Military Departments, the Organization of the Joint
Chiefs of Staff, and the Defense Agencies (hereafter referred to as the
``DoD Components'').
(b) Other executive departments and agencies shall provide
assistance to this program, upon request, as provided by sections
1973cc-11 and 1973cc-13 of FVAA and 1973dd-2b of OCVRA. (Participating
departments and agencies shall adopt regulations and procedures that
conform to this part to the extent practicable, consistent with their
organization missions.)
Sec. 46.3 Definitions.
For the purpose of administering the Federal Voting Assistance
Program, the following definitions apply:
(a) Federal Election. Any general, special, or primary election held
solely or in part for the purpose of selecting, nominating, or electing
any candidate for the office of President, Vice President, Presidential
Elector, Member of the United States Senate, Member of the United States
House of Representatives, Delegate from the District of Columbia,
Resident Commissioner from the Commonwealth of Puerto Rico, Delegate
from Guam, or Delegate from the Virgin Islands.
(b) State election. Any general, special, or primary election held
solely or in part for the purpose of selecting, nominating, or electing
any candidate for any State office, such as, governor, lieutenant
governor, or attorney general.
(c) Local election. An election which is less than a State election,
such as a municipal, county, or township election.
(d) Military Services. Refers to the Army, Navy, Air Force, Marine
Corps, and the Coast Guard.
(e) Uniformed Services. Refers to the Army, Navy, Air Force, Marine
Corps, Coast Guard, the Commissioned Corps of the U.S. Public Health
Service, and the Commissioned Corps of the National Oceanic and
Atmospheric Administration.
(f) Voter. A person in any of the following categories who is
authorized by law and who is registered to vote in any primary, special,
or general election.
(1) Members of the Uniformed Services or Merchant Marine in active
service and their spouses and dependents, wherever stationed.
(2) U.S. citizens temporarily residing outside the United States.
(3) Other U.S. citizens residing outside the United States not
covered by any other category mentioned above and whose intent to return
to their State of last residence may be uncertain.
[[Page 143]]
(g) Voting residence. The legal residence or domicile in which the
voter is registered to vote.
Sec. 46.4 Policy.
(a) To implement and administer the FVAA and OCVRA, as amended/DoD
Components and other participating Federal departments and agencies
concerned with the voting program shall encourage their eligible voters
to participate in the voting process of the Federal, State, and local
governments.
(b) The voting program shall be administered in such a manner as to
ensure that voters are provided all necessary voting information,
including voting age requirements, election dates, officers to be
elected, constitutional amendments, other ballot proposals, and absentee
registration and voting procedures.
(c) When practicable and compatible with operational conditions,
every voter shall be afforded an opportunity to register and vote in any
election for which the State of his or her voting residence has
established enabling laws and procedures.
(d) Voting in person or by absentee process shall be offered when
local conditions allow voters to prepare, send, and receive personal
material. However, a determination by those administering the voting
program that voting assistance cannot be rendered because it is
impractical and incompatible with military or Federal operations shall
be conclusive, if this determination is made in good faith. (See section
1973cc-24, FVAA.)
(e) Absentee voting procedures shall be prescribed in such a manner
as to safeguard the integrity and secrecy of the ballot. In addition,
all necessary steps shall be taken to prevent fraud and to protect
voters against coercion of any sort.
(1) No member of the Uniformed Services shall attempt to influence
any other member to vote or not to vote for any particular candidate, or
to require any member to march to any polling place or place of voting.
(See section 1973cc-25 of FVAA.)
(2) However, nothing in Sec. 46.4(e), above, shall be considered to
prohibit free discussion regarding political issues or candidates for
public office. (See enclosure 2 of DoD Directive 1344.10,\1\ Political
Activities by Members of the Armed Forces, September 23, 1969.)
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\1\ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, PA
19120. Attention: Code 301.
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(3) No person in the Uniformed Services of the United States shall
poll any other member to attempt to influence his or her vote before or
after he or she votes. (See enclosure 2 of DoD Directive 1344.10.)
(4) The provision in Sec. 46.4(c) above, shall not preclude making
surveys for statistical compilations to measure the extent of voting
participation of persons covered by the FVAA and OCVRA, as amended.
Sec. 46.5 Organization.
In accordance with E.O. 10646, authority and responsibility are
hereby delegated to the Deputy Assistant Secretary of Defense
(Administration) to carry out this program on behalf of the presidential
designee, the Secretary of Defense. The Deputy Assistant Secretary of
Defense (Administration) is authorized to act for the presidential
designee and to coordinate and facilitate such actions as may be
required to discharge Federal responsibilities assigned in E.O. 10646,
FVAA, and OCVRA.
Sec. 46.6 Responsibilities.
(a) The Deputy Assistant Secretary of Defense (Administration)
shall: (1) Manage, coordinate, or perform the tasks assigned to the
presidential designee in E.O. 10646, the FVAA, and OCVRA.
(2) Establish and maintain liaison with officials of the State
legislatures, and with State and local election law officials.
(3) Be the sole DoD representative for obtaining from each State
current voting information and disseminating it to other executive
departments, agencies, and DoD Components. In this regard, DoD
Components and participating departments and agencies may not contact
State voting officials about voting matters.
(4) Encourage and assist States and other U.S. jurisdictions to
adopt the
[[Page 144]]
mandatory and recommendatory provisions of the FVAA and OCVRA, and
advise them on the applicability of Federal laws and regulations to
their individual electoral systems.
(5) Establish a DoD Voting Assistance Program to cover all eligible
voters of the Department of Defense (military and civilian) and their
eligible spouses and dependents, to assist these personnel to vote
either in person or by absentee process.
(6) Publicize the right of citizens to register and vote absentee
under the FVAA and OCVRA.
(7) Review and coordinate the informational and educational effort
directed toward all persons covered by the FVAA and OCVRA.
(8) Provide an ombudsman-type service for all persons covered by the
FVAA and OCVRA and for State and local election officials.
(9) Designate a week or day in September of each even-numbered year
for the purpose of encouraging military personnel and their dependents
to exercise their right to vote.
(10) Conduct a survey of U.S. citizens (military and civilian)
covered by the FVAA and OCVRA to gather necessary statistical
information to prepare the biennial report to the President and Congress
required by FVAA.
(b) Heads of DoD Components shall: (1) Facilitate the dissemination
of voting information and provide assistance to their own personnel,
including the services of an official authorized to administer oaths.
(i) In overseas areas, arrangements shall be made to provide
absentee voting information and assistance to voters described in
Sec. 46.5(f)(1) and (2).
(ii) To the extent practical, information and assistance shall also
be made available to voters described in Sec. 46.5(f)(3).
(2) Ensure command support at all levels for the Voting Assistance
Program.
(3) Designate a senior officer of general or flag rank in each
Military Service as the Senior Military Voting Representative to manage
Military Service voting programs.
(4) Designate voting officers or counselors at every level of
command who are trained to carry out their assigned responsibilities.
Voting officers or counselers should be readily available and equipped
to give personal assistance to voters for Federal, State and local
elections. In addition, any person who appears to need assistance in
reading or understanding any English language material relating to
voting or voter registration should receive immediate assistance in the
appropriate language.
(5) Ensure that voting information and related materials, such as
the Voting Assistance Guide, and the Federal Post Card Application form
(FPCA--SF 76 Current Edition), are obtained and disseminated in a timely
manner. FPCAs are to be purchased in sufficient quantities to furnish
registration and ballot request support for all primary and general
elections.
(6) Ensure the in-hand delivery of FPCAs by August 15 to Uniformed
Services personnel, their spouses and eligible dependents, and civilian
employees of the Uniformed Services, their spouses and eligible
dependents, who are serving outside the territorial limits of the United
States.
(7) Ensure in-hand delivery of FPCAs by September 15 to Uniformed
Services personnel and their spouses and eligible dependents within the
United States, in accordance with FVAA.
(8) Require Inspectors General to include the Federal Voting Program
as an item for specific review at every level of command to ensure that
persons are informed and provided an opportunity to exercise their right
to vote, and that the command has adequately provided for voting
officers or counselers.
(9) Provide for continuing evaluation of command voting programs.
(10) Establish and publicize the availability of a special telephone
service, the ``Voting Action Line,'' to link unit voting officers or
counselors with their respective Uniformed Service Senior Military
Voting Representative or Voting Action Officer at the departmental
level. Emphasis shall be placed on providing rapid, accurate responses
and solutions to voting-oriented problems.
(11) During Federal election years, ensure that all Armed Forces
personnel receive at least one briefing, training
[[Page 145]]
period, or information period of instruction devoted to absentee
registration and voting. Emphasis should be placed on the availability
of voting information, supporting materials, personal assistance, and
the importance of why every vote counts.
(12) Ensure that telephone operators at every military installation
are provided with the names and office telephone numbers of unit or
installation voting officers or counselors.
(13) File an After-Action Report in the form specified by the
Director, Federal Voting Assistance Program.
(14) Conduct a Ballot Transmission Survey in the manner specified by
the Director, Federal Voting Assistance Program.
PART 47--ACTIVE DUTY SERVICE FOR CIVILIAN OR CONTRACTUAL GROUPS--Table of Contents
Sec.
47.1 Purpose.
47.2 Applicability and scope.
47.3 Definitions.
47.4 Policy.
47.5 Responsibilities.
47.6 Procedures.
Appendix A to Part 47--Instructions for Submitting Group Applications
Under Public Law 95-202
Appendix B to Part 47--The DoD Civilian/Military Service Review Board
and the Advisory Panel
Authority: 38 U.S.C. 106 note.
