[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 1997 Edition]
[From the U.S. Government Printing 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.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 1997), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

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 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I), and Acts Requiring Publication 
in the Federal Register (Table II). A list of CFR titles, chapters, and 
parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408.
SALES
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                              Raymond A. Mosley,
                                    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)

  --------------------------------------------------------------------

SUBTITLE A--Department of Defense:                                  Part
Chapter i--Office of the Secretary of Defense...............           2

[[Page 3]]

                         Subtitle A--Department

                               of Defense

  --------------------------------------------------------------------

[[Page 5]]



              CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE




                            (Parts 1 to 190)

  --------------------------------------------------------------------

  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

[[Page 6]]

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

[[Page 7]]

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

[[Page 9]]

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


[[Page 11]]



                        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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    (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)
---------------------------------------------------------------------------

    \3\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (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:
---------------------------------------------------------------------------

    \4\ See footnote 3 to Sec. 2.4(b).
    \5\ See footnote 3 to Sec. 2.4(b).
---------------------------------------------------------------------------

    (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
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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.
Titan Corp., The
Todd Shipyards Corp.
Tohoku Electric Power Co., Inc.
Tokyo Electric Power Co., Inc.
Tootsie Roll Industries, Inc.
Tower Air, Inc.
Tracor Applied Sciences Inc.
Tracor, Inc.
Trafalgar House PLC
Tramp Group Ltd.
Trandes Corp.
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.
U.S. Electrodynamics Inc.
U.S. Hardware Supply Inc.
U.S. Oil & Refining Co.
UES Inc.
UNC Holdings, Inc.
URS Consultants Inc. (Del)
Unidyne Corp.
Unified Industries, Inc.
Unisys Corp,
Unisys Corporations Government
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
University of Texas at Arlington

[[Page 84]]

Urban General Contractors, Inc.
User Technology Associates
Utah State University
VSE Corp.
Valenzuela Engineering Inc.
Van Ommeren Nederland BV
Vanguard Research, Inc.
Varian Associates, Inc.
Varo, Inc.
Vector Microwave Research Corp.
Vector Research Co., Inc.
Veda, Inc.
Veda International Inc.
Versar, Inc.
Vickers America Holdings Inc.
Vickers Inc.
Vinnell Corp.
Virtexco Corp.
Vitro Corp.
Vitro Services Corp.
Vitronics Inc.
Vought Aircraft Co.
Vredenburg, R.M. & Co.
Wallenius Ferry AB
Wang Federal, Inc.
Warehouses Services Agency SARL
Washington Beef, Inc.
Washington, University of
Waterman Steamship Corp.
Webb Electric Co. of Fla.
Weeks Marine, Inc.
Wellco Enterprises
West Coast Contractors of Nev.
Westar Corp.
Westinghouse Elect Sys Venture
Westinghouse Electric Corp.
Westinghouse Norden Systems
Weston, Roy F., Inc.
Whitesell-Green Inc.
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.
Wyle Laboratories
Xenotechnix Inc.
Xerox Corp.
Xontech Inc.
Yokosuka City Water Works Bureau
York International Corp.
Yonkers Contracting Co. Inc.
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:

[[Page 94]]

    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

[[Page 99]]

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.
---------------------------------------------------------------------------

    (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\
---------------------------------------------------------------------------

    \7\ See footnote 1 to Sec. 43.6(d)(10).
---------------------------------------------------------------------------

    (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\
---------------------------------------------------------------------------

    \8\ See footnote 1 to Sec. 43.6(d)(10).
---------------------------------------------------------------------------

    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.''
---------------------------------------------------------------------------

    \1\ Copies may be obtained if needed, from the U.S. Naval 
Publications and forms Center, Attn: Code 1062, 5801 Tabor Avenue, 
Philadelphia, PA.
---------------------------------------------------------------------------

    (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.
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 545.3(d)(6).
---------------------------------------------------------------------------

    (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.
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 45.3(d)(6).
---------------------------------------------------------------------------

    (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
[GRAPHIC] [TIFF OMITTED] TC23OC91.003


[[Page 135]]

[GRAPHIC] [TIFF OMITTED] TC23OC91.004



[[Page 136]]

[GRAPHIC] [TIFF OMITTED] TC23OC91.005



[[Page 137]]

[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.)
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    (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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    (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]]

---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

    \1\ Filed as part of the original document. Copies may be obtained 
from Military Personnel Office.
---------------------------------------------------------------------------



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.
---------------------------------------------------------------------------



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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    (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




Sec.
54.1  Purpose.
54.2  Applicability and scope.
54.3  Definitions.
54.4  Policy.
54.5  Responsibilities.
54.6  Procedures.

    Authority: 15 U.S.C. 1673, 37 U.S.C. 101, 42 U.S.C. 665.

    Source: 51 FR 23755, July 1, 1986, unless otherwise noted.



Sec. 54.1  Purpose.

    Under section 65 of title 42, United States Code, this part provides 
policy on statutorily required child or child and spousal support 
allotments, assigns responsibilities, and prescribes procedures.



Sec. 54.2  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense 
(OSD) and the Military Departments. The term ``Military Services,'' as 
used herein, refers to the Army, Navy, Air Force, and Marine Corps.
    (b) Its provisions cover members of the Military Services on 
extended active duty. This does not include a member under a call or 
order to active duty for a period of less than 30 days.



Sec. 54.3  Definitions.

    (a) Authorized person. Any agent or attorney of any State having in 
effect a plan approved under part D of title IV of the Social Security 
Act (42 U.S.C. 651-664), who has the duty or authority to seek recovery 
of any amounts owed as child or child and spousal support (including, 
when authorized under the State plan, any official of a political 
subdivision); and the court that has authority to issue an order against 
a member for the support and maintenance of a child or any agent of such 
court.
    (b) Child support. Periodic payments for the support and maintenance 
of a child or children, subject to and in accordance with State or local 
law. This

[[Page 166]]

includes, but is not limited to, payments to provide for health care, 
education, recreation, and clothing or to meet other specific needs of 
such a child or children.
    (c) Designated official. The representative of the Military Service 
concerned who is authorized to receive and to process notices under this 
part. See Sec. 54.6(f) for a listing of designed officials.
    (d) Notice. A court order, letter, or similar documentation issued 
by an authorized person providing notification that a member has failed 
to make periodic support payments under a support order.
    (e) Spousal support. Periodic payments for the support and 
maintenance of a spouse or former spouse, in accordance with State and 
local law. It includes, but is not limited to, separate maintenance, 
alimony while litigation continues, and maintenance. Spousal support 
does not include any payment for tranfer of property or its value by an 
individual to his or her spouse or former spouse in compliance with any 
community property settlement, equitable distribution of property, or 
other division of property between spouses or former spouses.
    (f) Support order. Any order providing for child or child and 
spousal support issued by a Court of competent jurisdiction within any 
State, territory, or possession of the United States, including Indian 
tribal courts, or in accordance with administrative procedures 
established under State law that affords substantial due process and is 
subject to judicial review.



Sec. 54.4  Policy.

    The Department of Defense is obligated by 42 U.S.C. 665 to require 
child, or child and spousal, support allotments from the pay and 
allowances of a member who has failed to make periodic payments under a 
support order in a total amount equal to the support payable for 2 
months or longer. The member's allotment shall be established by the 
Secretary of the Military Department concerned, or the Secretary's 
designee, provided all requirements of this part have been met.



Sec. 54.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Comptroller) (ASD(C)) shall 
provide guidance, monitor compliance with this part, and have the 
authority to change or modify the procedures in Sec. 54.6.
    (b) The Secretaries of the Military Departments shall comply with 
this part.



Sec. 54.6  Procedures.

    (a) Notice to designated official. (1) An authorized person shall 
send to the designated official of the member's Military Service a 
signed notice that includes:
    (i) A statement that delinquent support payments equal or exceed the 
amount of support payable for 2 months under a support order, and a 
request that an allotment be initiated pursuant to 42 U.S.C. 665.
    (ii) A certified copy of the support order.
    (iii) The amount of the monthly support payment. Such amount may 
include arrearages, if a support order specifies the payment of such 
arrearages. The notice shall indicate how much of the amount payable 
shall be applied toward liquidation of the arrearages.
    (iv) A statement that delinquent support payments are more than 12 
weeks in arrears, if appropriate.
    (v) Sufficient information identifying the member to enable 
processing by the designated official. The following information is 
requested:
    (A) Full name;
    (B) Social Security Number;
    (C) Military Service (Army, Navy, Air Force, or Marine Corps).
    (vi) The full name and address of the allottee. The allottee shall 
be an authorized person, the authorized person's designee, or the 
recipient named in the support order.
    (vii) Any limitations on the duration of the support allotment.
    (viii) A certificate that the official sending the notice is an 
authorized person.
    (2) The notice shall be sent by mail or delivered in person to the 
appropriate designated official of the Military Service. The designated 
official

[[Page 167]]

shall note the date and time of receipt on the notice.
    (3) The notice is effective when it is received in the office of the 
designated official.
    (4) When the notice does not sufficiently identify the member, it 
shall be returned directly to the authorized person with an explanation 
of the deficiency. However, before the notice is returned, if there is 
sufficient time, an attempt shall be made to inform the authorized 
person who sent the notice that it will not be honored unless adequate 
information is supplied.
    (5) Upon receipt of effective notice of delinquent support payments, 
together with all required supplementary documents and information, the 
designated official shall identify the member from whom moneys are due 
and payable. Under Sec. 54.6(d), the allotment shall be established in 
the amount necessary to comply with the support order and to liquidate 
arrearages if provided by a support order when the maximum amount to be 
allotted under this provision, together with any other moneys withheld 
for support from the member, does not exceed:
    (i) Fifty percent of the member's disposable earnings for any month 
in which the member asserts by affidavit or other acceptable evidence 
that he or she is supporting a spouse, dependent child, or both, other 
than a party in the support order. When the member submits evidence, 
copies shall be sent to the authorized person, together with 
notification that the member's support claim shall be honored. If the 
support claim is contested by the authorized person, that authorized 
person may refer this matter to the appropriate court or other authority 
for resolution.
    (ii) Sixty percent of the member's disposable earnings for any month 
in which the member fails to assert by affidavit or other acceptable 
evidence that he or she is supporting a spouse, dependent child, or 
both.
    (iii) Regardless of the limitations above, an additional 5 percent 
of the member's disposable earnings shall be withheld when the notice 
states that the total amount of the member's support payments is 12 or 
more weeks in arrears.
    (b) Disposable Earnings. (1) In determining disposable earnings for 
a member assigned within the contiguous United States, include the 
following payments. For definitions of these items, see DoD 5000.12-M.
    (i) Basic pay (including Military Service academy cadet and 
midshipman pay).
    (ii) Basic allowance for quarters for members with dependents, and 
for members without dependents in grade E-7 or higher.
    (iii) Basic allowance for subsistence for commissioned and warrant 
officers.
    (iv) Special pay for physicians, dentists, optometrists, and 
veterinarians.
    (v) Submarine pay.
    (vi) Flying pay (all crew members).
    (vii) Diving pay.
    (viii) Proficiency pay or special duty assignment pay.
    (ix) Career sea pay.
    (2) To determine disposable earnings for a member assigned outside 
of the contiguous United States, the following shall supplement the 
payments listed in paragraph (b)(1) of this section:
    (i) Foreign duty pay.
    (ii) Special pay for duty subject to hostile fire (applies only to 
members permanently assigned in a designated area).
    (iii) Family separation allowances (only under certain type-II 
conditions).
    (iv) Special pay for overseas extensions
    (c) Calculations of disposable earnings shall exclude:
    (1) Amounts owed by the member to the United States.
    (2) Amounts mandatorily withheld for the U.S. Soldiers' and Airmen's 
Home.
    (3) Fines and forfeitures ordered by a court-martial or by a 
commanding officer.
    (4) Federal and State employment and income taxes withheld to the 
extent that the amount deducted is consistent with the member's tax 
liability.
    (5) Deductions for the Servicemen's Group Life Insurance coverage.
    (6) Advances of pay received by the member before receipt of notice 
(see paragraph (c)(1) of this section) that may be due and payable by 
the member

[[Page 168]]

at some future date. Requests for advances received after notice for a 
statutorily required support allotment shall be reduced by the amount of 
the statutorily required support allotment.
    (7) Other amounts required by law to be deducted.
    (d) Notice to member and member's Commanding Officer.
    (1) As soon as possible, but not later than 15 calendar days after 
the date of receipt of notice, the designated official shall send to the 
member, at his or her duty station, written notice:
    (i) That notice has been received from an authorized person, 
including a copy of the documents submitted.
    (ii) Of the maximum limitations provided in 15 U.S.C. 1673, with a 
request that the member submit supporting affidavits or other 
documentation necessary for determining the applicable percentage 
limitation.
    (iii) That the member may submit supporting affidavits or other 
documentation as evidence that the information contained in the notice 
is in error.
    (iv) That by submitting supporting affidavits or other necessary 
documentation, the member consents to the disclosure of such information 
to the party requesting the support allotment.
    (v) Of the amount or percentage that will be deducted if the member 
fails to submit the documentation necessary to enable the designated 
official to respond to the notice within the prescribed time limits.
    (vi) That a consultation with a judge advocate or legal officer will 
be provided by the Military Service, if possible, and that the member 
should immediately contact the nearest legal services office.
    (vii) Of the date that the allotment is scheduled to begin.
    (2) The designated official shall notify the member's commanding 
officer, or designee, of the need for consultation between the member 
and a judge advocate or legal officer. The designated official shall 
provide the member's commanding officer, or designee, with a copy of the 
notice and other legal documentation served on the designated official.
    (3) The Military Services shall provide the member with the 
following:
    (i) When possible, an in-person consultation with a judge advocate 
or legal officer of the Military Service concerned, to discuss the legal 
and other factors, involved in the member's support obligation and 
failure to make payment.
    (ii) Copies any other documents submitted with the notice.
    (4) The member's commanding officer, or designee, shall confirm in 
writing to the designated official within 30 days of notice that the 
member received a consultation concerning the member's support 
obligation and the consequences of failure to make payments, or when 
appropriate, of the inability to arrange such consultation and the 
status of continuing efforts to fulfill the consultation requirement.
    (5) If, within 30 days of the date of the notice, the member has 
furnished the designated official affidavits or other documentation 
showing the information in the notice to be in error, the designated 
official shall consider the member's response. The designated official 
may return to the authorized person, without action, the notice for a 
statutorily required support allotment together with the member's 
affidavit and other documentation, if the member submits substantial 
proof of error, such as:
    (i) The support payments are not delinquent.
    (ii) The underlying support order in the notice has been amended, 
superseded, or set aside.
    (e) Payments. (1) Except as provided in paragraph (e)(3) the 
Secretary of the Military Department concerned, or designee, shall make 
the support allotment by the first end-of-month payday after the 
designated official is notified that the member has had a consultation 
with a judge advocate or legal officer, or that a consultation was not 
possible, but not later than the first end-of-month payday after 30 days 
have elapsed from the date of the notice to the member. The Military 
Services will not be required to vary their normal military allotment 
payment cycle to comply with the notice.
    (2) If several notices are sent with respect to the same member, 
payments

[[Page 169]]

shall be satisfied on a first-come, first-served basis within the amount 
limitations in paragraph (a)(5) of this section.
    (3) When the member identified in the notice is found not to be 
entitled to money due from or payable by the Military Service, the 
designated official shall return the notice to the authorized person and 
shall advise him or her that no money is due from or payable by the 
Military Service to the named individual. When it appears that amounts 
are exhausted temporarily or otherwise unavailable, the authorized 
person shall be told why, and for how long, any money is unavailable, if 
known. If the member separates from active duty, the authorized person 
shall be informed that the allotment is discontinued.
    (4) Payment of statutorily required allotments shall be enforced 
over other voluntary deductions and allotments when the gross amount of 
pay and allowances is not sufficient to permit all authorized deductions 
and collections.
    (5) The authorized person or allottee shall notify the designated 
official promptly if the operative court order upon which the allotment 
is based is vacated, modified, or set aside. The designated official 
shall also be notified of any events affecting the allottee's 
eligibility to receive the allotment, such as the former spouse's 
remarriage, if a part of the payment is for spousal support, and notice 
of a change in eligibility for child support payments under 
circumstances of death, emancipation, adoption, or attainment of 
majority of a child whose support is provided through the allotment.
    (6) An allotment established under this Directive shall be adjusted 
or discontinued upon notice from the authorized person.
    (7) Neither the Department of Defense, nor any officer or employee 
thereof, shall be liable for any payment made from moneys due from, or 
payable by, the Department of Defense to any individual pursuant to 
notice regular on its face, if such payment is made in accordance with 
this part. If a designated official receives notices based on a support 
order which, on its face, appears to conform to the laws of the 
jurisdiction from which it was issued, the designated official shall not 
be required to ascertain whether the authority that issued the order had 
obtained personal jurisdiction over the member.
    (f) List of designated officials.

    Army--Commander, U.S. Army Finance and Accounting Center, ATTN: 
FINCL-G, Indianapolis, IN 46249-0160, (317) 542-2155.
    Navy--Director, Navy Family Allowance Activity, Anthony J. 
Celebrezze Federal Building, Cleveland, OH 44199, (216) 522-5301.
    Air Force--Commander, Air Force Accounting and Finance Center, ATTN: 
JA, Denver, CO 80279, (303) 370-7524.
    Marine Corps--Commanding Officer, Marine Corps Finance Center (Code 
AA), Kansas City, MO 64197, (816) 926-7103.



PART 55--PHYSICAL EXAMINATIONS AND ANNUAL CERTIFICATES OF PHYSICAL CONDITION--Table of Contents




Sec.
55.1  Purpose.
55.2  Applicability.
55.3  Policy.

    Authority: 10 U.S.C. 1004(a).

    Source: 25 FR 14357, Dec. 31, 1960, unless otherwise noted.



Sec. 55.1   Purpose.

    To establish a uniform policy relating to physical examinations and 
certificates of physical condition for reservists (other than retired 
reservists) when not on active duty.



Sec. 55.2   Applicability.

    This part applies to all Military Departments in the administration 
of members of reserve components.



Sec. 55.3   Policy.

    (a) Each member of the Ready Reserve who is not on active duty shall 
be examined as to his physical fitness at least once every four years, 
or more often as the Secretary concerned considers necessary, and shall 
execute and submit annually a certificate of physical condition.
    (b) Each member of the Standby Reserve in an active status, or on an 
inactive status list, shall execute and submit annually a certificate of 
physical condition.
    (c) Members of the Standby Reserve may be examined as to their 
physical

[[Page 170]]

condition if the Secretary concerned considers such action necessary.
    (d) Physical examinations will be reported on Standard Form 88, 
``Report of Physical Examination'' and Standard Form 89, ``Report of 
Medical History.'' To accomplish physical examinations, the Military 
Departments are authorized to use jointly all available medical 
facilities and to award points creditable toward retirement to medical 
reservists not on active duty for administering physical examinations or 
to use civilian physicians on a reimbursable basis where governmental 
medical facilities are not available.
    (e) The following action may be taken in regard to those reservists 
failing to submit such information as may be requested by the 
appropriate Secretary after every reasonable effort has been made to 
obtain such information:
    (1) Reservists having obligation under the Universal Military 
Training and Service Act, as amended, may be ordered to active duty or 
active duty for training, as deemed appropriate under the provisions of 
section 672(b), title 10, U.S. Code, for the purpose of securing the 
necessary information.
    (2) All other reservists may be considered for discharge pursuant to 
section 1162(a) of title 10 U.S. Code.



PART 56--NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS AND ACTIVITIES ASSISTED OR CONDUCTED BY THE DEPARTMENT OF DEFENSE--Table of Contents




Sec.
56.1  Purpose.
56.2  Applicability and scope.
56.3  Definitions.
56.4  Policy.
56.5  Responsibilities.
56.6  Information requirements.
56.7  Programs and activities subject to this part.
56.8  Guidelines for determining discriminatory practices.
56.9  Ensuring compliance with this part in Federal financial assistance 
          programs and activities.
56.10  Ensuring compliance with this part in programs and activities 
          conducted by the Department of Defense.

    Authority: Pub. L. 93-112, sec. 504 29 U.S.C. 794, as amended by 
Pub. L. 95-602, 92 Stat. 2982; Pub. L. 93-112, sec. 7, 29 U.S.C. 706, as 
amended by Pub. L. 93-516, 88 Stat. 1619; Executive Order 12250; 
Executive Order 12291; Executive Order 12067.

    Source: 47 FR 15124, Apr. 8, 1982, unless otherwise noted.



Sec. 56.1  Purpose.

    This part implements section 504 of Public Law 93-112, 
``Rehabilitation Act of 1973,'' September 26, 1973 (29 U.S.C. 794) 
(1976); section 111 of Pub. L. 93-516, ``Rehabilitation Act Amendments 
of 1974,'' December 7, 1974 (29 U.S.C. 706, 780, 790) (1976); section 
119 of Pub. L. 95-602, ``Rehabilitation, Comprehensive Services, and 
Developmental Disabilities Amendments of 1978,'' November 6, 1978 (29 
U.S.C. 794) (supp. III 1979); and Department of Justice Regulation, 
``Implementation of Executive Order 12250, Nondiscrimination on the 
Basis of Handicap in Federally Assisted Programs,'' August 11, 1981 (28 
CFR part 41) to prohibit discrimination based on handicap in programs 
and activities receiving Federal financial assistance disbursed by the 
Department of Defense and in programs and activities conducted by the 
Department of Defense.



Sec. 56.2  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Organization of the Joint Chiefs of Staff, the 
National Guard Bureau, and the Defense Agencies (hereafter referred to 
as ``DoD Components'') insofar as they:
    (1) Extend Federal financial assistance to programs and activities 
that affect handicapped persons in the United States and that are 
covered by this part (see Sec. 56.7(b)).
    (2) Conduct programs and activities that affect handicapped persons 
in the United States and that are covered by this part (see 
Sec. 56.7(c)).
    (b) This part also applies to each recipient of Federal financial 
assistance disbursed by the Department of Defense and to each program 
and activity that receives or benefits from such assistance, insofar as 
such recipient, program, or activity affects a handicapped person in the 
United States.

[[Page 171]]



Sec. 56.3  Definitions.

    (a) Facility. All or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or any interest in such property.
    (b) Federal financial assistance. Any grant, loan, contract (other 
than a procurement contract or a contract of insurance or guaranty), or 
any other arrangement by which the Federal Government provides or 
otherwise makes available assistance in the form of:
    (1) Funds.
    (2) Services performed by Federal personnel, including technical 
assistance, counseling, training, and provision of statistical or expert 
information.
    (3) Real and personal property or any interest in or use of such 
property, including:
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration.
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value is not returned to the 
Federal government.
    (c) Handicapped person. Any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment. For purposes of this Directive as it relates to employment 
programs of recipients, such term does not include any individual who is 
an alcoholic or drug abuser and whose current use of alcohol or drugs 
prevents such individual from performing the duties of the job in 
question, or whose employment, by reason of such current alcohol or drug 
abuse, would constitute a direct threat to property or to the safety of 
others. As used in this paragraph:
    (1) Physical or mental impairment. Any physiological disorder or 
condition, cosmetic disfigurement, or anatomical loss affecting one or 
more of the following body systems: Neurological; musculoskeletal and 
special sense organs; respiratory, including speech organs; 
cardiovascular; reproductive; digestive; genito-urinary; hemic and 
lymphatic; skin; and endocrine; or any mental or psychological disorder, 
such as mental retardation, organic brain syndrome, emotional or mental 
illness, and specific learning disabilities. The term includes such 
diseases and conditions as orthopedic, visual, speech, and hearing 
impairments; cerebral palsy, epilepsy, and muscular dystrophy; multiple 
sclerosis; cancer; heart disease; diabetes; drug abuse; and alcoholism.
    (2) Major life activities. Functions such as caring for one's self, 
performing manual tasks, walking, seeing, hearing, speaking, breathing, 
learning, and working.
    (3) Has a record of such an impairment. Has a history of, or has 
been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment. Has: (i) A physical or 
mental impairment that does not substantially limit major life 
activities but is treated by a recipient or DoD Component as 
constituting such a limitation;
    (ii) A physical or a mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) None of the impairments defined above, but is treated by a 
recipient or DoD Component as having such an impairment.
    (d) Historic properties. Those properties listed or eligible for 
listing in the National Register of Historic Places.
    (e) Include; such as. Not all the possible items are covered, 
whether like or unlike the ones named.
    (f) Qualified handicapped person. A handicapped person who:
    (1) With respect to employment, can perform the essential functions 
of the job in question with reasonable accommodation.
    (2) With respect to services, meets the essential eligibility 
requirements for receiving the services in question.
    (g) Recipient. Any State or political subdivision or instrumentality 
thereof, any public or private agency, institution, organization, or 
other entity, or

[[Page 172]]

any person that receives Federal financial assistance directly or 
through another recipient, including any successor, assignee, or 
transferee of a recipient, but not the ultimate beneficiary of the 
assistance. The term includes persons and entities applying to be 
recipients.
    (h) Substantial impairment. A significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. 56.4  Policy.

    It is DoD policy that no qualified handicapped person shall be 
subjected to discrimination on the basis of handicap under any program 
or activity that receives or benefits from Federal financial assistance 
disbursed by a DoD Component or under any Federal program or activity 
that is conducted by a DoD Component. Guidelines for determining actions 
that discriminate against handicapped persons are prescribed in 
Sec. 56.8.



Sec. 56.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Manpower, Reserve Affairs, 
and Logistics) (ASD(MRA&L)), or designee, shall monitor compliance with 
this part. In discharging this responsibility, the ASD(MRA&L), or 
designee, shall:
    (1) Coordinate efforts of DoD Components to enforce this part.
    (2) Assist in the development of standards and procedures 
promulgated pursuant to Sec. 56.9.
    (3) Perform the responsibilities assigned to the ASD(MRA&L) in 
Sec. 56.8, 9, and 10.
    (4) Otherwise assist DoD Components in implementing this part.
    (b) The Heads of DoD Components shall comply with this part. In 
discharging this responsibility, they shall:
    (1) Designate a policy-level official to ensure compliance with this 
part receive and investigate complaints filed under this part and 
otherwise manage DoD Component responsibilities under this part.
    (2) Notify the ASD(MRA&L), or designee, of the name, position, 
location, and telephone number of persons selected by them to be policy-
level officials within 15 calendar days of such a selection.
    (3) Issue guidelines pursuant to Sec. 56.9.
    (4) Cooperate fully with the ASD(MRA&L), or designee, in that 
official's performance of the responsibilities assigned herein, 
including furnishing to the ASD(MRA&L), or designee, in a timely fashion 
any requested reports and information.
    (5) Assign sufficient personnel to implement and to ensure effective 
enforcement of this part.



Sec. 56.6  Information requirements.

    (a) Each DoD Component shall maintain a log of all complaints that 
are filed with it or its recipients under this part. The log shall 
contain the complainant's name (last name, first, and middle initial) 
and address (street address, city, State, and zip code), the recipient's 
name (if this refers to a person, last name, first, and middle initial) 
and address (street address, city, State, and zip code), the nature of 
the complaint, and the current status of the complaint investigation or 
resolution. Each DoD Component shall submit a narrative summary report 
on complaints by memorandum to the ASD(MRA&L), or designee, before July 
15 and January 15 of each year. This reporting requirement has been 
assigned Report Control Symbol DD-M(SA)1596.
    (b) Each DoD Component shall submit a narrative report by memorandum 
to the ASD(MRA&L), or designee, whenever, pursuant to enclosure 4 of 
this directive, the DoD Component notifies an applicant or recipient 
that noncompliance with this part is indicated. The report shall include 
the recipient's name (if this refers to a person, last name, first, and 
middle initial) and address (street address, city, State, and zip code), 
the date (YYMMDD) and nature of the finding, and the name of the 
applicable federally assisted program or activity. This reporting 
requirement has been assigned Report Control Symbol DD-M(AR)1597.
    (c) The recordkeeping requirements contained in Sec. 56.9(c)(2), 
have been approved by the Office of Management and Budget (OMB) under 44 
U.S.C. chapter 35 and have been assigned OMB No. 0704-0102.

[[Page 173]]



Sec. 56.7  Programs and activities subject to this part.

    (a) This part applies to all DoD Components and recipients of 
Federal financial assistance disbursed by a DoD Component insofar as the 
programs and activities of the DoD Components and recipients affect 
handicapped persons in the United States. Existing programs and 
activities that are assisted or conducted by a DoD Component and that 
are subject to this part but do not appear in paragraph (b) or (c) of 
this section, are covered even though not listed. DoD Components must 
report new programs and activities that are subject to this part to the 
ASD (MRA&L), or designee, within 15 calendar days of their creation or 
funding.
    (b) Federal financial assistance programs subject to this part 
include: (1) title 32, United States Code, sections 101-716 (1976 and 
supp. III 1979): the Army and Air National Guard.
    (2) Title 40, U.S. Code, sections 483, 484, and 512 (1976); title 
49, U.S. Code, sections 1101 and 1107 (1976); and title 10, U.S. Code, 
sections 2541, 2544, 2571, 2576, 2662, 7308, 7541, 7542, 7545, 7546, and 
7547 (1976 and supp. IV 1980): Various programs involving the loan or 
other disposition of surplus, obsolete, or unclaimed property.
    (3) Title 10 U.S. Code, sections 4307-4311 (1976), and the annual 
Department of Defense Appropriations Act: National Program for the 
Promotion of Rifle Practice.
    (4) Secretary of the Navy Instruction 5720.19E, ``Navy Science 
Cruiser Program,'' February 24, 1977.
    (5) Title 10 U.S. Code, section 9441 (1976 and supp. IV 1980): Civil 
Air Patrol.
    (6) Title 41 U.S. Code, sections 501-509 (supp. III 1979): Federal 
grants and cooperative agreements.
    (7) Title 33 U.S. Code, section 426 (1976 and supp. III 1979): Army 
Corps of Engineers participation in cooperative investigations and 
studies concerning the erosion of shores of coastal and lake waters.
    (8) Title 33 U.S. Code, sections 426e-426h (1976): Army Corps of 
Engineers assistance in the construction of works for the restoration 
and protection of shores.
    (9) Title 16 U.S. Code, section 460d (1976): Construction and 
operation of public park and recreational facilities in water resource 
development projects under the administrative jurisdiction of the 
Department of the Army.
    (10) Title 33 U.S. Code, section 701c-3 (1976): Payment to States of 
lease receipts from lands acquired by the United States for flood 
control, navigation, and allied purposes.
    (11) Title 33 U.S. Code, sections 558c and 702d-1 (1976); title 10, 
U.S. Code, sections 2668 and 2669 (1976); title 43, U.S. Code, section 
961 (1976); and title 40, U.S. Code, section 319 (1976): Grants of 
easements without consideration, or at a nominal or reduced 
consideration, on land under the control of the Department of the Army 
at water resource development projects.
    (12) Title 33 U.S. Code, sections 540 and 577 (1976): Army Corps of 
Engineers assistance in the construction of small boat harbor projects.
    (13) Title 33 U.S. Code, section 701s (1976): Emergency bank 
protection works constructed by the Army Corps of Engineers for 
protection of highways, bridge approaches, and public works.
    (14) Title 33 U.S. Code, section 633 (1976): Army Corps of Engineers 
contracts for the protection, alteration, reconstruction, relocation, or 
replacement of structures and facilities.
    (15) Title 50 U.S. Code, section 453 (1976): Defense Logistics 
Agency loans of industrial equipment to educational institutions (Tools 
for Schools).
    (16) Title 33 U.S. Code, section 610 (1976): Provision of 
specialized services or technical information by the Army Corps of 
Engineers to State and local governments for the control of aquatic 
plant growths in rivers, harbors, and allied waters.
    (17) Title 42 U.S. Code, section 1962d-16 (1976): Provision of 
specialized services by the Army Corps of Engineers to any State for the 
preparation of comprehensive plans for drainage basins located within 
the boundaries of said State.
    (18) Title 33 U.S. Code, section 603a (1976): Provision of 
specialized services by the Army Corps of Engineers to improve channels 
for navigation.

[[Page 174]]

    (19) Title 33 U.S. Code, section 701g (1976): Provision of 
specialized services by the Army Corps of Engineers to reduce flood 
damage.
    (20) Title 24 U.S. Code, sections 44c and 47 (1976): United States 
Soldiers' and Airmen's Home.
    (21) Title 10 U.S. Code, chapter 55, as implemented by DoD 6010.8-R, 
``Civilian Health and Medical Program of the Uniformed Services 
(CHAMPUS),'' January 10, 1977.
    (c) All programs and activities conducted by the Department of 
Defense that affect handicapped persons in the United States are subject 
to this part. They include:
    (1) Promulgation of rules and regulations for public comment in a 
manner that grants handicapped persons a reasonable opportunity for such 
comment (such as by making cassette recordings of proposed rules).
    (2) Public meetings, conferences, or seminars sponsored or conducted 
by a DoD Component but held in nongovernmental buildings.
    (3) Public meetings, conferences, or seminars sponsored or conducted 
by a DoD Component or by a non-DoD organization but held in a DoD 
building.
    (4) Open houses, memorial services, tours, or other ceremonies held 
on or in DoD property.
    (5) Military museums.
    (6) Historic vessels.
    (7) Historic buildings and properties maintained by a DoD Component 
and properties designated as historic under a statute of the appropriate 
State or local governmental body.
    (8) Schools operated by the Department of Defense within the United 
States pursuant to section 6 of Public Law 81-874, title 20, U.S. Code, 
section 241 (1976).



Sec. 56.8  Guidelines for determining discriminatory practices.

    (a) General prohibitions against discrimination. (1) No qualified 
handicapped person shall, on the basis of handicap, be excluded from 
participation in, be denied the benefit of, or otherwise be subjected to 
discrimination under any program or activity that is conducted by the 
Department of Defense or that receives or benefits from Federal 
financial assistance disbursed by the Department of Defense.
    (2) A recipient or DoD Component may not, directly or through 
contractual, licensing, or other arrangements, on the basis of handicap:
    (i) Provide different or separate aid, benefits, or services to 
handicapped persons than is provided to others unless such action is 
necessary to provide qualified handicapped persons with aid, benefits, 
or services that are equal to those provided to others;
    (ii) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (iii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iv) Provide a qualified handicapped person with an aid, benefit, or 
service that is not as effective as that afforded to others; or
    (v) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity granted to others 
receiving the aid, benefit, or service.
    (3) A recipient or DoD Component may not deny a qualified 
handicapped person the opportunity to participate in programs or 
activities that are not separate or different from regular programs or 
activities, even if such separate or different programs and activities 
are permissible under paragraph (a)(2)(i) of this section.
    (4) A recipient or DoD Component may not provide assistance to an 
agency, organization, or person that discriminates on the basis of 
handicap in providing any aid, benefit, or service to beneficiaries of 
the recipient's program or activity.
    (5) A recipient of DoD Component may not deny, on the basis of 
handicap, a qualified handicapped person the opportunity to participate 
as a member of planning or advisory boards.
    (6) A recipient or DoD Component may not use, directly or through 
contractual or other arrangements, criteria or methods of administration 
that:

[[Page 175]]

    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap;
    (ii) Defeat or substantially impair accomplishment of the objectives 
of the recipient's or DoD Component's program or activity with respect 
to handicapped persons; or
    (iii) Perpetuate discrimination by another recipient if both 
recipients are subject to common administrative control or are agencies 
of the same State.
    (7) In determining the site or location of a facility, a recipient 
or DoD Component may not make selections that:
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
that receives or benefits from Federal financial assistance; or
    (ii) Defeat or substantially impair, with respect to handicapped 
persons, the accomplishment of the objectives of the program or 
activity.
    (8) Recipients and DoD Components shall administer programs and 
activities in the most integrated setting appropriate to the needs of 
qualified handicapped persons.
    (9) Recipients and DoD Components shall take appropriate steps to 
make communications with their applicants, employees, and beneficiaries 
available to persons with impaired vision and hearing.
    (10) This section may not be interpreted to prohibit the exclusion 
of:
    (i) Persons who are not handicapped from benefits, programs, and 
activities limited by Federal statute or Executive order to handicapped 
persons; or
    (ii) One class of handicapped persons from a program or activity 
limited by Federal statute or Executive order to a different class of 
handicapped persons.
    (11) Recipients and DoD Components shall take appropriate steps to 
ensure that no handicapped individual is denied the benefits of, 
excluded from participation in, or otherwise subjected to discrimination 
under any program or activity receiving or benefiting from Federal 
financial assistance disbursed by the Department of Defense or under any 
program or activity conducted by the Department of Defense because of 
the absence of auxiliary aids, such as certified sign-language 
interpreters, telecommunication devises (TDDs), or other telephonic 
devices for individuals with impaired sensory, manual, or speaking 
skills.
    (b) Prohibitions against employment discrimination by recipients. 
(1) No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
that receives or benefits from Federal financial assistance disbursed by 
the Department of Defense.
    (2) The prohibition against discrimination in employment applies to 
the following:
    (i) Recruitment, advertising, and processing of applications for 
employment.
    (ii) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring.
    (iii) Rates of pay or any other form of compensation and changes in 
compensation.
    (iv) Job assignments, job classifications, organizational 
structures, position descriptions, lines of progression, and seniority 
lists.
    (v) Leaves of absence, sick leave, or any other leave.
    (vi) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient.
    (vii) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences and other related 
activities, and selection for leaves of absence for training.
    (viii) Programs and activities sponsored by the employer, including 
social and recreational programs.
    (ix) Any other term, condition, or privilege of employment.
    (3) A recipient may not participate in a contractual or other 
relationship that subjects qualified handicapped applicants or employees 
to discrimination prohibited by this section, including relationships 
with employment and referral agencies, labor unions, organizations 
providing or administering fringe benefits to employees of the 
recipient, and organizations providing training and apprenticeship 
programs.
    (4) A recipient shall make reasonable accommodation to the known 
physical

[[Page 176]]

or mental limitations of an otherwise qualified handicapped applicant or 
employee unless the recipient can demonstrate that the accommodation 
would impose an undue hardship on the operation of its program. 
Reasonable accommodation includes providing ramps, accessible restrooms, 
drinking fountains, interpreters for deaf employees, readers for blind 
employees, amplified telephones, TDDs such as Teletypewriters or 
Telephone Writers (TTYs), and tactile signs on elevators.
    (5) A recipient may not use employment tests or criteria that 
discriminate against handicapped persons, and shall ensure that 
employment tests are adapted for use by persons who have handicaps that 
impair sensory, manual, or speaking skills.
    (6) A recipient may not conduct a preemployment medical examination 
or make a preemployment inquiry about whether an applicant is a 
handicapped person or about the nature or severity of a handicap. A 
recipient may make, however, a preemployment inquiry into an applicant's 
ability to perform job-related functions.
    (7) When a recipient is taking remedial action to correct the 
effects of past discrimination or is taking voluntary action to overcome 
the effects of conditions that have resulted in limited participation by 
handicapped persons in its federally assisted program or activity, the 
recipient may invite applicants for employment to indicate whether and 
to what extent they are handicapped if:
    (i) The recipient makes clear to the applicants that the information 
is intended for use solely in connection with its remedial action 
obligations or its voluntary affirmative action efforts.
    (ii) The recipient makes clear to the applicants that the 
information is being requested on a voluntary basis, that it will be 
kept confidential as provided in paragraph (b)(9) in this section, that 
refusal to provide it will not subject the applicants to any adverse 
treatment, and that it will be used only in accordance with this part.
    (8) Nothing in this section shall prohibit a recipient from 
conditioning an offer of employment on the results of a medical 
examination conducted prior to the employee's entrance on duty if:
    (i) All entering employees are subjected to such an examination, 
regardless of handicap.
    (ii) The results of such an examination are used only in accordance 
with this part which prohibits discrimination against a qualified 
handicapped person on the basis of handicap.
    (9) Information obtained under this section concerning the medical 
condition or history of applicants shall be collected and maintained on 
separate forms that shall be accorded confidentiality as medical 
records, except that:
    (i) Supervisors and managers may be informed about restrictions on 
the work or duties of handicapped persons and about necessary 
accommodations.
    (ii) First aid and safety personnel may be informed, when 
appropriate, if a handicapping condition might require emergency 
treatment.
    (iii) Government officials investigating compliance with section 
504, Pub. L. 93-112, and this part shall be provided relevant 
information upon request.
    (c) Program accessibility--(1) General requirements. No qualified 
handicapped person shall, because a recipient's or DoD Component's 
facilities are inaccessible to or not usable by handicapped persons, be 
denied the benefits of, be excluded from participation in, or otherwise 
be subjected to discrimination under any program or activity that 
receives or benefits from Federal financial assistance disbursed by the 
Department of Defense or under any program or activity conducted by the 
Department of Defense.
    (2) Existing facilities. (i) A recipient or DoD Component shall 
operate each program or activity so that the program or activity, when 
viewed in its entirety, is readily accessible to and usable by 
handicapped persons. This does not necessarily require a recipient or 
DoD Component to make each of its existing facilities or every part of 
an existing facility accessible to and usable by handicapped persons. 
For guidance in determining the accessibility of facilities, see chapter 
18 of DoD 4270.1-M, ``Department of Defense Construction Criteria 
Manual,'' June 1, 1978, and Department of the Army, Office of the

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Chief of Engineers, Manual EM 1110-1-103, ``Design for the Physically 
Handicapped,'' October 15, 1976. Inquiries on specific accessibility 
design problems may be addressed to the ASD (MRA&L), or designee.
    (ii) When structural changes are necessary to make programs or 
activities in existing facilities accessible to the exent required by 
paragraph (c)(1) of this section.
    (A) Such changes shall be made as soon as practicable, but not later 
than 3 years after the effective date of this part however, if the 
program or activity is a particular mode of transportation (such as a 
subway station) that can be made accessible only through extraordinarily 
expensive structural changes to, or replacement of, existing facilities 
and if other accessible modes of transportation are available, the DoD 
Component concerned may extend this period of time. This extension shall 
be for a reasonable and definite period, which shall be determined after 
consultation with the ASD(MRA&L), or designee.
    (B) The recipient or DoD Component shall develop, with the 
assistance of interested persons or organizations and within a period to 
be established in each DoD Component's guidelines, a transition plan 
setting forth the steps necessary to complete such changes.
    (C) The recipient or DoD Component shall make a copy of the 
transition plan available for public inspection. At a minimum, the plan 
shall:
    (1) Identify physical obstacles in the recipient's or DoD 
Component's facilities that limit the accessibility of its program or 
activity to handicapped persons.
    (2) Describe in detail the methods that will be used to make the 
facilities accessible.
    (3) Specify the schedule for taking the steps necessary to achieve 
full program accessibility and, if the time period of the transition 
plan is longer than 1 year, identify steps that will be taken during 
each year of the transition period.
    (4) Indicate the person (last name, first, and middle initial) 
responsible for implementation of the transition plan.
    (iii) A recipient or DoD Component may comply with paragraphs 
(c)(2)(i) and (c)(2)(ii) of this section, through such means as the 
acquisition or redesign of equipment, such as telecommunication or other 
telephonic devices; relocation of classes or other services to 
accessible buildings; assignment of aides to beneficiaries, such as 
readers or certified sign-language interpreters; home visits; delivery 
of health, welfare, or other services at accessible alternate sites; 
alteration of existing facilities and construction of new facilities in 
conformance with paragraph (c)(3) in this section; or any other method 
that results in making the program or activity of the recipient or DoD 
Component accessible to handicapped persons.
    (iv) A recipient or DoD Component is not required to make structural 
changes in existing facilities when other methods are effective in 
achieving compliance with this section.
    (v) In choosing among available methods for meeting the requirements 
of this section, a recipient or DoD Component shall give priority to 
those methods that offer programs and activities to handicapped persons 
in the most integrated setting appropriate with nonhandicapped persons.
    (3) New Construction. New facilities shall be designed and 
constructed to be readily accessible to and usable by handicapped 
persons. Alterations to existing facilities shall be designed and 
constructed, to the maximum extent feasible, to be readily accessible to 
and usable by handicapped persons. For guidance in determining the 
accessibility of facilities, see chapter 18 of DoD 4270.1-M and 
Department of the Army, Office of the Chief of Engineers, Manual EM 
1110-1-103. Inquiries about specific accessibility design problems may 
be addressed to the ASD(MRA&L), or designee.
    (4) Historic properties. (i) In the case of historic properties, 
program accessibility shall mean that, when viewed in their entirety, 
programs are readily accessible to and usable by handicapped persons. 
Because the primary benefit of historic properties is the experience of 
the property itself, DoD Components and recipients shall give priority 
to those methods of achieving program accessibility that make the 
historic

[[Page 178]]

property, or portions thereof, physically accessible to handicapped 
persons.
    (ii) Methods of achieving program accessibility include:
    (A) Making physical alterations that give handicapped persons access 
to otherwise inaccessible areas or features of historic properties.
    (B) Using audiovisual materials and devices to depict otherwise 
inaccessible areas or features of historic properties.
    (C) Assigning individuals to guide handicapped persons into or 
through otherwise inaccessible portions of historic properties.
    (D) Adopting other innovative methods.
    (iii) When program accessibility cannot be achieved without causing 
a substantial impairment of significant historic features, the DoD 
Component or recipient may seek a modification or waiver of access 
standards from the ASD (MRA&L), or designee.
    (A) A decision to grant a modification or waiver shall be based on 
consideration of the following:
    (1) Scale of the property, reflecting its ability to absorb 
alterations.
    (2) Use of the property, whether primarily for public or private 
purposes.
    (3) Importance of the historic features of the property to the 
conduct of the program.
    (4) Costs of alterations in comparison to the increase in 
accessibility.
    (B) The ASD(MRA&L), or designee, shall review periodically any 
waiver granted under this paragraph and may withdraw it if technological 
advances or other changes warrant.
    (iv) The decision by the ASD(MRA&L), or designee, to grant a 
modification or waiver of access standards is subject to section 106 of 
the National Historic Preservation Act, as amended, and shall be made in 
accordance with the Advisory Council on Historic Preservation regulation 
on ``Protection of Historic and Cultural Properties'' (36 CFR part 800). 
When the property is federally owned or when Federal funds may be used 
for alterations, the ASD(MRA&L), or designee, shall obtain the comments 
of the Advisory Council on Historic Preservation when required by 
section 106 of the National Historic Preservation Act and the Advisory 
Council on Historic Preservation regulation on ``Protection of Historic 
and Cultural Properties'' (36 CFR part 800) prior to effectuation of 
structural alterations.
    (v) DoD Component guidelines prepared in accordance with Sec. 56.10 
shall include a listing of all historic properties, including historic 
ships, subject to this part and a plan for compliance with paragraph 
(c)(4) of this section.
    (5) Military museums. (i) In the case of military museums, program 
accessibility shall mean that exhibits, displays, tours, lectures, 
circulating or traveling exhibits, and other programs of military 
museums are accessible to and usable by handicapped persons. Methods of 
meeting this requirement include the following:
    (A) Museum programs may be made accessible to deaf and hearing-
impaired persons by means such as training museum staff, such as 
docents, in sign language; providing qualified sign-language 
interpreters to accompany deaf or hearing-impaired visitors; ensuring 
that clear, concise language is used on all museum signs and display 
labels; providing amplification devices; or providing printed scripts 
for films, videotapes, lectures, or tours. DoD Components are encouraged 
to use ``Museums and Handicapped Students: Guidelines for Educators,'' 
published by the National Air and Space Museum, Smithsonian Institution, 
Washington, DC 20560.
    (B) Museum programs may be made accessible to blind and visually-
impaired persons by means such as providing museum catalogues in a 
large-print edition printed over braille; providing cassette tapes, 
records, or discs for museum tours or exhibits; providing readers to 
accompany blind or visually impaired visitors; using large-print and 
braille display cards at exhibits; providing raised-line maps of the 
museum building; using raised-line drawings, reproductions, or models of 
large exhibits to facilitate tactile experiences when touching exhibits 
is prohibited; placing large-print and braille signs to identify 
galleries, elevators, restrooms, and other service areas; and permitting 
guide dogs in all museum facilities.

