[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 1998 Edition]
[From the U.S. Government Printing Office]


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          32



          National Defense



          PARTS 700 TO 799

                         Revised as of July 1, 1998

          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT
          AS OF JULY 1, 1998

          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 : 1998



               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 (Continued):
    Chapter VI--Department of the Navy........................       5
  Finding Aids:
    Table of CFR Titles and Chapters..........................     535
    Alphabetical List of Agencies Appearing in the CFR........     553
    List of CFR Sections Affected.............................     563



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   Cite this Code:  CFR

   To cite the regulations in this volume use title, part and
   section number. Thus,  32 CFR 700.101 refers to title 32, part
   700, section 101.

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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, 1998), 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 
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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.

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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 
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    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 
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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, The United States 
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of Presidential Documents and the Privacy Act Compilation are available 
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    The Office of the Federal Register also offers a free service on the 
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site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 1998.



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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, 1998.

    The current regulations issued by the Department of Defense appear 
in the volumes containing parts 1-190 and parts 191-399; those issued by 
the Department of the Army appear in the volumes containing parts 400-
629 and parts 630-699; those issued by the Department of the Navy appear 
in the volume containing parts 700-799, and those issued by the 
Department of the Air Force, Defense Logistics Agency, Selective Service 
System, Central Intelligence Agency, Information Security Oversight 
Office, National Security Council, Office of Science and Technology 
Policy, Office for Micronesian Status Negotiations, Office of the Vice 
President of the United States, and Presidential Commission on the 
Assignment of Women in the Armed Forces appear in the volume containing 
part 800 to end.

    For this volume, Melanie L. Marcec was Chief Editor. The Code of 
Federal Regulations is published under the direction of Frances D. 
McDonald, assisted by Alomha S. Morris.

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[[Page 1]]



                       TITLE 32--NATIONAL DEFENSE




                  (This book contains parts 700 to 799)

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                                                                    Part

              SUBTITLE A--Department of Defense (Continued)

Chapter vi--Department of the Navy..........................         700

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                        Subtitle A--Department of

                           Defense (Continued)

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                   CHAPTER VI--DEPARTMENT OF THE NAVY




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    SUBCHAPTER A--UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDS
Part                                                                Page
700             United States Navy regulations..............           9
701             Availability of Department of the Navy 
                    records and publication of Department of 
                    the Navy documents affecting the public.          39
705             Public affairs regulations..................         121
                        SUBCHAPTER B--NAVIGATION
706             Certifications and exemptions under the 
                    International Regulations for Preventing 
                    Collisions at Sea, 1972.................         159
707             Special rules with respect to additional 
                    station and signal lights...............         175
                         SUBCHAPTER C--PERSONNEL
716             Death gratuity..............................         177
718             Missing Persons Act.........................         182
719             Regulations supplementing the manual for 
                    courts-martial..........................         185
720             Delivery of personnel; service of process 
                    and subpoenas; production of official 
                    records.................................         198
721-722

[Reserved]

723             Board for Correction of Naval Records.......         215
724             Naval Discharge Review Board................         222
725             Release of official information for 
                    litigation purposes and testimony by 
                    Department of the Navy personnel........         255
726             Payments of amounts due mentally incompetent 
                    members of the Naval service............         269
727             Legal assistance............................         271
728             Medical and dental care for eligible persons 
                    at Navy medical department facilities...         276
732             Nonnaval medical and dental care............         340
733             Assistance to and support of dependents; 
                    paternity complaints....................         354

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734             Garnishment of pay of Naval military and 
                    civilian personnel for collection of 
                    child support and alimony...............         359
735             Reporting births and deaths in cooperation 
                    with other agencies.....................         361
       SUBCHAPTER D--PROCUREMENT, PROPERTY, PATENTS, AND CONTRACTS
736             Disposition of property.....................         363
744             Policies and procedures for the protection 
                    of proprietary rights in technical 
                    information proposed for release to 
                    foreign governments.....................         367
746             Licensing of government inventions in the 
                    custody of the Department of the Navy...         368
                          SUBCHAPTER E--CLAIMS
750             General claims regulations..................         374
751             Personnel claims regulations................         398
752             Admiralty claims............................         427
755             Claims for injuries to property under 
                    Article 139 of the Uniform Code of 
                    Military Justice........................         430
756             Nonappropriated-fund claims regulations.....         433
757             Affirmative claims regulations..............         435
              SUBCHAPTER F--ISLANDS UNDER NAVY JURISDICTION
761             Naval Defensive Sea Areas; Naval Airspace 
                    Reservations, areas under Navy 
                    administration, and the Trust Territory 
                    of the Pacific Islands..................         444
762             Midway Islands Code.........................         456
763             Rules governing public access...............         473
                    SUBCHAPTER G--MISCELLANEOUS RULES
765             Rules applicable to the public..............         476
766             Use of Department of the Navy aviation 
                    facilities by civil aircraft............         480
767-769

[Reserved]

770             Rules limiting public access to particular 
                    installations...........................         490
771-774

[Reserved]

775             Procedures for implementing the National 
                    Environmental Policy Act................         501
776             Professional conduct of attorneys practicing 
                    under the supervision of the judge 
                    advocate general........................         509
777-799

[Reserved]


Cross References: Panama Canal: See 35 CFR chapter I.

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  National Oceanic and Atmospheric Administration, Department of 
Commerce: See 15 CFR chapter IX.

  Coast Guard, Department of Transportation: See 33 CFR chapter I; 46 
CFR chapter I.

  Office of the Secretary of Defense: See 32 CFR chapter I.

  Department of the Army: See 32 CFR chapter V.

  Navigation and Navigable Waters (Anchorage Bridge, Danger Zone, 
Navigation, and Oil Pollution Regulations, etc.): See 33 CFR chapters I 
and II.

  Selective Service System: See 32 CFR chapter XVI.

  Department of Veterans Affairs: See 38 CFR chapter I.

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    SUBCHAPTER A--UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDS





PART 700--UNITED STATES NAVY REGULATIONS--Table of Contents




                  Subpart A--The Department of the Navy

Sec.
700.101  Origin and authority.
700.102  Objectives.
700.103  Composition.
700.104  The principal parts of the Department of the Navy.
700.105  Definition of terms.

                  Subpart B--The Secretary of the Navy

700.201  Responsibilities of the Secretary of the Navy.
700.202  Succession to duties.
700.203  The Civilian Executive Assistants.
700.204  The staff assistants.
700.205  The Chief of Naval Research, The Judge Advocate General, The 
          Deputy Comptroller of the Navy.
700.206  Authority over organizational matters.

                Subpart C--The Chief of Naval Operations

700.301  Senior Military Officer of the Department of the Navy.
700.302  Succession to duties.
700.303  Specific authority and duties of the Vice Chief of Naval 
          Operations.
700.304  Authority and responsibility.
700.305  Naval Vessel Register, classification of naval craft, and 
          status of ships and service craft.
700.306  The Chief of Naval Material.
700.307  The Chief of Naval Personnel and the Chief, Bureau of Medicine 
          and Surgery.
700.308  Naval Inspector General.
700.309  Commander in Chief, U.S. Atlantic Fleet.
700.310  Commander in Chief, U.S. Pacific Fleet.
700.311  Commander in Chief, U.S. Naval Forces, Europe.
700.312  Commander, Military Sealift Command.
700.313  Commander, Naval Intelligence Command.
700.314  Commander, Naval Telecommunications Command.
700.315  Oceanographer of the Navy.
700.316  Commander, Naval Oceanography Command.
700.317  Commander, Naval Security Group Command.
700.318  Chief of Naval Education and Training.
700.319  Chief of Naval Reserve.
700.320  Commandants of Naval Districts.
700.321  President, Board of Inspection and Survey.

              Subpart D--The Commandant of the Marine Corps

700.401  Senior officer of the Marine Corps.
700.402  Succession to duties.
700.403  Authority and responsibilities.
700.404  Specific responsibilities.
700.405  Composition of the Marine Corps.
700.406  Relationships between the Commandant of the Marine Corps and 
          the Chief of Naval Material.
700.407  Serving with the Army by order of the President.

Subpart E--The United States Coast Guard (When Operating As a Service of 
                                the Navy)

700.501  Relationship and operation as a service in the Navy.
700.502  Commandant of the Coast Guard.
700.503  Duties and responsibilities.

           Subpart F--Commanders in Chief and Other Commanders

700.601  Titles of commanders.
700.602  Responsibility and authority of a commander.
700.603  To announce assumption of command.
700.604  Readiness.
700.605  Observance of international law.

                    Subpart G--The Commanding Officer

700.701  Applicability.
700.702  Responsibility.
700.703  [Reserved]
700.704  Organization of commands.
700.705-700.708  [Reserved]
700.709  Unauthorized persons on board.
700.710  Control of passengers.
700.711  Authority over passengers.
700.712  [Reserved]
700.713  Person found under incriminating circumstances.
700.714  Rules for visits.
700.715  Dealers, tradesmen, and agents.
700.716  Marriages on board.
700.717  Postal matters.
700.718-700.719  [Reserved]
700.720  Deaths.
700.721  The American National Red Cross.
700.722-700.723  [Reserved]
700.724  Maintenance of Logs.
700.725  Status of Logs.

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700.726  Records.
700.727-700.728  [Reserved]
700.729  Delivery of personnel to civil authorities and service of 
          subpoena or other process.
700.730-700.732  [Reserved]
700.733  Responsibility of a master of an in-service ship of the 
          Military Sealift Command.
700.734  Relations with merchant seamen.
700.735  [Reserved]
700.736  Physical security.
700.737  Effectiveness for service.
700.738-700.739  [Reserved]
700.740  Search by foreign authorities.
700.741-700.746  [Reserved]
700.747  Status of boats.
700.748  [Reserved]
700.749  Work, facilities, supplies, or services for other Government 
          departments, State or local governments, foreign governments, 
          private parties, and morale, welfare, and recreational 
          activities.
700.750-700.751  [Reserved]
700.752  Responsibility for safety of ships and craft at a naval station 
          or shipyard.
700.753  Ships and craft in drydock.
700.754  Pilotage.
700.755  Safe navigation and regulations governing operation of ships 
          and aircraft.
700.756  Duties of the prospective commanding officer of a ship.
700.757  Authority of the commanding officer or prospective commanding 
          officer of a naval nuclear powered ship.
700.758  Inspection incident to commissioning of ships.
700.759-700.762  [Reserved]
700.763  Quarantine.
700.764  Customs and immigration inspections.
700.765  Environmental pollution.
700.766-700.767  [Reserved]
700.768  Care of ships, aircraft, vehicles, and their equipment.

              Subpart H--Precedence, Authority, and Command

700.811  Exercise of authority.
700.812-700.816  [Reserved]
700.817  Authority of an officer who succeeds to command.
700.818-700.829  [Reserved]
700.830  Authority of a sentry.
700.831-700.833  [Reserved]
700.834  Orders to active service.

                  Subpart I--The Senior Officer Present

700.901  The senior officer present.
700.902  [Reserved]
700.903  Authority and responsibility.
700.904  Authority of senior officer of the Marine Corps present.
700.905-700.921  [Reserved]
700.922  Shore patrol.
700.923  Precautions for health.
700.924-700.934  [Reserved]
700.935  Exercise of power of consul.
700.936-700.939  [Reserved]
700.940  Granting of asylum and temporary refuge.

 Subpart J--Rights and Responsibilities of Persons in the Department of 
                                the Navy

700.1115  Control of official records.
700.1116  Disclosure and publication of information.
700.1117  Official records in civil courts.
700.1118-700.1119  [Reserved]
700.1120  Rules for preventing collisions, afloat and in the air.
700.1121-700.1132  [Reserved]
700.1133  Use of title for commercial enterprises.
700.1134-700.1142  [Reserved]
700.1143  Return of Government property on release from active service.
700.1144  Issue or loan of public property.
700.1145-700.1149  [Reserved]
700.1150  Alcoholic liquors.
700.1151  Responsibilities concerning marijuana, narcotics, and other 
          controlled substances.
700.1152-700.1160  [Reserved]
700.1161  Endorsement of commercial product or process.

Subpart K--Purpose and Force of Regulations within the Department of the 
                                  Navy

700.1201  Purpose and force of United States Navy Regulations.
700.1202  Issuances concerning matters over which control is exercised.

    Authority: 10 U.S.C. 6011; 38 FR 7892, Mar. 26, 1973.

    Source: 39 FR 7135, Feb. 25, 1974, unless otherwise noted.



                  Subpart A--The Department of the Navy



Sec. 700.101  Origin and authority.

    (a) The naval affairs of the country began with the war for 
independence, the American Revolution. On 13 October 1775, Congress 
passed legislation forming a committee to purchase and arm two ships. 
This in effect created the Continental Navy. Two battalions of Marines 
were authorized on 10 November 1775. Under the Constitution, the First 
Congress on 7 August 1789, assigned responsibility for the conduct of 
naval affairs to the War Department. On 30 April 1798, the Congress 
established a separate Navy Department

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with the Secretary of the Navy as its chief officer. On 11 July 1798, 
the U.S. Marine Corps was established as a separate service, and in 1834 
was made a part of the Department of the Navy.
    (b) The National Security Act of 1947, as amended, is the 
fundamental law governing the position of the Department of the Navy in 
the organization for national defense. In 1949, the Act was amended to 
establish the Department of Defense as an Executive Department, and to 
establish the Departments of the Army, Navy and Air Force (formerly 
established as Executive Departments by the 1947 Act) as military 
departments within the Department of Defense.
    (c) The responsibilities and authority of the Department of the Navy 
are vested in the Secretary of the Navy, and are subject to his 
reassignment and delegation. The Secretary is bound by the provisions of 
law, the direction of the President and the Secretary of Defense, and, 
along with all Government agencies, the regulations of certain 
nondefense agencies in their respective areas of functional 
responsibility.



Sec. 700.102  Objectives.

    The fundamental objectives of the Department of the Navy, within the 
Department of Defense, are
    (a) To organize, train, equip, prepare, and maintain the readiness 
of Navy and Marine Corps forces for the performance of military missions 
as directed by the President or the Secretary of Defense, and
    (b) To support Navy and Marine Corps forces, including the support 
of such forces and the forces of other military departments, as directed 
by the Secretary of Defense, which are assigned to unified or specified 
commands. Support, as here used, includes administrative, personnel, 
material and fiscal support, and technological support through research 
and development.



Sec. 700.103  Composition.

    The Department of the Navy is separately organized under the 
Secretary of the Navy. It operates under the authority, direction, and 
control of the Secretary of Defense. It is composed of the executive 
part of the Department of the Navy; the Headquarters, United States 
Marine Corps; the entire operating forces, including naval aviation, of 
the United States Navy and of the United States Marine Corps, and the 
reserve components of those operating forces; and all shore activities, 
headquarters, forces, bases, installations, activities, and functions 
under the control or supervision of the Secretary of the Navy. It 
includes the United States Coast Guard when it is operating as a service 
in the Navy.



Sec. 700.104  The principal parts of the Department of the Navy.

    (a) Functionally, organizationally and geographically the Department 
of the Navy has from practically the beginning of the Federal Government 
under the Constitution consisted of three parts: The Operating Forces of 
the Navy, the Navy Department, and the Shore Establishment.
    (b) The operating forces of the Navy comprise the several fleets, 
sea-going forces, sea-frontier forces, district forces, Fleet Marine 
Forces, other assigned Marine Corps Forces, the Military Sealift 
Command, and other forces and activities that may be assigned thereto by 
the President or the Secretary of the Navy.
    (c) The Navy Department refers to the central executive offices of 
the Department of the Navy located at the seat of the government. The 
Navy Department is organizationally comprised of the Office of the 
Secretary of the Navy which includes his Civilian Executive Assistants, 
Offices of his Assistants, and the headquarters organizations of the 
Office of Naval Research, the Office of the Judge Advocate General, and 
the Office of the Comptroller of the Navy; the Office of the Chief of 
Naval Operations, the Headquarters, United States Marine Corps; and, 
under the command of the Chief of Naval Operations, the Headquarters, 
Naval Material Command, and the headquarters organizations of the Bureau 
of Naval Personnel and the Bureau of Medicine and Surgery. In addition, 
the Headquarters, United States Coast Guard, is included when the United 
States Coast Guard is operating as a service in the Navy.

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    (d) The shore establishment is comprised of shore activities with 
defined missions approved for establishment by the Secretary of the 
Navy.



Sec. 700.105  Definition of terms.

    The following definitions shall apply to the regulations in this 
part:
    (a) Command--(DOD). (1) The authority which a commander in the 
military service lawfully exercises over his subordinates by virtue of 
rank or assignment. Command includes the authority and responsibility 
for effectively using available resources and for planning the 
employment of, organizing, directing, coordinating, and controlling 
military forces for the accomplishment of assigned missions. It also 
includes responsibilities for health, welfare, morale, and discipline of 
assigned personnel.
    (2) An order given by a commander; that is, the will of the 
commander expressed for the purpose of bringing about a particular 
action.
    (3) A unit or units, an organization, or an area under the command 
of one individual.
    (4) To dominate by a field of weaponfire or by observation from a 
superior position.
    (b) Superior. A commander or officer in command of a senior force, 
unit, or organization in line of command. Also, a senior person in line 
of command.
    (c) Flag and general officers. Flag officer means an officer of the 
Navy or Coast Guard above the grade of captain. General officers means 
an officer of the Marine Corps, the Army, or the Air Force above the 
grade of colonel.
    (d) Person in the naval service. Means a person, male or female, 
appointed or enlisted in, or inducted or conscripted into, the Navy or 
the Marine Corps. Also, same meaning for member of the naval service.
    (e) Persons in the Department of the Navy. All persons in the naval 
service and civilians employed under the Department of the Navy.
    (f) Ships. A classification of waterborne craft which comprises 
generally the oceangoing vessels and craft of the Navy, and such other 
water-borne craft as may be assigned this classification.
    (g) Service craft. A classification of water-borne craft which 
comprises generally the water-borne utilitarian craft not classified as 
ships or boats.
    (h) Boats. A classification of water-borne craft which comprises 
generally the water-borne craft suitable primarily for shipboard and 
similar use.
    (i) Active status. A status of ships and service craft. Active 
status ships or service craft are assigned to the active fleets and to 
their supporting activities or are ships of the Military Sealift Command 
which are titled in the United States or are operated under long-term 
bareboat charter. Ships and service craft in active status are ``in 
commission'' or ``in service.''
    (j) Inactive status. A status of ships and service craft. Inactive 
status ships and service craft are in reserve and not currently required 
for duty in the active fleets or supporting forces. Ships and service 
craft in inactive status are ``in commission, in reserve,'' or ``in 
service, in reserve'' or ``out of commission, in reserve'' or ``out of 
service, in reserve.''
    (k) Special status. A status of ships and service craft. Ships and 
service craft in special status shall include those units for which the 
Navy is charged with certain responsibilities by reason of custody or 
title, but which are not in the active or inactive status. Ships and 
service craft in special status are ``in commission, special'' or ``in 
service, special'' or ``out of commission, special'' or ``out of 
service, special.''
    (l) Vessel. Includes every description of watercraft or other 
artificial contrivance used, or capable of being used, as a means of 
transportation on water. (1 U.S.C. 3).
    (m) Naval activity. A unit of the Department of the Navy, of 
distinct identity, and established under an officer in command or in 
charge.
    (n) Naval station. A naval activity on shore, having a commanding 
officer, and located in an area having fixed boundaries, within which 
all persons are subject to naval jurisdiction and immediate authority of 
the commanding officer.
[41 FR 18074, Apr. 30, 1976]

[[Page 13]]



                  Subpart B--The Secretary of the Navy



Sec. 700.201  Responsibilities of the Secretary of the Navy.

    The Secretary of the Navy is the head of the Department of the Navy. 
Under the direction, authority, and control of the Secretary of Defense, 
the Secretary of the Navy is responsible for the policies and control of 
the Department of the Navy, including its organization, administration, 
operation, and efficiency.
[39 FR 7135, Feb. 25, 1974, as amended at 45 FR 80277, Dec. 4, 1980]



Sec. 700.202  Succession to duties.

    (a) When there is a vacancy in the Office of the Secretary of the 
Navy, or during the absence or disability of the Secretary, the Under 
Secretary of the Navy, and, in the order prescribed by the Secretary of 
the Navy, the Assistant Secretaries of the Navy succeed to the duties of 
the Secretary. If the Secretary does not prescribe an order for 
succession to the duties of that office, the Assistant Secretaries shall 
succeed to those duties after the Under Secretary in the order in which 
they took office as Assistant Secretaries.
    (b) During the temporary absence of the above officials, the Chief 
of Naval Operations or, in his absence, the Vice Chief of Naval 
Operations succeeds to the duties of the Secretary.
[39 FR 7135, Feb. 25, 1974, as amended at 45 FR 80277, Dec. 4, 1980]



Sec. 700.203  The Civilian Executive Assistants.

    (a) The Civilian Executive Assistants to the Secretary of the Navy 
are the Under Secretary of the Navy, the Assistant Secretaries of the 
Navy, the General Counsel of the Navy and the Deputy Under Secretary of 
the Navy. It is the policy of the Secretary to assign Department-wide 
responsibilities essential to the efficient administration of the 
Department of the Navy to and among his Civilian Executive Assistants.
    (b) The Civilian Executive Assistants, within their respective areas 
of responsibility, are the principal advisers and assistants to the 
Secretary on the administration of the affairs of the Department of the 
Navy. In carrying out these duties, they shall do so in harmony with the 
statutory position of the Chief of Naval Operations as ``the principal 
naval adviser and naval executive to the Secretary on the conduct of 
activities of the Department of the Navy'' and the responsibilities of 
the Chief of Naval Operations and the Commandant of the Marine Corps as 
set forth in these regulations. The Civilian Executive Assistants are 
authorized and directed to act for the Secretary within their assigned 
areas of responsibility.
    (c) The Under Secretary of the Navy is designated as the deputy and 
principal assistant to the Secretary of the Navy, and acts with full 
authority of the Secretary in the general management of the Department 
of the Navy, and supervision of offices and organizations as assigned by 
the Secretary.
    (d) The Assistant Secretary of the Navy (Financial Management) is 
the Comptroller of the Navy, and is responsible for all matters related 
to the financial management of the Department of the Navy, including 
budgeting, accounting, disbursing, financing, progress and statistical 
reporting, auditing, management information systems, automatic data 
processing systems and equipment (less than integral to a weapons 
system), and supervision of offices and organizations as assigned by the 
Secretary. Under the Comptroller, the Deputy Comptroller of the Navy 
shall, in addition to performing other duties assigned, serve as an 
adviser and assistant to the Chief of Naval Operations and the 
Commandant of the Marine Corps with respect to financial and budgetary 
matters.
    (e) The Assistant Secretary of the Navy (Manpower, Reserve Affairs 
and Logistics) is responsible for the overall supervision of manpower 
and reserve component affairs of the Department of the Navy, including 
policy and administration of affairs related to military (active and 
inactive) and civilian personnel; all stages of the acquisition of naval 
ships funded by the appropriation ``Ships Construction, Navy''; all 
Department of the Navy acquisition

[[Page 14]]

programs following full scale production decision (Milestone III); the 
business, contractual, manpower, and logistic support aspects of the 
Department of the Navy Acquisition programs, including policy and 
administration of affairs related thereto; the maintenance, alteration, 
supply, distribution, and disposal of material; all transportation 
matters; the acquisition, construction, utilization, improvement 
alteration, maintenance, and disposal of real estate and facilities, 
including capital equipment utilities, housing, and public quarters; 
printing and publications; labor relations with respect to contractors 
with the Department of the Navy; industrial security; the Mutual Defense 
Assistance Program, as related to the supplying of material, including 
Foreign Military Sales; and supervision of offices and organizations as 
assigned by the Secretary.
    (f) The Assistant Secretary of the Navy (Research, Engineering and 
Systems) is responsible for all technical aspects of all stages of 
Department of the Navy acquisition programs through the full-scale 
production decision (Milestone III), including policy and administration 
of affairs related thereto, with the exception of the acquisition of 
naval ships funded by the appropriation `Ships Construction, Navy'; the 
technical aspects of the maintenance or alteration of material; all 
matters related to research, development, engineering, test, and 
evaluation efforts within the Department of the Navy, including 
management of the appropriation, `Research, Development, Test and 
Evaluation, Navy'; oceanography; ocean engineering and closely related 
matters; and supervision of offices and organizations as assigned by the 
Secretary.
    (g) The General Counsel of the Navy is responsible for providing 
legal advice, counsel, and guidance to the Secretary and the other 
Civilian Executive Assistants on any matter that they may direct or that 
the General Counsel determines should be brought to their attention. The 
General Counsel is also responsible for providing all necessary legal 
advice, counsel, and guidance to the staffs of the Secretary and the 
other Civilian Executive Assistants; the supervision of the Office of 
the General Counsel; and such other duties as the Secretary may assign. 
The responsibilities of the General Counsel are not intended to infringe 
upon, or interfere with, the responsibilities of the Judge Advocate 
General for the administration of military justice and such other 
matters as may be assigned to that officer by statute or by the 
Secretary.
    (h) The Deputy Under Secretary of the Navy is responsible to the 
Secretary or Under Secretary for acting as a focal point and coordinator 
for the resolution of problems which require high-level special 
attention. In addition, the Deputy Under Secretary is the major claimant 
for funds and manpower supporting the Department of the Navy 
Secretariat, Staff Offices, and the Department of the Navy General Gift 
Fund. The Deputy Under Secretary is responsible for general over-sight, 
policy and procedure formulation and coordination regarding 
environmental matters affecting the Department of the Navy, with the 
exception of occupational health and safety and employee working 
conditions.
[39 FR 7135, Feb. 25, 1974, as amended at 45 FR 80277, Dec. 4, 1980]



Sec. 700.204  The staff assistants.

    The Staff Assistants to the Secretary of the Navy are the Chief of 
Information; the Chief of Legislative Affairs; the Director, Office of 
Program Appraisal; and the heads of such other offices and boards as may 
be established by law or by the Secretary for the purpose of assisting 
the Secretary or one or more of the Civilian Executive Assistants in the 
administration of the Department of the Navy. The foregoing shall 
supervise all functions and activities internal to their offices and 
assigned shore activities, if any, and shall be responsible to the 
Secretary or to one of the Civilian Executive Assistants for the 
utilization of resources by and the operating efficiency of all 
activities under their supervision. The duties of the individual Staff 
Assistants and their respective offices will be as provided by law or as 
assigned by the Secretary.
[39 FR 7135, Feb. 25, 1974, as amended at 45 FR 80278, Dec. 4, 1980]

[[Page 15]]



Sec. 700.205  The Chief of Naval Research, The Judge Advocate General, The Deputy Comptroller of the Navy.

    The Chief of Naval Research shall command the Office of Naval 
Research and assigned shore activities. The Judge Advocate General shall 
command the Office of the Judge Advocate General and assigned shore 
activities. The Deputy Comptroller of the Navy shall command the Office 
of the Comptroller of the Navy and assigned shore activities. Each of 
them shall be responsible to the Secretary of the Navy or to one of the 
Civilian Executive Assistants, as assigned, for the utilization of 
resources by and the operating efficiency of all activities under their 
respective commands. The duties of the Chief of Naval Research, the 
Judge Advocate General, and the Comptroller of the Navy will be as 
provided by law or as assigned by the Secretary.
[39 FR 7135, Feb. 25, 1974, as amended at 45 FR 80278, Dec. 4, 1980]



Sec. 700.206  Authority over organizational matters.

    Subject to the approval of the Secretary of the Navy or guidance 
hereafter furnished by him, the Civilian Executive Assistants, the Chief 
of Naval Operations, the Commandant of the Marine Corps, the Chief of 
Naval Research, the Judge Advocate General, the Deputy Comptroller of 
the Navy, and the Staff Assistants are individually authorized to 
organize, assign, and reassign responsibilities within their respective 
commands or offices in the organization of the Department of the Navy, 
including the establishment and disestablishment of such component 
organizations as may be necessary, subject to the following:
    (a) The authority to disestablish may not be exercised with respect 
to any organizational component of the Department established by law.
    (b) The Secretary retains the authority to approve the establishment 
of and disestablishment of shore activities, which will be done in 
accordance with procedures prescribed by the Secretary.
[39 FR 7135, Feb. 25, 1974, as amended at 45 FR 80278, Dec. 4, 1980]



                Subpart C--The Chief of Naval Operations



Sec. 700.301  Senior Military Officer of the Department of the Navy.

    (a) The Chief of Naval Operations is the senior military officer of 
the Department of the Navy, and takes precedence above all other 
officers of the naval service, except an officer of the naval service 
who is serving as Chairman of the Joint Chiefs of Staff.
    (b) The Chief of Naval Operations is the principal naval adviser to 
the President and to the Secretary of the Navy on the conduct of war, 
and the principal naval adviser and naval executive to the Secretary on 
the conduct of the activities of the Department of the Navy.
    (c) The Chief of Naval Operations is the Navy member of the Joint 
Chiefs of Staff and is responsible, in coordination with the Commandant 
of the Marine Corps, for keeping the Secretary of the Navy fully 
informed on matters considered or acted upon by the Joint Chiefs of 
Staff. In this capacity, he is responsible, under the President and the 
Secretary of Defense, for duties external to the Department of the Navy, 
as prescribed by law.
[39 FR 7135, Feb. 25, 1974, as amended at 45 FR 80278, Dec. 4, 1980]



Sec. 700.302  Succession to duties.

    The Vice Chief of Naval Operations, and then the officers of the 
Navy, eligible for command at sea, on duty in the office of the Chief of 
Naval Operations in the order of their seniority, shall, unless 
otherwise directed by the President, perform the duties of the Chief of 
Naval Operations during his absence, or disability, or in the event of a 
temporary vacancy in that office.



Sec. 700.303  Specific authority and duties of the Vice Chief of Naval Operations.

    (a) The Vice Chief of Naval Operations has such authority and duties 
with respect to the Department of the Navy as the Chief of Naval 
Operations, with the approval of the Secretary of the Navy, may delegate 
to or prescribe for him. Orders issued by the Vice Chief of Naval 
Operations in performing such duties have the same force

[[Page 16]]

and effect as those issued by the Chief of Naval Operations.
    (b) Orders issued by the Vice Chief of Naval Operations in 
performing other duties have the same force and effect as those issued 
by the Chief of Naval Operations.



Sec. 700.304  Authority and responsibility.

    (a) Internal to the administration of the Department of the Navy, 
the Chief of Naval Operations, under the direction of the Secretary of 
the Navy, shall command the Operating Forces of the Navy. The Chief of 
Naval Operations shall also command the Naval Material Command, the 
Bureau of Naval Personnel, and the Bureau of Medicine and Surgery. In 
addition, he shall command such shore activities as may be assigned to 
him by the Secretary. He shall be responsible to the Secretary for the 
utilization of resources by, and the operating efficiency of, all 
commands and activities under his command.
    (b) In addition, the Chief of Naval Operations has the following 
specific responsibilities:
    (1) To organize, train, equip, prepare, and maintain the readiness 
of Navy forces, including those for assignment to unified or specified 
commands for the performance of military missions as directed by the 
President, the Secretary of Defense, or the Joint Chiefs of Staff. Naval 
forces, when assigned to a unified or specified command, are under the 
full operational command of the commander to whom they are assigned.
    (2) To determine and direct the efforts necessary to fulfill current 
and future requirements of the Navy (less Fleet Marine Forces and other 
assigned Marine Corps forces) for manpower, material, weapons, 
facilities, and services, including the determination of quantities, 
military performance requirements, and times, places, and priorities of 
need.
    (3) To exercise leadership in maintaining a high degree of 
competence among Navy officer and enlisted and civilian personnel in 
necessary fields of specialization, through education, training, and 
equal opportunities for personal advancement, and maintaining the morale 
and motivation of Navy personnel and the prestige of a Navy career.
    (4) To plan and provide health care for personnel of the naval 
service and their dependents.
    (5) To direct the organization, administration, training, and 
support of the Naval Reserve.
    (6) To inspect and investigate components of the Department of the 
Navy to determine and maintain efficiency, discipline, readiness, 
effectiveness, and economy, except in those areas where such 
responsibility rests with the Commandant of the Marine Corps.
    (7) To determine the needs of naval forces and activities for 
research, development, test, and evaluation; to plan and provide for the 
conduct of development, test, and evaluation which are adequate and 
responsive to long-range objectives, immediate requirements, and fiscal 
limitations; and to provide assistance to the Assistant Secretary of the 
Navy (Research and Development) in the direction, review, and appraisal 
of the overall Navy RDT&E Program to insure fulfillment of stated 
requirements.
    (8) To formulate Navy strategic plans and policies and participate 
in the formulation of joint and combined strategic plans and policies 
and related command relationships.
    (9) To budget for commands, bureaus, and offices assigned to the 
command of the Chief of Naval Operations, and other activities and 
programs as assigned, except as may be otherwise directed by the 
Secretary of the Navy.
    (c) The Chief of Naval Operations, under the direction of the 
Secretary of the Navy, shall (except for those areas wherein such 
responsibility rests with the Commandant of the Marine Corps) exercise 
overall authority throughout the Department of the Navy in matters 
related to the effectiveness of the support of the Operating Forces of 
the Navy, the coordination and direction of assigned Navy-wide programs 
and functions including those assigned by higher authority, the 
coordination of activities of the Department of the Navy in matters 
concerning effectiveness, efficiency, and economy, and matters essential 
to naval military administration, such as security, intelligence, 
discipline, communications, and matters

[[Page 17]]

related to the customs and traditions of the naval service.



Sec. 700.305  Naval Vessel Register, classification of naval craft, and status of ships and service craft.

    (a) The Chief of Naval Operations shall be responsible for the Naval 
Vessel Register (except the Secretary of the Navy shall strike vessels 
from the Register) and the assignment of classification for 
administrative purposes to water-borne craft and the designation of 
status for each ship and service craft. The classification of water-
borne craft and the status of ships and service craft are found in the 
glossary.
    (b) Commissioned vessels and craft shall be called ``United States 
Ship ----'' or ``U.S.S. ----''.
    (c) Civilian manned ships of the Military Sealift Command or other 
commands designated ``active status, in service'' shall be called 
``United States Naval Ship ----'' or ``U.S.N.S. ----''.
    (d) Ships and service craft designated ``active status, in 
service,'' except those described by paragraph c of this article, shall 
be referred to by name, when assigned, classification, and hull number 
(e.g., ``HIGHPOINT PCH-1'' or ``YOGN-8'').
    (e) The Chief of Naval Operations shall designate hospital ships and 
medical aircraft as he deems necessary. Such designation shall be in 
compliance with the Geneva Convention for the Amelioration of the 
Conditions of Wounded, Sick and Shipwrecked Members of the Armed Forces 
at Sea of 12 August 1949 and he shall ensure compliance with the notice 
provisions of that Convention.
[39 FR 7135, Feb. 25, 1974, as amended at 45 FR 80278, Dec. 4, 1980]



Sec. 700.306  The Chief of Naval Material.

    The Chief of Naval Material, under the command of the Chief of Naval 
Operations, shall command the Naval Material Command. In addition to the 
tasks which may be assigned by the Chief of Naval Operations, he shall:
    (a) Provide direct staff assistance to the Secretary of the Navy and 
the Civilian Executive Assistants in matters pertaining to contracting, 
procurement, production and exploratory development, laboratories 
assigned to the Chief of Naval Material and to related matters. In these 
areas, the Chief of Naval Material shall inform the Chief of Naval 
Operations and, when appropriate, the Commandant of the Marine Corps in 
matters of policy and significant actions.
    (b) Be responsive directly to the Commandant of the Marine Corps in 
providing necessary planning and programming data requirements and in 
meeting those particular material support needs of the U.S. Marine Corps 
which are required to be provided by the Naval Material Command.
    (c) Provide the Commandant of the Marine Corps with timely advice 
concerning training and technical requirements essential for the 
operation and maintenance by Marine Corps personnel of new equipment 
under development.
    (1) Be responsive to the heads of other organizations in meeting 
their material support needs which are provided by the Naval Material 
Command.
    (2) Provide guidance to Navy and Marine Corps Commands, as required, 
on functional areas related to Naval Material Command acquisition and 
logistics support responsibilities and other technical or professional 
matters as appropriate.



Sec. 700.307  The Chief of Naval Personnel and the Chief, Bureau of Medicine and Surgery.

    The Chief of Naval Personnel, under the command of the Chief of 
Naval Operations, shall command the Bureau of Naval Personnel. The 
Chief, Bureau of Medicine and Surgery, (who is also the Surgeon General 
of the Navy), under the command of the Chief of Naval Operations, shall 
command the Bureau of Medicine and Surgery. In addition to the tasks 
which may be assigned by the Chief of Naval Operations, they shall:
    (a) Be responsive directly to the Commandant of the Marine Corps in 
meeting those particular needs of the United States Marine Corps which 
are required to be provided by their respective bureaus.
    (b) Be responsive to the heads of other organizations in meeting the 
particular needs of such organizations which are provided by the Chief 
of

[[Page 18]]

Naval Personnel and the Chief, Bureau of Medicine and Surgery.



Sec. 700.308  Naval Inspector General.

    There is in the Office of the Chief of Naval Operations the Office 
of the Naval Inspector General. The Naval Inspector General, when 
directed, shall inquire into and report upon any matter which affects 
the discipline or military efficiency of the Department of the Navy; 
however, the Secretary of the Navy shall direct inquiry when such 
matters are related to the Marine Corps. He shall make such inspections, 
investigations, and reports as the Secretary of the Chief of Naval 
Operations directs. The Naval Inspector General shall periodically 
propose programs of inspections to the Chief of Naval Operations and 
shall recommend additional inspections or investigations as may appear 
appropriate.



Sec. 700.309  Commander in Chief; U.S. Atlantic Fleet.

    (a) The Commander in Chief of U.S. Atlantic Fleet is a naval 
commander in chief of the Operating Forces of the Navy under the command 
of the Chief of Naval Operations. He shall command the U.S. Atlantic 
Fleet and is responsible for the administration, training, maintenance, 
support and readiness of the Atlantic Fleet including those forces 
temporarily assigned to the operational command of other commanders.
    (b) The Commander in Chief U.S. Atlantic Fleet is a naval component 
commander of the unified command under the Commander in Chief, Atlantic.
    (c) The organization of the Atlantic Fleet, the forces assigned and 
their employment shall be as specified by the Chief of Naval Operations 
except for the employment of forces assigned to the operational command 
of unified and specified commanders.



Sec. 700.310  Commander in Chief, U.S. Pacific Fleet.

    (a) The Commander in Chief U.S. Pacific Fleet is a naval commander 
in chief of the Operating Forces of the Navy under the command of the 
Chief of Naval Operations. He shall command the U.S. Pacific Fleet and 
is responsible for the administration, training, maintenance, support 
and readiness of the Pacific Fleet, including those forces temporarily 
assigned to the operational command of other commanders.
    (b) The Commander in Chief U.S. Pacific Fleet is a naval component 
commander of the unified command under the Commander in Chief, Pacific.
    (c) The organization of the Pacific Fleet, the forces assigned and 
their employment shall be as specified by the Chief of Naval Operations 
except for the employment of forces assigned to the operational command 
of unified and specified commanders.