Source: 54 FR 39993, Sept. 29, 1989, unless otherwise noted.
Sec. 47.1 Purpose.
This document:
(a) Revises 32 CFR part 47 and implements Public Law 95-202.
(b) Directs the Secretary of the Air Force to determine if an
established group of civilian employees or contract workers provided
service to the U.S. Armed Forces in a manner considered active military
service for Department of Veterans Affairs (VA) benefits.
(c) Establishes the DoD Civilian/Military Service Review Board and
the Advisory Panel.
(d) Establishes policy, assigns responsibilities, prescribes
application procedures for groups and individuals, and clarifies the
factors used to determine active duty (AD) service.
Sec. 47.2 Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the
Military Departments, and by agreement with the Department of
Transportation (DoT), the U.S. Coast Guard.
(b) Applies to any group application considered under Public Law 95-
202 after September 11, 1989 and to any individual who applies for
discharge documents as a member of a group recognized by the Secretary
of the Air Force.
Sec. 47.3 Definitions.
Armed conflict. A prolonged period of sustained combat involving
members of the U.S. Armed Forces against a foreign belligerent. The term
connotes more than a military engagement of limited duration or for
limited objectives, and involves a significant use of military and
civilian forces.
(a) Examples of armed conflict are World Wars I and II, and the
Korean and Vietnam Conflicts.
(b) Examples of military actions that are not armed conflicts are as
follows:
(1) The incursion into Lebanon in 1958, and the peacekeeping force
there in 1983 and 1984.
(2) The incursions into the Dominican Republic in 1965 and into
Libya in 1986.
(3) The intervention into Grenada in 1983.
Civilian or contractual group. An organization similarly situated to
the Women's Air Forces Service Pilots (a group of Federal civilian
employees attached to the U.S. Army Air Force in World War II). Those
organization members rendered service to the U.S. Armed Forces during a
period of armed conflict in a capacity that was then considered civilian
employment with the Armed Forces, or the result of a contract with the
U.S. Government, to provide direct support to the Armed Forces.
Recognized group. A group whose service the Secretary of the Air
Force administratively has determined to have been ``active duty for the
purposes of
[[Page 146]]
all laws administered by the Department of Veterans Affairs''; i.e., VA
benefits under 38 U.S.C. 101.
Similarly situated. A civilian or contractual group is similarly
situated to the Women's Air Forces Service Pilots when it existed as an
identifiable group at the time the service was being rendered to the
U.S. Armed Forces during a period of armed conflict. Persons who
individually provided support through civilian employment or contract,
but who were not members of an identifiable group at the time the
services were rendered, are not ``similarly situated'' to the Women's
Air Forces Service Pilots of World War II.
Sec. 47.4 Policy.
(a) Eligibility for consideration. To be eligible to apply for
consideration under Public Law 95-202 and this part, a group must:
(1) Have been similarly situated to the Women's Air Forces Service
Pilots of World War II.
(2) Have rendered service to the United States in what was
considered civilian employment with the U.S. Armed Forces either through
formal Civil Service hiring or less formal hiring if the engagement was
created under the exigencies of war, or as the result of a contract with
the U.S. Government to provide direct support to the U.S. Armed Forces.
(3) Have rendered that service during a period of armed conflict.
(4) Consist of living persons to whom VA benefits can accrue.
(5) Not have already received benefits from the Federal Government
for the service in question.
(b) A determination of AD service that is considered to be
equivalent to active military service is made on the extent to which the
group was under the control of the U.S. Armed Forces in support of a
military operation or mission during an armed conflict. The extent of
control exerted over the group must be similar to that exerted over
military personnel and shall be determined by, but not necessarily
limited to, the following:
(1) Incidents favoring equivalency--(i) Uniqueness of service.
Civilian service (civilian employment or contractual service) is a vital
element of the war-fighting capability of the Armed Forces. Civilian
service during a period of armed conflict is not necessarily equivalent
to active military service, even when performed in a combat zone.
Service must be beyond that generally performed by civilian employees
and must be occasioned by unique circumstances. For civilian service to
be recognized under this part, the following factors must be present:
(A) The group was created or organized by U.S. Government
authorities to fill a wartime need or, if a group was not created
specifically for a wartime need, but existed before that time, then its
wartime mission was of a nature to substantially alter the
organization's prewar character.
(B) If the application is based on service in a combat zone, the
mission of the group in a combat zone must have been substantially
different from the mission of similar groups not in a combat zone.
(ii) Organizational authority over the group. The concept of
military control is reinforced if the military command authority
determines such things as the structure of the civilian organization,
the location of the group, the mission and activities of the group, and
the staffing requirements to include the length of employment and pay
grades of the members of the group.
(iii) Integration into the military organization. Integrated
civilian groups are subject to the regulations, standards, and control
of the military command authority.
(A) Examples include the following:
(1) Exchanging military courtesies.
(2) Wearing military clothing, insignia, and devices.
(3) Assimilating the group into the military organizational
structure.
(4) Emoluments associated with military personnel; i.e., the use of
commissaries and exchanges, and membership in military clubs.
(B) A group fully integrated into the military would give the
impression that the members of the group were military, except that they
were paid and accounted for as civilians.
(C) Integration into the military may lead to an expectation by
members of the group that the service of the group
[[Page 147]]
imminently would be recognized as active military service. Such
integration acts in favor of recognition.
(iv) Subjection to military discipline. During past armed conflicts,
U.S. military commanders sometimes restricted the rights or liberties of
civilian members as if they were military members.
(A) Examples include the following:
(1) Placing members under a curfew.
(2) Requiring members to work extended hours or unusual shifts.
(3) Changing duty assignments and responsibilities.
(4) Restricting proximity travel to and from the military
installation.
(5) Imposing dress and grooming standards.
(B) Consequences for noncompliance might include a loss of some
privilege, dismissal from the group, or trial under military law. Such
military discipline acts in favor of recognition.
(v) Subjection to military justice. Military members are subject to
the military criminal justice system. During times of war, ``persons
serving with or accompanying an Armed Force in the field'' are subject
to the military criminal justice code. Those who were serving with the
U.S. Armed Forces may have been treated as if they were military and
subjected to court-martial jurisdiction to maintain discipline. Such
treatment is a factor in favor of recognition.
(vi) Prohibition against members of the group joining the armed
forces. Some organizations may have been formed to serve in a military
capacity to overcome the operation of existing laws or treaty or because
of a governmentally established policy to retain individuals in the
group as part of a civilian force. These factors act in favor of
recognition.
(vii) Receipt of military training and/or achievement of military
capability. If a group employed skills or resources that were enhanced
as the result of military training or equipment designed or issued for
that purpose, this acts toward recognition.
(2) Incidents not favoring equivalency--(i) Submission to the U.S.
Armed Forces for protection. A group that seeks protection and
assistance from the U.S. Armed Forces and submits to military control
for its own well-being is not deemed to have provided service to the
Armed Forces equivalent to AD military service, even though the group
may have been as follows:
(A) Armed by the U.S. military for defensive purposes.
(B) Routed by the U.S. military to avoid the enemy.
(C) Instructed by the U.S. military for the defense of the group
when attacked by, or in danger of attack by, the enemy.
(D) Otherwise submitted themselves to the U.S. military for
sustenance and protection.
(ii) Permitted to resign. The ability of members to resign at will
and without penalty acts against military control. Penalty may be direct
and severe, such as confinement, or indirect and moderate, such as
difficult and costly transportation from an overseas location.
(iii) Prior recognition of group service. Recognition of a group's
service by agencies of State or local government does not provide
support in favor of recognition under this part.
(3) Status of group in international law. In addition to other
factors, consideration will be given to whether members of the group
were regarded and treated as civilians, or assimilated to the Armed
Forces as reflected in treaties, customary international law, judicial
decisions, and U.S. diplomatic practice.
(c) Reconsideration. Applications by groups previously denied a
favorable determination by the Secretary of the Air Force shall be
reconsidered under this part if the group submits evidence that is new,
relevant, and substantive. Any request that the DoD Civilian/Military
Service Review Board established hereunder (see Sec. 47.5(b)) determines
does not provide new, relevant, and substantive evidence shall be
returned to the applicant with the reasons for nonacceptance.
(d) Counsel Representation. Neither the Department of Defense nor
Department of Transportation shall provide representation by counsel or
defray the cost of such representation with respect to any matter
covered by this part.
[[Page 148]]
Sec. 47.5 Responsibilities.
(a) The Assistant Secretary of Defense (Force Management and
Personnel) (ASD(FM&P)) shall:
(1) Appoint a primary and an alternate member in the grade of O-6 or
GM-15 or higher to the DoD Civilian/Military Service Review Board.
(2) Exercise oversight over the Military Departments and the U.S.
Coast Guard for compliance with this Directive and in the issuance of
discharge documents and casualty reports to members of recognized
groups.
(b) The Secretary of the Air Force, as the designated Executive
Agent of the Secretary of Defense for the administration of Public Law
95-202 shall:
(1) Establish the DoD Civilian/Military Service Review Board and the
Advisory Panel.
(2) Appoint as board president a member or employee of the Air Force
in grade O-6 or GM-15 or higher.
(3) Request the Secretary of Transportation to appoint an additional
voting member from the U.S. Coast Guard when the board is considering
the application of a group claiming active Coast Guard service.
(4) Provide a recorder and an assistant to maintain the records of
the board and administer the functions of this part.
(5) Provide nonvoting legal advisors and historians.