[[Page 179]]

    (C) Museum programs may be made accessible to other physically 
impaired persons by means such as lowering display cases; spacing 
exhibits to facilitate movement; using ramps in galleries; increasing 
lighting in exhibit areas to facilitate viewing from a distance; 
providing places to sit in exhibit areas; making restrooms accessible; 
using large-print exhibit display cards to facilitate reading from a 
distance; and sensitizing museum staff to consider the needs of 
handicapped visitors when organizing exhibits.
    (ii) DoD Component guidelines developed in accordance with paragraph 
(c)(5) of this section shall identify military museums subject to 
paragraph (c) of this section and shall contain a plan for making museum 
programs accessible to handicapped persons. Technical assistance in the 
preparation and content of these plans may be obtained from the National 
Access Center, 1419 27th Street, NW., Washington, DC 20007 ((202) 333-
1712 or TTY (202) 333-1339). In addition, community organizations that 
serve handicapped persons and handicapped persons themselves shall be 
consulted in the preparation of these plans.
    (d) Reasonable accommodation. (1) A recipient or DoD Component shall 
make reasonable accommodation to the known physical or mental 
limitations of an otherwise qualified handicapped applicant or employee 
unless the recipient or DoD Component demonstrates to the ASD(MRA&L), or 
designee, that the accommodation would impose an undue hardship on the 
operation of its program.
    (2) Reasonable accommodation includes the following:
    (i) Making facilities used by employees readily accessible to and 
usable by handicapped persons.
    (ii) Job restructuring; part-time or modified work schedules; 
acquisition or modification of equipment or devices, such as 
telecommunication or other telephonic instruments; the provision of 
readers or certified sign-language interpreters; and similar actions.
    (3) In determining whether an accommodation would impose an undue 
hardship on the operation of a recipient's or DoD Component's program, 
the ASD(MRA&L), or designee, shall consider the following factors, at a 
minimum:
    (i) The overall size of the recipient's or DoD Component's program 
or activity, such as the number of employees, number and type of 
facilities, and size of budget.
    (ii) The size of the recipient's or DoD Component's operations, 
including the composition and structure of the recipient's or DoD 
Component's workforce.
    (iii) The nature and cost of the accommodation needed.
    (4) A recipient or DoD Component may not deny any employment 
opportunity to a qualified handicapped employee or applicant for 
employment if the basis for the denial is the need to make reasonable 
accommodation to the physical or mental limitations of the employee or 
applicant.



Sec. 56.9  Ensuring compliance with this part in Federal financial assistance programs and activities.

    (a) Supplementary guidelines issued by DoD Components. (1) Whenever 
necessary, DoD Components shall publish supplementary guidelines for 
each type of program or activity to which they disburse Federal 
financial assistance within 120 days of the effective date of this part 
or of the effective date of any subsequent statute authorizing Federal 
financial assistance to a new type of program or activity. DoD 
Components shall obtain approval of these supplementary guidelines from 
the ASD(MRA&L), or designee, before issuing them. Prior to their 
issuance, the ASD(MRA&L), or designee, shall submit supplementary 
guidelines prepared pursuant to paragraph (a)(1) of this section to the 
Coordination and Review Section, Civil Rights Division, Department of 
Justice, for review and approval. To the extent that supplementary 
guidelines issued by DoD Components deal with the employment of 
civilians in programs and activities subject to this part the 
ASD(MRA&L), or designee, shall also obtain the approval of the Equal 
Employment Opportunity Commission (EEOC) in accordance with Executive 
Order 12067.
    (2) The ASD(MRA&L), or designee, and DoD Components shall ensure 
that

[[Page 180]]

their supplementary guidelines conform to the requirements of this part 
and that they provide:
    (i) A description of the types of programs and activities covered.
    (ii) Examples of prohibited practices likely to arise with respect 
to those types of programs and activities.
    (iii) A list of the data collection and reporting requirements of 
the recipients.
    (iv) Procedures for processing and investigating complaints.
    (v) Procedures for hearings to determine compliance by recipients 
with this part.
    (vi) Requirements or suggestions for affirmative action on behalf of 
qualified handicapped persons.
    (vii) Requirements for the dissemination of program and complaint 
information to the public.
    (viii) A description of the form of the assurances that must be 
executed pursuant to paragraph (b) of this section, and sample 
assurances.
    (ix) Requirements concerning the frequency and nature of 
postapproval reviews conducted pursuant to paragraph (h) of this 
section.
    (x) A period of time, provided for by Sec. 56.8(c)(2)(ii)(B), for 
the development of a transition plan that sets out the steps necessary 
to complete structural changes that might be required by Sec. 56.8(c).
    (xi) The maximum period of time that may be allowed for extensions 
that might be granted pursuant to Sec. 56.8(c)(2)(ii).
    (xii) An appendix that contains a list of identified programs and 
activities of the type covered by the supplementary guidelines, 
including the names of the programs and activities and the authorizing 
statute, regulation, or directive for each program and activity.
    (xiii) Requirements for the recipient to designate a responsible 
official to coordinate the implementation of supplementary guidelines.
    (xiv) Requirements for any other actions or procedures necessary to 
implement this part.
    (3) When the head of a DoD Component determines that it would not be 
appropriate to include on or more of the provisions described in 
paragraph (a)(2) of this section, in the supplementary guidelines of 
that DoD Component or that it is not necessary to issue such guidelines 
at all, the reasons for such determination shall be stated in writing 
and submitted to the ASD(MRA&L), or designee, for review and approval. 
Once that determination is approved, the DoD Component shall make it 
available to the public upon request.
    (4) The heads of DoD Components, or designees, shall be responsible 
for keeping the supplementary guidelines current and accurate. When a 
DoD Component determines that a program or activity should be added to 
or deleted from the guidelines, the DoD Component shall notify the 
ASD(MRA&L), or designee, in writing.
    (b) Required assurances. (1) DoD Components shall require all 
recipients to file written assurances that their programs or activities 
will be conducted in accordance with this part and supplementary 
guidelines promulgated by DoD Components. If a recipient fails to 
provide an assurance that conforms to the requirements of this section, 
the DoD Component shall attempt to effect compliance pursuant to 
paragraphs (f) through (h) of this section, provided that if assistance 
is due and payable to the recipient based on an application approved 
prior to the effective date of this part the DoD Component shall 
continue the assistance while any proceedings required by paragraphs (n) 
through (v) of this section, are pending.
    (2) DoD Components shall advise each recipient of the required 
elements of the assurance and, with respect to each program or activity, 
of the extent to which those receiving assistance from recipients shall 
be required to execute similar assurances.
    (3) DoD Component shall ensure that each assurance:
    (i) Obligates the recipient to advise the DoD Component of any 
complaints received that allege discrimination against handicapped 
persons.
    (ii) Obligates the recipient to collect and provide the items of 
information that the DoD Component lists in its supplementary guidelines 
pursuant to paragraph (a)(2)(iii) of this section.
    (iii) Is made applicable to any Federal financial assistance that 
might be

[[Page 181]]

disbursed by a DoD Component without the submission of a new 
application.
    (iv) Obligates the recipient, when the financial assistance is in 
the form of proprerty, for the period during which the property is used 
under a financial assistance agreement or is possessed by the recipient.
    (v) Includes a provision recognizing that the U.S. Government has 
the right to seek judicial enforcement of section 504 and this part.
    (c) Self-evaluation and consultation with interested persons and 
organizations. (1) DoD Components shall require recipients to conduct, 
within 6 months of the effective date of this part or of first receiving 
Federal financial assistance disbursed by the Department of Defense, a 
self-evaluation with the assistance of interested persons, including 
handicapped persons or organizations that represent them. When 
appropriate, DoD Components also shall require recipients to consult at 
least annually with such persons. The ``Department of Health, Education, 
and Welfare Section 504 Technical Assistance Reserve Directory,'' April 
1980, shall be consulted to identify likely sources for consultation. In 
conducting its self-evaluation, each recipient shall:
    (i) Evaluate the effects of its policies and practices with respect 
to its compliance with this part and the applicable DoD Component's 
supplementary guidelines.
    (ii) Modify any policies that do not meet such requirements.
    (iii) Take appropriate remedial steps to eliminate the 
discriminatory effects of any such policies or practices.
    (2) For at least 3 years following the completion of a self-
evaluation required under paragraph (c)(1) of this section, a recipient 
shall maintain on file, make available for public inspection, and 
provide to the ASD(MRA&L), or designee, upon request:
    (i) A list of the interested persons (last names, first names, and 
middle initials) consulted.
    (ii) A description of areas examined and problems identified, if 
any, with respect to those areas.
    (iii) A description of any modification made and remedial steps 
taken.
    (d) Dissemination of information. (1) Within 90 days of the 
effective date of this part or of first receiving assistance from the 
Department of Defense and on a continuing basis thereafter, each 
recipient shall notify beneficiaries and employees of their rights under 
this part and shall take appropriate steps to notify participants, 
beneficiaries, applicants for employment and employees, including those 
with impaired vision or hearing, and unions or professional 
organizations involved in collective bargaining or professional 
agreements with the recipient that the recipient does not discriminate 
on the basis of handicap in violation of this part. The notification 
shall state, when appropriate, that the recipient does not discriminate 
in admitting or providing access to or treating or employing persons in 
its programs and activities. Such notification may be accomplished by 
posting notices, publishing announcements in newspapers and magazines, 
placing notices in its publications, or distributing memoranda or other 
written communications.
    (2) If a recipient publishes or uses and makes available to 
participants, beneficiaries, applicants for employment, or employees 
recruitment materials or publications containing general information 
about the recipient's programs and activities, it shall include in those 
materials or publications a statement of the policy described in 
paragraph (d)(1) of this section. This may be accomplished by including 
appropriate inserts in existing materials and publications or by 
revising and reprinting the materials and publications.
    (3) Understandable materials developed in accordance with this 
section shall be provided to ensure that all beneficiaries and employees 
of the recipient understand the information. In addition, recipients 
shall disseminate appropriate and comprehensive information about formal 
and informal complaint and appeal procedures, including directions on 
how and where to file complaints and to appeal DoD Component decisions.
    (e) Intimidation and interference. Recipients and DoD Components 
shall take reasonable steps to ensure that no person intimidates, 
threatens, coerces, or discriminates against any individual for the 
purpose of retaliating against, interfering with, or discouraging the

[[Page 182]]

filing of a complaint, furnishing of information, or assisting or 
participating in an investigation, compliance review, hearing, or other 
activity related to the administration of this part.
    (f) Staff responsibilities. All DoD Component determinations of 
recipient compliance with this part shall be subject to reviews by the 
ASD(MRA&L), or designee. When responsibility for approving applications 
for Federal financial assistance disbursed by a DoD Component is 
assigned to regional or area offices of the DoD Component, personnel in 
such offices shall be designated to perform the functions described in 
paragraphs (h) and (o) through (w) of this section.
    (g) Access to records and facilities. Each recipient shall permit 
access to its premises by DoD officials during normal business hours 
when such access is necessary for conducting onsite compliance reviews 
or complaint investigations, and shall allow such officials to 
photograph facilities and to inspect and copy any books, records, 
accounts, and other material relevant to determining the recipient's 
compliance with this part. Information so obtained shall be used only in 
connection with the administration of this part. If the recipient does 
not have the information requested, it shall submit to the DoD Component 
a written report that contains a certification that the information is 
not available and describes the good-faith efforts made to obtain the 
information.
    (h) Compliance review. DoD Components shall determine the compliance 
of each recipient with this part as follows: (1) General. Whenever 
possible, DoD Components shall perform compliance reviews in conjunction 
with their review and audit efforts implementing title VI of the Civil 
Rights Act of 1964.
    (2) Desk audit application review. Before approving an application 
for Federal financial assistance, the DoD Component concerned shall make 
a written determination as to whether the recipient is in compliance 
with this part, based on a review of the assurance of compliance 
executed by a recipient pursuant to paragraph (b) of this section, and 
other data submitted by the recipient. When a determination cannot be 
made from the assurance and other data submitted by the recipient, the 
DoD Component concerned shall require the recipient to submit additional 
information and shall take other steps as necessary to determine the 
recipient's compliance with this part. If this additional information 
demonstrates that the recipient is in compliance with this part, the DoD 
Component shall notify the recipient promptly that it is in compliance.
    (3) Preapproval onsite review. (i) When a desk audit application 
review conducted pursuant to paragraph (h)(2) of this section indicates 
that the recipient might not be in compliance with this part, the DoD 
Component concerned may conduct a preapproval onsite review at the 
recipient's facilities before approving the disbursement of Federal 
financial assistance to the recipient. The DoD Component shall conduct 
such a review:
    (A) When appropriate, if a desk audit application review reveals 
that the recipient's compliance posture is questionable because of a 
history of discrimination complaints, current discrimination complaints, 
a noncompliance determination by another government agency or DoD 
Component, or other indications of possible noncompliance; or
    (B) If Federal financial assistance is requested for construction, 
except under extraordinary circumstances, to determine whether the 
location and design of the project would provide service on a 
nondiscriminatory basis, in conformity with Sec. 56.8(c).
    (ii) Preapproval onsite reviews shall be conducted under DoD 
Component supplementary guidelines and in accordance with the provisions 
of paragraph (h)(4) of this section, concerning postapproval reviews.
    (4) Postapproval reviews. DoD Components shall: (i) Establish and 
maintain effective programs of postapproval reviews.
    (ii) Conduct such reviews of each recipient, the frequency and the 
nature of which shall be prescribed in the DoD Component supplemetary 
guidelines implementing this part.
    (iii) Require recipients periodically to submit compliance reports 
to them.

[[Page 183]]

    (iv) Record the results of the reviews, including findings of fact 
and recommendations.
    (5) A DoD Component shall complete a review within 180 calendar days 
of initiating it unless an extension of time is granted by the 
ASD(MRA&L), or designee, for good cause shown, and shall either:
    (i) Find the recipient to be in compliance and notify the recipient 
of that finding; or
    (ii) Notify the recipient and the ASD(MRA&L), or designee, of a 
finding of probable noncompliance, pursuant to paragraph (o) of this 
section.
    (i) Filing of complaints against recipients. (1) DoD Components 
shall establish and publish in their supplementary guidelines procedures 
for the prompt processing and disposition of complaints against 
recipients, consistent with this section.
    (2) A DoD Component shall consider all complaints that: (i) Are 
filed with it within 180 days of the alleged discrimination or within a 
longer period of time if an extension is granted for good cause by the 
DoD Component with the approval of the ASD(MRA&L), or designee.
    (ii) Include the name, address, and telephone number, if any, of the 
complainant; the name and address of the recipient committing the 
alleged discrimination; a description of the acts or omissions 
considered to be discriminatory; and other pertinent information.
    (iii) Are signed by the complainant or the complainant's authorized 
representative (legal counsel or a person with power of attorney granted 
by the complainant).
    (3) DoD Components shall transmit a copy of each complaint filed 
with them to the ASD(MRA&L), or designee, within 10 calendar days after 
its receipt.
    (4) If the information in a complaint is incomplete, the DoD 
Component shall request the complainant to provide the additional 
information required. If the DoD Component does not receive this 
requested information within 30 calendar days of the date of the 
request, the case may be closed and the complainant so notified in 
writing.
    (5) If a complaint concerning a program or activity is filed with a 
DoD Component that does not have jurisdiction over it, the DoD Component 
shall refer the complaint to the ASD(MRA&L), or designee, and advise the 
complainant in writing of such referral. The ASD(MRA&L), or designee, 
then shall refer the complaint to the appropriate DoD Component and so 
notify the complainant in writing.
    (j) Investigation by DoD components. (1) DoD Components shall 
investigate complaints that involve recipients and that meet the 
standards described in paragraph (i) of this section, unless good cause 
for not investigating is stated in a written notification of the 
disposition of the complaint provided to the complainant.
    (2) If an investigation of a complaint is conducted, the DoD 
Component concerned shall maintain a case record that contains:
    (i) The name (last name, first, and middle initial), address (street 
address, city, State, and zip code), and telephone number of each person 
interviewed.
    (ii) Copies, transcripts, or summaries of pertinent documents.
    (iii) A reference to at least one program or activity conducted by 
the recipient and receiving Federal financial assistance disbursed by a 
DoD Component, and a description of the amount and nature of the 
assistance.
    (iv) A narrative report of the results of the investigation that 
contains references to relevant exhibits and other evidence that relates 
to the alleged violations.
    (k) Investigations by recipients. (1) A DoD Component may require or 
permit recipients to investigate complaints alleging violation of this 
part. In such cases, the DoD Component shall:
    (i) Ensure that the recipient investigates the complaints in 
accordance with the standards, procedures, and requirements prescribed 
in paragraph (j) of this section.
    (ii) Require the recipient to submit a written report of each 
complaint and investigation to the DoD Component.
    (iii) Retain a review responsibility over the investigation and 
disposition of each complaint.

[[Page 184]]

    (iv) Ensure that each complaint investigation is completed within 
180 calendar days of the receipt of the complaint by the proper DoD 
Component, unless an extension of time is granted for good cause by the 
ASD(MRA&L), or designee.
    (v) Require the recipient to maintain a log of all complaints filed 
against it, as described in Sec. 56.6(a)(1).
    (2) DoD Components that require or permit complaint investigations 
to be conducted by recipients shall review recipient complaint 
investigations pursuant to paragraphs (k) and (l) of this section.
    (l) Results of investigations. (1) Within 180 days of the receipt of 
a complaint, the DoD Component, recipient, or the ASD(MRA&L), or 
designee, shall give written notification:
    (i) Of the disposition of the complaint to the complainant and, as 
the case may be, to the recipient or DoD Component.
    (ii) To the complainant that within 30 calendar days of receipt of 
the written notification, the complainant may request that the 
ASD(MRA&L), or designee, review the findings in the notification 
pursuant to paragraph (m) of this section.
    (2) If the complaint investigation results in a determination by the 
DoD Component that a recipient is not complying with this part the DoD 
Component shall proceed as prescribed in paragraph (n) through (v) of 
this section. If the DoD Component determines that the recipient is in 
compliance, the DoD Component shall submit the complete case file to the 
ASD(MRA&L), or designee, within 15 calendar days after the notification 
of the disposition of the investigation to the complainant.
    (m) Reviewing completed investigations. (1) The ASD(MRA&L), or 
designee, may review all completed investigations.
    (2) The ASD(MRA&L), or designee, shall review the results of any 
investigation of a complaint if the complainant requests such a review 
pursuant to paragraph (l)(1)(ii) of this section.
    (3) After reviewing the results of an investigation, the ASD(MRA&L), 
or designee, may:
    (i) Find that no further investigation is necessary and approve the 
results of the investigation;
    (ii) Request further investigation by the DoD Component; or
    (iii) Require the DoD Component to take appropriate corrective 
action.
    (n) Effecting compliance. (1) When a compliance review or complaint 
investigation indicates that a recipient has violated this part, the 
applicable DoD Component's supplementary guidelines, or the assurances 
executed pursuant to paragraph (b) of this section, the responsible DoD 
Component or the ASD(MRA&L), or designee, shall attempt to effect 
compliance in accordance with paragraphs (o) and (p) of this section. 
The inability of a DoD Component to comply with any time frame 
prescribed by this part does not relieve a recipient of the 
responsibility for compliance with this part.
    (2) The DoD Component may require, when necessary to overcome the 
effects of discrimination in violation of this part, a recipient to take 
remedial action:
    (i) With respect to handicapped persons who are no longer 
participants in the recipient's program or activity but who were 
participants in the program or activity when such discrimination 
occurred.
    (ii) With respect to handicapped persons who would have been 
participants in the recipient's program or activity had the 
discrimination not occurred.
    (iii) With respect to handicapped persons presently in the 
recipient's program or activity, but not receiving full benefits or 
equal and integrated treatment within the program or activity.
    (o) Written notice. After evaluating the investigative report, the 
DoD Component shall issue to the recipient and, pursuant to paragraph 
(n)(2) of this section to the ASD(MRA&L), or designee, a written notice 
that:
    (1) Describes the apparent violation and the corrective actions 
necessary to achieve compliance.
    (2) Extends an offer to meet informally with the recipient.
    (3) Informs the recipient that failure to respond to the notice 
within 15 calendar days of its receipt shall result in

[[Page 185]]

the initiation of enforcement procedures described in paragraphs (r) 
through (v), of this section.
    (p) Attempting to achieve voluntary compliance by recipients. (1) If 
a DoD Component issues a notice pursuant to paragraph (o) of this 
section, the DoD Component shall attempt to meet with the recipient and 
shall attempt to persuade it to take the steps necessary to achieve 
compliance with this part.
    (2) If a recipient agrees to take remedial steps to achieve 
compliance, the DoD Component shall require that the agreement be in 
writing and:
    (i) Be signed by the head of the DoD Component concerned, or 
designee, and by the principal official of the recipient.
    (ii) Specify the action necessary to achieve compliance.
    (iii) Be made available to the public upon request.
    (iv) Be subject to the approval of the ASD(MRA&L), or designee.
    (3) If satisfactory adjustment or a written agreement has not been 
achieved within 60 calendar days of the recipient's receipt of the 
notice issued pursuant to paragraph (o) of this section, the DoD 
Component shall notify the ASD(MRA&L), or designee, and state the 
reasons therefor.
    (4) The DoD Component shall initiate the enforcement actions 
prescribed in paragraphs (r) through (v) of this section if:
    (i) The recipient does not respond to a notice pursuant to paragraph 
(o) of this section, within 15 calendar days of its receipt and 
satisfactory adjustments are not made within 45 calendar days of the 
date of the recipient's response; or
    (ii) The DoD Component or the ASD (MRA&L) determines at any time 
within 90 days after the recipient receives a notice pursuant to 
paragraph (o) of this section, that, despite reasonable efforts, it is 
not likely that the recipient will comply promptly and voluntarily.
    (5) If, pursuant to paragraph (p)(4) of this section, the DoD 
Component initiates enforcement action, it also shall continue its 
attempts to persuade the recipient to comply voluntarily.
    (q) Imposing sanctions--(1) Sanctions available. If a DoD Component 
has taken action pursuant to paragraphs (o) and (p) of this section, the 
DoD Component may, by order, subject to paragraph (q)(2) and (q)(3) of 
this section:
    (i) Terminate, suspend, or refuse to grant or continue assistance to 
such recipient.
    (ii) Refer the case to the Department of Justice for the initation 
of enforcement proceedings at a Federal, State, or local level.
    (iii) Pursue any remedies under State or local law.
    (iv) Impose other sanctions upon consultation with the ASD (MRASL), 
or designee.
    (2) Terminating, suspending, or refusing to grant or continue 
assistance. A DoD Component may not terminate or refuse to grant or 
continue Federal financial assistance unless:
    (i) Such action has been approved by the Secretary of Defense.
    (ii) The DoD Component has given the recipient an opportunity for a 
hearing pursuant to the procedures set out in paragraph (r) of this 
section, and a finding of noncompliance has resulted.
    (iii) Thirty calendar days have elapsed since the Secretary of 
Defense has filed a written report describing the violation and action 
to be taken with the committees of the House of Representatives and 
Senate that have jurisdiction over the program or activity in which the 
violation of this part exists.
    (iv) Such action is limited to affect only the particular activity 
or program, or portion thereof, of the recipient where the violation 
exists.
    (3) Other sanctions. A DoD Component may not impose the sanctions 
set out in paragraphs (q)(1) (iii) and (iv) of this section, unless:
    (i) The DoD Component has given the recipient an opportunity for a 
hearing pursuant to paragraph (r) of this section, and a finding of 
noncompliance has resulted.
    (ii) The action has been approved by the Secretary of Defense.
    (iii) Ten calendar days have elapsed since the mailing of a notice 
informing the recipient of its continuing failure to comply with this 
part the action necessary to achieve compliance, and the sanction to be 
imposed.

[[Page 186]]

    (iv) During those 10 calendar days the DoD Component has made 
additional efforts to persuade the recipient to comply.
    (r) Hearings for recipients--(1) General. When, pursuant to 
paragraph (q)(2)(ii) of this section, an opportunity for a hearing is 
given to a recipient, the DoD Component involved shall follow the 
procedures prescribed in paragraphs (r)(2) through (r)(6) of this 
section.
    (2) Notice. The DoD Component concerned shall notify the recipient 
of the opportunity for a hearing by registered or certified mail, return 
receipt requested, when the recipient denies a tentative finding of 
noncompliance with this part.
    (i) The DoD Component shall ensure that the notice:
    (A) Describes the proposed sanctions to be imposed.
    (B) Cites the section of this part under which the proposed action 
is to be taken.
    (C) States the name and office of the DoD Component official who is 
responsible for conducting the hearing (hereafter referred to as the 
``responsible DoD official'').
    (D) Outlines the issues to be decided at the hearing.
    (E) Advises the recipient either of a date, not less than 20 
calendar days after the date that the notice is received, by which the 
recipient may request that the matter be scheduled for a hearing, or of 
a reasonable time and place of a hearing that is subject to change for 
good cause shown.
    (ii) When a time and place for a hearing are set, the DoD Component 
shall give the recipient and the complainant, if any, reasonable notice 
of such time and place.
    (3) Waiver of a hearing. A recipient may waive a hearing and submit 
to the responsible DoD official, in writing, information or arguments on 
or before the date stated pursuant to paragraph (r)(2)(i)(E) of this 
section.
    (i) A recipient waives its right to a hearing if it fails to request 
a hearing on or before a date stated pursuant to paragraph (r)(2)(i)(E) 
of this section, or fails to appear at a hearing that has been scheduled 
pursuant to that paragraph.
    (ii) If a recipient waives its right to a hearing under this 
section, the responsible DoD official shall decide the issues and render 
a final decision that is based on the information available and that 
conforms to the requirements of paragraph (s)(4) of this section.
    (4) Hearing examiner. Hearings shall be conducted by the responsible 
DoD official or by a hearing examiner designated by the official, 
provided that the hearing examiner shall be a field grade officer or 
civilian employee above the grade of GS-12 (or the equivalent) who is 
admitted to practice law before a Federal court or the highest court of 
a State, territory, commonwealth, or the District of Columbia.
    (5) Right to counsel. In all proceedings under this section, the 
recipient and the DoD Component may be represented by counsel. The 
representation of the recipient will not be at U.S. Government expense.
    (6) Procedures. Hearings authorized under this section shall be 
subject to the following: (i) Hearings shall be open to the public.
    (ii) Formal rules of evidence will not apply. The DoD Component 
concerned and the recipient shall be entitled to introduce all relevant 
evidence on the issues stated in the notice of hearing issued pursuant 
to paragraph (r)(2) of this section, and those designated by the 
responsible DoD official or the hearing examiner at the outset of or 
during the hearing. The responsible DoD official or hearing examiner, 
however, may exclude irrelevant, immaterial, or repetitious evidence.
    (iii) All witnesses may be examined or cross-examined, as the case 
may be, by each party.
    (iv) All parties shall have the opportunity to examine all evidence 
offered or admitted for the record.
    (v) A transcript of the proceedings shall be maintained in either 
electronic or typewritten form and made available to all parties.
    (s) Decisions--(1) Initial or proposed decisions by a hearing 
examiner. If a hearing is conducted by a hearing examiner who is 
designated by the responsible DoD official pursuant to paragraph (r)(4) 
of this section, the hearing examiner shall either:

[[Page 187]]

    (i) Make an initial decision, if so authorized, that conforms to the 
requirements of paragraph (s)(4) of this section; or
    (ii) Certify the entire record and submit to the responsible DoD 
official recommended findings and a proposed decision.
    (2) Review of initial decisions. Initial decisions made by a hearing 
examiner pursuant to paragraph (s)(1)(i) of this section, shall be 
reviewed as follows:
    (i) A recipient may file exceptions to an initial decision within 30 
calendar days of receiving notice of such initial decision. Reasons 
shall be stated for each exception.
    (ii) If the recipient does not file exceptions pursuant to paragraph 
(s)(2)(i) of this section, the responsible DoD official may notify the 
recipient within 45 calendar days of the initial decision that the 
responsible DoD official will review the decisions.
    (iii) If exceptions are filed pursuant to paragraph (s)(2)(i) of 
this section, or a notice of review is issued pursuant to paragraph 
(s)(2)(ii) of this section, the responsible DoD official shall review 
the initial decision and, after giving the recipient reasonable 
opportunity to file a brief or other written statement of its 
contentions, issue a final decision that addresses each finding and 
conclusion in the initial decision and each exception, if any.
    (iv) If the exceptions described in paragraph (s)(2)(i) of this 
section are not filed and the responsible DoD official does not issue 
the notice of review described in paragraph (s)(2)(ii) of this section, 
the initial decision of the hearing examiner shall constitute the final 
decision of the responsible DoD official.
    (3) Decisions by the responsible DoD official who conducts a hearing 
or receives a certified record. If a hearing examiner who is designated 
by the responsible DoD official certifies the entire record and submits 
recommended findings and a proposed decision to the responsible DoD 
official pursuant to paragraph (s)(1)(ii) of this section, or if the 
responsible DoD official conducts the hearing, after giving the 
recipient a reasonable opportunity to file a brief or other written 
statement of its contentions, the responsible DoD official shall render 
a final decision that conforms to paragraph (s)(4) of this section.
    (4) Contents of decisions. Each decision of a hearing examiner or 
responsible DoD official shall state all findings and conclusions and 
identify each violation of this part. The final decision may contain an 
order pursuant to paragraph (q) of this section, providing for the 
suspension or termination of or refusal to grant or continue all or some 
of the Federal financial assistance under the program or activity 
involved and contain terms, conditions, and other provisions that are 
consistent with and intended to achieve compliance with this Directive.
    (5) Notice of decisions and certifications. The responsible DoD 
official shall provide a copy of any certified record of a hearing and 
any initial or final decision to the recipient and the complainant, if 
any.
    (6) Review by the Secretary of Defense. The responsible DoD official 
shall transmit promptly any final decision that orders a suspension, 
termination, or denial of Federal financial assistance through the 
ASD(MRA&L) to the Secretary of Defense. The Secretary may;
    (i) Approve the decision;
    (ii) Vacate the decision; or
    (iii) Remit or mitigate any sanction imposed.
    (t) Restoring eligibility for financial assistance. (1) A recipient 
that is affected adversely by a final decision issued under paragraph 
(s) of this section, may at any time request the responsible DoD 
official to restore fully its eligibility to receive Federal financial 
assistance.
    (2) If the responsible DoD official determines that the information 
supplied by the recipient demonstrates that it has satisfied the terms 
and conditions of the order entered pursuant to paragraph (s) of this 
section, and that is complying with and has provided reasonable 
assurance that it will continue to comply with this part the responsible 
DoD official shall restore such eligibility immediately.
    (3) If the responsible DoD official denies a request for restoration 
of eligibility, the recipient may submit a written request for a hearing 
that states

[[Page 188]]

why it believes the responsible DoD official erred in denying the 
request. Following such a written request, the recipient shall be given 
an expeditious hearing under rules of procedure issued by the 
responsible DoD official to determine whether the requirements described 
in paragraph (t)(2) of this section, have been met. While any such 
proceedings are pending, the sanctions imposed by the order issued under 
paragraph (s) of this section, shall remain in effect.
    (u) Interagency cooperation and delegation. (1) When several 
recipients are receiving assistance for the same or similar purposes 
from a DoD Component and another Federal agency, the DoD Component shall 
notify the ASD (MRA&L), or designee. Such notification shall be in 
writing and shall contain:
    (i) A description of the programs and activities involved.
    (ii) A statement of the amount of money expended on the programs and 
activities in the previous and current fiscal year by the DoD Component 
and the agency.
    (iii) A list of the known primary recipients.
    (2) The ASD(MRA&L), or designee, shall attempt to negotiate with the 
Federal agency a written delegation agreement that designates the agency 
or the DoD Component as the primary agency for purposes of ensuring 
compliance with section 504 of Public Law 93-112, as amended, and this 
part depending upon which of them administers a larger financial 
assistance program with the common recipients and other relevant 
factors. If necessary, the agreement shall establish procedures to 
ensure the enforcement of section 504 of Public Law 93-112, as amended, 
and this part. The ASD(MRA&L), or designee, shall provide written 
notification to recipients of an agreement reached under this 
subsection.
    (3) When several recipients are receiving assistance for the same or 
similar purposes from two or more DoD Components, the DoD Components may 
negotiate a proposed written delegation agreement that:
    (i) Assigns responsibility for ensuring that the recipient complies 
with this part to one of the DoD Components.
    (ii) Provides for the notification to recipients and the responsible 
program officials of the DoD Components involved of the assignment of 
enforcement responsibility.
    (4) No delegation agreement reached in accordance with paragraph 
(u)(3) to this section shall be effective until it is approved by the 
ASD(MRA&L), or designee.
    (5) When possible, existing delegation agreements relating to title 
VI of the Civil Rights Act of 1964 shall be amended to provide for the 
enforcement of this part.
    (6) Any DoD Component conducting a compliance review or 
investigating a complaint of an alleged violation by a recipient shall 
notify any other affected agency or DoD Component through the 
ASD(MRA&L), or designee, upon discovery that the agency or DoD Component 
has jurisdiction over the program or activity in question and shall 
subsequently inform it of the finding made. Such reviews or 
investigations may be conducted on a joint basis.
    (7) When a compliance review or complaint investigation under this 
part reveals a possible violation of Executive Order 11246, titles VI or 
VII of the Civil Rights Act of 1964, or any other Federal law, the DoD 
Component shall notify the appropriate agency, through the ASD(MRA&L), 
or designee.
    (v) Coordination with sections 502 and 503. (1) DoD Components shall 
use DoD 4270.1-M and Department of the Army, Office of the Chief of 
Engineers, Manual EM 1110-1-103, in developing requirements for the 
accessibility of facilities. If DoD Components encounter issues with 
respect to section 502 of the Rehabilitation Act of 1973, as amended, 
that are not covered by these publications, the ASD(MRA&L), or designee, 
may be consulted. If necessary, the ASD(MRA&L), or designee, shall 
consult with the Architectural and Transportation Barriers Compliance 
Board in resolving such problems.
    (2) DoD Components may advise recipients to consult directly with 
the Architectural and Transportation Barriers Compliance Board in 
developing accessibility criteria.

[[Page 189]]

    (3) DoD Components shall coordinate enforcement actions relating to 
the accessibility of facilities with the Architectural and 
Transportation Barriers Compliance Board and shall notify the 
ASD(MRA&L), or designee, of such coordination.
    (4) If a recipient is also a Federal contractor subject to section 
503 of the Rehabilitation Act of 1973, as amended, and the regulations 
thereunder (41 CFR part 60-741) and if a DoD Component has reason to 
believe that the recipient is in violation thereof, the DoD Component 
shall coordinate enforcement actions with the Department of Labor, 
Office of Federal Contract Compliance Programs. The DoD Component shall 
notify the ASD(MRA&L), or designee, of such coordination.



Sec. 56.10  Ensuring compliance with this part in programs and activities conducted by the Department of Defense.