Sec. 700.311  Commander in Chief; U.S. Naval Forces, Europe.

    (a) The Commander in Chief U.S. Naval Forces, Europe is a naval 
commander in chief of the Operating Forces of the Navy under the command 
of the Chief of Naval Operations. He shall represent the Chief of Naval 
Operations for U.S. naval matters in the general areas of Europe, North 
Africa, and the Middle East. He shall command those forces assigned by 
the Chief of Naval Operations or by other naval commanders.
    (b) The Commander in Chief U.S. Naval Forces, Europe is the naval 
component commander of the unified command under the Commander in Chief, 
U.S. European Command.



Sec. 700.312  Commander, Military Sealift Command.

    (a) The Commander, Military Sealift Command is a naval commander of 
the Operating Forces of the Navy under the command of the Chief of Naval 
Operations. He shall provide ocean transportation for personnel and 
cargo of the Department of Defense (excluding that transported by units 
of the fleet) in accordance with policies and procedures of the Single 
Manager for Ocean Transportation (Secretary of the Navy) and the 
Secretary of Defense. He shall also operate ships in support of 
scientific projects and other programs for agencies or departments of 
the United States.
    (b) The Military Sealift Command shall operate and maintain 
government owned ships and augment operational

[[Page 19]]

capability by shipping cargo and passengers on commercially operated 
ships, chartering ships, and exercising operational control over ships 
activated from National Defense Reserve Fleet to meet emergency needs.



Sec. 700.313  Commander, Naval Intelligence Command.

    The Commander, Naval Intelligence Command, under the command of the 
Chief of Naval Operations, shall be responsible for directing and 
managing the activities of the Naval Intelligence Command to insure 
fulfillment of the intelligence, counterintelligence, investigative, and 
security requirements of the Department of the Navy.



Sec. 700.314  Commander, Naval Telecommunications Command.

    The Commander, Naval Telecommunications Command, under the command 
of the Chief of Naval Operations, shall exercise overall responsibility 
throughout the Department of the Navy for the coordination of the 
provision, operation, and maintenance of adequate and secure naval 
communications.
[41 FR 18074, Apr. 30, 1976]



Sec. 700.315  Oceanographer of the Navy.

    The Oceanographer of the Navy, within the Office of the Chief of 
Naval Operations, performs functions relating to external interfaces 
with national and international oceanographic organizations and bodies.
[39 FR 7135, Feb. 25, 1974, as amended at 45 FR 80278, Dec. 4, 1980]



Sec. 700.316  Commander, Naval Oceanography Command.

    The Commander, Naval Oceanography Command, under the command of the 
Chief of Naval Operations, shall be responsible for the management of 
assigned oceanographic, mapping, charting, geodetic and meteorological 
activities and efforts and shall provide technical guidance in such 
matters throughout the Department of the Navy.
[45 FR 80278, Dec. 4, 1980]



Sec. 700.317  Commander, Naval Security Group Command.

    The Commander, Naval Security Group Command, under the command of 
the Chief of Naval Operations, shall be responsible for the provision, 
operation, and maintenance of an adequate Naval Security Group and shall 
perform cryptologic and related functions.



Sec. 700.318  Chief of Naval Education and Training.

    The Chief of Naval Education and Training, under the command of the 
Chief of Naval Operations, shall be responsible for the training of Navy 
personnel, other than training assigned by the Chief of Naval Operations 
to other authorities, and for the training of Marine Corps aviation 
personnel.
[41 FR 18074, Apr. 30, 1976]



Sec. 700.319  Chief of Naval Reserve.

    The Chief of Naval Reserve, under the command of the Chief of Naval 
Operations, shall be responsible for the administration of Naval Reserve 
programs, the management of Naval Reserve resources, and for logistic 
support of the Marine Corps air program.



Sec. 700.320  Commandants of Naval Districts.

    (a) The Commandants of Naval Districts, under the command of the 
Chief of Naval Operations shall represent the Secretary of the Navy and 
the Chief of Naval Operations in such matters as may be assigned; to 
exercise area coordination authority and supervise and direct the 
effective execution of assigned area coordination responsibilities over 
all naval shore activities and personnel in the Naval Service in the 
naval district; to exercise command of assigned naval shore activities; 
to coordinate fleet support matters as assigned by Fleet Commanders in 
Chief; and to coordinate public affairs matters throughout the naval 
district and to perform such other functions as may be directed by the 
Chief of Naval Operations.
[41 FR 18074, Apr. 30, 1976, and 45 FR 80278, Dec. 4, 1980]

[[Page 20]]



Sec. 700.321  President, Board of Inspection and Survey.

    The President of the Board of Inspection and Survey, assisted by 
such other officers and such permanent and semipermanent sub-boards as 
may be designated by the Secretary of the Navy, shall:
    (a) Conduct acceptance trials and inspections of all ships and 
service craft prior to acceptance for naval service.
    (b) Conduct acceptance trials and inspections on one or more 
aircraft of each type or model prior to final acceptance for naval 
service.
    (c) Examine at least once every three years, if practicable, each 
naval ship to determine its material condition and, if found unfit for 
continued service, report to higher authority.
    (d) Perform such other inspections and trials of naval ships, 
service craft, and aircraft as may be directed by the Chief of Naval 
Operations.



              Subpart D--The Commandant of the Marine Corps



Sec. 700.401  Senior officer of the Marine Corps.

    (a) The Commandant of the Marine Corps is the senior officer of the 
United States Marine Corps.
    (b) The Commandant of the Marine Corps is the Marine Corps member of 
the Joint Chiefs of Staff and is responsible, in coordination with the 
Chief of Naval Operations, for keeping the Secretary of the Navy fully 
informed on matters considered or acted upon by the Joint Chiefs of 
Staff. In this capacity, he is responsible, under the President and the 
Secretary of Defense, for duties external to the Department of the Navy, 
as prescribed by law.
[39 FR 7135, Feb. 25, 1974, as amended at 45 FR 80278, Dec. 4, 1980]



Sec. 700.402  Succession to duties.

    The Assistant Commandant of the Marine Corps, and then the officers 
of the Marine Corps, not restricted in the performance of duty, on duty 
at the headquarters of the Marine Corps in the order of their seniority, 
shall, unless otherwise directed by the President, perform the duties of 
the Commandant of the Marine Corps during his absence, disability, or in 
the event of a temporary vacancy in that office.



Sec. 700.403  Authority and responsibilities.

    (a) The Commandant of the Marine Corps, under the direction of the 
Secretary of the Navy, shall command the United States Marine Corps, 
which shall include Headquarters, United States Marine Corps; the 
Operating Forces of the Marine Corps; Marine Corps Supporting 
Establishments and the Marine Corps Reserve.
    (b) The Commandant of the Marine Corps advises the Secretary of the 
Navy on matters pertaining to the Marine Corps. He is directly 
responsible to the Secretary for the administration, discipline, 
internal organization, training, requirements, efficiency, and readiness 
of the Marine Corps; for the operation of the Marine Corps material 
support system; and the total performance of the Marine Corps. He shall 
command such shore activities as may be assigned by the Secretary, and 
is responsible to the Secretary for the utilization of resources by and 
the operating efficiency of all activities under his command. When 
performing these functions, the Commandant is not a part of the command 
structure of the Chief of Naval Operations. There must, however, be a 
close cooperative relationship between the Chief of Naval Operations, as 
the senior military officer of the Department of the Navy, and the 
Commandant, as the one having command responsibility over the Marine 
Corps.
    (c) The Commandant of the Marine Corps is directly responsible to 
the Chief of Naval Operations for the organization, training, and 
readiness of those elements of the Operating Forces of the Marine Corps 
assigned to the Operating Forces of the Navy. Such Marine Corps forces, 
when so assigned, are subject to the command exercised by the Chief of 
Naval Operations over the Operating Forces of the Navy. Likewise, 
members or organizations of the Navy, when assigned to the Marine Corps, 
are subject to the command of the Commandant of the Marine Corps.

[[Page 21]]



Sec. 700.404  Specific responsibilities.

    In addition, the Commandant of the Marine Corps has the following 
specific responsibilities:
    (a) To plan for and determine the support needs of the Marine Corps 
for equipment, weapons or weapons systems, materials, supplies, 
facilities, maintenance, and supporting services. This responsibility 
includes the determination of Marine Corps characteristics of equipment 
and material to be procured or developed, and the training required to 
prepare Marine Corps personnel for combat. It also includes the 
operation of the Marine Corps Material Support System.
    (b) To budget for the Marine Corps, except as may be otherwise 
directed by the Secretary of the Navy.
    (c) To develop, in coordination with other military services, the 
doctrines, tactics, and equipment employed by landing forces in 
amphibious operations.
    (d) To formulate Marine Corps strategic plans and policies and 
participate in the formulation of joint and combined strategic plans and 
policies and related command relationships.
    (e) To plan for and determine the present and future needs, both 
quantitative and qualitative, for personnel, including reserve personnel 
and civilian personnel, of the United States Marine Corps. This includes 
responsibility for leadership in maintaining a high degree of competence 
among Marine Corps officers and enlisted personnel and Marine Corps 
civilian personnel in necessary fields of specialization through 
education, training, and equal opportunities for personal advancement; 
and for leadership in maintaining the morale and motivation of Marine 
Corps personnel and the prestige of a career in the Marine Corps.
    (f) To plan for and determine development requirements of the Marine 
Corps. To provide for the development, test, and evaluation of new 
weapon systems and equipment, to ensure that such are adequate and 
responsive to immediate and long-range objectives and are within 
available resources. To provide direct staff assistance to the Assistant 
Secretary of the Navy (Research and Development) in the direction, 
review, and appraisal of the overall USMC RDT&E Program.
    (g) To plan for and determine the needs for health care for 
personnel of the Marine Corps and their dependents.



Sec. 700.405  Composition of the Marine Corps.

    (a) The major components of the regular establishment of the Marine 
Corps consist principally of the Headquarters of the Marine Corps, the 
Operating Forces, and the Supporting Establishment. In addition, there 
is another element of the Marine Corps, the Marine Corps Reserve.
    (b) The Operating Forces of the Marine Corps include the Fleet 
Marine Forces, detachments afloat, and security forces. There are two 
Fleet Marine Forces: Fleet Marine Force, Atlantic, and Fleet Marine 
Force, Pacific. These Fleet Marine Forces are assigned to, and are 
integral to, the U.S. fleets as part of the Operating Forces of the 
Navy.
    (c) The Supporting Establishment includes those Marine Corps 
facilities, such as Marine Corps schools, recruit depots, supply 
installations, bases, barracks, air stations and other miscellaneous 
small activities which train, maintain, and support the Operating Forces 
of the Marine Corps.
    (d) The Marine Corps Reserve has as its mission to provide a trained 
force of qualified officers and enlisted personnel to be available for 
active duty in the U.S. Marine Corps in time of war or national 
emergency.



Sec. 700.406  Relationships between the Commandant of the Marine Corps and the Chief of Naval Material.

    Formal operating relationships with respect to the efforts of 
determining needs and providing support between the Commandant of the 
Marine Corps and his organization and the Chief of Naval Material and 
his organization shall be governed by the following principles:
    (a) The Commandant of the Marine Corps shall express to the Chief of 
Naval Material those Marine Corps material needs which are to be 
provided by the Naval Material Command. With respect to the development 
of material items, the Commandant of the Marine

[[Page 22]]

Corps shall specify the military performance required to meet Marine 
Corps needs.
    (b) The Chief of Naval Material shall advise the Commandant of the 
Marine Corps as to the economic and technological feasibility of meeting 
such needs, and shall keep the Commandant informed of new capabilities 
to meet the needs of the Marine Corps which may or may not have been 
previously expressed. With respect to the development of material items, 
the Chief of Naval Material shall determine the technical effort 
necessary to satisfy the needs of the Marine Corps.
    (c) The Commandant of the Marine Corps shall select the work to be 
done to satisfy the needs of the Marine Corps, based upon feasibility 
data and current estimates of the worth of a particular need in relation 
to other desirable needs, including, where necessary, the curtailment or 
cancellation of work already in progress in favor of work which offers 
greater promise or greater military worth.
    (d) The Chief of Naval Material shall exercise appropriate 
supervision over accomplishment of the work selected, and shall insure 
that resources available to him are efficiently utilized in meeting 
Marine Corps needs.
    (e) Work being accomplished shall be reviewed concurrently by the 
Commandant of the Marine Corps from the viewpoint of readiness and 
military worth, and by the Chief of Naval Material from the viewpoint of 
progress and the efficient utilization of resources available to him.



Sec. 700.407  Serving with the Army by order of the President.

    (a) When Marine Corps units are, by order of the President, detached 
for service with the Army, the Commandant of the Marine Corps is, for 
the time that the Marine Corps units are thus detached and for the 
purposes of administering the affairs of such units, responsible to the 
Secretary of the Army. The Commandant of the Marine Corps shall retain 
such control and jurisdiction over said detached forces as will enable 
him to make the necessary transfers of officers and men from and to the 
commands, and to exercise general supervision over all expenditures and 
supplies needed for the support of the Marine Corps forces so detached. 
He shall be responsible to the Secretary of the Army for the general 
efficiency and discipline of such units of the Marine Corps as are 
detached for service with the Army.
    (b) Official correspondence which relates exclusively to the routine 
business of the Marine Corps and does not involve questions of 
administrative responsibility under the supervision of the commanding 
officer of the combined forces, and which is not a matter of a military 
nature pertaining to an individual requiring the action of said 
commanding officer, shall be forwarded direct between the Headquarters 
of the Marine Corps and the senior Marine officer serving with the 
detached forces.
    (c) All official correspondence regarding the personnel of the 
Marine Corps units on duty with the Army shall be addressed to the 
proper representative of the Marine Corps and forwarded via the Adjutant 
General of the Army.



Subpart E--The United States Coast Guard (When Operating As a Service of 
                                the Navy)



Sec. 700.501  Relationship and operation as a service in the Navy.

    (a) Upon declaration of war or when the President directs, the Coast 
Guard shall operate as a service in the Navy, and shall be subject to 
the orders of the Secretary of the Navy. While so operating as a service 
in the Navy and to the extent practicable Coast Guard operations shall 
be integrated and uniform with Navy operations.
    (b) Whenever the Coast Guard operates as a service in the Navy:
    (1) Applicable appropriations of the Coast Guard to cover expenses 
shall be available for transfer to the Department of the Navy and 
supplemented, as required, from applicable appropriations of the 
Department of the Navy.
    (2) Personnel of the Coast Guard shall be eligible to receive 
gratuities, medals, and other insignia of honor on the same basis as 
personnel in the naval service or serving in any capacity with the Navy.

[[Page 23]]



Sec. 700.502  Commandant of the Coast Guard.

    (a) The Commandant of the Coast Guard is the senior officer of the 
United States Coast Guard.
    (b) When reporting in accordance with section 3, title 14 U.S.C., to 
the Secretary of the Navy, the Commandant of the Coast Guard will 
further report to the Chief of Naval Operations for military functions. 
The Chief of Naval Operations shall represent the Coast Guard as a 
member of the Joint Chiefs of Staff.



Sec. 700.503  Duties and responsibilities.

    In exercising command over the Coast Guard while operating as a 
service of the Navy, the Commandant shall:
    (a) Organize, train, prepare and maintain the readiness of the Coast 
Guard to function as a specialized service in the Navy for the 
performance of military missions, as directed.
    (b) Plan for and determine the present and future needs of the Coast 
Guard, both quantitative and qualitative, for personnel, including 
reserve personnel.
    (c) Budget for the Coast Guard, except as may be otherwise directed 
by the Secretary of the Navy.
    (d) Plan for and determine the support needs of the Coast Guard for 
equipment, materials, weapons or weapons systems, supplies, facilities, 
maintenance, and supporting services.
    (e) Exercise essential military administration of the Coast Guard. 
This includes, but is not limited to, such matters as security, 
discipline, intelligence, communications, personnel records and 
accounting conforming, as practicable, to Navy procedures.
    (f) Enforce or assist in enforcing Federal laws on the high seas and 
on waters subject to the jurisdiction of the United States.
    (g) Administer, promulgate and enforce regulations for the promotion 
of safety of life and property on the high seas and on waters subject to 
the jurisdiction of the United States. This applies to those matters not 
specifically delegated by law to some other executive department.
    (h) Develop, establish, maintain and operate, with due regard to the 
requirements of national defense, aids to maritime navigation, ice 
breaking facilities, and rescue facilities for the promotion of safety 
on and over the high seas and waters subject to the jurisdiction of the 
United States.
    (i) Engage in oceanographic research on the high seas and in waters 
subject to the jurisdiction of the United States in coordination with 
the Office of the Oceanographer of the Navy.
    (j) Continue in effect under the Secretary of the Navy those other 
functions, powers and duties vested in him by appropriate orders and 
regulations of the Secretary of Transportation on the day prior to the 
effective date of transfer of the Coast Guard to the Department of the 
Navy until specifically modified or terminated by the Secretary of the 
Navy.



           Subpart F--Commanders in Chief and Other Commanders



Sec. 700.601  Titles of commanders.

    (a) The commander of a principal organization of the Operating 
Forces of the Navy, as determined by the Chief of Naval Operations, or 
the officer who has succeeded to such command as provided elsewhere in 
these regulations, shall have the title ``Commander in Chief.'' The name 
of the organization under his command shall be added to form his 
official title.
    (b) The commander of each other organization of units of the 
Operating Forces of the Navy, or organization of units of shore 
activities, shall have the title ``Commander,'' ``Commandant,'' 
``Commanding General,'' or other appropriate title. The name of the 
organization under his command shall be added to form his official 
title.



Sec. 700.602  Responsibility and authority of a commander.

    (a) A commander shall be responsible for the satisfactory 
accomplishment of the mission and duties assigned to his command. His 
authority shall be commensurate with his responsibilities. Normally, he 
shall exercise authority through his immediate subordinate commanders; 
but he may communicate directly with any of his subordinates.
    (b) A commander shall insure that subordinate commands are fully 
aware of the importance of strong, dynamic

[[Page 24]]

leadership and its relationship to the overall efficiency and readiness 
of naval forces. A commander shall exercise positive leadership and 
actively develop the highest qualities of leadership in persons with 
positions of authority and responsibility throughout his command.
    (c) Subject to orders of higher authority, a commander shall issue 
such regulations and instructions as may be necessary for the proper 
administration and operation of his command.
    (d) A commander shall hold the same relationship to his flagship, or 
to a shore activity of his command in which his headquarters may be 
located, in regard to its internal administration and discipline, as to 
any other ship or shore activity of his command.



Sec. 700.603  To announce assumption of command.

    Upon assuming command, a commander shall so advise appropriate 
superiors, and the units of his command. When appropriate to his command 
he shall also advise the senior commanders of other United States armed 
services and officials of other Federal agencies and foreign governments 
located within the area encompassed by his command, concerning his 
assumption of command.



Sec. 700.604  Readiness.

    A commander shall take all practicable steps to maintain his command 
in a state of readiness to perform its mission. In conformity with the 
orders and policies of higher authority, he shall:
    (a) Organize the forces and resources under his command and assign 
duties to his principal subordinate commanders.
    (b) Prepare plans for the employment of his forces to meet existing 
and foreseeable situations.
    (c) Collaborate with the commanders of other United States armed 
services and with appropriate officials of other Federal agencies and 
foreign governments located within the area encompassed by his command.
    (d) Maintain effective intelligence and keep himself informed of the 
political and military aspects of the national and international 
situation.
    (e) Make, or cause to be made, such inspections as necessary to 
ensure the readiness, effectiveness, and efficiency of the components of 
his command.



Sec. 700.605  Observance of international law.

    At all times a commander shall observe, and require his command to 
observe, the principles of international law. Where necessary to 
fulfillment of this responsibility, a departure from other provisions of 
Navy Regulations is authorized.



                    Subpart G--The Commanding Officer



Sec. 700.701  Applicability.

    In addition to commanding officers, the provisions of this chapter 
shall apply, where pertinent, to aircraft commanders, officers in charge 
(including warrant officers and petty officers when so detailed) and 
those persons standing the command duty.



Sec. 700.702  Responsibility.

    (a) The responsibility of the commanding officer for his command is 
absolute, except when, and to the extent, relieved therefrom by 
competent authority, or as provided otherwise in these regulations. The 
authority of the commanding officer is commensurate with his 
responsibility. While he may, at his discretion, and when not contrary 
to law or regulations, delegate authority to his subordinates for the 
execution of details, such delegation of authority shall in no way 
relieve the commanding officer of his continued responsibility for the 
safety, well-being, and efficiency of his entire command.
    (b) A commanding officer who departs from his orders or 
instructions, or takes official action which is not in accordance with 
such orders or instructions, does so upon his own responsibility and 
shall report immediately the circumstances to the officer from whom the 
prior orders or instructions were received.
    (c) The commanding officer shall be responsible for economy within 
his command. To this end he shall require from his subordinates a rigid 
compliance with the regulations governing

[[Page 25]]

the receipt, accounting, and expenditure of public money and materials, 
and the implementation of improved management techniques and procedures.
    (d) The commanding officer and his subordinates shall exercise 
leadership through personal example, moral responsibility, and judicious 
attention to the welfare of persons under their control or supervision. 
Such leadership shall be exercised in order to achieve a positive, 
dominant influence on the performance of persons in the Department of 
the Navy.



Sec. 700.703  [Reserved]



Sec. 700.704  Organization of commands.

    All commands and other activities of the Department of the Navy 
shall be organized and administered in accordance with law, the Navy 
Regulations, and the orders of competent authority, and all orders and 
instructions of the commanding officer shall be in accordance therewith.



Secs. 700.705-700.708  [Reserved]



Sec. 700.709  Unauthorized persons on board.

    The commanding officer shall satisfy himself that there is no 
unauthorized person on board before proceeding to sea or commencing a 
flight.



Sec. 700.710  Control of passengers.

    (a) Control of passage in and protracted visits to aircraft and 
ships of the Navy by all persons, within or without the Department of 
the Navy, shall be exercised by the Chief of Naval Operations.
    (b) Nothing in this article shall be interpreted as prohibiting the 
senior officer present from authorizing the passage in ships and 
aircraft of the Navy by such persons as he judges necessary in the 
public interest or in the interest of humanity. The senior officer 
present shall report the circumstances to the Chief of Naval Operations 
when he gives such authorization.



Sec. 700.711  Authority over passengers.

    Except as otherwise provided in these regulations or in orders from 
competent authority, all passengers in a ship or aircraft of the naval 
service are subject to the authority of the commanding officer and shall 
conform to the internal regulations and routine of the ship or aircraft. 
The commanding officer of such ship or aircraft shall take no 
disciplinary action against a passenger not in the naval service, other 
than that authorized by law; but he may, when he deems such action to be 
necessary for the safety of the ship or aircraft or of any persons 
embarked, subject a passenger not in the naval service to such restraint 
as the circumstances require until such time as delivery to the proper 
authorities is possible. A report of the matter shall be made to an 
appropriate superior of the passenger.



Sec. 700.712  [Reserved]



Sec. 700.713  Person found under incriminating circumstances.

    (a) The commanding officer shall keep under restraint or 
surveillance, as necessary, any person not in the armed services of the 
United States who is found under incriminating or irregular 
circumstances within the command, and shall immediately initiate an 
investigation.
    (b) Should an investigation indicate that such person is not a 
fugitive from justice or has not committed or attempted to commit an 
offense, he shall be released at the earliest opportunity, except:
    (1) If not a citizen of the United States, and the place of release 
is under the jurisdiction of the United States, the nearest federal 
immigration authorities shall be notified as to the time and place of 
release sufficiently in advance to permit them to take such steps as 
they deem appropriate.
    (2) Such persons shall not be released in territory not under the 
jurisdiction of the United States without first obtaining the consent of 
the proper foreign authorities, except where the investigation shows 
that he entered the command from territory of the foreign state, or that 
he is a citizen or subject of that state.

[[Page 26]]

    (c) If the investigation indicates that such person has committed or 
attempted to commit an offense punishable under the authority of the 
commanding officer, the latter shall take such action as he deems 
necessary.
    (d) If the investigation indicates that such a person is a fugitive 
from justice, or has committed or attempted to commit an offense which 
requires actions beyond the authority of the commanding officer, he 
shall, at the first opportunity, deliver such person, with full 
descriptive data, fingerprints, and a statement of the circumstances to 
the proper civil authorities.
    (e) A report shall be made promptly to the Secretary of the Navy, in 
all cases under paragraph 4 of this article, and in other cases where 
appropriate.
[39 FR 7135, Feb. 25, 1974, as amended at 41 FR 21775, May 28, 1976]



Sec. 700.714  Rules for visits.

    (a) Commanding officers are responsible for the control of visitors 
to their commands and shall comply with the relevant provisions of the 
Department of the Navy Security Manual for Classified Information and 
other pertinent directives.
    (b) Commanding officers shall take such measures and impose 
restrictions on visitors as necessary to safeguard the classified 
material under their jurisdiction. Arrangements for general visiting 
shall always be based on the assumption that foreign agents will be 
among the visitors.
    (c) Commanding officers and others officially concerned shall 
exercise reasonable care to safeguard the persons and property of 
visitors to naval activities as well as taking those necessary 
precautions to safeguard the persons and property within his command.



Sec. 700.715  Dealers, tradesmen, and agents.

    (a) In general, dealers or tradesmen or their agents shall not be 
admitted within a command, except as authorized by the commanding 
officer:
    (1) To conduct public business.
    (2) To transact specific private business with individuals at the 
request of the latter.
    (3) To furnish services and supplies which are necessary and are not 
otherwise, or are insufficiently, available to the personnel of the 
command.
    (b) Personal commercial solicitation and the conduct of commercial 
transactions are governed by policies of Department of Defense.



Sec. 700.716  Marriages on board.

    The commanding officer shall not perform a marriage ceremony on 
board his ship or aircraft. He shall not permit a marriage ceremony to 
be performed on board when the ship or aircraft is outside the territory 
of the United States, except:
    (a) In accordance with local laws and the laws of the state, 
territory, or district in which the parties are domiciled, and
    (b) In the presence of a diplomatic or consular official of the 
United States, who has consented to issue the certificates and make the 
returns required by the consular regulations.



Sec. 700.717  Postal matters.

    Commanding officers shall ensure that mail and postal funds are 
administered in accordance with instructions issued by the Postmaster 
General and approved for the naval service by the Chief of Naval 
Operations, and instructions issued by the Chief of Naval Operations or 
the Chief of Naval Personnel or the Commandant of the Marine Corps as 
appropriate; and that postal clerks or other persons authorized to 
handle mail perform their duties strictly in accordance with those 
instructions.



Secs. 700.718-700.719  [Reserved]



Sec. 700.720  Deaths.

    The commanding officer, in the event of death of any person within 
his command, shall ensure that the cause of death and the circumstances 
under which death occurred are established, and the appropriate casualty 
report is submitted.



Sec. 700.721  The American National Red Cross.

    (a) Pursuant to the request of the Secretary of the Navy and subject 
to such instructions as he may issue, the

[[Page 27]]

American National Red Cross is authorized to conduct a program of 
welfare, including social, financial, and medical and dental aid, for 
naval personnel; to assist in matters pertaining to prisoners of war; 
and to provide such other services as are appropriate functions for the 
Red Cross. The American National Red Cross is the only volunteer society 
authorized by the Government to render medical and dental aid to the 
armed forces of the United States. Other organizations desiring to 
render medical and dental aid may do so only through the Red Cross.
    (b) Requests for Red Cross services shall be made to the Chief of 
Naval Personnel or the Commandant of the Marine Corps or, in the case of 
medical services, to the Chief, Bureau of Medicine and Surgery.
    (c) Activities and personnel of the American National Red Cross in 
areas subject to naval jurisdiction shall conform to such administrative 
regulations as may be prescribed by appropriate naval authority.
    (d) Red Cross personnel shall be considered to have the status of 
commissioned officers, subject to such restrictions as may be imposed by 
the Chief of Naval Personnel or the Commandant of the Marine Corps.



Secs. 700.722-700.723  [Reserved]



Sec. 700.724  Maintenance of Logs.

    (a) A deck log and an engineering log shall be maintained by each 
ship in commission, and by such other ships and craft as may be 
designated by the Chief of Naval Operations.
    (b) A compass record shall be maintained as an adjunct to the deck 
log. An engineer's bell book shall be maintained as an adjunct to the 
engineering log.
    (c) The Chief of Naval Operations shall prescribe regulations 
governing the contents and preparation of the deck and engineering logs 
and adjunct records.
[41 FR 18074, Apr. 30, 1976]



Sec. 700.725  Status of Logs.

    The deck log, the engineering log, the compass record, and the 
engineer's bell book shall each constitute an official record of the 
command.
[41 FR 18074, Apr. 30, 1976]



Sec. 700.726  Records.

    The commanding officer shall require that records relative to 
personnel, material, and operations as required by current instructions 
are maintained properly by those responsible therefor.



Secs. 700.727-700.728  [Reserved]



Sec. 700.729  Delivery of personnel to civil authorities and service of subpoena or other process.

    (a) Commanding officers or other persons in authority shall not 
deliver any person in the naval service to civil authorities except as 
provided by the Manual of the Judge Advocate General.
    (b) Commanding officers are authorized to permit the service of 
subpoena on other process as provided by the Manual of the Judge 
Advocate General.



Secs. 700.730-700.732  [Reserved]



Sec. 700.733  Responsibility of a master of an in-service ship of the Military Sealift Command.

    In an in-service ship of the Military Sealift Command, the master is 
responsible for the safety of his ship and all persons on board. He is 
responsible for the safe navigation and technical operation of his ship 
and has paramount authority over all persons on board. The master is 
responsible for the preparation of the abandoned ship bill and has 
exclusive authority to order the ship abandoned. He has full authority 
to enforce appropriate laws of the United States and all applicable 
orders and regulations of the Navy, Military Sealift Command, and the 
Office of Personnel Management.
[39 FR 7135, Feb. 25, 1974, as amended at 47 FR 28370, June 30, 1982]



Sec. 700.734  Relations with merchant seamen.

    When in foreign waters, the commanding officer, with the approval of 
the senior officer present, may receive on board as supernumeraries for 
rations and passage:
    (a) Distressed seamen of the United States for passage to the United

[[Page 28]]

States, provided they bind themselves to be amenable in all respects to 
Navy Regulations.
    (b) As prisoners, seamen from merchant vessels of the United States, 
provided that the witnesses necessary to substantiate the charges 
against them are received, or adequate means adopted to ensure the 
presence of such witnesses on arrival of the prisoners at the place 
where they are to be delivered to the civil authorities.



Sec. 700.735  [Reserved]



Sec. 700.736  Physical security.

    (a) The commanding officer shall take action to protect and maintain 
the security of the command from the dangers of attack, sabotage or 
other actions of subversive or militant groups or of any person with 
intent to do harm.
    (b) The commanding officer shall take action to protect and maintain 
the security of the command against dangers from fire, windstorms, or 
other acts of nature.



Sec. 700.737  Effectiveness for service.

    The commanding officer shall:
    (a) Exert every effort to maintain his command in a state of maximum 
effectiveness for war or other service consistent with the degree of 
readiness as may be prescribed by proper authority. Effectiveness for 
service is directly related to state of personnel and material 
readiness.
    (b) Make himself aware of the progress of any repairs, the status of 
spares, repair parts and other components, personnel readiness and other 
factors or conditions that could lessen the effectiveness of his 
command. When the effectiveness is lessened appreciably it shall be 
reported to appropriate superiors.



Secs. 700.738-700.739  [Reserved]



Sec. 700.740  Search by foreign authorities.

    (a) The commanding officer shall not permit a ship under his command 
to be searched on any pretense whatsoever by any person representing a 
foreign state, nor permit any of the personnel within the confines of 
his command to be removed from the command by such person, so long as he 
has the capacity to repel such act. If force should be exerted to compel 
submission, he is to resist that force to the utmost of his power.
    (b) Except as may be provided by international agreement, the 
commanding officer of a shore activity shall not permit his command to 
be searched by any person representing a foreign state, nor permit any 
of the personnel within the confines of his command to be removed from 
the command by such person, so long as he has the power to resist.



Secs. 700.741-700.746  [Reserved]



Sec. 700.747  Status of boats.

    (a) Boats shall be regarded in all matters concerning the rights, 
privileges, and comity of nations as part of the ship or aircraft to 
which they belong.
    (b) In ports where war, insurrection or armed conflict exists or 
threatens, the commanding officer shall:
    (1) Require that boats away from the ship or aircraft have some 
appropriate and competent person in charge.
    (2) See that steps are taken to make their nationality evident at 
all times.



Sec. 700.748  [Reserved]



Sec. 700.749  Work, facilities, supplies, or services for other Government departments, State or local governments, foreign governments, private parties and 
          morale, welfare, and recreational activities.

    (a) Work may be done for or facilities, supplies, or services 
furnished to departments and agencies of the Federal and State 
governments, local governments, foreign governments, private parties, 
and morale, welfare, and recreational activities with the approval of a 
commanding officer provided:
    (1) The cost does not exceed limitations the Secretary of the Navy 
may approve or specify; and,
    (2) In the case of private parties, it is in the interest of the 
government to do so and there is no issue of competition with private 
industry; and,
    (3) In the case of foreign governments a disqualification of a 
government has

[[Page 29]]

not been issued for the benefits of this article.
    (b) Work shall not be started nor facilities, supplies, or services 
furnished, morale, welfare, and recreational activities not classified 
as instrumentalities of the United States, or state or local governments 
or private parties until funds to cover the estimated cost have been 
deposited with the commanding officer or unless otherwise provided by 
law.
    (c) Work shall not be started nor facilities, supplies, or services 
furnished other Federal Government departments and agencies, or expenses 
charged to non-appropriated funds of morale, welfare, and recreational 
activities classified as instrumentalities of the United States until 
reimbursable funding arrangements have been made.
    (d) Work, facilities, supplies, or services furnished non-
appropriated fund activities classified as instrumentalities of the 
United States in the Navy Comptroller Manual shall be funded in 
accordance with regulations of the Comptroller of the Navy.
    (e) Supplies or services may be furnished to naval vessels and 
military aircraft of friendly foreign governments (unless otherwise 
provided by law or international treaty or agreement):
    (1) On a reimbursable basis without an advancement of funds, when in 
the best interest of the United States;
    (i) Routine port services (including pilotage, tugs, garbage 
removal, linehandling, and utilities) in territorial waters or waters 
under United States control,
    (ii) Routine airport services (including air traffic control, 
parking, servicing, use of runways),
    (iii) Miscellaneous supplies (including fuel, provisions, spare 
parts, and general stores) but not ammunition. Supplies are subject to 
approval of the cognizant fleet or force commanders when provided 
overseas,
    (iv) With approval of Chief of Naval Operations in each instance, 
overhauls, repairs, and alterations together with necessary equipment 
and its installation required in connection therewith, to vessels and 
military aircraft.
    (2) Routine port and airport services may be furnished at no cost to 
the foreign government concerned where such services are provided by 
persons of the naval service without direct cost to the Department of 
the Navy.
    (f) In cases of emergency involving possible loss of life or 
valuable property, work may be started or facilities furnished prior to 
authorization, or provision for payment, but in all such cases a 
detailed report of the facts and circumstances shall be made promptly to 
the Secretary of the Navy or the appropriate authority.
    (g) Charges and accounting for any work, supplies, or services shall 
be as prescribed in the Navy Comptroller Manual.



Secs. 700.750-700.751  [Reserved]



Sec. 700.752  Responsibility for safety of ships and craft at a naval station or shipyard.

    (a) The commanding officer of a naval station or shipyard shall be 
responsible for the care and safety of all ships and craft at such 
station or shipyard not under a commanding officer or assigned to 
another authority, and for any damage that may be done by or to them. In 
addition, the commanding officer of a naval station or shipyard shall be 
responsible for the safe execution of work performed by that activity 
upon any ship located at the activity.
    (b) It shall be the responsibility of the commanding officer of a 
ship in commission which is undergoing overhaul, or which is otherwise 
immobilized at a naval station or shipyard, to request such services as 
are necessary to ensure the safety of the ship. The commanding officer 
of the naval station or shipyard shall be responsible for providing 
requested services in a timely and adequate manner.
    (c) When a ship or craft not under her own power is being moved by 
direction of the commanding officer of a naval station or shipyard, that 
officer shall be responsible for any damage that may result therefrom; 
the pilot or other person designated for the purpose shall be in direct 
charge of such movement, and all persons on board shall cooperate with 
and assist the pilot as necessary. Responsibility for such actions in a 
private shipyard will be assigned by contract to the contractor.

[[Page 30]]

    (d) When a ship operating under her own power is being drydocked, 
the commanding officer shall be fully responsible for the safety of his 
ship until the extremity of the ship first to enter the drydock reaches 
the dock sill and the ship is pointed fair for entering the drydock. The 
docking officer shall then take charge and complete the docking, 
remaining in charge until the ship has been properly landed, bilge 
blocks hauled, and the dock pumped down. In undocking, the docking 
officer shall assume charge when flooding the dock preparatory to 
undocking is started, and shall remain in charge until the extremity of 
the ship last to leave the dock clears the sill, and the ship is pointed 
fair for leaving the drydock, when the ship's commanding officer shall 
assume responsibility for the safety and control of the ship.
    (e) When a naval ship is to be drydocked in a private shipyard under 
a contract being administered by a supervisor of shipbuilding, the 
responsibilities of the commanding officer are the same as in the case 
of drydocking in a naval shipyard. The responsibilities for the safety 
of the actual drydocking, normally assigned to the commanding officer of 
a naval shipyard through his docking officer, will be assigned by 
contract to the contractor. The supervisor of shipbuilding is 
responsible, however, for ensuring that the contractor's facilities, 
methods, operations, and qualifications meet the standards of efficiency 
and safety prescribed by Navy directives.
    (f) If the ship is elsewhere than at a naval station or shipyard, 
the relationship between the Commanding officer and the supervisor of 
shipbuilding, or other appropriate official, shall be the same as that 
between the commanding officer and the commanding officer of a naval 
station or shipyard as specified in this article.
[39 FR 7135, Feb. 25, 1974, as amended at 45 FR 80279, Dec. 4, 1980]



Sec. 700.753  Ships and craft in drydock.

    (a) The commanding officer of a ship in drydock shall be responsible 
for effecting adequate closure, during such periods as they will be 
unattended, of all openings in the ship's bottom upon which no work is 
being undertaken by the docking activity. The commanding officer of the 
docking activity shall be responsible for the closing, at the end of 
working hours, of all valves and other openings in the ship's bottom 
upon which work is being undertaken by the docking activity, when such 
closing is practicable.
    (b) Prior to undocking, the commanding officer of a ship shall 
report to the docking officer any material changes in the amount and 
location of weights on board which have been made by the ship's force 
while in dock, and shall ensure, and so report, that all sea valves and 
other openings in the ship's bottom are properly closed. The level of 
water in the dock shall not be permitted to rise above the keel blocks 
prior to receipt of this report. The above valves and openings shall be 
tended during flooding of the dock.
    (c) When a ship or craft, not in commission, is in a naval drydock, 
the provisions of this article shall apply, except that the commanding 
officer of the docking activity or his representative shall act in the 
capacity of the commanding officer.
    (d) When a naval ship or craft is in drydock in a private shipyard, 
responsibility for actions normally assigned by the commanding officer 
of the docking activity will be assigned by contract to the contractor.
[39 FR 7135, Feb. 25, 1974, as amended at 45 FR 80279, Dec. 4, 1980]



Sec. 700.754  Pilotage.