(6) Publish notices of group applications and other Public Law 95-
202 announcements in the Federal Register.
(7) Consider the rationale and recommendations of the DoD Civilian/
Military Service Review Board.
(8) Determine whether the service rendered by a civilian or
contractual group shall be considered AD service to the U.S. Armed
Forces for all laws administered by the VA. The decision of the
Secretary of the Air Force is final. There is no appeal.
(9) Notify the following persons in writing when a group
determination is made (if the Secretary of the Air Force disagrees with
the rationale or recommendations of the board, the Secretary of the Air
Force shall provide the decision and reasons for it in writing to these
persons):
(i) The applicant(s) for the group.
(ii) The Secretary of the Department of Veterans Affairs.
(iii) The Secretary of the Army.
(iv) The Secretary of the Navy.
(v) The ASD (FM&P).
(vi) The Secretary of Transportation (when a group claims active
Coast Guard service).
(c) The Secretary of the Army, Secretary of the Navy, Secretary of
the Air Force, and Commandant of the Coast Guard shall:
(1) Appoint to the board a primary and an alternate member in the
grades of O-6 or GM-15 or higher from their respective Military
Services.
(2) Process applications for discharge documents from individuals
claiming membership in a recognized group in accordance with applicable
laws, Directives, the Secretary of the Air Force rationale and
instrument effecting a group determination, and any other instructions
of the board.
(3) Determine whether the applicant was a member of a recognized
group after considering the individual's evidence of membership and
verifying the service against available Government records.
(4) Issue a DD Form 214, ``Certificate of Release or Discharge from
Active Duty,'' and a DD Form 256, ``Honorable Discharge Certificate,''
or a DD Form 257, ``General Discharge Certificate,'' as appropriate,
consistent with DoD Instruction 1336.1 \1\ and DoD Directive 1332.14 \2\
and the implementing documents of the appropriate statutes of the
Military Department concerned or the DoT and the instructions of the DoD
Civilian/Military Service Review Board.
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\1\ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, Attn: 1053, 5801 Tabor Avenue,
Philadelphia, PA 19120.
\2\ See footnote 1 to Sec. 47.5(c)(4).
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(5) Issue a DD Form 1300, ``Report of Casualty,'' in accordance with
DoD Instruction 1300.9 \3\ if a verified member was killed during the
period of AD service.
---------------------------------------------------------------------------
\3\ See footnote 1 to Sec. 47.5(c)(4).
---------------------------------------------------------------------------
(6) Ensure that each DD Form 214, ``Certificate of Release or
Discharge from Active Duty,'' and each DD Form 1300, ``Report of
Casualty,'' have the
[[Page 149]]
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following statement entered in the ``Remarks'' section:
This document, issued under Public Law 95-202 (38 U.S.C. 106 Note),
administratively establishes active duty service for the purposes of
Department of Veterans Affairs benefits.
(7) Determine the equivalent military pay grade, when required by
the Department of Veterans Affairs. For VA benefits, a pay grade is
needed only in cases when an individual was killed or received service-
connected injuries or disease during the recognized period of AD
service. A DD Form 1300 shall be issued with the equivalent pay grade
annotated for a member who died during the recognized period of service.
A DD Form 214 shall not include pay grade, unless the Department of
Veterans Affairs requests that a grade determination be given.
Determinations of equivalent grade shall be based on the following
criteria in order of importance:
(i) Officially recognized organizational grade or equivalent rank.
(ii) The corresponding rank for civilian pay grade.
(iii) If neither of the criteria in paragraphs (c)(7) (i) and (ii)
of this section, and applies, only one of three grades may be issued;
i.e., O-1, E-4, or E-1. Selection depends on the nature of the job
performed, the level of supervision exercised, and the military
privileges to which the individual was entitled.
(8) Adjudicate applicant challenges to the period of AD service,
characterization of service, or other administrative aspects of the
discharge documents issued.
Sec. 47.6 Procedures.
(a) Submitting group applications. Applications on behalf of a
civilian or contractual group shall be submitted to the Secretary of the
Air Force using the instructions in appendix A to this part.
(b) Processing group applications. (1) When received, the recorder
shall review the application for sufficiency and either return it for
more information or accept it for consideration and announce acceptance
in the Federal Register.
(2) The recorder shall send the application to the appropriate
advisory panel for historical review and analysis.
(3) When received, the recorder shall send the advisory panel's
report to the applicant for comment. The applicant's comments shall be
referred to the advisory panel if significant disagreement requires
resolution. Additional comments from the historians also shall be
referred to the applicant for comment.
(4) The DoD Civilian/Military Service Board shall consider the group
application, as established, in paragraph (a) and paragraphs (b) (1)
through (3) of this section.
(5) After the Secretary of the Air Force makes a decision, the
recorder shall notify the applicant of the decision and announce it in
the ``Federal Register.''
(c) Submitting individual applications. When a group is recognized,
individual members may apply to the appropriate Military Department or
to the Coast Guard for discharge documents. Submit applications on DD
Form 2168, ``Application for Discharge of Member or Survivor of Member
of Group Certified to Have Performed Active Duty with the Armed Forces
of the United States.'' An application on behalf of a deceased or
incompetent member submitted by the next of kin must be accompanied by
proof of death or incompetence.
Appendix A to Part 47--Instructions for Submitting Group Applications
Under Public Law 95-202
A. In Submitting a Group Application: 1. Define the group to include
the time period that your group provided service to the U.S. Armed
Forces.
2. Show the relationship that the group had with the U.S. Armed
Forces, the manner in which members of the group were employed, and the
services the members of the group provided to the Armed Forces.
3. Address each of the factors in Sec. 47.4.
4. Substantiate and document the application. (The burden of proof
rests with the applicant.)
B. Send Completed Group Applications To: Secretary of the Air Force
(SAF/MRC), DoD Civilian/Military Service Review Board, Washington, DC
20330-1000.
[[Page 150]]
Appendix B to Part 47--The DoD Civilian/Military Service Review Board
and the Advisory Panel
A. Organization and Management
1. The board shall consist of a president selected from the
Department of the Air Force and one representative each from the OSD,
the Department of the Army, the Department of the Navy, the Department
of the Air Force, and the U.S. Coast Guard (when the group claims active
Coast Guard service). Each member shall have one vote except that the
president shall vote only to break a tie. The board's decision is
determined by majority vote. The president and two voting members shall
constitute a quorum.
2. The advisory panel shall act as a nonvoting adjunct to the board.
It shall consist of historians selected by the Secretaries of the
Military Departments and, if required, by the Secretary of
Transportation. The respective Military Departments and the DOT shall
ensure that the advisory panel is provided with administrative and legal
support.
B. Functions
1. The board shall meet in executive session at the call of the
president, and shall limit its reviews to the following:
a. Written submissions by an applicant on behalf of a civilian or
contractual group. Presentations to the board are not allowed.
b. Written report(s) prepared by the advisory panel.
c. Any other relevant written information available.
d. Factors established in this part for determining AD service.
2. The board shall return to the applicant any application that does
not meet the eligibility criteria established in Sec. 47.4(a). The board
only needs to state the reasons why the group is ineligible for
consideration under this part.
3. If the board determines that an application is eligible for
consideration under Sec. 47.4(a), the board shall provide, to the
Secretary of the Air Force, a recommendation on the AD service
determination for the group and the rationale for that recommendation
that shall include, but not be limited to, a discussion of the factors
listed in Sec. 47.4.
a. No factors shall be established that require automatic
recognition. Neither the board nor the Secretary of the Air Force shall
be bound by any method in reaching a decision.
b. Prior group determinations made under Public Law 95-202 do not
bind the board or the Secretary of the Air Force. The board and the
Secretary of the Air Force fully and impartially shall consider each
group on its own merit in relation to the factors listed in section D.
of this Directive.
PART 48--RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN--Table of Contents
Subpart A--General Information
Sec.
48.101 Purpose.
48.102 Definitions.
Subpart B--Election of Options
48.201 Options.
48.202 Limitation on number of annuities.
48.203 Election of options.
48.204 Change or revocation of election.
48.205 Election form.
48.206 Information regarding elections.
Subpart C--Designation of Beneficiaries
48.301 Designation.
48.302 Substantiating evidence regarding dependency and age of
dependents.
48.303 Condition affecting entitlement of widow or widower.
Subpart D--Reduction of Retired Pay
48.401 Computation of reduction.
48.402 Effective date of reduction.
48.403 Payment of nonwithheld reduction of retired pay.
48.404 Ages to be used.
48.405 Action upon removal from temporary disability retired list.
48.406 Withdrawal and reduction of percentage or amount of
participation.
Subpart E--Annuity
48.501 General information.
48.502 Effective date of annuity.
48.503 Claims for annuity payments.
48.504 Payment to children.
48.505 Establishing eligibility of annuitants.
48.506 Recovery of erroneous annuity payments.
48.507 Restriction on participation.
48.508 Certain 100 percent disability retirements.
Subpart F--Miscellaneous
48.601 Annual report.
48.602 Organization.
48.603 Correction of administrative deficiencies.
48.604 Transition and protective clauses.
Authority: Sec. 1444, 70A Stat. 111; 10 U.S.C. 1444.
Source: 34 FR 12092, July 18, 1969, unless otherwise noted.
[[Page 151]]
Subpart A--General Information
Sec. 48.101 Purpose.