    (a) Supplementary guidelines. (1) Whenever necessary, the 
ASD(MRA&L), or designee, shall publish supplementary guidelines for 
programs and activities that are conducted by DoD Components and that 
are subject to this Directive. Prior to their issuance, the ASD(MRA&L), 
or designee, shall submit supplementary guidelines prepared pursuant to 
this subsection to the Coordination and Review Section, Civil Rights 
Division, Department of Justice, for review.
    (2) The heads of DoD Components, or designees, shall be responsible 
for keeping the supplementary guidelines described in this section 
current and accurate. When a DoD Component head determines that a 
program or activity should be added to or deleted from the guidelines, 
that official shall notify the ASD(MRA&L), or designee, in writing.
    (b) Staff responsibilities. The ASD(MRA&L), or designee, shall 
determine DoD Component compliance with this part as it pertains to 
programs and activities that are conducted by DoD Components and are 
subject to this part.
    (c) Filing of complaints. (1) Complaints of discrimination in a 
program or activity conducted by a DoD Component may be filed directly 
with the ASD(MRA&L), or designee.
    (2) DoD Components shall develop procedures, such as posters or 
other devices, to notify participants in the programs and activities 
listed in Sec. 56.7(c) of their right to be free of discrimination 
because of handicap in those programs and activities and of their right 
to file complaints of discrimination with the ASD(MRA&L), or designee.
    (d) Investigations of complaints. (1) The ASD(MRA&L), or designee, 
shall investigate complaints of discrimination in programs and 
activities that are conducted by DoD Components and are subject to this 
part.
    (2) A case record of each investigation shall be compiled in 
accordance with Sec. 56.9(j)(2).
    (e) Results of investigations. If the complaint investigation 
results in a determination by the ASD(MRA&L), or designee, that a DoD 
Component's program or activity is not complying with Sec. 56.9, the 
ASD(MRA&L), or designee, shall proceed as prescribed in Sec. 56.9 (n) 
through (v). Hearings prescribed under Sec. 56.9(r) however, need not be 
conducted. If the ASD(MRA&L), or designee, determines that the DoD 
Component is in compliance, the ASD(MRA&L), or designee, shall notify 
the complainant within 15 calendar days of such determination.
    (f) Written notice. If an investigative report concludes that there 
has been a violation of this part in a program or activity conducted by 
a DoD Component and the ASD(MRA&L), or designee, accepts that 
conclusion, that official shall issue to the head of the DoD Component a 
written notice describing the apparent violation, the corrective actions 
necessary to achieve compliance, and a suspense date for completion of 
the corrective actions.
    (g) Effecting compliance. When necessary to overcome the effects of 
discrimination in violation of this part the ASD(MRA&L), or designee, 
may require a DoD Component to take remedial action similar to that in 
Sec. 56.9(n)(2).
    (h) Employment. DoD Components that conduct Federal programs or 
activities covered by this part that involve employment of civilian 
persons to conduct such a program or activity must comply with section 
501 of the Rehabilitation Act of 1973, as amended,

[[Page 190]]

and the implementing rules and regulations of the EEOC.



PART 57--PROVISION OF EARLY INTERVENTION AND SPECIAL EDUCATION SERVICES TO ELIGIBLE DOD DEPENDENTS IN OVERSEAS AREAS--Table of Contents




Sec.
57.1 Purpose.
57.2 Applicability and scope.
57.3 Definitions.
57.4 Policy.
57.5 Responsibilities.
57.6  Procedures.
Appendix A to part 57--Procedures for the Provision of Early 
          Intervention Services for Infants and Toddlers with 
          Disabilities and their Families
Appendix B to part 57--Procedures for Education Programs and Services 
          for Children with Disabilities, Aged 3 to 21, Inclusive
Appendix C to part 57--The National Advisory Panel (NAP) on the 
          Education of Dependents with Disabilities
Appendix D to part 57--DoD Coordinating Committee on Early Intervention, 
          Special Education, and Medically Related Services
Appendix E to part 57--DoD Inter-Component Coordinating Council (ICC) on 
          Early Intervention
Appendix F to part 57--Mediation and Hearing Procedures

    Authority: 20 U.S.C. 921 and 1400.

    Source: 62 FR 2566, Jan. 17, 1997, unless otherwise noted.



Sec. 57.1  Purpose.

    This part:
    (a) Implement policy and update responsibilities and procedures 
under 20 U.S.C. 921-932, 20 U.S.C. 1400 et seq., DoD Directive 1342.6 
\1\, and DoD Directive 1342.13 \2\ for providing the following:
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
    \2\ See footnote 1 to Sec. 57.1(a).
---------------------------------------------------------------------------

    (1) A free appropriate public education (FAPE) for children with 
disabilities who are eligible to enroll in the Department of Defense 
Dependent Schools (DoDDS).
    (2) Early intervention services for infants and toddlers birth 
through age 2 years who, but for their age, would be eligible to enroll 
in the DoDDS under DoD Directive 1342.13.
    (3) A comprehensive and multidisciplinary program for early 
intervention services for infants and toddlers with disabilities and 
their families.
    (b) Establishes a National Advisory Panel (NAP) on Education for 
Children with Disabilities, ages 3 to 21, inclusive, and a DoD Inter-
Component Council (ICC) on Early Intervention, in accordance with DoD 
Directive 5105.4 \3\.
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 57.1(a).
---------------------------------------------------------------------------

    (c) Establishes a DoD Coordinating Committee (DoD-CC) on Early 
Intervention, Special Education, and Medically Related Services (MRS).
    (d) Authorizes implementing instructions consistent with DoD 5025.1-
M \4\, and DoD forms consistent with DoD 83201-M \5\, DoD 8910.1-M \6\, 
and DoD Instruction 7750.7 \7\.
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 57.1(a).
    \5\ See footnote 1 to Sec. 57.1(a).
    \6\ See footnote 1 to Sec. 57.1(a).
    \7\ See footnote 1 to Sec. 57.1(a).
---------------------------------------------------------------------------



Sec. 57.2  Applicability and scope.

    This part:
    (a) Applies to the Office of the Secretary of Defense, the Military 
Departments, the Chairman of the Joint Chiefs of Staff, the Unified 
Combatant Commands, the Inspector General of the Department of Defense, 
the Defense Agencies, and the DoD Field Activities (hereafter referred 
to collectively as ``the DoD Components'').
    (b) Does not apply to schools operated by the Department of defense 
in the United States, the District of Columbia, the Commonwealth of 
Puerto Rico, the Commonwealth of the Northern Marianna Islands, and the 
possessions of the United States (excluding the Trust Territory of the 
Pacific Islands and Midway Islands).
    (c) Applies to infants, toddlers, and children receiving or entitled 
to receive early intervention services or special educational 
instruction and related services from the Department of Defense, and 
their parents.



Sec. 57.3  Definitions.

    Area superintendent. The Superintendent of a DoDDS area, or 
designee.

[[Page 191]]

    Assessment. Techniques, procedures, and/or instruments used to 
measure the individual components of an evaluation.
    Assistive technology device. Any item, piece of equipment, or 
product system that is used to increase, maintain, or improve functional 
capabilities of children with disabilities.
    Assistive technology service. Any service that directly assists an 
individual with a disability in the selection, acquisition, or use of an 
assistive technology device. That term includes the following:
    (1) The evaluation of the needs of an individual with a disability, 
including a functional evaluation in the individual's customary 
environment.
    (2) Purchasing, leasing, or otherwise providing for the acquisition 
of assistive technology devices by individuals with disabilities.
    (3) Selecting, designing, fitting, customizing, adapting, applying, 
maintaining, repairing, or replacing assistive technology devices.
    (4) Coordinating and using other therapies, interventions, or 
services with assistive technology devices, such as those associated 
with existing educational and rehabilitative plans and programs.
    (5) Training or technical assistance for an individual with 
disabilities, or, the family of an individual with disabilities.
    (6) Training or technical assistance for professionals (including 
individuals providing educational rehabilitative services), employers, 
or other individuals who provide services to employ, or are otherwise 
substantially involved in the major life functions of an individual with 
a disability.
    Audiology. A service that includes the following:
    (1) Identification of children with auditory impairments.
    (2) Determination of the range, nature, and degree of hearing loss, 
and communication functions including referral for medical or other 
professional attention for the habilitation of hearing.
    (3) Provision of habilitative activities, such as language 
habilitation, auditory training, speech-reading (lip-reading), hearing 
evaluation, and speech conservation.
    (4) Creation and administration of programs for the prevention of 
hearing loss.
    (5) Counseling and guidance of pupils for the prevention of hearing 
loss.
    (6) Determination of the child's need for group and individual 
amplification, selecting and fitting an aid, and evaluating the 
effectiveness of amplification.
    Autism. A development disability significantly affecting verbal and 
nonverbal communication and social interaction generally evident before 
age 3 that adversely affects educational performance. That term does not 
include a child with characteristics of the disability termed ``serious 
emotional disturbance.''
    Case study committee (CSC). (1) A school-level team comprised of, 
among others, the principal, other educators, parents, and MRS providers 
who do the following:
    (i) Oversee screening and referral of children who may require 
special education.
    (ii) Oversee the multidisciplinary evaluation of such children.
    (iii) Determine the eligibility of the student for special education 
and related services.
    (iv) Formulate an individualized education curriculum reflected in 
an Individualized Education Program (IEP), in accordance with this part.
    (v) Monitor the development, review, and revision of IEPs.
    (2) In addition to the required members of the CSC, other membership 
will vary depending on the purpose of the meeting. An area CSC, 
appointed by the DoDDS Area Superintendent, acts in the absence of a 
school CSC. Members of an area CSC may be assigned to augment a school 
CSC. The area CSC must have at least two members besides the parent. One 
of the DoDDS members must have the authority to commit DoDDS resources; 
one shall be qualified to provide, or supervise the provision of special 
education. Other members may be selected from the following groups:
    (i) DoDDS regular education personnel.

[[Page 192]]

    (ii) DoDDS special education personnel.
    (iii) MRS personnel.
    Child-find. The ongoing process used by the DoDDS, the Military 
Departments, and the other DoD Components to seek and identify children 
from birth to age 21, inclusive, who may require early intervention 
services or special education and related services. Child-find 
activities include the dissemination of information to the public, the 
identification and screening of children, and the use of referral 
procedures.
    Children with disabilities (ages 3 To 21, inclusive). Children, 
before graduation from high school or completion of the General 
Education Degree, who have one or more impairments, as determined by a 
CSC and who need special education and related services.
    Consent. That term means the following:
    (1) The parent is fully informed of all information about the 
activity for which consent is sought in the native language or in 
another mode of communication, if necessary.
    (2) The parent understands and agrees in writing to the 
implementation of the activity for which permission is sought. That 
consent describes the activity, lists the child's records (if any) to be 
released outside the Department of Defense, and specifies to whom the 
records shall be sent. The signed consent acknowledges the parent's 
understanding that the parental consent is voluntary and may be revoked 
at any time.
    Counseling service. A service provided by a qualified social worker, 
psychologist, guidance counselor, or other qualified personnel.
    Deaf-blindness. Concomitant hearing and visual impairments. That 
disability causes such severe communication, developmental, and 
educational problems that it cannot be accommodated in special education 
programs solely for children with deafness or blindness.
    Deafness. A severe hearing loss or deficit that impairs a child's 
ability to process linguistic information through hearing, with or 
without amplification, and affects the educational performance 
adversely.
    Developmental delay. That term means the following:
    (1) A significant discrepancy in the actual functioning of an 
infant, toddler, or child, birth through age 5, when compared with the 
functioning of a nondisabled infant, toddler, or child of the same 
chronological age in any of the following areas: physical, cognitive, 
communication, social or emotional, and adaptive developmental as 
measured using standardized evaluation instruments and confirmed by 
clinical observation and judgment.
    (2) High probability for developmental delay. An infant or toddler, 
birth through age 2, with a diagnosed physical or mental condition, such 
as chromosomal disorders and genetic syndromes, that places the infant 
or toddler at substantial risk of evidencing a developmental delay 
without the benefit of early intervention services.
    Early identification. The implementation of a formal plan for 
identifying a disability as early as possible in a child's life.
    Early intervention services. (1) Developmental services that meet 
the following criteria:
    (i) Are provided under the supervision of a Military medical 
Department.
    (ii) Are provided using Military Health Services System resources at 
no cost to the parents. Parents may be charged in those instances where 
Federal law provides for a system of payments by families including a 
schedule of sliding fees, if any, (and incidental fees identified in 
Service guidance) that are normally charged to infants, toddlers, and 
children without disabilities or to their parents.
    (iii) Are designed to meet the developmental needs of an infant or 
toddler with a disability in any one or more of the following areas:
    (A) Physical.
    (B) Cognitive.
    (C) Communication.
    (D) Social or emotional.
    (E) Adaptive development.
    (iv) Meet the standards developed or adopted by the Department of 
Defense.
    (v) Are provided by qualified personnel including early childhood 
special

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educators, speech and language pathologists and audiologists, 
occupational therapists, physical therapists, psychologists, social 
workers, nurses, nutritionists, family therapists, orientation and 
mobility specialists, and pediatricians and other physicians.
    (vi) Maximally, are provided in natural environments including the 
home and community settings where infants and toddlers without 
disabilities participate.
    (vii) Are provided in conformity with an Individualized Family 
Service Plan (IFSP).
    (2) Developmental services include, but are not limited to, the 
following services: family training, counseling, and home visits; 
special instruction; speech pathology and audiology; occupational 
therapy; physical therapy; psychological services; service coordination 
services; medical services only for diagnostic or evaluation purposes; 
early identification, screening and assessment services; vision 
services; and social work services. Also included are assistive 
technology devices and assistive technology services; health services 
necessary to enable the infant or toddler to benefit from the above 
early intervention services; and transportation and related costs 
necessary to enable an infant or toddler and the family to receive early 
intervention services.
    Eligible. The term refers to children who meet the age, command 
sponsorship, and dependency requirements established by the DDEA, as 
amended, 20 U.S.C. 921 et seq. and DoD Directive 1342.13. When those 
conditions are met, children without disabilities, ages 5 to 21, and 
children with disabilities, ages 3 to 21, inclusive, are authorized to 
receive educational instruction from the DoDDS. Additionally, an 
eligible infant or toddler with disabilities is a child from birth 
through age 2 years who meets all of the DoDDS eligibility requirements 
except for the age requirement. In school year 1994 through 1995, 
multidisciplinary assessments, IFSPs, and case management services shall 
be required and beginning in school year 1995 through 1996, an eligible 
infant or toddler is entitled to receive early intervention services, in 
accordance with 20 U.S.C. 1400 et seq.
    Evaluation. The synthesis of assessment information by a 
multidisciplinary team used to determine whether a particular child has 
a disability, the type and extent of the disability, and the child's 
eligibility to receive early intervention or special education and/or 
related services.
    Family training, counseling, and home visits. Services provided by 
social workers, psychologists, and other qualified personnel to assist 
the family of an infant or toddler eligible for early intervention 
services. Those services assist a family in understanding the special 
needs of the child and enhancing the child's development.
    Free appropriate public education (FAPE). Special education and 
related services that do the following:
    (1) Are provided at no cost to parents of a child with a disability, 
and are under the general supervision and direction of the DoDDS.
    (2) Are provided in the least restrictive environment at a 
preschool, elementary, or secondary school.
    (3) Are provided in conformity with an IEP.
    (4) Meet the requirements of this part.
    Functional vocational evaluation. A student-centered appraisal 
process for vocational development and career decision making. It allows 
students, educators, and others to gather information about such 
development and decision making. Functional vocational evaluation 
activities for transitional, vocational, and career planning; 
instructional goals; objectives; and implementation.
    Health services. Services necessary to enable an infant or toddler 
to benefit from the other early intervention services being received 
under this part. That term includes the following:
    (1) Services such as clean intermittent catheterization, tracheotomy 
care, tube feeding, changing of dressings or colostomy collection bags, 
and other health services.
    (2) Consultation by physicians with other service providers about 
the special healthcare needs of infants and toddlers with disabilities 
that shall need to be addressed in the course of providing other early 
intervention services.

[[Page 194]]

    (3) That term does not include the following:
    (i) Services that are surgical or solely medical.
    (ii) Devices necessary to control or treat a medical condition.
    (iii) Medical or health services routinely recommended for all 
infants or toddlers.
    Hearing impairment. An impairment in hearing, whether permanent or 
fluctuating, which adversely affects a child's educational performance, 
but is not included under deafness.
    Independent evaluation. An evaluation conducted by a qualified 
examiner who is not employed by the DoDDS.
    Individualized education program (IEP). A written document defining 
specially designed instruction for a student with a disability, ages 3 
to 21, inclusive. That document is developed and implemented, in 
accordance with this part.
    Individualized family service plan (IFSP). A written document for an 
infant or toddler, age birth through 2, with a disability and the family 
of such infant or toddler that is based on a multidisciplinary 
assessment of the unique needs of the child and concerns and priorities 
of the family, and identifies the early intervention and other services 
appropriate to meet such needs, concerns, and priorities.
    Infants and toddlers with disabilities. Children, ages birth through 
2, who need early intervention services because they:
    (1) Are experiencing a developmental delay; or,
    (2) Have a diagnosed physical or mental condition that has high 
probability of resulting in a developmental delay.
    Inter-component. Cooperation among DoD organizations and programs, 
ensuring coordination and integration of services to infants, toddlers, 
children with disabilities and to their families.
    Medical services. Those evaluative, diagnostic, therapeutic, and 
supervisory services provided by a licensed and /or credentialed 
physician to assist CSCs and to implement IEPs. Medical services include 
diagnosis, evaluation, and medical supervision of related services that, 
by statute, regulation, or professional tradition, are the 
responsibility of a licensed and credentialed physician.
    Medically related services. (1) Medical services (as defined in 
definition ``Medical services'') are those services provided under 
professional medical supervision, which are required by a CSC to 
determine a student's eligibility for special education and, if the 
student is eligible, the special education and related services required 
by the student under this part.
    (2) Direct or indirect services under the development or 
implementation of an IEP necessary for the student to benefit from the 
educational curriculum. Those services may include medical services for 
diagnostic or evaluative purpose, social work, community health nursing, 
dietary, occupational therapy, physical therapy, audiology, 
ophthalmology, and psychological testing and therapy.
    Meetings. All parties attending a meeting to determine eligibility 
or placement of a child shall appear personally at the meeting site on 
issuance of written notice and establishment of a date convenient to the 
concerned parties. When a necessary participant is unable to attend, 
electronic communication suitable to the occasion may be used to involve 
the unavailable party. Parents generally shall be responsible for the 
cost of travel to personally attend meetings about the eligibility or 
placement of their child.
    Mental retardation. Significantly subaverage general intellectual 
functioning, existing concurrently with deficits in adaptive behavior. 
That disability is manifested during the developmental period and 
adversely affects a child's educational performance.
    Multidisciplinary. The involvement of two or more disciplines or 
professions in the integration and coordination of services, including 
evaluation and assessment activities, and development of an IFSP or an 
IEP.
    Native language. When used with reference to an individual of 
limited English proficiency, the home language normally used by such 
individuals, or in the case of a child, the language normally used by 
the parent of the child.
    Natural environments. Settings that are natural or normal (e.g., 
home or

[[Page 195]]

day care setting) for the infant, toddler, or child's same-age peers who 
have no disability.
    Non-DoDDS placement. An assignment by the DoDDS of a child with a 
disability to a non-DoDDS school or facility.
    Non-DoDDS school or facility. A public or private school or other 
institution not operated by the DoDDS.
    Nutrition services. Those services to infants and toddlers include 
the following:
    (1) Conducting individual assessments in nutritional history and 
dietary intake; anthropometric, biochemical, and clinical variables; 
feeding skills and feeding problems; and food habits and food 
preferences.
    (2) Developing and monitoring plans to address the nutritional needs 
of infants and toddlers eligible for early intervention services.
    (3) Making referrals to community resources to carry out nutrition 
goals.
    Occupational therapy. That term includes services to address the 
functional needs of children (birth to age 21, inclusive) related to 
adaptive development; adaptive behavior and play; and sensory, motor, 
and postural development. Those services are designed to improve the 
child's functional ability to perform tasks in home, school, and 
community settings, and include the following:
    (1) Identification, assessment, and intervention.
    (2) Adaption of the environment and selection, design, and 
fabrication of assistive and orthotic devices to help development and 
promote the acquisition of functional skills.
    (3) Prevention or minimization of the impact of initial or future 
impairment, delay in development, or loss of functional ability.
    Orthopedic impairment. A severe physical impairment that adversely 
affects a child's educational performance. That term includes congenital 
impairments such as club foot or absence of some member; impairments 
caused by disease, such as poliomyelitis and bone tuberculosis, and 
impairments from other causes such as cerebra palsy, amputations, and 
fractures or burns causing contractures.
    Other health impairment. Limited strength, vitality, or alterness 
due to chronic or acute health problems that adversely affect a child's 
educational performance. Such impairments include heart condition, 
tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, 
hemophilia, seizure disorder, lead poisoning, leukemia, diabetes, or 
attention deficit disorder.
    Parent. The biological father or mother of a child; a person who, by 
order of a court of competent jurisdiction, has been declared the father 
or mother of a child by adoption; the legal guardian of a child; or a 
person in whose household a child resides, if such person stands in loco 
parentis to that child and contributes at least one-half of the child's 
support.
    Parent counseling and training. A service to assist parents in 
understanding the special needs of their child's development and by 
providing them with information on child development and special 
education.
    Personally identifiable information. Information that would make it 
possible to identify the infant, toddler, or child with reasonable 
certainty. Examples include name, parent's name, address, social 
security number, or a list of personal characteristics.
    Physical therapy. That term includes services to children (birth to 
age 21, inclusive) to address the promotion of sensorimotor function 
through enhancement of musculoskeletal status, neurobehavioral 
organization, perceptual and motor development, cardiopulmonary status, 
and effective environmental adaption. Those services include the 
following:
    (1) Screening, evaluation, and assessment to identify movement 
dysfunction.
    (2) Obtaining, interpreting, and integrating information to 
appropriate program planning to prevent, alleviate, or compensate for 
movement dysfunction and related functional problems.
    (3) Providing individual and group services or treatment to prevent, 
alleviate, or compensate for movement dysfunction and related functional 
problems.
    Primary referral source. Parents and the DoD Components, including 
child development centers, pediatric clinics, and newborn nurseries, 
that suspect an infant or toddler has a disability and

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brings the child to the attention of the EIP.
    Psychological services. A service that includes the following:
    (1) Administering psychological and educational tests and other 
assessment procedures.
    (2) Interpreting test and assessment results.
    (3) Obtaining, integrating, and interpreting information about a 
child's behavior and conditions to learning.
    (4) Consulting with other staff members, including service 
providers, to plan programs to meet the special needs of children, as 
indicated by psychological tests, interviews, and behavioral 
evaluations.
    (5) Planning and managing a program of psychological services, 
including psychological counseling for children and parents, family 
counseling, consultation on child development, parent training, and 
education programs.
    Public awareness program. Activities or print materials focusing on 
early identification of infants and toddlers with disabilities. 
Materials may include information prepared and disseminated by a 
military medical department to all primary referral sources and 
information for parents on the availability of early intervention 
services. Procedures to determine the availability of information on 
early intervention services to parents are also included in that 
program.
    Qualified. A person who meets the DoD-approved or recognized 
certification, licensing, or registration requirements or other 
comparable requirements in the area in which the person provides special 
education or related services or early intervention services to an 
infant, toddler, or child with a disability.
    Recreation. A related service that includes the following.
    (1) Assessment of leisure activities.
    (2) Therapeutic recreational activities.
    (3) Recreational programs in schools and community agencies.
    (4) Leisure education.
    Rehabilitation counseling. Services provided by a rehabilitation 
counselor or other qualified personnel in individual or group sessions 
that focus specifically on career development, employment preparation, 
achieving independence, and integration in the workplace and community 
of the student with a disability.
    Related services. Transportation and such developmental, corrective, 
and other supportive services as required to assist a child, age 3 to 
21, inclusive, with a disability to benefit from special education under 
the child's IEP. The term includes speech therapy and audiology, 
psychological services, physical and occupational therapy, recreation, 
early identification and assessment of disabilities in children, 
counseling services, and medical services for diagnostic or evaluative 
purposes. That term also includes rehabilitation counseling services, 
school health services, social work services in schools, and parent 
counseling. The sources for those services are school, community, and 
medical treatment facilities (MTFs).
    School health services. Services provided by a qualified school 
nurse or other qualified person.
    Separate facility. A school or a portion of a school, regardless of 
whether it is operated by the DoDDS, attended exclusively by children 
with disabilities.
    Serious emotional disturbance. A condition confirmed by clinical 
evaluation and diagnosis and that, over a long period of time and to a 
marked degree, adversely affect educational performance, and exhibits 
one or more of the following characteristics:
    (1) Inability to learn that cannot be explained by intellectual, 
sensory, or health factors.
    (2) Inability to build or maintain satisfactory interpersonal 
relationships with peers and teachers.
    (3) Inappropriate types of behavior under normal circumstances.
    (4) A tendency to develop physical symptoms or fears associated with 
personal or school problems.
    (5) A general pervasive mood of unhappiness or depression. Includes 
children who are schizophrenic, but does not include children who are 
socially maladjusted unless it is determined they are seriously 
emotionally disturbed.
    Service coordination. Activities of a service coordinator to assist 
and enable an infant or toddler and the family to

[[Page 197]]

receive the rights, procedural safeguards, and services that are 
authorized to be provided under the DoD EIP. Those activities include 
the following:
    (1) Coordinating the performance of evaluation and assessments.
    (2) Assisting families to identify their resources, concerns, and 
priorities.
    (3) Facilitating and participating in the development, review, and 
evaluation of IFSPs.
    (4) Assisting in identifying available service providers.
    (5) Coordinating and monitoring the delivery of available services.
    (6) Informing the family of support or advocacy services.
    (7) Coordinating with medical and health providers.
    (8) Facilitating the development of a transition plan to preschool 
services.
    Service provider. Any individual who provides services listed in an 
IEP or an IFSP.
    Social work services in schools. A service that includes the 
following:
    (1) Preparing a social or developmental history on a child with a 
disability.
    (2) Counseling a child and the family on a group or individual 
basis.
    (3) Working with those problems in a child's home, school, or 
community that adversely affect adjustment in school.
    (4) Using school and community resources to enable a child to 
receive maximum benefit from the educational program.
    Special education. Instruction and related services for which a 
child, age 3 to 21, inclusive, becomes entitled when a CSC determines a 
child's educational performance is adversely affected by one or more 
disabling conditions.
    (1) Special education is specially designed instruction, including 
physical education, which is provided at no cost to the parent or 
guardians to meet the unique needs of a child with a disability, 
including instruction conducted in the classroom, in the home, in 
hospitals and institutions, and in other settings.
    (2) That term includes speech therapy or any other related service 
if the service consists of specially designed instruction, at no cost to 
the parents, to meet the unique needs of a child with a disability.
    (3) That term also includes vocational education if it consists of 
specially designed instruction, at no cost to the parents, to meet the 
unique needs of a child with a disability.
    (4) At no cost. For a child eligible to attend the DoDDS without 
paying tuition, specially designed instruction and related services are 
provided without charge. Incidental fees normally charged to nondisabled 
students or their parents as a part of the regular educational program 
may be imposed.
    (5) Physical education. The development of the following:
    (i) Physical and motor fitness.
    (ii) Fundamental motor skills and patterns.
    (iii) Skills in aquatics, dance, and individual and group games and 
sports, including intramural and lifetime sports.
    (iv) A program that includes special physical education, adapted 
physical education, movement education, and motor development.
    (6) Vocational education. Organized educational programs for the 
preparation of individuals for paid or unpaid employment or for 
additional preparation for a career requiring other than a baccalaureate 
or advanced degree.
    Special instruction. That term includes the following:
    (1) The design of learning environments and activities to promote 
acquisition of skills in a variety of developmental areas, including 
cognitive processes and social interaction.
    (2) Curriculum planning, including the planned interaction of 
personnel, materials, time, and space, that leads to achieving the 
outcomes in an IEP or an IFSP.
    (3) Providing families with information, skills, and support to 
enhance skill development.
    (4) Working with a child to enhance development and cognitive 
processes.
    Specific learning impairment. A disorder in one or more of the basic 
psychological processes involved in understanding or in using spoken or 
written language that may manifest itself as an imperfect ability to 
listen, think, speak, read, write, spell, remember, or do mathematical 
calculations. That

[[Page 198]]

term includes such conditions as perceptual disabilities, brain injury, 
minimal brain dysfunction, dyslexia, and developmental aphasia. The 
term, commonly called, ``specific learning disability,'' does not 
include learning problems that are primarily the result of visual, 
hearing, or motor disabilities; mental retardation; emotional 
disturbance; or environmental, cultural, or economic differences.
    Speech and language impairments. A communication disorder, such as 
stuttering, impaired articulation, voice impairment, or a disorder in 
the receptive or expressive areas of language that adversely affects a 
child's educational performance.
    Speech therapy. That related service includes the following:
    (1) Identification of children with communicative or oropharyngeal 
disorders and delays in development of communication skills.
    (2) Diagnosis and appraisal of specific speech or language 
impairments.
    (3) Referral for medical or other professional attention to correct 
or habilitate speech or language impairments.
    (4) Provision of speech and language services for the correction, 
habilitation, and prevention of communicative impairments.
    (5) Counseling and guidance of children, parents, and teachers for 
speech and language impairments.
    Transition services. That term means the following:
    (1) A coordinated set of activities for a student that may be 
required to promote movement from early intervention, preschool, and 
other educational programs into different educational settings or 
programs.
    (2) For students 14 years of age and older, transition services are 
designed in an outcome-oriented process which promotes movement from 
school to postschool activities; including, post-secondary education, 
vocational training, integrated employment; and including supported 
employment, continuing and adult education, adult services, independent 
living, or community participation. The coordinated set of activities 
shall be based on the individual student's needs, considering the 
student's preferences and interests, and shall include instruction, 
community experiences, the development of employment and other 
postschool adult living objectives, and acquisition of daily living 
skills and functional vocational evaluation.
    Transportation. A service that includes the following:
    (1) Services rendered under the IEP of a child with a disability:
    (i) Travel to and from school and between schools, including travel 
necessary to permit participation in educational and recreational 
activities and related services.
    (ii) Travel in and around school buildings.
    (iii) Specialized equipment, including special or adapted buses, 
lifts, and ramps, if required to provide transportation for a child with 
a disability.
    (2) Transportation and related costs for early intervention services 
include the cost of travel (e.g., mileage or travel by taxi, common 
carrier, or other means) and other costs (e.g., tolls and parking 
expenses) that are necessary to enable an eligible child and the family 
to receive early intervention services.
    Traumatic brain injury. An acquired injury to the brain caused by an 
external physical force resulting in total or partial functional 
disability or psychosocial impairment that adversely affects educational 
performance. That term includes open or closed head injuries resulting 
in mild, moderate, or severe impairments in one or more areas including 
cognition, language, memory, attention, reasoning, abstract thinking, 
judgment, problem solving, sensory, perceptual and motor abilities, 
psychosocial behavior, physical function, information processing, and 
speech. That term does not include brain injuries that are congenital or 
degenerative, or brain injuries that are induced by birth trauma.
    Vision services. Services necessary to habilitate or rehabilitate 
the effects of sensory impairment resulting from a loss of vision.
    Visual impairment. An impairment of vision that, even with 
correction, adversely affects a child's educational performance. That 
term includes both partially seeing and blind children.



Sec. 57.4  Policy.

    It is DoD policy that:

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    (a) Eligible infants and toddlers with disabilities and their 
families shall be entitled to receive early intervention services 
consistent with Appendix A to this part.
    (b) Eligible children with disabilities, ages 3 to 21, inclusive, 
shall be provided a FAPE in the least restrictive environment, 
consistent with Appendix B to this part.
    (c) Parents of eligible infants, toddlers, and children with 
disabilities from birth to age 21, inclusive, shall be full participants 
in early intervention and special education services.



Sec. 57. 5  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
shall:
    (1) Establish a NAP consistent with Appendix C to this part.
    (2) Establish and chair, or designate a ``Chair,'' of the DoD-CC on 
Early Intervention, Special Education, and MRS consistent with Appendix 
D to this part.
    (3) Establish and chair, or designate a ``Chair,'' of the DoD Inter-
Component Coordinating Council (ICC) on Early Intervention consistent 
with Appendix E to this part.
    (4) Ensure compliance with this part in the provision of early 
intervention services, special education, and related services through 
the DoD-CC, in accordance with DoD Instruction 1342.14 \8\ and other 
appropriate guidances.
---------------------------------------------------------------------------

    \8\ See footnote 1 to Sec. 57.1(a).
---------------------------------------------------------------------------

    (5) In consultation with the General Counsel of the Department of 
Defense (GC, DoD) and the Secretaries of the Military Departments, do 
the following:
    (i) Ensure that eligible infants and toddlers with disabilities and 
their families are provided early intervention services under 20 U.S.C. 
921 et seq. and 1400 et seq.
    (ii) Ensure the coordination of early intervention, special 
education, and related services.
    (iii) Ensure the development of a DoD-wide comprehensive child-find 
system to identify eligible infants, toddlers, and children ages birth 
to age 21, inclusive, under 20 U.S.C 921 et seq. and 1400 et seq. who 
may require early intervention or special education services.
    (iv) Ensure that DoD personnel are trained to provide the mediation 
services specified in Appendix F to this part.
    (v) Ensure that transition services are available to promote 
movement from early intervention, preschool, and other educational 
programs into different educational settings and postsecondary 
environments.
    (vi) Ensure that DoD personnel who provide services (e.g., child 
care, medical care, and recreation) to infants and toddlers and their 
families are participants in a comprehensive inter-Component system for 
early intervention services.
    (vii) Assign functions and geographic regions of responsibility to 
the Military Departments for providing MRS and early intervention 
services.
    (viii) Ensure that the Military Departments deliver the following:
    (A) A comprehensive, coordinated and multidisciplinary program of 
early intervention services for eligible infants and toddlers with 
disabilities.
    (B) MRS for eligible children with disabilities, ages 3 to 21, 
inclusive.
    (ix) Ensure that qualified personnel participate in providing 
transition services for eligible infants, toddlers, and children with 
disabilities from birth to age 21, inclusive.
    (x) Ensure the development and implementation of a comprehensive 
system of personnel development for the DoDDS and the Military 
Departments. That system shall include professionals, paraprofessionals, 
and primary referral source personnel in the areas of early 
intervention, special education, and MRS. That system may include the 
following:
    (A) Implementing innovative strategies and activities for the 
recruitment and retention of providers of early intervention services, 
special education, and MRS.
    (B) Ensuring that personnel requirements are established consistent 
with recognized certification, licensing, registration, or other 
comparable requirements for personnel providing early intervention 
services, special education, or MRS.
    (C) Ensuring that training is provided in and across disciplines.
    (D) Training providers of early intervention services, special 
education, and MRS to work overseas.
    (xi) Develop procedures to compile data on the numbers of eligible 
infants and toddlers with disabilities and their families in need of 
early intervention services, in accordance

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with DoD Directives 5400.7 and 5400.11.\9\ Those data elements shall 
include the following:
---------------------------------------------------------------------------

    \9\ See footnote 1 to Sec. 57.1(a).
---------------------------------------------------------------------------

    (A) The number of infants and toddlers and their families served.
    (B) The types of services provided.
    (C) Other information required to evaluate the implementation of 
early intervention programs (EIPs).
    (xii) Resolve disputes in the DoD Components arising under Appendix 
A to this part.
    (b) The Secretaries of the Military Departments shall:
    (1) Provide MRS for eligible children with disabilities, ages 3 to 
21, inclusive.
    (2) Plan, develop, and implement a comprehensive, coordinated, 
intra-Component, and community-based system of early intervention 
services for eligible infants and toddlers with disabilities and their 
families.
    (3) Design and implement activities to ensure compliance through 
technical assistance and program evaluation for early intervention and 
MRS.
    (c) The Director, Department of Defense Education Activity, shall 
ensure that the Director, DoDDS, does the following:
    (1) Ensures that eligible children with disabilities, ages 3 to 21, 
inclusive, are provided a FAPE.
    (2) Ensures that the educational needs of children with and without 
disabilities are met comparably, consistent with Appendix B to this 
part.
    (3) Ensures that educational facilities and services operated by the 
DoDDS for children with and without disabilities are comparable.
    (4) Maintains records on special education and related services 
provided to eligible children with disabilities, ages 3 to 21, 
inclusive, consistent with DoD Directive 5400.11.
    (5) Provides any or all special education and related services 
required by a child with a disability, ages 3 to 21, inclusive, other 
than those furnished by the Secretaries of the Military Departments. The 
Director, DoDDS, may act through inter-Agency, intra-Agency, and inter-
Service arrangements, or through contracts with private parties when 
funds are authorized and appropriated.
    (6) Participates in the development and implementation of a 
comprehensive system of personnel development.
    (7) Undertakes activities to ensure compliance by the DoDDS with 
this part through monitoring, technical assistance, and program 
evaluation of special education and those related services provided by 
the DoDDS.
    (d) The Director, Defense Office of Hearings and Appeals, under the 
General Counsel of the Department of Defense, shall ensure impartial due 
process hearings are provided consistent with Appendix F to this part.



Sec. 57.6  Procedures.

    (a) The procedures for early intervention services for infants and 
toddlers with disabilities and their families are prescribed in Appendix 
A to this part.
    (b) The procedures for educational programs and services for 
children with disabilities, ages 3 to 21, inclusive, are prescribed in 
Appendix B to this part.
    (c) The procedures for conducting hearings are prescribed in 
Appendix F to this part.

      Appendix A to Part 57--Procedures for the Provision of Early 
  Intervention Services for Infants and Toddlers With Disabilities and 
                             Their Families

         A. Requirements for an Early Intervention Program (EIP)

    1. All eligible infants and toddlers with disabilities from birth 
through age 2 and their families shall receive early intervention 
services, as follows:
    a. In school years 1991 through 1994, the Department of Defense 
planned and continues to develop a comprehensive, coordinated, 
multidisciplinary program of early intervention services for infants and 
toddlers with disabilities among DoD entities involved in providing such 
services.
    b. In school year 1994 through 1995, the Department of Defense 
implemented and shall continue to implement the following program 
components described in paragraph A.1.a. of this Appendix:
    (1) Multidisciplinary assessments.
    (2) IFSPs.
    (3) Service coordination.
    c. In school year 1995 through 1996, the Department of Defense shall 
implement the program described in paragraph A.1.a. of this Appendix. 
\1\
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    \1\ The EIP shall be continuously implemented.
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    2. Early intervention services shall be provided in the natural 
environment.
    3. Parents of infants and toddlers with disabilities are to be full 
and meaningful participants in the EIP.

                 B. Military Department Responsibilities

    Each Military Department shall develop and implement in its assigned 
geographic area a system to provide for the following:
    1. A comprehensive child find procedure coordinated with the DoDDS 
child find system and primary referral sources such as the child 
development center and the pediatric clinic.
    2. Administration and supervision of EIPs and services.

[[Page 201]]

    3. Identification of available resources and coordination with those 
resource providers, including the DoD Components, who routinely provide 
services to infants and toddlers without disabilities and their 
families.
    4. Procedures to provide timely services for infants and toddlers 
with disabilities and their families.
    5. Procedures to resolve inter-Component disputes about the delivery 
of early intervention services.
    6. Procedures to collect and report data reflecting the number of 
infants and toddlers and their families served, the types of services 
provided, and other information required by the USD(P&R) implementation 
of early intervention services.
    7. Multidisciplinary, comprehensive, and functional assessment of 
the unique strengths and needs of infants or toddlers and the 
identification of services to meet those needs.
    8. Procedures for a family-directed assessment to determine 
resources, priorities, and concerns of a family and to identify services 
necessary to enhance a family's capacity to meet the child's needs.
    9. An IFSP that details the early intervention services and the 
coordination of those services.
    10. A public awareness program focusing on early identification of 
infants and toddlers with disabilities.
    11. A central directory that includes a description of the early 
intervention services and other relevant resources available in each 
military community overseas.
    12. Information to parents about their EIP procedural safeguards.
    13. Establishment of ICCs at appropriate levels. Memberships shall 
include parents and the DoD Components who are involved in the delivery 
of early intervention services.
    14. Policies and procedures for the establishment and maintenance of 
standards to ensure that personnel necessary to carry out the EIP are 
prepared and trained.

                             C. Eligibility

    Infants and toddlers with disabilities from birth through age 2 are 
eligible for early intervention services because they meet one of the 
following criteria:
    1. The child is experiencing a developmental delay as measured by 
diagnostic instruments and procedures of 2 standard deviations below the 
mean in at least one area, or by a 25 percent delay in at least one area 
on assessment instruments that yield scores in months, or a 
developmental delay of 1.5 standard deviations below the mean in two or 
more areas, or by a 20 percent delay on assessment instruments that 
yield scores in months in two or more of the following areas of 
development: Cognitive, physical, communication, social or emotional, or 
adaptive.
    2. The child has a diagnosed physical or mental condition which has 
a high probability of resulting in developmental delay; e.g., 
chromosomal disorders or genetic syndromes.

                                 D. IFSP

    1. Each military medical department shall develop and implement 
procedures to ensure that an IFSP is developed by a multidisciplinary 
team including the parents of each infant or toddler with a disability 
who meets the eligibility criteria in section C.1. of this appendix.
    2. Meetings to develop and review the IFSP must include the 
following participants:
    a. The parent or parents of the child.
    b. Other family members, as requested by the parent, if possible.
    c. An advocate outside of the family, if the parent requests that 
person's participation.
    d. The EIP services coordinator who has worked with the family since 
the initial referral of the child or who has been designated as 
``responsible for the implementation of the IFSP.''
    e. The person(s) directly involved in conducting the evaluations and 
assessments.
    f. As appropriate, persons who shall provide services to the child 
or family.
    3. If a person listed in section D.2. of this appendix is unable to 
attend a meeting, arrangements must be made for the person's involvement 
through other means, including the following:
    a. Participating in a telephone conference call.
    b. Having a knowledgeable representative attend the meeting.
    c. Making pertinent records available at the meeting.
    4. The IFSP shall be written in a reasonable time after assessment 
and shall contain the following:
    a. A statement of the child's current developmental levels including 
physical, cognitive, communication, social or emotional, and adaptive 
behaviors based on acceptable objective criteria.
    b. A statement of the family's resources, priorities, and concerns 
on enhancing the child's development.
    c. A statement of the major outcomes expected to be achieved for the 
child and the family. Additionally, the statement shall contain the 
criteria, procedures, and timeliness used to determine the degree to 
which progress toward achieving the outcomes is being made and whether 
modification or revision of the outcomes and services are necessary.
    d. A statement of the specific early intervention services necessary 
to meet the unique needs of the child and the family including the 
frequency, intensity, and method of delivering services.

[[Page 202]]

    e. A statement of the natural environments in which early 
intervention services shall be provided.
    f. The projected dates for initiation of services and the 
anticipated duration of those services.
    g. The name of the EIP service coordinator.
    h. The steps to be taken supporting the transition of the toddler 
with a disability to preschool or other services.
    5. The IFSP shall be evaluated at least once a year and the family 
shall be provided an opportunity to review the plan at 6-month intervals 
(or more frequently, based on the child and family needs).
    6. The contents of the IFSP shall be explained to the parents and an 
informed, written consent from the parents shall be obtained before 
providing early intervention services described in that plan.
    7. With the parent's consent, early intervention services may begin 
before the completion of the evaluation and assessment when it has been 
determined by a multidisciplinary team that a service is needed 
immediately by the child and/or the child's family. Although all 
assessments have not been completed, an IFSP must be developed before 
the start of services. The remaining assessments must then be completed 
in a timely manner.
    8. If a parent does not provide consent for participation in all 
early intervention services, the services shall still be provided for 
those interventions to which a parent does give consent.