    (a) The commanding officer shall:
    (1) Pilot the ship under all ordinary circumstances, but he may 
employ pilots whenever in his judgment such employment is prudent.
    (2) Not call a pilot on board until the ship is ready to proceed.
    (3) Not retain a pilot on board after the ship has reached her 
destination or point where pilot is no longer required.
    (4) Give preference to licensed pilots.
    (5) Pay pilots no more than the local rates.
    (b) A pilot is merely an adviser to the commanding officer. His 
presence on board shall not relieve the commanding officer or any of his 
subordinates from their responsibility for the proper performance of the 
duties with which they may be charged concerning the

[[Page 31]]

navigation and handling of the ship. For an exception to the provisions 
of this paragraph, see ``Rules and Regulations Covering Navigation of 
the Panama Canal and Adjacent Waters,'' which directs that the pilot 
assigned to a vessel in those waters shall have control of the 
navigation and movement of the vessel. Also see the provisions of these 
regulations concerning the navigation of ships at a naval shipyard or 
station, or in entering or leaving drydock.



Sec. 700.755  Safe navigation and regulations governing operation of ships and aircraft.

    (a) The commanding officer is responsible for the safe navigation of 
his ship or aircraft except as prescribed otherwise in these regulations 
for ships at a naval shipyard or station in drydock, or in the Panama 
Canal. In time of war or armed conflict, or in exercises simulating war 
or armed conflict, competent authority may modify the use of lights or 
other safeguards required by law to prevent collisions at sea, in port, 
or in the air. In exercises, such modifications will be employed only 
when ships or aircraft clearly will not be hazarded.
    (b) Professional standards and regulations governing ship handling, 
safe navigation, safe anchoring and related operational matters shall be 
promulgated by the Chief of Naval Operations.
    (c) Professional standards and regulations governing the operation 
of naval aircraft and related matters shall be promulgated by the Chief 
of Naval Operations or the Commandant of the Marine Corps as 
appropriate.



Sec. 700.756  Duties of the prospective commanding officer of a ship.

    (a) Except as may be prescribed by the Chief of Naval Operations, 
the prospective commanding officer of a ship not yet commissioned shall 
have no independent authority over the preparation of the ship for 
service by virtue of his assignment to such duty, until the ship is 
commissioned and transferred to his command. As the prospective 
commanding officer, he shall:
    (1) Procure from the commander of the naval shipyard or the 
supervisor of shipbuilding the general arrangement plans of the ship, 
and all the pertinent information relative to the general condition of 
the ship and the work being undertaken on the hull, machinery, and 
equipment, upon reporting for duty.
    (2) Inspect the ship as soon after reporting for duty as 
practicable, and frequently thereafter, in order to keep himself 
informed of the state of her preparation for service. If, during the 
course of these inspections, he notes an unsafe or potentially unsafe 
condition, he shall report such condition to the commander of the naval 
shipyard or the supervisor of shipbuilding and to his superior for 
resolution.
    (3) Keep himself informed as to the progress of the work being done, 
including tests of equipment, and make such recommendations to the 
commander of the naval shipyard or the supervisor of shipbuilding as he 
deems appropriate.
    (4) Ensure that requisitions are submitted for articles to outfit 
the ship which are not otherwise being provided.
    (5) Prepare the organization of the ship.
    (6) Make such reports as may be required by higher authority, and 
include therein a statement of any deficiency in material or personnel.
    (b) If the prospective commanding officer does not consider the ship 
in proper condition to be commissioned at the time the commander of the 
naval shipyard or the supervisor of shipbuilding signifies his intention 
of transferring the ship to him, he shall report that conclusion with 
his reasons therefor, in writing, to the commander of the naval shipyard 
or the supervisor of shipbuilding and to the appropriate higher 
authority.
    (c) If the ship is elsewhere than at a naval shipyard, the 
relationship between the prospective commanding officer and the 
supervisor of shipbuilding, or other appropriate official, shall be the 
same as that between the prospective commanding officer and the 
commander of a naval shipyard as specified in this article.

[[Page 32]]



Sec. 700.757  Authority of the commanding officer or prospective commanding officer of a naval nuclear powered ship.

    The Chief of Naval Operations shall be responsible for providing the 
commanding officer or prospective commanding officer of a naval nuclear 
powered ship with the authority and direction necessary to carry out his 
responsibilities for the safety of the ship and crew, and the health and 
safety of the general public in surrounding area.



Sec. 700.758  Inspection incident to commissioning of ships.

    When a ship is to be commissioned, the authority designated to place 
such ship in commission shall, just prior to commissioning, cause an 
inspection to be made to determine the cleanliness and readiness of the 
ship to receive its crew and outfit. In the case of the delivery of a 
ship by a contractor, the above inspection shall precede acceptance of 
the ship. A copy of the report of this inspection shall be furnished the 
officer detailed to command the ship and to appropriate commands, 
bureaus or offices.



Secs. 700.759-700.762  [Reserved]



Sec. 700.763  Quarantine.

    (a) The commanding officer or aircraft commander of a ship or 
aircraft shall comply with all quarantine regulations and restrictions, 
United States or foreign, for the port or area within which his ship or 
aircraft is located.
    (b) Whether or not liable to quarantine, the commanding officer 
shall afford every facility to visiting health officers, United States 
or foreign, and shall give all information required by the latter, 
insofar as permitted by the requirements of military security.
    (c) The commanding officer shall allow no intercourse with a port or 
area or with other ships or aircraft until he has consulted local health 
authorities when:
    (1) Doubt exists as to the sanitary regulations or health conditions 
of the port or area.
    (2) A quarantine condition exists aboard his ship or aircraft.
    (3) Coming from a suspected port or area, or one actually under 
quarantine.
    (d) No concealment shall be made of any circumstance that may 
subject a ship or aircraft of the Navy to quarantine.
    (e) Should there appear at any time on board a ship or aircraft 
conditions which present a hazard of introduction of a communicable 
disease outside the ship or aircraft, the commanding officer or aircraft 
commander shall at once report the fact to the senior officer present, 
to other appropriate higher authorities and, if in port, to the health 
authorities having quarantine jurisdiction. He shall prevent all 
contracts likely to spread disease until pratique is received. The 
commanding officer of a ship in port shall hoist the appropriate signal.



Sec. 700.764  Customs and immigration inspections.

    (a) The commanding officer or aircraft commander shall facilitate 
any proper examination which it may be the duty of a customs officer or 
an immigration officer of the United States to make on board the ship or 
aircraft under his command. He shall not permit a foreign customs 
officer or an immigation officer to make any examination whatsoever, 
except as hereinafter provided, on board the ship, aircraft, or boats 
under his command.
    (b) When a ship or aircraft of the Navy or a public vessel manned by 
naval personnel and operating under the direction of the Department of 
the Navy is carrying cargo for private commercial account, such cargo 
shall be subject to the local customs regulations of the port, domestic 
or foreign, in which the ship or aircraft may be, and in all matters 
relating to such cargo, the procedure prescribed for private merchant 
vessels and aircraft shall be followed. Government-owned stores or cargo 
in such ship or aircraft not landed nor intended to be landed nor in any 
manner trafficked in, are, by the established precedent of international 
courtesy, exempt from customs duties, but a declaration of such stores 
or cargo, when required by local customs regulations, shall be made. 
Commanding officers shall prevent, as far as possible, disputes with the 
local

[[Page 33]]

authorities in such cases, but shall protect the ship or aircraft and 
the Government-owned stores and cargo from any search or seizure.
    (c) Upon arrival from a foreign country, at the first port of entry 
in United States territory, the commanding officer, or the senior 
officer of ships or aircraft in company, shall notify the collector of 
the port. Each individual aboard shall, in accordance with customs 
regulations, submit a list of articles purchased or otherwise acquired 
by him abroad. Dutiable articles shall not be landed until the customs 
officer has completed his inspection.
    (d) Commanding officers of naval vessels and aircraft transporting 
United States civilian and foreign military and civilian passengers 
shall satisfy themselves that the passenger clearance requirements of 
the Immigration and Naturalization Service are complied with upon 
arrival at points within the jurisdiction of the United States. 
Clearance for such passengers by an immigration officer is necessary 
upon arrival from foreign ports and at the completion of movements 
between any of the following: Continental United States (including 
Alaska and Hawaii), Canal Zone, Puerto Rico, Virgin Islands, Guam, 
American Samoa, or other outlying places subject to United States 
jurisdiction. Commanding officers prior to arriving shall advise the 
cognizant naval or civilian port authority of the aforementioned 
passengers aboard and shall detain them for clearance as required by the 
Immigration and Naturalization Service.
    (e) The provisions of this article shall not be construed to require 
delaying the movements of any ship or aircraft of the Navy in the 
performance of the assigned duty.



Sec. 700.765  Environmental pollution.

    The commanding officer shall cooperate with local, state and other 
governmental authorities in the prevention, control and abatement of 
environmental pollution to the extent resources and operational 
considerations permit. He shall be aware of existing policies regarding 
polution control and he should recommend remedial measures when 
appropriate.



Secs. 700.766-700.767  [Reserved]



Sec. 700.768  Care of ships, aircraft, vehicles and their equipment.

    The commanding officer shall cause such inspections and tests to be 
made and procedures carried out as are prescribed by competent 
authority, together with such others as he deems necessary to ensure the 
proper preservation, repair, maintenance, and operation of any ship, 
aircraft, vehicle, and their equipment assigned to his command.



              Subpart H--Precedence, Authority, and Command



Sec. 700.811  Exercise of authority.

    (a) All persons in the naval service on active service, and those on 
the retired list with pay, and transferred members of the Fleet Reserve 
and the Fleet Marine Corps Reserve, are at all times subject to naval 
authority. While on active service they may, if not on leave of absence 
except as noted below, on the sick list, taken into custody, under 
arrest, suspended from duty, in confinement, or otherwise incapable of 
discharging their duties, exercise authority over all persons who are 
subordinate to them.
    (b) A person in the naval service, although on leave, may exercise 
authority:
    (1) When in a naval ship or aircraft and placed on duty by the 
commanding officer or aircraft commander.
    (2) When in a ship or aircraft of the armed services of the United 
States, other than a naval ship or aircraft, as the commanding officer 
of naval personnel embarked, or when placed on duty by such officer.
    (3) When senior officer at the scene of a riot or other emergency, 
or when placed on duty by such officer.



Secs. 700.812-700.816  [Reserved]



Sec. 700.817  Authority of an officer who succeeds to command.

    (a) An officer who succeeds to command due to incapacity, death, 
departure on leave, detachment without relief, or absence due to orders 
from competent authority of the officer detailed to command has the same 
authority

[[Page 34]]

and responsibility as the officer whom he succeeds.
    (b) An officer who succeeds to command during the temporary absence 
of the commanding officer shall make no changes in the existing 
organization, and shall endeavor to have the routine and other affairs 
of the command carried on in the usual manner.
    (c) When an officer temporarily succeeding to command signs official 
correspondence, the word ``Acting'' shall appear below his signature.



Secs. 700.818-700.829  [Reserved]



Sec. 700.830  Authority of a sentry.

    A sentry, within the limits stated in his orders, has authority over 
all persons on his post.



Secs. 700.831-700.833  [Reserved]



Sec. 700.834  Orders to active service.

    (a) No person who is not on active service or leave of absence shall 
be ordered into active service or on duty without permission of the 
Commandant of the Marine Corps, or the Chief of Naval Personnel, except:
    (1) In the case of a person on leave of absence by the officer who 
granted the leave or a superior.
    (2) By the senior officer present on a foreign station.
    (b) In the event that the senior officer present of a foreign 
station issues any orders as contemplated by this article, he shall 
report the facts, including the reasons for issuing such orders, to the 
Chief of Naval Personnel or the Commandant of the Marine Corps, without 
delay.
    (c) Retired officers of the Navy and Marine Corps may be ordered to 
active service, with their consent, in time of peace. In time of war or 
a national emergency, such retired officers may, at the discretion of 
the Secretary of the Navy, be ordered to active service.



                  Subpart I--The Senior Officer Present

    Source: 39 FR 7220, Feb. 25, 1974 unless otherwise noted.



Sec. 700.901  The senior officer present.

    Unless some other officer has been so designated by competent 
authority, the ``senior officer present'' is the senior line officer of 
the Navy on active duty, eligible for command at sea, who is present and 
in command of any part of the Department of the Navy in the locality or 
within an area prescribed by competent authority, except where personnel 
of both the Navy and the Marine Corps are present on shore and the 
officer of the Marine Corps who is in command is senior to the senior 
line officer of the Navy. In such cases, the officer of the Marine Corps 
shall be the senior officer present on shore.



Sec. 700.902  [Reserved]



Sec. 700.903  Authority and responsibility.

    At all times and places not excluded in these regulations, or in 
orders from competent authority, the senior officer present shall assume 
command and direct the movements and efforts of all persons in the 
Department of the Navy present, when, in his judgment, the exercise of 
authority for the purpose of cooperation or otherwise is necessary. He 
shall exercise his authority in a manner consistent with the full 
operational command vested in the commanders of unified or specified 
commands.



Sec. 700.904  Authority of senior officer of the Marine Corps present.

    The authority and responsibility of the senior officer present are 
also conferred upon the senior commanding officer of the Marine Corps 
present with respect to those units of the Marine Corps, including Navy 
personnel attached, which are in the locality and not under the 
authority of the senior officer present.



Secs. 700.905-700.921  [Reserved]



Sec. 700.922  Shore patrol.

    (a) When liberty is granted to any considerable number of persons, 
except in an area that can absorb them without danger of disturbance or 
disorder, the senior officer present shall cause to be established, 
temporarily or permanently, in charge of an officer, a sufficient patrol 
of officers, petty officers,

[[Page 35]]

and noncommissioned officers to maintain order and suppress any unseemly 
conduct on the part of any person on liberty. The senior patrol officer 
shall communicate with the chief of police or other local officials and 
make such arrangements as may be practicable to aid the patrol in 
carrying out its duties properly. Such duties may include providing 
assistance to military personnel in relations with civil courts and 
police, arranging for release of service personnel from civil 
authorities to the parent command, and providing other services that 
favorably influence discipline and morale.
    (b) A patrol shall not be landed in any foreign port without first 
obtaining the consent of the proper local officials. Tact must be used 
in requesting permission; and, unless it is given willingly and 
cordially, the patrol shall not be landed. If consent cannot be 
obtained, the size of liberty parties shall be held to such limits as 
may be necessary to render disturbances unlikely.
    (c) Officers and men on patrol duty in a foreign country normally 
should not be armed. In the United States, officers and men may be armed 
as prescribed by the senior officer present.
    (d) No officer or man who is a member of the shore patrol or beach 
guard, or is assigned in support thereof, shall partake of or indulge in 
any form of intoxicating beverage or other form of intoxicant while on 
duty, on post, or at other times prescribed by the senior patrol 
officer. The senior patrol officer shall ensure that the provisions of 
this paragraph are strictly observed and shall report promptly in 
writing to the senior officer present all violations of these provisions 
that may come to his notice. All officers and men of the patrol shall 
report to the senior patrol officer all violations of the provisions of 
this paragraph on the part of those under them.



Sec. 700.923  Precautions for health.

    The senior officer present shall take precautions to preserve the 
health of the persons under his authority. He shall obtain information 
regarding the healthfulness of the area and medical facilities available 
therein and shall adopt such measures as are required by the situation.



Secs. 700.924-700.934  [Reserved]



Sec. 700.935  Exercise of power of consul.

    When upon the high seas or in any foreign port where there is no 
resident consul of the United States, the senior officer present afloat 
has the authority to exercise all powers of a consul in relation to 
mariners of the United States.



Secs. 700.936-700.939  [Reserved]



Sec. 700.940  Granting of asylum and temporary refuge.

    (a) If an official of the Department of the Navy is requested to 
provide asylum or temporary refuge, the following procedures shall 
apply:
    (1) On the high seas or in territories under exclusive United States 
jurisdiction (including territorial seas, the Commonwealth of Puerto 
Rico, territories under United States administration, and possessions):
    (i) At his request, an applicant for asylum will be received on 
board any naval aircraft or water-borne craft, Navy or Marine Corps 
activity or station.
    (ii) Under no circumstances shall the person seeking asylum be 
surrendered to foreign jurisdiction or control, unless at the personal 
direction of the Secretary of the Navy or higher authority. Persons 
seeking political asylum should be afforded every reasonable care and 
protection permitted by the circumstances.
    (2) In territories under foreign jurisdiction (including foreign 
territorial seas, territories, and possessions):
    (i) Temporary refuge shall be granted for humanitarian reasons on 
board a naval aircraft or water-borne craft, Navy or Marine Corps 
activity or station, only in extreme or exceptional circumstances 
wherein life or safety of a person is put in imminent danger, such as 
pursuit by a mob. When temporary refuge is granted, such protection 
shall be terminated only when directed by the Secretary of the Navy or 
higher authority.
    (ii) A request by foreign authorities for return of custody of a 
person under the protection of temporary refuge will be reported to the 
CNO or Commandant of the Marine Corps. The requesting

[[Page 36]]

foreign authorities will be informed that the case has been referred to 
higher authorities for instructions.
    (iii) Persons whose temporary refuge is terminated will be released 
to the protection of the authorities designated in the message 
authorizing release.
    (iv) While temporary refuge can be granted in the circumstances set 
forth above, permanent asylum will not be granted.
    (v) Foreign nationals who request assistance in forwarding requests 
for political asylum in the United States will be advised to apply in 
person at the nearest American Embassy or Consulate.
    (3) The Chief of Naval Operations or Commandant of the Marine Corps, 
as appropriate, will be informed by the most expeditious means of all 
action taken pursuant to paragraphs (a)(1) and (a)(2) of this section, 
as well as the attendant circumstances. Telephone or voice 
communications will be used where possible, but must be confirmed as 
soon as possible with an immediate precedence message, information to 
the Secretary of State (for actions taken pursuant to paragraphs 
(a)(2)(i) and (a)(2)(v) of this section, also make the appropriate 
American Embassy or Consular Office an information addressee). If 
communication by telephone or voice is not possible, notification will 
be effected by an immediate precedence message, as described above. The 
Chief of Naval Operations or Commandant of the Marine Corps will cause 
the Secretary of the Navy and the Deputy Director for Operations of the 
National Military Command Center to be notified without delay.
    (b) Personnel of the Department of the Navy shall neither directly 
nor indirectly invite persons to seek asylum or temporary refuge.
[41 FR 18074, Apr. 30, 1976]



 Subpart J--Rights and Responsibilities of Persons in the Department of 
                                the Navy



Sec. 700.1115  Control of official records.

    No person, without proper authority, shall withdraw official records 
or correspondence from the files, or destroy them, or withhold them from 
those persons authorized to have access to them.



Sec. 700.1116  Disclosure and publication of information.

    (a) No person in the Department of the Navy shall convey or disclose 
by oral or written communication, graphic (including photographic) or 
other means, any classified information except as provided in the 
Department of the Navy Information Security Program Regulation. 
Additionally, no person in the Department of the Navy shall communicate 
or otherwise deal with foreign entities, even on an unclassified basis, 
when such would commit the Department of the Navy to disclose classified 
military information, except as may be required in his official duties 
and only after coordination with and approval by the release authority 
stipulated in the Department of the Navy Information Security Program 
Regulation.
    (b) No person in the Department of the Navy shall convey or disclose 
by oral or written communication, publication, or other means, except as 
may be required by his official duties, any information concerning the 
Department of Defense or forces, or any person, thing, plan or measure 
pertaining thereto, where such information might be of possible 
assistance to a foreign power; nor shall any person in the Department of 
the Navy make any public speech or permit publication of any article 
written by or for him which is prejudicial to the interests of the 
United States. The regulations concerned with the release of information 
to the public through any media will be as prescribed by the Secretary 
of the Navy.
    (c) No person in the Department of the Navy shall disclose any 
information whatever, whether classified or unclassified, or whether 
obtained from official records or within the knowledge of the relator, 
which might aid or be of assistance in the prosecution or support of any 
claim against the United States. The prohibitions prescribed by the 
first sentence of this paragraph are not applicable to an officer or 
employee of the United States who is acting in the proper course of,

[[Page 37]]

and within the scope of, his official duties, provided that the 
disclosure of such information is otherwise authorized to be disclosed 
by statute, Executive order of the President, or departmental 
regulation.
    (d) Any person in the Department of the Navy receiving a request 
from the public for Department of the Navy records shall be governed by 
security classification markings, distribution statements on technical 
documents, and the term ``For Official Use Only'' which may be used to 
identify material or records not to be released to the general public. 
The general regulations concerned with the availability to the public of 
the Department of the Navy records shall be as prescribed by the 
Secretary of the Navy.
    (e) Persons in the Department of the Navy desiring to submit 
manuscripts to commercial publishers, or professional, political or 
international subjects shall comply with regulations promulgated by the 
Secretary of the Navy.
    (f) No person in the naval service on active duty or civilian 
employee of the Department of the Navy shall act as correspondent of a 
news service or periodical, or as a television or radio news commentator 
or analyst, unless assigned to such duty in connection with the public 
affairs activities of the Department of the Navy, or authorized by the 
Secretary of the Navy. Except as authorized by the Secretary of the 
Navy, no person assigned to duty in connection with public affairs 
activities of the Department of the Navy shall receive any compensation 
for acting as such correspondent, commentator, or analyst.
[39 FR 7135, Feb. 25, 1974, as amended at 41 FR 18075, Apr. 30, 1976; 45 
FR 80279, Dec. 4, 1980]



Sec. 700.1117  Official records in civil courts.

    No person in the Department of the Navy shall produce or release any 
official record in response to a subpoena duces tecum, motion for 
discovery, interrogatory or otherwise in a civil suit, or in connection 
with preliminary investigations by attorneys or others except in 
accordance with the provisions of the Manual of the Judge Advocate 
General.



Secs. 700.1118-700.1119  [Reserved]



Sec. 700.1120  Rules for preventing collisions, afloat and in the air.

    (a) All persons in the naval service responsible for the operation 
of naval ships, craft and aircraft shall diligently observe the 
International Rules for Preventing Collisions at Sea, (commonly called 
International Rules of the Road) Inland Rules of the Road, domestic and 
international air traffic regulations, and such other rules and 
regulations as may be established by the Secretary of Transportation or 
other competent authority for regulating traffic and preventing 
collisions on the high seas, in inland waters, or in the air, where such 
laws, rules and regulations are applicable to naval ships and aircraft. 
In those situations where such law, rule or regulation is not applicable 
to naval ships, craft or aircraft they shall be operated with due regard 
for safety of others.
    (b) Any significant infraction of the laws, rules and regulations 
governing traffic or designed to prevent collisions on the high seas, in 
inland waters, or in the air, which may be observed by persons in the 
naval service shall be promptly reported to their superiors, including 
the Chief of Naval Operations or Commandant of the Marine Corps when 
appropriate.
    (c) Reports need not be made under this article if the facts are 
otherwise reported in accordance with other directives, including duly 
authorized safety programs.



Secs. 700.1121-700.1132  [Reserved]



Sec. 700.1133  Use of title for commercial enterprises.

    No person in the naval service shall, while on extended naval 
service, use his grade or rating in connection with a commercial 
enterprise. ``Extended naval service,'' for the purposes of this 
article, is defined as active duty, other than active duty for training, 
under a call or order that does not specify a period of thirty days or 
less. This article shall not apply to a person who is not on active 
service, nor shall it apply to

[[Page 38]]

authorship of any material for publication, by persons on either active 
or inactive service, provided that such material is published in 
accordance with existing regulations.



Secs. 700.1134-700.1142  [Reserved]



Sec. 700.1143  Return of Government property on release from active service.

    When a person is released from active service, he shall return all 
Government property in his possession to his commanding officer or other 
competent authority.



Sec. 700.1144  Issue or loan of public property.

    (a) Except as prescribed in this article, public property including 
supplies, shall not be issued, on loan or otherwise, to any state, 
organization, or private individual except by special authority of 
Congress.
    (b) When so authorized by the senior officer present, a commanding 
officer may issue such supplies as can be spared to those in distress in 
the event of a public exigency or calamity, or to vessels in distress, 
and, when so authorized, he may issue rations and necessities to 
destitute seamen and airmen of the United States who are received on 
board. The supply officer making such an issue shall do so only pursuant 
to an order in writing, shall procure receipts when practicable for the 
supplies issued, and shall render accounts for such supplies in 
accordance with the instructions contained in the Naval Supply System 
Command Manual or the Marine Corps Supply Manual, as appropriate.
    (c) Public property, except aircraft, may be loaned by the 
commandant of a naval district to a state located within the district 
and maintaining naval militia organizations, for use by a naval militia 
organization in that state, provided that 95 percent of the personnel of 
the last-mentioned organization are attached to or associated with a 
unit of the naval reserve, and provided that the naval militia 
organization conforms to the standards prescribed by the Secretary of 
the Navy for similar organizations of the Naval Reserve. A report of 
such loans shall be made by the commandant to the interested bureaus, 
offices or commands of the Navy Department.



Secs. 700.1145-700.1149  [Reserved]



Sec. 700.1150  Alcoholic liquors.

    (a) Except as may be authorized by the Secretary of the Navy, the 
introduction, possession or use of alcoholic liquors for beverage 
purposes on board any ship, craft, aircraft, or in any vehicle of the 
Department of the Navy is prohibited. The transportation of alcoholic 
liquors for personal use ashore is authorized, subject to the discretion 
of the officer in command or officer in charge, or higher authority, 
when the liquors are delivered to the custody of the officer in command 
or officer in charge of the ship, craft, or aircraft in sealed packages, 
securely packed, properly marked and in compliance with customs laws and 
regulations, and stored in securely locked compartments, and the 
transportation can be performed without undue interference with the work 
or duties of the ship, craft, or aircraft. Whenever alcoholic liquor is 
brought on board any ship, craft, or aircraft for transportation for 
personal use ashore, the person who brings it on board shall at that 
time file with the officer in command or officer in charge of the ship, 
craft, or aircraft, a statement of the quantity and kind of alcoholic 
liquor brought on board by him, together with his certification that its 
importation will be in compliance with customs and internal revenue laws 
and regulations and applicable State or local laws at the place of 
debarkation.
    (b) The introduction, possession, and use of alcoholic liquors for 
beverage purposes or for sale is authorized within naval activities and 
other places ashore under naval jurisdiction, to the extent and in such 
manner as the Secretary of the Navy may prescribe.



Sec. 700.1151  Responsibilities concerning marijuana, narcotics, and other controlled substances.

    (a) All personnel shall endeavor to prevent and eliminate the 
unauthorized use of marijuana, narcotics, and other controlled 
substances within the naval service.

[[Page 39]]

    (b) Except for authorized medicinal purposes, the introduction, 
possession, use, sale, or other transfer of marijuana, narcotic 
substances or other controlled substances on board any ship, craft, or 
aircraft of the Department of the Navy or within any naval station or 
other place under the jurisdiction of the Department of the Navy, or the 
possession, use, sale, or other transfer of marijuana, narcotic 
substances or other controlled substances by persons in the naval 
service, is prohibited.
    (c) The term controlled substance means: a drug or other substance 
included in Schedule I, II, III, IV, or V established by section 202 of 
the Comprehensive Drug Abuse Prevention and Control Act of 1970 (84 
Stat. 1236), as updated and republished under the provisions of that 
Act.



Secs. 700.1152-700.1160  [Reserved]



Sec. 700.1161  Endorsement of commercial product or process.

    Except as necessary during contract administration to determine 
specification or other compliance, no person in the Department of the 
Navy, in his official capacity, shall endorse or express an opinion of 
approval or disapproval of any commercial product or process.



Subpart K--Purpose and Force of Regulations within the Department of the 
                                  Navy



Sec. 700.1201  Purpose and force of United States Navy Regulations.

    United States Navy Regulations is the principal regulatory document 
of the Department of the Navy, endowed with the sanction of law, as to 
duty, responsibility, authority, distinctions, and relationships of 
various commands, officials, and individuals. Other regulations, 
instructions, orders, manuals, or similar publications, shall not be 
issued within the Department of the Navy which conflict with, alter or 
amend any provision of Navy Regulations.



Sec. 700.1202  Issuances concerning matters over which control is exercised.

    Responsible officers and officials of the Department of the Navy may 
issue, or cause to be issued, orders, instructions, directives, manuals 
or similar publications concerning matters over which they exercise 
command, control, or supervision.



PART 701--AVAILABILITY OF DEPARTMENT OF THE NAVY RECORDS AND PUBLICATION OF DEPARTMENT OF THE NAVY DOCUMENTS AFFECTING THE PUBLIC--Table of Contents




  Subpart A--Department of the Navy Freedom of Information Act Program

Sec.
701.1  Purpose.
701.2  Applicability.
701.3  Definitions.
701.4  Policy.
701.5  Responsibility and authority.
701.6  Format and procedures for requesting information under FOIA.
701.7  Procedures for processing FOIA requests.
701.8  Records requiring special handling.
701.9  For Official Use Only.
701.10  FOIA appeals/judicial actions.
701.11  Publication, indexing, and public inspection of certain classes 
          of records.

                  Subpart B--FOIA Exemption Guidelines

701.21  General.
701.22  Exemption (b)(1).
701.23  Procedures for processing classified documents.
701.24  Exemption (b)(2).
701.25  Exemption (b)(3).
701.26  Exemption (b)(4).
701.27  Exemption (b)(5).
701.28  Exemption (b)(6).
701.29  Exemption (b)(7).
701.30  Exemption (b)(8).
701.31  Exemption (b)(9).

 Subpart C--Addresses for Department of the Navy Records and Locations 
                          for Public Inspection

701.31  Addresses for requests for Department of the Navy records.
701.32  Locations at which Department of the Navy records are available 
          for public inspection.

[[Page 40]]

                        Subpart D--Fee Guidelines

701.40  FOIA fees.
701.41  Definitions.
701.42  Application.
701.43  Fee restrictions.
701.44  Fee waivers.
701.45  Fee assessment.
701.46  Aggregating requests.
701.47  Effect of the Debt Collection Act of 1982 (Pub. L. 97-365).
701.48  Computation of fees.
701.49  Collection of fees.
701.50  Search time costs.
701.51  FOIA fee remittance/receipt controls.
701.52  Technical data fees.
701.53  Other technical data records.

Subpart E--Indexing, Public Inspection, and Federal Register Publication 
 of Department of the Navy Directives and Other Documents Affecting the 
                                 Public.

701.61  Purpose.
701.62  Scope and applicability.
701.63  Policy.
701.64  Publication of adopted regulatory documents for the guidance of 
          the public.
701.65  Availability, public inspection, and indexing of other documents 
          affecting the public.
701.66  Publication of proposed regulations for public comment.
701.67  Petitions for issuance, revision, or cancellation of regulations 
          affecting the public.

          Subpart F--Department of the Navy Privacy Act Program

701.100  Purpose.
701.101  Applicability.
701.102  Definitions.
701.103  Policy.
701.104  Responsibility and authority.
701.105  Systems of records.
701.106  Safeguarding records in systems of records.
701.107  Criteria for creating, altering, amending, and deleting Privacy 
          Act systems of records.
701.108  Collecting information about individuals.
701.109  Access to records.
701.110  Amendment of records.
701.111  Privacy Act appeals.
701.112  Disclosure of records.
701.113  Exemptions.
701.114  Enforcement actions.
701.115  Computer matching program.

                    Subpart G--Privacy Act Exemptions

701.116  Purpose.
701.117  Exemption for classified records.
701.118  Exemptions for specific Navy record systems.
701.119  Exemptions for specific Marine Corps records systems.

    Authority: 5 U.S.C. 552.

    Editorial Note: For nomenclature changes for this part see 59 FR 
29721, June 9, 1994.



  Subpart A--Department of the Navy Freedom of Information Act Program

    Source: 56 FR 66574, Dec. 24, 1991, unless otherwise noted.



Sec. 701.1  Purpose.

    Subparts A, B, C, and D of this part implement the Freedom of 
Information Act (5 U.S.C. 552), and the Department of Defense Directives 
5400.7 and 5400.7-R series\1\, Department of Defense Freedom of 
Information Act Program, (See 32 CFR part 286) and promote uniformity in 
the Department of the Navy Freedom of Information Act (FOIA) Program. It 
is written to provide guidance to members of the public on how and where 
to submit FOIA requests and appeals within the Department of the Navy.
---------------------------------------------------------------------------


    \1\ Copies may be obtained if needed, from the U.S. Naval 
Publications and Forms Center, Attn: Code 1053, 5801 Tabor Avenue, 
Philadelphia, PA 19120.
---------------------------------------------------------------------------



Sec. 701.2  Applicability.

    Subparts A, B, C, and D of this part apply throughout the Department 
of the Navy. It governs disclosure of agency records to ``any person,'' 
which means that any individual, to include foreign citizens, 
partnerships, corporations, associations and foreign, state, or local 
governments, may use the FOIA to obtain information. The exception to 
that policy is that it does not apply to Federal agencies or to 
fugitives from justice.
    (a) Requests from state or local government officials. Requests from 
state or local government officials for naval records are treated the 
same as any other requester.
    (b) Requests from foreign governments. Requests from foreign 
governments for naval records are treated the same as any other 
requester. However, requests from foreign governments that do not

[[Page 41]]

invoke the FOIA shall be referred to appropriate foreign disclosure 
channels and the requester so notified.
    (c) Privileged release to U.S. Government officials. Naval records 
may be authenticated and released to U.S. Government officials if they 
are requesting them on behalf of Federal governmental bodies, whether 
legislative, executive, administrative, or judicial. For example:
    (1) To a committee or subcommittee of Congress, or to either House 
sitting as a whole.

    (Note: Requests from Members of Congress who are not seeking records 
on behalf of a Congressional Committee, Subcommittee, or either House 
sitting as a whole, but on behalf of their constituents, are treated the 
same as any other requester).

    (2) To the Federal courts, whenever ordered by officers of the court 
as necessary for the proper administration of justice.
    (3) To other Federal agencies, both executive and administrative, as 
determined by the head of a naval activity or designee.


In those instances, naval activities shall mark the records as 
``Privileged'' and ``Exempt from Public Disclosure.'' Any special 
handling instructions shall also be annotated on the records. Because 
such releases are not made under the provisions of the FOIA, they do not 
impact on future decisions to release/deny requests for the same records 
to other requesters.
    (d) Publication and public availability of special classes of 
records. The requirements of 5 U.S.C. 552 that certain classes of 
Department of the Navy regulatory, rulemaking, and organizational 
records must be published in the Federal Register for the guidance of 
the public and made available for public inspection and copying are 
implemented in 32 CFR part 701, subpart C.
    (e) Public affairs regulations. Subparts A, B, C, and D of this part 
are intended to complement, not restrict, the conduct of Department of 
the Navy public affairs, media relations, community relations and 
internal relations functions and practices authorized in Secretary of 
the Navy Instruction 5720.44 series, ``Department of the Navy Public 
Affairs Regulations.'' Should the practices authorized in that 
instruction conflict in any respect, the provisions of these subparts 
shall be controlling.
    (f) U.S. Navy Regulations. Release of a record to a member of the 
public under FOIA shall be deemed to have occurred in the discharge of 
official duties (Article 1120, U.S. Navy Regulations (1990)). Process a 
request by a member of the public under the instructions outlined in 
Section 3 of Chapter 11, U.S. Navy Regulations.
    (g) Other directives. The following directives, and other directives 
and instructions cited in part 701, to the extent they do not conflict, 
provide additional information relating to subparts A, B, C, and D of 
this part. Should the practices authorized in the directives conflict in 
any respect, the provisions of these subparts shall be controlling.
    (1) Marine Corps Manual, paragraph 1015 (NOTAL); Marine Corps Order 
P5720.56, Availability to the Public of Marine Corps Records (NOTAL); 
and for Headquarters, U.S. Marine Corps, HQO P5000.12, Chapter 10 
(NOTAL) and HQO 5720.9 (NOTAL).
    (2) Federal Personnel Manual, chapters 293, 294, 297, 335, 339, and 
713 (NOTAL)--release of information from active and inactive civilian 
personnel records.
    (3) Manual of the Medical Department, U.S. Navy (NAVMED P-117), 
Chapters 23-70 through 23-79 (NOTAL) release of information from active 
and inactive medical records.
    (4) JAGINST 5800.7C, Manual of the Judge Advocate General (JAGMAN), 
Chapter V (NOTAL).
    (h) Relationship between FOIA and the Privacy Act (PA). Not all 
requesters are knowledgeable of the appropriate statutory authority to 
cite when requesting records. In some instances, they may cite neither 
Act, but will imply one or both Acts. For those reasons, the following 
guidelines are provided to ensure that requesters receive the greatest 
amount of access rights under both Acts.
    (1) Requesters who seek records about themselves contained in a PA 
system of records and who cite or imply PA, will have their requests 
processed under the provisions of PA (see subpart F of this part).

[[Page 42]]

    (2) Requesters who seek records about themselves which are not 
contained in a PA system of records and who cite or imply PA, will have 
their requests processed under FOIA provisions, since they have no 
access under PA.
    (3) Requesters who seek records about themselves which are contained 
in a PA system of records and who cite or imply FOIA or both Acts will 
have their requests processed under the time limits of FOIA and the 
exemptions and fees of PA. That is appropriate since greater access will 
be received under PA.
    (4) Requesters who seek access to agency records and who cite or 
imply PA and FOIA, will have their requests processed under FOIA.
    (5) Requesters who seek access to agency records and who cite or 
imply FOIA, will have their requests processed under FOIA.

If the requester has failed to cite the appropriate Act, naval 
activities shall apprise the requester in the final response under which 
Act his/her request was processed.



Sec. 701.3  Definitions.

    (a) FOIA request. A written request for Department of the Navy 
records, made by ``any person,'' including a member of the public (U.S. 
or foreign citizen), an organization, or a business, but not including a 
Federal agency or a fugitive from the law that either explicitly or 
implicitly invokes 5 U.S.C. 552, Department of Defense Directives 5400.7 
and 5400.7-R series, ``Department of Defense Freedom of Information Act 
Program'' (see 32 CFR part 286) and/or subparts A, B, C, and D of this 
part.
    (b) Agency record. (1) The products of data compilation, such as all 
books, papers, maps, and photographs, machine readable materials, or 
other documentary materials, regardless of physical form or 
characteristics, made or received by an agency of the United States 
Government under Federal law or in connection with the transaction of 
public business and in Department of the Navy's possession and control 
at the time a FOIA request is made.
    (2) The following are not included in this definition:
    (i) Objects or articles, such as structures, furniture, paintings, 
sculpture, three-dimensional models, vehicles, equipment, and parts of 
wrecked aircraft and ships, whatever their historical value, or value as 
evidence.
    (ii) Administrative tools by which records are created, stored, and 
retrieved, if not created or used as sources of information about 
organizations, policies, functions, decisions, or procedures of a naval 
activity. Normally, computer software, including source code, object 
code, and listings of source and object codes, regardless of medium are 
not agency records (that does not include the underlying data which is 
processed and produced by such software and which may in some instances 
be stored with the software). Exceptions to this position are outlined 
in Sec. 701.3(b)(3).
    (iii) Anything that is not a tangible or documentary record, such as 
an individual's memory or oral communication.
    (iv) Personal records of an individual not subject to agency 
creation or retention requirements, created and maintained primarily for 
the convenience of an agency employee, and not distributed to other 
agency employees for their official use.
    (v) Information stored within a computer for which there is no 
existing computer program for retrieval of the requested information.
    (3) In some instances, computer software may have to be treated as a 
agency record and processed under the FOIA. Such situations are rare and 
shall be treated on a case-by-case basis. Examples of when computer 
software may have to be treated as an agency record are:
    (i) When the data is embedded within the software and cannot be 
extracted without the software. In that situation, both the data and the 
software must be reviewed for release or denial under FOIA.
    (ii) Where the software itself reveals information about 
organizations, policies, functions, decisions, or procedures of a naval 
activity, such as computer models used to forecast budget outlays, 
calculate retirement system costs, or optimization models or travel 
costs.