The purpose of the Retired Serviceman's Family Protection Plan is to
permit each member of the uniformed services to elect to receive a
reduced amount of any retired pay which may be awarded him as a result
of service in his uniformed service in order to provide an annuity
payable after his death (while entitled to retired pay) to his widow,
child, or children, subject to certain limitations specified in the law
and elaborated in the regulations in this part.
Sec. 48.102 Definitions.
(a) The terms Plan or RSFPP as hereinafter used means the Retired
Serviceman's Family Protection Plan (formerly called the Uniformed
Services Contingency Option Act).
(b) The term uniformed services means the Army, Navy, Air Force,
Marine Corps, Coast Guard, Commissioned Corps of Environmental Science
Services Administration, and Commissioned Corps of Public Health
Service.
(c) The term member means a commissioned officer, commissioned
warrant officer, warrant officer, nurse, flight officer, or a person in
an enlisted grade (including an aviation cadet) of any of the uniformed
services, and a person in any of these categories who is entitled to or
is in receipt of retired pay, except persons excluded in title 10, U.S.
Code, section 1431(a), as amended.
(d) The term widow includes widower and refers to the lawful spouse
of the member on the date of retirement with pay.
(e) The term child means, in all cases, a member's child, who is
living on the date of retirement of the member with pay and who meets
the following requirements:
(1) A legitimate child under 18 years of age and unmarried.
(2) A stepchild, under 18 years of age and unmarried, who is in fact
dependent on the member for support (see paragraphs (f) and (g) of this
section).
(3) A legally adopted child, under 18 years of age and unmarried.
(4) A child, as defined above, who is 18 or more years of age and
unmarried, and who is incapable of self-support because of being
mentally defective or physically incapacitated if that condition existed
prior to reaching age 18.
(5) A child as defined above, who is at least 18, but under 23 years
of age and unmarried, who is pursuing a full-time course of study or
training in a high school, trade school, technical or vocational
institute, junior college, college, university, or comparable recognized
educational institution. (Applicable only in the case of members who
retired on or after Nov. 1, 1968).
(6) A child loses his eligibility for an annuity under this part if
he is adopted by a third person before the parent-member's death. His
eligibility is not affected if he is adopted by a third person after the
parent-member's death (36 Comp. Gen. 325).
(f) The term stepchild means a child of a member's spouse by a
former marriage. The stepchild relationship terminates upon the divorce
of the parent spouse, but not upon the death of the parent spouse.
(g) The term in fact dependent means that the stepchild must be
dependent on the member for over half of his or her support.
(h) The term retirement means retirement with eligibility to receive
retired pay.
(i) The term retired pay includes retired, retirement, equivalent
and retainer pay awarded as a result of service in the uniformed
services.
(j) The term reduced retired pay means the retired pay remaining
after the cost of participation in RSFPP has been subtracted.
(k) The term department concerned means (1) the Department of the
Army with respect to the Army, (2) the Department of the Navy with
respect to the Navy and Marine Corps, (3) the Department of the Air
Force with respect to the Air Force, (4) the Department of
Transportation with respect to the Coast Guard, (5) the Department of
Commerce with respect to the Environmental Science Services
Administration, and (6) the Department of Health, Education, and Welfare
with respect to the Public Health Service.
(l) The term dependent means the prospective annuitants described in
paragraphs (d) and (e) of this section.
[[Page 152]]
(m) The term Board of Actuaries means the Government Actuary in the
Department of the Treasury, the Chief Actuary of the Social Security
Administration, and a member of the Society of Actuaries appointed by
the President to advise the Secretary of Defense on the administration
of the Plan.
(n) The term Joint Board means representatives of the uniformed
services appointed under the provisions of Sec. 48.602.
(o) The term years of service means years of service creditable in
the computation of basic pay.
(p) The term election means the choice of options made by the member
under the RSFPP. This term includes a modification of a previous
election or an election submitted after a revocation of a previous
option(s) elected.
(q) The term elections in effect means valid elections existing on
the day of retirement.
(r) A recognized educational institution is defined as a high
school, trade school, technical or vocational institute, junior college,
college, university, or comparable recognized educational institution
which meets one or more of the following criteria:
(1) It is operated or directly supported by the United States, or a
State, or local governmental agency.
(2) It is accredited by a nationally recognized or State recognized
accrediting agency.
(3) It is approved as an educational institution by a State or local
governmental agency.
(4) Its credits are accepted for transfer (or for admission) by
three or more accredited schools on the same basis as credits from an
accredited school.
Subpart B--Election of Options
Sec. 48.201 Options.
As provided in Sec. 48.203, a member may elect one or more of the
following annuities. The amount must be specified at time of election,
and may not be for more than 50 per centum nor less than 12\1/2\ per
centum of his retired pay, in no case may be less than a $25 monthly
annuity be elected. If the election is made in terms of dollars, the
amount may be more than 50 per centum of the retired pay that he would
receive if he were to retire at the time of election; however, if such
elected amount exceeds 50 per centum of his retired pay when he does
retire, it shall be reduced to an amount equal to such 50 per centum.
Also, if the dollar amount elected is less than 12\1/2\ per centum of
his retired pay when he does retire, it shall be increased to an amount
equal to such 12\1/2\ per centum.
(a) Option 1 is an annuity payable to or on behalf of his widow, the
annuity to terminate upon her death or remarriage.
(b) Option 2 is an annuity payable to or on behalf of his surviving
child or children as defined in Sec. 48.102, the annuity to terminate
when there ceases to be at least one such surviving child eligible to
receive the annuity. Each payment under such annuity shall be paid in
equal shares to or on behalf of the surviving children remaining
eligible at the time the payment is due. A member who had this option in
effect on the date of retirement, and who retired on or after November
1, 1968, may apply to the Secretary concerned to have a child (other
than a child described in Sec. 48.102(e)(4)) who is at least 18 but less
than 23 years of age considered not to be an eligible beneficiary under
this paragraph (b) or Sec. 48.202. Normally such applications will be
approved.
(c) Option 3 is an annuity to or on behalf of his widow and
surviving child or children. Such annuity shall be paid to the widow
until death or remarriage, and thereafter each payment under such
annuity shall be paid in equal shares to or on behalf of the surviving
children remaining eligible at the time the payment is due. A member may
provide for allocating, during the period of the surviving spouse's
eligibility, a part of the annuity under this subpart B for payment to
those of his surviving children who are not children of that spouse. The
sum allotted will not exceed the equitable share for which such children
would be eligible after the death of the widow.
(d) When no eligible beneficiary remains to benefit from the option
elected, the member's retired pay will be restored (except as provided
in Sec. 48.604, for certain members retired before Aug. 13, 1968). All
elections on file on
[[Page 153]]
Aug. 13, 1968, for members not entitled to receive retired pay will be
considered to include the restoration feature with attendant cost
factors being applied at time of retirement. For the purpose of this
paragraph, a child (other than a child described in Sec. 48.102(e)(4))
who is at least 18 but less than 23 years of age, and is not pursuing a
course of study as defined in Sec. 48.102(e)(5), shall be considered an
eligible beneficiary unless an approved application by the member
pursuant to Sec. 48.201(b) that such a child is not to be considered an
eligible beneficiary is in effect (for members who retire on or after
Nov. 1, 1968).
Sec. 48.202 Limitation on number of annuities.
When a member desires to provide both the annuity provided by Option
1 and Option 2, he may elect amounts that, in total, meet the
limitations specified in Sec. 48.201. The cost of each annuity, and the
amount of each annuity shall be determined separately. A member may not
elect the combination of Options 1 and 3 or Options 2 and 3 in any case.
The combined amount of the annuities may not be more than 50 per centum
nor less than 12\1/2\ per centum of his retired pay. In no case may less
than a $25 per month combined annuity be provided.
Sec. 48.203 Election of options.
(a) A member who has completed less than 19 years of service as
defined in Sec. 48.102(o) may elect to receive a reduced amount of
retired pay in order to provide one or more of the annuities as
specified in Secs. 48.201 and 48.202, payable after his death while
entitled to retired pay to or on behalf of his surviving widow, child,
or children. To be effective, the election by such a member must be
dated, signed, witnessed, and delivered to appropriate service
officials, or postmarked not later than midnight on the day in which he
completes 19 years of service. Such an election will become effective
immediately upon subsequent retirement. The latest election, change, or
revocation made in accordance with this subsection will, if otherwise
valid, be the effective election, unless superseded by a change as
provided in paragraph (b) of this section.
(b) Except as provided in paragraph (c) of this section, a member
who fails or declines to make an election before completion of 19 years
of service may make an election after that time. However, unless the
election is made at least 2 years prior to the date the member becomes
entitled to receive retired pay, it will not be effective. The same
applies to subsequent changes or revocations made prior to retirement.
(c) If an election, revocation, or change was made prior to August
13, 1968, the 19-year and 2-year provisions are automatically in effect
on August 13, 1968, for members who were not entitled to retired pay on
such date, unless the member applies under Sec. 48.604(d) to remain
under the provisions of the law prior to August 13, 1968. In this case
the ``18 years of service'' and ``3 years prior to receipt of retired
pay'' rules will apply.
(d) A member retired for physical disability on or after November 1,
1968 who is awarded retired pay prior to completion of 19 years of
service may make an election which is subject to the restrictions set
forth in Sec. 48.507. The election by such member shall be made before
the first day for which he is entitled to retired pay. Elections made
under this paragraph prior to November 1, 1968, must be made by the
member retiring for physical disability prior to completing 18 years.