                   E. Procedural Safeguards in the EIP

    1. Parents of infants and toddlers with disabilities are afforded 
the following procedural safeguards to ensure that their children 
receive appropriate early intervention services:
    a. The timely administrative resolution of parental complaints, 
including hearing procedures in appendix F to this part.
    b. The right to confidentiality of personally identifiable 
information under DoD Directive 5400.11.\2\
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    \2\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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    c. The right to written notice and consent to the release of 
relevant information outside the Department of Defense.
    d. The right to determine whether they, their child, or other family 
members shall accept or decline any early intervention services without 
jeopardizing other early intervention services.
    e. The opportunity to examine records on assessment, screening, 
eligibility determinations, and the development and implementation of 
the IFSP.
    f. The right to prior written notice when the EIP multidisciplinary 
team proposes, or refuses, to initiate or change the identification, 
evaluation, placement, or provision of early intervention services to 
the infant or toddler with a disability.
    g. The right to prior written notice in their native language, 
unless it clearly is not possible to do so, which informs them of all 
procedural safeguards.
    h. During the pendency of any proceeding or action involving a 
complaint, unless the EIP and the parents otherwise agree, the child 
shall continue to receive the appropriate early intervention services 
currently being provided, or, if applying for initial services, shall 
receive the services not in dispute.
    2. Parents shall be advised of their rights to due process, as 
defined in appendix F to this part.

Appendix B to Part 57--Procedures for Educational Programs and Services 
         for Children With Disabilities, Ages 3 to 21, Inclusive

                     A. Identification and Screening

    It is the responsibility of school officials of the DoDDS to locate, 
identify, and with the consent of a child's parent, evaluate all 
children who are eligible to enroll in the DoDDS under DoD Directive 
1342.13 \1\ who may require special education and related services.
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    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    1. Procedures for Identification and Screening. The DoDDS officials 
shall conduct the following activities to determine if a child needs 
special education and related services:
    a. Screen educational records.
    b. Screen students using system-wide or other basic skill tests in 
the areas of reading, math, and language arts.
    c. Screen school health data such as reports of hearing, vision, 
speech, or language tests and reports from healthcare personnel about 
the health status of a child.
    d. Analyze school records to obtain pertinent information about the 
basis for suspensions, exclusions, withdrawals, and disciplinary 
actions.
    e. In cooperation with the Military Departments, conduct on-going 
child-finding activities and publish, periodically, any information, 
guidelines, and direction on child-find activities for eligible children 
with disabilities, ages 3 to 21, inclusive.
    f. Coordinate the transition of children from early intervention to 
preschool with the Military Services.
    2. Referral of a Child for Special Education or Related Services. 
The DoDDS officials, MRS providers, or others who suspect that a child

[[Page 203]]

has a possible disabling condition shall refer that child to the CSC.

                      B. Assessment and Evaluation

    Any eligible child who is referred to a CSC shall receive a full and 
comprehensive diagnostic evaluation of educational needs. An evaluation 
shall be conducted before an IEP is developed or placement is made in a 
special education program.
    1. Procedures for Assessment and Evaluation. A CSC shall ensure that 
the following elements are included in a comprehensive assessment and 
evaluation of a child:
    a. Assessment of visual and auditory acuity.
    b. A plan to assess the type and extent of the disability. A child 
shall be assessed in all areas related to the suspected disability. When 
necessary, the assessment plan shall include the following:
    (1) Assessment of the level of functioning academically, 
intellectually, emotionally, socially, and in the family.
    (2) Observation in an educational environment.
    (3) Assessment of physical status including perceptual and motor 
abilities.
    (4) Assessment of the need for transition services for students 14 
years and older, the acquisition of daily living skills, and functional 
vocational assessment.
    c. The involvement of parents, under this part.
    d. The use of all locally available community, medical, and school 
resources to accomplish the assessment. At least one specialist with 
knowledge in the area of the suspected disability shall be a member of 
the multidisciplinary assessment team.
    e. The requirement that each assessor prepare an individual 
assessment report that describes the instruments and techniques used, 
the results of the testing, and the relationship of those findings to 
educational functioning.
    f. The inclusion of a description of the problem area constituting 
the basis for an MRS referral.
    2. Standards for Assessment Selection and Procedures. All DoD 
elements, including the CSC and MRS providers, shall ensure that 
assessment materials and evaluation procedures comply, as follows:
    a. Selected and administered so as not to be racially or culturally 
discriminatory.
    b. Administered in the native language or mode of communication of 
the child unless it clearly is not possible to do so.
    c. Validated for the specific purpose for which they are used or 
intended to be used.
    d. Administered by trained personnel in compliance with the 
instructions of the testing instrument.
    e. Administered such that no single procedure is the sole criterion 
for determining an appropriate educational program for a child with a 
disability.
    f. Selected to assess specific areas of educational needs and 
strengths and not merely to provide a single general intelligence 
quotient.
    g. Administered to a child with impaired sensor, motor, or 
communication skills so that the results reflect a child's actual 
ability or level of achievement, and simply not the impaired skill 
itself.
    3. Determination of Eligibility for Special Education and Related 
Services. The CSC shall be convened to determine the eligibility of a 
child for special education and related services. The CSC shall do the 
following:
    a. Ensure that the full comprehensive evaluation of a child is 
accomplished by a multidisciplinary team. The team shall be comprised of 
teachers or other specialists with knowledge in the area of the 
suspected disability.
    b. Meet as soon as possible after a child has been assessed to 
determine the eligibility of the child for services.
    c. Afford the child's parents the opportunity to participate in the 
CSC eligibility meeting.
    d. Issue a written eligibility report that contains the following:
    (1) A description of the nature of the child's disabling condition.
    (2) A synthesis of the formal and informal findings of the 
multidisciplinary assessment team of the child's academic progress.
    (3) A summary of information from the parents, the child, or other 
persons having significant previous contact with the child.
    (4) A determination of eligibility statement.
    (5) A list of the educational areas affected by a child's disability 
and a description of a child's educational needs.
    4. Reevaluation for Eligibility for Special Education and Related 
Services. School officials shall provide a comprehensive reevaluation of 
a child with a disability every 3 years, or more frequently, if 
conditions warrant. The scope and type of the comprehensive reevaluation 
shall be determined individually based on a child's performance, 
behavior, and needs during the reevaluation.

                C. Individualized Education Program (IEP)

    The DoDDS officials shall ensure that the CSC develops and 
implements an IEP for each child with a disability who is enrolled in 
the DoDDS or is placed in another institution by the DoDDS.
    1. The CSC Meeting for the Development and Implementation of an IEP. 
The CSC shall establish and convene a meeting to develop, review, or 
revise the IEP of a child with a disability. That meeting shall be 
scheduled as soon as possible following a determination by the school or 
area CSC that the child is eligible for special education and related

[[Page 204]]

services. The meeting participants shall, minimally, include the 
following:
    a. A principal or school representative other than the child's 
teacher who is qualified to provide or supervise the provision of 
special education.
    b. The child's teacher.
    c. A special education teacher.
    d. One or both of the child's parents.
    e. The child, if appropriate.
    f. For a child with a disability who has been evaluated for the 
first time, a representative of the evaluation team who is knowledgeable 
about the evaluation procedures used and is familiar with the results of 
the evaluation.
    g. Other individuals invited at the discretion of the parent or 
school.
    2. Requirements for the Development of the IEP. The CSC shall 
prepare the IEP with the following:
    a. A statement of the child's present levels of educational 
performance.
    b. A statement of annual goals including short-term instructional 
objectives.
    c. Objective criteria for determining, at least annually, whether 
the educational objectives are being achieved.
    d. A statement of the physical education program provided in one of 
the following settings:
    (1) In the regular education program.
    (2) In the regular education program with adaptations, 
modifications, or the use of assistive technology.
    (3) Through specially designed instruction based on the goals and 
objectives included in the IEP.
    e. A statement of the transition services beginning at age 14 and 
annually, thereafter. When appropriate, include a statement of the 
inter-Agency responsibilities or linkages (or both) before the student 
leaves the school setting. If a specially designed instructional program 
is required, include the goals and objectives in the IEP.
    f. A statement of special transportation requirement.
    g. A statement of the amount of time a week that each special 
education and related service shall be provided to the child.
    h. The extent to which the child shall participate in regular 
educational programs, including the following:
    (1) The projected date for the initiation and the anticipated length 
of IEP activities and services.
    (2) Any statements requiring an adjusted school day or an extended 
school year program.
    i. A statement of the vocational education program for secondary 
students. If a specially designed instructional program is required, the 
necessary goals and objectives in the IEP shall be included.
    3. Requirements for the Implementation of the IEP. The DoDDS CSC 
shall:
    a. Obtain parental agreement and signature before implementation of 
the IEP.
    b. Provide a copy of the child's IEP to the parents.
    c. Ensure that the IEP is in effect before a child receives special 
education and related services.
    d. Review and revise the IEP for each child at least annually in a 
CSC meeting.
    e. Accept a child's current IEP when he or she transfers to the 
DoDDS if the CSC of the gaining school or the area CSC does the 
following:
    (1) Notifies and obtains consent of the parents to use the current 
IEP and all elements contained in it.
    (2) Involves the local DoD Component responsible for the delivery of 
the MRS of the medical requirements in the IEP.
    (3) Initiates a CSC meeting to revise the current IEP.
    (4) If necessary, initiates an evaluation of the child.
    f. Afford the child's parents the opportunity to participate in 
every CSC meeting to determine their child's initial or continuing 
eligibility for special education and related services, or to prepare or 
change the child's IEP or to determine or change the child's placement.
    g. Ensure that at least one parent understands the special education 
procedures including the due process procedures described in appendix F 
of this part and the importance of the parent's participation in those 
processes. School officials shall use devices or hire interpreters or 
other intermediaries who might be necessary to foster effective 
communications between the school and the parent about the child.
    h. Provide special education and related services, in accordance 
with the IEP. The Department of Defense and its constituent elements and 
personnel are not accountable if a child does not achieve the growth 
projected in the IEP.
    i. Ensure that all provisions developed for any child entitled to an 
education by the DoDDS are fully implemented in schools or in non-DoDDS 
schools or facilities including those requiring special facilities, 
other adaptations, or assistive devices.

        D. Placement Procedures and Least Restrictive Environment

    1. A child shall not be placed by the DoDDS in any special education 
program unless the CSC has developed an IEP. If a child with a 
disability is applying for initial admission to a school, the child 
shall enter on the same basis as a child without a disability. A child 
with a disability and with the consent of a parent and school officials 
may receive an initial placement in a special education program under 
procedures listed in paragraph C.3.e. of this appendix.

[[Page 205]]

    2. A placement decision requires the following:
    a. A parent consent to the placement before actual placement of the 
child, except as otherwise provided in section F.2. of this appendix.
    b. Delivery of educational instruction and related services in the 
least restrictive environment. To the maximum extent, a child with a 
disability should be placed with children who are not disabled. Special 
classes, separate schooling, or other removal of a child with a 
disability from the regular education environment shall occur only when 
the type or severity of the disability is such that education in regular 
classes with the use of supplementary aids and services cannot be 
achieved satisfactorily.
    c. The CSC to base placements on the IEP and to review the IEP at 
least annually.
    d. A child shall participate, to the maximum extent, in school 
activities including meals, assemblies, recess periods, and field trips 
with children who are not disabled.
    e. Consideration of factors affecting the child's well-being 
including the effects of separation from parents.
    f. A child shall attend a DoDDS school that is located as close as 
possible to the residence of the parent who is sponsoring the child's 
attendance. Unless otherwise required by the IEP, the school should be 
the same school that the child would have attended had he or she not 
been disabled.

  E. Children With Disabilities Who Are Placed in a Non-DOD School or 
                                Facility

    Children with disabilities who are eligible to receive a DoDDS 
education, but are placed in a non-DoDDS school or facility by the 
DoDDS, shall have all the rights of children with disabilities who are 
enrolled in a DoDDS school. A child with a disability may be placed in a 
non-DoDDS school or facility only if required by the IEP.

      1. Requirements for a Non-DoDDS School or Facility Placement

    a. Placement in a non-DoDDS school or facility shall be made under 
the host-nation requirements.
    b. Placement in a non-DoDDS school or facility is subject to all 
treaties, Executive agreements, and status of forces agreements between 
the United States and the host nations, and all DoD and DoDDS 
regulations.
    c. If the DoDDS places a child with a disability in a non-DoDDS 
school or facility as a means of providing special education and related 
services, the program of that institution including nonmedical care and 
room and board, as in the child's IEP, must be provided at no cost to 
the child or the child's parents. The DoDDS or the responsible DoD 
Component shall pay the costs in accordance with DoD 1010.13-R \2\.
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    \2\ See footnote 1 to section A. of this appendix.
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    d. Local school officials shall initiate and conduct a meeting to 
develop an IEP for the child before placement. A representative of the 
non-DoDDS school or facility should attend the meeting. If the 
representative cannot attend, the DoDDS officials shall communicate in 
other ways to ensure participation including individual or conference 
telephone calls. The IEP must meet the following standards:
    (1) Be signed by an authorized DoDDS official before it becomes 
valid.
    (2) Include a determination that the DoDDS does not currently have 
or cannot reasonably create an educational program appropriate to meet 
the needs of the child with a disability.
    (3) Include a determination that the non-DoDDS school or facility 
and its educational program and related services conform to the 
requirements of this part.
    2. Cost of Tuition For Non-DoDDS School or Facility. The Department 
of Defense is not authorized to fund non-DoDDS placement unless it is 
directed by the DoDDS Area Superintendent in coordination with the 
Director, DoDDS; or it is directed by an impartial hearing officer or 
court of competent jurisdiction. A valid IEP must document the necessity 
of the placement in a non-DoDDS school or facility.

            F. Procedural Safeguards for Children and Parents

    Parents of children with disabilities are afforded procedural 
safeguards to ensure that their children receive a free public education 
consistent with appendix F to this part.

                   1. Notice of Procedural Safeguards

    a. Parents shall be provided a written notice in a reasonable time 
before one of the following:
    (1) Receiving a proposal to initiate or change the identification, 
evaluation, or educational placement of the child or the provision of 
free public education to the child.
    (2) Receiving refusal from the DoDDS to initiate or change the 
identification, evaluation, or educational placement of the child or the 
provision of a free public education.
    b. The notice shall inform the parent of the following:
    (1) Parental procedural rights detailed in appendix F to this part.
    (2) A description of the action proposed or refused by the DoDDS 
with a brief explanation for the decision.
    c. The notice shall be provided so as to ensure the parent's 
understanding. That may

[[Page 206]]

be achieved by using simplified language, delivering the notice in the 
parent's native language, or using an interpreter or other person 
selected by the parents.

                           2. Parental Consent

    a. The consent of a parent of a child with a disability or suspected 
of having a disability shall be obtained before any of the following:
    (1) Initiation of formal evaluation procedures.
    (2) Initial educational placement.
    (3) Change in educational placement.
    b. If the parent refuses consent to any formal evaluation or initial 
placement in a special education program, the DoDDs or the parent may do 
the following:
    (1) Request a conference between the school and parents.
    (2) Request mediation.
    (3) Initiate an impartial due process hearing under appendix F to 
this part, to show cause as to why an evaluation or placement in a 
special education program should or should not occur without such 
consent. If the hearing officer sustains the DoDDS position in the 
impartial due process hearing, the DoDDS may evaluate or provide special 
education and related services to the child without the consent of a 
parent, subject to the further exercise of due process rights.

                        3. Independent Evaluation

    a. A parent is entitled to an independent evaluation at the expense 
of the DoDDS if the parent disagrees with the DoDDS evaluation of the 
child and successfully challenges the evaluation in an impartial due 
process hearing. An independent evaluation provided at the DoDDS expense 
must do the following:
    (1) Conform to the requirements of this part.
    (2) Be conducted, when possible, in the area where the child 
resides.
    (3) Meet DoD standards governing persons qualified to conduct an 
educational evaluation including an evaluation for MRS.
    b. If the final decision rendered in an impartial due process 
hearing sustains the DoDDS evaluation, the parent has the right to an 
independent evaluation, but not at the DoDDS expense.
    c. The DoDDS, the CSC, and a hearing officer appointed under this 
part shall consider any evaluation report presented by a parent.
    4. Access to Records. The parents of a child with a disability shall 
be afforded an opportunity to inspect and review educational records 
about the identification, evaluation, and educational placement of the 
child, and the provision of a free public education for the child.

                          5. Due Process Rights

    a. The parent of a child with a disability or the DoDDS has the 
opportunity to file a written petition for an impartial due process 
hearing at the DoDDS expense under appendix F to this part. The dispute 
may concern issues effecting a partial child's identification, 
evaluation, or placement, or the provision of a free and appropriate 
public education.
    b. While an impartial due process hearing or judicial proceeding is 
pending, unless the DoDDS and a parent of the child agree otherwise, the 
child shall remain in the present educational setting, subject to the 
disciplinary procedures prescribed in section H. of this appendix.
    6. Dispute Resolution--Other Complaints. A parent, teacher, or other 
person covered by this part may file a written complaint about any 
aspect of this part that is not a proper subject for adjudication by a 
due process hearing officer, in accordance with DSR 2500.10.\3\
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    \3\ Copies of the appropriate forms are available at every school 
office.
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                      G. Confidentiality of Records

    The DoDDS officials shall maintain all student records, in 
accordance with DoD Directive 5400.11.\4\
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    \4\ See footnote 1 to section A. of this appendix.
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                       H. Disciplinary Procedures

    All regular disciplinary rules and procedures applicable to children 
receiving educational instruction in the DoDDS shall apply to children 
with disabilities who violate school rules and regulations or disrupt 
regular classroom activities, subject to the following provisions:
    1. Before suspending or expelling a child with a disability, the CSC 
or, a child with a disability in a non-DoDDS school, authorized DoDDS 
officials, shall determine the following:
    a. Whether the behavioral conduct is the result of the child's 
disability.
    b. If any change in the educational placement is needed.
    2. If it is determined that the child's conduct results in whole or 
part from the disability, the child may not be subject to any regular 
disciplinary rules and procedures and the following procedures must be 
followed:
    a. The child's parents shall be notified of the right to have an IEP 
meeting before any change in the child's educational placement.
    b. The CSC or authorized DoDDS officials shall ensure that a meeting 
is held to determine the appropriate educational placement for the child 
in consideration of the child's conduct.

[[Page 207]]

    c. The child may not be suspended for more than 10 days during a 
school year.
    3. A child with a disability may be suspended on an emergency basis 
when it reasonably appears that the child's behavior may endanger the 
health, welfare, or safety of self or any other child, teacher, or 
school personnel. The following conditions apply:
    a. The child's parents shall be notified immediately of that 
suspension and of the time, purpose, and location of the CSC meeting and 
of their right to attend the meeting.
    b. That suspension remains in effect only for the duration of the 
emergency.
    4. If it is determined that the child requires a change in 
educational placement, the CSC or, in the case of a child with a 
disability in a non-DoDDS school, authorized DoDDS officials shall 
ensure that a meeting is held to determine the appropriate educational 
placement for the child in consideration of the child's conduct.

    Appendix C to Part 57--The National Advisory Panel (Nap) on the 
                Education of Dependents With Disabilities

                              A. Membership

    The NAP shall meet as needed in publicly announced, accessible 
meetings open to the general public and shall comply with DoD Directive 
5105.4\1\. The NAP members, appointed by the Secretary of Defense, or 
designee, shall include at least one representative from each of the 
following groups.
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    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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    1. Persons with disabilities
    2. The DoDDS special education teachers
    3. The DoDDS regular education teachers.
    4. Parents of children, ages 3 to 21, inclusive, who are receiving 
special education from the DoDDS.
    5. The staff personnel of the DoDDS Headquarters.
    6. Special education program managers from the DoDDS field 
activities.
    7. Representatives of the Military Departments and overseas 
commands, including providers of related services.
    8. Providers of the DoD early intervention services.
    9. Other appropriate persons.

                              B. Activities

    1. The NAP shall perform the following activities:
    a. Review information about improvements in service provided to 
children with disabilities, ages 3 to 21, inclusive in the Department of 
Defense.
    b. Receive and consider comments from parents, students, 
professional groups, and individuals with disabilities.
    c. When necessary establish committees for short-term purposes 
comprised of representatives from parent, student, professional groups, 
and individuals with disabilities.
    d. Review the findings of fact and decisions of each impartial due 
process hearing conducted under appendix F of this part.
    e. Assist in developing and reporting such information and 
evaluations as may assist the Department of Defense.
    f. Make recommendations based on program and operational information 
for changes in policy and procedures and in the budget, organization, 
and general management of the special education program.
    g. Comment publicly on rules or standards about the education of 
children with disabilities, ages 3 to 21, inclusive.
    h. Perform such other tasks as may be requested by the USD(P&R) or 
the Director, DoDDS.
    2. The NAP members shall serve under appointments that shall be for 
a term not to exceed 3 years.

                        C. Reporting Requirements

    Submit an annual report of the NAP's activities and suggestions to 
the USD(P&R) and the Director, DoDDS, by July 31 of each year. That 
report is exempt from formal review and licensing under section E. of 
DoD Instruction 7750.7.\2\
---------------------------------------------------------------------------

    \2\ See footnote 1 to section A. of this appendix.
---------------------------------------------------------------------------

Appendix D to Part 57--DoD Coordinating Committee on Early Intervention, 
            Special Education, and Medically Related Services

                         A. Committee Membership

    The committee shall meet at least twice yearly to facilitate 
collaboration in early intervention, special education, and Medically 
Related Services (MRS) in the Department of Defense. The committee shall 
consist of the following members:
    1. A representative of the USD(P&R) or designee, who shall serve as 
the Chair.
    2. Representatives of the Secretaries of the Military Departments.
    3. Representatives of the Assistant Secretary of Defense (Health 
Affairs) (ASD(HA)).
    4. Representatives from the DoD school systems (domestic and 
overseas).
    5. Representatives from the GC, DoD.

[[Page 208]]

                           B. Responsibilities

    1. Advise and assist the USD(P&R) in the performance of his or her 
responsibilities.
    2. At the direction of the USD(P&R), advise and assist the Military 
Departments, and the DoD school systems (overseas and domestic) in the 
coordination of services among providers of early intervention, special 
education, and MRS.
    3. Ensure compliance in the provision of early intervention services 
for infants and toddlers and special education and related services for 
children ages 3 to 21, inclusive.
    4. Oversee the coordination of early intervention, special 
education, and related services.
    5. Review the recommendations of the NAP and the Early Intervention 
ICC to identify common concerns, ensure coordination of effort, and 
forward issues requiring resolution to the USD(P&R).
    6. Promote the coordination of services and information sharing 
among the providers of early intervention, special education, and MRS.
    7. Assist in the coordination of assignments of sponsors who have 
children with disabilities who are or who may be eligible for special 
education and MRS in the DoDDS or the EIP through the Military 
Departments.

Appendix E to Part 57--DoD Inter-Component Coordinating Council (ICC) on 
                           Early Intervention

                          A. Council Membership

    The USD(P&R) shall appoint members to the ICC. The Council shall 
meet at least yearly in publicly announced, open meetings that are 
accessible to the general public and shall comply with DoD Directive 
5105.4.\1\ The Council shall be comprised of the following:
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    1. Parents. At least 20 percent of the members shall be parents with 
infants or toddlers with disabilities or children ages 12 or younger 
with disabilities, with knowledge of, or experience with, programs for 
infants and toddlers with disabilities. At least one such member shall 
be a parent of an infant or toddler or a child age 6 or younger.
    2. Representatives of the Surgeons General of the Military 
Departments.
    3. Representatives of the family support programs of the Military 
Departments.
    4. Representatives from the ASD(HA).
    5. Representative(s) from the DoDDS.
    6. A representative from the GC, DoD.

                           B. Responsibilities

    1. Advise and assist the Military medical Departments in the 
performance of their responsibilities, particularly the identification 
of appropriate resources and Agencies for providing early intervention 
services and the promoting of inter-Component agreements.
    2. Advise and assist the DoDDS on the transition of toddlers with 
disabilities to preschool services.
    3. Identify strategies to address areas of conflict, overlap, 
duplication, or omission of early intervention services.
    4. Review policy memoranda on effective inter-Department and inter-
Component collaboration.
    5. Review reports of technical assistance and monitoring activities 
and make recommendations to improve the policies, procedures, programs, 
and delivery of early intervention services.
    6. Make recommendations based on program and operational information 
for changes in the policy, procedures, budget, organization, and general 
management of the EIPs.
    7. Provide advice and technical assistance in the establishment, 
membership, and operation of installation or command level ICCs.
    8. When necessary, establish committees for short-term purposes 
comprised of parents of children with disabilities, service providers, 
and representatives of professional groups.
    9. Submit an annual report of its activities and suggestions to the 
USD(P&R) by July 31 of each year. That report is exempt from formal 
review and licensing under section E. of DoD Instruction 7750.7.\2\
---------------------------------------------------------------------------

    \2\ See footnote 1 to section A. of this appendix.
---------------------------------------------------------------------------

                              C. Procedures

    1. The USD(P&R) shall nominate and select all members to the ICC to 
include those listed in section A.1. of this appendix.
    2. Appointments shall be for a term not to exceed 3 years except for 
DoD personnel who are not representing the parent category of 
membership.
    3. The USD(P&R), or designee, shall call and conduct the meeting of 
the Council.

         Appendix F to Part 57--Mediation and Hearing Procedures

                               A. Purpose

    This appendix establishes requirements for the resolution of 
conflicts through mediation and impartial due process hearings. Parents 
of infants, toddlers, and children who are covered by this Instruction 
and, as the case may be, the cognizant Military Department

[[Page 209]]

or the DoDDS are afforded impartial mediation and/or impartial due 
process hearings and administrative appeals about the provision of early 
intervention services, or the identification, evaluation, educational 
placement of, and the FAPE provided to, such children by the Department 
of Defense, in accordance with 20 U.S.C. 921 et seq. and 1400 et seq.

                              B. Mediation

    1. Mediation may be initiated by either a parent or the Military 
Department concerned, or the DoDDS to resolve informally a disagreement 
on the early intervention services for an infant or toddler or the 
identification, evaluation, educational placement of, or the FAPE 
provided to, a child age 3 to 21, inclusive. The cognizant Military 
Department, rather than the DoDDS, shall participate in mediation 
involving early intervention services. Mediation shall consist of, but 
not be limited to, an informal discussion of the differences between the 
parties in an effort to resolve those differences. The parents and the 
school or Military Department officials may attend mediation sessions.
    2. Mediation must be conducted, attempted, or refused in writing by 
a parent of the infant, toddler, or child whose early intervention or 
special education services (including related services) are at issue 
before a request for, or initiation of, a formal due process hearing 
authorized by this appendix. Any request by the DoDDS or the Military 
Department for a hearing under this appendix shall state how that 
requirement has been satisfied. No stigma may be attached to the refusal 
of a parent to mediate or to an unsuccessful attempt to mediate.

                        C. Hearing Administration

    1. The Defense Office of Hearings and Appeals (DOHA) shall have 
administrative responsibility for the proceedings authorized by sections 
D. through G. of this appendix.
    2. This appendix shall be administered to ensure that the findings, 
judgments, and determinations made are prompt, fair, and impartial.
    3. Impartial hearing officers who shall be DOHA Administrative 
Judges, shall be appointed by the Director, DOHA, and shall be attorneys 
in good standing of the bar of any State, the District of Columbia, or a 
territory or possession of the United States who are independent of the 
DoDDS or the Military Department concerned in proceedings conducted 
under this appendix. A parent shall have the right to be represented in 
such proceedings, at no cost to the Government, by counsel, and by 
persons with special knowledge or training with respect to the problems 
of individuals with disabilities. The DOHA Department counsel normally 
shall appear and represent the DoDDS in proceedings conducted under this 
appendix, when such proceedings involve a child age 3 to 21, inclusive. 
When an infant or toddler is involved, the Military Department 
responsible under this Instruction for delivering early intervention 
services shall either provide its own counsel or request counsel from 
DOHA.

                    D. Hearing Practice and Procedure

                               1. Hearing

    a. Should mediation be refused or otherwise fail to resolve the 
issues on the provision of early intervention services to an infant or 
toddler or the identification or evaluation of such an individual, the 
parent may request and shall receive a hearing before a hearing officer 
to resolve the matter. The parents of an infant or toddler and the 
Military Department concerned shall be the only parties to a hearing 
conducted under this appendix.
    b. Should mediation be refused or otherwise fail to resolve the 
issues on the provision of a FAPE to a child with a disability, age 3 to 
21, inclusive, or the identification, evaluation, or educational 
placement of such an individual, the parent or the school principal, for 
the DoDDS, may request and shall receive a hearing before a hearing 
officer to resolve the matter. The parents of a child age 3 to 21, 
inclusive, and the DoDDS shall be the only parties to a hearing 
conducted under this appendix.
    c. The party seeking the hearing shall submit a written request, in 
the form of a petition, setting forth the facts, issues, and proposed 
relief, to the Director, DOHA. The petitioner shall deliver a copy of 
the petition to the opposing party (i.e., the parent or the school 
principal, for the DoDDS, or the military MTF commander, for the 
Military Department), either in person or by first-class mail, postage 
prepaid. Delivery is complete on mailing. When the DoDDS or the Military 
Department petitions for a hearing, it shall inform the other parties of 
the deadline for filing an answer under paragraph D.1.c. of this 
appendix, and shall provide the other parties with a copy of this part.
    d. An opposing party shall submit an answer to the petition to the 
Director, DOHA, with a copy to the petitioner, within 15 calendar days 
of receipt of the petition. The answer shall be as full and complete as 
possible, addressing the issues, facts, and proposed relief. The 
submission of the answer is complete on mailing.
    e. In 10 calendar days after receiving the petition, the Director, 
DOHA, shall assign a hearing officer, who then shall have jurisdiction 
over the resulting proceedings. The Director, DOHA, shall forward all 
pleadings to the hearing officer.
    f. The questions for adjudication shall be based on the petition and 
the answer, if a

[[Page 210]]

party may amend a pleading if the amendment is filed with the hearing 
officer and is received by the other parties at least 5 calendar days 
before the hearing.
    g. The Director, DOHA, shall arrange for the time and place of the 
hearing, and shall provide administrative support. Such arrangements 
shall be reasonably convenient to the parties.
    h. The purpose of a hearing is to establish the relevant facts 
necessary for the hearing officer to reach a fair and impartial 
determination of the case. Oral and documentary evidence that is 
relevant and material may be received. The technical rules of evidence 
shall be relaxed to permit the development of a full evidentiary record, 
with the ``Federal Rules of Evidence'' (Rules 1-1102) of 28 U.S.C., 
serving as a guide.
    i. The hearing officer shall be the presiding officer, with judicial 
powers to manage the proceeding and conduct the hearing. Those powers 
shall include the authority to order an independent evaluation of the 
child at the expense of the DoDDS or the Military Department concerned 
and to call and question witnesses.
    j. Those normally authorized to attend a hearing shall be the 
parents of the individual with disabilities, the counsel and personal 
representative of the parents, the counsel and professional employees of 
the DoDDS or the Military Department concerned, the hearing officer, and 
a person qualified to transcribe or record the proceedings. The hearing 
officer may permit other persons to attend the hearing, consistent with 
the privacy interests of the parents and the individual with 
disabilities, if the parents have the right to an open hearing on 
waiving in writing their privacy rights and those of the individual with 
disabilities.
    k. A verbatim transcription of the hearing shall be made in written 
or electronic form and shall become a permanent part of the record. A 
copy of the written transcript or electronic record of the hearing shall 
be made available to a parent on request and without cost. The hearing 
officer may allow corrections to the written transcript or electronic 
recording for conforming it to actual testimony after adequate notice of 
such changes is given to all parties.
    l. The hearing officer's decision of the case shall be based on the 
record, which shall include the petition, the answer, the written 
transcript or the electronic recording of the hearing, exhibits admitted 
into evidence, pleadings or correspondence properly filed and served on 
all parties, and such other matters as the hearing officer may include 
in the record, if such matter is made available to all parties before 
the record is closed under paragraph D.1.m. of this appendix.
    m. The hearing officer shall make a full and complete record of a 
case presented for adjudication.
    n. The hearing officer shall decide when the record in a case is 
closed.
    o. The hearing officer shall issue findings of fact and render a 
decision in a case not later than 50 calendar days after being assigned 
to the case, unless a discovery request under section D.2. of this 
appendix, is pending.

                              2. Discovery

    a. Full and complete discovery shall be available to parties to the 
proceeding, with the ``Federal Rules of Civil Procedure,'' Rules 26-37, 
codified at 28 U.S.C. serving as a guide.
    b. If voluntary discovery cannot be accomplished, a party seeking 
discovery may file a motion with the hearing officer to accomplish 
discovery, provided such motion is founded on the relevance and 
materiality of the proposed discovery to the issues. An order granting 
discovery shall be enforceable as is an order compelling testimony or 
the production of evidence.
    c. A copy of the written or electronic transcription of a deposition 
taken by the DoDDS or the Military Department concerned shall be made 
available free of charge to a parent.

                  3. Witnesses; Production of Evidence

    a. All witnesses testifying at the hearing shall be advised that it 
is a criminal offense knowingly and willfully to make a false statement 
or representation to a Department or Agency of the U.S. Government as to 
any matter in the jurisdiction of that Department or Agency. All 
witnesses shall be subject to cross-examination by the parties.
    b. A party calling a witness shall bear the witness' travel and 
incidental expenses associated with testifying at the hearing. The DoDDS 
or the Military Department concerned shall pay such expenses when a 
witness is called by the hearing officer.
    c. The hearing officer may issue an order compelling the attendance 
of witnesses or the production of evidence on the hearing officer's own 
motion or, if good cause be shown, on motion of a party.
    d. When the hearing officer determines that a person has failed to 
obey an order to testify or to produce evidence, and such failure is in 
knowing and willful disregard of the order, the hearing officer shall so 
certify.
    e. The party or the hearing officer seeking to compel testimony or 
the production of evidence may, on the certification provided for in 
paragraph D.3.d. of this appendix, file an appropriate action in a court 
of competent jurisdiction to compel compliance with the hearing 
officer's order.

[[Page 211]]

           4. Hearing Officer's Findings of Fact and Decision

    a. The hearing officer shall make written findings of fact and shall 
issue a decision setting forth the questions presented, the resolution 
of those questions, and the rationale for the resolution. The hearing 
officer shall file the findings of fact and decision with the Director, 
DOHA, with a copy to the parties.
    b. The Director, DOHA, shall forward to the Director, DoDDS, or to 
the Military Department concerned, and to the NAP or the ICC, as 
appropriate, copies with all personally identifiable information 
deleted, of the hearing officer's findings of fact and decision or, in 
cases that are administratively appealed, of the final decision of the 
DOHA Appeal Board.
    c. The hearing officer shall have the authority to impose financial 
responsibility for early intervention services, educational placements, 
evaluations, and related services under his or her findings of fact and 
decision.
    d. The findings of fact and decision of the hearing officer shall 
become final unless a notice of appeal is filed under section F.1. The 
DoDDS or the Military Department concerned shall implement a decision as 
soon as practicable after it becomes final.

                    E. Determination Without Hearing

    1. At the request of a parent of an infant, toddler, or child age 3 
to 21, inclusive, when early intervention or special educational 
(including related) services are at issue, the requirement for a hearing 
may be waived, and the case may be submitted to the hearing officer on 
written documents filed by the parties. The hearing officer shall make 
findings of fact and issue a decision in the period fixed by paragraph 
D.1.o. of this appendix.
    2. The DoDDS or the Military Department concerned may oppose a 
request to waive that hearing. In that event, the hearing officer shall 
rule on that request.
    3. Documents submitted to the hearing officer in a case determined 
without a hearing shall comply with paragraph D.1.h. of this appendix. A 
party submitting such documents shall provide copies to all other 
parties.

                                F. Appeal

    1. A party may appeal the hearing officer's findings of fact and 
decision by filing a written notice of appeal with the Director, DOHA, 
within 5 calendar days of receipt of the findings of fact and decision. 
The notice of appeal must contain the appellant's certification that a 
copy of the notice of appeal has been provided to all other parties. 
Filing is complete on mailing.
    2. Within 10 calendar days of filing the notice of appeal, the 
appellant shall submit a written statement of issues and arguments to 
the Director, DOHA, with a copy to the other parties. The other parties 
shall submit a reply or replies to the Director, DOHA, within 15 
calendar days of receiving the statement, and shall deliver a copy of 
each reply to the appellant. Submission is complete on mailing.
    3. The Director, DOHA, shall refer the matter on appeal to the DOHA 
Appeal Board. It shall determine the matter, including the making of 
interlocutory rulings, within 60 calendar days of receiving timely 
submitted replies under section F.2. of this appendix. The DOHA Appeal 
Board may require oral argument at a time and place reasonably 
convenient to the parties.
    4. The determination of the DOHA Appeal Board shall be a final 
administrative decision and shall be in written form. It shall address 
the issues presented and set forth a rationale for the decision reached. 
A determination denying the appeal of a parent in whole or in part shall 
state that the parent has the right under 20 U.S.C. 921 et seq. and 1400 
et seq., to bring a civil action on the matters in dispute in a district 
court of the United States without regard to the amount in controversy.
    5. No provision of this Instruction or other DoD guidance may be 
construed as conferring a further right of administrative review. A 
party must exhaust all administrative remedies afforded by this appendix 
before seeking judicial review of a determination made under this 
appendix.

             G. Publication and Indexing of Final Decisions

    The Director, DOHA, shall ensure that final decisions in cases 
arising under this appendix are published and indexed to protect the 
privacy rights of the parents who are parties in those cases and the 
children of such parents, in accordance with DoD Directive 5400.11\1\.

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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PART 58--HUMAN IMMUNODEFICIENCY VIRUS (HIV-1)--Table of Contents




Sec.
58.1  Purpose.
58.2  Applicability.
58.3  Definitions.
58.4  Policy.
58.5  Responsibilities.
58.6  Procedures.

Appendix A to Part 58--Administration of Officer Applicants
Appendix B to Part 58--HIV-1 Testing of DoD Civilian Employees

[[Page 212]]

Appendix C to Part 58--Personnel Notification and Epidemiological 
          Investigation

    Authority: 10 U.S.C. 113.

    Source: 56 FR 15281, Apr. 16, 1991, unless otherwise noted.



Sec. 58.1  Purpose.

    This part supersedes Deputy Secretary of Defense Memorandum, 
``Policy on Identification, Surveillance, and Administration of 
Personnel Infected with Human Immunodeficiency Virus (HIV),'' August 4, 
1988, Deputy Secretary of Defense Memorandum, ``Recommendations for 
Revision of DoD Human Immunodeficiency Virus (HIV) Policies,'' March 8, 
1988, Assistant Secretary of Defense (Health Affairs) Memorandum, 
``Policy on Clinical Evaluation, Staging and Disease Coding of Military 
Personnel Infected with Human Immunodeficiency Virus (HIV),'' September 
11, 1987, Assistant Secretary of Defense (Health Affairs) Memorandum, 
``The DoD HTLV-III Testing Program,'' December 5, 1985, Assistant 
Secretary of Defense (Health Affairs) Memorandum, ``Military 
Implementation of Public Health Service Provisional Recommendations 
Concerning Testing Blood and Plasma for Antibodies to HTLV-III,'' July 
17, 1985, to update policy, responsibilities, and procedures on 
identification, surveillance, and administration of civilian and 
military personnel infected with HIV-1.



Sec. 58.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments (including their Reserve components), the Chairman 
of the Joint Chiefs of Staff and the Joint Staff, the Unified and 
Specified Commands, and the Defense Agencies (hereafter referred to 
collectively as ``the DoD Components''). The term ``Military Services,'' 
as used herein, refers to the Army, the Navy, the Air Force, and the 
Marine Corps.



Sec. 58.3  Definitions.

    (a) Human Immunodeficiency Virus-1 (HIV-1). The virus most commonly 
associated with the Acquired Immune Deficiency Syndrome (AIDS) in the 
United States.
    (b) HIV-1 and/or AIDS Education Program. Any combination of 
information, education, and behavior-change strategies designed to 
facilitate behavioral alteration that will improve or protect health. 
Included are those activities intended to support or influence 
individuals in managing their own health through lifestyle decisions and 
self-care. Operationally, such programs include community, worksite, and 
clinical aspects using appropriate public health education 
methodologies.
    (c) Serologic Evidence of HIV-1 Infection. A reactive result given 
by a Food and Drug Administration (FDA)-approved enzyme-linked 
immunosorbent assay (ELISA) serologic test that is confirmed by a 
reactive and diagnostic immunoelectrophoresis test (Western blot (WB)) 
test on two separate samples.
    (d) Host Nation. A foreign nation to which DoD U.S. civilian 
employees are assigned to perform their official duties.
    (e) DoD Civilian Employees. Current and prospective DoD U.S. 
civilian employees, including appropriated and nonappropriated fund 
personnel. This does not include members of the family of DoD civilian 
employees, employees of, or applicants for, positions with contractors 
performing work for the Department of Defense, or their families.
    (f) Epidemiological Assessment. The process by which personal and 
confidential information on the possible modes of transmission of HIV-1 
are obtained from an HIV-1 infected person. This information is used to 
determine if previous, present, or future contacts of the infected 
individual are at risk for infection with HIV-1 and to prevent further 
transmission of HIV-1.



Sec. 58.4  Policy.

    It is DoD policy to:
    (a) Deny eligibility for appointment or enlistment for Military 
Service to individuals with serologic evidence of HIV-1 infection.
    (b) Screen active duty (AD) and Reserve component military personnel 
periodically for serologic evidence of HIV-1 infection.