[[Page 43]]



Review exemptions (b)(4) and (b)(5) at Sec. 701.26 and Sec. 701.27 of 
subpart B of this part for guidance on release determinations of 
computer software.
    (4) A record must exist and be in the possession and control of the 
Department of the Navy at the time of the request to be considered 
subject to this part and the FOIA. There is no obligation to create, 
compile, or obtain a record to satisfy a FOIA request.
    (5) If unaltered publications and processed documents, such as 
regulations, manuals, maps, and related geophysical materials are 
available to the public through an established distribution system with 
or without charge, the provisions of 5 U.S.C. 552(a)(3) normally do not 
apply and they need not be processed under the FOIA. Normally, documents 
disclosed to the public by publication in the Federal Register also 
require no processing under the FOIA. In such cases, naval activities 
should direct the requester to the appropriate source to obtain the 
record.
    (c) Release authority. Release authorities are commanding officers 
and heads of Navy and Marine Corps shore activities or their designee 
that are authorized to furnish copies of records under their cognizance 
for which no FOIA exemption applies.
    (d) Initial Denial Authority (IDA). An official who has been granted 
authority to withhold records under FOIA, either in whole or in part, 
based on the FOIA exemptions. IDAs may also grant or deny requests for 
reduction or waiver of fees. See Sec. 701.5 for a list of IDAs.
    (e) Appellate authority. The Secretary of the Navy (SECNAV) has 
delegated his appellate authority to the Navy Judge Advocate General 
(NJAG) and the General Counsel (OGC) to rule on administrative appeals 
of denials of FOIA requests for information under their cognizance, as 
outlined in Sec. 701.10.
    (f) Administrative appeal. A request by a member of the general 
public, made under FOIA, asking the appellate authority to reverse the 
IDA's decision to withhold all or part of a requested record or to deny 
a request for waiver or reduction of fees. A requester may also file an 
administrative appeal for non-response to a FOIA request within the 
statutory time limits or for a ``no record'' response if he/she believes 
an adequate search was not conducted.
    (g) Public interest. Public interest is official information that 
sheds light on a naval activity's performance of its statutory duties 
because it falls within the statutory purpose of FOIA in informing 
citizens about what their government is doing. That statutory purpose, 
however, is not fostered by disclosure of information about private 
citizens that is accumulated in various governmental files that reveals 
little or nothing about an agency's or official's own conduct.
    (h) Electronic data. Electronic data are those records and 
information which are created, stored, and retrieved by electronic 
means. This does not include computer software, which is the tool by 
which to create, store, or retrieve electronic data.
[56 FR 66574, Dec. 24, 1991, as amended at 59 FR 29721, June 9, 1994]



Sec. 701.4  Policy.

    It is Department of the Navy policy to make its records available to 
requesters in accordance with FOIA. When requested, Navy and Marine 
Corps activities shall assist requesters in complying with the 
administrative requirements necessary to request materials sought under 
the Act.
    (a) Openness with the public. The public has a right to information 
concerning the activities of its government. Department of the Navy 
policy is to conduct its activities in an open manner and to provide the 
public with a maximum amount of accurate and timely information 
concerning its activities, consistent always with the legitimate public 
and private interests of the American people. A Department of the Navy 
record requested by a member of the public who follows rules established 
by proper authority shall only be withheld when it is exempt from 
mandatory public disclosure based on one or more of the nine FOIA 
exemptions.
    (b) Avoidance of procedural obstacles. Naval activities shall ensure 
that procedural matters do not unnecessarily

[[Page 44]]

impede a requester from obtaining Department of the Navy records 
promptly. Naval activities shall provide assistance to requesters to 
help them understand and comply with procedures established by this 
instruction. Fees shall not be used to discourage requesters (see 
subpart D of this part).
    (c) Prompt action on requests. When a requester complies with the 
procedures established in this instruction for obtaining naval records, 
the request shall receive prompt attention. A reply shall be dispatched 
within 10 working days, unless a delay is authorized. If a naval 
activity has a significant number of requests (i.e., 10 or more), the 
requests shall be processed in order of receipt. This, however, does not 
preclude a naval activity from acting on a request which can be easily 
answered, regardless of its ranking within the order of receipt. A naval 
activity may also expedite action on a request regardless of its ranking 
within the order of receipt upon a showing of exceptional need or 
urgency. Exceptional need or urgency is determined at the discretion of 
the activity processing the request.
    (d) Use of exemptions/discretionary release. Department of the Navy 
policy is to make records publicly available, unless they qualify for 
withholding under one or more of the nine FOIA exemptions (see subpart B 
of this part for an in-depth review of the exemptions). Naval activities 
may elect to make a discretionary release. A discretionary release to 
one requester may, however, preclude the withholding of similar 
information under a FOIA exemption if subsequently requested by the same 
individual or someone else. Suggest the following language be included 
with the discretionary release of any record that could be subject to 
withholding:

    The information you requested is subject to being withheld under 
section (b) of the Freedom of Information Act. The release of this 
material to you by the Department of the Navy is discretionary and does 
not constitute a waiver of our right to claim this exemption for similar 
records in the future.

    Additionally, a discretionary release is generally not appropriate 
for records exempt from disclosure under exemptions (b)(1)--classified; 
(b)(3)--exempted by statute; (b)(4)--trade secret/proprietary; (b)(6)--
personal privacy; and (b)(7)(C)--personal information contained in 
investigatory records which if released would constitute an unwarranted 
invasion of privacy. Exemptions (b)(4), (b)(6), and (b)(7)(C) cannot be 
claimed for information which was supplied by the requester of the 
information.
    (e) Public domain. Nonexempt records released under this instruction 
are considered in the public domain. Exempt records released under this 
instruction or other statutory or regulatory authority may be considered 
to be in the public domain only when their release constitutes a waiver 
of a FOIA exemption. When release does not constitute such a waiver, 
such as disclosure to a properly constituted advisory committee or a 
Congressional Committee, the released records do not lose their exempt 
status. Also, while authority may exist to disclose records to 
individuals in their official capacity, this instruction applies if the 
same individual seeks the records in a private or personal capacity.
    (f) Creating a record. (1) A record must exist and be in the 
possession and control of the Department of the Navy at the time of the 
search to be considered subject to FOIA. Mere possession of a record 
does not presume departmental control; such records, or identifiable 
portions, should be referred to the originating activity for direct 
response to the requester. There is no obligation to create or compile a 
record to satisfy a FOIA request. A naval activity may, however, compile 
a new record if it is a more useful response to the requester, or less 
burdensome to the naval activity than providing existing records, and 
the requester does not object. The cost of creating or compiling such a 
record may not be charged to the requester unless the fee for creating 
the record is equal to or less than the fee which would be charged for 
providing the existing record. See subpart D of this part for fees.
    (2) With respect to electronic data, the issue of whether records 
are actually or merely extracted from an existing database is not always 
readily apparent. Consequently, when responding to FOIA requests for 
electronic data

[[Page 45]]

where creation of a record, programming, or particular format are 
questionable, naval activities should apply a standard of reasonableness 
(i.e., if the capability exists to respond to a request, and the effort 
would be a ``business as usual'' approach, then the request should be 
processed; however, the request need not be processed when the 
capability to respond does not exist without a significant expenditure 
of resources, thus not being a normal ``business as usual'' approach). 
In such instances, the requester is advised that no record exists and 
the FOIA does not require agencies to create or compile a record to 
satisfy a FOIA request.
    (g) Reasonably segregable information. FOIA requires that all 
``reasonably segregable'' information must be released when the meaning 
of these portions is not distorted by deletion of the denied portions, 
and when it reasonably can be assumed that a skillful and knowledgeable 
person could not reasonably reconstruct the excised information. When a 
record is denied in whole, the response to the requester will 
specifically state that it is not reasonable to segregate portions of 
the record for release.
    (h) Special mail services. Naval activities are authorized to use 
registered mail, certified mail, certificates of mailing, and return 
receipts. However, this use should be limited to instances where it 
appears advisable to establish proof of dispatch or receipt of FOIA 
correspondence.
    (i) Authentication of records released under FOIA. In addition to 
the requirements of FOIA, records provided under FOIA shall be 
authenticated when necessary to fulfill an official governmental or 
other legal function. Authentication will be made with an appropriate 
seal. This service is not included in the FOIA fee schedule and naval 
activities may charge $5.20 for each authentication.



Sec. 701.5  Responsibility and authority.

    (a) Chief of Naval Operations (CNO). CNO is designated as the 
official responsible for administering and supervising the execution of 
5 U.S.C. 552 and Department of Defense Directives 5400.7 and 5400.7-R 
series, Department of Defense Freedom of Information Act Program (see 32 
CFR part 286). CNO has designated the Assistant Vice Chief of Naval 
Operations (N09B30) as principal Department of the Navy FOIA Coordinator 
to:
    (1) Set Department of the Navy policy on the provisions of the FOIA.
    (2) Serve as principal advisor on all FOIA matters.
    (3) Oversee the administration of the FOIA program, which includes 
preparing the Department of the Navy Annual FOIA Report for submission 
to Congress.
    (4) Develop a Navy-wide FOIA training program and serve as training-
oversight manager.
    (5) Conduct staff assistance visits within the Department of the 
Navy to review compliance with 5 U.S.C. 552 and subparts A, B, C, and D 
of this part.
    (6) Set Department of the Navy policy on the marking, handling, 
safeguarding and transmission of documents marked ``For Official Use 
Only.''
    (b) Commandant of the Marine Corps (CMC). CMC is responsible for 
administering and supervising the execution of this instruction within 
the Marine Corps. The Commandant has designated the Director of 
Administration and Resource Management (Code AR) as the FOIA Coordinator 
for Headquarters, U.S. Marine Corps.
    (c) FOIA coordinator. Each addressee is responsible for implementing 
and administering a FOIA program under this instruction. Each addressee 
shall designate a FOIA Coordinator to:
    (1) Serve as principal point of contact on FOIA matters.
    (2) Provide training for activity/command personnel on the 
provisions of 5 U.S.C. 552 and subparts A, B, C, and D of this part.
    (3) Issue an implementing instruction which designates the 
activity's FOIA Coordinator and Initial Denial Authority(ies), provides 
guidance on the marking, handling, and safeguarding of documents marked 
FOUO, FOIA records disposition, and FOIA processing procedures.
    (4) Review internal directives, practices, and procedures, including 
those for forms and records, for conformity with this instruction, when 
applicable.

[[Page 46]]

    (5) Compile input and submit consolidated Annual FOIA Report to 
Echelon 2 FOIA Coordinator, who, in turn, will provide consolidated 
report to CNO (N09B30).
    (6) Review activity conformance with the marking, handling, 
transporting, and safeguarding of FOUO information.
    (7) Provide guidance on handling FOIA requests and the scope of the 
FOIA exemptions.
    (8) Review subpart C of this part and provide CNO (N09B30) with 
updated information, as appropriate.
    (9) Conduct staff assistance visits within command and lower echelon 
commands to ensure compliance with FOIA.
    (10) Echelon 2 FOIA Coordinators shall provide CNO (N09B30) with a 
complete listing of all FOIA Coordinators under their jurisdiction. Such 
information should include activity name and address, office code, name 
of FOIA Coordinator, and commercial and autovon telephone numbers.
    (d) Release Authorities. (1) The role of the release authority is to 
respond to requests for documents under his/her cognizance for which no 
FOIA exemption applies. Release authorities are commanding officers and 
heads of all Navy and Marine Corps activities (departmental and field).
    (2) Release authorities are required to coordinate with officials 
having cognizance over the subject matter of the requested record, if 
there is a question as to its releasability. However, if it is 
determined that a requested record requires withholding, in whole or in 
part, the release authority must refer the documents along with 
recommendations regarding release to the initial denial authority (IDA) 
in the chain of command. If geographically isolated, the release 
authority may forward the request to another IDA, if so authorized by 
the IDA in the chain of command.
    (3) For records which are part of the Navy's Privacy Act (PA) 
systems of records, the record custodian specified in the systems notice 
is the appropriate authority to respond to the request.
    (e) Initial Denial Authorities (IDAs). (1) The IDA role is to deny 
and grant requests, either in whole or in part, for documents or records 
under his or her cognizance; to grant one 10-working day formal 
extension to the time limit for responding to FOIA requests; and to deny 
requests to waive or reduce FOIA fees when the information sought 
relates to matters within their respective geographical areas of 
responsibility or chain of command.
    (2) Within the Department of the Navy, the following chief 
officials, their respective vice commanders, deputies, and their 
principal assistants are designated as IDAs.
    (i) Department of the Navy: Civilian Executive Assistants; CNO; CMC; 
Chief of Naval Personnel; Commanders of the Naval Systems Commands, 
Office of Naval Intelligence, Naval Security Group Command, and Naval 
Computer and Telecommunications Command; Chief, Bureau of Medicine and 
Surgery; Auditor General of the Navy; Naval Inspector General; Director, 
Office of Civilian Personnel Management; Chief of Naval Education and 
Training; Commander, Naval Reserve Force; Chief of Naval Research; 
Commander, Naval Meteorology and Oceanography Command; heads of DON 
Staff Offices, Boards, and Councils; Flag Officers. NJAG and his Deputy, 
and the OGC and his Deputies, are excluded from this grant of 
authorization. While the NJAG and OGC are not Initial Denial 
Authorities, they are authorized to further delegate the authority 
conferred here to other senior officers/officials within NJAG and OGC.
    (ii) Initial Denial Authorities may choose to delegate initial 
denial authority to those major activities under their control that 
receive voluminous requests. Such action is discretionary and should be 
limited.
    (iii) For the shore establishment:
    (A) All officers authorized under Article 22, Uniform Code of 
Military Justice (UCMJ), or designated in section 0120, Manual of the 
Judge Advocate General, to convene general courts-martial.
    (B) Director, Naval Criminal Investigative Service and Deputy 
Commander, Naval Legal Service Command.
    (iv) In the Operating Forces: All officers authorized by Article 22, 
UCMJ, or designated in section 0120, Manual of

[[Page 47]]

the Judge Advocate General (JAGINST 5800.7C), to convene general courts-
martial.
[56 FR 66574, Dec. 24, 1991, as amended at 59 FR 29721, June 9, 1994]



Sec. 701.6  Format and procedures for requesting information under FOIA.

    (a) Minimum requirements. In an effort to eliminate any unnecessary 
burdens on members of the public, the Department of the Navy does not 
require requesters to complete a specific form to file a FOIA request. A 
request can be written or typed, but at a minimum should:
    (1) Be in writing and indicate expressly, or clearly imply, that it 
is a request under 5 U.S.C. 552, Department of Defense Directives 5400.7 
and 5400.7-R, Department of Defense Freedom of Information Act Program 
(see 32 CFR part 286), or subparts A, B, C, and D of this part. Verbal 
requests are not honored.
    (2) Contain a reasonable description of the particular record(s) 
requested to enable naval personnel to locate or identify the particular 
record(s) desired with a reasonable amount of effort.
    (3) Contain a clear statement of the requester's willingness to pay 
all fees or those up to a specified amount if the fees are expected to 
exceed the minimum fee waiver threshold, or provide satisfactory 
evidence that he or she is entitled to a waiver or reduction of such 
fees.
    (b) Identification of addressees. To expedite processing of 
requests, requesters should submit written requests directly to the 
naval activity having cognizance over the records and clearly show all 
addressees within the Department of the Navy, Department of Defense, or 
other Federal agency to whom that or a similar request was also sent. 
That procedure will reduce processing time requirements and ensure 
better inter and intra-agency coordination. Naval activities are under 
no obligation to establish procedures to receive hand delivered 
requests.
    (c) Reasonably describe the record(s) being sought. Identification 
of the record being sought is the responsibility of the requester. The 
requester must provide a description of the document that enables the 
Government to locate the record with a reasonable amount of effort. FOIA 
does not authorize ``fishing expeditions.'' If a request does not 
contain a reasonable description, the naval activity shall advise the 
requester of the defect and when possible assist the requester in 
reframing the request. Naval activities are not obligated to act on the 
request until the requester responds with more specificity. When 
practical, naval activities shall assist the requester in identifying 
the records sought and in reformulating the request to reduce the burden 
on the agency in complying with FOIA.
    (1) The following guidelines are provided for ``fishing expedition'' 
requests and are based on the principle of reasonable effort. 
Descriptive information about a record may be divided into two broad 
categories--file related and event related. File related includes 
information on the type of record (e.g., memorandum, letter, etc.), 
title, index citation, subject area, date the record was created, and 
originator. Event related includes the circumstances resulting in the 
record's creation or date and circumstances surrounding the event the 
record covers.
    (2) Generally, a record is reasonably described when the description 
contains sufficient file related information to permit an organized non-
random search of the activity's filing arrangements and existing 
retrieval systems, or when the record contains sufficient event related 
information needed to conduct such a search.
    (3) The following guidelines deal with requests for personal 
records. Ordinarily, when personal identifiers are provided only in 
connection with a request for records concerning the requester, only 
records retrievable by personal identifiers need be searched. Search for 
such records may be conducted under PA procedures (see subpart F of this 
part). No record may be denied that is releasable under FOIA.
    (4) The previous guidelines notwithstanding, the decision of a naval 
activity concerning reasonableness of description must be based on 
knowledge of its files. If the description enables naval personnel to 
locate the record with reasonable effort, the description

[[Page 48]]

is adequate. However, if a naval activity receives a request not 
``reasonably described'' it shall notify the requester of the defect and 
provide guidance on specificity required to begin a search.
    (d) Fees. (1) Fees may not be used to discourage requesters. If fees 
are expected to exceed the minimum fee waiver threshold of $15.00, the 
requester is required to address fees in the request, i.e., a 
willingness to pay all fees or those up to a specified amount, or 
request a waiver/reduction of fees.
    (2) To assist naval activities in determining assessable fees, 
requesters are encouraged to identify the fee category for which they 
wish to be considered. If the requester believes he/she qualifies for a 
waiver/reduction of fees, requesters are required to provide specific 
justification regarding qualification for a waiver so that decision can 
be rendered. See Subpart D of this Part 701 for further information on 
fees.
    (e) Treatment of requests which do not meet the minimum 
requirements. (1) In those instances when a request does not meet the 
minimum requirements, naval activities should nonetheless return the 
requests within 10 working days and advise the requester of how to 
perfect the request. Naval activities may contact the requester by 
telephone to refine the request. For example, if a requester has failed 
to ``reasonably describe'' the records being sought, he/she may be asked 
to provide identifying data such as location, timeframe, originator, 
background information, etc., to enable a search. If the requester has 
failed to mention fees and fees are applicable, the requester should be 
provided an estimate of the cost involved in processing the request. 
When practicable, naval activities are encouraged to contact requesters 
to clarify what they are seeking.
    (2) If a request fails to qualify within this instruction but the 
requested record is available and releasable in its entirety, the 
responding official may provide a copy of the record if he or she 
determines it to be in the best interest of the activity. This provision 
is within the sole and exclusive discretion of the responsible official 
of the activity concerned and does not create an exception to or grounds 
for waiver of the minimum requirements.



Sec. 701.7  Procedures for processing FOIA requests.

    (a) Control system. All requests for records which cite or imply the 
FOIA must be entered into a formal control system, either manual or 
computerized, that is designed to track the request from receipt to 
response. Information contained in the tracking system should at a 
minimum include the name of the requester, the date of the request, the 
date the request was received, suspense date, and the date the response 
was made. This will ensure that the requester is apprised of the status 
of his/her request within 10 working days and will provide required 
information should the requester challenge the processing of his/her 
request.
    (1) Receipt controls. At a minimum, date stamp the request upon 
receipt, establish a suspense control record and follow-up procedures, 
and conspicuously stamp or label the request ``FREEDOM OF INFORMATION 
ACT REQUEST'' to indicate priority handling throughout processing. Naval 
activities are encouraged to assign a FOIA Case Number for each request 
and to apprise the requester of the number assigned. This number is an 
effective tool for tracking, filing, and retrieving the request.
    (2) Forwarding controls. As a rule, requests forwarded to another 
activity for action should have the letter of referral and envelope 
conspicuously stamped or labeled ``FREEDOM OF INFORMATION ACT REQUEST'' 
and a record shall be kept of the request, and the date and activity to 
which it was forwarded.
    (b) Time limits. Once a request has been received by a naval 
activity having cognizance over the requested record(s), that activity 
has 10 working days (excluding Saturdays, Sundays, and legal holidays) 
to issue a letter which advises the requester of the action to be taken 
on the request (i.e., documents are denied; documents are released; 
documents will be released within a specific timeframe). If a naval 
activity is unable to comply with the request within the 10 working day 
timeframe, then a formal or informal

[[Page 49]]

time extension must be pursued and a letter forwarded to the requester 
advising of the extension.
    (1) A formal time extension letter is issued in those instances 
where an activity requires up to an additional 10 working days to 
respond to a request because of the need to:
    (i) Search. The need to search for and collect records located in 
whole or part at places separate from the activity processing the 
request;
    (ii) Examine. The need to search for, collect, and examine a 
substantial number of records responsive to a request; or,
    (iii) Consult. The need to consult with another naval activity or 
federal agency with a substantial interest in the determination of the 
request.
    (2) A formal time extension response must be issued by the IDA 
within 10 working days of receipt of the request, describe the 
circumstance(s) for the delay, and indicate the anticipated date for a 
substantive response.
    (3) In those instances where it appears the request might be 
ultimately denied, in whole or in part, the appellate authority (i.e., 
NJAG or OGC) may be consulted by expeditious means prior to authorizing 
a formal extension.
    (4) In those instances when it is anticipated the normal statutory 
time limits (including the statutory time extension) are insufficient to 
provide a response, the IDA shall acknowledge the request in writing 
prior to the expiration of the normal statutory time limits (including 
the statutory time extension), describe the circumstance(s) requiring 
the delay and indicate the anticipated date for the substantive 
response. The requester shall be advised that an appeal may be made to 
the cognizant appellate authority within 60 calendar days or await a 
substantive determination by a specified date. It shall be made clear 
that such an agreement does not prejudice the right of the requester to 
appeal an adverse substantive determination.
    (5) In those unusual cases where the statutory time limits cannot be 
met and no informal extension has been agreed to, the inability to 
process any part of the request within the specified time should be 
explained to the requester, with notification that the delay may be 
treated as an initial denial with a right to appeal, or that the 
requester may agree to await a substantive response by an anticipated 
date. It should be made clear that any such agreement does not prejudice 
the right of the requester to appeal the initial decision after it is 
made. Further, naval activities should be advised that the requester 
still retains the right to treat this delay as a defacto denial with 
full administrative remedies.
    (6) Informal extension of time limits--a recommended alternative is 
to negotiate an informal extension of time with the requester. The 
advantages include the ability to agree on a mutually acceptable date to 
respond that exceeds 10 working days, and the letter of confirmation 
does not require the signature of an IDA. Additionally, it does not 
impact on the additional days the appellate authority may take when 
responding to an appeal.
    (c) Decision to release records. Release authorities may release 
records under their cognizance which do not qualify for denial under 
FOIA exemptions. Such responses should be made within the applicable 
time limits of FOIA and should be processed as follows:
    (1) If the requested records are releasable in their entirety, 
release authorities should forward the records to the requester and 
advise of any applicable fees.
    (2) If the requested records are releasable in their entirety but 
not yet available, the release authority should notify the requester the 
request has been approved and the requested records will be forwarded by 
a specified date.
    (3) If the request for examination of records is approved, notify 
the requester of the time and place.
    (d) Processing documents originated by/created for another activity. 
(1) If an official receives a request for records that he or she holds, 
but which were originated by another naval activity, the official shall 
normally coordinate with that activity prior to referring the FOIA 
request and copies of the requested documents to the originator for 
direct response. The naval activity that initially received the request 
is responsible for notifying the requester

[[Page 50]]

of the referral. The originating naval activity shall not release or 
deny such records without prior consultation with the referring naval 
activity.
    (2) If an official receives a request for records that he or she 
holds, but were created for another naval activity or government agency, 
the official shall refer the FOIA request and copies of the requested 
documents to that activity/agency for direct response, after 
coordination and concurrence. The activity/agency may have an equally 
valid interest in withholding the record as the naval activity that 
created it. In such referrals, the naval activity should provide a 
recommendation concerning release with the referral. The naval activity 
that initially received the request is responsible for notifying the 
requester of the referral.
    (e) Processing misdirected requests. Requesters are not always aware 
of the correct activity to address a FOIA request.
    (1) A request received by a naval activity having no records 
responsive to the request shall only be referred to another naval 
activity if the activity contacts the naval activity and confirms its 
cognizance over the requested information. When a member of the public 
complies with the procedures established in this instruction for 
obtaining records, the request shall receive prompt attention and a 
reply dispatched within 10 working days, unless a delay is authorized. 
Each naval activity is responsible for developing procedures to ensure 
the expeditious handling, prompt retrieval, and review of requested 
records. The 10 working day time limit commences upon receipt of the 
request by the cognizant activity.
    (2) If the cognizant official is unable to respond to the requester 
within the statutory time limit, he or she may seek a formal or informal 
extension of time.
    (3) If a naval activity has a significant number of requests (e.g., 
10 or more), the requests generally will be processed in order of 
receipt. But a naval activity may commence action on an easily answered 
request, regardless of its ranking within the order of receipt.
    (f) Decision to deny records in whole or in part. To deny a 
requested record that is in the possession and control of the Department 
of the Navy, it must be determined that the record is included in one or 
more of the nine categories of records exempt from mandatory disclosure 
as provided by the FOIA and addressed at subpart B of this part.
    (1) Because release authorities cannot deny information, they must 
forward responsive documents along with their release determination to 
an IDA for consideration and response to the requester. In those 
instances, the release authority will apprise the requester that his/her 
request and responsive documents were referred to the activity having 
cognizance over the documents for a release determination and direct 
response to the requester. The referral to an IDA shall include a copy 
of the request, documents responsive to the request, recommendation on 
partial/total denial, and supporting rationale for the exemption(s) 
claimed.
    (2) When an IDA receives a referral from a subordinate activity 
recommending a FOIA request be denied in whole or in part, or receives a 
FOIA request for documents under his/her cognizance, the IDA shall take 
one of the following actions within 10 working days:
    (i) Deny or release the requested information. If an IDA determines 
the record contains information which is not releasable under FOIA, and 
any releasable information contained in the record is not reasonably 
segregable from the non-releasable information, notify the requester of 
the exemption(s) claimed and provide procedures to be followed should 
the requester decide to appeal the determination to appellate authority.
    (ii) If unable to respond within the applicable time limits, explain 
the reason(s) for the delay to the requester, with notification that he 
or she may treat this delay as an initial denial with a right to submit 
an administrative appeal to the cognizant appellate authority, or that 
the requester may agree to await a substantive determination by a 
specified date. It shall be made clear that any such agreement does not 
prejudice the right of the requester to appeal an adverse substantive 
determination.

[[Page 51]]

    (iii) If an IDA determines that the requester's claimed entitlement 
to waiver/reduction of fees is not warranted, IDAs shall notify the 
requester of such determination, provide the reason(s) for the denial, 
and advise the requester of the right to appeal the determination to the 
cognizant appellate authority within 60 calendar days. If the requester 
appeals the denial to waive/reduce fees, the release of the records may 
be withheld until the fee is paid or the appellate authority grants a 
waiver/reduction of fees.
    (3) IDAs are responsible for maintaining copies of initial denials 
in a form suitable for rapid retrieval, periodic statistical 
compilation, and management evaluation.
    (g) Excising documents--(1) Classified documents. Since FOIA 
requires that all reasonably segregable portions of documents be 
released to the requester, there will be instances when portions of 
documents which contain classified markings are subject to release. In 
these instances, naval activities shall cross through the classified 
markings that appear at the top and bottom of the document and cross 
through any classified paragraph markings that are being released. This 
practice is necessary to eliminate any appearance that a ``classified'' 
document was released.
    (2) Unclassified documents. Naval activities are encouraged to 
``blank out'' and bracket the denied information and annotate the 
exemption(s) claimed. This practice will permit the requester to easily 
identify information being withheld and the basis for withholding.
    (h) ``Other Reasons'' for not releasing a record. Besides denying a 
records in whole or in part, there are six ``other reasons'' for not 
releasing a record. In most instances, these ``other reason'' responses 
do not constitute a denial of information and therefore do not require 
the signature of an IDA. They are:
    (1) Transferred request. Requester advised that his/her request and/ 
or requested documents have been transferred to another naval activity 
or federal agency having cognizance over the requested information for 
action and direct response.
    (2) Lack of records. Requester advised that a search of files held 
by the naval activity has resulted in a failure to locate any responsive 
records. Such response now requires that a requester be advised of his/
her right to appeal the adequacy of the search to the cognizant 
appellate authority. The response does not normally require the 
signature of an IDA.
    (3) Failure of requester to reasonably describe records being 
sought. Requester advised that his/her request requires specificity with 
regard to description of the records being sought to enable the naval 
activity to conduct a reasonable search. Such responses generally 
apprise the requester of the kind of specificity required.
    (4) Other failures by requester to comply with published rules and/
or directives. Requester advised that he/she has failed to comply with 
established rules/directives, such as failure to agree to pay fees, and 
therefore the request is being returned for refinement.
    (5) Withdrawal. Requester contacted the naval activity by telephone 
or letter and advised he/she wishes to cancel the request or appeal.
    (6) Not an agency record. Requester advised the information/records 
he/she seeks is not an agency record as defined by Sec. 701.3 of Subpart 
A.
    (i) Consultation/coordination. The Department of the Navy processes 
thousands of FOIA requests annually. Because there is no central 
repository for records and no central release/denial authority, proposed 
responses shall be properly coordinated and appropriate officials 
consulted prior to a response being made to the requester. Specifically:
    (1) Naval activities and federal agencies with a substantial 
interest in the subject matter of the requested records should be 
consulted prior to release or denial of information.
    (2) Public affairs officers or the Chief of Information (CHINFO) 
should be consulted when a FOIA request is received from a news media 
representative, the records requested are considered newsworthy, or a 
denial of a request is expected to be publicly challenged. CHINFO should 
be promptly notified of any release having evident public affairs 
implications and a copy

[[Page 52]]

of the request and response should be provided.
    (3) The appropriate JAG attorney or field counsel should be 
consulted on the interpretation and application of this instruction 
where a denial of a request is expected to be judicially challenged.
    (j) Response to the requester. (1) Initial determinations to release 
or deny a record normally shall be made and the decision reported to the 
requester within 10 working days after receipt of the request by the 
official designated to respond. When the time for response becomes an 
issue, the official responsible for replying shall acknowledge to the 
requester the date of the receipt of the request.
    (2) When a decision is made to release a record, a copy should be 
made available promptly to the requester once he or she has complied 
with preliminary procedural requirements.
    (3) When a request for a record is denied in whole or in part, the 
official designated to respond shall inform the requester in writing of 
the IDA's name, rank, and title, shall cite the specific exemption(s) 
that apply in sufficient detail, and provide the requester with the name 
and address of the appellate authority, should the requester desire to 
file an appeal. When claiming exemption ``(b)(1),'' IDAs shall to the 
extent reasonably feasible, provide the requester with a summary of the 
applicable criteria for classification. Additionally, the marking ``For 
Official Use Only'' on a requested document does not constitute a basis 
for denial. Rather, it alerts the reviewer that the document may contain 
information which is protectible under exemptions (b)(2) through (b)(9). 
It is up to the reviewing official to advise the requester of the 
applicable exemptions and to release all ``reasonably segregable'' 
information.
    (k) Fees. The final response to the requester should contain 
information on the fee status of the request. Generally, information 
shall reflect one or more of the following conditions:
    (1) ``The fees for processing your request total $ . Please forward 
your check or money order made payable to the Treasurer of the United 
States to this office within 30 days.'' Subpart D of this part addresses 
when fees may be collected in advance of forwarding the documents.
    (2) All fees have been received.
    (3) Fees have been waived because they fall below the automatic fee 
waiver threshold.
    (4) A request for waiver/reduction of fees has been denied.
    (5) Fees have been waived or reduced from a specified amount to 
another specified amount because the rationale provided in support of a 
request for waiver has been accepted.
    (6) Fees due in a specified amount have not been received (see 
subpart D of this part for specific information on FOIA fees and fee 
rates for technical data).



Sec. 701.8  Records requiring special handling.

    The following actions shall be taken on requests for:
    (a) Classified records. (1) If a naval activity receives a request 
for information whose existence or nonexistence is itself classifiable 
under Executive Order 12356, 50 U.S.C. 401, the naval activity shall 
refuse to confirm or deny the existence or nonexistence of the requested 
information.
    (2) If a naval activity receives a request for documents in its 
custody that were classified by another agency, or which contains 
information classified by another agency, it shall refer the request and 
copies of the requested documents to the originating agency for 
processing, and may, after consultation with the originating agency 
inform the requester of the referral. Referred records shall be 
identified consistent with security requirements. In cases where the 
originating agency determines they can neither confirm nor deny the 
existence or nonexistence of the requested information, the referring 
agency shall deny the request.
    (3) If a naval activity receives a request for classified records or 
information originated by another naval activity, for which the head of 
the activity is not the classifying authority under OPNAV Instruction 
5520.1 series, ``Department of the Navy Information and

[[Page 53]]

Personnel Security Program Regulation,'' the request, copies of the 
requested documents, and a recommendation concerning release (if 
appropriate) shall promptly be readdressed and forwarded to the official 
having classification authority for the subject matter. That official 
will make a release determination concerning the classified information 
and notify the requester, or the activity originally receiving the 
request, in 10 working days of that determination. The naval activity 
that initially received the request has responsibility for notifying the 
requester of the referral. Referred records shall only be identified to 
the extent consistent with security requirements.
    (b) Naval Investigative Service (NIS)/Naval Criminal Investigative 
Service (NCIS) reports. The Director, Naval Criminal Investigative 
Service, is the release/denial authority for all NIS/NCIS reports. 
Accordingly, a request for a NIS/NCIS report shall be promptly 
readdressed to NCIS and the requester notified of the referral. Direct 
liaison with NCIS prior to the referral is encouraged.
    (c) Naval Inspector General reports. (1) The Naval Inspector General 
(NAVINSGEN) is the release/denial authority for all investigations and 
inspections conducted by or at the direction of NAVINSGEN and for any 
records held by any command that relate to Navy hotline complaints that 
have been referred to the NAVINSGEN. Accordingly, such requests shall be 
promptly readdressed and forwarded to NAVINSGEN and the requester 
notified of the referral. Requests for local command Inspector General 
reports which have not been referred to the NAVINSGEN may be released by 
the local command.
    (2) The Deputy Naval Inspector General for Marine Corps Matters 
(DNIGMC) is the release authority for all investigations conducted by 
the DNIGMC. Requests for local Marine Corps command Inspector General 
reports shall be coordinated with the DNIGMC.
    (d) Manual of the Judge Advocate General (JAGMAN) investigative 
reports and courts-martial records. NJAG is the release/denial authority 
for all JAGMAN investigative reports and courts-martial records. 
Requests for JAGMAN investigative reports and courts-martial records 
shall be promptly readdressed and forwarded to NJAG and the requester 
notified of the referral.
    (e) Mishap Investigation Reports (MIRs). The Commander, Naval Safety 
Center (COMNAVSAFECEN) is the release/denial authority for all requests 
for mishap investigation reports. Requests for mishap investigation 
reports shall be promptly readdressed and forwarded to COMNAVSAFECEN and 
the requester notified of the referral.
    (f) Naval Audit Service reports. The Auditor General of the Navy is 
the release/denial authority for all Naval Audit Service reports. 
Requests for audit reports shall be promptly readdressed and forwarded 
to the Auditor General and the requester notified of the referral.
    (g) Technical documents controlled by distribution statements. A 
request for a technical document to which ``Distribution Statement B, C, 
D, E, F, or X'' (see OPNAVINST 5510.1 series) is affixed shall be 
promptly readdressed and forwarded to the ``controlling DOD office'' for 
review and release determination. The naval activity that initially 
received the request is responsible for notifying the requester of the 
referral. Direct liaison with the cognizant official prior to referral 
is encouraged.
    (h) Records originated by other government agencies. When a request 
for records originated by an agency outside the Department of the Navy 
is received, promptly readdress and forward the request along with 
copies of the requested documents to the cognizant agency and notify the 
requester of the referral. That may be accomplished by sending a copy of 
the referral letter, less attachments, to the requester. The 10 working 
day time limit begins when the request is received by the cognizant 
agency. If additional guidance is required, contact CNO (N09B30) or CMC 
(ARAD), as appropriate. Direct liaison with the cognizant agency is 
encouraged to ensure expeditious handling of the request.
    (i) National Security Council (NSC)/White House Documents. The 
Director, NSC is the release/denial authority for NSC documents or White 
House files. Requesters seeking NSC or White

[[Page 54]]

House documents should be notified to write directly to the NSC or White 
House for such documents. Department of the Navy documents in which NSC 
or the White House has a concurrent reviewing interest shall be 
forwarded to the Office of the Assistant Secretary of Defense (Public 
Affairs) (OASD(PA)), ATTN: Directorate for Freedom of Information and 
Security Review (DFOISR), which shall effect coordination with the NSC 
or White House, and return the documents to the originating activity 
after review and a release determination is made. NSC or White House 
documents discovered in a naval activity's files which are responsive to 
a FOIA request shall be forwarded to the Director, Freedom of 
Information and Security Review, OASD(PA), for subsequent coordination 
with the NSC or White House and returned to the naval activity for a 
release determination. Additionally, in such instances an information 
copy should be provided to CNO (N09B30).
    (j) Naval Telecommunications Procedures (NTP) publications. The 
Commander, Naval Computer and Telecommunications Command 
(COMNAVCOMTELCOM) is the release/denial authority for NTP publications. 
Requests for NTP publications shall be promptly readdressed and 
forwarded to COMNAVCOMTELCOM and the requester notified of the referral. 
Direct liaison with COMNAVCOMTELCOM prior to referral is encouraged.
    (k) Naval Nuclear Propulsion Information (NNPI). The Director, Naval 
Nuclear Propulsion Program (N00N/NAVSEA 08) is the release/denial 
authority for all information concerning NNPI. Naval activities 
receiving such requests are responsible for searching their files for 
responsive records. If no documents are located, the naval activity 
should respond to the requester and provide N00N with a copy of the 
request and response. If documents are located, the request, responsive 
records, and a recommendation regarding release should be promptly 
readdressed to the CNO (N00N/NAVSEA 08), who will ensure proper 
coordination and review.
    (l) Medical quality assurance documents. The Chief, Bureau of 
Medicine and Surgery (BUMED) is the release/denial authority for all 
naval medical quality assurance documents as defined by Title 10, United 
States Code, Section 1102. Requests for medical quality assurance shall 
be promptly readdressed and forwarded to BUMED and the requester 
notified of the referral.
    (m) Records of a non-U.S. Government source. (1) When a request is 
received for a record that was obtained from a non-U.S. Government 
source, or for a record containing information clearly identified as 
provided by a non-U.S. Government source, the source of the record or 
information (known as ``the submitter'' for proprietary data under FOIA 
exemption (b)(4)) shall be promptly notified of the request and afforded 
reasonable time (e.g., 30 calendar days) to present any objections 
concerning release, unless it is clear that there can be no valid basis 
for objection. That practice is required for FOIA requests for data not 
deemed clearly exempt from disclosure under exemption (b)(4). If, for 
example, the record or information was provided with actual or 
presumptive knowledge of the non-U.S. Government source and established 
that it would be made available to the public upon request, there is no 
obligation to notify the source. Any objections shall be evaluated. The 
final decision to disclose information claimed to be exempt under 
exemption (b)(4) shall be made by an official equivalent in rank to the 
official who would make the decision to withhold that information under 
FOIA. When a substantial issue has been raised, the naval activity may 
seek additional information from the source of the information and 
afford the source and requester reasonable opportunities to present 
their arguments on legal and substantive issues prior to making an 
agency determination. When the source advises he or she will seek a 
restraining order or take court action to prevent release of the record 
or information, the requester shall be notified and action on the 
request normally shall not be taken until after the outcome of that 
court action is known. When the requester brings court action to compel 
disclosure, the submitter shall be promptly notified of this action.