(e) If, because of military operations, a member is assigned to an
isolated station, or is missing, interned in a neutral country, captured
by a hostile force, or beleaguered or besieged, and for that reason is
unable to make an election before completing 19 years of service, he may
make the election within 1 year after he ceases to be assigned to that
station or returns to the jurisdiction of his service as the case may
be, and such election shall become effective immediately upon subsequent
retirement.
(f) A member to whom retired pay is granted retroactively, and who
is otherwise eligible to make an election, may make the election within
90 days after receiving notice that such pay has been granted him.
[[Page 154]]
(g) Whenever a member is determined to be mentally incompetent by
medical officers of the uniformed services or of the Veterans
Administration, or is adjudged mentally incompetent by a court of
competent jurisdiction and because of such mental incompetency is
incapable of making any election within the time limitations prescribed
by the Plan, the Secretary of the Department concerned may make the
appropriate election on behalf of such member upon request of the
spouse, or if there be no spouse, by or on behalf of the child or
children of such member. If such member is subsequently determined to be
mentally competent by the Veterans Administration or a court of
competent jurisdiction, he may, within 180 days after such determination
or judgment, change or revoke the election made on his behalf. In such a
case, the change or revocation will be effective on the date of the
member's request for such change or revocation. Deductions previously
made shall not be refunded.
(h) All elections on file on August 13, 1968, for members not
entitled to receive retired pay shall be subject to the provisions of
this section unless the member makes the application specified in
Sec. 48.604(d).
(i) A person who was a former member of the armed forces on November
1, 1953, and who is granted retired pay after that date, may, at the
time he is granted that pay, make an election as provided in
Sec. 48.201.
Sec. 48.204 Change or revocation of election.
(a) A change of election is a change in the amount of the annuity or
annuities under any option, or a change in any option or options
selected. A revocation is a cancellation of a previous election and
constitutes a withdrawal from coverage under the Plan.
(b) A member may change or revoke his election as often as he
desires prior to the completion of 19 years of service. Such a change or
revocation must be dated, signed, witnessed, and delivered to
appropriate service officials, or postmarked not later than midnight on
the day in which the member completes 19 years of service. The latest
election, change, or revocation which is submitted in accordance with
this subsection will be effective at retirement.
(c) A member who desires to make an election or change or revoke his
election after he has completed 19 years of service may do so prior to
his retirement. However, such an election, change or revocation will be
effective only if at least 2 years elapse between the date of the
election, change, or revocation and the date of eligibility to receive
retired pay.
(d) A revocation will not prohibit the filing of a new election at a
later date which will become valid under applicable validation
provisions.
(e) A member may, on or after November 1, 1968, at any time prior to
his retirement, change or revoke his election (provided the change does
not increase the amount of the annuity elected) to reflect a change in
the marital or dependency status of the member of his family caused by
death, divorce, annulment, remarriage, or acquisition of a child, if
such change or revocation is made within 2 years of such change in
status.
(f) Notification of a change in family status is not a change of
election.
(g) All changes and revocations on file on August 13, 1968, for
members not entitled to retired pay shall be subject to the provisions
of this section unless the member makes the application specified in
Sec. 48.604(d).
Sec. 48.205 Election form.
The form for making election after October 31, 1968, is prescribed
as Election of Options, Retired Serviceman's Family Protection Plan, DD
Form 1688. \1\ It will be submitted as directed herein. All copies will
be signed, and any otherwise complete, signed copy, when properly
submitted, may be used to substantiate the fact of election,
modification, revocation, or change in family status.
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\1\ Filed as part of the original document. Copies may be obtained
from Military Personnel Office.
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Sec. 48.206 Information regarding elections.
(a) All members of the Reserve component who will have accumulated
sufficient service to be eligible for retired
[[Page 155]]
pay at age 60, will be counseled on the Plan before reaching their 57th
birth dates in order to insure that valid elections can be made prior to
their 58th birth dates. An election, modification, or revocation
submitted subsequent to attaining age 58 will be valid only if it is
made and submitted at least 2 years prior to the first date for which
retired pay is granted.
(b) It is the responsibility of the department concerned to provide
election forms and to promulgate information concerning the benefits of
the Plan to all members so as to allow a timely election.
(c) Members retiring for physical disability prior to the completion
of 19 years of service will, prior to retirement, be counseled and
furnished information concerning the operation of the Plan.
Subpart C--Designation of Beneficiaries
Sec. 48.301 Designation.
(a) All legal beneficiaries described in Sec. 48.102 must be named
at the date of retirement pursuant to the option elected. Although a
member without dependents may make an election, it will not be effective
unless he has eligible dependents at the time of his retirement.
(b) When a change in family status occurs prior to retirement which
would effect a change as provided in Sec. 48.204(e), new DD Form
1688,1 Election of Options, Retired Servicemen's Family
Protection Plan, should be filed to evidence such change.
---------------------------------------------------------------------------
\1\ See footnote 1 to Sec. 48.205.
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Sec. 48.302 Substantiating evidence regarding dependency and age of dependents.
At the time of submitting the election, or prior to retirement, the
member must indicate his wife's and youngest child birth date as
applicable to the option elected. At or before the time of his
retirement, he must submit proof of final dissolution of prior
marriages, if any, both for himself and his spouse. The age of the
dependents must be substantiated by a birth certificate or other
competent evidence. The birth date of a member must be verified by his
service record. All required substantiating evidence must be at the
disbursing office which would normally pay the member retired pay or
retainer pay immediately following retirement so as to permit the
establishment of accurate pay accounts and to prevent the creation of
indebtedness or overpayments.
Sec. 48.303 Condition affecting entitlement of widow or widower.
A member may have a different lawful spouse at the time of
retirement from the lawful spouse he had at the time of election. The
lawful spouse at the time of retirement is the spouse eligible for an
annuity at the time of member's death. Divorce of the member will remove
the former spouse as a prospective annuitant.
Subpart D--Reduction of Retired Pay
Sec. 48.401 Computation of reduction.
(a) The reduction to be made in the retired pay of a member who has
made an election shall be computed by the uniformed service concerned in
each individual case, based upon tables of factors prepared by the Board
of Actuaries. The computation shall be based upon the applicable table
in effect on the date of retirement.
(b) An adjustment may be made in the reduction of retired pay upon
the finding of an administrative error or a mistake of fact (see
Sec. 48.603).
(c) If a member elects to be covered by option 3, and on the date he
is awarded retired pay has no children eligible to receive the annuity,
or has only a child or children aged 18-22 (other than a child described
in Sec. 48.102(e)(4) and elects, at retirement, that such child or
children shall not be considered to be eligible beneficiaries, he shall
have his costs computed as though he had elected option 1. If he elects
option 3, and on the date he is awarded retired pay has no wife eligible
for the annuity, he shall have his costs computed as though he had
elected option 2.
(d) If a member elects option 3, and after he becomes entitled to
retired pay, there is no eligible spouse because
[[Page 156]]
of death or divorce, upon the retired member's application, no
deductions from his retired pay shall be made after the last day of the
month in which there ceases to be an eligible spouse. Children otherwise
eligible will continue to be eligible for the annuity in event of the
member's death. No amounts by which the member's retired pay is reduced
before that date may be refunded to or credited on behalf of that
person.
(e) The amount of reduction in retired pay and the annuity payable
established for each individual at the time of his retirement shall
remain unaltered except as provided in Sec. 48.203(g), paragraphs (b)
and (d) of this section, and Sec. 48.406, regardless of future pay
increases or decreases.
Sec. 48.402 Effective date of reduction.
The effective date of reduction in retired pay will be the effective
date of retirement with pay. The reduction in retired pay will be
terminated on the date the member ceases to be entitled to retired pay
or on the first day of the month following that in which there is no
eligible beneficiary (for exception to this rule see Sec. 48.604).
Sec. 48.403 Payment of nonwithheld reduction of retired pay.
(a) A member of a uniformed service who is entitled to retired pay
and has made an election shall, during any period in which he is not
receiving retired pay (including periods of active duty), deposit the
amount which would have been withheld from his retired pay had he been
receiving that pay.
(b) Such deposit will be payable to Treasurer of the United States
and shall be forwarded monthly to the disbursing office which would
normally pay the member his retired pay.
(c) The disbursing office will in all cases inform the member of the
amount to be deposited and when such deposits are to be made.
(d) In the event deposits are not made within 30 days of the due
date, the disbursing office will inform the member concerned that he is
delinquent from such due date and thereafter his designated
beneficiaries will not be eligible for the annuity provided under the
Plan until the arrears have been paid. The notification of delinquency
will advise the member that 15 additional days have been granted to him
in which to remit his deposit, and that if the arrears are not deposited
within that period, the member will be charged interest to include the
first day of delinquency. In no case will the expiration date of the 15
days exceed a date later than 45 days from the date the deposit was due.
The interest will be computed monthly and the rate will be that used in
computing the cost tables in effect on the date of the member's
retirement. If such member later becomes in receipt of retired pay, any
arrears with compound interest will be withheld.
Sec. 48.404 Ages to be used.
Ages to be used for calculating reductions of retired pay will be
the ages of the member and his eligible dependents on their nearest
birth dates as of the date of the member's retirement.
Sec. 48.405 Action upon removal from temporary disability retired list.
(a) Any member on the temporary disability retired list established
pursuant to title 10, United States Code, chapter 61, who has elected to
receive reduced retired pay in order to provide one or more of the
annuities specified in the Plan, and who is subsequently removed from
the list due to any reason other than permanent retirement, shall have
refunded to him a sum which represents the difference between the amount
by which his retired pay has been reduced and the cost of an amount of
term insurance which is equal to the protection provided his dependents
during the period he was on the temporary disability retired list.