[[Page 213]]

    (c) Refer AD personnel with serologic evidence of HIV-1 infection 
for a medical evaluation of fitness for continued service in the same 
manner as personnel with other progressive illnesses, as specified in 
DoD Directive 1332.18.\1\ Medical evaluation shall be conducted in 
accordance with the standard clinical protocol, as described in the 
Standard Clinical Protocol.\2\ Individuals with serologic evidence of 
HIV-1 infection who are fit for duty shall not be retired or separated 
solely on the basis of serologic evidence of HIV-1 infection. AD 
personnel with serological evidence of HIV-1 infection or who are ELISA 
repeatedly reactive, but WB negative or indeterminate, shall be advised 
to refrain from donating blood.
---------------------------------------------------------------------------

    \1\ Copies may be obtained at cost, from the National Technical 
Information Services, 5285 Port Royal Road, Springfield, VA 22161.
    \2\ Forward requests for copies to the Office of the Assistant 
Secretary of Defense (Health Affairs), the Pentagon, Washington, DC 
20301-1200.
---------------------------------------------------------------------------

    (d) Deny eligibility for extended AD (duty for a period of more than 
30 days) to those Reserve component members with serologic evidence of 
HIV-1 infection (except under conditions of mobilization and on the 
decision of the Secretary of the Military Department concerned). Reserve 
component members who are not on extended AD or who are not on extended 
full-time National Guard duty, and who show serologic evidence of HIV-1 
infection, shall be transferred involuntarily to the Standby Reserve 
only if they cannot be utilized in the Selected Reserve.
    (e) Retire or separate AD or Reserve Service members infected with 
HIV-1 who are determined to be unfit for further duty, as implemented in 
DoD Directive 1332.18.
    (f) Ensure the safety of the blood supply through policies of the 
Head of the Armed Services Blood Program Office, the FDA guidelines, and 
the accreditation requirements of the Head of the American Association 
of Blood Banks.
    (g) Comply with applicable statutory limitations on the use of the 
information obtained from a Service member during, or as a result of, an 
epidemiologic assessment interview and the results obtained from 
laboratory tests for HIV-1, as provided in this part.
    (h) Control transmission of HIV-1 through an aggressive disease 
surveillance and health education program.
    (i) Provide education and voluntary HIV-1 serologic screening for 
DoD healthcare beneficiaries (other than Service members).
    (j) Comply with host-nation requirements for HIV-1 screening of DoD 
civilian employees, as described in appendix B to this part.



Sec. 58.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Health Affairs), in 
coordination with the Assistant Secretary of Defense (Force Management 
and Personnel) (ASD(FM&P)), the General Counsel of the Department of 
Defense (GC, DoD), and the Assistant Secretary of Defense (Reserve 
Affairs), is responsible for establishing policies, procedures, and 
standards for the identification, surveillance, and administration of 
personnel infected with HIV-1. The Assistant Secretary of Defense 
(Health Affairs) (ASD(HA)) shall provide overall policy guidance and 
approval for the HIV-1 and/or AIDS education and information efforts and 
shall establish the HIV-1 and/or AIDS Information and Education 
Coordinating Committee.
    (b) The Secretaries of the Military Departments shall establish 
Service policies, procedures, and standards for the identification, 
surveillance, education, and administration of personnel infected with 
HIV-1, based on and consistent with all sections of this part.
    (c) The Assistant Secretary of Defense (Force Management and 
Personnel) shall establish and revise policies governing HIV-1 screening 
of DoD civilian employees assigned to, performing official travel in, or 
deployed on ships with ports of call at host nations, in coordination 
with the ASD(HA), the Assistant Secretary of Defense (International 
Security Affairs), and the GC, DoD.
    (d) The Assistant Secretary of Defense (International Security 
Affairs) shall identify or confirm host-nation HIV-1 screening 
requirements for DoD civilians, transmit this information to the 
ASD(FM&P), and coordinate requests for screening with the Secretary of 
State.

[[Page 214]]

    (e) The Heads of the DoD Components shall implement HIV-1 screening 
policies and procedures for DoD civilian employees identified in 
Sec. 58.5(c) and shall take the following actions:
    (1) Report newly established host-nation HIV-1 screening 
requirements to the ASD(FM&P) and provide sufficient background 
information to support a decision. This reporting requirement is exempt 
from licensing, in accordance with DoD 7750.5-M,\3\ paragraph E.4.b.
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    \3\ See footnote 1 to Sec. 58.4(c)
---------------------------------------------------------------------------

    (2) Develop and distribute policy implementing instructions.
    (3) Establish procedures to notify individuals who are evaluated as 
HIV-1 seropositive and provide initial counseling to them.



Sec. 58.6  Procedures.

    (a) Applicants for Military Service and, periodically, AD and 
Reserve component military personnel shall be screened for serologic 
evidence of HIV-1 infection. Testing and interpretation of results shall 
be in accordance with the procedures in HIV-1 Testing and Interpretation 
of Results.\4\ Test results shall be reported to the Reportable Disease 
Data Base, as described in the ASD(HA) Memorandum.
---------------------------------------------------------------------------

    \4\ See footnote 2 to Sec. 58.4(c)
---------------------------------------------------------------------------

    (b) Applicants for enlisted service shall be screened at the 
Military Entrance Processing Stations or the initial point of entry to 
Military Service. Applicants who enlist under a delayed enlistment 
program, but before entry on AD and who exhibit serologic evidence of 
HIV-1 infection, may be discharged due to erroneous enlistment.
    (c) Officer candidates shall be screened during their preappointment 
and/or precontracting physical examination. The disposition of officer 
applicants who are ineligible for appointment due to serologic evidence 
of HIV-1 infection shall be in accordance with the procedures in 
appendix A of this part.
    (d) Applicants for Reserve components shall be screened during the 
normal entry physical examinations or in the preappointment programs 
established for officers. Those individuals with serologic evidence of 
HIV-1 infection who are required to meet accession medical fitness 
standards to enlist, or be appointed, are not eligible for Military 
Service with the Reserve components.
    (e) Initial testing and periodic retesting of AD and Reserve 
component personnel shall be accomplished in the priority listed in 
Disease Surveillance and Health Education.\5\
---------------------------------------------------------------------------

    \5\ See footnote 2 to Sec. 58.4(c).
---------------------------------------------------------------------------

    (f) AD personnel (including Active Guard and/or Reserve) who exhibit 
serologic evidence of HIV-1 infection shall receive a medical 
evaluation. Guard and Reserve personnel, not on extended AD, must obtain 
a medical evaluation from a civilian physician.
    (g) The Head of each Military Service shall appoint an HIV-1 and/or 
AIDS education program coordinator to serve as the focal point for all 
HIV-1 and/or AIDS education program issues and to integrate the 
educational activities of the medical and personnel departments.
    (h) An HIV-1 and/or AIDS Information and Education Coordinating 
Committee shall be established to enhance communication among the Heads 
of the Military Services, recommend joint education policy and program 
actions, review education program implementation, and recommend 
methodologies and procedures for program evaluation. That committee 
shall be chaired by a representative of the ASD(HA). Members shall 
include two representatives from the Office of the ASD(FM&P) 
(OASD(FM&P)), and the HIV-1 and/or AIDS education program coordinator 
from each Military Service. Additional members shall represent the Armed 
Services Blood Program Office and, on an ad hoc basis, the Office of the 
ASD(HA). Policy and program proposals shall be coordinated with the 
Secretaries of the Military Departments.
    (i) The Head of each Military Service shall prepare a plan for the 
implementation of a comprehensive HIV-1 and/or AIDS education program 
that includes specific objectives with measurable action steps. The plan 
shall address information, education, and behavior-change strategies, as 
described in Disease Surveillance and Health Education.

[[Page 215]]

    (j) Civilians may not be mandatorily tested for serologic evidence 
of HIV-1 infection except as necessary to comply with valid host-nation 
requirements for screening of DoD employees. Procedures for mandatory 
screening of DoD civilians shall be in accordance with appendix B of 
this part.
    (k) The medical assessment of each exposure to, and/or case of, HIV-
1 infection seen at a military medical treatment facility (MTF) shall 
include an epidemiological assessment of the potential transmission of 
HIV-1 to other persons at risk of infection, including sexual and other 
intimate contacts and family of the patient, and transfusion history. 
The occurrence of HIV-1 infection or serologic evidence of HIV-1 
infection may not be used as a basis for any disciplinary action against 
an individual, except as described in Limitations on the Use of 
Information.\6\
---------------------------------------------------------------------------

    \6\ See footnote 2 to Sec. 58.4(c).
---------------------------------------------------------------------------

    (l) Each Head of a military medical service shall ensure conduction 
of an ongoing clinical evaluation of each AD Service member with 
serological evidence of HIV-1 infection at least annually. CD4 
lymphocyte percentages or counts shall be monitored at least every 6 
months. Appropriate preventive medicine counseling shall also be 
provided to all individual patients, and public health education 
materials shall be made available to that medical services' beneficiary 
population. Each Head of a military medical service shall ensure 
conduction of longitudinal clinical evaluations of AD Service members 
with serologic evidence of HIV-1 infection and shall ensure preparation 
of internal reports to facilitate timely review and reassessment of 
current policy guidelines.
    (m) All Heads of the military MTFs shall notify promptly the 
cognizant military health authority, when there is clinical or 
laboratory evidence indicative of infection with HIV-1, in accordance 
with appendix C of this part.
    (n) The Secretary of each Military Department shall ensure that a 
mechanism is established to gather data on the epidemiology of HIV-1 
infection of its members. Such epidemiological research shall be 
accomplished to ensure appropriate protection of information given by 
the Service member on the means of transmission.
    (o) The Secretary of the Army, as the Head of the lead Agency for 
infectious disease research within the Department of Defense, shall 
budget for and fund tri-Military Department DoD HIV-1 research efforts, 
in accordance with guidance provided by the ASD(HA). The research 
program shall focus on the epidemiology and natural history of HIV-1 
infections in military and military associated populations; on improving 
the methods for rapid diagnosis and patient evaluation; and on studies 
of the immune response to HIV-1 infection, including the potential for 
increased risk in the military operational environment.
    (p) Service members with serologic evidence of HIV-1 infection shall 
be assigned within the United States, including Alaska, Hawaii, and 
Puerto Rico, due to the high priority assigned to the continued medical 
evaluation of military personnel. The Secretaries of the Military 
Departments may restrict such individuals to nondeployable units or 
positions for purposes of force readiness. To protect the health and 
safety of Service members with serologic evidence of HIV-1 infection and 
of other Service members (and for no other reason), the Secretaries of 
the Military Departments may, on a case-by-case basis, limit assignment 
of HIV-1-infected individuals on the nature and location of the duties 
performed in accordance with operational requirements.
    (q) AD and Reserve component personnel with serologic evidence of 
HIV-1 infection shall be retained or separated in accordance with 
Retention and Separation.\7\
---------------------------------------------------------------------------

    \7\ See footnote 2 to Sec. 58.4(c).
---------------------------------------------------------------------------

    (r) The ASD(HA), in coordination with the Heads of the Military 
Services, shall revise Standard Clinical Protocol, HIV-1 Testing and 
Interpretation of Results, Disease Surveillance and Health Education, 
Procedure for Evaluating T-Helper Cell Count, as appropriate. The 
ASD(FM&P) shall revise appendix B to this part, as appropriate, through 
publication in the Federal

[[Page 216]]

Register. Revisions under this paragraph shall be in coordination with 
the GC, DoD.

       Appendix A to Part 58--Administration of Officer Applicants

    Administration of officer applicants who are ineligible for 
appointment, due to serologic evidence of HIV-1 infection, shall be in 
accordance with the following provisions:
    A. Enlisted members who are candidates for appointment through 
Officer Candidate School (OCS) or Officer Training School (OTS) programs 
shall be disenrolled immediately from the program. If OCS and/or OTS is 
the individual's initial entry training, the individual shall be 
discharged. If the sole basis for discharge is serologic evidence of 
HIV-1 infection, an honorable or entry-level discharge, as appropriate, 
shall be issued. A candidate who has completed initial entry training 
during the current period of service before entry into candidate status 
shall be administered in accordance with Service regulations for 
enlisted personnel.
    B. Individuals in preappointment programs, such as Reserve Officer 
Training Corps (ROTC) and Health Professions Scholarship Program 
participants, shall be disenrolled from the program. However, the Head 
of the Military Service concerned, or the designated representative, may 
delay disenrollment to the end of the academic term (i.e., semester, 
quarter, or similar period) in which serologic evidence of HIV-1 
infection is confirmed. Disenrolled participants shall be permitted to 
retain any financial support through the end of the academic term in 
which the disenrollment is effected. Financial assistance received in 
these programs is not subject to recoupment, if the sole basis for 
disenrollment is serologic evidence of HIV-1 infection.
    C. Service academy cadets, midshipmen, and personnel attending the 
Uniformed Services University of the Health Sciences (USUHS) shall be 
separated from the respective Service academy or USUHS and discharged. 
The Head of the Military Service concerned, or the designated 
representative, may delay separation to the end of the current academic 
year. A cadet or midshipman granted such a delay in the final academic 
year, who is otherwise qualified, may be graduated without commission 
and, thereafter, discharged. If the sole basis for discharge is 
serologic evidence of HIV-1 infection, an honorable discharge shall be 
issued.
    D. Commissioned officers in DoD-sponsored professional education 
programs leading to appointment in a professional military specialty 
(including, but not limited to, medical, dental, chaplain, and legal 
and/or judge advocate) shall be disenrolled from the program at the end 
of the academic term in which serologic evidence of HIV-1 infection is 
confirmed. Disenrolled officers shall be administered in accordance with 
Service regulations. Except as specifically prohibited by statute, any 
additional Service obligation incurred by participation in such programs 
shall be waived, and financial assistance received in these programs 
shall not be subject to recoupment. Periods spent by such officers in 
these programs shall be applied fully toward satisfaction of any 
preexisting Service obligation.
    E. All personnel disenrolled from officer programs who are to be 
separated shall be given appropriate counseling, to include preventive 
medicine counseling and advice to seek treatment from a civilian 
physician.

     Appendix B to Part 58--HIV-1 Testing of DoD Civilian Employees

    A. Requests for authority to screen DoD civilian employees for HIV-1 
shall be directed to the ASD(FM&P). Only requests that are based on a 
host-nation HIV-1 screening requirement shall be accepted. Requests 
based on other concerns, such as sensitive foreign policy or medical 
healthcare issues, shall not be considered under this part. Approvals 
shall be provided in writing by the ASD(FM&P). Approvals shall apply to 
all of the Heads of the DoD Components that may have activities located 
in the host nation.
    B. Specific HIV-1 screening requirements may apply to DoD civilian 
employees currently assigned to positions in the host nation, and to 
prospective employees. When applied to prospective employees, HIV-1 
screening shall be considered as a requirement imposed by another nation 
that must be met before the final decision to select the individual for 
a position or before approving temporary duty or detail to the host 
nation. The Secretary of Defense has made no official commitment, for 
positions located in host nations with HIV-1 screening requirements, to 
those individuals who refuse to cooperate with the screening requirement 
or to those who cooperate and are diagnosed as HIV-1 seropositive.
    C. DoD civilian employees who refuse to cooperate with the screening 
requirement shall be treated, as follows:
    1. Those who volunteered for the assignment, whether permanent or 
temporary, shall be retained in their official position without further 
action and without prejudice to employee benefits, career progression 
opportunities, or other personnel actions to which those employees are 
entitled under applicable law or regulation.
    2. Those who are obligated to accept asssignment to the host nation 
under the terms of an employment agreement, regularly scheduled tour of 
duty, or similar and/or prior obligation may be subjected to an 
appropriate adverse personnel action under

[[Page 217]]

the specific terms of the employment agreement or other authorities that 
may apply.
    3. Host-nation screening requirements, which apply to DoD civilian 
employees currently located in that county, also must be observed. 
Appropriate personnel actions may be taken, without prejudice to 
employee rights and privileges, to comply with the requirements.
    D. Individuals who are not employed in the host nation, who accept 
the screening, and who are evaluated as HIV-1 seropositive shall be 
denied the assignment on the basis that evidence of seronegativity is 
required by the host nation. If denied the assignment, such DoD 
employees shall be retained in their current positions without 
prejudice. Appropriate personnel actions may be taken, without prejudice 
to employee rights and privileges, on DoD civilian employees currently 
located in the host nation. In all cases, employees shall be given 
proper counseling and shall retain all the rights and benefits to which 
they are entitled, including accommodations for the handicapped as in 
the ASD(FM&P) Memorandum\1\ ``Information and Guidance on Human 
Immunodeficiency Virus (HIV)'' January 22, 1988 and FPM Bulletin, 792-
42\2\ and for employees in the United States (29 U.S.C. 794). Non-DoD 
employees should be referred to appropriate support service 
organizations.
---------------------------------------------------------------------------

    \1\See footnote 2 to Sec. 58.4(c).
    \2\See footnote 2 to Sec. 58.4(c).
---------------------------------------------------------------------------

    E. Some host nations may not bar entry to HIV-1-seropositive DoD 
civilian employees, but may require reporting of such individuals to 
host-nation authorities. In such cases, DoD civilian employees who are 
evaluated as HIV-1 seropositive shall be informed of the reporting 
requirements. They shall be counseled and given the option of declining 
the assignment and retaining their official positions without prejudice 
or notification to the host nation. If assignment is accepted, the 
requesting authority shall release the HIV-1 seropositive result, as 
required. Employees currently located in the host nation may also 
decline to have seropositive results released. In such cases, they may 
request and shall be granted early return at Government expense or other 
appropriate personnel action without prejudice to employee rights and 
privileges.
    F. A positive confirmatory test by WB must be accomplished on an 
individual if the screening test (ELISA) is positive. A civilian 
employee may not be identified as HIV-1 antibody positive, unless the 
confirmatory test (WB) is positive. The clinical standards in this 
Directive shall be observed during initial and confirmatory testing.
    G. Procedures shall be established by the Heads of the DoD 
Components to protect the confidentiality of test results for all 
individuals, consistent with the ASD(FM&P) Memorandum and DoD Directive 
5400.11.\3\
---------------------------------------------------------------------------

    \3\See footnote 1 to Sec. 58.4(c).
---------------------------------------------------------------------------

    H. Tests shall be provided by the Heads of the DoD Components at no 
cost to the DoD civilian employees, including applicants.
    I. DoD civilian employees infected with HIV-1 shall be counseled 
appropriately.

   Appendix C to Part 58--Personnel Notification and Epidemiological 
                              Investigation

                        A. Personnel Notification

    1. On notification by a medical health authority of an individual 
with serologic or other laboratory or clinical evidence of HIV-1 
infection, the cognizant military health authority shall undertake 
preventive medicine intervention, including counseling of the individual 
and others at risk of infection, such as his or her sexual contacts (who 
are military healthcare beneficiaries), on transmission of the virus. 
The cognizant military health authority shall coordinate with the Heads 
of the military and civilian blood bank organizations and preventive 
medicine authorities to trace back possible exposure through blood 
transfusion or donation of infected blood (ASD(HA)) Memorandum and refer 
appropriate case-contact information to the appropriate military or 
civilian health authority.
    2. All individuals with serologic evidence of HIV-1 infection who 
are military healthcare beneficiaries shall be counseled by a physician 
or a designated healthcare provider on the significance of a positive 
antibody test. They shall be advised as to the mode of transmission of 
that virus, the appropriate precautions and personal hygiene measures 
required to minimize transmission through sexual activities and/or 
intimate contact with blood or blood products, and of the need to advise 
any past sexual partners of their infection. Women shall be advised of 
the risk of perinatal transmission during past, current, and future 
pregnancies. The infected individuals shall be informed that they are 
ineligible to donate blood and shall be placed on a permanent donor 
deferral list.
    3. Service members identified to be at risk shall be counseled and 
tested for serologic evidence of HIV-1 infection. Other DoD 
beneficiaries, such as retirees and family members, identified to be at 
risk shall be informed of their risk and offered serologic testing, 
clinical evaluation, and counseling. The names of individuals identified 
to be at risk who are not eligible for military healthcare shall be 
provided to civilian health authorities in the local area where the 
index case is identified, unless prohibited

[[Page 218]]

by the appropriate State or host-nation civilian health authority. Such 
notification shall comply with the Privacy Act (5 U.S.C. 552a). 
Anonymity of the HIV-1 index case shall be maintained, unless reporting 
is required by civil authorities.
    4. Blood donors who demonstrate repeatedly reactive ELISA tests for 
HIV-1, but for whom WB or other confirmatory test is negative or 
indeterminate, and who cannot be reentered into the blood donor pool 
shall be appropriately counseled.

                    B. Epidemiological Investigation

    1. Epidemiological investigation shall attempt to determine 
potential contacts of patients who have serologic or other laboratory or 
clinical evidence of HIV-1 infection. The patient shall be informed of 
the importance of case-contact notification to interrupt disease 
transmission and shall be informed that contacts shall be advised or 
their potential exposure to HIV-1. Individuals at risk of infection 
include sexual contacts (male and female); children born to infected 
mothers; recipients of blood, blood products, organs, tissues, or sperm; 
and users of contaminated intravenous drug paraphernalia. Those 
individuals determined to be at risk who are identified and who are 
eligible for healthcare in the military medical system shall be 
notified. Additionally, the Secretaries of the Military Departments 
shall provide for the notification, either through local public health 
authorities or by DoD healthcare professionals, of the spouses of 
Reserve component members found to be HIV-1-infected. Such notifications 
shall comply with the Privacy Act (5 U.S.C. 552a). The Secretaries of 
the Military Departments shall designate all spouses (regardless of the 
Service affiliation of the HIV-1-infected Reservist) who are notified 
under this provision to receive serologic testing and counseling on a 
voluntary basis from MTFs under the Secretaries' of the Military 
Departments jurisdiction.
    2. Communicable disease reporting procedures of civil authorities 
shall be followed to the extent consistent with this Directive through 
liaison between the military public health authorities and the 
appropriate local, State, territorial, Federal, or host-nation health 
jurisdiction.



PART 59--VOLUNTARY MILITARY PAY ALLOTMENTS--Table of Contents




Sec.
59.1  Purpose.
59.2  Applicability.
59.3  Policy.
59.4  Responsibilities.

    Authority: 37 U.S.C. chapter 13.

Source: 52 FR 34215, Sept. 10, 1987, unless otherwise noted.



Sec. 59.1  Purpose.

    This part updates the policies that implement title 37 U.S. Code, 
chapter 13 and govern voluntary allotments of pay and allowances for 
active and retired members.



Sec. 59.2  Applicability.

    This part applies to the Office of the Secretary of Defense and the 
Military Departments. The term ``Military Service,'' as used herein, 
refers to the Army, Navy, Air Force, and Marine Corps.



Sec. 59.3  Policy.

    (a) General. (1) The voluntary allotment system is provided 
primarily as a means to assist military members in accommodating their 
personal and family financial responsibilities to the exigencies of 
military service. It is a convenience and privilege not to be exploited 
or abused. To avoid unjustifiable expense to the government, its use 
shall be limited to the purposes outlined in the following paragraphs.
    (2) All existing approved registered allotments of military pay and 
allowances for active duty and retired members that were authorized 
previously by this part at the time registered may be continued as 
approved allotments. However, if any such allotments are discontinued, 
they may not be reestablished except as a new allotment in accordance 
with the requirements of this part. Any change in the allotment that is 
initiated by the service member is considered a discontinuance, except 
those that are beyond the control of the service member.
    (3) Changes beyond the control of the service member are changes 
that are of an administrative nature dictated by events incidental to 
the purpose of the allotment. Examples of administrative changes that 
are beyond the control of the service member are: name and address 
changes by the payee or amount changes due to contractual obligation 
existing at the time the allotment was executed, such as a mortgage 
payment change because of a variable rate mortgage or changing escrow 
requirements.

[[Page 219]]

Although the changes given above do not constitute a discontinuance, 
such administrative changes that adjust the amount of the allotment 
shall be accepted only when communicated by the service member on a new 
allotment request. Discontinuance occurs with any mortgage refinancing 
action.
    (4) A change in allotment initiated by an organizational allottee 
may be accepted when the change is documented properly, is of an 
administrative nature, and does not increase the amount allotted.
    (b) Active Military Service. Voluntary allotments of military pay 
and allowances of service members in active military service shall be 
limited to the following:
    (1) The purchase of U.S. savings bonds.
    (2) The payment of premiums for insurance on the life of the 
allotter, including U.S. Government Life Insurance, National Service 
Life Insurance, Veterans Group Life Insurance, Navy Mutual Aid 
Insurance, Army Mutual Aid Insurance, and commercial life insurance.
    (i) Allotments for insurance on the lives of a spouse or children.
    (ii) Allotments for health, accident, or hospitalization insurance 
or other contracts that, as a secondary or incidental feature, include 
insurance on the life of the service member are not authorized.
    (iii) Requests to initiate commercial life insurance allotments 
shall be processed only after compliance with requirements of 32 CFR 
part 276.
    (3) The repayment of loans to the Navy Relief Society, Army 
Emergency Relief, Air Force Aid Society, and American Red Cross.
    (4) Allotments to a spouse, former spouses, other dependents, and 
relatives who are not designated legally as dependents. The payment of 
such an allotment to a financial institution or association shall not 
deprive a service member of the use of the allotments authorized by 
paragraph (b)(6) of this section.
    (5) The voluntary liquidation of indebtedness to the United States.
    (i) This includes indebtedness incurred by reason of defaulted notes 
insured by the Federal Housing Administration or guaranteed by the 
Veterans Administration (VA); payment of amounts due under the Retired 
Serviceman's Family Protection Plan, in the case of retired service 
members serving on active duty; payment of delinquent Federal income 
taxes; and other indebtedness to any department or agency of the U.S. 
Government, except to the department paying the service member.
    (ii) This includes repayment of debts owed to an organization for 
funds administered on behalf of the U.S. Government and any such debts 
assigned to a collection agency.
    (6) The payment to a financial organization for credit to an account 
of the service member. A financial organization is any bank, savings 
bank, savings and loan association or similar institution, or Federal or 
State chartered credit union. Monies thus credited to the service 
member's account may then be used for any purpose in accordance with the 
desires and direction of the service member. No more than two such 
allotments under this paragraph shall be allowed any service member at 
any one time.
    (7) Repayment of loans obtained for the purchase of a home, 
including a mobile home or house trailer used as a residence by the 
service member. This does not authorize repayment of loans for business 
purposes or for additions or improvements to homes, mobile homes, or 
house trailers. Allotments authorized herein are in addition to those 
authorized under paragraph (b)(6) of this section. Only one such 
allotment shall be allowed any service member at any one time.
    (8) Charitable contributions to the following:
    (i) A Combined Federal Campaign, in accordance with DOD Directive 
5035.1, ``Fund-Raising Within the Department of Defense,'' April 7, 
1978, and DOD Instruction 5035.5, ``DoD Combined Federal Campaign-
Overseas Areas (CFC-OA),'' August 23, 1978.
    (ii) Army Emergency Relief, Navy Relief Society, or affiliates of 
the Air Force Assistance Fund.

[[Page 220]]

    (9) Deposits to the account of a service member participating in the 
Uniformed Services Savings Deposit Program under 10 U.S.C. 1035. This 
program is limited to service members in a missing status as a result of 
the Vietnam conflict.
    (10) Allotments to the VA for deposit to the Post-Vietnam Era 
Veterans Education Account within the periodic and cumulative depository 
limitations specified in DOD Directive 1322.8, ``Voluntary Educational 
Programs for Military Personnel,'' July 23, 1987. Once authorized by the 
service member, the allotments must run a minimum of 12 consecutive 
months, unless the service member suspends participation or disenrolls 
from the program because of personal hardship
    (11) Payment of delinquent State or local income or employment 
taxes.
    (12) Dental and health insurance allotments for the benefit of the 
families of service members.
    (c) Retired military personnel. (1) Voluntary allotments be service 
members receiving retired or retainer pay shall be limited to the 
following:
    (i) Purchase of U.S. savings bonds.
    (ii) Payment of premiums for insurance on the life of the service 
member including U.S. Government Life Insurance, National Service Life 
Insurance, Veterans Group Life Insurance, Navy Mutual Aid Insurance, 
Army Mutual Aid Insurance, and commercial life insurance, subject to the 
limitations prescribed in paragraph (b)(2) (i) and (ii) of this section.
    (iii) Voluntary liquidation of indebtedness to the United States, 
subject to the limitations prescribed in paragraph (b)(5) of this 
section--
    (iv) Allotments to a spouse, former spouse, and/or children of the 
retired service member having a permanent residence other than that of 
the retired service member.
    (v) Charitable contributions to the Army Emergency Relief, Navy 
Relief Society, or affiliates of the Air Force Assistance Fund.
    (vi) The repayment of loans to the Army Emergency Relief, Navy 
Relief Society, Air Force Aid Society, or American Red Cross.
    (2) To assist personnel in the transition from active duty to 
retired status, all allotments authorized for active duty service 
members may be continued, except those allotments in paragraph (b) 
(8)(i), (9) and (10) of this section. However, if an allotment continued 
from active duty, but not authorized by paragraph (c)(1) of this section 
is discontinued by the retiree, such an allotment may not be 
reestablished.
    (d) Exclusions and Restrictions. (1) The amount of pay and 
allowances that may be allotted shall exclude amounts required to be 
withheld for taxes, liquidations of indebtedness determined under 
applicable provisions of law to be chargeable against the service 
member's pay account, or required premiums on Servicemen's Group Life 
Insurance.
    (2) The total amount that may be allotted shall comply with the 
restrictions in the DOD Military Pay and Allowances Entitlements Manual 
and DOD 1340.12-M, ``DOD Military Retired Pay Manual.''
    (e) Control and use of forms. (1) Allotment requests shall be 
accepted only on authorized allotment forms, unless otherwise provided 
in this part. Supplies of allotment forms shall not be made available to 
non-Federal organizations, except that each Military Department may 
authorize issuance of forms to the Army Emergency Relief, Navy Relief 
Society, the Air Force Aid Society, and American Red Cross.
    (2) Active duty enlisted service members shall sign the allotment 
authorization form in the presence of the service member's commanding 
officer, personnel or disbursing officer, or one of their representative 
who shall witness the signature. The Military Departments may waive this 
requirement for senior enlisted service members and loan repayment 
allotments payable to the Army Emergency Relief, Navy Relief Society, 
the Air Force Aid Society, and American Red Cross.
    (3) Charitable contribution allotment requests by enlisted members 
may be accepted without a witnessing official, when submitted on 
contribution forms in accordance with DOD Directive 5035.1 and DOD 
Instruction 5035.5.
    (4) Retired military personnel need not submit allotment requests on 
the

[[Page 221]]

prescribed forms. A signed personal letter may be used to support an 
allotment request, change, or cancellation by retired military members 
as long as all required information is provided.



Sec. 59.4  Responsibilities.

    (a) The Assistant Secretary of Defense (Comptroller) shall exercise 
primary management responsibility for the voluntary military pay 
allotment program and provide assistance to the Military Departments in 
the form of instructions, requirements, reviews, and other guidance.
    (b) The Secretaries of the Military Departments shall ensure that 
this part is implemented by the Military Services concerned.



PART 61--MEDICAL MALPRACTICE CLAIMS AGAINST MILITARY AND CIVILIAN PERSONNEL OF THE ARMED FORCES--Table of Contents




Sec.
61.1  Purpose.
61.2  Applicability.
61.3  Delegation of authority.
61.4  Procedures.

    Authority: Pub. L. 94-464, sec. 1(a), 90 Stat. 1985, 10 U.S.C. 
1089(f), 2733 and 5 U.S.C. 301.

    Source: 43 FR 15148, Apr. 11, 1978, unless otherwise noted.



Sec. 61.1  Purpose.

    This Directive: (a) Delegates authority, with the power to 
redelegate, to the Secretaries of the Military Departments to provide 
relief to health care personnel of the Department of Defense from 
personal tort liability in connection with their authorized activities, 
and (b) establishes procedures to be followed in providing such relief.



Sec. 61.2  Applicability.

    The provisions of this Directive apply to the Office of the 
Secretary of Defense, the Military Departments, and all other Department 
of Defense Components.



Sec. 61.3  Delegation of authority.

    (a) The authority vested in the Secretary of Defense by title 10 
U.S.C. section 1089(f) hold harmless or provide liability insurance for 
Department of Defense health care personnel is hereby delegated to:
    (1) The Secretary of each Military Department for military members 
and civilian employees of his Department, and
    (2) The Secretary of the Army for civilian employees of the Office 
of the Secretary of Defense and Department of Defense Components other 
than the Military Departments (see DoD Directive 5515.9).1
---------------------------------------------------------------------------

    1 Filed as part of original. Copies may be obtained, if 
needed, from the U.S. Naval Publications and Forms Center, 5801 Tabor 
Avenue, Philadelphia, Pa. 19120 Attention: Code 301.
---------------------------------------------------------------------------

    (b) The authority delegated above may be redelegated as appropriate 
and necessary to carry out the provisions of title 10, U.S.C., section 
1089(f).



Sec. 61.4  Procedures.

    (a) In all cases under title 10 U.S.C. section 1089, medical 
personnel shall be required to:
    (1) Promptly forward all process served upon them or attested true 
copies thereof to the appropriate official designated by the Secretary 
of the Military Department concerned;
    (2) Furnish such other information and documents as the Attorney 
General may request; and
    (3) Comply with the directions of the Attorney General relative to 
the final disposition of a claim for damages.
    (b) The procedures set forth in title 10 U.S.C. section 2733 and 
regulations issued pursuant thereto shall be utilized in determining 
costs, settlements, or judgments under title 10 U.S.C. section 1089(f).



PART 62--ALCOHOL AND DRUG ABUSE BY DoD PERSONNEL--Table of Contents




Sec.
62.1  Purpose.
62.2  Applicability.
62.3  Definitions.
62.4  Policy.
62.5  Responsibilities.

    Authority: 5 U.S.C. 301, Pub. L. 92-255, 91-616, 92-129, and 91-513.

    Source: 45 FR 61615, Sept. 17, 1980, unless otherwise noted.

[[Page 222]]



Sec. 62.1  Purpose.

    (a) This part states the DoD alcohol and drug abuse prevention 
policy, and implements the standards contained in Pub. L. 92-255 (86 
Stat 65), as amended, 91-616 (84 Stat 1848), as amended, and 92-129 (85 
Stat 361), as amended, and the Federal Personnel Manual (FPM) Supplement 
792-2, February 1980.
    (b) In addition, this part establishes policy concerning drug abuse 
paraphernalia.



Sec. 62.2  Applicability.

    The provisions of this part apply to the Office of the Secretary of 
Defense, the Military Departments, the Organization of the Joint Chiefs 
of Staff, the Unified and Specified Commands, and the Defense Agencies. 
The term ``Military Services'' includes the Army, Navy, Air Force, and 
Marine Corps.



Sec. 62.3  Definitions.

    The following definitions are for operational use within the 
Department of Defense. They do not change definitions in statutory 
provisions and those regulations and directives that are concerned with 
determination of misconduct and criminal or civil responsibilities for 
persons' acts or omissions.
    (a) Alcohol and drug abuse. The use of alcohol and/or other drugs to 
an extent that it has an adverse effect on the user's health or 
behavior, family, community, or the Department of Defense and/or the 
illegal use of such substances.
    (b) Drug trafficking. The illegal or wrongful introduction of drugs 
into a military installation, with the intent of selling or transferring 
the drugs; or the illegal or wrongful sale, transfer, or distribution of 
drugs as they are listed in current schedules of the Controlled 
Substances Act, title II, Comprehensive Drug Abuse and Control Act of 
1970 (Pub. L. 91-513) (21 CFR parts 1300-1316).
    (c) Alcohol and drug dependence. The reliance on alcohol and/or 
other drugs following administration on a periodic or continuing basis. 
Dependence may be psychological or physical, or both.
    (1) Psychological dependence. The craving for the mental or 
emotional effects of a drug that manifests itself in repeated use and 
leads to a state of impaired capability to perform normal functions.
    (2) Physical dependence. An alteration or state of adaptation to a 
drug after repeated use that results in withdrawal symptoms when the 
drug is discontinued abruptly and/or the development of tolerance.
    (d) Drug abuse paraphernalia. All equipment, products, and materials 
of any kind that are used, intended for use, or designed for use, in 
planting, propagating, cultivating, growing, harvesting, manufacturing, 
compounding, converting, producing, processing, preparing, testing, 
analyzing, packaging, repackaging, storing, containing, concealing, 
injecting, ingesting, inhaling, or otherwise introducing into the human 
body a controlled substance in violation of the Controlled Substances 
Act.



Sec. 62.4  Policy.

    (a) It is the goal of the Department of Defense to be free of the 
effects of alcohol and drug abuse; of the possession of and trafficking 
in illicit drugs by military and civilian members of the Department of 
Defense; and of the possession, use, sale, or promotion of drug abuse 
paraphernalia. Alcohol and drug abuse is incompatible with the 
maintenance of high standards of performance, military discipline, and 
readiness. Therefore, it is the policy of the Department of Defense to:
    (1) Assess the alcohol and drug abuse and drug trafficking situation 
in or influencing the Department of Defense.
    (2) Not induct persons into the Military Services who are alcohol or 
drug dependent and not hire persons who are alcohol or drug dependent if 
that dependency impairs job performance.
    (3) Deter and detect alcohol and drug abuse within the Armed Forces 
and defense community and drug trafficking on installations and 
facilities under the control of the Department of Defense.
    (4) Provide continuing education and training to commanders, 
supervisors, program personnel, and other military members and civilian 
employees and their families concerning this policy and effective 
measures to alleviate problems associated with alcohol and drug abuse.

[[Page 223]]

    (5) Treat or counsel alcohol and drug abusers and rehabilitate the 
maximum feasible number of them.
    (6) Discipline and/or discharge drug traffickers and those alcohol 
and drug abusers who cannot or will not be rehabilitated, in accordance 
with appropriate laws, regulations, and instructions.
    (7) Work in concert with national alcohol and drug abuse prevention 
programs, maintaining appropriate relationships with governmental and 
nongovernmental agencies.
    (8) Prohibit members of the Armed Forces, and DoD civilians while on 
the job, to possess, sell, or use drug abuse paraphernalia.
    (9) Prohibit the possession or sale of drug abuse paraphernalia by 
DoD resale outlets to include military exchanges, open messes, and 
commissaries, and by private organizations and concessions located on 
DoD installations.
    (b) The Department of Defense encourages DoD Components to use, as 
guidance and as a legal background in addressing paraphernalia issues, 
the Model Drug Paraphernalia Act prepared by the Drug Enforcement 
Administration, at the request of the President (Model Drug 
Paraphernalia Act, Drug Enforcement, March 1980, Volume 7, No. 1).
    (c) Programs and standards of care promulgated in execution of this 
policy for military personnel shall be in compliance with Pub. L. 92-
129.
    (d) Programs and standards of care promulgated in execution of this 
policy for civilian employees shall be in compliance with Pub. L. 92-
255, Pub. L. 91-616, and FPM Supplement 792-2.



Sec. 62.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Health Affairs) (ASD(HA)), 
or designated representative, is responsible for the development, 
coordination, and supervision of the DoD alcohol and drug abuse 
prevention program, in accordance with this part and shall:
    (1) In coordination with the Assistant Secretary of Defense 
(Manpower, Reserve Affairs, and Logistics) (ASD(MRA&L)), develop and 
promulgate policies designed to ensure that the DoD alcohol and drug 
abuse prevention programs reach military members, their families, DoD 
civilian employees and, to the extent feasible, their families. Programs 
and standards of care for family members shall be consistent with those 
for the military and civilian components, with accepted practice in the 
alcohol and drug abuse area, and with applicable laws and jurisdictional 
limitations.
    (2) In coordination with the ASD(MRA&L), issue DoD instructions to 
implement the DoD alcohol and drug abuse prevention program, with 
specific attention to the functional areas of assessment, deterrence and 
detection, treatment and rehabilitation, and education and training.
    (3) Act as focal point for the Department of Defense for interagency 
and nongovernmental coordination of national alcohol and drug abuse 
prevention programs.
    (4) Evaluate and report upon the effectiveness and efficiency of the 
DoD alcohol and drug abuse prevention program.
    (5) Establish a DoD Alcohol and Drug Abuse Advisory Committee to 
advise on policy and program matters. The Committee shall include 
representatives of each Military Service, designated by the Military 
Department concerned, and such other advisors as the ASD(HA), or 
designated representative, considers appropriate. The Committee charter 
shall be approved by the ASD(HA).
    (b) The Secretaries of the Military Departments and Directors of 
Defense Agencies shall establish and operate programs prescribed by this 
part and supporting DoD instructions. They may make exceptions to the 
policy contained in this part only for legitimate medical, educational, 
and operational purposes. This authority shall not be delegated.
    (c) In addition, the Secretaries of the Military Departments shall 
require appropriate commanders to assess the availability of drug abuse 
paraphernalia in the vicinity of DoD installations through their Armed 
Forces Disciplinary Control Boards and in conformity with the Armed 
Forces Disciplinary Control Boards and Off-Installation Military 
Enforcement Guidance, and take appropriate action, when the

[[Page 224]]

availability of drug abuse paraphernalia reveals a threat to the 
discipline, health, welfare, or morals of the Armed Forces.



PART 62b--DRUNK AND DRUGGED DRIVING BY DoD PERSONNEL--Table of Contents




Sec.
62b.1  Purpose.
62b.2  Applicability.
62b.3  Policy.
62b.4  Procedures.
62b.5  Responsibilities.
62b.6  DoD Intoxicated Driving Prevention Task Force.
62b.7  Definitions.

Appendix 1 to Part 62b--Driver's License Information (Sample Letter)
Appendix 2 to Part 62b--State Driver's License Agencies

    Authority: 10 U.S.C. 131.

    Source: 48 FR 41581, Sept. 16, 1983, unless otherwise noted.



Sec. 62b.1  Purpose.

    This part:
    (a) Establishes DoD policy regarding drunk and drugged driving by 
DoD personnel (hereafter referred to as ``intoxicated driving'').
    (b) Assigns responsibility for and explains DoD policy and 
procedures on the establishment and operation of the DoD Intoxicated 
Driving Prevention Program, which is designed to address the problem of 
and increase the awareness and attention given to intoxicated driving by 
DoD personnel.
    (c) Establishes the DoD Intoxicated Driving Prevention Task Force 
(DIDPTF).