[[Page 55]]

    (2) The coordination provisions of this paragraph also apply to any 
non-U.S. Government record in the possession and control of the 
Department of the Navy from multinational organizations, such as the 
North Atlantic Treaty Organization (NATO) and North American Air Defense 
(NORAD), or foreign governments. Coordination with foreign governments 
will be made through the Department of State.
    (n) Government Accounting Office (GAO) documents. On occasion, the 
Department of the Navy receives FOIA requests for GAO documents 
containing Department of the Navy information, either directly from 
requesters, or as referrals from the GAO. Since the GAO is outside the 
Executive Branch and therefore not subject to FOIA, all FOIA requests 
for GAO documents containing Department of the Navy information will be 
processed by the Department of the Navy. In those instances when a 
requester seeks a copy of an unclassified GAO report, naval activities 
may apprise the requester of its availability from the Director, GAO 
Distribution Center, ATTN: DHISF, P.O. Box 6015, Gaithersburg, MD 20877-
1450 under their cash sales program.
    (o) Mailing lists. Frequent FOIA requests are received for mailing 
lists of the home addresses and/or duty station addresses of naval 
personnel.
    (1) A list of home addresses is not releasable without the 
individuals' consent because it is a clearly unwarranted invasion of the 
individuals' personal privacy, and therefore, may be withheld from 
disclosure under 5 U.S.C. 552(b)(6), see subpart B of this part.
    (2) Unclassified information about service members may be withheld 
when disclosure ``would constitute a clearly unwarranted invasion of 
personal privacy'' under FOIA (exemption (b)(6) applies). Disclosure of 
lists of names and duty addresses or duty telephone numbers of members 
assigned to units that are stationed in foreign territories, routinely 
deployable, or sensitive, constitutes a clearly unwarranted invasion of 
personal privacy. Disclosure of such information poses a security threat 
to those service members because it reveals information about their 
degree of involvement in military actions in support of national policy, 
the type of naval unit to which they are attached, and their presence or 
absence from their households. Release of such information aids the 
targeting of service members and their families by terrorists or other 
persons opposed to implementation of national policy. Only an 
extraordinary public interest in disclosure of this information can 
outweigh the need and responsibility of the Navy to protect the 
tranquility and safety of service members and their families who 
repeatedly have been subjected to harassment, threats, and physical 
injury. Units covered by this policy are:
    (i) Those units located outside the 50 states, District of Columbia, 
Commonwealth of Puerto Rico, Guam, U.S. Virgin Islands, and American 
Samoa.
    (ii) Routinely deployable units. Those units that normally deploy 
from homeport or permanent station on a periodic or rotating basis to 
meet operational requirements or participate in scheduled exercises. 
This includes routinely deployable ships, aviation squadrons, 
operational staffs, and all units of the Fleet Marine Force (FMF). 
Routinely deployable units do not include ships undergoing extensive 
yard work or whose primary mission is support of training, e.g., yard 
craft and auxiliary aircraft landing training ships.
    (iii) Units engaged in sensitive operations. Those units primarily 
involved in training for or conduct of covert, clandestine, or 
classified missions, including units primarily involved in collecting, 
handling, disposing, or storing of classified information and materials. 
This also includes units engaged in training or advising foreign 
personnel. Examples of units covered by this exemption are nuclear power 
training facilities, SEAL Teams, Security Group Commands, Weapons 
Stations, and Communication Stations.
    (3) Except as otherwise provided, lists containing names and duty 
addresses of DOD personnel, both military and civilian, who are assigned 
to units in the Continental United States (CONUS) and U.S. territories 
shall be released regardless of who has initiated the request.
    (4) Exceptions to this policy must be coordinated with the CNO 
(N09B30) or

[[Page 56]]

CMC (ARAD) prior to responding to requests, including those from Members 
of Congress. The foregoing policy should be considered when weighing the 
releasability of the address or phone number of a specifically named 
individual.
[56 FR 66574, Dec. 24, 1991, as amended at 59 FR 29721, June 9, 1994]



Sec. 701.9  For Official Use Only (FOUO).

    FOUO is a marking which is placed on documents to alert the holder 
that they contain information that may be withheld under exemptions 
(b)(2) through (b)(9) of the FOIA. Because FOUO is not a security 
classification, exemption (b)(1) does not apply.
    (a) Prior FOUO application. The prior application of FOUO is not a 
conclusive basis for withholding a record requested under FOIA. When 
such a record is requested, it shall be evaluated to determine whether 
FOIA exemptions apply in withholding all or portions of the record. 
Information which is reasonably segregable and does not fall under a 
FOIA exemption(s) must be released to the requester.
    (b) Historical papers. Records such as notes, working papers, and 
drafts retained as historical evidence of Department of the Navy actions 
have no special status apart from FOIA exemptions.
    (c) Time to mark records. The marking of records at the time of 
their creation provides notice of FOUO content and facilitates review 
when a record is requested under the FOIA. Records requested under FOIA 
that do not bear such markings, shall not be assumed to be releasable 
without examination for the presence of information that requires 
continued protection and qualifies as exempt from public release.
    (d) Distribution statement. Information in a technical document that 
requires a distribution statement under OPNAVINST 5510.1 series, 
``Department of the Navy Information and Personnel Security Program 
Regulation,'' shall bear that statement and may be marked FOUO, as 
appropriate.
    (e) Location of markings. (1) An unclassified document that contains 
FOUO information shall have FOR OFFICIAL USE ONLY typed, stamped, or 
printed in capital letters centered at the bottom on the outside of the 
front cover (if any), on each page containing FOUO information, and on 
the outside of the back cover (if any).
    (2) An unclassified directive that contains FOUO information shall 
have FOR OFFICIAL USE ONLY typed, stamped, or printed in capital letters 
centered at the bottom on the outside of the front cover (if any), on 
each page of the directive top and bottom, and on the outside of the 
back cover (if any).
    (3) Within a classified document, an individual page that contains 
both FOUO and classified information shall be marked at the top and 
bottom with the highest security classification of information appearing 
on the page.
    (4) Within a classified or unclassified document, an individual page 
that contains FOUO information, but does not contain classified 
information, shall have FOR OFFICIAL USE ONLY typed, stamped, or printed 
in capital letters centered at the top and bottom edge of the page.
    (5) Other records, such as photographs, films, cassette tapes, 
movies, or slides, shall be marked FOR OFFICIAL USE ONLY so that a 
recipient or viewer knows the status of the information.
    (6) Unclassified automatic data processing (ADP) media with FOUO 
information shall be marked as follows:
    (i) An unclassified deck of punched or aperture cards with FOUO 
information shall be marked as a single document with FOR OFFICIAL USE 
ONLY marked on the face of the first and last card, and on the top of 
the deck.
    (ii) An unclassified magnetic tape, cassette, or disk pack that 
contains FOUO information shall have FOR OFFICIAL USE ONLY marked 
externally on a removable label. The resulting hard copy report or 
computer printout shall reflect the FOR OFFICIAL USE ONLY marking on the 
top and bottom of each page. It may be accomplished by using a 
programmable header or marking the hard copy manually.
    (7) FOUO material transmitted outside the Department of the Navy 
requires an expanded marking to explain the significance of the FOUO 
marking. This may be accomplished by typing or stamping the following 
statement on

[[Page 57]]

the record prior to transfer: ``This document contains information 
EXEMPT FROM MANDATORY DISCLOSURE under the FOIA. 
Exemption(s)...apply(ies).''
    (f) Release and transmission procedures. Until FOUO status is 
terminated, the following release and transmission instructions apply:
    (1) FOUO information may be disseminated within Department of the 
Navy activities and between officials of the Department of the Navy and 
contractors and grantees who conduct official business for the 
Department of the Navy or Department of Defense. Recipients shall be 
made aware of the status of such information, and transmission shall be 
by means that preclude unauthorized public disclosure. Transmittal 
documents shall call attention to the presence of FOUO attachments.
    (2) Department of the Navy holders of FOUO information may convey 
such information to officials in other departments or agencies of the 
executive and judicial branches to fulfill a governmental function, 
subject to any limitations contained in the Privacy Act (PA) (see 
Subpart F of this Part 701), pertaining to disclosure of personal 
information from PA record systems. When transmitting these records, 
ensure they are marked FOR OFFICIAL USE ONLY, and the recipient is 
advised the information has been exempt from public disclosure under 
FOIA and that special handling instructions do or do not apply. For 
purposes of disclosing records, Department of Defense is the ``agency.''
    (3) Records released to Congress or the GAO should be reviewed to 
see if the information warrants FOUO status. If not, prior FOUO markings 
shall be removed. If the withholding criteria are met, the records shall 
be marked FOUO and the recipient provided an explanation for such 
exemption and marking. Alternatively, the recipient may be requested, 
without marking the record, to protect it against public disclosure for 
reasons that are explained.
    (4) Each part of electronically transmitted messages containing FOUO 
information shall be marked appropriately. Unclassified messages 
containing FOUO information shall contain the abbreviation ``FOUO'' 
before the beginning of the text. Such messages shall be transmitted per 
communications security procedures in ACP-121 (United States Supplement 
1, ``Communication Instructions'') for FOUO information.
    (g) Transporting FOUO information. Records which contain FOUO 
information shall be transported in a manner that precludes disclosure 
of contents. If not commingled with classified information, FOUO 
information may be sent via first-class mail or parcel post. Bulky 
shipments that otherwise qualify under postal regulations may be sent 
fourth-class mail.
    (h) Safeguarding FOUO information. (1) During normal working hours, 
records determined to be FOUO shall be placed in an out-of-sight 
location if the work area is accessible to non-governmental personnel.
    (2) At the close of business, FOUO records shall be stored to 
preclude unauthorized access. Filing such material with other 
unclassified records in unlocked files, desks, or similar containers is 
adequate when U.S. Government or government contractor internal building 
security is provided during non-duty hours. When internal security 
control is not exercised, locked buildings or rooms normally provide 
adequate after-hours protection. If such protection is not considered 
adequate, FOUO material shall be stored in locked receptacles, such as 
file cabinets, desks, or bookcases. FOUO records that are subject to the 
provisions of the PA (see Subpart F of this Part 701) shall meet the 
safeguards for that group of records as outlined in the PA systems 
notice.
    (3) Guidance for safeguarding media marked FOUO and processed by an 
ADP system, activity, or network is addressed in OPNAVINST 5239.1 
series, ``Department of the Navy Automatic Data Processing Security 
Program.''
    (i) Termination. The originator or other competent authority, such 
as an IDA or appellate authority, will terminate FOUO markings or status 
when the information no longer requires protection from public 
disclosure. When FOUO status is terminated, all known holders shall be 
notified as practical. Upon notification, holders shall remove

[[Page 58]]

the FOUO markings. Records in file or storage need not be retrieved 
solely for that purpose.
    (j) Disposal. (1) Non-record copies of FOUO material (including hard 
copy reports and computer printouts) may be destroyed by tearing each 
copy into pieces to preclude reconstructing, and disposed in regular 
trash containers. When local circumstances or experience indicates that 
this destruction method is insufficient, local authorities may direct 
other methods while considering the additional expense balanced against 
the sensitivity of FOUO information in the records. FOUO information on 
unclassified magnetic storage media shall be disposed of by overwriting 
the media one time with any one character. Storage areas within an ADP 
system (internal memory, buffers, registers, and similar storage areas) 
may be cleared by using a hardware clear switch, a power-on reset cycle, 
or a program designated to overwrite the storage area.
    (2) Record copies of FOUO documents shall be disposed of following 
the disposal standards established under SECNAVINST 5212.5C (Records 
Disposal Manual) for the particular kind of record.
    (k) Unauthorized disclosure. The unauthorized disclosure of FOUO 
records does not constitute an unauthorized disclosure of Department of 
the Navy information classified for security purposes. However, 
appropriate administrative or disciplinary action shall be taken against 
those responsible. Unauthorized disclosure of FOUO information that is 
protected by the PA may result in civil and criminal sanctions against 
responsible person(s). The naval activity that originated the FOUO 
information shall be informed of its unauthorized disclosure.
[56 FR 66574, Dec. 24, 1991, as amended at 59 FR 29722, June 9, 1994]



Sec. 701.10  FOIA appeals/judicial actions.

    (a) How to file an appeal. The following guidelines should be 
followed by individuals wishing to appeal a denial of information, a 
request for waiver/reduction of fees, or a ``no record'' response:
    (1) The appeal must be received by the cognizant appellate authority 
(i.e., NJAG or OGC) within 60 days of the date of the response.
    (2) The appeal letter must be in writing and requesters should 
provide a copy of the IDA's response when filing a written appeal to the 
Navy's appellate authorities (OGC or NJAG, depending on subject matter), 
regarding an IDA's decision that a record is exempt in whole or in part 
or because a naval activity denied a request for a waiver/reduction of 
fees. The requester should include a copy of the denial letter and 
provide supporting rationale on why the appeal should be granted. The 
requester may appeal a ``no records'' response if he/she believes an 
adequate search of files was not conducted.
    (b) Time of receipt. The time limits for responding to a FOIA appeal 
commence when the appeal reaches the office of the appellate authority 
having jurisdiction over the record. Misdirected appeals should be 
referred expeditiously to the proper appellate authority.
    (c) Appellate authorities.--(1) Responsibility and authority. NJAG 
and OGC are authorized to adjudicate appeals made to the Secretary of 
the Navy (SECNAV) on denials of requests for copies of Department of the 
Navy records or portions thereof, or refusals to waive or reduce fees on 
matters within their respective areas of cognizance. That includes the 
authority to release or withhold records, or portions thereof, waive or 
reduce fees, and to act as required by SECNAV for appeals under 5 U.S.C. 
552 and subparts A, B, C, and D of this part. NJAG and OGC are further 
authorized to delegate this authority to a designated Assistant NJAG and 
the Principal Deputy OGC or Deputy General Counsel (Logistics), 
respectively, under such terms and conditions as they may deem 
appropriate.
    (2) Respective areas of cognizance. As delineated in SECNAV 
Instructions 5430.25D and 5430.27A (NOTAL), the respective areas of 
cognizance of NJAG and OGC for providing legal services for the 
Department of the Navy are:
    (i) NJAG. In addition to military law, all matters except those 
falling under the cognizance of OGC.
    (ii) OGC. Business and commercial law aspects of:
    (A) Acquisition, custody, management, transportation, taxation, and

[[Page 59]]

disposition of real and personal property and the procurement of 
services, including the fiscal, budgetary, and accounting aspects 
thereof; excepting, however, tort claims and admiralty claims arising 
independently of contracts, and matters relating to the naval petroleum 
reserves;
    (B) Operations of the Military Sealift Command, excepting tort and 
admiralty claims arising independently of contracts;
    (C) Office of the Comptroller of the Navy;
    (D) Naval Computer and Telecommunications Command;
    (E) Patents, inventions, trademarks, copyrights, royalty payments, 
and similar matters;
    (F) Procurement of foreign military sales, co-production and 
cooperative research and development and related agreements, NATO 
standardization agreements, and matters relating to the Arms Exports 
Control Act;
    (G) Department of the Navy litigation before the Armed Services 
Board of Contract Appeals; and,
    (H) Civilian personnel law matters on employing present and former 
Navy civilian employees; and
    (I) Environmental matters.
    (d) Addresses for appeals. Appeals should be addressed to the 
cognizant appellate authority. The addresses of the SECNAV's designees 
are:
    (1) Judge Advocate General, Navy Department, 200 Stovall Street, 
Alexandria, VA 22332-2400.
    (2) General Counsel of the Navy, 2211 Jefferson Davis Highway, 
Arlington, VA 22244-5103.
    (e) Time limits for filing FOIA appeals. (1) The requester should 
file the appeal so it reaches the appellate authority not later than 60 
calendar days from the date of the initial denial letter. At the end of 
60 calendar days, the case may be considered closed; however, the 
requester may file litigation for denial of the appeal. If the requester 
was provided several incremental determinations for a single request, 
the time limit for filing the appeal begins when the requester receives 
the last response. Records which are denied shall be retained for a 
period of six years to meet the statute of limitations of claims 
requirement.
    (2) Final determinations on appeals shall normally be made within 20 
working days after receipt.
    (f) Delay in responding to a FOIA appeal. If additional time is 
needed due to unusual circumstances, the final decision may be delayed 
for the number of working days (not to exceed 10), that were not 
utilized as additional time for responding to the initial request. If a 
determination cannot be made and the requester is notified within 20 
working days, the appellate authority shall acknowledge to the requester 
in writing the date of receipt of the appeal, circumstances for the 
delay, and anticipated date for substantive response. Requesters may be 
advised that if the delay exceeds the statutory extension or is for 
reasons other than ``unusual circumstances,'' they may consider their 
administrative remedies exhausted. Further, requesters should be advised 
that they may wait for a substantive response without prejudicing their 
right to judicial remedy. The appellate authority shall continue to 
process the case expeditiously whether or not the requester seeks a 
court order for release of the record(s). A copy of any response 
provided subsequent to filing of a complaint shall be forwarded to the 
Department of Justice.
    (g) Action upon receipt. Upon receipt of a FOIA appeal, NJAG or OGC 
shall inform the cognizant IDA of receipt of the appeal. The appellate 
authority will seek documentation from the IDA from which to make a 
determination. Normally, the IDA will be requested to forward a copy of 
the initial request, a copy of the response, a copy of excised and 
unexcised documents, and supporting rationale for continued withholding 
(if applicable) to the appellate authority within 10 working days.
    (h) Consultation/coordination. (1) The Assistant for Naval 
Investigative Matters and Security (OP-09N) may be consulted to resolve 
inconsistencies or disputes involving classified records.
    (2) Direct liaison with appropriate officials within the Department 
of the Navy and other interested federal agencies is authorized at the 
discretion of the appellate authority, who also coordinates with 
appropriate Department

[[Page 60]]

of Defense officials and Justice as prescribed by directives of the 
Secretary of Defense (SECDEF).
    (3) SECNAV or appropriate Civilian Executive Assistants shall be 
consulted and kept advised of cases with unusual implications. CHINFO 
shall be consulted and kept advised on cases having public affairs 
implications.
    (i) Response to the requester. (1) When an appellate authority makes 
a determination to release all or a portion of records withheld by an 
IDA, a copy of the records released should be promptly forwarded to the 
requester after compliance with any procedural requirements, such as 
payment of fees.
    (2) Final denial to provide a requested record or to approve a 
request to waive or reduce fees must be made in writing by the appellate 
authority. The response shall include the following:
    (i) An explanation of the basis for the denial including the 
applicable statutory exemption(s) invoked.
    (ii) If the final denial is based in whole or in part on a security 
classification, the explanation shall include a determination that the 
record meets the cited criteria and rationale of the governing Executive 
Order, is based on a declassification review, and the review confirmed 
the continuing validity of the security classification.
    (iii) The response shall advise the requester that the material 
denied does not contain reasonably segregable portions.
    (iv) The response shall advise the requester of the right to 
judicial review.
    (v) The final denial shall include the name and title of the 
official responsible for the denial.
    (vi) An information copy, less attachments, should be provided to 
CNO (N09B30).
    (j) Judicial actions. A requester may seek an order from a U.S. 
District Court to compel release of a record after exhaustion of 
administrative remedies, i.e., the IDA or appellate authority denied 
release or when a naval activity failed to respond within the prescribed 
time limits.
    (1) Burden of proof. The naval activity has the burden of proof to 
justify its refusal to provide a record. The court evaluates the case de 
novo (anew) and may examine any requested record in camera (in private) 
to determine whether the denial was justified.
    (2) Actions by the court. (i) When a naval activity fails to make a 
determination within the statutory time limits but can demonstrate due 
diligence in exceptional circumstances, the court may retain 
jurisdiction and allow the naval activity additional time to complete 
its review of the records.
    (ii) If the court determines that the requester's complaint is 
substantially correct, it may require the United States to pay 
reasonable attorney fees and other litigation costs.
    (iii) When the court orders the release of denied records, it may 
also issue a written finding that the circumstances surrounding the 
withholding raise questions whether civilian personnel acted arbitrarily 
and capriciously. In these cases, the special counsel of the Merit 
Systems Protection Board will conduct an investigation to determine 
whether or not disciplinary action is warranted. The naval activity is 
obligated to take the action recommended by the special counsel.
    (iv) When a naval activity fails to comply with the court order to 
produce records that have been withheld improperly, the court may punish 
the responsible official for contempt.
    (3) Non-United States Government source information. A requester may 
bring suit in a U.S. District Court to compel the release of records 
obtained from a non-government source or records based on information 
obtained from a non-government source. The source shall be notified 
promptly of the court action. If the source advises that it is seeking 
court action to prevent release, the naval activity shall defer 
answering or otherwise pleading to the complaint as long as permitted by 
the Court or until a decision is rendered in the court action initiated 
by the source, whichever is sooner.
[56 FR 66574, Dec. 24, 1991, as amended at 59 FR 29722, June 9, 1994]

[[Page 61]]



Sec. 701.11  Publication, indexing, and public inspection of certain classes of records.

    Secretary of the Navy Instruction 5720.45\2\, ``Indexing, Public 
Inspection, and Federal Register Publication of Department of the Navy 
Directives and other Documents Affecting the Public,'' assigns the heads 
of Department of the Navy components, Commanders of the Naval Systems 
Commands, and the Military Sealift Command responsibilities for 
executing the following additional requirements on records under their 
respective cognizance:
---------------------------------------------------------------------------


    \2\ Copies may be obtained if needed, from the Commanding Officer, 
U.S. Naval Publications and Forms Center, 5801 Tabor Avenue, 
Philadelphia, PA 19120-5099.
---------------------------------------------------------------------------

    (a) Publication of certain classes of Department of the Navy 
organizational, regulatory, policy, procedural, interpretative, and 
substantive records on a current basis in the Federal Register, for the 
guidance of the public.
    (b) Maintenance of current indexes of various classes of records 
which are precedential for decisions affecting members of the public, 
and publication of such indexes at least quarterly or making them 
available to the public by other authorized means.
    (c) Making the above records and indexes regularly available for 
public inspection and copying at naval locations.



                  Subpart B--FOIA Exemption Guidelines

    Source: 56 FR 66586, Dec. 24, 1991, unless otherwise noted.

    Editorial Note: At 56 FR 66586, 66590, Dec. 24, 1991, Secs. 701.21--
701.32 (subparts B and C) were revised. Section 701.31 appears at both 
subpart B and subpart C. The Agency will publish a correction in the 
Federal Register at a later date.



Sec. 701.21  General.

    (a) The FOIA is a disclosure statute whose goal is an informed 
citizenry. Because of this records are considered to be releasable 
unless they contain information that qualifies for withholding under one 
or more of the nine FOIA exemptions. The exemptions are identified as 5 
U.S.C. 552 number (b)(1) through (b)(9).
    (b) Even though a document may contain information which qualifies 
for withholding under one or more FOIA exemptions, FOIA requires that 
all ``reasonably segregable'' information be provided to the requester, 
unless the segregated information would have no meaning. In other words, 
redaction is not required when it would reduce the balance of the text 
to ``unintelligible gibberish.''
    (c) The decision to withhold information in whole or in part based 
on one or more of the FOIA exemptions requires the signature of an 
Initial Denial Authority (IDA). See paragraph (e) of Sec. 701.5 for a 
listing of IDAs.
    (d) The following types of records may be withheld in whole or in 
part from public disclosure under FOIA, unless otherwise prescribed by 
law. A discretionary release to one requester may preclude the 
withholding of the same records under a FOIA exemption if the record is 
subsequently requested by someone else. In applying exemptions, the 
identity of the requester and the purpose for which the record is sought 
are irrelevant with the exception that an exemption may not be invoked 
where the particular interest to be protected is the requester's 
interest.



Sec. 701.22  Exemption (b)(1).

    Those properly and currently classified in the interest of national 
defense or foreign policy, as specifically authorized under criteria 
established by Executive Order (i.e., Executive Order 12356) and 
implemented by regulations. Although material is not classified at the 
time of the FOIA request, a classification review may be undertaken to 
determine whether the information should be classified. The procedures 
in OPNAVINST 5510.1H, ``Department of the Navy Information and Personnel 
Security Program Regulation'' apply. In addition, this exemption shall 
be invoked when the following situations are apparent:
    (a) The fact of the existence or nonexistence of a record would 
itself reveal classified information. In that situation, naval 
activities shall neither confirm nor deny the existence or nonexistence 
of the record being requested.

[[Page 62]]

A ``refusal to neither confirm nor deny'' response must be used 
consistently, not only when a record exists, but also when a record does 
not exist. Otherwise, the pattern of using a ``no record'' response when 
a record does not exist, and a ``refusal to neither confirm nor deny'' 
when a record does exist will itself disclose national security 
information. That kind of response is referred to as a ``Glomar'' 
denial.
    (b) Information that concerns one or more of the classification 
categories established by Executive order and OPNAVINST 5510.1 series, 
``Department of the Navy Information and Personnel Security Program 
Regulation,'' shall be classified if its unauthorized disclosure, either 
by itself or in the context of other information, reasonably could be 
expected to cause damage to the national security.



Sec. 701.23  Procedures for processing classified documents.

    (a) The threshold for claiming exemption (b)(1) is that the document 
is properly and currently classified. Because of that, naval activities 
should normally refer requests for classified documents to the activity 
that originally classified the information. If the referring activity 
has an interest in the matter, they should also provide the receiving 
activity with a release determination. The receiving activity will then 
conduct a declassification review and apprise the requester of their 
determination, i.e., documents are properly and currently classified and 
therefore must be denied; portions of the documents are releasable; etc. 
Only an official authorized under Sec. 701.5 to deny requests and who 
has cognizance over the classified matters in the records, may deny 
records. Such denial must be based on an approved security 
classification guide issued under OPNAVINST 5510.1 series or OPNAVINST 
5513 series; resource document originated by another naval activity or 
government agency; an original classification determination with written 
justification for classification, and the justification remains valid; 
or, not readily identifiable, but classification is believed warranted 
because of classification criteria in OPNAVINST 5510.1 series, 
``Department of the Navy Information and Personnel Security Program.''
    (b) Material that is not classified at the time of the FOIA request 
may undergo a classification review to determine whether the information 
should be classified (ensure strict compliance with the provisions of 
OPNAVINST 5510.1 series regarding classification of information after 
receipt of a FOIA request).
    (c) Executive Order 12356 provides that ``information shall be 
classified as long as required by national security considerations, and 
time frame no longer triggers automatic declassification.''
    (d) If the original classifier of a record receives a request for 
the record and upon review determines that there is no basis for 
continued classification, either in whole or part, the record or 
portions of it should be declassified. The document also undergoes 
another review to determine whether any other FOIA exemptions apply to 
the declassified information.
    (e) In some instances, the compilation of unclassified information 
may result in the classification of the record as a whole. This is 
called the ``mosaic'' approach--the concept that apparently harmless 
pieces of information, when assembled together could reveal a damaging 
picture.



Sec. 701.24  Exemption (b)(2).

    Those related solely to the internal personnel rules and practices 
of an agency. This exemption has two profiles, high (b)(2) and low 
(b)(2).
    (a) Records qualifying under high (b)(2) are those containing or 
constituting statutes, rules, orders, manuals, directives, and 
instructions the release of which would allow circumvention of the 
records thereby substantially hindering the effective performance of a 
significant function of the Department of the Navy. Examples include:
    (1) Those operating rules, guidelines, and manuals for Department of 
the Navy investigators, inspectors, auditors, or examiners that must 
remain privileged in order for the naval activity to fulfill a legal 
requirement.
    (2) Personnel and other administrative matters, such as examination 
questions and answers used in training

[[Page 63]]

courses or in the determination of the qualifications of candidates for 
employment, entrance on duty, advancement, or promotion.
    (3) Computer software, the release of which would allow 
circumvention of a statute or Department of the Navy rules, regulations, 
orders, manuals, directives, or instructions. In this situation, the use 
of the software must be closely examined to ensure the possibility of 
circumvention exists.
    (4) Security classification guides.
    (b) Records qualifying under the low (b)(2) profile are those that 
are trivial and housekeeping in nature for which there is no legitimate 
public interest or benefit to be gained by release, and it would 
constitute an administrative burden to process the request in order to 
disclose the records. Examples include, rules of personnel's use of 
parking facilities or regulation of lunch hours, statements of policy as 
to sick leave, and trivial administrative data such as file numbers, 
mail routing stamps, initials, data processing notations, brief 
references to previous communication, and other like administrative 
markings.



Sec. 701.25  Exemption (b)(3).

    Those concerning matters that a statute specifically exempts from 
disclosure by terms that permit no discretion on the issue, or under 
criteria established by that statute for withholding or referring to 
particular types of matters to be withheld. Authorization or requirement 
may be found in the statute itself or in Executive orders or regulations 
authorized by, or in implementation of a statute. Examples include:
    (a) National Security Agency Information Exemption, Pub. L. 86-36, 
Section 6.
    (b) Confidentiality of identity of employee who complains to the IG 
(5 U.S.C. App., Inspector General Act of 1978, section 7).
    (c) Ethics in Government Act of 1978--Protecting Financial 
Disclosure Reports of Special Government Employees (5 U.S.C. App., 
Ethics in Government Act of 1978, section 207(a) (1) and (2)).
    (d) Civil Service Reform Act--Representation Rights and Duties, 
Labor Unions, 5 U.S.C. 7114(b)(4).
    (e) Authority to Withhold Unclassified Special Nuclear Weapons 
Information, 10 U.S.C. 128. This statute prohibits the unauthorized 
dissemination of unclassified information pertaining to security 
measures, including security plans, procedures, and equipment for the 
physical protection of special nuclear material.
    (f) Authority to Withhold Unclassified Technical Data with Military 
or Space Application, 10 U.S.C. 130.
    (g) Action on Reports of Selection Boards, 10 U.S.C. 618.
    (h) Confidentiality of Medical Quality Records: Qualified Immunity 
Participants, 10 U.S.C. 1102.
    (i) Confidentiality of Financial Records, 12 U.S.C. 3403.
    (j) Communication Intelligence, 18 U.S.C. 798.
    (k) Confidential Status of Patent Applications, 35 U.S.C. 122.
    (l) Secrecy of Certain Inventions and Withholding of Patents 
(specific applicable section(s) must be involved, 35 U.S.C. 181 through 
188.
    (m) Confidentiality of Inventions Information, 35 U.S.C. 205.
    (n) Procurement Integrity, 41 U.S.C. 423.
    (o) Confidentiality of Patient Records, 42 U.S.C. 290dd-2.
    (p) Information regarding Atomic Energy: Restricted and Formerly 
Restricted Data (Atomic Energy Act of 1954), specific applicable 
exemptions must be invoked (e.g., 42 U.S.C. 2161 through 2168).
    (q) Protection of Intelligence Sources and Methods, 50 U.S.C. 
403(d)(3).
    (r) Protection of identities of US undercover intelligence officers, 
agents, informants and sources, 50 U.S.C. 421.
    (s) Examples of statutes which DO NOT qualify under exemption (b)(3) 
include: 5 U.S.C. 552a, Privacy Act; 17 U.S.C. 101 et seq., Copyright 
Act; 18 U.S.C. 793, Gathering, Transmitting or Losing Defense 
Information to Aid Foreign Governments; 18 U.S.C. 1905, Trade Secrets 
Act; and 28 U.S.C. 1498, Patent and Copyright Cases.
[56 FR 66574, Dec. 24, 1991, as amended at 59 FR 29722, June 9, 1994]

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Sec. 701.26  Exemption (b)(4).

    Those containing trade secrets or commercial or financial 
information that a naval activity receives from a person or organization 
outside the Government with the understanding that the information or 
record will be retained on a privileged or confidential basis. Records 
within the exemption must contain trade secrets, or commercial or 
financial records, the disclosure of which is likely to cause 
substantial harm to the competitive position of the source providing the 
information, impair the government's ability to obtain necessary 
information in the future, or impair some other legitimate government 
interest. Examples include:
    (a) Commercial or financial information received in confidence in 
connection with loans, bids, contracts, or proposals, as well as other 
information received in confidence or privileged such as trade secrets, 
inventions and discoveries, or other proprietary data.
    (b) Statistical data and commercial or financial information 
concerning contract performance, income, profits, losses, and 
expenditures, if offered and received in confidence from a contractor or 
potential contractor.
    (c) Personal statements given in the course of inspections, 
investigations, or audits, when such statements are received in 
confidence from the individual and retained in confidence because they 
reveal trade secrets or commercial or financial information normally 
considered confidential or privileged.
    (d) Financial data provided in confidence by private employers in 
connection with local wage surveys used to fix and adjust pay schedules 
applicable to the prevailing wage rate for employees within the 
Department of the Navy.
    (e) Scientific and manufacturing processes or developments 
concerning technical or scientific data or other information submitted 
with an application for a research grant, or with a report while 
research is in progress.
    (f) Technical or scientific data developed by a contractor or 
subcontractor exclusively at private expense, or developed in part with 
federal funds and in part at private expense, where the contractor or 
subcontractor retains a legitimate proprietary interest in the data 
under 10 U.S.C. 2320-2321 and DOD Federal Acquisition Regulation 
Supplement (DFARS), subpart 27.4. Technical data developed exclusively 
with federal funds may be withheld under exemption (b)(3) if it meets 
the criteria of 10 U.S.C. 130.
    (g) Computer software which is copyrighted under the Copyright Act 
of 1976 (17 U.S.C. 106), the disclosure of which would have an adverse 
impact on the potential market value of a copyrighted work.

Note: The status of unit prices in awarded in government contracts, once 
a controversial issue, has become more settled with recent court 
decisions. The courts have held that disclosure of unit prices would not 
directly reveal confidential proprietary information, such as a 
company's overhead, profit rates, or multiplier, and that the 
possibility of competitive harm was thus too speculative.



Sec. 701.27  Exemption (b)(5).

    Those records containing internal advice, recommendations, and 
subjective evaluations, as contrasted with factual matters, that are 
reflected in records pertaining to the decision-making process of an 
agency, whether between agencies or between Department of Defense and 
Department of the Navy components, except as provided in Sec. 701.27 
number (b) through (e). Also exempted are records pertaining to the 
attorney-client privilege and the attorney work-product privilege.
    (a) Examples include:
    (1) Nonfactual portions of staff papers, to include after-action 
reports and situation reports containing staff evaluations, advice, 
opinions, or suggestions.
    (2) Advice, suggestions, or evaluations prepared on behalf of 
Department of the Navy individual consultants or by boards, committees, 
councils, groups, panels, conferences, commissions, task forces, or 
other similar groups formed for the purpose of obtaining advice and 
recommendations.
    (3) Nonfactual portions of evaluations by Department of the Navy 
personnel of contractors and their products.

[[Page 65]]

    (4) Information of a speculative, tentative, or evaluative nature on 
proposed plans to procure, lease, or otherwise acquire and dispose of 
materials, real estate, facilities, or functions, when such information 
would provide undue or unfair competitive advantage to private personal 
interests or would impede legitimate government functions.
    (5) Trade secret or other confidential research development, or 
commercial information owned by the Government, where premature release 
is likely to affect the Government's negotiating position or other 
commercial interests.
    (6) Records that are exchanged among agency personnel and between 
Department of the Navy, Department of Defense, or other agencies in 
preparation for anticipated administrative proceeding by an agency or 
litigation before any federal, state, or military court, as well as 
records that qualify for the attorney-client privilege.
    (7) Portions of official reports of inspection, reports of the 
Inspector Generals, audits, investigations, or surveys pertaining to 
safety, security, of the internal management, administration, or 
operation of one or more naval activities, when these records have 
traditionally been treated by courts as privileged against disclosure in 
litigation.
    (8) Computer software meeting the standards of Sec. 701.3(b)(3) 
which is deliberative in nature, the disclosure of which would inhibit 
or chill the decision making process. In that situation, the use of 
software must be closely examined to ensure its deliberative nature.
    (9) Planning, programming, and budgetary information which is 
involved in the defense planning and resource allocation process.
    (b) If any such intra- or interagency record or reasonably 
segregable portion of such record would be made available routinely 
through the ``discovery process'' (the legal process by which litigants 
obtain information from each other relevant to the issues in a trial or 
hearing) in the course of litigation with Department of the Navy, such 
record, should not be withheld even though discovery has not been sought 
in actual litigation. If, the information could only be made available 
through the discovery process by special order of the court based on the 
needs of a litigant balanced against the interests of the Department of 
the Navy in maintaining its confidentiality, the record or document need 
not be made available under this instruction. Consult with legal counsel 
to determine whether exemption (b)(5) material would be routinely made 
available through the discovery process.
    (c) Intra- or interagency memoranda or letters that are factual, or 
those reasonably segregable portions that are factual, are routinely 
available through ``discovery'' and shall be made available to a 
requester, unless the factual material is otherwise exempt from release, 
inextricably intertwined with the exempt information, so fragmented as 
to be uninformative, or so redundant of information already available to 
the requester as to provide no new substantive information.
    (d) A direction or order from a superior to a subordinate contained 
in internal communication cannot be withheld from a requester if it 
constitutes policy guidance or a decision, as distinguished from a 
discussion of preliminary matters or a request for information or advice 
that would compromise the decision-making process.
    (e) An internal communication on a decision subsequently made a 
matter of public record must be made available to a requester when the 
rationale for the decision is expressly adopted or incorporated by 
reference in the record containing the decision.



Sec. 701.28  Exemption (b)(6).