(b) If the member concerned is returned to active duty, his election
as previously made will continue or he may change or revoke the election
as provided in Sec. 48.204.
(c) Time creditable for the purpose of the two year interval
required to make a change, revocation or new election valid includes
service before, during, and after temporary disability retirement. (See
Secs. 48.203 and 48.204 and Comptroller Decision B-144158, Dec. 23,
1960.) Active duty after removal from a
[[Page 157]]
temporary disability retired list is a necessity in such a case.
Sec. 48.406 Withdrawal and reduction of percentage or amount of participation.
A retired member who is participating in the Plan may revoke his
election and withdraw from participation, or he may reduce the amount of
the survivor annuity; however, an approved withdrawal or reduction will
not be effective earlier than the first day of the seventh month
beginning after the date his application is received by the Finance
Center controlling his pay record. (For special rules covering
participating members retired before Aug. 13, 1968, without option 4,
see Sec. 48.604.) No application for reduction will be approved which
requests a change in options. A request to reduce an annuity or to
withdraw from the Plan is irrevocable, and a retired member who
withdraws may never again participate in the Plan. Approval of a request
for a reduction will not be made when such reduction results in an
annuity of less than 12\1/2\ per centum of the member's retired pay or
less than a $25 monthly annuity. The new cost, after such reduction in
survivor annuity, will be computed from the applicable cost table at the
time of retirement. No amounts by which a member's retired pay is
reduced may be refunded to, or credited on behalf of, the member by
virtue of an application made by him under this section.
Subpart E--Annuity
Sec. 48.501 General information.
Except as provided in Sec. 48.506(a), no annuity payable under the
Plan shall be assignable, or subject to execution, levy, attachment,
garnishment, or other legal process. Annuities payable under this Plan
shall be in addition to any pensions or other payments to which the
beneficiaries may now or hereafter be entitled under other provisions of
law (except as provided in Sec. 48.507), and may not be considered as
income under any law administered by the Veterans Administration, except
for the purpose of title 38 U.S. Code, section 415(g) and chapter 15.
Sec. 48.502 Effective date of annuity.
All annuities payable under this Plan except those payable to
beneficiaries described in Sec. 48.102(e)(5) shall accrue from the first
day of the month in which the retired member dies and shall be due and
payable not later than the 15th day of each month following that month
and in equal monthly installments thereafter, except that no annuity
shall accrue or be paid for the month in which entitlement to that
annuity terminates.
Sec. 48.503 Claims for annuity payments.
Upon official notification of the death of a retired member who has
elected under the Plan, the department concerned shall forward to the
eligible surviving beneficiaries the necessary information and forms (DD
Form 768. Application for Annuity Under Retired Serviceman's Family
Protection Plan) for making application for annuity payments. Such
information shall include the place to which the application should be
forwarded and to which questions regarding annuity payments should be
addressed.
Sec. 48.504 Payment to children.
(a) Annuities for a child or children will be paid to the child's
guardian, or if there is no guardian, to the person(s) who has care,
custody, and control of the child or children.
(b) Annuities payable to or on behalf of an eligible child as
defined in Sec. 48.102(e)(5) accrue as of the first day of the month in
which--
(1) The member (upon whose retired pay the annuity is based) dies if
the eligible child's 18th birthday occurs in the same or a preceding
month, or
(2) The 18th birthday of an eligible child occurs if the member
(upon whose retired pay the annuity is based) died in a preceding month,
or
(3) A child first becomes (or again becomes) eligible, if that
eligible child's 18th birthday and the death of the member (upon whose
retired pay the annuity is based) both occurred in a preceding month or
months. An eligible child under this paragraph might become ineligible
at age 18 and again become eligible by furnishing proof of pursuit of a
full time course of study or training as enumerated in
Sec. 48.102(e)(5).
[[Page 158]]
Sec. 48.505 Establishing eligibility of annuitants.
(a) Eligibility for the annuity will be established by such evidence
as may be required by the department concerned.
(b) If a child as defined in Sec. 48.102(e)(4) is a designated
annuitant, the department concerned shall require proof that the
incapacity for self-support existed prior to the child's reaching age
18. Proof that continued incapacitation exists will be required every 2
years after the child passes the age of 18 years, except in a case where
medical prognosis indicates recovery is impossible.
(c) If a child as defined in Sec. 48.102(e)(5) is a designated
annuitant, as specified in Sec. 48.504(b), the department concerned
shall require proof from the institution at least semiannually that the
child is pursuing a full-time course of training as prescribed. For the
purpose of proving eligibility, a child is considered to be pursuing a
full-time course of study or training during an interval between school
periods that does not exceed 150 days if he has demonstrated to the
satisfaction of the department concerned that he has a bona fide
intention of commencing, resuming, or continuing to pursue a full-time
course of study or training in a recognized educational institution
immediately after that interval.
Sec. 48.506 Recovery of erroneous annuity payments.
(a) The Secretary of the Department concerned is empowered to use
any means provided by law to recover amounts of annuities erroneously
paid to any individual under the Plan. He may authorize such recovery by
adjustment in subsequent payments to which the individual is entitled.
(b) There need be no recovery when in the judgment of the Secretary
of the Department concerned and the Comptroller General of the United
States, the individual to whom the erroneous payment was made is without
fault and recovery would be contrary to the purpose of the Plan or would
be against equity and good conscience.
Sec. 48.507 Restriction on participation.
(a) If a person who has made an election under the Plan retires with
a physical disability before the completion of 19 years of service and
then dies in retirement, his widow and eligible children can receive
monthly survivor annuities only if they are not eligible for Dependency
and Indemnity Compensation payments from the Veterans Administration. If
either the widow or children are eligible for dependency and indemnity
compensation payments, then payment of annuities under the Plan may not
be made to any member of the family. If the retired member's death was
not service connected and his widow or children are not eligible for
payments from the Veterans Administration, they may receive the provided
annuity payments under the Plan.
(b) If the beneficiaries on whose behalf the election was made are
restricted as in paragraph (a) of this section, from receiving
annuities, the amounts withheld from the elector's retired pay as a
result of the election will be refunded to the beneficiaries, less the
amount of any annuity paid, and without interest.
(c) Upon notification of the death of the member in such a case, the
department concerned will take the following actions:
(1) Notify the Central Office of the Veterans Administration of the
death of the member and request that the department concerned be advised
if an award is made under chapter 11 or 13, title 38 U.S. Code.
(2) Request the Central Office of the Veterans Administration to
forward to the eligible widow and/or children an application form for
survivor benefits under chapter 11 or 13, title 38 U.S. Code, with
instructions for completion and submission.
Sec. 48.508 Certain 100 percent disability retirement.
An election filed on or after August 13, 1968 is not effective if
the member dies within 30 days following retirement from a disability of
100 per centum (under the standard schedule of rating disabilities in
use by the Veterans Administration) for which he was retired under
chapter 61, title 10 U.S. Code, unless--
(a) Such disability was the result of injury or disease received in
line of
[[Page 159]]
duty as a direct result of armed conflict, or
(b) His widow or children are not entitled to dependency and
indemnity compensation under chapter 13, title 38 U.S. Code.
Subpart F--Miscellaneous
Sec. 48.601 Annual report.
Information and data for the preparation of the annual report of the
Board of Actuaries will be compiled by the Office of the Secretary of
Defense after promulgation of appropriate instructions to each of the
uniformed services. These instructions will be in consonance with
Executive Order 10499 directing the Secretary of Defense to administer
the provisions of the law.
Sec. 48.602 Organization.
(a) The Joint Board for the Retired Serviceman's Family Protection
Plan shall consist of a principal and alternate member for each of the
uniformed services appointed by the Department Secretary concerned.
Alternate members will be authorized to act in the absence of the
principal. The Board shall meet on call of the Chairman. A quorum shall
consist of representatives of at least four of the participating
services.
(b) The Board shall establish procedures for the orderly conduct of
business to be approved by the Assistant Secretary of Defense (Manpower
and Reserve Affairs).
(c) The duties of the Board will include but not be limited to the
following:
(1) Making recommendations to the Secretary of Defense for:
(i) Changes to the Executive order delegating to him functions
conferred on the President by law,
(ii) Changes to these regulations,
(iii) Changes to the law, and
(iv) Measures to insure uniform operating policies.
(2) Promulgating tables of annuity costs as prescribed by the Board
of Actuaries.
(3) Promulgating cost of term insurance as required in Sec. 48.405.
(d) The Chairmanship of the Joint Board will be designated by the
Assistant Secretary of Defense (Manpower and Reserve Affairs).
Sec. 48.603 Correction of administrative deficiencies.
(a) The Secretary of the Department concerned may correct any
election or any change or revocation of an election when he considers it
necessary to correct an administrative error. Information on such
corrections shall be compiled by each department for inclusion in the
report prescribed by Sec. 48.601.
(b) Except when procured by fraud, a correction under the section is
final and conclusive on all officers of the United States.
(c) Information on all corrections to elections under this Plan
which are made under title 10, section 1552, United States Code, shall
be compiled and this information forwarded to the Board of Actuaries for
an actuarial analysis.
Sec. 48.604 Transition and protective clauses.
(a) A retired member who is participating in the Plan without
inclusion of former option 4, which provided for restoration of retired
pay when no eligible beneficiary remained in his election, may before
September 1, 1969, elect to have that option included in his election.