Sec. 62b.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Organization of the Joint Chiefs of Staff, the 
Unified and Specified Commands, and the Defense Agencies (hereafter 
referred to collectively as ``DoD Components''). The term ``Military 
Services,'' as used herein, refers to the Army, Navy, Air Force, and 
Marine Corps.



Sec. 62b.3  Policy.

    (a) Intoxicated driving is incompatible with the maintenance of high 
standards of performance, military discipline, DoD personnel 
reliability, and readiness of military units and supporting activities. 
It is DoD policy to reduce significantly the incidence of intoxicated 
driving within the Department of Defense through a coordinated program 
of education, indentification, law enforcement, and treatment. 
Specifically, the goal of the DoD Intoxicated Driving Prevention Program 
is to reduce the number of fatalities and injuries suffered by DoD 
personnel and the amount of property damage that result from intoxicated 
driving. Persons who engage in intoxicated driving, regardless of the 
geographic location of the incident, have demonstrated a serious 
disregard for the safety of themselves and others. It is appropriate for 
military commanders, in the exercise of their inherent authority, to 
protect the mission of an installation and the safety of persons and 
property therein to restrict driving privileges of persons who engage in 
such actions.
    (b) The Department of Defense shall participate in the national 
effort to prevent intoxicated driving by maintaining appropriate 
relationships with other governmental agencies and private organizations 
and shall cooperate with responsible civil authorities consistent with 
statutory and regulatory constraints in detecting, identifying, 
apprehending, prosecuting, educating, and counseling intoxicated drivers 
and in reporting cases as required by State laws and applicable Status 
of Forces Agreements.



Sec. 62b.4  Procedures.

    (a) Education and training. (1) The Military Services shall provide 
drug and alcohol education that focuses on intoxicated driving for each 
of the following: law enforcement, public information, emergency room, 
and safety personnel. Club managers, bartenders, and waitresses serving 
alcoholic beverages and Class VI or package sales personnel shall 
receive annual refresher training. In addition, leadership curricula at 
all levels (PCO/PXO indoctrination, training for judge advocates and 
military judges, and officer and noncommissioned officer schools) shall 
include specific information and a review of current Military Service 
policy on intoxicated driving.

[[Page 225]]

    (2) Other DoD Components shall provide similar instruction in 
conjunction with the training and education requirements of part 62a of 
this title.
    (3) DoD Components shall cooperate, to the extent feasible and 
permitted by law and regulation, with community leaders and existing 
grassroots organizations that are working to combat intoxicated driving, 
in planning and implementing local education efforts.
    (b) Suspension of driving privileges. Each DoD Component of its 
supporting agency that regulates driving privileges shall establish 
procedures for mandatory suspension of driving privileges on military 
installations and in areas subject to military traffic supervision. They 
shall establish procedures for acquiring arrest reports and other 
official documentation of intoxicated driving incidents consistent with 
applicable laws and regulations. Such procedures shall be sufficiently 
flexible to meet local needs.
    (1) Military personnel and their family members, retired members of 
the Military Services, DoD civilian personnel, and others with 
installation driving privileges may have those driving privileges 
suspended, regardless of the geographic location of an intoxicated 
driving incident.
    (i) Suspension is authorized for non-DoD civilians only with respect 
to incidents occurring on the military installation or in areas subject 
to military traffic supervision.
    (ii) With respect to DoD civilian personnel covered by a negotiated 
agreement, a suspension under this paragraph may be reviewed only to the 
extent required by the negotiated agreement applicable to the affected 
employee. Such matters mandatorily are excluded from DoD Component 
administrative grievance procedures. A grievance under such a procedure 
will not delay imposition of a preliminary or 1-year suspension of 
driving privileges.
    (iii) A notice of suspension will not become effective until 24 
hours after the incident for which a suspension is imposed. However, 
this provision does not preclude appropriate action to prevent an 
intoxicated person from operating a motor vehicle, nor does it affect 
the validity of an earlier suspension imposed on the same individual.
    (iv) A hearing authorized under paragraph (b) (2), (3), or (5) of 
this section, shall be conducted by the installation commander. The 
power to conduct a hearing and make a decision may be delegated only to 
an official whose primary duties are not in the field of law 
enforcement. At a hearing under this paragraph, the individual shall 
have the right to present evidence and witnesses at his or her own 
expense. The individual may be represented by counsel at his or her own 
expense. DoD civilian personnel may have a personal representative 
present in accordance with applicable laws and regulations.
    (2) Suspension based upon lawful apprehension. (i) Preliminary 
suspension of driving privileges is mandatory based upon an arrest 
report or other official documentation of the circumstances of an 
apprehension for intoxicated driving.
    (ii) The individual shall be notified in writing of the preliminary 
suspension. The notice shall include the arrest report or other 
documentation and shall inform the individual that a 1-year suspension 
can be imposed upon conviction, imposition of nonjudicial punishment, or 
action by civilian authorities leading to suspension or revocation of 
the individual's driver's license. The notice shall inform the 
individual that he or she has the right to submit a request within 5 
working days to vacate the preliminary suspension and that failure to 
request such a hearing will result in continuation of the preliminary 
suspension.
    (iii) If a hearing has not been requested within 5 working days, the 
preliminary suspension shall be continued until there has been a 
criminal, nonjudicial, or administrative disposition.
    (iv) If the individual requests a hearing to vacate the preliminary 
suspension, it shall be held within 10 working days of the request. If 
the official conducting the hearing determines that the apprehension was 
based upon probable cause, the preliminary suspension shall be 
continued; if not, it shall be vacated. Such determinations are solely 
for purposes of acting on the preliminary suspension and are without 
prejudice to the rights of any party in

[[Page 226]]

a subsequent criminal or administrative proceeding involving the same or 
a related incident.
    (v) If the individual is acquitted, the charges are dismissed, or 
there is an equivalent determination in a nonjudicial punishment 
proceeding or civilian administrative action, the preliminary suspension 
shall be vacated.
    (vi) If there is a conviction, nonjudicial punishment, or civil 
suspension or revocation of driving privileges, the suspension shall be 
continued for 1 year from the date of the original preliminary 
suspension. Such action shall be taken only on the basis of an official 
report.
    (3) Suspension for refusal to take a blood alcohol content (BAC) 
test (i) Preliminary suspension of driving privileges is mandatory based 
upon an official report that an individual refused to submit to a 
lawfully requested BAC test.
    (ii) The individual shall be notified of the preliminary suspension 
in writing. The notice shall include the arrest report or other 
documentation and shall inform the individual that a 1-year suspension 
can be imposed after a hearing under paragraph (b)(3)(iv) of this 
section. The notice also shall inform the individual that he or she has 
the right within 5 working days to submit a request for a hearing to 
validate the preliminary suspension and that the suspension will be for 
1 year if a hearing is not requested.
    (iii) If a hearing is not requested within 5 working days, the 
suspension shall be for 1 year.
    (iv) If the individual requests a hearing to vacate the preliminary 
suspension, it shall be held within 10 working days of the request. The 
hearing shall consider the arrest report or other official 
documentation, information presented by the individual, and such other 
information as the hearing officer may deem appropriate. The official 
conducting the hearing shall consider the following issues: (A) Did the 
official have reasonable grounds to believe that the person had been 
operating or was in actual physical control of, a motor vehicle while 
intoxicated? (B) Was the person lawfully cited or apprehended for an 
intoxicated driving offense? (C) Was the individual lawfully requested 
to submit to a BAC test? (D) Did the person refuse to submit to or fail 
to complete a BAC test required by the law of the jurisdiction in which 
the test was requested? If, in view of these issues, the test was 
lawfully requested, the suspension shall be for 1 year, irrespective of 
the ultimate disposition of the underlying intoxicated driving offense. 
If not, the preliminary suspension shall be vacated. Such determinations 
are solely for purposes of acting on the preliminary suspension and are 
without prejudice to the rights of any party in a subsequent criminal or 
administrative proceeding involving the same or a related incident.
    (4) Suspension upon conviction, nonjudicial punishment, or civilian 
administrative action. (i) Suspension of driving privileges for 1 year 
is mandatory when there has been a conviction, nonjudicial punishment, 
or civilian revocation or suspension of driving privileges for 
intoxicated driving, regardless of any prior administrative 
determination under Sec. 62b.4 (b)(2), (b)(3), or (b)(5).
    (ii) Such action shall be taken only on the basis of an official 
report.
    (iii) The individual shall be notified in writing of the suspension 
and shall be notified that an exception may be granted only under 
paragraph (b)(6) of this section.
    (iv) The suspension shall be issued by the installation commander. 
This authority may be delegated only to an official whose primary 
responsibilities are not in the field of law enforcement.
    (5) Repeat offenders. (i) Preliminary increase in suspension of 
driving privileges is mandatory based upon an arrest report or other 
official documentation of an individual's driving in violation of a 
suspension imposed under this part or under similar rules previously 
issued by a DoD Component.
    (A) The individual shall be notified in writing of the preliminary 
increase in suspension. The notice shall include the arrest report or 
other documentation of the violation as well as documentation of the 
original suspension and shall inform the individual that his or her 
original suspension can be increased by 2 years after a hearing under 
paragraph (b)(5)(i)(C) of this section. The notice shall inform the 
individual that he or she has the right

[[Page 227]]

within 5 working days to submit a request for a hearing to vacate the 
preliminary increase in suspension and that the original suspension will 
be increased by 2 years if such a request is not submitted.
    (B) If a hearing has not been requested within 5 working days, the 
original suspension shall be increased by 2 years.
    (C) If the individual requests a hearing to vacate the preliminary 
suspension, it shall be held within 10 working days of the request. The 
hearing shall consider the arrest report or other official 
documentation, information presented by the individual, documentation of 
the original suspension, and such other information as the hearing 
officer may deem appropriate. If the official conducting the hearing 
determines that the allegation of driving in violation of a suspension 
is supported by a preponderance of the evidence, the original suspension 
shall be increased by 2 years. If not, the preliminary increase in 
suspension shall be vacated. Such determinations are without prejudice 
to the rights of any party in a subsequent criminal or administrative 
proceeding involving the same or a related incident.
    (D) If in a subsequent judicial, nonjudicial, or administrative 
proceeding, it is determined that the individual did not violate a 
suspension, the preliminary increase in suspensions shall be vacated.
    (ii) For each subsequent determination within a 5-year period that a 
1-year suspension is authorized under paragraph (b) (2) through (4) of 
this section, driving privileges shall be suspended for 2-years. Such 
period shall be in addition to any suspension perviously imposed. 
Military personnel shall be prohibited from obtaining or using a U.S. 
Government Motor Vehicle Operator's Indentification Card, Standard Form 
(SF) 46, for 6 months for each such incident. A determination whether 
DoD civilian personnel should be prohibited from obtaining or using an 
SE 46 shall be made under Federal Personnel Manual chapter 930 and other 
laws and regulations applicable to civilian personnel. Nothing in this 
paragraph precludes an installation commander from imposing a 
prohibition upon obtaining or using an SF 46 for a first offense or for 
such other reasons as may be authorized under applicable laws and 
regulations.
    (6) Exceptions. (i) Exceptions to the mandatory suspension 
provisions in this part may be granted under regulations by the DoD 
Component concerned on a case-by-case basis. Requests for exceptions 
shall be in writing. Such exceptions may be granted only on the basis 
of:
    (A) Mission requirements;
    (B) Unusual personal or family hardship; or
    (C) In the case of a preliminary suspension following lawful 
apprehension, delays exceeding 90 days in the formal disposition of the 
allegations insofar as such delays are not attributable to the 
individual.
    (ii) With respect to a person who has no reasonably available 
alternate means of transportation to officially assigned duties, a 
limited exception shall be granted for the sole purpose of driving 
directly to and from such duties. This does not authorize a person to 
drive on a military installation if the person's driver's license is 
under suspension or revocation by a State, Federal, or host country 
civil court or administrative agency. Maximum reliance shall be placed 
on carpools, public transportation, and reasonably available parking 
facilities adjacent to the installation before such a limited exception 
is granted. Nothing in this provision precludes appropriate or other 
administrative action on the basis of an intoxicated driving incident or 
driving in violation of a previously imposed suspension.
    (iii) Exceptions granted under this paragraph shall be reported in 
writing to the next official in the chain of command.
    (7) Overseas commanders with authority to issue driver's licenses 
shall establish procedures for suspension of such licenses for 
intoxicated driving. Such procedures, insofar as the commanders deem 
practicable, shall be similar to the procedures for suspension of 
installation driving privileges prescribed in paragraph (b) (1) through 
(6) of this section.
    (8) Persons whose installation driving privileges are suspended for 
1 year or

[[Page 228]]

more under Sec. 62b.4(b) (2), (3), or (4), above, shall complete an 
alcohol or drug safety action program or equivalent alcohol education 
course (minimum of 8 hours) before their installation driving privileges 
may be reinstated.
    (c) Screening. Each DoD Component or its supporting agency shall 
establish procedures for screening military personnel charged with 
intoxicated driving offenses within 7 working days of issuance of notice 
of the preliminary suspension to determine whether a member is dependent 
on alcohol or other drugs. The results of this screening shall be made 
available to the command having jurisdiction over the case before 
adjudication. Information concerning personal alcohol and drug abuse 
provided by a member in response to screening questions may not be used 
against the member in a court-martial or on the issue of 
characterization in an administrative separation proceeding. Nothing in 
this provision precludes introduction of such evidence for other 
administrative purposes or for impeachment or rebuttal purposes in any 
proceeding in which evidence of alcohol or drug abuse (or lack thereof) 
first has been introduced by the member, nor does it preclude 
disciplinary or other action based on independently derived evidence. 
DoD civilian personnel charged with intoxicated driving shall be advised 
of the Civilian Employee Assistance Program or Installation Drug and 
Alcohol Program and the availability of evaluation in accordance with 
Federal Personnel Manual Supplement 792-2. Retired members of the 
Military Services shall be advised of the availability of evaluation and 
treatment programs.
    (d) Notification of State Driver's License Agencies. Each DoD 
Component or its supporting agency shall establish a systematic 
procedure in accordance with part 286a of this title to notify State 
driver's license agencies of DoD personnel whose installation driving 
privileges are suspended for 1 year or more following final adjudication 
of the intoxicated driving offense or upon suspension for refusal to 
submit to a lawful BAC test under paragraph (b) of this section. This 
notification shall include the basis for the suspension and the BAC 
level, if known. Exceptions shall be made only when such a suspension 
was increased for an additional 2 years for driving on an installation 
while installation driving privileges were suspended solely on the basis 
of driving in violation of suspension (see paragraph (b)(5) of this 
section). This notification shall be sent to the State in which the 
driver's license was issued and the State in which the installation is 
located. Sample letter format is provided in appendix 1, and State 
driver's license agencies are listed in Appendix 2. DoD Components shall 
establish a system to exchange intoxicated driving and driving privilege 
suspension data when DoD personnel transfer from one location to another 
to ensure that the receiving installation continues any remaining 
portion of the suspension. This information requirement is exempt from 
formal approval and licensing.
    (e) The Military Services shall include the intoxicated driving 
prevention program as an inspection item of special interest for 
Inspector General or administrative inspections.
    (f) The Military Services shall direct installation commanders to 
assess the availability of drug and alcohol in the vicinity of military 
installations through their Armed Forces Disciplinary Control Boards or 
Control Boards of other appropriate Federal agencies. Whenever the 
availability of alcohol or drugs, or both, at an establishment off-base 
presents a threat to the discipline, health, and welfare of DoD 
personnel, such establishments shall be dealt with as prescribed in the 
``Armed Forces Disciplinary Control Board and Off-Installation Military 
Enforcement Guidance'' (Army Regulation No. 190-24, Marine Corps Order 
No. 162.2A, BUPERS Inst. 1620.4A, Air Force Regulation No. 125.11, 
Commandant Instruction No. 1620.13).
    (g) Cases Involving Death or Serious Injury. (1) To the extent 
permitted by law and consistent with the Uniform Code of Military 
Justice (UCMJ) and the ``Manual for Courts-Martial'' and in accordance 
with trial counsel's judgement of appropriate tactical and ethical 
concerns, consideration shall be given to presenting a victim's impact 
statement (oral or written statement

[[Page 229]]

by victims or survivors) before sentencing in cases involving 
intoxicated driving.
    (2) Trial counsel are encouraged to make reasonable efforts to 
ensure that the victim or the victim's family is provided information 
about the progress and disposition of cases processed under the UCMJ.
    (h) DoD Components with field installations shall establish an 
awards and recognition program to recognize successful local 
installation intoxicated driving prevention programs.
    (i) Each DoD Component or its supporting agency is encouraged to 
use, as guidance, ``Report on a National Study of Preliminary Breath 
Test (PBT) and Illegal Per Se Laws'' and ``Interim Report to the Nation 
by the Presidential Commission on Drunk Driving.''



Sec. 62b.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Health Affairs) (ASD(HA)) 
shall:
    (1) Develop a coordinated approach to the reduction of intoxicated 
driving, consistent with this part, recognizing that intoxicated driving 
prevention programs shall be designed to meet local needs.
    (2) Appoint the chair of the DIDPTF.
    (3) Monitor Military Service and DoD Component regulations that 
implement the DoD Intoxicated Driving Prevention Program.
    (4) Act as focal point for the Department of Defense for interagency 
and nongovernmental coordination of national intoxicated driving 
prevention programs.
    (5) Evaluate and report biennially to the Secretary of Defense on 
the effectiveness and efficiency of the DoD Intoxicated Driving 
Prevention Program.
    (b) The Assistant Secretary of Defense (Manpower, Reserve Affairs, 
and Logistics) (ASD(MRA&L)) shall:
    (1) Ensure the DoD Department Schools system and section VI schools 
include specific material in the curriculum (grades 7 through 12) on the 
effects that alcohol and drugs have on the impairment of driving skills.
    (2) Ensure that intoxicated driving, accident, mishap, and injury 
data include:
    (i) BAC of drivers in three categories--.01-.04, .05-.09, and .10 
and above.
    (ii) Time of day and day of the week the mishap or injury occurred.
    (iii) Type of vehicle (include MOPEDs with motorcycle data).
    (iv) Death and injury data on DoD personnel killed or injured as a 
result of intoxicated driving, include those who were not intoxicated 
themselves but were involved in a mishap as a result of intoxicated 
driving by another party.
    (v) Government property damage cost.
    (vi) Cost of treatment of injured DoD personnel.
    (vii) Pertinent data on military personnel separated or retired as a 
result of injury or other action taken because of:
    (A) Intoxicated driving by the person being separated or retired; or
    (B) Intoxicated driving by another person.
    (viii) Other chemical substances causing intoxicated driving that 
contributed to an accident.
    (3) Provide an annual report to the Secretary of Defense that 
assesses the impact of intoxicated driving on the Department of Defense. 
The report shall include intoxicated driving arrest, apprehension, and 
conviction data as well as the number of exceptions granted to the 
mandatory suspension of driving privileges under paragraph (b)(6) of 
this section.
    (4) Establish procedures (when feasible) under which DoD personnel 
convicted for driving while intoxicated will pay administrative 
restitution to the government for property damage or medical expenses to 
the extent permitted by applicable law.
    (5) Amend appropriate DoD issuances to include the use of a 
preliminary or prearrest breath test (PBT) to be used by law enforcement 
personnel to indicate impairment when the arresting officer has reason 
to believe the operator of a motor vehicle may be intoxicated. (See 
``Report on a National Study of Preliminary Breath Test (PBT) and 
Illegal Per Se Laws'').
    (c) The Head of each DoD Component or its Supporting Agency shall 
establish

[[Page 230]]

and operate intoxicated driving prevention programs prescribed by this 
part.



Sec. 62b.6  DoD intoxicated driving prevention task force.

    (a) Organization and management. (1) The DIDPTF shall be chaired by 
a representative of the Deputy Assistant Secretary of Defense (Health 
Promotion), Office of the ASD(HA).
    (2) The DIDPTF shall consist of representatives of the Military 
Services' drug and alcohol programs and law enforcement communities and 
a representative of the Deputy Assistant Secretary of Defense (Equal 
Opportunity and Safety Policy), Office of the ASD(MRA&L).
    (3) Meetings generally shall be held bimonthly; however, special 
sessions may be required by the chair.
    (b) Functions. The DIDPTF shall:
    (1) Monitor Military Service and DoD Component policy as it applies 
to the prevention of intoxicated driving.
    (2) Review programs and policy developed by other Federal and State 
agencies and make recommendations of suitable adaptation within the 
Department of Defense.
    (3) Make recommendations to the ASD(HA) and the ASD(MRA&L) on 
matters pertaining to intoxicated driving.



Sec. 62b.7  Definitions.

    (a) Blood Alcohol Content (BAC). The percentage, by weight, of 
alcohol in a person's blood as determined by blood, urine, or breath 
analysis. Percent of weight by volume of alcohol in the blood is based 
on grams of alcohol per 100 milliliters of blood.
    (b) Conviction. An official determination or finding as authorized 
by State or Federal law or regulation, including a final conviction by a 
court or court-martial (whether based on a plea of guilty or a finding 
of guilty and regardless of whether the penalty is rebated, deferred, 
suspended, or probated), an unvacated forfeiture of bail or other 
collateral deposited to secure a defendant's appearance in court, a plea 
of nolo contendere accepted by a court, or a payment of a fine.
    (c) DoD issuances. DoD Directives, Instructions, publications and 
changes thereto.
    (d) DoD personnel--(1) Civilian personnel. Employees of the 
Department of Defense whose salary or wages are paid from appropriated 
or nonappropriated funds.
    (2) Military personnel. All U.S. military personnel on active duty, 
U.S. military reserve or National Guard personnel on active duty, and 
Military Service academy cadets.
    (e) Driving privileges. Operation of a privately owned motor vehicle 
on an installation or in areas where traffic operations are under 
military supervision.
    (f) Intoxicated driving. Includes one or more of the following:
    (1) Operating a motor vehicle under any intoxication caused by 
alcohol or drugs in violation of Article 111 of the UCMJ (see paragraphs 
190 and 191 of the ``Manual for Courts-Martial'' or a similar law of the 
jurisdiction in which the vehicle is being operated.
    (2) Operating a motor vehicle with a BAC of .10 or higher on a 
military installation or in an area where traffic operations are under 
military supervision.
    (3) Operating a motor vehicle with a BAC of .10 or higher in 
violation of the law of the jurisdiction in which the vehicle is being 
operated.
    (4) Operating a motor vehicle with a BAC of .05 but less than .10 in 
violation of the law of the jurisdiction in which the vehicle is being 
operated if the jurisdiction imposes a suspension or revocation solely 
on the basis of the BAC level.
    (g) Supporting agency. The agency that accepts the responsibility 
and performs the actions necessary to accomplish any of the requirements 
of this part (for example, one of the Military Services supporting a 
Defense Agency through installation vehicle registration, screening of 
intoxicated drivers, or supervisor education).

  Appendix 1 to Part 62b--Driver's License Information (Sample Letter)

FROM:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
TO: Department of Vehicle Registration Licenses
_______________________________________________________________________
_______________________________________________________________________

[[Page 231]]

_______________________________________________________________________
SUBJECT: Notification of Person Convicted of an Intoxicated Driving 
          Offense.

    This letter is your notification that on
--------------,_________________________________________________________
(date)
_______________________________________________________________________
(last name, first name, middle initial
_______________________________________________________________________
and social security number of person)
a member of
_______________________________________________________________________
(branch of Military Service or DoD Component)
_______________________________________________________________________
(and unit)
_______________________________________________________________________
(installation location)
was found guilty of (intoxicated driving or refusal to take a blood 
alcohol content (BAC) test in a court-martial, non-judicial proceeding 
under Article 15 of the UCMJ, or civil court). (If civil court, give 
court name and case number.) (He or she ) holds a __________ (State) 
driver's license, number __________, issued __________, expiring on 
__________. (He or she) was arrested
_______________________________________________________________________
(date and base location)
by __________ (State) (or military) police while driving vehicle license 
number __________. A BAC test (was or was not) taken (with a reading of 
__________). Based on the above information, this individual's 
installation driving privileges have been suspended for ____ (insert 
number of years). The individual's current address is:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________

         Appendix 2 to Part 62b--State Driver's License Agencies

                                 Alabama

Data Processing Unit, Driver's Licensing Division, Department of Public 
Safety, Montgomery, Alabama 36192, (205) 832-5100

                                 Alaska

MVR Desk, Motor Vehicles, Pouch N, Juneau, Alaska 99811, (907) 465-4361

                                 Arizona

Phoenix City Magistrates Court (No street number required), Phoenix, 
Arizona 85001, (602) 262-4001

                                Arkansas

Driver's Control, P.O. Box 1272, Little Rock, Arkansas 72203, (501) 371-
1631

                               California

Information Services, Department of Motor Vehicles, P.O. Box 11231, 
Sacramento, California 95813

                                Colorado

Motor Vehicle Division, Master File Section 44-489, 140 W. 6th Avenue, 
Denver, Colorado 80204, (303) 866-3751

                               Connecticut

Assistant Division Chief, 60 State Street, Wethersfield, Connecticut 
06109, (203) 566-3230

                                Delaware

Senior Clerk, Revocation Section, P.O. Box 698, Dover, Delaware 19901, 
(302) 736-4427

                                 Florida

Division of Drivers Licenses & Motor Vehicles, Department of Highway 
Safety, Kirkman Building, Tallahassee, Florida 32301, (904) 488-2117

                                 Georgia

Drivers Support Division, Department of Public Safety, P.O. Box 1456, 
Atlanta, Georgia 30371-2303, (404) 656-5704

                                 Hawaii

Administrator, District Court, 1111 Alakea Street, Honolulu, Hawaii 
96813, (808) 548-2467

                                  Idaho

Idaho Transportation Department, Driver Services, P.O. Box 34, Boise, 
Idaho 83731, (208) 334-2534

                                Illinois

Abstract Informational Unit, Motor Vehicle Services, 2701 S. Dirksen 
Parkway, Springfield, Illinois 62703, (217) 782-2720

                                 Indiana

Bureau of Motor Vehicles, Paid Mail Division, State Office Building, 
room 416, Indianapolis, Indiana 46204, (317) 232-2894

                                  Iowa

Chief Teletype Operator, Lucas State Office Building, Des Moines, Iowa 
50319, (515) 281-5559

                                 Kansas

Chief, Driver Control Bureau, State Office Building, Topeka, Kansas 
66626, (913) 296-3671

[[Page 232]]

                                Kentucky

Division of Driver Licensing, Justice Cabinet, room 220, State Office 
Building, Frankfort, Kentucky 40601, (502) 564-6800

                                Louisiana

Department of Public Safety, Office of Motor Vehicles, P.O. Box 64886, 
Baton Rouge, Louisiana 70896

                                  Maine

Driver Record Section, Motor Vehicle Division, Statehouse Station 29, 
Augusta, Maine 04333, (207) 289-2733

                                Maryland

Director, Driver Records, 6601 Ritchie Highway, NE, Glen Burnie, 
Maryland 21062, (301) 768-7225

                              Massachusetts

Registry Motor Vehicles, 100 Nashua Street, Boston, Massachusetts 02114

                                Michigan

Commercial Lookup Unit, Michigan Department of State, Bureau of Driver & 
Vehicle Services, Lansing, Michigan 48918

                                Minnesota

Driver License Division, 108 Transportation Building, St. Paul, 
Minnesota 55155, (612) 296-2023

                               Mississippi

Mississippi Highway Patrol, MVR Section, P.O. Box 958, Jackson, 
Mississippi 39205, (601) 982-1212, Ext. 268

                                Missouri

Division of Motor Vehicles & Driver Licensing, P.O. Box 629, Jefferson 
City, Missouri 65105, (No telephone inquiries)

                                 Montana

Office Manager, Driver Services, 303 North Roberts, Helena, Montana 
59620, (406) 449-3000

                                Nebraska

Administrator, P.O. Box 94789, Lincoln, Nebraska 68509, (402) 471-3888

                                 Nevada

Driver Record Section, 555 Wright Way, Carson City, Nevada 89701, (702) 
885-5505

                              New Hampshire

Department of Public Safety, Division of Motor Vehicles, Hazen Drive, 
Concord, New Hampshire 03105, (603) 271-2486

                               New Jersey

Supervisor, Abstract Section, Dept. of Motor Vehicles, 137 E. State 
Street, Trenton, New Jersey 08625, (609) 292-4558

                               New Mexico

Chief, Motor Transportation Department, Manuel Lujan Building, Santa Fe, 
New Mexico 87503, (505) 827-2362

                                New York

New York State Dept. of Motor Vehicles, Public Service Bureau, Empire 
State Plaza, Albany, New York 12228, (518) 474-0705

                             North Carolina

Director, Driver License Section, Division of Motor Vehicles, 1100 New 
Bern Avenue, Raleigh, North Carolina 27697, (919) 733-9906

                              North Dakota

Driving Records, Drivers License Division, 600 E. Boulevard, Bismarck, 
North Dakota 58505, (701) 224-2603

                                  Ohio

Bureau of Motor Vehicles, Attn.: MVOSPA, P.O. Box 16520, Columbus, Ohio 
43216

                                Oklahoma

Oklahoma Department of Public Safety, Driver Improvement Division, Box 
11415, Oklahoma City, Oklahoma 73136, (405) 427-6541

                                 Oregon

Supervisor, Files and Correspondence DMV, 1905 Lana Avenue, NE, Salem, 
Oregon 97314, (503) 371-2225

                              Pennsylvania

Division Manager, Citation Processing Division, room 302, Bureau of 
Traffic Safety Operations, Department of Transportation, Harrisburg, 
Pennsylvania 17120

                              Rhode Island

Department of Motor Vehicles, State Office Building, Providence, Rhode 
Island 02903, (401) 277-2994

                             South Carolina

Motor Vehicle Administrator, P.O. Box 1498, Columbia, South Carolina 
29216, (803) 758-8428

                              South Dakota

Driver Improvement Program, 118 W. Capitol, Pierre, South Dakota 57501-
2080, (605) 773-4128

[[Page 233]]

                                Tennessee

Financial Responsibility Section, P.O. Box 945, Nashville, Tennessee 
37202, (615) 741-3954

                                  Texas

Director, Motor Vehicle Division, 40th and Jackson Avenue, Austin, Texas 
78779, (512) 465-7611

                                  Utah

Chief, Drivers License Bureau, 317 State Office Building, Salt Lake 
City, Utah 84114, (801) 965-4411

                                 Vermont

Director of Law Administration, Department of Motor Vehicles, 120 State 
Street, Montpelier, Vermont 05603, (Mail inquiries only)

                                Virginia

Division of Motor Vehicles, Attn: Driver's Licensing and Information 
Department, 2300 W. Broad Street, Richmond, Virginia 23269, (804) 257-
0410

                               Washington

Department of Licensing, Driver Services Division, Highway Licensing 
Building, Olympia, Washington 98504, (206) 753-6976

                              West Virginia

Department of Motor Vehicles, 1800 Washington Street, East, Charleston, 
West Virginia 25317, (304) 348-0238

                                Wisconsin

Driver Record File, Department of Transportation, P.O. Box 7918, 
Madison, Wisconsin 53707-7918, (608) 266-2360

                                 Wyoming

Criminal Identification Division, Boyd Building, Cheyenne, Wyoming 82002

                                   NDR

National Driver Register, room 5117, NHTSA, 400 7th Street SW, 
Washington, DC 20509

                          District of Columbia

District of Columbia Department of Transportation, Bureau of Motor 
Vehicles Services, 301 C Street NW, Washington, DC 20001

                                  Guam

Mr. Patrick Wolfe, Deputy Director, Revenue and Taxation, Government of 
Guam, Agana, Guam 96910

                               Puerto Rico

Mr. Jose A. Zayas-Berdecia, Director, Bureau of Motor Vehicles, P.O. Box 
41243, Santurce, Puerto Rico 00940

                             Virgin Islands

(Does not participate in the National Driver Register)



PART 63--FORMER SPOUSE PAYMENTS FROM RETIRED PAY--Table of Contents




Sec.
63.1  Purpose.
63.2  Applicability and scope.
63.3  Definitions.
63.4  Policy.
63.5  Responsibilities.
63.6  Procedures.

    Authority: 10 U.S.C. 1408.

    Source: 50 FR 2667, Jan. 18, 1985, unless otherwise noted.



Sec. 63.1  Purpose.

    Under 10 U.S.C. 1408, this part establishes policy and authorizes 
direct payments to a former spouse of a member from retired pay in 
response to court-ordered alimony, child support, or division of 
property.



Sec. 63.2  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Coast Guard (under agreement with the 
Department of Transportation), the Public Health Service (PHS) (under 
agreement with the Department of Health and Human Services); and the 
National Oceanic and Atmospheric Administration (NOAA) (under agreement 
with the Department of Commerce). The term ``Uniformed Services,'' as 
used herein, refers to the Army, Navy, Air Force, Marine Corps, Coast 
Guard, commissioned corps of the PHS, and the commissioned corps of the 
NOAA.
    (b) This part covers members retired from the active and reserve 
components of the Uniformed Services who are subject to court orders 
awarding alimony, child support, or division of property.



Sec. 63.3  Definitions.

    (a) Alimony. Periodic payments for the support and maintenance of a 
spouse or former spouse in accordance

[[Page 234]]

with State law under 42 U.S.C. 662(c). It includes, but is not limited 
to, spousal support, separate maintenance, and maintenance. Alimony does 
not include any payment for the division of property.
    (b) Annuitant. A person receiving a monthly payment under a survivor 
benefit plan related to retired pay.
    (c) Child support. Periodic payments for the support and maintenance 
of a child or children, subject to and in accordance with State law 
under 42 U.S.C. 662(b). It includes, but is not limited to, payments to 
provide for health care, education, recreation, and clothing or to meet 
other specific needs of such a child or children.
    (d) Court. Any court of competent jurisdiction of any State, the 
District of Columbia, the Commonwealth of Puerto Rico, Guam, American 
Samoa, the Virgin Islands, the Northern Mariana Islands, and the Trust 
Territory of the Pacific Islands and any court of the United States as 
defined in 28 U.S.C. 451 having competent jurisdiction; or any court of 
competent jurisdiction of a foreign country with which the United States 
has an agreement requiring the United States to honor any court order of 
such country.
    (e) Court Order. As defined under 10 U.S.C. 1408(a)(2), a final 
decree of divorce, dissolution, annulment, or legal separation issued by 
a court, or a court ordered, ratified, or approved property settlement 
incident to such a decree. It includes a final decree modifying the 
terms of a previously issued decree of divorce, dissolution, annulment, 
or legal separation, or a court ordered, ratified, or approved property 
settlement incident to such previously issued decree. The court order 
must provide for the payment to a member's former spouse of alimony, 
child support, or a division of property. In the case of a division of 
property, the court order must specify that the payment is to be made 
from the member's disposable retired pay.
    (f) Creditable service. Service counted towards the establishment of 
any entitlement for retired pay. See paragraphs 10102 through 10108 of 
DoD 1340.12-M, 42 U.S.C. 212 for the PHS, and 33 U.S.C. 864 and 10 
U.S.C. 6323 for NOAA.
    (g) Designated agent. A representative of a Uniformed Service who 
will receive and process court orders under this part.
    (h) Division of property. Any transfer of property or its value by 
an individual to his or her former spouse in compliance with any 
community property settlement, equitable distribution of property, or 
other distribution of property between spouses or former spouses.
    (i) Entitlement. The legal right of a member to receive retired pay.
    (j) Final decree. As defined under 10 U.S.C. 1408(a)(3), a decree 
from which no appeal may be taken or from which no appeal has been taken 
within the time allowed for taking such appeals under the laws 
applicable to such appeals or a decree from which timely appeal has been 
taken and such appeal has been finally decided under the laws applicable 
to such appeals.
    (k) Former spouse. The former husband or former wife, or the husband 
or wife, of a member.
    (l) Garnishment. The legal procedure through which payment is made 
from an individual's pay that is due or payable to another party in 
order to satisfy a legal obligation to provide child support, to make 
alimony payments, or both, under 5 CFR part 581 and 42 U.S.C. 659 or to 
enforce a division of property other than a division of retired pay as 
property under 10 U.S.C. 1408(d)(5).
    (m) Member. A person originally appointed or enlisted in, or 
conscripted into, a Uniformed Service who has retired from the regular 
or reserve component of the Uniformed Service concerned.
    (n) Renounced pay. Retired pay to which a member has an entitlement, 
but for which receipt of payment has been waived by the member.
    (o) Retired pay. The gross entitlement due a member based on 
conditions of the retirement law, pay grade, years of service for basic 
pay, years of service for percentage multiplier, if applicable, and date 
of retirement (transfer to the Fleet Reserve or Fleet Marine Corps 
Reserve); also known as retainer pay.

[50 FR 2667, Jan. 18, 1985, as amended at 52 FR 25215, July 6, 1987]

[[Page 235]]



Sec. 63.4  Policy.

    It is the policy of the Uniformed Services to honor a former 
spouse's request for direct payment from a given member's retired pay in 
enforcement of a court order that provides for a alimony, child support, 
or division of property, when the terms, conditions, and requirements in 
this part are satisfied.



Sec. 63.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Comptroller) shall establish 
policy and procedures, provide guidance, coordinate changes with the 
Uniformed Services, and monitor the implementation of this part within 
the Department of Defense.
    (b) The Secretaries of the Military Departments and Heads of the 
other Uniformed Services shall implement this part.



Sec. 63.6  Procedures.