    Information in personnel and medical files, and similar files, that 
if disclosed to the requester would result in a clearly unwarranted 
invasion of personal privacy. Release of information about an individual 
contained in a Privacy Act (PA) system of records that would constitute 
a clearly unwarranted invasion of privacy is prohibited, and could 
subject the releaser to civil and criminal penalties.
    (a) Examples of files other than personnel and medical files 
containing similar personal information include:
    (1) Those compiled to evaluate or adjudicate the suitability of 
candidates

[[Page 66]]

for civilian employment or membership in the Armed Forces, and the 
eligibility of individuals (civilian, military, or contractor employees) 
for security clearances, or for access to particularly sensitive 
classified information.
    (2) Files containing reports, records, and other material pertaining 
to personnel matters in which administrative action, including 
disciplinary action, may be taken.
    (b) Home addresses are normally not releasable without the consent 
of the individuals concerned. In addition, lists of Department of the 
Navy military and civilian personnel's names and duty addresses who are 
assigned to units that are sensitive, routinely deployable, or stationed 
in foreign territories can constitute a clearly unwarranted invasion of 
personal privacy.
    (1) Privacy interest. A privacy interest may exist in personal 
information even though the information has been disclosed at some place 
and time. If personal information is not freely available from sources 
other than the Federal Government, a privacy interest exists in its 
nondisclosure. The fact that the Federal Government expended funds to 
prepare, index and maintain records on personal information, and the 
fact that a requester invokes FOIA to obtain these records indicates the 
information is not freely available.
    (2) Published telephone directories, organizational charts, rosters 
and similar materials for personnel assigned to units that are 
sensitive, routinely deployable, or stationed in foreign territories are 
withholdable under exemption (b)(6).
    (c) This exemption is relevant to a request for information that is 
intimate to an individual or that possibly could have adverse effects 
upon that individual or his or her family if disclosed. Subpart F of 
this Part 701 lists several examples of non-derogatory information about 
the official character of a naval member or employee that can routinely 
be disclosed to a member of the public without constituting a clearly 
unwarranted invasion of personal privacy of the individual concerned.
    (d) Individuals' personnel, medical, or similar files may be 
withheld from them or their designated legal representative only to the 
extent consistent with PA.
    (e) When determining whether a release is ``clearly unwarranted,'' 
the public interest in release must be balanced against the sensitivity 
of the privacy interest threatened. For example, lists of names and duty 
addresses of Department of the Navy personnel (civilian and military) 
assigned to units that are sensitive, routinely deployable, or stationed 
in foreign territories must be withheld because release could aid in the 
targeting of Department of the Navy employees and their families by 
terrorists. See paragraph (p) of Sec. 701.8 regarding requests for 
mailing lists.
    (f) When withholding information solely to protect the personal 
privacy of the subject of the record, information should not be withheld 
from that individual or from his or her designated representative. The 
personal privacy of others discussed in that record may constitute a 
basis for deleting reasonably segregable portions of the record even 
when providing it to the subject of the record. This exemption shall not 
be exercised in an attempt to protect the privacy of a deceased person 
but may be used to protect the privacy of the deceased person's family.
    (g) Individual's personnel, medical, or similar file may be withheld 
from them or their designated legal representative only as consistent 
with SECNAVINST 5211.5C, ``Personal Privacy and Rights of Individuals 
Regarding Records Pertaining to Themselves.''
    (h) A clearly unwarranted invasion of the privacy of the persons 
identified in a personnel, medical, or similar record may constitute a 
basis for deleting those reasonably segregable portions of that record, 
even when providing it to the subject of the record. When withholding 
personal information from the subject of the record, legal counsel 
should first be consulted.



Sec. 701.29  Exemption (b)(7).

    Records or information compiled for law enforcement purposes, (i.e., 
civil, criminal, or military law, including

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the implementation of Executive orders or regulations issued pursuant to 
law). This exemption may be invoked to prevent disclosure of documents 
not originally created for, but later gathered for law enforcement 
purposes.
    (a) This exemption applies, however, only to the extent that 
production of such law enforcement records or information:
    (1) Could reasonably be expected to interfere with enforcement 
proceedings (5 U.S.C. 552(b)(7)(A));
    (2) Would deprive a person of the right to a fair trial or an 
impartial adjudication (5 U.S.C. 552(b)(7)(B));
    (3) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy of a living person, including surviving 
family members of an individual identified in such a record (5 U.S.C. 
552(b)(7)(C));
    (i) This exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information, and the public interest in disclosure is not 
sufficient to outweigh the privacy interest. In this situation, naval 
activities shall neither confirm nor deny the existence or non-existence 
of the record being requested.
    (ii) A refusal to ``neither confirm nor deny'' response must be used 
consistently, not only when a record exists, but also when a record does 
not exist. Otherwise, the pattern of using a ``no records'' response 
when a record does not exist and a ``refusal to neither confirm nor 
deny'' when a record does exist will itself disclose personally private 
information.
    (iii) Refusal to ``neither confirm nor deny'' should not be used 
when the person whose personal privacy is in jeopardy has provided the 
requester with a waiver of his or her privacy rights; or, the person 
whose personal privacy is in jeopardy is deceased, and the agency is 
aware of that fact.
    (4) could reasonably be expected to disclose the identity of a 
confidential source, including a source within the DON, a state, local, 
or foreign agency or authority, or any private institution which 
furnishes information on a confidential basis; could disclose 
information furnished from a confidential source and obtained by a 
criminal law enforcement authority in a criminal investigation or by an 
agency conducting a lawful national security intelligence investigation 
(5 U.S.C. 552 (b)(7)(D));
    (5) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions, if such disclosure could 
reasonably be expected to risk circumvention of the law (5 U.S.C. 
552(b)(7)(E)); or,
    (6) Could reasonably be expected to endanger the life or physical 
safety of any individual (5 U.S.C. 552(b)(7)(F)).
    (b) Examples include:
    (1) Statements of witnesses and other material developed during the 
course of the investigation and all materials prepared in connection 
with related government litigation or adjudicative proceedings.
    (2) The identity of firms or individuals investigated for alleged 
irregularities involving contracting with Department of Defense or 
Department of the Navy when no indictment has been obtained nor any 
civil action filed against them by the United States.
    (3) Information obtained in confidence, expressed or implied, in the 
course of a criminal investigation by a criminal law enforcement agency 
or office within Department of Defense, or a lawful national security 
intelligence investigation conducted by an authorized agency or office 
within Department of Defense. National security intelligence 
investigations include background security investigations conducted for 
the purpose of obtaining affirmative or counterintelligence information.
    (c) The right of individual litigants to investigate records 
currently available by law.
    (d) When the subject of an investigative record is the requester of 
the record, it may be withheld only as authorized by SECNAVINST 5211.5C, 
``Personal Privacy and Rights of Individuals Regarding Records 
Pertaining to Themselves.''
    (e) Exclusions. Excluded from this exemption are the following two 
situations:

[[Page 68]]

    (1) Whenever a request is made which involves access to records or 
information complied for law enforcement purposes, and the investigation 
or proceeding involves a possible violation of criminal law where there 
is reason to believe that the subject of the investigation or proceeding 
is unaware of its pendency, and the disclosure of the existence of the 
records could reasonably be expected to interfere with enforcement 
proceedings, naval activities may, during only such times as those 
circumstances continue, treat the records or information as not subject 
to exemption 7. In such situation, the response to the requester will 
state no records were found.
    (2) Whenever informant records maintained by a criminal law 
enforcement organization within DON under the informant's name or 
personal identifier, the naval activity may treat the records as not 
subject to exemption 7, unless the informant's status as an informant 
has been officially confirmed. If it is determined that the records are 
not subject to exemption 7, the response to the requester will state no 
records were found.



Sec. 701.30  Exemption (b)(8).

    Exempts those records contained in or related to examination, 
operation, or condition reports prepared by, on behalf of, or for the 
use of an agency responsible for the regulation or supervision of 
financial institutions.



Sec. 701.31  Exemption (b)(9).

    Exempts those records containing geological and geophysical 
information and data, including maps, concerning wells.



 Subpart C--Addresses for Department of the Navy Records and Locations 
                          for Public Inspection

    Source: 56 FR 66590, Dec. 24, 1991, unless otherwise noted.

    Editorial Note: At 56 FR 66586, 66590, Dec. 24, 1991, Secs. 701.21--
701.32 (subparts B and C) were revised. Section 701.31 appears at both 
subpart B and subpart C. The Agency will publish a correction in the 
Federal Register at a later date.



Sec. 701.31  Addresses for requests for Department of the Navy records.

    The following addresses delineate the location of commonly requested 
information. Members of the public are encouraged to write directly to 
the official having cognizance over the record(s), as it will expedite 
processing. When the official having custody of the record is not known, 
the request should be addressed to the originating official or the 
official having primary responsibility for the subject matter involved. 
The following are the most commonly requested types of records:
    (a) Audit reports. Send requests for internal audit matters to the 
Auditor General of the Navy, P.O. Box 1206, Falls Church, VA 22041-0206.
    (b) Chaplain Corps. Send requests for religious affairs matters to 
the Chief of Chaplains, Navy Department, Washington, DC 20370-2000.
    (c) Civilian personnel records. (1) Send requests for personnel 
records of current civilian employees, or those separated from Federal 
employment less than 30 days, to the employing installation marked for 
the attention of the civilian personnel officer.
    (2) Send requests for individuals formerly employed by the 
Department of the Navy, or separated from Federal employment for more 
than 30 days, to the Director, National Personnel Records Center, 
(Civilian Personnel Records), 111 Winnebago Street, St. Louis, MO 63118.
    (d) Contractual/procurement records and related matters. (1) Send 
requests for copies of Navy procurement directives and Defense Federal 
Acquisition Regulations (DFARs) to the Superintendent of Documents, U.S. 
Government Printing Office, Washington, DC 20402.
    (2) Send requests for copies of current contracts to the contracting 
officer or head of the procurement activity when known. If unknown, 
submit requests for Navy contracts to the Chief of Naval Operations 
(N09B30), 2000 Navy Pentagon, Washington, DC 20350-2000, and Marine 
Corps contracts to the Deputy Chief of Staff for Installations and 
Logistics, Headquarters U.S. Marine Corps, 2 Navy Annex, Washington, DC 
20380-0001.

[[Page 69]]

    (e) Courts-martial records. (1) Send requests for records of trial 
by general courts-martial, or special courts-martial which resulted in a 
bad conduct discharge, or involving commissioned officers to the Judge 
Advocate General, Code 20, 200 Stovall Street, Alexandria, VA 22332-
2400.
    (2) Send requests for records of trial by summary courts-martial or 
special courts-martial not involving a bad conduct discharge to the 
officer having supervisory authority in the review process.
    (f) Naval Inspector General Reports. Send requests for Navy hotline 
complaints and all other investigations and inspections conducted by the 
NAVINSGEN to the Naval Inspector General, Building 200, room 100, 901 M 
Street SE., Washington, DC 20374-5006. Send requests for local command 
Inspector General reports to the local IG office.
    (g) Investigative records. (1) Send requests for NCIS investigatory 
records and related matters to the Director, Naval Criminal 
Investigative Service, Washington Navy Yard, Building 111, 901 M Street 
SE., Washington, DC 20388-5380.
    (2) Send requests for JAG Manual investigative reports to the Judge 
Advocate General (Code 33), Navy Department, 200 Stovall Street, 
Alexandria, VA 22332-2400.
    (3) Send requests for mishap investigative reports to Commander, 
Naval Safety Center, 375 A Street, Norfolk, VA 23511-4399.
    (h) Legal matters. (1) General Counsel legal matters. Those relating 
to the acquisition, custody, management, transportation, taxation, and 
disposition of real and personal property, and the procurement of 
services, including the fiscal, budgetary, and accounting aspects 
thereof, excepting, however, tort claims and admiralty claims arising 
independently of contract, and matters relating to the naval petroleum 
reserves; operations of the Military Sealift Command, excepting tort and 
admiralty claims arising independently of contract; the Office of the 
Comptroller of the Navy; procurement matters in the field of patents, 
inventions, trademarks, copyrights, royalty payments, and similar 
matters, including those in the Defense Federal Acquisition Regulations 
(DFARs), and Navy procurement directives; and, industrial security 
claims and litigation should be directed to the Office of Counsel of the 
concerned activity. If unknown, submit to the General Counsel of the 
Navy, 2211 Jefferson Davis Highway, Arlington, VA 22344-5103.
    (2) Judge Advocate General legal matters. In addition to military 
law, all matters except those outside the jurisdiction of the General 
Counsel should be directed to the Judge Advocate General, 200 Stovall 
Street, Alexandria, VA 22332-2400.
    (i) Medical records. (1) Send requests for inpatient medical 
treatment records of active duty Navy and Marine Corps personnel and 
their dependents to the medical treatment facility where the patient is 
or was treated. The records are held for two years and then retired to 
the National Personnel Records Center, 9700 Page Avenue, St. Louis, MO 
63132-5100.
    (2) Send requests for outpatient medical treatment records of active 
duty Navy and Marine Corps personnel and their dependents to the 
military treatment facility attached to the command at which they are 
assigned.
    (3) Send requests for outpatient medical records of Navy personnel 
separated (discharged, retired, or deceased) for less than 4 months to 
the Commanding Officer, Naval Reserve Personnel Center, New Orleans, LA 
70149-7800. After four months, send requests to Director, National 
Personnel Records Center, (Military Personnel Records), 9700 Page 
Avenue, St. Louis, MO 63132-5100. Send requests for dependents' 
outpatient records to the last medical facility where treatment was 
provided if within 2 years of sponsor's release/separation from the 
service. After the 2 years, send requests to Director, National 
Personnel Records Center, (Military Personnel Records), 9700 Page 
Avenue, St. Louis, MO 63132-5100.
    (4) Send requests for outpatient medical records of Marine Corps 
personnel separated (discharged, retired, or deceased) for less than 
four months to Director, Marine Corps Reserve Support Center, 10950 El 
Monte Street, Overland Park, KS 66211-1408. After four months,

[[Page 70]]

send requests to Director, National Personnel Records Center, (Military 
Personnel Records), 9700 Page Avenue, St. Louis, MO 63132-5100. Requests 
for dependents' outpatient records should be addressed to the last 
medical facility where treatment was provided if within 2 years of 
active duty member's release/separation from the service. After two 
years, send requests to Director, National Personnel Records Center, 
(Military Records Center), 9700 Page Avenue, St. Louis, MO 63132-5100.
    (5) When the location of a military member or dependent's medical 
record is not known, send requests to Chief, Bureau of Medicine and 
Surgery, 2300 E Street, NW., Washington, DC 20372-5120.
    (6) Send requests for medical records of drilling reservists to the 
reserve centers where they are assigned.
    (7) Send requests for medical records of inactive or retired 
reservists to Commanding Officer, Naval Reserve Personnel Center, New 
Orleans, LA 70149-7800.
    (8) Civilian employee medical records. Send requests to the medical 
facility where the person is/was treated. After 2 years, send requests 
to Director, National Personnel Records Center, (Civilian Personnel 
Records), 111 Winnebago Street, St. Louis, MO 63118.
    (j) Military personnel records. (1) Send requests for records of 
active duty Navy personnel, or those separated (discharged, retired or 
deceased for up to 1 year) to Chief of Naval Personnel, 2 Navy Annex, 
Washington, DC 20370-5001 and for Marine Corps personnel to Commandant 
of the Marine Corps, (Code MM), Navy Department, Washington, DC 20380-
0001.
    (2) Send requests for records of Navy and Marine Corps personnel 
separated (discharged, retired or deceased) for more than 1 year and 
inactive reservists to Director, National Personnel Records Center, 
(Military Personnel Records), 9700 Page Avenue, St. Louis, MO 63132-
5100.
    (3) Send requests for former officer personnel separated prior to 
1902 and former enlisted personnel separated prior to 1885 to Chief, 
Military Reference Branch, Military Archives Division, National 
Archives, Washington, DC 20408.
    (4) Send requests for records of drilling reservists to the member's 
servicing personnel support unit.
    (5) Send requests for records of inactive duty reservists who still 
have an obligation to the Navy to the Commanding Officer, Naval Reserve 
Personnel Center, New Orleans, LA 70149-7800.
    (6) Send requests for records of separated reservists who have not 
retired to the Director, National Personnel Records Center, (Military 
Personnel Records), 9700 Page Avenue, St. Louis, MO 63132-5100.
    (7) Send requests for records of retired reservists to the 
Commanding Officer, Naval Reserve Personnel Center, New Orleans, LA 
70149-7800.
    (k) Publications. (1) Send requests for unclassified instructions, 
other than Secretary of the Navy Instructions, issued under the 
Department of the Navy's directives issuance system and subject index 
thereof (NAVPUBINST 5215.1B) to the Aviation Supply Office, Naval 
Publications and Forms Directorate, Customer Service, Code 1013, 5801 
Tabor Avenue, Philadelphia, PA 19120-5099.
    (2) Send requests for all SECNAVINSTs and OPNAVINSTs marked FOUO or 
classified to the CNO (N09B30), 2000 Navy Pentagon, Washington, DC 
20350-2000.
    (3) Send requests for Marine Corps directives, publications, and 
manuals to Commandant of the Marine Corps, (Code AR), HQ USMC, 2 Navy 
Annex, Washington, DC 20380-0001.
    (4) Send requests for military specifications, standards, and 
handbooks to the Commanding Officer, Defense Printing Service Detachment 
Office, Customer Service, Building 4D, 700 Robbins Avenue, Philadelphia, 
PA 19111-5094.
    (l) Research records. Send requests for records regarding basic 
research and grants to the activity having custody of the record. If 
unknown, send to the Chief of Naval Research, 800 North Quincy Street, 
Arlington, VA 22217-5660.
    (m) Systems commands--(1) Aeronautical weapon systems. Send requests 
for information on aeronautical weapon systems, associated sub-systems 
and related systems and equipment to the

[[Page 71]]

Commander, 1421 Jefferson Davis Highway, Arlington, VA 22243-5120.
    (2) Facilities. Send requests for information on facilities and land 
management (design, construction, and maintenance; utilities; housing; 
and real estate matters) to the Commander, Naval Facilities Engineering 
Command, 200 Stovall Street, Alexandria, VA 22332-2300.
    (3) Ships. Send requests for information on ships and ordnance 
materials to the Commander, Naval Sea Systems Command, 2531 Jefferson 
Davis Highway, Arlington, VA 22242-5160.
    (4) Space and Naval Warfare. Send requests for information on 
development technologies regarding battle force architecture and 
engineering, space communications, navigation, undersea and ocean 
surveillance, oceanographic matters, anti-submarine warfare, information 
transfer systems, and information management systems to the Commander, 
Space and Naval Warfare Systems Command, 2451 Crystal Drive, Arlington, 
VA 22245-5200.
    (5) Supply. Send requests for information on naval supply matters to 
the Commander, Naval Supply Systems Command, 1931 Jefferson Davis 
Highway, Arlington, VA 22341-5360, and for Marine Corps supply matters 
to the Commandant of the Marine Corps, HQ USMC, 2 Navy Annex, 
Washington, DC 20380-0001.
    (n) Ships decklogs. Send requests for ships decklogs originating 
after 30 June 1945 to the Director, Naval Historical Center, Ships' 
Histories Branch, 901 M Street SE., Washington Navy Yard, Washington, DC 
20374-0571. Those originated prior to 1945 are held by the Chief, 
Military Reference Branch, Military Archives Division, National 
Archives, Washington, DC 20408.
    (o) Supply catalogs. Send requests for Navy and Federal supply 
catalogs, master cross-reference indexes, and related cataloging 
publications (cataloging handbooks such as H2-1 and H2-3 and Federal 
manuals for supply cataloging, such as M1-1, -2 and -3) to 
Superintendent of Documents, United States Government Printing Office, 
Washington, DC 20402-9325.
    (p) Technical reports. Send requests for unclassified technical 
reports or publications to the Director, National Technical Information 
Service, 5285 Port Royal Road, Springfield, VA 20402.
    (q) Unknown. If requesters are unable to determine the official 
having cognizance over the requested records, they should send their 
request for naval matters to the Chief of Naval Operations (N09B30), 
2000 Navy Pentagon, Washington, DC 20350-2000, and Marine Corps matters 
to Commandant of the Marine Corps (Code ARAD), HQ USMC, 2 Navy Annex, 
Washington, DC 20380-0001.
[56 FR 66574, Dec. 24, 1991, as amended at 59 FR 29722 June 9, 1994]



Sec. 701.32  Locations at which Department of the Navy records are available for public inspection.

    (a) Navy Department Library. The Navy Department Library is located 
at the Washington Navy Yard, Building 44, 9th and M Streets, SE, 
Washington, DC 20374-0571.
    (1) Hours of Operation. 9 a.m. to 4 p.m., Monday through Friday, 
except holidays.
    (2) Type of Materials Held. The library has 130,000 volumes of 
information of interest to the Navy, such as naval and general history, 
international law and diplomacy, naval architecture and shipbuilding, 
naval customs and traditions, naval shore stations, yards and bases, 
uniforms, insignia, awards and flags, geography, travel and guide books, 
aviation, Navy music, etc. Also contained are approximately 5,000 rare 
book collections. Additionally, the library has an index by subject 
matter of materials held, i.e., NAVPUBINST 5215.1B, Consolidated Subject 
Index, a quarterly publication which lists instructions originated by 
Washington Headquarters organizations and Marine Corps directives system 
checklist of directives distributed outside Headquarters, U.S. Marine 
Corps. The library is equipped with desks and study carrels for library 
users and has specialized devices to facilitate research, such as 
microfilm reader/printers, copy machines, and outlets for tape 
recorders.
    (b) Defense Reading Room. The Defense Reading Room is located in 
Room 2E165 of the Pentagon, Washington, DC 20310-1400. Due to building 
security, upon arrival at the Pentagon, call 695-

[[Page 72]]

3973 to arrange for an escort to the Reading Room.
    (1) Hours of Operation. 8 a.m. to 4 p.m., Monday through Friday, 
except holidays.
    (2) Type of Materials Held. Microfiche copies of indexes and 
decisional documents regarding Navy Discharge Review Board and Board for 
Correction of Naval Records proceedings.
    (c) Law Library of the Judge Advocate General. The law library is 
located at the Hoffman Building 2, Room 9S47, 200 Stovall Street, 
Alexandria, VA 22332-2400.
    (1) Hours of Operation. 9 a.m. to 4 p.m., Monday through Friday, 
except holidays.
    (2) Type of Materials Held. The library has published and 
unpublished decisions of the Navy-Marine Corps Court of Military Review, 
Navy and Marine Corps directives, miscellaneous superseded manuals, and 
courts-martial orders and the Navy Department Bulletin.



                        Subpart D--Fee Guidelines

    Source: 56 FR 66592, Dec. 24, 1991, unless otherwise noted.



Sec. 701.40  FOIA fees.

    (a) Background. The FOIA Reform Act of 1986 brought about 
significant changes on how FOIA fees are assessed. Subpart D of this 
part highlights in detail the changes made and conforms with the Office 
of Management and Budget (OMB) Uniform Fee Schedule and Guidelines which 
were issued as a result of the Reform Act. OMB guidelines for fees 
reflect direct costs for search, review (in the case of commercial 
requesters), and duplication of documents, collection of which are 
permitted by FOIA.
    (b) DD Forms 2086/2086-1. Naval activities are encouraged to utilize 
DD Forms 2086/2086-1 to track costs for each FOIA request processed, 
unless a standard processing cost can be computed for routine kinds of 
requests. The form is designed to track all costs and is utilized to 
compile fee information for the Annual FOIA Report. While not all costs 
can be charged to the requester for recoupment, they are nonetheless 
reportable as they provide Congress with an indepth look at the costs 
and time the Navy is expending to process FOIA requests.
    (c) Scope. (1) The guidelines set forth below are not intended to 
imply that fees must be charged for providing information to the public 
in the routine course of business, nor are they meant as a substitute 
for any other schedule of fees, such as those in NAVCOMPTMAN, Vol. 3, 
CH-339, which does not supersede the collection of fees under FOIA.
    (2) Subpart D of this part does not supersede fees chargeable under 
a statute specifically setting the level of fees for particular types of 
records. A ``statute specifically providing for setting the level of 
fees for particular types of records'' means any statute that enables a 
government agency, such as the Government Printing Office (GPO) or the 
National Technical Information Service (NTIS), to set and collect fees. 
Naval activities should ensure that when documents that would be 
responsive to a request are maintained for distribution by agencies 
operating statutory based fee schedule programs such as GPO or NTIS, 
inform requesters of the steps necessary to obtain records from those 
sources.
    (c) Resolution of fees. The issue of fees should be resolved prior 
to a naval activity expending resources to process a FOIA request. 
Specifically, a requester should have an opportunity to decide whether 
or not to pursue a request if fees are applicable and the requester has 
failed to agree to pay those fees. There have been instances where naval 
activities have worked a costly request only to be told by the requester 
that it is no longer needed, since it will result in a cost. 
Additionally, if a requester has agreed to pay fees up to a specified 
amount and the costs of processing the request will exceed those fees, 
naval activities must resolve the issue of additional fees prior to 
continuing with the processing of the request.
    (d) Responses. Naval activities shall ensure that final responses to 
the requester address FOIA fees.

    Editorial Note: At 56 FR 66592, Dec. 24, 1991, Sec. 701.40 was 
revised. Paragraph (c) was inadvertently added twice. The duplicate 
designations are of differing content. The

[[Page 73]]

Agency will publish a correction in the Federal Register at a later 
date.



Sec. 701.41  Definitions.

    The following definitions set forth the parameters for determining 
FOIA fees:
    (a) Direct costs. Direct costs means those expenditures a naval 
activity actually incurs in searching for, reviewing (in the case of 
commercial requesters), and duplicating documents to respond to a FOIA 
request. Direct costs include, for example, the salary of the employee 
performing the work (the employee's basic rate of pay plus 16 percent of 
that rate to cover benefits), and the costs of operating duplicating 
machinery. Not included are overhead expenses such as costs of space, 
heating, or lighting the facility where records are stored.
    (b) Search time. Search time includes all time spent looking for 
material responsive to a request and a page-by-page or line-by-line 
identification (if necessary) of material in the document to determine 
if it, or portions thereof, are responsive to the request. Naval 
activities should ensure that searches are efficient and completed in 
the least expensive manner to minimize costs to the naval activity and 
the requester. For example, naval activities should not do a line-by-
line search when duplicating an entire document containing responsive 
information would be less expensive and quicker to comply with the 
request. Time spent reviewing documents to determine whether to apply 
one or more of the statutory exemptions is not search time, but review 
time.
    (c) Duplication. Duplication refers to the process of making a copy 
of a document in response to a FOIA request. Copies can be paper copy, 
microfiche, audiovisual, or machine readable documentation (e.g., 
magnetic tape or disc). Every effort will be made to ensure that the 
copy provided is in a form reasonably usable by requesters. If copies 
are not clearly usable, the requester will be notified that their copy 
is the best available and the agency's master copy will be made 
available for review upon appointment. For duplicating of computer tapes 
and audiovisuals, the cost, including the operator's time shall be 
charged. If a naval activity estimates that assessable duplication 
charges may exceed $25, it shall notify the requester of the estimate, 
unless the requester has indicated in advance his or her willingness to 
pay fees as high as those anticipated. Such notice shall offer the 
requester the opportunity to confer with naval personnel to reformulate 
the request to meet his or her needs at a lower cost.
    (d) Review. Review time refers to examining documents responsive to 
a FOIA request to determine whether one or more of the statutory 
exemptions permit withholding. It also includes processing the documents 
for disclosure, such as excising them for release. Review does not 
include time spent resolving general legal or policy issues on applying 
the exemptions. Charges may be assessed only for the initial review. 
Naval activities may not charge for reviews during an administrative 
appeal of an exemption already applied. Records or portions of records 
withheld in full under an exemption subsequently determined not to 
apply, may be reviewed again to determine the applicability of other 
exemptions not previously considered and the costs for such a subsequent 
review could be assessed.
    (e) Commercial use request. A commercial use request is a request 
from or on behalf of one seeking information for a use or purpose that 
furthers the commercial, trade, or profit interest of the requester. In 
determining whether a requester belongs to this category, naval 
activities must determine the requester's use of the documents 
requested. Naval activities should seek additional clarification before 
assigning the request to a specific category when doubting the intended 
use of the requester, or where the use is not clear from the request 
itself.
    (f) Educational institution. An educational institution is a 
preschool, public or private elementary or secondary school, institution 
of graduate higher education, institution of undergraduate higher 
education, institution of professional education, and an institution of 
vocational education operating a program(s) of scholarly research.

[[Page 74]]

    (g) Non-commercial scientific institution. A non-commercial 
scientific institution is operated solely for conducting scientific 
research the results of which are not intended to promote any particular 
product or industry and not operated on a ``commercial'' basis.
    (h) Representative of the news media. Representative of the new 
media is a person actively gathering news for an entity organized and 
operated to publish or broadcast news to the public. ``News'' means 
information about current events or of current interest to the public. 
Examples of news media entities include television or radio station 
broadcasting to the public at large and publishers of periodicals when 
qualifying as disseminators of ``news'' who make their products 
available for purchase or subscription by the general public. Those 
examples are not all-inclusive. As traditional methods of news delivery 
evolve (e.g., electronic dissemination of newspapers through 
telecommunications services) alternative media would be included in this 
category. ``Free-lance'' journalists may be considered as working for a 
news organization if they can demonstrate a basis for expecting 
publication by that organization, even if not actually employed. Proof 
may be by publication contract, but naval activities may also look to 
the requester's past publication record in making this determination. 
Representatives of the news media do not include private libraries, 
private repositories of Government records, or middlemen such as 
information vendors or data brokers.
    (i) All other requesters. All other requesters refers to persons who 
do not qualify as an educational institution, non-commercial scientific 
institution, representative of the news media, or commercial use 
requester. An example is a nonprofit organization.



Sec. 701.42  Application.

    (a) Commercial requesters. When records are requested for commercial 
use, fees shall be assessed to recover reasonable standard charges for 
document search, review, and duplication. Requesters must reasonably 
describe the records sought. When naval activities review a request for 
documents for commercial use, they should assess charges which recover 
the full direct costs of searching for, reviewing for release, and 
duplicating the records sought. Commercial requesters, are not entitled 
to 2 hours of free search time and 100 free pages of reproduction of 
documents. However, fees totaling $15 or less must be waived. Commercial 
requesters are not normally entitled to a waiver or reduction of fees 
based upon an assertion that disclosure would be in the public interest. 
Because use of the requested material is the exclusive determining 
criteria, a commercial enterprise may make a request that is not for 
commercial use. It is also possible that a nonprofit organization could 
make a request for commercial use. Such situations must be addressed on 
a case-by-case basis.
    (b) Educational institution requesters. When a request is made by an 
educational institution whose purpose is scholarly research fees shall 
be limited to reasonable standard charges for document duplication 
(excluding charges for the first 100 pages). Requesters must reasonably 
describe the records being sought and must show that the request is made 
under the auspices of a qualifying institution and that the records are 
not sought for commercial use, but in furtherance of scholarly research.
    (c) Non-commercial scientific institution requesters. When the 
request is made by a non-commercial scientific institution whose purpose 
is scientific research fees shall be limited to only reasonable standard 
charges for document duplication (excluding charges for the first 100 
pages). Requesters must reasonably describe the records sought and must 
show that the request is being made under the auspices of a qualifying 
institution and that records are not sought for commercial use, but in 
furtherance of scientific research.
    (d) Representatives of the news media. (1) When the request is made 
by a representative of the news media, fees shall be limited to only 
reasonable standard charges for document duplication (excluding charges 
for the first 100 pages). Requesters must reasonably describe the 
records sought.
    (2) Representatives of the news media must meet the criteria defined 
in paragraph (h) of Sec. 701.41, and the request

[[Page 75]]

must not be made for commercial use. A request for records supporting 
the news dissemination function of the requester shall not be considered 
to be a request that is for a commercial use. For example, a request by 
a newspaper for records relating to an investigation of a defendant in a 
current criminal trial of public interest could be presumed to be a 
request from an entity eligible for inclusion in this category, and 
entitled to records at the cost of duplication alone (excluding charges 
for the first 100 pages).
    (3) ``Representative of the news media'' does not include private 
libraries, private repositories of Government records, or middlemen, 
such as information vendors or data brokers.
    (e) All other requesters. Naval activities shall charge requesters 
who do not fit into any of the above categories fees to recover the full 
direct cost of search and duplicating records, except the first 2 hours 
of search time and the first 100 pages of duplication shall be furnished 
without charge. Requesters must reasonably describe the records sought. 
Requests from subjects about themselves will continue to be treated 
under the fee provisions of 5 U.S.C. 552a, which permit fees only for 
duplication. Naval activities are reminded that this category of 
requester may be eligible for a waiver or reduction of fees if 
disclosure of the information is in the public interest.



Sec. 701.43  Fee restrictions.

    (a) A naval activity may not charge fees if the costs of routine 
collection and processing of the fee are likely to equal or exceed the 
amount of the fee. Except for requesters seeking documents for a 
commercial use, naval activities shall provide the first 2 hours of 
search time and the first 100 pages of duplication without charge. For 
example, for a request (other than one from a commercial requester) 
involving 2 hours and 10 minutes of search time and 105 pages of 
documents, a naval activity would recover the cost of only ten minutes 
of search time and five pages of duplication. If this processing cost 
was equal to or less than the cost to the naval activity for billing the 
requester and processing the fee collected (i.e., $15), no charges would 
result.
    (b) Requesters are entitled to the first 2 hours of search and 100 
pages of duplication without charge once per request. Consequently, if 
after completing its portion of a request, a naval activity, refers the 
request to another naval activity to act on their portion of the 
request, the referring naval activity shall inform the recipient of the 
amount of search time and duplication cost to date so the final Navy 
response will address all fees in the processing of the request. For 
referrals to other federal agencies or Department of Defense components, 
if the naval costs of processing the request are chargeable based on fee 
guidelines, the fees should be collected from the requester and the 
recipient of the referral advised of the fee status of the request. If 
the fees are not chargeable based on the fee guidelines, the recipient 
of the referral should be advised of the naval fees associated with the 
processing of the request.
    (c) In determining the ``cost of collecting a fee'' consider 
administrative costs to the naval activity of receiving and recording a 
remittance, and processing the fee for deposit in the Treasury 
Department's special account. The Treasury's cost to handle such 
remittance is negligible and shall not be considered in a naval 
activity's determination.
    (d) To determine cost, ``pages'' refers to standard size paper 
copies normally 8 1/2'' x 11'' or 11'' x 14''. Thus, requesters would 
not be entitled to 100 microfiche or 100 computer disks, for example. A 
microfiche containing the equivalent of 100 pages or 100 pages of 
computer printouts, meets the restriction.
    (e) For computer searches, the first 2 free hours will be determined 
by the salary scale of the individual doing the computer search. For 
example, when the direct costs of the computer central processing unit, 
input-output devices, and memory capacity equal $24 (2 hours of 
equivalent search at the clerical level), computer costs in excess of 
that amount are chargeable as computer search time.

[[Page 76]]



Sec. 701.44  Fee waivers.

    (a) When the naval activity determines that waiver or reduction of 
fees is in the public interest, documents will be furnished without 
charge or at a reduced charge. It is in the public interest when 
furnishing the information is likely to contribute significantly to 
public understanding of the operations or activities of the Department 
of the Navy, and is not primarily in the commercial interest of the 
requester.
    (b) Fees shall be waived automatically for all requesters when 
direct costs for a FOIA request total $15 or less.
    (c) Decisions to waive or reduce fees that exceed the automatic fee 
waiver threshold shall be made on a case-by-case basis when:
    (1) Disclosure of the information ``is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the government.''
    (i) Subject of the request. Naval activities should analyze whether 
the subject matter of the request involves issues which will 
significantly contribute to the public understanding of the operations 
or activities of the Department of the Navy. Requests for records in the 
possession of the Department of the Navy originated by non-government 
organizations and sought for their intrinsic content rather than 
informative value will not likely contribute to public understanding of 
the operations or activities of the Department of the Navy. Examples of 
such records are press clippings, magazine articles, or records 
forwarding a particular opinion or concern from a member of the public 
regarding a naval activity. Similarly, disclosures of records of 
considerable age may or may not bear directly on the current activities 
of the Department of the Navy; however, the age of a particular record 
shall not be the sole criteria for determining the value of a document. 
These requests must be closely reviewed while considering the 
requester's stated purpose for the records and the potential for public 
understanding of the operations and activities of the Department of the 
Navy.
    (ii) Informative value of the information to be disclosed. Naval 
activities should analyze the substantive contents of a record or 
portion of the record to determine whether disclosure is meaningful and 
will inform the public on Department of the Navy's operations or 
activities. While the subject of a request may contain information on 
operations or activities of the Department of the Navy, it may not have 
great potential for contributing to a meaningful understanding of these 
operations or activities. An example would be a heavily redacted record, 
with only random words, fragmented sentences, or paragraph headings. A 
determination as to whether that type of record will contribute to the 
public understanding of the operations or activities of the Department 
of the Navy must be weighed against the requester's intended use. 
Another example is disclosure of information already in the public 
domain or nearly identical information may add no meaningful new 
information on Department of the Navy operations and activities.
    (iii) Contribution to the public's understanding from disclosure. 
Disclosure contributes to the public's understanding when disclosure 
will inform or have the potential to inform the public, rather than the 
individual requester or small segment of interested persons. The 
requester's identity determines whether the requester has the capability 
and intention to disseminate the information to the public. Assertions 
of plans to write a book, research a particular subject, doctoral 
desertion work, or indigency are insufficient. Requester must 
demonstrate the capacity to disclose the information in a manner 
informative to the general public. Requesters should describe their 
qualifications, nature of their research, purpose of the requested 
information, and intended means of dissemination to the public.
    (iv) The significance of the contribution to public understanding. 
Naval activities must assess the significance or impact of disclosure 
against the current level of public knowledge or understanding prior to 
the disclosure. In other words, will disclosure on a current subject of 
wide public interest be unique in contributing previous unknown facts, 
thereby enhancing public knowledge,

[[Page 77]]

or will it basically duplicate what is already known by the general 
public. Naval activities shall not make value judgments whether the 
information is important enough to be made public.
    (2) Disclosure of the information ``is not primarily in the 
commercial interest of the requester.''
    (i) Existence and magnitude of a commercial interest. If the request 
is a commercial interest, naval activities should address the magnitude 
of that interest to see if the requester's commercial interest is 
primary, as opposed to any secondary personal or non-commercial 
interest. In addition to profit-making organizations, individual persons 
or other organizations may have a commercial interest in obtaining 
certain records. Where it is difficult to determine whether this is a 
commercial requester, naval activities may infer it from the requester's 
identity and circumstances of the request. The requester's commercial 
benefit must clearly override any personal or nonprofit interest to 
apply FOIA commercial standards.
    (ii) The primary interest in disclosure. Once a requester's 
commercial interest has been determined, naval activities should then 
determine if disclosure would be primarily in that interest. That 
requires balancing the commercial interest of the request against any 
public benefit derived as a result of that disclosure. Where the public 
interest served is beyond that of the requester's commercial interest, a 
waiver or reduction of fees would be appropriate. Conversely, even if a 
significant public interest exists and the relative commercial interest 
of the requester is greater than the public interest, then a waiver or 
reduction of fees would be inappropriate. For example, while news media 
organizations have a commercial interest as business organizations, 
their role of disseminating news to the public can ordinarily be 
presumed to be of a primary interest. Therefore, any commercial interest 
is secondary to the primary interest in serving the public. Similarly, 
scholars writing books or engaged in other forms of academic research 
may recognize a commercial benefit, either directly or indirectly 
(through the institution they represent); however, normally such 
pursuits are primarily undertaken for educational purposes, and charging 
a fee would be inappropriate. Conversely, data brokers or others who 
compile government information for marketing can normally be presumed to 
primarily have a commercial interest.
    (iii) The above factors and examples are not all inclusive. Each fee 
decision must be considered on a case-by-case basis the merits of the 
information provided in each request. When the decision to charge, 
reduce, or waive the fee cannot be clearly resolved, naval activities 
should rule in favor of the requester.
    (d) The following additional circumstances describe situations where 
waiver or reduction of fees are most likely warranted:
    (1) A record is voluntarily created to preclude an otherwise 
burdensome effort to provide voluminous amounts of available records, 
including additional information not requested.
    (2) A previous denial of records is reversed in total, or in part, 
and the assessable costs are not substantial (e.g., $15 - $30).