The election to include such option 4 becomes effective on the first day
of the month following the month in which that election was made. The
retired member must on or before the effective date agree to pay to the
Treasury both the total additional amount to cover the option had it
been effective when he retired, and the interest which would have
accrued on the additional amount up to the effective date of the new
option 4. No such additional amount (except interest) shall accrue for
months after the first month for which the individual had no eligible
beneficiary. However, if undue hardship or financial burden would
result, payments may be made in from 2 to 12 monthly installments when
the monthly amount involved is $25 or less, or in from 2 to 36
installments when the monthly amounts involved exceed $25. No amounts by
which a member's retired pay was reduced may be refunded to, or credited
on behalf of, the retired
[[Page 160]]
member by virtue of an application made by him under this section. A
retired member who does not make the additional election provided under
this section within the time limits will not be allowed to reduce an
annuity or withdraw from participation in the Plan as provided by
Sec. 48.406.
(b) Members who have elected and are not yet retired will
automatically participate under the provisions of Sec. 48.201.
(c) Elections in effect on August 13, 1968, will remain under the
cost tables applicable on the date of the member's retirement.
(d) Any member who has filed an election, modification, or
revocation prior to August 13, 1968, may before September 1, 1969,
submit a written application to the Secretary concerned requesting that
such election, modification, or revocation remain under the time-of-
election provisions of the law applicable on the date it was filed.
PART 51--THE DEPARTMENT OF DEFENSE MILITARY EQUAL OPPORTUNITY PROGRAM--Table of Contents
Sec.
51.1 Purpose.
51.2 Applicability and scope.
51.3 Definitions.
51.4 Policy.
51.5 Responsibilities.
51.6 Information requirements.
Appendix A to Part 51--Military Equal Opportunity Reporting Requirements
Appendix B to Part 51--Organizations and Functions
Authority: Pub. L. 92-261, sec. 301, 80 Stat. 379 (5 U.S.C. 301, 10
U.S.C. 133).
Source: 54 FR 46227, Nov. 2, 1989, unless otherwise noted.
Sec. 51.1 Purpose.
This part:
(a) Regulates the Department of Defense Military Equal Opportunity
(EO) Program and assigns responsibilities for ensuring DoD-wide
compliance with the broad program objectives outlined in DoD Human Goals
Charter, March 21, 1988.
(b) Provides for education and training in EO and human relations.
(c) Prescribes the functions of the Defense Equal Opportunity
Council (DEOC), the Defense Equal Opportunity Management Institute
(DEOMI), and the Board of Visitors (BOV) to DEOMI.
Sec. 51.2 Applicability and scope.
This part:
(a) Applies to all military members of the Office of the Secretary
of Defense (OSD), the Military Departments (including their National
Guard and Reserve components), the Joint Staff, the Unified and
Specified Commands, the Defense Agencies, and the DoD Field Activities
(hereafter referred to collectively as ``DoD Components''). The term
``Military Services,'' as used herein, refers to the Army, Navy, Air
Force, and Marine Corps.
(b) Applies to DoD contracted organizations that provide services to
military personnel and their families.
(c) Does not apply to civilian personnel, except as noted in
paragraph (b) of this section.
Sec. 51.3 Definitions.
Affirmative Action. Methods used to achieve the objectives of the EO
program. Processes, activities, and systems designed to identify,
eliminate, prevent, and work to overcome the effects of discriminatory
treatment as it affects the upward mobility and quality of life for DoD
personnel.
Discrimination. Illegal treatment of a person or group based on
handicap, race, color, national origin, age, religion, or gender.
DoD Military Equal Opportunity (EO) Program. The DoD-wide military
program of equal opportunity that is accomplished through efforts by DoD
Components. It provides an environment in which every member of the
total force is ensured an opportunity to rise to as high a level of
responsibility as possible in the military profession, dependent only on
merit, fitness, and capability.
Equal Opportunity (EO). The right of all persons to participate in
and benefit from programs and activities for which they are qualified.
These programs and activities shall be free from social, personal, or
institutional barriers that prevent people from rising to as high a
[[Page 161]]
level of responsibility as possible. Persons shall be evaluated only on
individual merit, fitness, and capability, regardless of race, color,
gender, national origin, age, or handicap except as prescribed by
statute, or DoD/Service policy.
Ethnic Group. A segment of the population that possesses common
characteristics and a cultural heritage based to some degree on the
following:
(a) Common geographic origin;
(b) Race;
(c) Language or dialect;
(d) Religious faith or faiths;
(e) Shared traditions, values, or symbols;
(f) Literature, folklore, or music;
(g) An internal sense of distinctiveness; and/or
(h) An external perception of distinctiveness.
Ethnic and Racial Categories. The basic racial and ethnic categories
for DoD reporting are defined as follows:
(a) American Indian or Alaskan Native. A person having origins in
the original peoples of North America.
(b) Asian or Pacific Islander. A person having origins in any of the
original peoples of the Far East, Southeast Asia, the Indian
subcontinent, or the Pacific Islands. This area includes China, India,
Japan, Korea, the Philippine Islands, and Samoa.
(c) Black (Not of Hispanic Origin). A person having origins in any
of the original peoples of Africa.
(d) Hispanic. A person having origins in any of the original peoples
of Mexico, Puerto Rico, Cuba, or Central or South America, or of other
Spanish cultures, regardless of race.
(e) White (Not of Hispanic Origin). A person having origins in any
of the original peoples of Europe, North Africa, or the Middle East.
National origin. An individual's or ancestor's place of origin. Also
applies to a person who has the physical, cultural, or linguistic
characteristics of a national group.
Race. A division of humans identified by the possession of traits
that are transmissible by descent and that are sufficient to
characterize as a distinctive human type.
Religion. A personal set or institutionalized system of attitudes,
moral or ethical beliefs, and practices that are held with the strength
of traditional religious views, characterized by ardor and faith, and
generally evidenced through specific religious observances.
Sexual Harassment. A form of sex discrimination that involves
unwelcomed sexual advances, requests for sexual favors, and other verbal
or physical conduct of a sexual nature when:
(a) Submission to or rejection of such conduct is made either
explicitly or implicitly a term or condition of a person's job, pay, or
career, or
(b) Submission to or rejection of such conduct by a person is used
as a basis for career or employment decisions affecting that person, or
(c) Such conduct interferes with an individual's performance or
creates an intimidating, hostile, or offensive environment.
Any person in a supervisory or command position who uses or condones
implicit or explicit sexual behavior to control, influence, or affect
the career, pay, or job of a military member or civilian employee is
engaging in sexual harassment. Similarly, any military member or
civilian employee who makes deliberate or repeated unwelcomed verbal
comments, gestures, or physical contact of a sexual nature is also
engaging in sexual harassment.
Sec. 51.4 Policy.
It is DoD policy to:
(a) Support the military EO program as an integral element in total
force readiness, as defined in the Secretary of Defense Memorandum and
enforce at all levels of activity the EO provisions of this part in
developing operating EO policies and programs.
(b) Use the chain of command to promote, support, and enforce the
military EO program. The chain of command is the primary and preferred
channel for correcting discriminatory practices and for ensuring that
human relations and EO matters are enacted.
(c) Ensure the Military Services (to include the Reserve components)
maintain military EO and affirmative action programs. Discrimination
that adversely affects persons or groups based on race, color, religion,
gender, age, or
[[Page 162]]
national origin, and that is not supported legally, is contrary to good
order and discipline, and is counterproductive to combat readiness and
mission accomplishment. Discrimination of this nature shall not be
condoned or tolerated.
(d) Provide education and training in EO and human relations at
installation and fleet unit commands, Military Service accession points,
and throughout the professional military education (PME) system, as part
of the overall effort to achieve equal opportunity.
(e) Provide for an environment that is free from sexual harassment
by eliminating this form of discrimination in the Department of Defense.
(f) Ensure that all on-base activities and, to the extent of the
ability of DoD, any off-base activities available to military personnel
are open to all military personnel and their authorized family members
regardless of race, color, religion, age, physical or mental handicap,
gender, or national origin, as called for by the DoD Human Goals
Charter.
(1) Organizations or activities that do not meet this requirement
shall be denied the use of military facilities and resources in
accordance with 32 CFR part 237. This policy applies equally to those
organizations that may discriminate based on the content of their
constitutions, bylaws, rules or regulations, as well as to those which,
in the judgment of the responsible commander(s), are engaging in de
facto discrimination regardless of the content of their constitutions,
bylaws, rules or regulations.
(2) Organizations that use on-base facilities, whether on a
reimbursable basis or otherwise, must satisfy the responsible area or
activity commander that they do not discriminate through their actual
membership practices or in any of their activities.
(g) Oppose discrimination in off-base housing directed against
military personnel and their authorized family members. Each commander
shall take actions to overcome such discrimination and to impose off-
limits sanctions in housing cases, as required by 32 CFR part 301.
(h) Impose, as required, the off-limits sanction according to the
Armed Forces Disciplinary Control Board as stated in the Joint
Regulation, in cases of discrimination involving places of public
accommodations outside military installations.
Sec. 51.5 Responsibilities.
(a) The Assistant Secretary of Defense (Force Management and
Personnel) (ASD(FM&P)) shall:
(1) Represent and advise the Secretary of Defense in military EO
matters consistent with 32 CFR part 384.
(2) Chair the Defense Equal Opportunity Council.
(3) Provide guidance on developing all DoD programs to ensure equal
opportunity for military personnel in the total force.
(4) Develop, execute, and monitor the effectiveness of military EO
policies in support of national security objectives.
(5) Ensure that DoD Components fulfill the requirements of this
part.