    (a) Eligibility of former spouse. (1) A former spouse of a member is 
eligible to receive direct payment from the retired pay of that member 
only pursuant to a court order that satisfies the requirements and 
conditions specified in this part. In the case of a division of 
property, the court order must specifically provide that payment is to 
be made from disposable retired pay.
    (2) For establishing eligibility for direct payment under a court 
order that provides for a division of retired pay as property, a former 
spouse must have been married to the member for 10 years or more, during 
which the member performed 10 years or more of creditable service. There 
is no 10-year marriage requirement for payment of child support, 
alimony, or both.
    (b) Application by former spouse. (1) A former spouse shall deliver 
to the designated agent of the member's Uniformed Service a signed DD 
Form 2293, Request for Former Spouse Payments from Retired Pay, or a 
signed statement that includes:
    (i) Notice to make direct payment to the former spouse from the 
member's retired pay.
    (ii) A copy of the court order and other accompanying documents 
certified by an official of the issuing court that provides for payment 
of child support, alimony, or division of property.
    (iii) A statement that the court order has not been amended, 
superseded, or set aside.
    (iv) Sufficient identifying information about the member to enable 
processing of the application. The identification should give the 
member's full name, social security number, and Uniformed Service.
    (v) The full name, address, and social security number of the former 
spouse.
    (vi) Before payment, the former spouse shall agree personally that 
any future overpayments are recoverable and subject to involuntary 
collection from the former spouse or his or her estate.
    (vii) As a condition precedent to payment, the former spouse shall 
agree personally to notify the designated agent promptly if the 
operative court order upon which payment is based is vacated, modified, 
or set aside. This shall include notice of the former spouse's 
remarriage if all or a part of the payment is for alimony or notice of a 
change in eligibility for child support payments under circumstances of 
the death, emancipation, adoption, or attainment of majority of a child 
whose support is provided through direct payment to a former spouse from 
retired pay.
    (2) If the court order is for a division of retired pay as property 
and it does not state that the former spouse satisfied the eligibility 
criteria found in paragraph (a)(2) of this section, the former spouse 
shall furnish sufficient evidence for the designated agent to verify 
that the requirement was met.
    (3) The notification of the designated agent shall be accomplished 
by certified or registered mail, return receipt requested, or by 
personal service. Effective service is not accomplished until a complete 
application providing all information required by this part is received 
in the office of the designated agent, who shall note the date and time 
of receipt on the notification document.
    (4) Not later than 90 days after effective service, the designated 
agent shall

[[Page 236]]

respond to the former spouse as follows: (i) If the court order will be 
honored, the former spouse shall be informed of the date that payments 
tentatively begin; the amount of each payment; the amount of gross 
retired pay, total deductions, and disposable retired pay (except in 
cases where full payment of a court-ordered fixed amount will be made); 
and other relevant information if applicable: or (ii) If the court order 
will not be honored, the designated agent shall explain in writing to 
the former spouse why the court order was not honored.
    (5) The designated agent for each Uniformed Service is:
    (i) Army: Commander, Army Finance and Accounting Center, Attn: 
FINCL-G, Indianapolis, IN 46249-0160, (317) 542-2155.
    (ii) Navy: Director, Navy Family Allowance Activity, Anthony J. 
Celebrezze Federal Building, Cleveland, OH 44199-2087, (216) 522-5301.
    (iii) Air Force: Commander, Air Force Accounting and Finance Center, 
ATTN: JAL, Denver, CO 80279-5000, (303) 370-7524.
    (iv) Marine Corps: Commanding Officer, Marine Corps Finance Center 
(Code AA), Kansas City, MO 64197-0001, (816) 926-7103.
    (v) U.S. Coast Guard, Commanding Officer (L), Pay and Personnel 
Center, 444 Quincy Street, Topeka, Kansas 66683-3591; (913) 295-2516.
    (vi) Office of General Counsel, Department of Health and Human 
Services, room 5362, 330 Independence Avenue SW., Washington, DC 20201, 
(202) 475-0153.
    (vii) U.S. Coast Guard, Commanding Officer (L), Pay and Personnel 
Center, 444 Quincy Street, Topeka, Kansas 66683-3591; (913) 295-2516.
    (6) U.S. Attorneys are not designated agents authorized to receive 
court orders or garnishments under this part.
    (c) Review of Court Orders. (1) The court order must be regular on 
its face, meaning that it is issued by a court of competent jurisdiction 
in accordance with the laws of the jurisdiction.
    (2) The court order must be legal in form and must include nothing 
on its face that provides reasonable notice that it is issued without 
authority of law. It is required that the court order be authenticated 
or certified within 90 days immediately preceding its service on the 
designated agent.
    (3) The court order must be a final decree.
    (4) If the court order was issued while the member was on active 
duty and the member was not represented in court, the court order or 
other court documents must certify that the rights of the member under 
the ``Soldiers' and Sailors' Civil Relief Act of 1940'' (50 U.S.C. 
Appendix 501-591) were complied with.
    (5) Sufficient information must be contained in the court order to 
identify the member.
    (6) For court orders that provide for the division of retired pay as 
property, the following conditions apply:
    (i) The court must have jurisdiction over the member by reason of 
(A) the member's residence, other than because of military assignment in 
the territorial jurisdiction of the court; (B) the member's domicle in 
the territorial jurisdiction of the court; or (C) the member's consent 
to the jurisdiction of the court.
    (ii) The treatment of retired pay as property solely of the member 
or as property of the member and the former spouse of that member must 
be in accordance with the law of the jurisdiction of such court.
    (iii) The court order or other accompanying documents served with 
the court order must show the former spouse was married to the member 10 
years or more, during which the member performed at least 10 years of 
creditable service.
    (7) Court orders awarding a division of retired pay as property that 
were issued before June 26, 1981, shall be honored if they otherwise 
satisfy the requirements and conditions specified in this part. A 
modification on or after June 26, 1981, of a court order that originally 
awarded a division of retired pay as property before June 26, 1981, may 
be honored for subsequent court-ordered changes made for clarification, 
such as the interpretation of a computation formula in the original 
court order. For court orders issued before June 26, 1981, subsequent 
amendments after that date to provide for a division

[[Page 237]]

of retired pay as property are unenforceable under this part. If the 
court order awarding a division of retired pay as property is issued on 
or after June 26, 1981, subsequent modifications of that court order 
shall be honored if they otherwise satisfy the requirements and 
conditions specified in this part.
    (8) In the case of a division of property, the court order must 
provide specifically for payment of a fixed amount expressed in U.S. 
dollars or payment as a percentage or fraction of disposable retired 
pay. Court orders specifying a percentage or fraction of retired pay 
shall be construed as a percentage or fraction of disposable retired 
pay. A court order that provides for a division of retired pay by means 
of a formula wherein the elements of the formula are not specifically 
set forth or readily apparent on the face of the court order will not be 
honored unless clarified by the court.
    (d) Garnishment Orders. (1) If a court order provides for the 
division of property other than retired pay in addition to an amount of 
disposable retired pay to be paid to the member's former spouse, the 
former spouse may garnish that member's retired pay in order to enforce 
the division of property. The limitations of 15 U.S.C. 1673(a) and the 
limitations of Sec. 63.6(e) of this part apply in determining the amount 
payable to a former spouse.
    (2) The designated agents authorized to receive service of process 
of garnishment orders under this part shall be those listed in 
Sec. 63.6(b)(5) of this part.
    (3) Garnishment orders under this part for enforcement of a division 
of property other than retired pay shall be processed in accordance with 
5 CFR part 581 to the extent that the procedures are consistent with 
this part.
    (e) Limitations. (1) Upon proper service, a member's retired pay may 
be paid directly to a former spouse in the amount necessary to comply 
with the court order, provided the total amount paid does not exceed:
    (i) 50 percent of the disposable retired pay for all court orders 
and garnishment actions paid under this part.
    (ii) 65 percent of the disposable retired pay for all court orders 
and garnishments paid under this part and garnishments under 42 U.S.C. 
659.
    (2) Disposable retired pay is the gross pay entitlement, including 
renounced pay, less authorized deductions. Disposable retired pay does 
not include annuitant payments under 10 U.S.C. chapter 73. For court 
orders issued on or before November 14, 1986 (or amendments thereto), 
disposable retired does not include retired pay of a member retired for 
disability under 10 U.S.C. chapter 61. The authorized deductions are:
    (i) Amounts owed to the United States.
    (ii) Fines and forfeitures ordered by a court-martial.
    (iii) Amounts waived in order to receive compensation under title 5 
or 38 of the U.S. Code.
    (iv) Federal employment taxes and income taxes withheld to the 
extent that the amount deducted is consistent with the member's tax 
liability, including amounts for supplemental withholding under 26 
U.S.C. 3402(i), when the member presents evidence to the satisfaction of 
the designated agent that supports such withholding. State employment 
taxes and income taxes when the member makes a voluntary request for 
such withholding from retired pay and the Uniformed Services have 
entered into an agreement with the State concerned for withholding from 
retired pay.
    (v) Premiums paid as a result of a election under 10 U.S.C. chapter 
73 to provide an annuity to a spouse or former spouse to whom payment of 
a portion of such member's retired pay is being made pursuant to a court 
order under this part.
    (vi) The amount of retired pay of the member under 10 U.S.C. chapter 
61 computed using the percentage of the member's disability on the date, 
when the member was retired (or the date on which the member's name was 
placed on the temporary disability retirement list), for court orders 
issued after November 14, 1986.
    (vii) Other amounts required by law to be deducted.
    (f) Notification of Member. (1) As soon as possible, but not later 
than 30 calendar days after effective service of a court order or 
garnishment action

[[Page 238]]

under this part, the designated agent shall send written notice to the 
affected member at his or her last known address.
    (2) This notice shall include:
    (i) A copy of the court order and accompanying documentation.
    (ii) An explanation of the limitations placed on the direct payment 
to a former spouse from a member's retired pay.
    (iii) A request that the member submit notification to the 
designated agent if the court order has been amended, superseded, or set 
aside. The member is obligated to provide an authenticated or certified 
copy of the operative court documents when there are conflicting court 
orders.
    (iv) The amount or percentage that will be deducted if the member 
fails to respond to the notification as prescribed by this part.
    (v) The effective date that direct payments to the former spouse 
tentatively will begin.
    (vi) Notice that the member's failure to respond within 30 days from 
the date that the notice is mailed may result in the payment of retired 
pay as provided in the notification.
    (vii) That if the member submits information in response to this 
notification, the member thereby consents to the disclosure of such 
information to the former spouse or the former spouse's agent.
    (3) If the member responds to the notification, the designated agent 
shall consider the response and will not honor the court order whenever 
it is shown that the court order is defective, or the court order is 
modified, superseded, or set aside.
    (g) Designated agent liability. (1) The United States and any 
officer or employee of the United States will not be liable with respect 
to any payment made from retired pay to any member or former spouse 
pursuant to a court order that is regular on its face if such payment is 
made in accordance with this part.
    (2) An officer or employee of the United States, who under this part 
has the duty to respond to interrogatories, will not be subject under 
any law to any disciplinary action or civil or criminal liability or 
penalty for, or because of, any disclosure of information made by him or 
her in carrying out any of the duties that directly or indirectly 
pertain to answering such interrogatories.
    (3) If a court order on its face appears to conform to the laws of 
the jurisdiction from which it was issued, the designated agent will not 
be required to ascertain whether the court has obtained personal 
jurisdiction over the member.
    (4) Whenever a designated agent is effectively served with 
interrogatories concerning implementation of this part, the designated 
agent shall respond to such interrogatories within 30 calendar days of 
receipt or within such longer period as may be prescribed by applicable 
State law.
    (h) Payments. (1) Subject to a member's eligibility for retired pay, 
effective service of a court order, and the limitations and requirements 
of this part, the Uniformed Service concerned shall begin payments to 
the former spouse not later than 90 days after the date of effective 
service.
    (2) Payments shall conform with the normal pay and disbursement 
cycle for retired pay. Payments may be expressed as fixed in amount or 
as a percentage or fraction of disposable retired pay. With regard to 
payments based on a percentage or fraction of disposable retired pay, 
the amount will change in direct proportion and at the effective date of 
future cost-of-living adjustments that are authorized, unless the court 
order directs otherwise.
    (3) Payments terminate on the date of the death of the member, death 
of the former spouse, or as stated in the applicable court order, 
whichever occurs first. Payments shall be terminated or shall be reduced 
upon the occurrence of a condition that requires termination or 
reduction under applicable State law.
    (4) When several court orders are served with regard to a member's 
retired pay, payment shall be satisfied on a first-come, first-served 
basis within the amount limitations prescribed in paragraph (e) of this 
section.
    (5) If conflicting court orders are served on the designated agent 
that direct that different amounts be paid during a month to the same 
former

[[Page 239]]

spouse from a given member's retired pay, the designated agent shall 
authorize payment on the court order directing payment of the least 
amount. The difference in amounts on conflicting court orders shall be 
retained by the designated agent pending resolution by the court that 
has jurisdiction or by agreement of the parties. The amount retained 
shall be paid as provided in a subsequent court order or agreement. The 
total of all payments plus all moneys retained under this paragraph 
shall be within the limitation prescribed in paragraph (e) of this 
section.
    (6) The designated agent shall comply with a stay of execution 
issued by a court of competent jurisdiction and shall suspend payment of 
disputed amounts pending resolution of the issue.
    (7) When service is made and the identified member is found not to 
be currently entitled to payments the designated agent shall advise the 
former spouse that no payments are due from or payable by the Uniformed 
Service to the named individual. If the member is on active duty when 
service is accomplished, the designated agent shall retain the 
application until the member's retirement. In such case, payments to the 
former spouse, if otherwise proper, shall begin not later than 90 days 
from the date the member first becomes entitled to receive retired pay. 
If the member becomes entitled to receive retired pay more than 90 days 
after first being notified under paragraph (f) of this section, the 
notification procedures prescribed by that section shall be repeated by 
the designated agent.
    (8) In moneys are only temporarily exhausted or otherwise 
unavailable, the former spouse shall be fully advised of the reason or 
reasons why and for how long the moneys will be unavailable. Service 
shall be retained by the designated agent and payments to the former 
spouse, if otherwise proper, shall begin not later than 90 days from the 
date the member becomes entitled to receive retired pay. If the member 
becomes entitled to receive retired pay more than 90 days after first 
being notified under paragraph (f) of this section, the notification 
procedures prescribed by that section shall be repeated by the 
designated agent.
    (9) The order of precedence for disbursement of retired pay when the 
gross amount is not sufficient to permit all authorized deductions and 
collections shall follow volume I, part 3, section 7040, ``Order of 
Payment,'' in the Treasury Fiscal Requirements Manual for Guidance of 
Departments and Agencies. Court-ordered payments to a former spouse from 
retired pay shall be enforced over voluntary deductions and allotments.
    (10) Payments made shall be prospective in terms of the amount 
stated in the court order. Arrearages will not be considered in 
determining the amount payable from retired pay.
    (11) No right, title, or interest that can be sold, assigned, 
transferred, or otherwise disposed of, including by inheritance, is 
created under this part.
    (12) At the request of the designated agent, the former spouse may 
be required to provide a certification of eligibility that attests in 
writing to the former spouse's continued eligibility and that includes a 
notice of change in status or circumstances that affect eligibility. 
After notice to the former spouse, payments to the former spouse may be 
suspended, or terminated, when the former spouse fails to comply, or 
refuses to comply, with the certification requirement.
    (i) Reconsideration. A former spouse or member may request that the 
designated agent reconsider the designated agent's determination in 
response to service of an application for payments under this part or 
the member's answer to the designated agent with respect to notice of 
such service. For reconsideration, the request must express the issues 
the former spouse or the member believes were incorrectly resolved by 
the designated agent. The designated agent shall respond to the request 
for reconsideration, giving an explanation of the determination reached.

(Approved by the Office of Management and Budget under control numbers 
0704-0160 and 0704-0182)

[50 FR 2667, Jan. 18, 1985, as amended at 52 FR 25215, July 6, 1987]

[[Page 240]]



PART 64--MANAGEMENT AND MOBILIZATION OF REGULAR AND RESERVE RETIRED MILITARY MEMBERS--Table of Contents




Sec.
64.1  Purpose.
64.2  Applicability and scope.
64.3  Definitions.
64.4  Policy.
64.5  Responsibilities.
64.6  Procedures.

Appendix A to Part 64--Letter Format to Cognizant Service Personnel 
          Center Requesting Employee be Screened from Retiree-Recall 
          Program
Appendix B to Part 64--List of Reserve Personnel Centers to which 
          Retiree-Recall Screening Determination Shall be Forwarded

    Authority: 10 U.S.C. 672(a), 675, 688, and 973.

    Source: 55 FR 9319, Mar. 13, 1990, unless otherwise noted.



Sec. 64.1  Purpose.

    This part implements sections 672(a), 675, 688, and 973 of title 10, 
United States Code, by prescribing uniform policy and procedures 
governing the peacetime management of retired military personnel, both 
Regular and Reserve, in preparation for their use during a mobilization.



Sec. 64.2  Applicability and scope.

    This part:
    (a) Applies to the Office of the Secretary of Defense (OSD); the 
Military Departments (including their National Guard and Reserve 
components); the Chairman, Joint Chiefs of Staff (Joint Staff); the 
Coast Guard and its Reserve component (by agreement with the Department 
of Transportation (DoT)); and the Defense Agencies (hereafter referred 
to collectively as ``DoD Components''). The term ``Military Services,'' 
as used herein, refers to the Army, Navy, Air Force, Marine Corps, and 
Coast Guard (by agreement with the DoT).
    (b) By agreement with non-DoD organizations that have DoD-related 
missions, includes organizations with Defense-related missions, such as 
the Federal Emergency Management Agency (FEMA), the Selective Service 
System (SSS), and the organizations with North Atlantic Treaty 
Organization (NATO)-related missions.



Sec. 64.3  Definitions.

    (a) Key employee. Any Reservist, or any military retiree (Regular or 
Reserve) identified by his or her employer, private or public, as 
filling a key position.
    (b) Key position. A civilian position, public or private (designated 
by the employers and approved by the Secretary concerned), that cannot 
be vacated during war or national emergency.
    (c) Military retiree categories--(1) Category I. Nondisability 
military retirees under age 60 who have been retired less than 5 years.
    (2) Category II. Nondisability military retirees under age 60 who 
have retired 5 years or more.
    (3) Category III. Military retirees, including those retired for 
disability, other than categories I or II retirees (includes warrant 
officers and health-care professionals who retire from active duty after 
age 60).
    (d) Military retirees or retired military members. (1) Regular and 
Reserve officers and enlisted members who retire from the Military 
Services under 10 U.S.C. chapters 61, 63, 65, 67, 367, 571, 573, or 867 
and 14 U.S.C. chapters 11 and 21.
    (2) Reserve officers and enlisted members eligible for retirement 
under one of the provisions of law in definition (d)(1) who have not 
reached age 60 and who have not elected discharge or are not members of 
the Ready Reserve or Standby Reserve (including members of the Inactive 
Standby Reserve).
    (3) Members of the Fleet Reserve and Fleet Marine Corps Reserve 
under 10 U.S.C. 6330.



Sec. 64.4  Policy.

    It is DoD policy that military retirees shall be ordered to active 
duty (as needed) to fill personnel shortfalls due to mobilization or 
other emergencies, as described in 10 U.S.C. 672 and 688. DoD Components 
and the Coast Guard shall plan to use as many retirees, as necessary, to 
meet national security needs. Military retirees may be used as follows:

[[Page 241]]

    (a) To fill shortages in, or to augment, deployed or deploying 
units.
    (b) To fill shortages in, or to augment, supporting units and 
activities in the Continental United States (CONUS), Alaska, and Hawaii.
    (c) To release other military members for deployment overseas.
    (d) Subject to the limitations of 10 U.S.C. 973, to fill Federal 
civilian workforce shortages within the Department of Defense, the Coast 
Guard, or other Government entities.
    (e) To meet national security needs in organizations outside the 
Department of Defense with Defense-related missions.



Sec. 64.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Reserve Affairs) (ASD(RA)) 
and the Assistant Secretary of Defense (Force Management and Personnel) 
(ASD(FM&P)) shall provide overall policy guidance for the management and 
mobilization of DoD military retirees. In addition, the Assistant 
Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) shall:
    (1) Validate positions identified by Defense and non-Defense 
Agencies as suitable for fill by military retirees.
    (2) Establish priorities for fill once all requirements are 
identified.
    (3) Provide redistribution guidance.
    (b) The Secretaries of the Military Departments and the Commandant 
of the Coast Guard shall ensure that plans for the management and 
mobilization of military retirees are consistent with this part.
    (c) The Directors of the Defense Agencies, the Director of the 
Federal Emergency Management Agency (FEMA) and the Director of the 
Selective Service System (SSS) and other Federal Organizations, as 
appropriate, shall, by agreement, assist in identifying military and 
Federal civilian wartime positions that are suitable for fill by 
military retirees, and provide a list of requirements to the Office of 
the Assistant Secretary of Defense (Force Management and Personnel) 
(OASD(FM&P)) for validation and prioritization before fill by the 
Military Services. The Services retain the right to disapprove the 
request if no military retiree is available. At least annually, the 
requesting Agency shall verify to the OASD(FM&P) the accuracy of their 
validated requirements and identify any new requirements.
    (d) The Secretaries of the Military Departments, or designees, 
shall:
    (1) Prepare plans and establish procedures for mobilization of 
military retirees in conformance with this part.
    (2) Determine the extent of military retiree mobilization 
requirements based on existing inventories and inventory projections for 
mobilization of qualified Reservists in an active status in the Ready 
Reserve, the Inactive National Guard, or the Standby Reserve.
    (3) Develop procedures for identifying categories I and II retirees 
and conduct screening of retirees using this part for guidance.
    (4) Maintain personnel records and other necessary records for 
military retirees, including date of birth, date of retirement, current 
address, and documentation of military qualifications. Maintain records 
for categories I and II military retirees, including retirees who are 
key employees and their availability for mobilization, civilian 
employment, and physical condition. Data shall be maintained on retired 
Reserve members in accordance with 32 CFR part 114.
    (5) Advise military retirees of their duty to provide the Military 
Services with accurate mailing addresses and any changes in civilian 
employment, military qualifications, availability for service, and 
physical condition.
    (6) Preassign retired members, when determined appropriate and as 
necessary.
    (7) Determine refresher training requirements in accordance with the 
criteria established in Sec. 64.6(a)(8).



Sec. 64.6  Procedures.

    (a) Premobilization--(1) Management of military retirees. Military 
retiree management systems should provide for rapid identification of 
retiree location and military skills to expedite reporting of retirees 
to a wide range of assignments and geographic locations in mobilization 
or crisis. As part of the criteria for assignment of individuals to 
specific mobilization billets, the Military Services should consider the 
criticality of the mobilization billet,

[[Page 242]]

the skills of the individual, and his or her geographic proximity to the 
place of assignment. To the extent possible, military retirees should be 
given the opportunity to volunteer for specific assignments. The 
Military Departments shall develop plans and procedures to identify 
military retirees excess to their needs. The Military Departments, other 
DoD Components, FEMA, SSS, and other Federal Agencies, as appropriate, 
shall provide a list of requirements to the Department of Defense. The 
Department of Defense shall establish priorities for fill once all 
requirements and excess personnel are identified and provide 
redistribution guidance.
    (2) Requirement validation. The OASD(FM&P) shall review and validate 
each mobilization requirement for a military retiree. The criteria 
considered shall be the structure of the organization, the expanded 
workload requirements in a mobilization environment, current manpower 
authorizations, and existing manpower infrastructures supporting the 
organizations.
    (3) Assignment priority. The priority for use of military retirees 
shall be:
    (i) Use by their own Service.
    (ii) Use by another Service or a Defense Agency.
    (iii) Use by a civilian Federal Department or Agency.
    (iv) Any other approved use.
    (4) Preassignment of categories I and II military retirees. When 
determined appropriate by the Military Service concerned, military 
retirees who physically are qualified maximally should be preassigned in 
peacetime, either voluntarily or involuntarily, to installations or to 
mobilization positions that must be filled within 30 days after 
mobilization. Key employees and category III retirees shall not be 
preassigned involuntarily. Severe hostilities may prevent the 
transmittal of mobilization orders to military retirees. All military 
retirees preassigned to mobilization positions or installations, either 
voluntarily or involuntarily, shall be issued preassignment or 
contingent preassignment orders.
    (5) Category III military retirees. The nature and extent of the 
mobilization of category III retirees shall be determined by each 
Military Service, based on the retiree's military skill and, if 
applicable, the nature and degree of the retiree's disability. Category 
III retirees generally should be assigned to civilian jobs, unless they 
have critical skills or volunteer for specific military jobs. Age or 
disability alone may not be the sole basis for excluding a retiree from 
active Military Service during mobilization.
    (6) Military retirees living overseas. Military retirees who live 
overseas maximally shall be preassigned in peacetime, as determined by 
the Military Service concerned, to meet mobilization augmentation 
requirements at overseas, U.S., or allied military installations or 
activities that are near their places of residence.
    (7) Military retiree information. The development and maintenance of 
current information on the mobilization availability of military 
retirees shall be the responsibility of the Military Services. Such 
information shall include, but not be limited to, date of retirement, 
date of birth, current address, and military qualifications. 
Additionally, the Military Services shall maintain information on the 
availability for mobilization and the physical condition of categories I 
and II military retirees. Indication of physical condition may be from 
certification by the individual military retiree.
    (8) Refresher training. Each Military Service shall determine the 
necessity for, and the frequency of, refresher training of military 
retirees, based on the needs of the Military Service and the specific 
military skill of the military retiree. Emphasis should be on voluntary 
refresher training. Civilian-acquired skills may eliminate the need for 
refresher training.
    (9) Screening of military retirees--(i) Each Military Service shall 
develop procedures for identifying categories I and II retirees, and 
shall conduct screening of retirees using this part and 32 CFR part 44 
as guidance in formulating screening criteria.
    (ii) All military retirees shall be advised to inform their 
employers concerning their liability for recall to active duty in a 
mobilization or national emergency, and, when applicable, the

[[Page 243]]

procedures for designating their position as a key position.
    (iii) Federal employers annually shall review their employment rolls 
to determine if they employ any military retirees who are filling key 
positions, as defined in Sec. 64.3.
    (iv) Non-Federal employers also are encouraged to use the key 
position guidelines for making their own key position designations and, 
when applicable, for recommending certain military retirees for key 
employees status.
    (v) Key position designation guidelines. In determining whether or 
not a position should be designated as a key position, employers should 
consider the following criteria:
    (A) Can the position be filled in a reasonable time after 
mobilization?
    (B) Does the position require technical or managerial skills that 
are possessed uniquely by the incumbent employee?
    (C) Is the position associated directly with Defense mobilization?
    (D) Does the position include a mobilization or relocation 
assignment in an Agency having emergency functions, as designated by 
E.O. 12656?
    (E) Is the position directly associated with industrial or manpower 
mobilization, as designated in E.O. 10480?
    (F) Are there other factors related to national defense, health, or 
safety that would make the incumbent of the position unavailable for 
mobilization?
    (vi) Employers who determine that a military retiree is filling a 
key position and should not be recalled to active duty in an emergency 
should report that determination to the cognizant military personnel 
center, using the letter format shown in Appendix A to this part. The 
list of Reserve personnel centers to which retiree-recall screening-
determination recommendations shall be forwarded is at Appendix B to 
this part.
    (b) Mobilization--(1) General. The Military Services shall establish 
plans and procedures to use those military retirees who meet specific 
skill and experience requirements to fill mobilization billets, when 
there is not enough active or qualified Reserve manpower available.
    (2) Involuntary order to active duty--(i) Twenty-year active 
military service retirees. The Secretary of a Military Department may 
order any retired Regular member, retired Reserve member who has 
completed at least 20 years of Active Service, or a member of the Fleet 
Reserve or Fleet Marine Corps Reserve to active duty at any time to 
perform duties deemed necessary in the interests of national defense in 
accordance with 10 U.S.C. 675 and 688. Retired Regular members of the 
Coast Guard may be ordered to active duty by the Secretary concerned 
only in time of war or national emergency in accordance with 14 U.S.C. 
331 and 359.
    (ii) Reserve. The Secretary of a Military Department may order any 
other retired member of a Reserve component of a Military Service to 
active duty for the duration of a war or emergency and for 6 months 
thereafter on the basis of required skills, provided:
    (A) War or national emergency has been declared by Congress.
    (B) The Secretary of the Military Department concerned, with the 
approval of the Secretary of Defense, determines there are not enough 
qualified Reserves in an Active status or in the Inactive National 
Guard, under 10 U.S.C. 672(a).
    (3) Graduated Mobilization Response. The Military Services shall 
develop plans and procedures for ordering military retirees to active 
duty in accordance with a schedule that includes pre-, partial, and full 
mobilization requirements.
    (c) Peacetime--(1) General. The Military Departments shall establish 
procedures to order military retirees to active duty during peacetime.
    (2) Voluntary order to active duty--(i) Twenty-year active military 
service retirees. The Secretary of a Military Department may order 
retired Regular members, retired Reserve members who have completed at 
least 20 years of active Military Service, or members of the Fleet 
Reserve or Fleet Marine Corps Reserve to active duty with their consent 
at any time in accordance with 10 U.S.C. 688.
    (ii) Other Reserve retirees. The Secretary of a Military Department 
may order other retired members of a Reserve component to active duty 
with their consent in accordance with 10 U.S.C. 672(d).

[[Page 244]]

    (3) Involuntary order to active duty. The Secretary of a Military 
Department may order any retired Regular member, retired Reserve member 
who has completed at least 20 years of active Military Service, or a 
member of the Fleet Reserve or Fleet Marine Corps Reserve to active duty 
without the member's consent at any time to perform duties deemed 
necessary in the interests of national defense in accordance with 10 
U.S.C. 688. This includes the authority to order a retired member who is 
subject to the Uniform Code of Military Justice (UCMJ) to active duty to 
facilitate the exercise of court-martial jurisdiction under 10 U.S.C. 
802(a). A retired member may not be involuntarily ordered to active duty 
solely for obtaining court-martial jurisdiction over the member.

  Appendix A to Part 64--Letter Format to Cognizant Service Personnel 
   Center Requesting Employee Be Screened From Retiree-Recall Program

From: (employer-Agency or company)
To: (appropriate Military Service personnel center)
Subject: Request for Employee to Be Removed from Retiree-Recall Program

    This is to certify that the employee identified below is essential 
to the nation's defense efforts in (his or her) civilian job and cannot 
be mobilized with the Military Services in an emergency for the 
following reasons:
    Therefore, I request that (he or she) be exempted from recall to 
active duty in a mobilization or national emergency and that you advise 
me accordingly when that action has been completed.
    The employee is:
Name of employee (last, first, M.I.)
Military grade and Military Service component
Social security number
Current home address (street, city, State, and ZIP code)
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
Company Official

   Appendix B to Part 64--List of Reserve Personnel Centers to Which 
        Retiree-Recall Screening Determination Shall Be Forwarded

                                  Army

    Commander
    U.S. Army Reserve Personnel Center
    ATTN: DARP-PAR-M
    9700 Page Boulevard
    St. Louis, MO 63132-5200

                                  Navy

    Commanding Officer
    Naval Reserve Personnel Center
    ATTN: NRPC Code 10
    New Orleans, LA 70149

                              Marine Corps

    Commandant (Code RES)
    Headquarters, U.S. Marine Corps
    Washington, DC 20380

                                Air Force

    Air Reserve Personnel Center
    7300 East First Avenue
    Denver, CO 80280

                               Coast Guard

    Commandant (G-RSM-1)
    U.S. Coast Guard
    2100 Second St. SW.
    Washington, DC 20593



PART 65--ACCESSION OF CHAPLAINS FOR THE MILITARY SERVICES--Table of Contents




Sec.
65.1  Purpose.
65.2  Applicability.
65.3  Policy.
65.4  Responsibilities.
65.5  Procedures.

Appendix to Part 65--Ecclesiastical Endorsing Agent Certification

    Authority: 10 U.S.C. 532, 591, and EO 9397, 3 CFR, 1943-1948 Comp., 
p. 283.

    Source: 53 FR 48898, Dec. 5, 1988, unless otherwise noted.



Sec. 65.1  Purpose.

    This part: (a) Revises 32 CFR part 65 to update policy, procedures, 
and responsibilities.
    (b) Establishes the educational and ecclesiastical requirements for 
appointment of military chaplains.

[[Page 245]]

    (c) Establishes criteria and procedures under which faith groups may 
become ecclesiastical endorsing agents.



Sec. 65.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD), 
the Military Departments (including their National Guard and Reserve 
components), and the Joint Staff (hereafter referred to collectively as 
``DOD Components''). The term``Military Services,'' as used herein, 
refers to the Army, Navy, Air Force, and Marine Corps.



Sec. 65.3  Policy.

    It is DOD policy that professionally qualified chaplains shall be 
appointed to provide for the free exercise of religion for all members 
of the Military Services, their dependents, and other authorized 
persons. Persons appointed to the chaplaincy shall be able to perform a 
ministry for their own specific faith groups, and provide for ministries 
appropriate to the rights and needs of persons of other faith groups. 
Persons appointed to the chaplaincy shall be capable of providing 
professional staff support to the Military Department concerned.



Sec. 65.4  Responsibilities.

    (a) The Assistant Secretary of Defense (Force Management and 
Personnel) (ASD(FM&P)) may issue additions implementing guidance 
consistent with DOD 5025.1-M, as appropriate.
    (b) The Secretaries of the Military Departments shall follow the 
policy and procedures in this part to ensure that persons appointed to 
the chaplaincy shall meet the minimum professional and educational 
qualifications prescribed herein and any additional requirements 
established by law and regulation for appointment as an officer and a 
chaplain.



Sec. 65.5  Procedures.

    (a) Ecclesiastical Certification of Clergy
    (1) To be considered for appointment and to serve as a chaplain, 
clergy shall be certified by a DOD-recognized ecclesiastical endorsing 
agent. The ecclesiastical certification shall attest that the applicant:
    (i) Is a fully qualified member of the clergy of a religious faith 
group represented by the certifying Agency.
    (ii) Is qualified to provide directly or indirectly for the free 
exercise of religion by all members of the Military Services, their 
dependents, and other authorized persons.
    (2) The required ecclesiastical certification shall be made on DD 
Form 2088, ``Ecclesiastical Endorsing Agent Certification.'' If the 
applicant has completed a number of years of active professional 
experience after the completion of educational requirements for the 
chaplaincy, the certifying agent shall so state on DD Form 2088.
    (3) Chaplains who fail to maintain their ecclesiastical 
certification shall be processed in accordance with DOD Directive 
1332.31.\1\
---------------------------------------------------------------------------

    \1\ Copies may be obtained if needed, from the U.S. Naval 
Publication and Forms Center, 5801 Tabor Avenue, Attn: Code 301, 
Philadelphia, PA 19120.
---------------------------------------------------------------------------

    (b) Criteria for Ecclesiastical Endorsing Agencies. (1) Religious 
faith groups that seek to become ecclesiastical endorsing agents for the 
purpose of certifying the professional qualifications of clergy for 
appointment as chaplains in the Military Services shall obtain DOD 
recognition through the action of the Armed Forces Chaplains Board 
(AFCB). To be considered for DOD recognition, each religious faith group 
shall:
    (i) Be organized exclusively or substantially to provide religious 
services to a lay constituency.
    (ii) Be able to exercise ecclesiastical authority to grant or 
withdraw ecclesiastical certification.
    (iii) Be able to provide continuing validation of ecclesiastical 
certification.
    (iv) Be able to certify clergy who are qualified to provide directly 
or indirectly for the free exercise of religion by all members of the 
Military Services, their dependents, and other authorized persons.
    (v) Abide by the applicable DOD regulations and policies.
    (2) Through the action of the AFCB, the Department of Defense may 
revoke its recognition of an ecclesiastical endorsing agent that fails 
to continue to meet the criteria of paragraphs (b)(1) (i) through (v) of 
this section. The

[[Page 246]]

AFCB, before revoking the recognition of an ecclesiastical endorsing 
agent, shall provide written notice to the Agency concerned stating the 
reasons for the proposed revocation and providing a reasonable 
opportunity for the Agency to reply in writing to the AFCB.
    (3) Religious faith groups recognized by the Department of Defense 
as ecclesiastical endorsing agents may authorize third parties to act on 
their behalf for accomplishing the administrative procedures in 
accession of chaplains for the Military Services, and of maintaining 
liaison with chaplains of the recognized faith group. Each such 
authorization shall be made in writing by an official authorized by the 
faith group to grant such authorization, and a copy of the authorization 
shall be filed with the AFCB.
    (c) Educational Requirements. (1) To be considered for appointment 
as a chaplain in the Military Services, an applicant shall:
    (i) Possess a baccalaureate degree of not less than 120 semester 
hours from a college that is listed in the ``Education Directory, 
Colleges and Universities'' \2\ or from a school whose credits are 
accepted by a college listed in the Directory Education.
---------------------------------------------------------------------------

    \2\ Current edition published by U.S. Department of Education, 
National Center for Education Statistics, Washington, DC 20202.
---------------------------------------------------------------------------

    (ii) Have completed 3 resident years of graduate professional study 
in theology or related subjects (normally validated by the possession of 
a Master of Divinity degree, an equivalent degree, or 90 semester hours) 
that lead to ecclesiastical certification as a member of the clergy 
fully qualified to perform the ministering functions of a chaplain.
    (2) The applicant shall complete the graduate professional study 
referred to in Sec. 65.5(c)(1)(ii), at a graduate school listed in the 
Education Directory, Colleges and Universities; an accredited school 
listed in the ``Directory, ATS Bulletin, Part 4''; \3\ or from a school 
whose credits are accepted by a school listed in the Directory or listed 
as accredited in the ``Directory, ATS Bulletin, part 4.''
---------------------------------------------------------------------------

    \3\ Current edition published by the Association of Theological 
Schools, Vandalia, Ohio 45377.
---------------------------------------------------------------------------

    (d) Other Requirements. Applicants for the chaplaincy also shall 
meet the requirements established by the Military Departments for 
appointment as an officer and a chaplain.

[[Page 247]]

    APPENDIX TO PART 65--ECCLESIASTICAL ENDORSING AGENT CERTIFICATION
[GRAPHIC] [TIFF OMITTED] TC23OC91.009

[54 FR 974, Jan. 11, 1989]

[[Page 248]]



PART 67--EDUCATIONAL REQUIREMENTS FOR APPOINTMENT OF RESERVE COMPONENT OFFICERS TO A GRADE ABOVE FIRST LIEUTENANT OR LIEUTENANT (JUNIOR GRADE)--Table of Contents




Sec.
67.1  Purpose.
67.2  Applicability.
67.3  Definitions.
67.4  Policy.
67.5  Responsibilities.
67.6  Procedures.

    Authority: 10 U.S.C. 12205.

    Source: 60 FR 54302, Oct. 23, 1995, unless otherwise noted.



Sec. 67.1  Purpose.

    This part implements policy, assigns responsibilities, and 
prescribes procedures under 10 U.S.C. 12205 for determining educational 
institutions that award baccalaureate degrees that satisfy the 
educational requirement for appointment of officers to a grade above 
First Lieutenant in the Army Reserve, Air Force Reserve, and Marine 
Corps Reserve, or Lieutenant (Junior Grade) in the Naval Reserve, or for 
officers to be federally recognized in a grade above First Lieutenant as 
a member of the Army National Guard or Air National Guard.



Sec. 67.2  Applicability.

    This part applies to the Office of the Secretary of Defense, and the 
Military Departments. The term ``Military Department,'' as used herein, 
refers to the Departments of the Army, the Navy, and the Air Force. The 
term ``Reserve components'' refers to the Army Reserve, Army National 
Guard of the United States, Air Force Reserve, Air National Guard of the 
United States, Naval Reserve, and Marine Corps Reserve.



Sec. 67.3  Definitions.

    (a) Accredited educational institution. An educational institution 
accredited by an agency recognized by the Secretary of Education.
    (b) Qualifying educational institution. An educational institution 
that is accredited, or an unaccredited educational institution that the 
Secretary of Defense designates pursuant to Sec. 67.5 (a) and (b).
    (c) Unaccredited educational institution. An educational institution 
not accredited by an agency recognized by the Secretary of Education.



Sec. 67.4  Policy.

    (a) It is Department of Defense policy under 10 U.S.C. 12205 to 
require Reserve component officers to have been awarded at least a 
baccalaureate degree from a qualifying educational institution before 
appointment to a grade above First Lieutenant in the Army Reserve, Air 
Force Reserve or Marine Corps Reserve, or Lieutenant (Junior Grade) in 
the Naval Reserve, or for officers to be federally recognized in a grade 
above First Lieutenant as a member of the Army National Guard or Air 
National Guard.
    (b) Exempt from this policy is any officer who was:
    (1) Appointed to or recognized in a higher grade for service in a 
health profession for which a baccalaureate degree is not a condition of 
original appointment or assignment.
    (2) Appointed in the Naval Reserve or Marine Corps Reserve as a 
limited duty officer.
    (3) Appointed in the Naval Reserve for service under the Naval 
Aviation Cadet (NAVCAD) program.
    (4) Appointed to or recognized in a higher grade if appointed to, or 
federally recognized in, the grade of captain or, in the case of the 
Navy, lieutenant before October 1, 1995.
    (5) Recognized in the grade of captain or major in the Alaska Army 
National Guard, who resides permanently at a location in Alaska that is 
more than 50 miles from each of the cities of Anchorage, Fairbanks, and 
Juneau, Alaska, by paved road, and who is serving in a Scout unit or a 
Scout support unit.
    (c) The Department of Defense will designate an unaccredited 
educational institution as a qualifying educational institution for the 
purpose of meeting this educational requirement if that institution 
meets the criteria established in this part.



Sec. 67.5  Responsibilities.

    (a) The Assistant Secretary of Defense for Reserve Affairs, under 
the

[[Page 249]]

Under Secretary of Defense for Personnel and Readiness, shall:
    (1) Establish procedures in which an unaccredited educational 
institution can apply for DoD designation as a qualifying educational 
institution.
    (2) Publish in the Federal Register DoD requirements and procedures 
for an unaccredited educational institution to apply for designation as 
a qualifying educational institution.
    (3) Annually, provide to the Secretaries of the Military Department 
a list of those unaccredited educational institutions that have been 
approved by the Department of Defense as a qualifying educational 
institution. This list shall include the year or years for which 
unaccredited educational institutions are designated as qualifying 
educational institutions.
    (b) The Secretaries of the Military Departments shall establish 
procedures to ensure that after September 30, 1995, those Reserve 
component officers selected for appointment to a grade above First 
Lieutenant in the Army Reserve, Air Force Reserve or Marine Corps 
Reserve, or Lieutenant (Junior Grade) in the Naval Reserve, or for 
officers to be federally recognized in a grade above First Lieutenant as 
a member of the Army National Guard or Air National Guard, who are 
required to hold a baccalaureate degree, were awarded their degree 
before appointment to the next higher grade. For a degree from an 
unaccredited educational institution that has been recognized as a 
qualifying educational institution by the Department of Defense to 
satisfy this educational requirements of 10 U.S.C. 12205, the degree 
must not have been awarded more than three years before the date the 
officer is to be appointed, or federally recognized, in the grade of 
Captain or above in the Army Reserve, Army National Guard, Air Force 
Reserve, Air National Guard, or Marine Corps Reserve, or in the grade of 
Lieutenant or above in the Naval Reserve.



Sec. 67.6  Procedures.

    (a) An unaccredited educational institution may obtain designation 
as a qualifying educational institution for a specific Reserve component 
officer who graduated from that educational institution by providing 
certification from registrars at three accredited educational 
institutions that maintain ROTC programs that their educational 
institutions would accept at least 90 percent of the credit hours earned 
by that officer at the unaccredited educational institution, as of the 
year of graduation.
    (b) For an unaccredited educational institution to be designated as 
a qualifying educational institution for a specific year, that 
educational institution must provide the Office of the Assistant 
Secretary of Defense for Reserve Affairs certification from the 
registrars at three different accredited educational institutions that 
maintain ROTC programs listing the major field(s) of study in which 
those educational institutions would accept at least 90 percent of the 
credit hours earned by a student who was awarded a baccalaureate degree 
in that major field of study at the unaccredited educational 
institution.
    (c) For an unaccredited educational institution to be considered for 
designation as a qualifying educational institution, the unaccredited 
educational institution must submit the required documentation no later 
than January 1 of the year for which the unaccredited educational 
institution seeks to be designated a qualifying educational institution.
    (d) The required documentation must be sent to the following 
address: Office of the Assistant Secretary of Defense for Reserve 
Affairs, Attn: DASD(M&P), 1500 Defense Pentagon, Washington, DC 20301-
1500.
    (e) Applications containing the required documentation may also be 
submitted at any time from unaccredited educational institutions 
requesting designation as qualifying educational institutions for prior 
school years.



PART 68--PROVISION OF FREE PUBLIC EDUCATION FOR ELIGIBLE CHILDREN PURSUANT TO SECTION 6, PUBLIC LAW 81-874--Table of Contents




Sec.
68.1  References.
68.2  Purpose.
68.3  Applicability and scope.
68.4  Policy.

[[Page 250]]

68.5  Definitions.
68.6  Responsibilities.
68.7  Effective date and implementation.

    Authority: 20 U.S.C. 241.

    Source: 52 FR 44389, Nov. 19, 1987, unless otherwise noted.



Sec. 68.1  References.

    (a) Public Law 97-35, ``Omnibus Budget Reconciliation Act of 1981,'' 
section 505(c), August 13, 1981 (20 U.S.C. 241 note).
    (b) Public Law 81-874 dated September 30, 1950, section 6, as 
amended (20 U.S.C. 241).
    (c) Public Law 95-561, ``Defense Dependents' Education Act of 
1978,'' sections 1009 and 1031(a), November 1, 1978 (20 U.S.C. 241).
    (d) Memorandum of Understanding Between The Department of Defense 
and The Department of Education, August 16, 1982.
    (e) Federal Register Document 84-11282, ``Process for Section 6 
Schools Operated by the Department of Defense,'' Federal Register, 
Volume 49, Number 82, page 18028, April 26, 1984.
    (f) Assistant Secretary of Defense (Force Management & Personnel) 
Memorandum, ``Education of Handicapped Students in Section 6 Schools 
Operated by the Department of Defense,'' December 10, 1986.
    (g) Public Law 94-142, ``Education for All Handicapped Children Act 
of 1975,'' as amended (20 U.S.C. 1401 et seq.).
    (h) DoD Directive 1020.1, ``Nondiscrimination on the Basis of 
Handicap in Programs and Activities Assisted or Conducted by the 
Department of Defense,'' March 31, 1982.
    (i) DoD 7220.9-M, ``Department of Defense Accounting Manual,'' 
October 1983, authorized by DoD Instruction 7220.9, October 22, 1981.
    (j) DoD Directive 7600.6, ``Audit of Nonappropriated Funds and 
Related Activities,'' January 4, 1974.
    (k) DoD Directive 5500.7, ``Standards of Conduct,'' January 15, 
1977.