Sec. 701.45  Fee assessment.

    (a) Fees may not be used to discourage requesters. FOIA fees are 
limited to standard charges for direct document search, review (in the 
case of commercial requesters), and duplication.
    (b) To be responsive as possible to FOIA requests while minimizing 
unwarranted costs to the taxpayer, naval activities shall:
    (1) Analyze each request to determine the category of the requester. 
If the naval activity's determination of the category of the requester 
is different than that claimed by the requester, the naval activity 
will:
    (i) Notify the requester that additional justification should be 
provided to support the category claimed, and that a search for 
responsive records will not be initiated until agreement on the category 
of the requester. Absent further category justification from the 
requester and a reasonable period of time (i.e., 30 calendar days), the 
naval activity shall render a final category determination and notify 
the requester of the determination, including administrative appeal 
rights.

[[Page 78]]

    (ii) Advise the requester that a search for responsive records will 
not be initiated until the requester indicates a willingness to pay 
assessable costs for the category determined by the naval activity.
    (2) Requesters must submit a fee declaration appropriate for these 
categories:
    (i) Commercial requesters must indicate a willingness to pay all 
search, review, and duplication costs.
    (ii) Educational or non-commercial scientific institution or news 
media representatives. Requesters must indicate a willingness to pay 
duplication charges in excess of 100 pages, if more than 100 pages of 
records are desired.
    (iii) All others. Requesters must indicate a willingness to pay 
assessable search and duplication costs if more than 2 hours of search 
effort or 100 pages of records are desired and the resultant fees will 
exceed the $15 fee waiver threshold.
    (3) If the above conditions are not met, then the request need not 
be processed and the requester shall be so informed within 10 working 
days.
    (4) As described above, naval activities must be prepared to provide 
an estimate of assessable fees to the requester. While searches vary 
among naval activities and an estimate is often difficult prior to an 
actual search, requesters desiring estimates are entitled to them before 
committing to a willingness to pay. Should naval activity costs exceed 
the amount of the estimate or the amount agreed to by the requester, the 
amount in excess of the estimate or the amount agreed to shall not be 
charged without the requester's agreement.
    (5) A naval activity may not require advance payment of any fee 
(i.e., payment before work is commenced or continued on a request) 
unless the requester previously failed to timely pay fees or the agency 
determined that the fee exceeds $250. A timely fashion is 30 calendar 
days from the date of billing by the naval activity.
    (6) Where a naval activity estimates or determines that allowable 
charges that a requester may be required to pay are likely to exceed 
$250, the naval activity should notify the requester of the likely cost 
and obtain satisfactory assurance of full payment where the requester 
has a history of prompt payments, or require an advance payment of an 
amount up to the full estimated charges for requesters without a history 
of payment.
    (7) Where a requester has previously failed to pay a fee charged in 
a timely fashion (i.e., within 30 calendar days from the date of the 
billing), the naval activity may require the requester to pay the full 
amount owed, plus any applicable interest, or demonstrate that the fee 
had been paid, and to make an advance payment of the full amount of the 
estimated fee before the naval activity begins to process a new or 
pending request. Interest will be at the rate prescribed in 31 U.S.C. 
3717 and confirmed with respective accounting and finance offices.
    (8) After all work is completed on a request and the documents are 
ready for release, naval activities may request payment prior to 
forwarding the documents if there is no payment history on the requester 
or if the requester has previously failed to pay a fee in a timely 
fashion (i.e., within 30 calendar days of the billing). If the requester 
fails to pay in a timely fashion, paragraph (b)(7) of Sec. 701.45 
applies. Naval activities may not hold documents ready for release 
pending payment from requesters with a history of prompt payment.
    (9) When naval activities act under Sec. 701.45 number (b)(1) 
through (7), FOIA time limits (10 working days from receipt of initial 
requests and 20 working days from receipt of appeals, plus permissible 
extensions of time) begin after the naval activity has received a 
willingness to pay fees or fee payments, if appropriate.
    (10) Naval activities may charge for time spent in searching for 
records, even if that search fails to locate records responsive to the 
request. Naval activities may also charge search and review (in the case 
of commercial requesters) time if records located are determined to be 
exempt from disclosure. In practice, if the naval activity estimates 
that search charges are likely to exceed $25, it

[[Page 79]]

shall notify the requester of the estimated amount of fees, unless the 
requester has indicated in advance a willingness to pay fees up to the 
estimated amount. Such notice shall offer the requester the opportunity 
to confer with the naval activity with the object of reformulating the 
request to meet his or her needs at a lower cost.



Sec. 701.46  Aggregating requests.

    Except for commercial requesters, a naval activity may not charge 
for the first 2 hours of search time or for the first 100 pages of 
reproduction. A requester may not file multiple requests at the same 
time each seeking portions of a document or documents to avoid payment 
of fees. When a naval activity reasonably believes that a requester or, 
a group of requesters acting in concert is attempting to break a request 
into a series of requests to evade fees, the naval activity may 
aggregate the requests and charge accordingly. In determining whether it 
is reasonable to aggregate the requests, consider the time period of the 
requests. For example, it would be reasonable to presume that multiple 
requests of this type made within a 30-day period had been made to avoid 
fees. It is harder to make that presumption for requests over a longer 
time period. Before aggregating requests from more than one requester, 
naval activities must have a concrete basis to conclude that the 
requesters are acting in concert to avoid payment of fees. Naval 
activities may not aggregate multiple requests from one requester on 
unrelated subjects.



Sec. 701.47  Effect of the Debt Collection Act of 1982 (Pub. L. 97-365).

    The Debt Collection Act of 1982 (Pub. L. 97-365) provides for a 
minimum annual rate of interest on overdue debts to the Federal 
Government. Naval activities may charge an interest penalty for fees 
outstanding 30 days from the date of billing (the first demand notice). 
The interest rate shall be as prescribed in 31 U.S.C. 3717. Naval 
activities should verify the current interest rate with respective 
accounting and finance offices. After one demand letter has been sent 
and 30 calendar days have lapsed with no payment, naval activities may 
submit the debt to the respective accounting and finance offices for 
collection under the Debt Collection Act of 1982.



Sec. 701.48  Computation of fees.

    The fee schedule in Subpart D of this part shall be used to compute 
search, review (in the case of commercial requesters), and duplication 
costs for processing FOIA requests. Costs shall be computed on time 
actually spent. Time-based and dollar-based minimum charges for search, 
review (in the case of commercial requesters), and duplication are not 
authorized.



Sec. 701.49  Collection of fees.

    Collect FOIA fees when providing the documents to the requester when 
the requester specifically states that costs are acceptable or 
acceptable up to a specified amount. Collection may not be made in 
advance unless the requester has failed to pay previously assessed fees 
within 30 calendar days from the date of the billing by the naval 
activity, or the naval activity determines the fee will be in excess of 
$250.



Sec. 701.50  Search time costs.

    The following schedules outline authorized fees:
    (a) Manual search.

------------------------------------------------------------------------
                                                                  Hourly
                 Type                             Grade            Rate
------------------------------------------------------------------------
Clerical..............................  E9/GS8 and below........     $12
Professional..........................  01-06/GS9-GS/GM15.......      25
Executive.............................  07/GS/GM16/ES1 and above      45
------------------------------------------------------------------------

    (b) Computer search. Computer search is based on the direct cost of 
the central processing unit, input-output devices, and memory capacity 
of the computer configuration. The cost of computer search is based on 
the computer operator/programmer's time in determining how to conduct 
and subsequently executing the search and is charged at the rate of a 
manual search.
    (c) Duplication costs.

------------------------------------------------------------------------
                         Type                            Cost per Page
------------------------------------------------------------------------
Pre-printed material (i.e., unaltered directives,
 publications).......................................               $.02
Office copy (i.e., xeroxed copies)...................                .15
Microfiche...........................................                .25

[[Page 80]]

Computer copies (tapes or reprints)..................      Actual cost 1
------------------------------------------------------------------------
1 This means the cost of duplicating the tape or printout, which
  includes the operator's time and cost of the tape.

    (d) Review time (only applies in the case of commercial requesters).

------------------------------------------------------------------------
                                                                  Hourly
                 Type                             Grade            Rate
------------------------------------------------------------------------
Clerical..............................  E9/GS8 and below........     $12
Professional..........................  01-06/GS9-GS/GM15.......      25
Executive.............................  07/GS/GM16/ES1 and above      45
------------------------------------------------------------------------

    (e) Audiovisual documentary materials. Compute search costs as for 
any other record. Duplication cost is the actual direct cost of 
reproducing the material, including the wage of the person doing the 
work. Audiovisual materials provided to a requester need not be in 
reproducible format or quality.
    (f) Other records. Compute direct search and duplication cost for 
any record not described above as described for audiovisual documentary 
material.
    (g) Costs for special services. Complying with requests for special 
services is at the discretion of the naval activity. FOIA and its fee 
structure do not cover these kinds of services. Naval activities may 
recover the costs of special services asked for by the requester after 
agreement has been obtained from the requester to pay for one or more of 
the following services:
    (1) Certifying that records are true copies.
    (2) Sending records by special methods such as express mail, etc.



Sec. 701.51  FOIA fee remittance/receipt controls.

    (a) Naval activities shall implement procedures to track FOIA fee 
remittances. At a minimum, the tracking system should include the name 
of the requester, company (if applicable), amount of fee charged 
(identify by total and breakdown, i.e., $250: $100 search, $50.00 
review, $100 reproduction), date and serial number of correspondence to 
the requester which seeks the fee remittance, date remittance received, 
number of check, date sent to local disbursing office, and copy of 
NAVCOMPT Form 2277. This tracking system can be manual or automated and 
should be designed to identify outstanding FOIA remittances so that 
follow-up letters can be sent advising the requester that his/her 
account requires prompt action.
    (b) Naval activities shall advise requesters to make their check/
money order payable to the Treasurer of the United States. Upon receipt 
of a check/money order, the receiving activity shall submit a NAVCOMPT 
Form 2277, Voucher for Disbursement and/or Collection, and the check/
money order to the local disbursing office for processing. ``FOIA 
Receipt Account Number 3210'' shall be annotated on the NAVCOMPT Form 
2277 when processing all FOIA fees, except those received by Defense 
Business Operating Fund (DBOF) and non-appropriated funded (NAF) 
activities.
    (c) Remittances received by DBOF activities shall be made payable to 
the activity and the requester should indicate on the check ``FOIA 
Remittance.'' The remittance shall be deposited in the DBOF activity 
account.
    (d) Remittances received by NAF activities shall be made payable to 
the activity and the requester should indicate on the check ``FOIA 
Remittance.'' The remittance shall be deposited in the NAF activity 
account.
[56 FR 66574, Dec. 24, 1991, as amended at 59 FR 29723, June 9, 1994]



Sec. 701.52  Technical data fees.

    (a) General. Technical data, recorded information, regardless of the 
form or method of the recording, of a scientific or technical nature 
(including computer software documentation). This term does not include 
computer software or data incidental to contract administration, such as 
financial and/or management information. Technical data requiring 
release under FOIA, shall be released after the requester pays all 
reasonable costs for search, duplication, and review of the records to 
be released.
    (b) Definition. Technical data means recorded information, 
regardless of the form of method of the recording of a scientific or 
technical nature (including computer software documentation). This term 
does not include computer software or data incidental to contract 
administration, such as financial and/or management information.

[[Page 81]]

    (c) Retention of funds. Naval activities shall retain fees received 
from releasing technical data. The funds shall be available for the same 
purpose and the same time period as the appropriation from which the 
costs were incurred in complying with the request. Reasonable costs are 
the full costs to the Government of rendering the service, or fair 
market value of the service, whichever is greater. Fair market value 
shall be determined by commercial rates in the local geographical area. 
In the absence of a known market value, charges shall be based on 
recovery of full costs to the Government. The full cost includes all 
direct and indirect costs to conduct the search and to duplicate records 
responsive to the request. This cost is different from the direct costs 
allowable under the FOIA.
    (d) Waiver. Naval activities shall waive the payment of costs for 
technical data when greater than the costs required for release of this 
same information under FOIA, if:
    (1) The request is made by a United States citizen or a United 
States corporation who certifies that the technical data requested is 
needed to submit an offer, or determine capability of submitting an 
offer. The technical data must relate to the product which will be 
provided to the United States or a contractor with the United States. 
However, naval activities may require the citizen or corporation to pay 
a deposit of not more than the cost of complying with the request, which 
will be refunded upon submission of an offer by the citizen or 
corporation;
    (2) The release of technical data is requested to comply with an 
international agreement; or,
    (3) The naval activity determines that waiver is in the interest of 
the United States.
    (e) Fee rates. (1) Search time is computed as follows:
    (i) Manual Search.

------------------------------------------------------------------------
                                                                 Hourly
                 Type                           Grade             Rate
------------------------------------------------------------------------
Clerical.............................  E9/GS8 and below.......    $13.25
(Minimum Charge).....................  .......................      8.30
------------------------------------------------------------------------


Professional and Executive hourly rate of fees are established at actual 
hourly rate prior to search. A minimum charge will be established at 1/
2-hourly rates.
    (ii) Computer search is the total cost of the central processing 
unit, input-output devices, and memory capacity of the actual computer 
configuration. The wage for the computer analyst/operator determining 
how to conduct and subsequently executing the search will be recorded as 
part of the computer search and is at the same rate of the manual search 
scale.
    (2) Duplication costs are as follows:

------------------------------------------------------------------------
                         Type                                 Cost
------------------------------------------------------------------------
Aerial photographs, specifications, permits, charts,
 blueprints, and other technical documents...........         $2.50 each
Engineering data (microfilm):........................
  Aperture cards:....................................
    Silver duplicate negative........................      $.75 per card
    (When keypunched and verified)...................       .85 per card
    Diazo duplicate negative.........................       .65 per card
    (When keypunched and verified)...................       .75 per card
35mm roll film.......................................     $.50 per frame
16mm roll film.......................................      .45 per frame
Paper prints (engineering drawings)..................         $1.50 each
Paper reprints of microfilm indices..................           .10 each
------------------------------------------------------------------------

    (3) Review time is computed as follows:

------------------------------------------------------------------------
                                                                 Hourly
                 Type                           Grade             Rate
------------------------------------------------------------------------
Clerical.............................  E9/GS8 and below.......    $13.25
(Minimum Charge).....................  .......................      8.30
------------------------------------------------------------------------


Professional and Executive hourly rate of fees are established at actual 
hourly rate prior to review. A minimum charge will be established at 1/
2-hourly rates.



Sec. 701.53  Other technical data records.

    Charges for services not specifically provided above are at the 
following rates:

------------------------------------------------------------------------
                         Type                                 Cost
------------------------------------------------------------------------
Minimum charge for office copy (up to six images)....              $3.50
Each additional image................................                .10
Each typewritten page................................               3.50
Certification and validation with seal...............               5.20
Hand-drawn plots and sketches, each hour or fraction
 thereof.............................................              12.00
------------------------------------------------------------------------


[[Page 82]]



Subpart E--Indexing, Public Inspection, and Federal Register Publication 
 of Department of the Navy Directives and Other Documents Affecting the 
                                 Public

    Source: 59 FR 46760, Sept. 12, 1994, unless otherwise noted.



Sec. 701.61  Purpose.

    This subpart implements 5 U.S.C. 552(a)(1) and (2) and provisions of 
Department of Defense Directive 5400.7, May 13, 1988 (32 CFR part 286, 
55 FR 53104); Department of Defense Directive 5400.9, December 23, 1974 
(32 CFR part 336, 40 FR 4911); and the Regulations of the Administrative 
Committee of the Federal Register (1 CFR chaps. I and II) by delineating 
responsibilities and prescribing requirements, policies, criteria, and 
procedures applicable to:
    (a) Publishing the following Department of the Navy documents in the 
Federal Register:
    (1) Certain classes of regulatory, organizational, policy, 
substantive, and procedural documents required to be published for the 
guidance of the public;
    (2) Certain classes of proposed regulatory documents required to be 
published for public comment prior to issuance; and
    (3) Certain public notices required by law or regulation to be 
published;
    (b) Making available, for public inspection and copying, certain 
classes of documents having precedential effect on decisions concerning 
members of the public;
    (c) Maintaining current indexes of documents having precedential 
effect on decisions concerning members of the public, and publishing 
such indexes or making them available by other means;
    (d) Receiving and considering petitions of members of the public for 
the issuance, revision, or cancellation of regulatory documents of some 
classes; and
    (e) Distributing the Federal Register for official use within the 
Department of the Navy.



Sec. 701.62  Scope and applicability.

    This subpart prescribes actions to be executed by, or at the 
direction of, Navy Department [as defined in Sec. 700.104(c) of this 
chapter] components and specified headquarters activities for apprising 
members of the public of Department of the Navy regulations, policies, 
substantive and procedural rules, and decisions which may affect them, 
and for enabling members of the public to participate in Department of 
the Navy rulemaking processes in matters of substantial and direct 
concern to the public. This subpart complements subpart A, which 
implements Navy-wide requirements for furnishing documents to members of 
the public upon request. That a document may be published or indexed and 
made available for public inspection and copying under this instruction 
does not affect the possible requirement under subpart A for producing 
it for examination, or furnishing a copy, in response to a request made 
under that subpart.



Sec. 701.63  Policy.

    In accordance with the spirit and intent of 5 U.S.C. 552, the public 
has the right to the maximum information concerning the organization and 
functions of the Department of the Navy. This includes information on 
the policies and the substantive and procedural rules used by the 
Department of the Navy in its dealings with the public. In accordance 
with Department of Defense policy described in 32 CFR part 336, 40 FR 
4911, moreover, the public is encouraged to participate in Department of 
the Navy rulemaking when the proposed rule would substantially and 
directly affect the public.



Sec. 701.64  Publication of adopted regulatory documents for the guidance of the public.

    (a) Classes of documents to be published. Subject to the provisions 
of 5 U.S.C. 552(b) which exempt specified matters from requirements for 
release to the public [see subpart B of this part], the classes of 
Department of the Navy documents required to be published on a current 
basis in the Federal Register are listed below.
    (1) Naval organization and points of contact--descriptions of the 
central

[[Page 83]]

and field organization of the Department of the Navy and the locations 
at which, the members or employees from whom, and the methods whereby, 
the public may obtain information, make submittals or requests, or 
obtain decisions;
    (2) Methods and procedures for business with the public--statements 
of the general course and methods by which Department of the Navy 
functions affecting members of the public are channeled and determined, 
including the nature and requirements of all formal and informal 
procedures available;
    (3) Procedural rules and forms--rules of procedure for functions 
affecting members of the public, descriptions of forms available or the 
places at which forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations required to be 
submitted under such rules of procedures; and
    (4) Substantive rules and policies--substantive rules of general 
applicability adopted as authorized by law, and statements of general 
policy or interpretations of general applicability formulated and 
adopted by the Department of the Navy. Such rules are commonly contained 
in directives, manuals, and memorandums.
    (i) ``General applicability'' defined. The definition prescribed in 
1 CFR 1.1 pertains to the classes of documents contemplated in 
Sec. 701.64(b)(4).
    (ii) Internal personnel rules and internal practices. In addition to 
the other exemptions listed in 5 U.S.C. 552(b) and subpart B of this 
part, particular attention is directed to the exemption pertaining to 
internal personnel rules and internal practices.
    (iii) Local regulations. It is unnecessary to publish in the Federal 
Register a regulation which is essentially local in scope or 
application, such as a directive issued by a base commander in the 
implementation of his responsiblity and authority under subpart G of 
part 700 of this title for guarding the security of the installation or 
controlling the access and conduct of visitors or tradesmen. However, 
such publication may be authorized under extraordinary circumstances, as 
determined by the Chief of Naval Operations or the Commandant of the 
Marine Corps, as appropriate, with the concurrence of the Judge Advocate 
General.
    (iv) Incorporation by reference. With the approval of the Director 
of the Federal Register given in the limited instances authorized in 1 
CFR Part 51 and 32 CFR 336.5(c), the requirement for publication in the 
Federal Register may be satisfied by reference in the Federal Register 
to other publications containing the information which must otherwise be 
published in the Federal Register. In general, matters eligible for 
incorporation by reference are restricted to materials in the nature of 
published data, criteria, standards, specifications, techniques, 
illustrations, or other published information which are reasonably 
available to members of the class affected.
    (b) Public inspection. When feasible, Department of the Navy and 
Department of Defense documents published in the Federal Register should 
be made available for inspection and copying, along with available 
indexes of such documents, in the same locations used for public 
inspection and copying of the documents contemplated in Sec. 701.65.



Sec. 701.65  Availability, public inspection, and indexing of other documents affecting the public.

    (a) Discussion. Section 552(a) of title 5, United States Code, 
requires the Department of the Navy to make available for public 
inspection and copying documents which have precedential significance on 
those Department of the Navy decisions which affect the public. These 
documents must be kept readily available for public inspection and 
copying at designated locations, unless they are promptly published and 
copies are offered for sale. Additionally, documents issued after July 
4, 1967, are required to be indexed on a current basis. These indexes, 
or supplements thereto, must be published at least quarterly in 
accordance with the provisions of this paragraph. In determining whether 
a particular document is subject to the requirements of this paragraph, 
consideration should be given to the statutory purposes and legal effect 
of the provisions.

[[Page 84]]

    (1) Statutory purposes. In general, the purpose of the requirement 
to provide members of the public with essential information is to enable 
them to deal effectively and knowledgeably with Federal agencies; to 
apprise members of the public of the existence and contents of documents 
which have potential legal consequences as precedents in administrative 
determinations which may affect them; and to permit public examination 
of the basis for administrative actions which affect the public.
    (2) Legal effect. If a document is required to be indexed and made 
available under this paragraph, it may not be used or asserted as a 
precedent against a member of the public unless it was so indexed and 
made available, or unless the person against whom it is asserted had 
actual and timely notice of its contents.
    (b) Classes of documents affected. (1) Subject to the provisions of 
5 U.S.C. 552(b) which exempt specified matters from the requirements of 
public disclosure, the following classes of Department of the Navy 
documents are included in the requirements of this paragraph:
    (i) Final adjudicative opinions and orders--opinions (including 
concurring and dissenting opinions) and orders which are issued as part 
of the final disposition of adjudication proceedings (as defined in 5 
U.S.C. 551) and which may have precedential effect in the disposition of 
other cases affecting members of the public;
    (ii) Policy statements and interpretations--statements of policy and 
interpretations of less than general applicability (i. e., applicable 
only to specific cases; organizations, or persons), which are not 
required to be published in the Federal Register, but which may have 
precedential effect in the disposition of other cases affecting members 
of the public;
    (iii) Manuals and instructions--administrative staff manuals, 
directives, and instructions to staff, or portions thereof, which 
establish Department of the Navy policy or interpretations of policy 
that serve as a basis for determining the rights of members of the 
public with regard to Department of the Navy functions. In general, 
manuals and instructions relating only to internal management aspects of 
property or fiscal accounting, personnel administration, and most other 
``proprietary'' functions of the department are not within the scope of 
this provision. This provision also does not apply to instructions for 
employees on methods, techniques, and tactics to be used in performing 
their duties; for example:
    (A) Instructions or manuals issued for audit, investigation, and 
inspection purposes;
    (B) Those which prescribe operational tactics; standards of 
performance; criteria for defense, prosecution, or settlement of cases; 
or negotiating or bargaining techniques, limitations, or positions; and
    (C) Operations and maintenance manuals and technical information 
concerning munitions, equipment, and systems, and foreign intelligence 
operations.
    (2) In determining whether a document has precedential effect, the 
primary test is whether it is intended as guidance to be followed either 
in decisions or evaluations by the issuing authority's subordinates, or 
by the issuing authority itself in the adjudication or determination of 
future cases involving similar facts or issues. The kinds of orders or 
opinions which clearly would have precedential effect are those that are 
intended to operate both as final dispositions of the questions involved 
in the individual cases presented, and as rules of decision to be 
followed by the issuing authority or its subordinates in future cases 
involving similar questions. By contrast, many adjudicative orders and 
opinions issued within the Department of the Navy operate only as case-
by-case applications of policies or interpretations established in 
provisions of manuals or directives and are not themselves used, cited, 
or relied on as rules of decision in future cases. In these instances, 
the underlying manual or directive provisions obviously would have 
precedential effect, but the orders and opinions themselves would not 
have. A recommendation by an official who is not authorized to 
adjudicate, or to issue a binding statement of policy or interpretation 
in a particular matter would not have precedential effect, though an

[[Page 85]]

order, opinion, statement of policy, or interpretation issued by an 
authorized official pursuant to such recommendation might have that 
effect.
    (c) Deletion of identifying details. (1) Although the exemptions 
from public disclosure described in 5 U.S.C. 552 and subpart B of this 
part are applicable to documents which are required to be indexed and 
made available for public inspection and copying under this paragraph, 
there is no general requirement that any segregable portions of 
partially exempt documents be so indexed and made available for public 
inspection and copying. As a general rule, a record may therefore be 
held exempt in its entirety from the requirements of this paragraph if 
it is determined that it contains exempt matter and that it is 
reasonably foreseeable that disclosure would be harmful to an interest 
protected by that exemption. An exception to this general rule does 
exist with regard to a record which would be exempt only because it 
contains information which, if disclosed, would result in a clearly 
unwarranted invasion of privacy.
    (2) Where necessary to prevent a clearly unwarranted invasion of a 
person's privacy, identifying details should be deleted from a record 
which is required to be indexed and made available for public inspection 
and copying under this paragraph. In every such case, the justification 
for the deletion must be fully stated in writing in a manner which 
avoids creating inferences that could be injurious to the person whose 
privacy is involved. Usual reasons for deletion of identifying details 
include protection of privacy in a person's business affairs, medical 
matters, or private family matters; humanitarian considerations; and 
avoidance of embarrassment to a person.
    (d) Publication of indexes--(1) Form of indexes. Each index should 
be arranged topically or by descriptive words, so that members of the 
public may be able to locate the pertinent documents by subject, rather 
than by case name or by a numbering system.
    (2) Time of publication. Each component having cognizance of records 
required under this paragraph to be indexed shall compile and maintain 
an index of such records on a continually current basis. Each such index 
was required to initially be published by July 1, 1975. An updated 
version of each such index, or a current supplement thereto, shall be 
published by an authorized method at least annually thereafter.
    (3) Methods of publication. The methods authorized for publication 
of the indexes contemplated in this paragraph are:
    (i) Publication in the Federal Register;
    (ii) Commercial publication, provided that such commercial 
publication is readily available to members of the public, or will be 
made available upon request and payment of costs (if this method is 
utilized, information on the cost of copies and the address from which 
they may be obtained shall be published in the Federal Register); or
    (iii) Furnishing internally reproduced copies upon request, at cost 
not to exceed the direct cost of duplication in accordance with subpart 
D of this part, provided that it is determined, by an order published in 
the Federal Register, that the publication of the index by methods 
Sec. 701.65(d)(3) (i) or (ii) would be unnecessary or impracticable. 
Such order shall state the cost of copies and the address from which 
they may be obtained. The Chief of Naval Operations (N09B30) is 
authorized to issue such an order in a proper case.
    (4) Public inspection of indexes. In addition to publication by one 
of the foregoing methods, each index will be made available for public 
inspection and copying in accordance with Sec. 701.65(e) at the 
locations where Department of the Navy records are available for public 
inspection.
    (e) Where records may be inspected. Locations and times at which 
Department of the Navy records, and indexes thereof, are available for 
public inspection and copying are shown in Sec. 701.32.
    (f) Cost. Fees for copying services, if any, furnished at locations 
shown in Sec. 701.32 shall be determined in accordance with subpart D of 
this part.
    (g) Records of the United States Navy-Marine Corps Court of Military 
Review. The United States Navy-Marine Corps Court of Military Review is 
deemed to be a ``court of the United States'' within the meaning of 5 
U.S.C. 551 and is

[[Page 86]]

therefore excluded from the requirements of 5 U.S.C. 552. Nevertheless, 
unpublished decisions of the United States Navy-Marine Corps Court of 
Military Review, although not indexed, are available for public 
inspection at the location shown in Sec. 701.32(c).



Sec. 701.66  Publication of proposed regulations for public comment.

    (a) Discussion. The requirements of this section are not imposed by 
statute, but are the implementation of policies and procedures created 
administratively in 32 CFR part 336. In effect, the pertinent provisions 
of 32 CFR part 336 establish, within the Department of Defense and its 
components, procedures that are analogous to the public rulemaking 
procedures applicable to some functions of other Federal agencies under 
5 U.S.C. 553. While the administrative policy of encouraging the maximum 
practicable public participation in the Department of the Navy 
rulemaking shall be diligently followed, determinations by the 
Department of the Navy as to whether a proposed regulatory requirement 
originated by it comes within the purview of this paragraph and the 
corresponding provisions of 32 CFR part 336, and as to whether inviting 
public comment is warranted, shall be conclusive and final.
    (b) Classes of documents affected. Each proposed regulation or other 
document of a class described in Sec. 701.64(a) (or a proposed revision 
of an adopted document of any of those classes) which would 
``originate'' within the Department of the Navy a requirement of general 
applicability and future effect for implementing, interpreting, or 
prescribing law or policy, or practice and procedure requirements 
constituting authority for prospective actions having substantial and 
direct impact on the public, or a significant portion of the public, 
must be evaluated to determine whether inviting public comment prior to 
issuance is warranted. Documents that merely implement regulations 
previously issued by higher naval authorities or by the Department of 
Defense will not be deemed to ``originate'' requirements within the 
purview of this section. If a proposed document is within the purview of 
this section, publication to invite public comment will be warranted 
unless, upon evaluation, it is affirmatively determined both that a 
significant and legitimate interest of the Department of the Navy or the 
public will be served by omitting such publication for public comment, 
and that the document is subject to one or more of the following 
exceptions:
    (1) It pertains to a military or foreign affairs function of the 
United States which has been determined under the criteria of an 
Executive Order or statute to require a security classification in the 
interests of national defense or foreign policy;
    (2) It relates to naval management, naval military or civilian 
personnel, or public contracts (e.g., Navy Procurement Directives), 
including nonappropriated fund contracts;
    (3) It involves interpretative rules, general statements of policy, 
or rules of agency organization, procedure, or practice; or
    (4) It is determined with regard to the document, for good cause, 
that inviting public comment is impracticable, unnecessary, or contrary 
to the public interest.
    (c) Procedures--(1) Normal case. Unless the official having 
cognizance of a proposed regulatory document determines under the 
criteria of Sec. 701.66(b) that inviting public comment is not 
warranted, he or she shall cause it to be published in the Federal 
Register with an invitation for the public to submit comments in the 
form of written data, views, or arguments during a specified period of 
not less than 30 days following the date of publication. An opportunity 
for oral presentation normally will not be provided, but may be provided 
at the sole discretion of the official having cognizance of the proposed 
directive if he or she deems it to be in the best interest of the 
Department of the Navy or the public to do so. After careful 
consideration of all relevant matters presented within the period 
specified for public comment, the proposed document may be issued in 
final form. After issuance, the adopted document, and a preamble 
explaining the relationship of the adopted document to the proposed 
document and the nature and effect of public

[[Page 87]]

comments, shall be published in the Federal Register for the guidance of 
the public.
    (2) Where public comment is not warranted. The official having 
cognizance of a proposed document within the purview of this paragraph 
shall, if he or she determines that inviting public comment concerning 
the document is not warranted under the criteria of Sec. 701.66(b), 
incorporate that determination, and the basis therefor, in the document 
when it is issued or submitted to a higher authority for issuance. After 
issuance, such document shall be published in the Federal Register for 
the guidance of the public, if required under Sec. 701.64(b).



Sec. 701.67  Petitions for issuance, revision, or cancellation of regulations affecting the public.

    In accordance with the provisions of 32 CFR part 336, the Department 
of the Navy shall accord any interested person the right to petition, in 
writing, for the issuance, revision, or cancellation of regulatory 
document that originates, or would originate, for the Department of the 
Navy, a policy, requirement, or procedure which is, or would be, within 
the purview of Sec. 701.66. The official having cognizance of the 
particular regulatory document involved, or having cognizance of the 
subject matter of a proposed document, shall give full and prompt 
consideration to any such petition. Such official may, at his or her 
absolute discretion, grant the petitioner an opportunity to appear, at 
his or her own expense, for the purpose of supporting the petition, if 
this is deemed to be compatible with orderly conduct of public business. 
The petitioner shall be advised in writing of the disposition, and the 
reasons for the disposition, of any petition within the purview of this 
section.



          Subpart F--Department of the Navy Privacy Act Program

    Authority: Pub. L. 93-579, 88 stat. 1896 (5 U.S.C. 552a).

    Source: 59 FR 55348, Nov. 7, 1994, unless otherwise noted.



Sec. 701.100  Purpose.

    Subparts F and G of this part implement the Privacy Act (5 U.S.C. 
552a), and DoD Directive 5400.11 \1\, and DoD 5400.11-R \2\, (see 32 CFR 
part 310) and provides Department of the Navy policies and procedures 
for:
---------------------------------------------------------------------------


    \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. 701.100.
---------------------------------------------------------------------------

    (a) Governing the collection, safeguarding, maintenance, use, 
access, amendment, and dissemination of personal information kept by 
Department of the Navy in systems of records;
    (b) Notifying individuals if any systems of records contain a record 
pertaining to them;
    (c) Verifying the identity of individuals who request their records 
before the records are made available to them;
    (d) Notifying the public of the existence and character of each 
system of records.
    (e) Exempting systems of records from certain requirements of the 
Privacy Act; and
    (f) Governing the Privacy Act rules of conduct for Department of the 
Navy personnel, who will be subject to criminal penalties for 
noncompliance with 5 U.S.C. 552a, as amended by the Computer Matching 
Act of 1988.



Sec. 701.101  Applicability.

    This subpart and subpart G of this part apply throughout the 
Department of the Navy. It is also applicable to contractors by contract 
or other legally binding action, whenever a Department of the Navy 
contract provides for the operation of a system of records or portion of 
a system of records to accomplish a Department of the Navy function. For 
the purposes of any criminal liabilities adjudged, any contractor or any 
employee of such contractor is considered to be an employee of 
Department of the Navy. In case of a conflict, this subpart and subpart 
G of this part take precedence over any existing Department of the Navy 
directive that deals with the personal privacy and rights of individuals

[[Page 88]]

regarding their personal records, except for disclosure of personal 
information required by 5 U.S.C. 552 (1988) as amended by the Freedom of 
Information Reform Act and implemented by Secretary of the Navy 
Instruction 5720.42E \3\, ``Department of the Navy Freedom of 
Information Act Program.''
---------------------------------------------------------------------------


    \3\ Copies available from Chief of Naval Operations (N09B30), 2000 
Navy Pentagon, Washington, DC 20350-2000.
---------------------------------------------------------------------------



Sec. 701.102  Definitions.

    For the purposes of this subpart and subpart G of this part, the 
following meanings apply.
    (a) Access. The review or copying of a record or parts thereof 
contained in a system of records by any individual.
    (b) Agency. For the purposes of disclosing records subject to the 
Privacy Act between or among Department of Defense (DoD) components, the 
Department of Defense is considered a single agency. For all other 
purposes, Department of the Navy is considered an agency within the 
meaning of Privacy Act.
    (c) Confidential source. A person or organization who has furnished 
information to the Federal Government either under an express promise 
that the person's or the organization's identity will be held in 
confidence or under an implied promise of such confidentiality if this 
implied promise was made before September 27, 1975.
    (d) Defense Data Integrity Board. Consists of members of the Defense 
Privacy Board, as outlined in DoD Directive 5400.11 and, in addition, 
the DoD Inspector General or the designee, when convened to oversee, 
coordinate and approve or disapprove all DoD component computer matching 
covered by the Privacy Act.
    (e) Disclosure. The transfer of any personal information from a 
system of records by any means of communication (such as oral, written, 
electronic, mechanical, or actual review), to any person, private 
entity, or government agency, other than the subject of the record, the 
subject's designated agent or the subject's legal guardian.
    (f) Federal personnel. Officers and employees of the Government of 
the United States, members of the uniformed services (including members 
of the Reserve Components), individuals or survivors thereof, entitled 
to receive immediate or deferred retirement benefits under any 
retirement program of the Government of the United States (including 
survivor benefits).
    (g) Individual. A living citizen of the United States or alien 
lawfully admitted to the U.S. for permanent residence. The legal 
guardian of an individual has the same rights as the individual and may 
act on his or her behalf. No rights are vested in the representative of 
a deceased person under this instruction and the term ``individual'' 
does not embrace an individual acting in a non-personal capacity (for 
example, sole proprietorship or partnership).
    (h) Individual access. Access to information pertaining to the 
individual by the individual or his or her designated agent or legal 
guardian.
    (i) Maintain. Includes maintain, collect, use, or disseminate.
    (j) Member of the public. Any individual or party acting in a 
private capacity.
    (k) Minor. Under this subpart and subpart G of this part, a minor is 
an individual under 18 years of age, who is not a member of the U.S. 
Navy or Marine Corps, nor married.
    (l) Official use. Under this subpart and subpart G of this part, 
this term is used when Department of the Navy officials and employees 
have a demonstrated need for the use of any record or the information 
contained therein in the performance of their official duties.
    (m) Personal information. Information about an individual that is 
intimate or private to the individual, as distinguished from information 
related solely to the individual's official functions or public life.
    (n) Privacy Act (PA) request. A request from an individual for 
notification as to the existence of, access to, or amendment of records 
pertaining to that individual. These records must be maintained in a 
system of records.
    (o) Record. Any item, collection, or grouping of information about 
an individual that is maintained by a naval activity including, but not 
limited to, the individual's education, financial transactions, and 
medical, criminal, or employment history, and that contains

[[Page 89]]

the individual's name or other identifying particulars assigned to the 
individual, such as a finger or voice print or a photograph.
    (p) Review authority. An official charged with the responsibility to 
rule on administrative appeals of initial denials of requests for 
notification, access, or amendment of records. The Secretary of the Navy 
has delegated his review authority to the Assistant Secretary of the 
Navy (Manpower and Reserve Affairs (ASN(M&RA)), the General Counsel 
(OGC), and the Judge Advocate General (NJAG). Additionally, the Office 
of Personnel Management (OPM) is the review authority for civilian 
official personnel folders or records contained in any other OPM record.
    (q) Risk assessment. An analysis which considers information 
sensitivity, vulnerability, and cost to a computer facility or word 
processing center in safeguarding personal information processed or 
stored in the facility or center.
    (r) Routine use. Disclosure of a record outside the Department of 
Defense for a purpose that is compatible with the purpose for which the 
record was collected and maintained by the Department of Defense. The 
routine use must have been included in the notice for the system of 
records published in the Federal Register.
    (s) Statistical record. A record maintained only for statistical 
research, or reporting purposes, and not used in whole or in part in 
making any determination about a specific individual.
    (t) System manager. An official who has overall responsibility for a 
system of records. He or she may serve at any level in Department of the 
Navy. Systems managers are indicated in the published record systems 
notices. If more than one official is indicated as a system manager, 
initial responsibility resides with the manager at the appropriate level 
(i.e., for local records, at the local activity).
    (u) System of records. A group of records under the control of a 
Department of the Navy activity from which information is retrieved by 
the individual's name or by some identifying number, symbol, or other 
identifying particular assigned to the individual. System notices for 
all Privacy Act systems of records must be published in the Federal 
Register and are also published in periodic Chief of Naval Operations 
Notes (OPNAVNOTEs) 5211 \4\.
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    \4\ See footnote 3 to Sec. 701.101.
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    (v) Word processing equipment. Any combination of electronic 
hardware and computer software integrated in a variety of forms 
(firmware, programmable software, hard wiring, or similar equipment) 
that permits the processing of textual data. Generally, the equipment 
contains a device to receive information, a computer-like processor with 
various capabilities to manipulate the information, a storage medium, 
and an output device.
    (w) Word processing system. A combination of equipment employing 
automated technology, systematic procedures, and trained personnel for 
the primary purpose of manipulating human thoughts and verbal or written 
communications into a form suitable to the originator. The results are 
written or graphic presentations intended to communicate verbally or 
visually with another individual.
    (x) Working day. All days excluding Saturday, Sunday, and legal 
holidays.