(6) Provide policy direction to DEOMI and select the Commandant of
DEOMI from Military Service nominations.
(7) Establish categories and monitor specific goals to be included
in the affirmative action programs and annual military EO assessments of
each DoD Component.
(8) Review and act on (or refer to appropriate Military Service) all
complaints of discrimination arising under this part (to include sexual
harassment) referred to the Secretary of Defense.
(9) Ensure fair, impartial and timely investigation, resolution, and
follow-up of all complaints of discrimination arising under this part.
(10) Establish a program to recognize individuals and organizations
for outstanding achievement in one or more of the major EO areas covered
by this part.
(b) The Heads of DoD Components shall be responsible for equal
opportunity within their respective jurisdictions (to include their
Reserve components) and shall:
(1) Ensure that all DoD EO policies and programs are understood and
executed at all levels of military command.
(2) Establish affirmative action programs that identify and resolve
EO
[[Page 163]]
problems through formulating, maintaining, and reviewing affirmative
action plans (AAPs) with established objectives and milestones and
including accountability in personnel management consistent with DoD
Instruction 1350.3.\1\
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\1\ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, Attn: Code 1062, 5801 Tabor Avenue,
Philadelphia, PA 19120.
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(3) Forward a fiscal year report to the ASD(FM&P) outlining the
progress being made to achieve the established military EO objectives of
the AAP. This report shall be due each year on February 1, and is
described further in DoD Instruction 1350.2.
(4) Establish policies that include specific actions to be taken
against any individual who commits an act of discrimination, as defined
in Sec. 51.3.
(5) Rewrite documents and change practices that discriminate against
military personnel based on race, religion, color, gender, or national
origin. This requirement does not apply to those Military Service
documents that implement statutes or DoD/Service policy requiring
different treatment of military personnel based on age or gender.
(6) Establish policies and procedures to prevent sexual harassment
and to ensure that appropriate action is taken against individuals who
commit sexual harassment offenses, in accordance with the Secretary of
Defense Memorandums.
(7) Ensure that all military personnel, including command-selectees
and flag and general officers, receive training in equal opportunity,
human relations, and prevention of sexual harassment on a recurring
basis, and at all levels of PME.
(8) Establish and fill sufficient full-time staff positions and
allocate sufficient resources to conduct all EO programs. Equal
opportunity staff personnel shall be placed at a level that enables them
to communicate effectively the goals and objectives of the program and
obtain the understanding, support, and commitment of the organization's
leaders.
(9) Ensure that all discrimination complaints are investigated in a
fair, impartial, and prompt manner.
(10) Ensure that consideration of EO program support is included in
the instructions that guide rating officials in preparing efficiency
reports and/or evaluations on their subordinates.
(11) Develop management information and reporting systems to
determine the progress for each AAP goal consistent with DoD Instruction
1350.3.
(12) Establish EO awards programs to recognize individuals and
organizational units for outstanding achievement in any of the EO areas
covered by this part or Military Service-unique programs.
Sec. 51.6 Information requirements.
An annual report is required and is assigned Report Control Symbol
DD-FM&P(A)1760. Reporting requirements are contained in appendix A to
this part and further amplified in DoD Instruction 1350.3.
Appendix A to Part 51--Military Equal Opportunity Reporting Requirements
Each DoD Component shall submit an annual Military Equal Opportunity
Assessment (MEOA) for the period ending September 30 to the ASD(FM&P) no
later than February 1 of the following year. The report shall include
the following information:
A. An executive summary, providing an overall assessment of each DoD
Component's AAPs and EO Programs.
B. An assessment of each affirmative action in the following 10
categories shall be made an enclosure to the report. The assessment in
each category should include quantitative data in the basic race/ethnic
classifications for officers and enlisted personnel broken down by
gender.
1. Recruiting/Accessions
2. Composition
3. Promotions
4. Professional Military Education (PME)
5. Separations
6. Augmentation/Retention
7. Assignments
8. Discrimination/Sexual Harassment Complaints
9. Utilization of Skills
10. Discipline
C. Requirements are further explained in DoD Instruction 1350.3.
[[Page 164]]
Appendix B to Part 51--Organizations and Functions
1. The Defense Equal Opportunity Council (DEOC) shall:
a. Coordinate policy and review the military and civilian EO
programs.
b. Monitor progress of program elements.
c. Advise the Secretary of Defense on policies for EO matters.
d. Assist in developing policy guidance for education and training
in EO and human relations for DoD personnel.
2. The DEOC is Chaired by the Assistant Secretary of Defense/Force
Management and Personnel (ASD(FM&P)). Other members are the Assistant
Secretary of Defense for Reserve Affairs (ASD(RA)); the Assistant
Secretary of the Air Force for Manpower and Reserve Affairs
(ASAF(M&RA)); the Assistant Secretary of the Army for Manpower and
Reserve Affairs (ASA(MRA)); the Assistant Secretary of the Navy for
Manpower and Reserve Affairs (ASN(M&RA)); and the Director of
Administration and Management, Office of the Secretary of Defense (DA&M,
OSD).
3. DEOMI is a DoD Field Activity Operating Under the Supervision,
Direction, and Policy Guidance of the ASD(FM&P). Located as a tenant on
an established military installation, DEOMI shall be supported
administratively and logistically by the Military Department responsible
for the host installation.
a. The mission of DEOMI is to enhance combat and/or operational
readiness through improved leadership by functioning as the DoD center
of excellence in all facets of military EO and human relations education
and training to include the following:
(1) Providing primary training for all DoD military and civilian
personnel assigned to military EO billets (to include the U.S. Coast
Guard), and staff officers who directly manage EO and human relations
programs.
(2) Performing EO and human relations research in conjunction with
the Military Services and acting as a clearing house to monitor and
disseminate research findings on EO and human relations.
(3) Providing assistance or consultation services in DoD
organizations in developing specific curricula and training for EO and
human relations education, and particular training for the PME systems
within the Military Services; and serving in an advisory capacity to
other Agencies in education, industry, and the private sector, as
determined by the Commandant.
(4) Disseminating educational training materials to assist EO
advisors and human relations instructors in remaining current in the EO
subject area and in otherwise developing professionally.
(5) Performing special research-related projects in support of the
DEOC.
(6) Operating and administering the Defense EO Electronic Bulletin
Board to support EO advisors and specialists throughout the Military
Services.
(7) Serving as a focal point and depository for data and research on
the EO climate and sexual harassment in the Military Services.
b. The following applies to appointments to DEOMI:
(1) The Commandant shall be appointed by the ASD(FM&P). This
position shall rotate among representatives nominated by the Departments
of the Army, Navy, and Air Force.
(2) The ASD(FM&P) shall establish criteria for assigning officers
and enlisted personnel from the Military Departments, including the
Coast Guard, National Guard, and Reserves to faculty and staff positions
at DEOMI.
4. The DEOMI BOV is an Advisory Body to the ASD(FM&P). The Board is
established by charter and serves as an external source of expertise to
ensure periodic review of the objectives, policies, and operations of
DEOMI.
PART 53--WEARING OF THE UNIFORM--Table of Contents
Sec.
53.1 Purpose.
53.2 Policy.
Authority: 5 U.S.C. 301, 10 U.S.C. 772.
Sec. 53.1 Purpose.
This part prescribes limitations on wearing of the uniform by
members of the Armed Forces, and establishes policy with respect to
wearing of the uniform by former members of the Armed Forces.
[35 FR 1236, Jan. 30, 1970]
Sec. 53.2 Policy.
(a) Members of the Armed Forces (including retired members and
members of reserve components). The wearing of the uniform is prohibited
under any of the following circumstances:
(1) At any meeting or demonstration which is a function of, or
sponsored by an organization, association, movement, group, or
combination of persons which the Attorney General of the United States
has designated, pursuant to E.O. 10450 as amended, as totalitarian,
fascist, communist, or subversive, or as having adopted a policy of
advocating or approving the commission of acts of force or violence to
deny others their rights under The Constitution of the United States, or
as seeking
[[Page 165]]
to alter the form of Government of the United States by unconstitutional
means.
(2) During or in connection with the furtherance of political
activities, private employment or commercial interests, when an
inference of official sponsorship for the activity or interest could be
drawn.
(3) Except when authorized by competent Service authority, when
participating in activities such as public speeches, interviews, picket
lines, marches, rallies or any public demonstrations (including those
pertaining to civil rights), which may imply Service Sanction of the
cause for which the demonstration or activity is conducted.
(4) When wearing of the uniform would tend to bring discredit upon
the Armed Forces.
(5) When specifically prohibited by regulations of the department
concerned.
(b) Former members of the Armed Forces. (1) Unless qualified under
another provision of this part or under the provisions of 10 U.S.C. 772,
former members who served honorably during a declared or undeclared war
and whose most recent service was terminated under honorable conditions
may wear the uniform in the highest grade held during such war service
only upon the following occasions and in the course of travel incidents
thereto:
(i) Military funerals, memorial services, weddings, and inaugurals.
(ii) Parades on national or State holidays; or other parades or
ceremonies of a patriotic character in which any active or reserve U.S.
military unit is taking part.
(2) Wearing of the uniform or any part thereof at any other time or
for any other purpose is prohibited.
(c) Medal of Honor holders. Persons who have been awarded the Medal
of Honor may wear the uniform at their pleasure except under the
circumstances set forth in paragraph (a) of this section.
[35 FR 1236, Jan. 30, 1970]
PART 54--ALLOTMENTS FOR CHILD AND SPOUSAL SUPPORT--Table of Contents