Sec. 68.2  Purpose.

    This part:
    (a) Establishes policies and prescribes procedures for the 
Department of Defense (DoD) to make arrangements (as defined in 
Sec. 68.5) for the provision of free public education to eligible 
dependent children as authorized by Sec. 68.1 (a), (b), and (c).
    (b) Implements Sec. 68.1 (a), (b), (d), and (e).



Sec. 68.3  Applicability and scope.

    This part applies to:
    (a) The Office of the Secretary of Defense (OSD), the Military 
Departments, and the Defense Agencies.
    (b) The schools operated by DoD within the Continental United States 
(CONUS), Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa, 
the Northern Mariana lslands, and the Virgin Islands.



Sec. 68.4  Policy.

    (a) In conformity with Sec. 68.1 (a), (b), and (c), it is DoD policy 
that dependent children of U.S. military personnel and federally 
employed civilian personnel residing on Federal property be educated, 
whenever suitable, in schools operated and controlled by local public 
school systems.
    (b) When it is not suitable for the children of U.S. military 
personnel and federally employed civilian personnel to0attend a locally 
operated public school, the Secretary of Defense, or designee, shall 
make arrangements for the free public education of such children. These 
arrangements may include the establishment of schools within the United 
States and specified possessions.
    (c) The arrangements for such free public education shall be made by 
the Secretary of Defense, or designee, either with a local educational 
agency, or with the Head of a Federal Department or Agency, whichever in 
the judgment of the Secretary, or designee, appears to be more 
applicable. If such an arrangement is made with the Head of a Federal 
Department or Agency, either it must administer the property on which 
the children to be educated reside or, if the local schools are 
unavailable to the children of members of the Armed Forces on active 
duty because of official State or local action and no suitable free 
public education may be provided by a local educational agency, the 
Department or Agency must have jurisdiction over the parents of some or 
all of such children.

[[Page 251]]

    (d) Section 6 School Arrangements are required, to the maximum 
extent practicable, to provide educational programs comparable to those 
being provided by local public educational agencies in comparable 
communities in the State where the Section 6 School Arrangement is 
located. If the Section 6 School Arrangement is outside of CONUS, 
Alaska, or Hawaii, it shall provide, to the maximum extent practicable, 
educational programs that are comparable to the free public education 
provided by the District of Columbia.
    (e) Section 6 School Arrangements operated by DoD under 68.1 (a)l 
(b), and (d) shall comply, except as provided in this paragraph, with 
Sec. 68.1(g). lf the State or other jurisdiction on which a Section 6 
School Arrangement's educational comparability is based has adopted a 
``State plan'' for the implementation of Sec. 68.1(g) that Section 6 
School Arrangement shall provide its handicapped students a free 
appropriate public education, as defined in Sec. 68.1(g). That 
education, except as follows in this paragraph, is consistent with such 
State plan. To satisfy this responsibility, Section 6 School 
Arrangements shall conform to the substantive and procedural provisions 
of Sec. 68.1(g), except for those relating to impartial due process 
hearings in section 1415 of Sec. 68.1(g). The procedures of such Section 
6 School Arrangements for the identification, assessment, and 
programming of handicapped students in special education and related 
services must conform to the comparable State's regulatory guidelines. 
Complaints with respect to the identification, evaluation or educational 
placement of, or the free appropriate public education provided to, 
students in such a Section 6 School Arrangement who are or may be 
handicapped shall be investigated under enclosure 5 to DoD Directive 
1020.1 \1\ (Sec. 68.1(h)). lf the State on which a Section 6 School 
Arrangement's comparability is based has not adopted a State plan, the 
State plan of an adjacent State must be followed. If no adjacent State 
has adopted a State plan, the State plan of another State that is 
similar to the State in which the Section 6 School Arrangement is 
located shall be selected.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, if needed, from the U.S. Naval 
Publications and Forms Center, ATTN: Code 1052, 5801 Tabor Avenue, 
Philadelphia, PA 19120.
---------------------------------------------------------------------------

    (f) After consultation with the Military Departments, funds shall be 
made available for the operation and maintenance of Section 6 School 
Arrangements, on either a direct or reimbursable basis, to the 
comptroller at the respective military installation. These funds shall 
remain separate and distinct from the funds of the individual Military 
Services.
    (g) Attendance in Section 6 School and Special Arrangements within 
CONUS, Alaska, and Hawaii is limited to eligible dependent children 
under Sec. 68.1(b). Guidance, consistent with Sec. 68.1 (b) and (c) for 
student eligibility for Section 6 School Arrangements located outside of 
CONUS, Alaska, and Hawaii shall be established by the Military 
Department concerned after coordination and approval by the General 
Counsel of the Department of Defense, or designee, and the Assistant 
Secretary of Defense (Force Management and Personnel), or designee.
    (h) Where a member of the Armed Forces is transferred or retires and 
the member's family moves after the start of the school year from on-
base (post) housing, the member's children shall be permitted to 
continue in attendance at the Section 6 School Arrangement for the 
remainder of the school year during which the transfer or retirement 
occurred, if the child is residing with a parent or legal guardian or 
another person acting in loco parentis.
    (i) Where a member of the Armed Forces is assigned to an 
installation on which there is a Section 6 School Arrangement and is 
assigned on-base (post) family housing that is expected to be available 
for occupancy and to be occupied within 90 school days from the 
reporting date, the member's children may be permitted to attend the 
school while residing in an area adjacent to such Federal property. 
Transportation for children attending a Section 6 School Arrangement 
under these conditions is the responsibility of the parent.

[[Page 252]]



Sec. 68.5  Definitions.

    Adjacent area. A geographic location that is next to or near Federal 
property. This normally should include a student commuting area within 
45 minutes of the Federal property, unless another area identified as 
adjacent is designated specifically by an administrator of the Federal 
property; i.e., the installation commander.
    Arrangements. Actions taken by the Secretary of Defense to provide a 
free public education to dependent children under Pub. L. 81-874 
through, first, Section 6 School Arrangements or, second, Section 6 
Special Arrangements:`
    (a) Section 6 School Arrangement. When a DoD-operated scxool is 
established on Federal property to provide a free public education for 
eligible children or, if not established on such property, the eligible 
child resides on such property.
    (b) Section 6 Special Arrangement. An agreement, under Sec. 68.1(b), 
between the Secretary of Defense, or designee, the ASD(FM&P), or 
designee, or the Secretary of a Military Department, or designee, and a 
local public education agency whereby a school or a school system 
operated by the local public education agency provides educational 
services to eligible dependent children of U.S. military personnel and 
federally employed civilian personnel. Arrangements result in partial or 
total Federal funding to the local public education agency for the 
educational services provided.
    Comparability. Comparability is the act of demonstrating that the 
educational services and programs, school plant and facilities, budget 
and per-pupil expenditures, and all associated activities and services 
provided in Section 6 School Arrangements for the free public education 
of eligible dependent children are, to the maximum extent practicable, 
equivalent in quality and availability to those provided by school 
districts in the State where the Section 6 School Arrangement is located 
or the district(s) to which it is compared. Each Section 6 School 
Arrangement, in coordination with the Military Department concerned, 
shall provide an annual statement, with supporting documentation, which 
demonstrates its comparability.
    Dependent children. Children who reside on Federal property, or are 
minor dependents who are the children, stepchildren, adopted children, 
or wards of U.S. military sponsors or federally employed sponsors, or 
who are residents in the households of bona fide sponsors who stand in 
loco parentis to such individuals and who receive one-half or more of 
their support from such sponsors, and are within the age limits for 
which the applicable State provides free public education.
    Federal property. Real property that is owned or leased by the 
United States.
    Free public education. Education that is provided at public expense 
under public supervision and direction without charge to the sponsor of 
a child, and that is provided at the elementary or secondary school 
level of the applicable State. The term shall not include any education 
provided beyond grade 12, except in the case of State policy regarding 
the education of handicapped students, nor does it preclude the 
collecting of tuition from an Agency responsible for the assignment of a 
child's sponsor resulting in the attendance of the child of a Section 6 
School Arrangement.
    Local educational agency. A board of education or other legally 
constituted local school authority having administrative control and 
direction of free public education in a county, township, independent, 
or other school district in a State. The term includes any State Agency 
operating and maintaining facilities for providing free public 
education.
    Parent. Includes a legal guardian or another person standing in loco 
parentis.
    State. A State, Puerto Rico, Wake Island, Guam, the District of 
Columbia, American Samoa, the Northern Mariana lslands, or the Virgin 
Islands.
    State educational agency. The officer or Agency primarily 
responsible for State supervision of public elementary and secondary 
schools.



Sec. 68.6  Responsibilities.

    (a) The Assistant Secretary of Defense (Force Management and 
Personnel) (ASD(FM&P)), or designee, shall:

[[Page 253]]

    (1) Ensure the development of policies and procedures for the 
operation, management, budgeting (in accordance with guidance provided 
by the Assistant Secretary of Defense (Comptroller) (ASD(C)), 
construction, and financing of Section 6 Schools and for Section 6 
Special Arrangements.
    (2) Ensure that arrangements shall be made for the free public 
education of eligible dependent children in CONUS, Alaska, Hawaii, 
Puerto Rico, Wake Island, Guam, American Samoa, the Northern Mariana 
Islands, and the Virgin Islands, under Sec. 68.1 (a), (b), and (c).
    (3) Ensure the establishment of elected school boards in Section 6 
School Arrangements operating under Sec. 68.1 (a) and (b).
    (4) Ensure that the free public education being provided is, to the 
maximum extent practicable, of the kind and quality as that being 
provided by comparable public school districts in the State in which the 
Section 6 School Arrangement or Section 6 Special Arrangement is located 
or, if outside of CONUS, Alaska, and Hawaii, as that being provided by 
the District of Columbia public schools.
    (5) Ensure the establishment of audit procedures for reviewing 
funding of Section 6 School Arrangements and Section 6 Special 
Arrangements under Sec. 68.1 (a), (b), and (c).
    (6) Ensure timely and accurate preparation of budget execution 
reports and full compliance with accounting requirements in accordance 
with DoD 7220.9-M \2\ (Sec. 68.1(i)).
---------------------------------------------------------------------------

    \2\ Copies may be obtained, at cost, from the U.S. Department of 
Commerce, National Technical Information Service, 5285 Port Royal Road, 
Springfield, Va 22161.
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    (7) Approve guidance for student eligibility established by a 
Military Department for Section 6 School Arrangements located outside of 
CONUS, Alaska, and Hawaii.
    (b) The General Counsel of the Department of Defense (GC, DoD), or 
designee, shall:
    (1) Approve guidance established by a Military Department for 
student eligibility for Section 6 School Arrangements located outside of 
CONUS, Alaska, and Hawaii.
    (2) Provide legal advice for the implementation of this part.
    (c) The Secretaries of the Military Departments, or designees, 
shall:
    (1) Comply with this Directive, including policies and procedures 
promulgated under Sec. 68.6(a)(1), and ensure that Section 6 School 
Arrangements on their respective installations or under their 
jurisdiction are maintained and operated under this part.
    (2) Submit budgets to the ASD(FM&P) for operation and maintenance, 
procurement, and military construction for each Section 6 School 
Arrangement and each Section 6 Special Arrangement under OSD guidelines.
    (3) Ensure that there is an elected school board at each Section 6 
School Arrangement.
    (4) Ensure the establishment of a means for employing personnel and, 
as required, for programming manpower spaces for such employees, all 
subject to applicable laws and regulations.
    (5) Ensure that each Section 6 School Arrangement has current 
operating guidelines.
    (6) Ensure that nonappropriated funds and related activities of 
Section 6 School Arrangements are reviewed under DoD Directive 7600.6 
\3\ (Sec. 68.1(j)).
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 68.4(e).
---------------------------------------------------------------------------

    (7) Establish guidance, consistent with Sec. 68.1 (b) and (c), for 
student eligibility to attend Section 6 School Arrangements located 
outside of CONUS, Alaska, and Hawaii and operated by the Military 
Department concerned. Gain the approval of the ASD(FM&P), or designee, 
and the GC, DoD, or designee, before implementation.
    (d) The Installation Commanders, or for Puerto Rico, the Area 
Coordinator, shall:
    (1) Provide resource and logistics support at each Section 6 School 
Arrangement located on the installation.
    (2) Ensure the establishment and operation of an elected school 
board at the Section 6 School Arrangement.
    (3) Ensure the implementation of DoD Directive 5500.7 \4\ 
(Sec. 68.1(k)) and that all Section 6 School Arrangement personnel are 
counseled and familiarized with its contents.
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 68.4(e).
---------------------------------------------------------------------------

    (4) Provide installation staff personnel to advise the school board 
in budget, civil engineering, law, personnel,

[[Page 254]]

procurement, and transportation matters, when applicable.
    (5) Disapprove actions of the school board that conflict with 
applicable statutes or regulations. Disapprovals must be in writing to 
the school board and shall note the specific reasons for the 
disapprovals. A copy of this action shall be forwarded through channels 
of the Military Department concerned to the ASD(FM&P), or designee.
    (6) Ensure the safety of students traveling to and from the on-base 
(post) school(s).
    (7) Ensure that comptrollers and other support elements comply with 
the authorized execution of funds for Section 6 School Arrangements in 
accordance with the budget approved by the ASD(FM&P), or designee.
    (e) The Section 6 Dependents' School Board shall:
    (1) Review and monitor school expenditures and operations, subject 
to audit procedures established under this part and consistent with 
Sec. 68.1 (a) and (b).
    (2) Conduct meetings, approve agendas, prepare minutes, and conduct 
other activities incident to and associated with Section 6 School 
Arrangements.
    (3) Recruit and select a Superintendent for the Section 6 School 
Arrangement under the school board's jurisdiction.
    (4) Provide the Superintendent with regular constructive written and 
oral evaluations of his or her performance. Evaluations should be linked 
to goals established by the school board with the assistance of the 
Superintendent.
    (5) Provide the Superintendent the benefit of the school board's 
counsel in matters on individual school board member's expertise.
    (6) Ensure the attendance of the Superintendent, or designee, at all 
school board meetings.
    (7) Review and approve school budgets prior to submission to the 
ASD(FM&P), or designee, through channels of the Military Department 
concerned.
    (8) Establish policies and procedures for the operation and 
administration of the Section 6 School Arrangement(s).
    (9) Provide guidance and assistance to the Superintendent in the 
execution and implementation of school board policies, rules, and 
regulations.
    (10) Consult with the Superintendent on pertinent school matters, as 
they arise, which concern the school and on which the school board may 
take action.
    (11) Channel communications with school employees that require 
action through the Superintendent, and refer all applications, 
complaints, and other communications, oral or written, to the 
Superintendent in order to ensure the proper processing of such 
communications.
    (12) Establish policies and procedures for the effective processing 
of, and response to, complaints.
    (f) The Section 6 School Arrangement Superintendent shall:
    (1) Serve as the chief executive officer to the school board to 
ensure the implementation of the school board's policies, rules, and 
regulations.
    (2) Attend all school board meetings, or send a designee when unable 
to attend, sitting with the school board as a non-voting member.
    (3) Provide advice and recommendations to the school board and the 
Installation Commander or Area Coordinator on all matters and policies 
for the operation and administration of the school system.
    (4) Recruit, select, and assign all professional and support 
personnel required for the school system. Teachers and school 
administrators shall hold, at a minimum, a current and applicable 
teaching or supervisory certificate, respectively, from any of the 50 
States, Puerto Rico, the District of Columbia, or the DoD Dependents' 
Schools system. Additional certification may be necessary to comply with 
respective State or U.S. national accreditation association standards 
and requirements.
    (5) Determine retention or termination of employment of all school 
personnel under applicable Federal regulations.
    (6) Organize, administer, and supervise all school personnel to 
ensure that the curriculum standards, specialized programs, and level of 
instruction are comparable to accepted educational practices of the 
State or the District of Columbia, as applicable.

[[Page 255]]

    (7) Be responsible for the fiscal management and operation of the 
school system to include execution of the budget as approved by 
ASD(FM&P), or designee, and in accordance with school board guidance.
    (8) Ensure the evaluation of all school employees on a regular 
basis.
    (9) Ensure the maintenance of all school buildings, grounds, and 
property accounting records.
    (10) Ensure the procurement of necessary school supplies, equipment, 
and services.
    (11) Ensure the preparation of the annual Section 6 School 
Arrangement budget as approved by the school board, and as required by 
the ASD(FM&P), or designee, and the Military Department concerned, in 
accordance with guidance provided by the ASD(C), or designee, under DoD 
7220.9-M.
    (12) Ensure the maintenance of a professional relationship with 
local and State school officials.
    (13) Ensure, wherever practicable, the maintenance of accreditation 
of the Section 6 School Arrangement by the State and/or applicable 
regional accreditation agencies.
    (14) Operate the school consistent with applicable Federal statutes 
and regulations, and with State statutes and regulations that are made 
applicable to the Section 6 School Arrangement by this part.
    (15) Ensure the submission of an annual statement to the Military 
Department concerned demonstrating comparability of the free public 
education provided in the Section 6 School Arrangement(s).
    (16) Ensure the implementation of the local State plan or regulatory 
guidelines for compliance with Sec. 68.1(g). If the State on which a 
Section 6 School Arrangement's comparability is based has not adopted a 
State plan, the responsible Section 6 School System Superintendent shall 
choose the State plan of an adjacent State to follow. If no adjacent 
State has adopted a State plan, the Superintendent shall select the 
State plan of another State that is similar to the State in which the 
Section 6 School Arrangement is located.
    (g) Section 6 School Board Elections. A school board for a Section 6 
School Arrangement, as authorized by section 1009(d) of Sec. 68.1(c), 
shall be empowered to oversee school expenditures and operations, 
subject to audit procedures established by the Secretary of Defense and 
under Sec. 68.1(b). The Secretary of the respective Military Department 
shall:
    (1) Ensure that the school board is composed of a minimum of three 
members elected only by parents or legal guardians (military or 
civilian) of students attending the school at the time of the election. 
The terms for school board members are to be established as between one 
and three years.
    (2) Ensure the following procedures for a school board election are 
observed:
    (i) Parents shall have adequate notice of the time and place of the 
election.
    (ii) Election shall be conducted by secret ballot. The candidate(s) 
receiving the greatest number of votes shall be elected as school board 
member(s).
    (iii) Personnel employed in the school system shall not be school 
board members, except for the Superintendent, who serves as a non-voting 
member.
    (iv) Nominations shall be by petition of parents of students 
attending the school at the time of the election. Votes may be cast at 
the time of election for write-in candidates who have not filed a 
nomination petition if the write-in candidates otherwise are qualified 
to serve in the positions sought.
    (v) The election process shall provide for the continuity of school 
board operations.
    (vi) Vacancies that occur among members of the elected school board 
may be filled to complete unexpired terms by either election of members 
by a special election process or by a school board election process if 
at least three school board members serving were elected by parents. 
Members elected to fill unexpired terms shall not serve more than one 
year, unless elected by parents of the students.
    (vii) The responsibility for developing the plans for and conducting 
the

[[Page 256]]

school board election rests with the Superintendent and the school 
board.

[52 FR 44389, Nov. 19, 1987, as amended at 53 FR 49981, Dec. 13, 1988]



Sec. 68.7  Effective date and implementation.

    This part is effective October 16, 1987. The Secretary of each 
Military Department shall forward two copies of the Military 
Department's implementing documents to the ASD(FM&P) within 120 days.



PART 69--SCHOOL BOARDS FOR DEPARTMENT OF DEFENSE DOMESTIC DEPENDENT ELEMENTARY AND SECONDARY SCHOOLS--Table of Contents




Sec.
69.1  Purpose.
69.2  Applicability and scope.
69.3  Definitions.
69.4  Policy.
69.5  Responsibilities.
69.6  Procedures.

    Authority: 10 U.S.C. 2164.

    Source: 61 FR 60563, Nov. 29, 1996, unless otherwise noted.



Sec. 69.1  Purpose.

    This part prescribes policies and procedures for the establishment 
and operation of elected School Boards for schools operated by the 
Department of Defense (DoD) under 10 U.S.C. 2164, 32 CFR part 345, and 
Public Law 92-463.



Sec. 69.2  Applicability and scope.

    This part applies to:
    (a) The Office of the Secretary of Defense (OSD), the Military 
Departments, the Coast Guard when operating as a service of the 
Department of the Navy or by agreement between DoD and the Department of 
Transportation, the Chairman of the Joint Chiefs of Staff, the Unified 
and Specified Combatant Commands, the Inspector General of the 
Department of Defense, the Uniformed Services University of the Health 
Sciences, the Defense Agencies, and the DoD Field Activities.
    (b) The schools (prekindergarten through grade 12) operated by the 
DoD under 10 U.S.C. 2164 and 32 CFR part 345 within the continental 
United States, Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American 
Samoa, the Northern Mariana Islands, and the Virgin Islands, known as 
DoD DDESS Arrangements.
    (c) This part does not apply to elected school boards established 
under state or local law for DoD DDESS special arrangements.



Sec. 69.3  Definitions.

    (a) Arrangements. Actions taken by the Secretary of Defense to 
provide a free public education to dependent children under 10 U.S.C. 
2164 through DoD DDESS arrangements or DoD DDESS special arrangements:
    (1) DDESS arrangement. A school operated by the Department of 
Defense under 10 U.S.C. 2164 and 32 CFR 345 to provide a free public 
education for eligible children.
    (2) DDESS special arrangement. An agreement, under 10 U.S.C. 2164, 
between the Secretary of Defense, or designee, and a local public 
education agency whereby a school or a school system operated by the 
local public education agency provides educational services to eligible 
dependent children of U.S. military personnel and federally employed 
civilian personnel. Arrangements result in partial or total Federal 
funding to the local public education agency for the educational 
services provided.
    (b) Parent. The biological father or mother of a child when parental 
rights have not been legally terminated; a person who, by order of a 
court of competent jurisdiction, has been declared the father or mother 
of a child by adoption; the legal guardian of a child; or a person in 
whose household a child resides, provided that such person stands in 
loco parentis to that child and contributes at least one-half of the 
child's support.



Sec. 69.4  Policy.

    (a) Each DoD DDESS arrangement shall have an elected school board, 
established and operated in accordance with this part and other 
pertinent guidance.
    (b) Because members of DoD DDESS elected school boards are not 
officers or employees of the United States appointed under the 
Appointments Clause of the United States Constitution (Art.

[[Page 257]]

II, Sec. 2, Cl. 2), they may not exercise discretionary governmental 
authority, such as the taking of personnel actions or the establishment 
of governmental policies. This part clarifies the role of school boards 
in the development and oversight of fiscal, personnel, and educational 
policies, procedures, and programs for DoD DDESS arrangements, subject 
to these constitutional limitations.
    (c) The DoD DDESS chain of command for matters relating to school 
arrangements operated under 10 U.S.C. 2164 and 32 CFR part 345 shall be 
from the Director, DoD DDESS, to the Superintendent of each school 
arrangement. The Superintendent will inform the school board of all 
matters affecting the operation of the local school arrangement. Direct 
liaison among the school board, the Director, and the Superintendent is 
authorized for all matters pertaining to the local school arrangement.



Sec. 69.5  Responsibilities.

    The Assistant Secretary of Defense for Force Management Policy (ASD 
(FMP)), under the Under Secretary of Defense for Personnel and 
Readiness, shall:
    (a) Make the final decision on all formal appeals to directives and 
other guidance submitted by the school board or Superintendent.
    (b) Ensure the Director, DoD DDESS shall:
    (1) Ensure the establishment of elected school boards in DoD DDESS 
arrangements.
    (2) Monitor compliance by the Superintendent and school boards with 
applicable statutory and regulatory requirements, and this part. In the 
event of suspected noncompliance, the Director, DoD DDESS, shall take 
appropriate action, which will include notification of the 
Superintendent and the school board president of the affected DoD DDESS 
arrangement.
    (3) Determine when the actions of a school board conflict with an 
applicable statute, regulation, or other guidance or when there is a 
conflict in the views of the school board and the Superintendent. When 
such conflicts occur, the Director, DoD DDESS, shall assist the 
Superintendent and the school board in resolving them or direct that 
such actions be discontinued. Such disapprovals must be in writing to 
the school board and the Superintendent concerned and shall state the 
specific supporting reason or reasons.
    (c) Ensure the school board for DoD DDESS arrangements shall:
    (1) Participate in the development and oversight of fiscal, 
personnel, and educational policies, procedures, and programs for the 
DoD DDESS arrangement concerned, consistent with this part.
    (2) Approve agendas and prepare minutes for school board meetings. A 
copy of the approved minutes of school board meetings shall be forwarded 
to the Director, DoD DDESS, within 10 working days after the date the 
minutes are approved.
    (3) Provide to the Director, DoD DDESS, names of applicants for a 
vacancy in the Superintendent's position after a recruitment has been 
accomplished. The school board shall submit to the Director, DoD DDESS, 
a list of all applicants based on its review of the applications and 
interviews (either in person or telephonically) of the applicants. The 
list of applicants will be accompanied by the recommended choice of the 
school board. The Director will select the Superintendent and will 
submit written notice with justification to the school board if the 
recommendation of the school board is not followed.
    (4) Prepare an annual written on-site review of the Superintendent's 
performance for consideration by the Director, DoD DDESS. The written 
review shall be based on critical elements recommended by the school 
board and Superintendent and approved by the Director, DoD DDESS. The 
school board's review will be an official attachment to the 
Superintendent's appraisal.
    (5) Participate in the development of the school system's budget for 
submission to the Director, DoD DDESS, for his or her approval as 
endorsed by the school board; and participate in the oversight of the 
approved budget, in conjunction with the Superintendent, as appropriate 
for operation of the school arrangement.

[[Page 258]]

    (6) Invite the Superintendent or designee to attend all school board 
meetings.
    (7) Provide counsel to the Superintendent on the operation of the 
school and the implementation of the approved budget.
    (8) Channel communications with school employees to the DoD DDESS 
Superintendent. Refer all applications, complaints, and other 
communications, oral or written, to the DoD DDESS Arrangement 
Superintendents.
    (9) Participate in the development of school policies, rules, and 
regulations, in conjunction with the Superintendent, and recommend which 
policies shall be reflected in the School Policy Manual. At a minimum, 
the Policy Manual, which shall be issued by the Superintendent, shall 
include following:
    (i) A statement of the school philosophy.
    (ii) The role and responsibilities of school administrative and 
educational personnel.
    (iii) Provisions for promulgation of an annual school calendar.
    (iv) Provisions on instructional services, including policies for 
development and adoption of curriculum and textbooks.
    (v) Regulations affecting students, including attendance, grading, 
promotion, retention, and graduation criteria, and the student code of 
rights, responsibilities, and conduct.
    (vi) School policy on community relations and noninstructional 
services, including maintenance and custodial services, food services, 
and student transportation.
    (vii) School policy and legal limits on financial operations, 
including accounting, disbursing, contracting, and procurement; 
personnel operations, including conditions of employment, and labor 
management regulations; and the processing of, and response to, 
complaints.
    (viii) Procedures providing for new school board member orientation.
    (ix) Any other matters determined by the school board and the 
superintendent to be necessary.
    (10) Under 10 U.S.C. 2164(b)(4)(B), prepare and submit formal 
appeals to directives and other guidance that in the view of the school 
board adversely impact the operation of the school system either through 
the operation and management of DoD DDESS or a specific DoD DDESS 
arrangement. Written formal appeals with justification and supporting 
documentation shall be submitted by the school board or Superintendent 
to ASD(FMP). The ASD(FMP) shall make the final decision on all formal 
appeals. The Director, Dod DDESS, will provide the appealing body 
written review of the findings relating to the merits of the appeal. 
Formal appeals will be handled expeditiously by all parties to minimize 
any adverse impact on the operation of the DoD DDESS system.
    (d) Ensure school board operating procedures are as follows:
    (1) The school board shall operate from a written agenda at all 
meetings. Matters not placed on the agenda before the start of the 
meeting, but approved by a majority of the school board present, may be 
considered at the ongoing meeting and added to the agenda at that time.
    (2) A majority of the total number of school board members 
authorized shall constitute a quorum.
    (3) School board meetings shall be conducted a minimum of 9 times a 
year. The school board President or designee will provide school board 
members timely notice of all meetings. All regularly scheduled school 
board meetings will be open to the public. Executive session meetings 
may be closed under 10 U.S.C. 2164(d)(6).
    (4) The school board shall not be bound in any way by any action or 
statement of an individual member or group of members of the board 
except when such action or statement is approved by a majority of the 
school board members during a school board meeting.
    (5) School board members are eligible for reimbursement for official 
travel in accordance with the DoD Joint Travel Regulations and guidance 
issued by the Director, DoD DDESS.
    (6) School board members may be removed by the ASD (FMP) for 
dereliction of duty, malfeasance, or other grounds for cause shown. The 
school board concerned may recommend such removal with a two-thirds 
majority

[[Page 259]]

vote. Before a member may be removed, the member shall be afforded due 
process, to include written notification of the basis for the action, 
review of the evidence or documentation considered by the school board, 
and an opportunity to respond to the allegations.



Sec. 69.6  Procedures.

    (a) Composition of school board. (1) The school board shall 
recommend to the Director, DoD DDESS, the number of elected school board 
voting members, which shall be not fewer than 3 and no more than 9, 
depending upon local needs. The members of the school board shall select 
by majority vote of the total number of school board members authorized 
at the beginning of each official school board term, one member to act 
as President and another to act as Vice President. The President and 
Vice President shall each serve for 1 year. The President shall preside 
over school board meetings and provide leadership for related activities 
and functions. The Vice President shall serve in the absence of the 
President. If the position of President is vacated for any reason, the 
Vice President shall be the President until the next regularly scheduled 
school board election. The resulting vacancy in the position of the Vice 
President shall be filled by the majority vote of all members of the 
incumbent board.
    (2) The DoD DDESS Arrangement Superintendent, or designee, shall 
serve as a non-voting observer to all school board meetings. The 
Installation Commander, or designee, shall convey command concerns to 
the school board and the Superintendent and keep the school board and 
the Superintendent informed of changes and other matters within the host 
installation that affect school expenditures or operations.
    (3) School board members may not receive compensation for their 
service on the school board.
    (4) Members of the school board may not have any financial interest 
in any company or organization doing business with the school system. 
Waivers to this restriction may be granted on a case-by-case basis by 
the Director, DoD DDESS, in coordination with the Office of General 
Counsel of the Department of Defense.
    (b) Electorate of the school board. The electorate for each school 
board seat shall be composed of parents of the students attending the 
school. Each member of the electorate shall have one vote.
    (c) Election of school board members. (1) To be elected as a member 
of the school board, an individual must be a resident of the military 
installation in which the DoD DDESS arrangement is located, or in the 
case of candidates for the Antilles Consolidated School System School 
Board, be the parent of an eligible child currently enrolled in the 
school system. Personnel employed by a DoD DDESS arrangement may not 
serve as school board members.
    (2) The board shall determine the term of office for elected 
members, not to exceed 3 years, and the limit on the number of terms, if 
any. If the board fails to set these terms by the first day of the first 
full month of the school year, the terms will be set at 3 years, with a 
maximum of 2 consecutive terms.
    (3) When there is a sufficient number of school board vacancies that 
result in not having a quorum, which is defined as a majority of seats 
authorized, a special election shall be called by the DoD DDESS 
Arrangement Superintendent or designee. A special election is an 
election that is held between the regularly scheduled annual school 
board election. The nomination and election procedures for a special 
election shall be the same as those of regularly scheduled school board 
elections. Individuals elected by special election shall serve until the 
next regularly scheduled school board election. Vacancies may occur due 
to the resignation, death, removal for cause, transfer, or disenrollment 
of a school board member's child(ren) from the DoD DDESS arrangement.
    (4) The board shall determine a schedule for regular elections. 
Parents shall have adequate notice of the time and place of the 
election. The election shall be by secret ballot. All votes must be cast 
in person at the time and place of the election. The candidate(s) 
receiving the greatest number of votes

[[Page 260]]

shall be elected as school board member(s).
    (5) Each candidate for school board membership must be nominated in 
writing by at least one member of the electorate to be represented by 
the candidate. Votes may be cast at the time of election for write-in 
candidates who have not filed a nomination petition if the write-in 
candidates otherwise are qualified to serve in the positions sought.
    (6) The election process shall provide staggered terms for board 
members; e.g., on the last day of the last month of each year, the term 
for some board members will expire.
    (7) The DoD DDESS Superintendent, in consultation with the school 
board, shall be responsible for developing the plans for nominating 
school board members and conducting the school board election and the 
special election process. The DoD DDESS Superintendent shall announce 
election results within 7 working days of the election.



PART 70--DISCHARGE REVIEW BOARD (DRB) PROCEDURES AND STANDARDS--Table of Contents




Sec.
70.1  Reissuance and purpose.
70.2  Applicability.
70.3  Definitions.
70.4  Responsibilities.
70.5  Procedures.
70.6  Information requirements.
70.7  Effective date and implementation.
70.8  Discharge review procedures.
70.9  Discharge review standards.
70.10  Complaints concerning decisional documents and index entries.
70.11  DoD semiannual report.

    Authority: 10 U.S.C. 1553 and 38 U.S.C. 101 and 3103, as amended.

    Source: 47 FR 37785, Aug. 26, 1982, unless otherwise noted.



Sec. 70.1  Reissuance and purpose.

    This part is reissued and:
    (a) Establishes uniform policies, procedures, and standards for the 
review of discharges or dismissals under 10 U.S.C. 1553.
    (b) Provides guidelines for discharge review by application or on 
motion of a DRB, and the conduct of discharge reviews and standards to 
be applied in such reviews which are designed to ensure historically 
consistent uniformity in execution of this function, as required under 
Pub. L. 95-126.
    (c) Assigns responsibility for administering the program.
    (d) Makes provisions for public inspection, copying, and 
distribution of DRB documents through the Armed Forces Discharge Review/
Correction Board Reading Room.
    (e) Establishes procedures for the preparation of decisional 
documents and index entries.
    (f) Provides guidance for processing complaints concerning 
decisional documents and index entries.



Sec. 70.2  Applicability.

    The provisions of this part 70 apply to the Office of the Secretary 
of Defense (OSD) and the Military Departments. The terms, ``Military 
Services,'' and ``Armed Forces,'' as used herein, refer to the Army, 
Navy, Air Force and Marine Corps.



Sec. 70.3  Definitions.

    (a) Applicant. A former member of the Armed Forces who has been 
discharged or dismissed administratively in accordance with Military 
Department regulations or by sentence of a court-martial (other than a 
general court-martial) and under statutory regulatory provisions whose 
application is accepted by the DRB concerned or whose case is heard on 
the DRB's own motion. If the former member is deceased or incompetent, 
the term ``applicant'' includes the surviving spouse, next-of-kin, or 
legal representative who is acting on behalf of the former member. When 
the term ``applicant'' is used in Secs. 70.8 through 70.10, it includes 
the applicant's counsel or representative, except that the counsel or 
representative may not submit an application for review, waive the 
applicant's right to be present at a hearing, or terminate a review 
without providing the DRB an appropriate power of attorney or other 
written consent of the applicant.
    (b) Complainant. A former member of the Armed Forces (or the former 
member's counsel) who submits a complaint under Sec. 70.10 with respect 
to the decisional document issued in the

[[Page 261]]

former member's own case; or a former member of the Armed Forces (or the 
former member's counsel) who submits a complaint under Sec. 70.10 
stating that correction of the decisional document will assist the 
former member in preparing for an administrative or judicial proceeding 
in which the former member's own discharge will be at issue.
    (c) Counsel or Representative. An individual or agency designated by 
the applicant who agrees to represent the applicant in a case before the 
DRB. It includes, but is not limited to: a lawyer who is a member of the 
bar of a Federal court or of the highest court of a State; an accredited 
representative designated by an organization recognized by the 
Administrator of Veterans Affairs; a representative from a State agency 
concerned with veterans affairs; and representatives from private 
organizations or local government agencies.
    (d) Discharge. A general term used in this Directive that includes 
dismissal and separation or release from active or inactive military 
status, and actions that accomplish a complete severance of all military 
status. This term also includes the assignment of a reason for such 
discharge and characterization of service (32 CFR part 41).
    (e) Discharge Review. The process by which the reason for 
separation, the procedures followed in accomplishing separation, and the 
characterization of service are evaluated. This includes determinations 
made under the provisions of 38 U.S.C. 3103(e)(2).
    (f) Discharge Review Board (DRB). An administrative board 
constituted by the Secretary of the Military Department concerned and 
vested with discretionary authority to review discharges and dismissals 
under the provisions of 10 U.S.C. 1553. It may be configured as one main 
element or two or more elements as designated by the Secretary 
concerned.
    (g) DRB Panel. An element of a DRB, consisting of five members, 
authorized by the Secretary concerned to review discharges and 
dismissals.
    (h) DRB Traveling or Regional Panel. A DRB panel that conducts 
discharge reviews in a location outside the National Capital Region 
(NCR).
    (i) Hearing. A review involving an appearance before the DRB by the 
applicant or on the applicant's behalf by a counsel or representative.
    (j) Hearing Examination. The process by which a designated officer 
of a DRB prepares a presentation for consideration by a DRB in 
accordance with regulations prescribed by the Secretary concerned.
    (k) National Capital Region (NCR). The District of Columbia; Prince 
Georges and Montgomery Counties in Maryland; Arlington, Fairfax, 
Loudoun, and Prince William Counties in Virginia; and all cities and 
towns included within the outer boundaries of the foregoing counties.
    (l) President, DRB. A person designated by the Secretary concerned 
and responsible for the supervision of the discharge review function and 
other duties as assigned.



Sec. 70.4  Responsibilities.

    (a) The Secretaries of the Military Departments have the authority 
for final decision and the responsibility for the operation for their 
respective discharge review programs under 10 U.S.C. 1553.
    (b) The Assistant Secretary of Defense (Manpower, Reserve Affairs, 
and Logistics) (ASD(MRA&L)) shall:
    (1) Resolve all issues concerning DRBs that cannot be resolved among 
the Military Departments.
    (2) Ensure uniformity among the Military Departments in the rights 
afforded applicants in discharge reviews.
    (3) Modify or supplement the enclosures to this part.
    (4) Maintain the index of decisions and provide for timely 
modification of index categories to reflect changes in discharge review 
policies, procedures, and standards issued by the OSD and the Military 
Departments.
    (c) The Secretary of the Army, as the designated administrative 
focal point for DRB matters, shall:
    (1) Effect necessary coordination with other governmental agencies 
regarding continuing applicability of this part and resolve 
administrative procedures relating thereto.
    (2) Review suggested modifications to this part, including 
implementing documents; monitor the implementing

[[Page 262]]

documents of the Military Departments; resolve differences, when 
practicable; recommend specific changes; provide supporting rationale to 
the ASD(MRA&L) for decision; and include appropriate documentation 
through the Office of the ASD(MRA&L) and the OSD Federal Register 
liaison officer to effect publication in the Federal Register.
    (3) Maintain the DD Form 293, ``Application for Review of Discharge 
or Separation from the Armed Forces of the United States,'' and 
republish as necessary with appropriate coordination of the other 
Military Departments and the Office of Management and Budget.
    (4) Respond to all inquiries from private individuals, 
organizations, or public officials with regard to DRB matters. When the 
specific Military Service can be identified, refer such correspondence 
to the appropriate DRB for response or designate an appropriate activity 
to perform this task.
    (5) Provide overall guidance and supervision to the Armed Forces 
Discharge Review/Correction Board Reading Room with staff augmentation, 
as required, by the Departments of the Navy and Air Force.
    (6) Ensure that notice of the location, hours of operation, and 
similar types of information regarding the Reading Room is published in 
the Federal Register.



Sec. 70.5  Procedures.

    (a) Discharge review procedures are prescribed in Sec. 70.8.
    (b) Discharge Review Standards are prescribed in Sec. 70.9 and 
constitute the basic guidelines for the determination whether to grant 
or deny relief in a discharge review.
    (c) Complaint Procedures about decisional documents are prescribed 
in Sec. 70.10.



Sec. 70.6  Information requirements.

    (a) Reporting requirements. (1) The reporting requirement prescribed 
in Sec. 70.8(n) is assigned Report Control Symbol DD-M(SA)1489.
    (2) All reports must be consistent with DoD Directive 5000.11, 
``Data Elements and Data Codes Standardization Program,'' December 7, 
1964.
    (b) Use of standard data elements. The data requirements prescribed 
by this part shall be consistent with DoD 5000.12-M, ``DoD Manual for 
Standard Data Elements,'' December 1981. Any reference to a date should 
appear as (YYMMDD), while any name entry should appear as (Last name, 
first name, middle initial).



Sec. 70.7  Effective date and implementation.

    This part is effective immediately for the purpose of preparing 
implementing documents. DoD Directive 1332.28, March 29, 1978, is 
officially canceled, effective November 27, 1982. This part applies to 
all discharge review proceedings conducted on or after November 27, 
1982. Sec. 70.10 applies to all complaint proceedings conducted on or 
after September 28, 1982. Final action on complaints shall not be taken 
until September 28, 1982, unless earlier corrective action is requested 
expressly by the applicant (or the applicant's counsel) whose case is 
the subject of the decisional document. If earlier corrective action is 
requested, it shall be taken in accordance with Sec. 70.10.



Sec. 70.8  Discharge review procedures.

    (a) Application for review--(1) General. Applications shall be 
submitted to the appropriate DRB on DD Form 293, ``Application for 
Review of Discharge or Separation from the Armed Forces of the United 
States,'' with such other statements, affidavits, or documentation as 
desired. It is to the applicant's advantage to submit such documents 
with the application or within 60 days thereafter in order to permit a 
thorough screening of the case. The DD Form 293 is available at most DoD 
installations and regional offices of the Veterans Administration, or by 
writing to: DA Military Review Boards Agency, Attention: SFBA (Reading 
Room), Room 1E520, The Pentagon, Washington, DC 20310.
    (2) Timing. A motion or request for review must be made within 15 
years after the date of discharge or dismissal.
    (3) Applicant's responsibilities. An applicant may request a change 
in the character of or reason for discharge (or both).

[[