Sec. 701.103  Policy.

    It is the policy of Department of the Navy to:
    (a) Ensure that all its personnel comply fully with 5 U.S.C. 552a, 
DoD Directive 5400.11 and DoD 5400.11-R, to protect individuals from 
unwarranted invasions of privacy. Individuals covered by this protection 
are living citizens of the U.S. or aliens lawfully admitted for 
permanent residence. A legal guardian of an individual or parent of a 
minor when acting on the individual's or minor's behalf, has the same 
rights as the individual or minor. (A member of the Armed Forces is not 
a minor for the purposes of this subpart and subpart G of this part).
    (b) Collect, maintain, and use only that personal information needed 
to support a Navy function or program as authorized by law or E.O., and 
disclose this information only as authorized by 5 U.S.C. 552a and this 
subpart and subpart G of this part. In assessing need, consideration 
shall be given to alternatives, such as use of information not

[[Page 90]]

individually identifiable or use of sampling of certain data for certain 
individuals only. Additionally, consideration is to be given to the 
length of time information is needed, and the cost of maintaining the 
information compared to the risks and adverse consequences of not 
maintaining the information.
    (c) Keep only personal information that is timely, accurate, 
complete, and relevant to the purpose for which it was collected.
    (d) Let individuals have access to, and obtain copies of, all or 
portions of their records, subject to exemption procedures authorized by 
law and this subpart and subpart G of this part.
    (e) Let individuals request amendment of their records when 
discrepancies proven to be erroneous, untimely, incomplete, or 
irrelevant are noted.
    (f) Let individuals request an administrative review of decisions 
that deny them access, or refuse to amend their records.
    (g) Ensure that adequate safeguards are enforced to prevent misuse, 
unauthorized disclosure, alteration, or destruction of personal 
information in records.
    (h) Maintain no records describing how an individual exercises his 
or her rights guaranteed by the First Amendment (freedom of religion, 
political beliefs, speech, and press; peaceful assemblage; and petition 
for redress of grievances), unless they are:
    (1) Expressly authorized by statute;
    (2) Authorized by the individual;
    (3) Within the scope of an authorized law enforcement activity; or
    (4) For the maintenance of certain items of information relating to 
religious affiliation for members of the naval service who are 
chaplains. This should not be construed, however, as restricting or 
excluding solicitation of information which the individual is willing to 
have in his or her record concerning religious preference, particularly 
that required in emergency situations.
    (5) Maintain only systems of records which have been published in 
the Federal Register, in accordance with periodic Chief of Naval 
Operations Notes (OPNAVNOTEs) 5211 and Sec. 701.105. These OPNAVNOTEs 
5211 provide a listing of all Department of the Navy Privacy Act systems 
of records and identify the Office of Personnel Management (OPM) 
government-wide systems containing information on Department of the Navy 
civilian employees, even though technically, Department of the Navy does 
not have cognizance over them. A Privacy Act systems notice outlines 
what kinds of information may be collected and maintained by naval 
activities. When collecting/maintaining information in a Privacy Act 
system of records, review the systems notice to ensure activity 
compliance is within the scope of the system. If you determine the 
systems notice does not meet your needs, contact the systems manager or 
Chief of Naval Operations (N09B30) with your concerns so that amendment 
of the system may be considered.



Sec. 701.104  Responsibility and authority.

    (a) Chief of Naval Operations (CNO). CNO is designated as the 
official responsible for administering and supervising the execution of 
5 U.S.C. 552a, DoD Directive 5400.11, and DoD 5400.11-R. CNO has 
designated the Assistant Vice Chief of Naval Operations (N09B30) as 
principal Privacy Act Coordinator for the Department of the Navy to:
    (1) Set Department of the Navy policy on the provisions of the 
Privacy Act.
    (2) Serve as principal advisor on all Privacy Act matters.
    (3) Oversee the administration of the Privacy Act program, which 
includes preparing the Department of the Navy Privacy Act report for 
submission to Congress.
    (4) Develop Navy-wide Privacy Act training program and serve as 
training-oversight manager.
    (5) Conduct staff assistance visits within Department of the Navy to 
review compliance with 5 U.S.C. 552a and this subpart and subpart G of 
this part.
    (6) Coordinate and prepare responses for Privacy Act requests 
received for Office of the Secretary of the Navy records.
    (b) Commandant of the Marine Corps (CMC). CMC is responsible for 
administering and supervising the execution of this subpart and subpart 
G of this

[[Page 91]]

part within the Marine Corps. The Commandant has designated the 
Director, Manpower Management Information Systems Division (HQMC (Code 
MI)) as the Privacy Act coordinator for Headquarters, U.S. Marine Corps.
    (c) Privacy Act Coordinator. Each addressee is responsible for 
implementing and administering a Privacy Act program under this subpart 
and subpart G of this part. Each addressee shall designate a Privacy Act 
Coordinator to:
    (1) Serve as principal point of contact on Privacy Act matters.
    (2) Provide training for activity/command personnel on the 
provisions of 5 U.S.C. 552a and this subpart and subpart G of this part.
    (3) Issue implementing instruction which designates the activity's 
Privacy Act Coordinator, Privacy Act records disposition, Privacy Act 
processing procedures, identification of Privacy Act systems of records 
under their cognizance, and training aids for those personnel involved 
with systems of records.
    (4) Review internal directives, practices, and procedures, including 
those having Privacy Act implications and where Privacy Act Statements 
(PASs) are needed.
    (5) Compile input and submit consolidated Privacy Act report to 
Echelon 2 Privacy Act Coordinator, who, in turn, will provide 
consolidated report to CNO (N09B30).
    (6) Maintain liaison with records management officials (i.e., 
maintenance and disposal procedures and standards, forms, and reports), 
as appropriate.
    (7) Provide guidance on handling Privacy Act requests and scope of 
Privacy Act exemptions.
    (8) Conduct staff assistance visits within command and lower echelon 
commands to ensure compliance with the Privacy Act.
    (9) Echelon 2 Privacy Act Coordinators shall provide CNO (N09B30) 
with a complete listing of all Privacy Act Coordinators under their 
jurisdiction. Such information should include activity name and address, 
office code, name of Privacy Act Coordinator, commercial and DSN 
telephone number, and FAX number, if applicable.
    (d) Release authority. Officials having cognizance over the 
requested subject matter are authorized to respond to requests for 
notification, access, and/or amendment of records. These officials could 
also be systems managers (see Sec. 701.104(g)).
    (e) Denial authority. Within the Department of the Navy, the 
following chief officials, their respective vice commanders, deputies, 
principal assistants, and those officials specifically designated by the 
chief official are authorized to deny requests, either in whole or in 
part, for notification, access and amendment, made under this subpart 
and subpart G of this part, when the records relate to matters within 
their respective areas of responsibility or chain of command:
    (1) Department of the Navy. Civilian Executive Assistants; CNO; CMC; 
Chief of Naval Personnel; Commanders of the Naval Systems Commands, 
Office of Naval Intelligence, Naval Security Group Command, Naval 
Imaging Command, and Naval Computer and Telecommunications Command; 
Chief, Bureau of Medicine and Surgery; Auditor General of the Navy; 
Naval Inspector General; Director, Office of Civilian Personnel 
Management; Chief of Naval Education and Training; Commander, Naval 
Reserve Force; Chief of Naval Research; Commander, Naval Oceanography 
Command; heads of Department of the Navy Staff Offices, Boards, and 
Councils; Flag Officers and General Officers. NJAG and his Deputy, and 
OGC and his Deputies are excluded from this grant of authorization. 
While NJAG and OGC are not denial authorities, they are authorized to 
further delegate the authority conferred here to other senior officers/
officials within NJAG and OGC.
    (2) For the shore establishment.(i) All officers authorized under 
Article 22, Uniform Code of Military Justice (UCMJ) or designated in 
section 0120, Manual of the Judge Advocate General (JAGINST 5800.7C) 
\5\, to convene general courts-martial.
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    \5\ Copies available from the Judge Advocate General, Navy 
Department, 200 Stovall Street, Alexandria, VA 22332-2400.
---------------------------------------------------------------------------

    (ii) Commander, Naval Investigative Service Command.

[[Page 92]]

    (iii) Deputy Commander, Naval Legal Service Command.
    (3) In the Operating Forces. All officers authorized by Article 22, 
Uniform Code of Military Justice (UCMJ), or designated in section 0120, 
Manual of the Judge Advocate General (JAGINST 5800.7C), to convene 
general courts-martial.
    (f) Review authority. (1) The Assistant Secretary of the Navy 
(Manpower and Reserve Affairs), is the Secretary's designee, and shall 
act upon requests for administrative review of initial denials of 
requests for amendment of records related to fitness reports and 
performance evaluations of military personnel (see Sec. 701.111(c)(3)).
    (2) The Judge Advocate General and General Counsel, as the 
Secretary's designees, shall act upon requests for administrative review 
of initial denials of records for notification, access, or amendment of 
records, as set forth in Sec. 701.111(c)(2) and (4).
    (3) The authority of the Secretary of the Navy (SECNAV), as the head 
of an agency, to request records subject to the Privacy Act from an 
agency external to the Department of Defense for civil or criminal law 
enforcement purposes, under subsection (b)(7) of 5 U.S.C. 552a, is 
delegated to the Commandant of the Marine Corps, the Director of Naval 
Intelligence, the Judge Advocate General, and the General Counsel.
    (g) Systems manager. Systems managers, as designated in Department 
of the Navy's compilation of systems notices (periodic Chief of Naval 
Operations Notes (OPNAVNOTEs) 5211 \6\, ``Current Privacy Act 
Issuances'') shall:
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    \6\ See footnote 3 to Sec. 701.101.
---------------------------------------------------------------------------

    (1) Ensure the system has been published in the Federal Register and 
that any additions or significant changes are submitted to CNO (N09B30) 
for approval and publication. The systems of records should be 
maintained in accordance with the systems notices as published in the 
periodic Chief of Naval Operations Notes (OPNAVNOTEs) 5211, ``Current 
Privacy Act Issuances.''
    (2) Maintain accountability records of disclosures.
    (h) Department of the Navy employees. Each employee of the 
Department of the Navy has certain responsibilities for safeguarding the 
rights of others. These include:
    (1) Not disclosing any information contained in a system of records 
by any means of communication to any person or agency, except as 
authorized by this subpart and subpart G of this part.
    (2) Not maintaining unpublished official files which would fall 
under the provisions of 5 U.S.C. 552a.
    (3) Safeguarding the privacy of individuals and confidentiality of 
personal information contained in a system of records.



Sec. 701.105  Systems of records.

    To be subject to this subpart and subpart G of this part, a ``system 
of records'' must consist of ``records'' that are retrieved by the name, 
or some other personal identifier, of an individual and be under the 
control of Department of the Navy.
    (a) Retrieval practices. (1) Records in a group of records that are 
not retrieved by personal identifiers are not covered by this subpart 
and subpart G of this part, even if the records contain information 
about individuals and are under the control of Department of the Navy. 
The records must be retrieved by personal identifiers to become a system 
of records.
    (2) If records previously not retrieved by personal identifiers are 
rearranged so they are retrieved by personal identifiers, a new system 
notice must be submitted in accordance with Sec. 701.107.
    (3) If records in a system of records are rearranged so retrieval is 
no longer by personal identifiers, the records are no longer subject to 
this subpart and subpart G of this part and the records system notice 
should be deleted in accordance with Sec. 701.107.
    (b) Recordkeeping standards. A record maintained in a system of 
records subject to this subpart and subpart G of this part must meet the 
following criteria:
    (1) Be accurate. All information in the record must be factually 
correct.
    (2) Be relevant. All information contained in the record must be 
related to the individual who is the record subject

[[Page 93]]

and also must be related to a lawful purpose or mission of the 
Department of the Navy activity maintaining the record.
    (3) Be timely. All information in the record must be reviewed 
periodically to ensure that it has not changed due to time or later 
events.
    (4) Be complete. It must be able to stand alone in accomplishing the 
purpose for which it is maintained.
    (5) Be necessary. All information in the record must be needed to 
accomplish a Department of the Navy mission or purpose established by 
Federal Law or E.O. of the President.
    (c) Authority to establish systems of records. Identify the specific 
Federal statute or E.O. of the President that authorizes maintaining 
each system of records. When a naval activity uses its ``internal 
housekeeping'' statute, i.e., 5 U.S.C. 301, Departmental Regulations, 
the naval instruction that implements the statute should also be 
identified. A statute or E.O. authorizing a system of records does not 
negate the responsibility to ensure the information in the system of 
records is relevant and necessary.
    (d) Exercise of First Amendment rights. (1) Do not maintain any 
records describing how an individual exercises rights guaranteed by the 
First Amendment of the U.S. Constitution unless expressly authorized by 
Federal law; the individual; or pertinent to and within the scope of an 
authorized law enforcement activity.
    (2) First amendment rights include, but are not limited to, freedom 
of religion, freedom of political beliefs, freedom of speech, freedom of 
the press, the right to assemble, and the right to petition.
    (e) System manager's evaluations and reviews. (1) Evaluate each new 
system of records. Before establishing a system of records, evaluate the 
information to be included and consider the following:
    (i) The relationship of each item of information to be collected and 
retained to the purpose for which the system is maintained (all 
information must be relevant to the purpose);
    (ii) The specific impact on the purpose or mission if each category 
of information is not collected (all information must be necessary to 
accomplish a lawful purpose or mission.);
    (iii) The ability to meet the informational needs without using 
personal identifiers (will anonymous statistical records meet the 
needs?);
    (iv) The length of time each item of information must be kept;
    (v) The methods of disposal;
    (vi) The cost of maintaining the information; and
    (vii) Whether a system already exists that serves the purpose of the 
new system.
    (2) Evaluate and review all existing systems of records.
    (i) When an alteration or amendment of an existing system is 
prepared pursuant to Sec. 701.107(b) and (c), do the evaluation 
described in Sec. 701.105(e).
    (ii) Conduct the following reviews annually and be prepared to 
report, in accordance with Sec. 701.104(c)(8), the results and 
corrective actions taken to resolve problems uncovered.
    (A) Training practices to ensure all personnel are familiar with the 
requirements of 5 U.S.C. 552a, and DoD Directive 5400.11, ``DoD Privacy 
Program'', this subpart and subpart G of this part, and any special 
needs their specific jobs entail.
    (B) Recordkeeping and disposal practices to ensure compliance with 
this subpart and subpart G of this part.
    (C) Ongoing computer matching programs in which records from the 
system have been matched with non-DoD records to ensure that the 
requirements of Sec. 701.115 have been met.
    (D) Actions of Department of the Navy personnel that resulted in 
either Department of the Navy being found civilly liable or a person 
being found criminally liable under 5 U.S.C. 552a, to determine the 
extent of the problem and find the most effective way of preventing the 
problem from occurring in the future.
    (E) Each system of records notice to ensure it accurately describes 
the system. Where major changes are needed, alter the system notice in 
accordance with Sec. 701.107(b). If minor changes are needed, amend the 
system notice pursuant to Sec. 701.107(c).
    (iii) Every even-numbered year, review a random sample of Department 
of the Navy contracts that provide for

[[Page 94]]

the operation of a system of records to accomplish a Department of the 
Navy function, to ensure the wording of each contract complies with the 
provisions of 5 U.S.C. 552a and Sec. 701.105(h).
    (iv) Every three years, beginning in 1992, review the routine use 
disclosures associated with each system of records to ensure the 
recipient's use of the records continues to be compatible with the 
purpose for which the information was originally collected.
    (v) Every three years, beginning in 1993, review each system of 
records for which exemption rules have been established to determine 
whether each exemption is still needed.
    (vi) When directed, send the reports through proper channels to the 
CNO (N09B30).
    (f) Discontinued information requirements. (1) Immediately stop 
collecting any category or item of information about individuals that is 
no longer justified, and when feasible, remove the information from 
existing records.
    (2) Do not destroy records that must be kept in accordance with 
retention and disposal requirements established under SECNAVINST 5212.5 
\7\, ``Disposal of Navy and Marine Corps Records.''
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    \7\ Copies available from OPNAV/SECNAV Directives Control Office, 
Washington Navy Yard, Building 200, Washington, DC 20350-2000.
---------------------------------------------------------------------------

    (g) Review records before disclosing outside the Federal government. 
Before disclosing a record from a system of records to anyone outside 
the Federal government, take reasonable steps to ensure the record which 
is being disclosed is accurate, relevant, timely, and complete for the 
purposes it is being maintained.
    (h) Federal government contractors--(1) Applicability to Federal 
government contractors. (i) When a naval activity contracts for the 
operation of a system of records to accomplish its function, the 
activity must ensure compliance with this subpart and subpart G of this 
part and 5 U.S.C. 552a. For the purposes of the criminal penalties 
described in 5 U.S.C. 552a, the contractor and its employees shall be 
considered employees of the agency during the performance of the 
contract.
    (ii) Consistent with Parts 24 and 52 of the Federal Acquisition 
Regulation (FAR), contracts for the operation of a system of records 
shall identify specifically the record system and the work to be 
performed, and shall include in the solicitations and resulting contract 
the terms as prescribed by the FAR.
    (iii) If the contractor must use records that are subject to this 
subpart and subpart G of this part to perform any part of a contract, 
the contractor activities are subject to this subpart and subpart G of 
this part.
    (iv) This subpart and subpart G of this part do not apply to records 
of a contractor that are:
    (A) Established and maintained solely to assist the contractor in 
making internal contractor management decisions, such as records 
maintained by the contractor for use in managing the contract;
    (B) Maintained as internal contractor employee records, even when 
used in conjunction with providing goods or services to the naval 
activity;
    (C) Maintained as training records by an educational organization 
contracted by a naval activity to provide training when the records of 
the contract students are similar to and commingled with training 
records of other students, such as admission forms, transcripts, and 
academic counseling and similar records; or
    (D) Maintained by a consumer reporting agency to which records have 
been disclosed under contract in accordance with 31 U.S.C. 952d.
    (v) For contracting that is subject to this subpart and subpart G of 
this part, naval activities shall publish instructions that:
    (A) Furnish Privacy Act guidance to personnel who solicit, award, or 
administer Government contracts;
    (B) Inform prospective contractors of their responsibilities under 
this subpart and subpart G of this part and the Department of the Navy 
Privacy Program;
    (C) Establish an internal system for reviewing contractor's 
performance for compliance with the Privacy Act; and
    (D) Provide for the biennial review of a random sample of contracts 
that are subject to this subpart and subpart G of this part.
    (2) Contracting procedures. The Defense Acquisition Regulatory (DAR)

[[Page 95]]

Council, which oversees the implementation of the FAR within the 
Department of Defense, is responsible for developing the specific 
policies and procedures for soliciting, awarding, and administering 
contracts that are subject to this subpart and subpart G of this part 
and 5 U.S.C. 552a.
    (3) Contractor compliance. Naval activities shall establish contract 
surveillance programs to ensure contractors comply with the procedures 
established by the DAR Council under the preceding subparagraph.
    (4) Disclosing records to contractors. Disclosing records to a 
contractor for use in performing a contract let by a naval activity is 
considered a disclosure within Department of the Navy. The contractor is 
considered the agent of Department of the Navy when receiving and 
maintaining the records for that activity.



Sec. 701.106  Safeguarding records in systems of records.

    Establish appropriate administrative, technical, and physical 
safeguards to ensure the records in every system of records are 
protected from unauthorized alteration, destruction, or disclosure. 
Protect the records from reasonably anticipated threats or hazards that 
could result in substantial harm, embarrassment, inconvenience, or 
unfairness to any individual on whom information is maintained.
    (a) Minimum standards. (1) Conduct risk analysis and management 
planning for each system of records. Consider sensitivity and use of the 
records, present and projected threats and vulnerabilities, and present 
and projected cost-effectiveness of safeguards. The risk analysis may 
vary from an informal review of a small, relatively insensitive system 
to a formal, fully quantified risk analysis of a large, complex, and 
highly sensitive system.
    (2) Train all personnel operating a system of records or using 
records from a system of records in proper record security procedures.
    (3) Label information exempt from disclosure under this subpart and 
subpart G of this part to reflect their sensitivity, such as ``FOR 
OFFICIAL USE ONLY,'' ``PRIVACY ACT SENSITIVE: DISCLOSE ON A NEED-TO-KNOW 
BASIS ONLY,'' or some other statement that alerts individuals of the 
sensitivity to the records.
    (4) Administer special administrative, physical, and technical 
safeguards to protect records processed or stored in an automated data 
processing or word processing system to protect them from threats unique 
to those environments.
    (b) Records disposal. (1) Dispose of records from systems of records 
so as to prevent inadvertent disclosure. Disposal methods are considered 
adequate if the records are rendered unrecognizable or beyond 
reconstruction (i.e., such as tearing, burning, melting, chemical 
decomposition, burying, pulping, pulverizing, shredding, or mutilation). 
Magnetic media may be cleared by completely erasing, overwriting, or 
degaussing the tape.
    (2) The transfer of large volumes of records (e.g., printouts and 
computer cards) in bulk to a disposal activity such as a Defense 
Reutilization and Marketing Office for authorized disposal is not a 
disclosure of records, if the volume of records, coding of the 
information, or some other factor render it impossible to recognize any 
personal information about a specific individual.
    (3) When disposing or destroying large quantities of records from a 
system of records, care must be taken to ensure that the bulk of the 
records is maintained to prevent easy identification of specific 
records. If such bulk is maintained, no special procedures are required. 
If bulk is not maintained, or if the form of the records makes 
individually identifiable information easily discernable, dispose of the 
records in accordance with Sec. 701.106(b)(1).



Sec. 701.107  Criteria for creating, altering, amending and deleting Privacy Act systems of records.

    (a) Criteria for a new system of records. A new system of records is 
one for which no existing system notice has been published in the 
Federal Register. If a notice for a system of records has been canceled 
or deleted, and it is determined that it should be reinstated or reused, 
a new system notice must be published in the Federal Register. Advance 
public notice must

[[Page 96]]

be given before a naval activity may begin to collect information for or 
use a new system of records. The following procedures apply:
    (1) Describe in the record system notice the contents of the record 
system and the purposes and routine uses for which the information will 
be used and disclosed.
    (2) The public shall be given 30 days to comment on any proposed 
routine uses before the routine uses are implemented.
    (3) The notice shall contain the date the system of records will 
become effective.
    (b) Criteria for an alteration to a system of records notice. A 
system is considered altered when any one of the following actions occur 
or is proposed:
    (1) A significant increase or change in the number or types of 
individuals about whom records are maintained. For example, a decision 
to expand a system of records that originally covered personnel assigned 
to only one naval activity to cover personnel at several installations 
would constitute an altered system. An increase or decrease in the 
number of individuals covered due to normal growth or decrease is not an 
alteration.
    (2) A change that expands the types or categories of information 
maintained. For example, a personnel file that has been expanded to 
include medical records would be an alteration.
    (3) A change that alters the purpose for which the information is 
used. In order to be an alteration, the change must be one that is not 
reasonably inferred from any of the existing purposes.
    (4) A change to equipment configuration (either hardware or 
software) that creates substantially greater use of records in the 
system. For example, placing interactive computer terminals at regional 
offices when the system was formerly used only at the headquarters would 
be an alteration.
    (5) A change in the manner in which records are organized or in the 
method by which records are retrieved.
    (6) Combining record systems due to a reorganization within 
Department of the Navy.
    (7) Retrieving by Social Security Numbers (SSNs), records that 
previously were retrieved only by names would be an alteration if the 
present notice failed to indicate retrieval by SSNs. An altered system 
of records must be published in the Federal Register. Submission for an 
alteration must contain a narrative statement, the specific changes 
altering the system, and the system of records notice.
    (c) Criteria for amending a systems of records notice. Minor changes 
to published system of records notices are considered amendments. All 
amendments should be forwarded to CNO (N09B30) for publication in the 
Federal Register. When submitting an amendment to a system of records 
notice, the naval activity must include a description of the specific 
changes proposed and the system of records notice.
    (d) Criteria for deleting a system of records notice. When a system 
of records is discontinued, incorporated into another system, or 
determined to be no longer subject to this subpart and subpart G of this 
part, a deletion notice must be published in the Federal Register. The 
deletion notice shall include the system identification number, system 
name, and the reason for deleting it. If a system is deleted through 
incorporation into or merger with another system, identify the successor 
system in the deletion notice.



Sec. 701.108  Collecting information about individuals.

    (a) Collecting directly from the individual. To the greatest extent 
practicable, collect information for systems of records directly from 
the individual to whom the record pertains if the record may be used to 
make an adverse determination about the individual's rights, benefits, 
or privileges under the Federal programs.
    (b) Collecting information about individuals from third persons. It 
might not always be practical to collect all information about an 
individual directly from that person, such as verifying information 
through other sources for security or employment suitability 
determinations; seeking other opinions, such as a supervisor's comments 
on past performance or other evaluations; obtaining the necessary 
information directly from the individual would be exceptionally 
difficult or would result

[[Page 97]]

in unreasonable costs or delays; or, the individual requests or consents 
to contacting another person to obtain the information.
    (c) Soliciting the social security number (SSN). (1) It is unlawful 
for any Federal, State, or local government agency to deny an individual 
a right, benefit, or privilege provided by law because the individual 
refuses to provide his or her SSN. However, this prohibition does not 
apply if a Federal law requires that the SSN be provided, or the SSN is 
required by a law or regulation adopted before January 1, 1975, to 
verify the individual's identity for a system of records established and 
in use before that date.
    (2) Before requesting an individual to provide the SSN, the 
individual must be advised whether providing the SSN is mandatory or 
voluntary; by what law or other authority the SSN is solicited; and what 
uses will be made of the SSN.
    (3) The preceding advice relates only to the SSN. If other 
information about the individual is solicited for a system of records, a 
Privacy Act statement (PAS) also must be provided to him/her.
    (4) The notice published in the Federal Register for each system of 
records containing SSNs solicited from individuals must indicate the 
authority for soliciting the SSNs and whether it is mandatory for the 
individuals to provide their SSNs. E.O. 9397 requires federal agencies 
to use SSNs as numerical identifiers for individuals in most federal 
records systems, however, it does not make it mandatory for individuals 
to provide their SSNs.
    (5) When entering military service or civilian employment with the 
Department of the Navy, individuals must provide their SSNs. This is 
then the individual's numerical identifier and is used to establish 
personnel, financial, medical, and other official records (as authorized 
by E.O. 9397). The individuals must be given the notification described 
above. Once the individual has provided his or her SSN to establish the 
records, a notification is not required when the SSN is requested only 
for identification or to locate the records.
    (6) The Federal Personnel Manual \8\ must be consulted when 
soliciting SSNs for use in systems of records maintained by the Office 
of Personnel Management.
---------------------------------------------------------------------------


    \8\ Copies available from the Office of Personnel Management, 1900 E 
Street, Washington, DC 20415.
---------------------------------------------------------------------------

    (7) A Department of the Navy activity may request an individual's 
SSN even though it is not required by Federal statute, or is not for a 
system of records in existence and operating prior to January 1, 1975. 
However, the separate Privacy Act Statement for the SSN, alone, or a 
merged Privacy Act Statement covering both the SSN and other items of 
personal information, must make clear that disclosure of the number is 
voluntary. If the individual refuses to disclose his or her SSN, the 
activity must be prepared to identify the individual by alternate means.
    (d) Contents of Privacy Act Statement. (1) When an individual is 
requested to furnish information about himself/herself for a system of 
records, a Privacy Act Statement must be provided to the individual, 
regardless of the method used to collect the information (i.e., forms, 
personal or telephonic interview, etc). If the information requested 
will not be included in a system of records, a Privacy Act Statement is 
not required.
    (2) The Privacy Act Statement shall include the following:
    (i) The Federal law or E.O. that authorizes collecting the 
information (i.e., E.O. 9397 authorizes collection of SSNs);
    (ii) Whether or not it is mandatory for the individual to provide 
the requested information (It is only mandatory when a Federal law or 
E.O. of the President specifically imposes a requirement to furnish the 
information and provides a penalty for failure to do so. If furnishing 
information is a condition for granting a benefit or privilege 
voluntarily sought by the individual, it is voluntary for the individual 
to give the information.);
    (iii) The principle purposes for collecting the information;
    (iv) The routine uses that will be made of the information (i.e., to 
whom

[[Page 98]]

and why it will be disclosed outside the Department of Defense); and
    (v) The possible effects on the individual if the requested 
information is not provided.
    (3) The Privacy Act Statement must appear on the form used to 
collect the information or on a separate form that can be retained by 
the individual collecting the information. If the information is 
collected by means other than a form completed by the individual, i.e., 
solicited over the telephone, the Privacy Act Statement should be read 
to the individual and if requested by the individual, a copy sent to 
him/her. There is no requirement that the individual sign the Privacy 
Act Statement.
    (e) Format for Privacy Act Statement. When forms are used to collect 
information about individuals for a system of records, the Privacy Act 
Statement shall appear as follows (listed in the order of preference):
    (1) Immediately below the title of the form,
    (2) Elsewhere on the front page of the form (clearly indicating it 
is the Privacy Act Statement),
    (3) On the back of the form with a notation of its location below 
the title of the form, or
    (4) On a separate form which the individual may keep.



Sec. 701.109  Access to records.

    (a) Individual access to records-- (1) Right of access. Only 
individuals who are subjects of records maintained in systems of records 
and by whose personal identifiers the records are retrieved have the 
right of individual access under this subpart and subpart G of this 
part, unless they provide written authorization for their representative 
to act on their behalf. Legal guardians or parents acting on behalf of a 
minor child also have the right of individual access under this subpart 
and subpart G of this part.
    (2) Notification of record's existence. Each naval activity shall 
establish procedures for notifying an individual, in response to his or 
her request, if a system of records identified by him/her contains a 
record pertaining to the individual.
    (3) Individual request for access. Individuals shall address 
requests for access to records in systems of records to the system 
manager or the office designated in the Department of the Navy 
compilation of system notices (periodic Chief of Naval Operations Notes 
(OPNAVNOTEs) 5211, ``Current Privacy Act Issuances'').
    (4) Verifying identity. (i) An individual shall provide reasonable 
verification of identity before obtaining access to records.
    (ii) When requesting records in writing, naval activities may not 
insist that a requester submit a notarized signature. The courts have 
ruled that an alternative method of verifying identity must be 
established for individuals who do not have access to notary services. 
This alternative permits requesters to provide an unsworn declaration 
that states ``I declare under perjury or penalty under the laws of the 
United States of American that the foregoing is true and correct.''
    (iii) When an individual seeks access in person, identification can 
be verified by documents normally carried by the individual (i.e., 
identification card, driver's license, or other license, permit or pass 
normally used for identification purposes).
    (iv) When access is requested other than in writing, identity may be 
verified by the individual's providing minimum identifying data such as 
full name, date and place of birth, or other information necessary to 
locate the record sought. If the information sought is sensitive, 
additional identifying data may be required. Telephonic requests should 
not be honored.
    (v) Allow an individual to be accompanied by a person of his or her 
choice when viewing the record; however, require the individual to 
provide written authorization to have the record discussed in front of 
the other person.
    (vi) Do not deny access to an individual who is the subject of the 
record solely for refusing to divulge his or her SSN, unless it is the 
only means of retrieving the record or verifying identity.
    (vii) Do not require the individual to explain why he or she is 
seeking access to a record under this subpart and subpart G of this 
part.
    (viii) Only a designated denial authority may deny access. The 
denial

[[Page 99]]

must be in writing and contain the information required by 
Sec. 701.109(d).
    (5) Blanket requests not honored. Do not honor requests from 
individuals for notification and/or access concerning all Department of 
the Navy systems of records. In these instances, notify the individual 
that requests for notification and/or access must be directed to the 
appropriate system manager for the particular record system being 
requested, as indicated in the periodic Chief of Naval Operations Notes 
(OPNAVNOTEs) 5211, ``Current Privacy Act Issuances''; and the request 
must either designate the particular system of records to be searched, 
or provide sufficient information for the system manager to identify the 
appropriate system. Also, provide the individual with any other 
information needed for obtaining consideration of his or her request.
    (6) Granting individual access to records. (i) Grant the individual 
access to the original record (or exact copy) without any changes or 
deletions, other than those made in accordance with Sec. 701.113.
    (ii) Grant the individual's request for an exact copy of the record, 
upon the signed authorization of the individual, and provide a copy to 
anyone designated by the individual. In either case, the copying fees 
may be assessed to the individual pursuant to Sec. 701.109(b).
    (iii) If requested, explain any record or portion of a record that 
is not understood, as well as any changes or deletions.
    (7) Illegible or incomplete records. Do not deny an individual 
access solely because the physical condition or format of the record 
does not make it readily available (i.e., when the record is in a 
deteriorated state or on magnetic tape). Either prepare an extract or 
recopy the document exactly.
    (8) Access by parents and legal guardians. (i) The parent of any 
minor, or the legal guardian of any individual declared by a court of 
competent jurisdiction to be incompetent due to physical or mental 
incapacity or age, may obtain access to the record of the minor or 
incompetent individual if the parent or legal guardian is acting on 
behalf or for the benefit of the minor or incompetent. However, with 
respect to access by parents and legal guardians to medical records and 
medical determinations about minors, use the following procedures:
    (A) In the United States, the laws of the state where the records 
are located might afford special protection to certain medical records 
(i.e., drug and alcohol abuse treatment, and psychiatric records). The 
state statutes might apply even if the records are maintained by a naval 
medical facility.
    (B) For installations located outside the U.S., the parent or legal 
guardian of a minor shall be denied access if all four of the following 
conditions are met:
    (1) The minor at the time of the treatment or consultation was 15, 
16, or 17 years old;
    (2) The treatment or consultation was within a program authorized by 
law or regulation to provide confidentiality to the minor;
    (3) The minor indicated a desire that the treatment or consultation 
record be handled in confidence and not disclosed to a parent or 
guardian; and
    (4) The parent or legal guardian does not have the written 
authorization of the minor or a valid court order granting access.
    (ii) A minor or incompetent has the same right of access as any 
other individual under this subpart and subpart G of this part. The 
right of access of the parent or legal guardian is in addition to that 
of the minor or incompetent.
    (9) Access to information compiled in reasonable anticipation of a 
civil proceeding. (i) An individual is not entitled under this subpart 
and subpart G of this part to access information compiled in reasonable 
anticipation of a civil action or proceeding.
    (ii) The term ``civil action or proceeding'' includes quasi-judicial 
and pre-trial judicial proceedings, as well as formal litigation.
    (iii) Section 701.109(9)(i) and (ii) do not prohibit access to 
records compiled or used for purposes other than litigation, nor 
prohibit access to systems of records solely because they are frequently 
subject to litigation. The information must have been compiled for the 
primary purpose of litigation.

[[Page 100]]

    (10) Personal notes or records not under the control of the 
Department of the Navy. (i) Certain documents under the control of a 
Department of the Navy employee and used to assist him/her in performing 
official functions are not considered Department of the Navy records 
within the meaning of this subpart and subpart G of this part. These 
documents are not systems of records that are subject to this subpart 
and subpart G of this part, if they are:
    (A) Maintained and discarded solely at the discretion of the author;
    (B) Created only for the author's personal convenience;
    (C) Not the result of official direction or encouragement, whether 
oral or written; and
    (D) Not shown to other persons for any reason or filed in agency 
files.
    (11) Relationship between the Privacy Act and FOIA. In some 
instances, individuals requesting access to records pertaining to 
themselves may not know which Act to cite as the appropriate statutory 
authority. The following guidelines are to ensure that the individuals 
receive the greatest degree of access under both Acts:
    (i) Access requests that specifically state or reasonably imply that 
they are made under 5 U.S.C. 552 (1988) as amended by the Freedom of 
Information Reform Act of 1986, are processed under Secretary of the 
Navy Instruction 5720.42E, ``Department of the Navy Freedom of 
Information Act Program.''
    (ii) Access requests that specifically state or reasonably imply 
that they are made under 5 U.S.C. 552a are processed under this subpart 
and subpart G of this part.
    (iii) Access requests that cite both 5 U.S.C. 552a, as amended by 
the Computer Matching Act of 1988 and 5 U.S.C. 552 (1988) as amended by 
the Freedom of Information Reform Act are processed under the Act that 
provides the greater degree of access. Inform the requester which 
instruction was used in granting or denying access.
    (iv) Do not penalize the individual access to his or her records 
otherwise releasable under 5 U.S.C. 552a and periodic Chief of Naval 
Operations Notes (OPNAVNOTEs) 5211, ``Current Privacy Act Issuances'', 
simply because he or she failed to cite the appropriate statute or 
instruction.
    (12) Time Limits. Acknowledge requests for access made under Privacy 
Act or this subpart and subpart G of this part within 10 working days 
after receipt, and advise the requester of your decision to grant/deny 
access within 30 working days.
    (b) Reproduction fees. Normally, only one copy of any record or 
document will be provided. Checks or money orders for fees should be 
made payable to the Treasurer of the United States and deposited to the 
miscellaneous receipts of the treasury account maintained at the finance 
office servicing the activity.
    (1) Fee schedules shall include only the direct cost of reproduction 
and shall not include costs of:
    (i) Time or effort devoted to searching for or reviewing the record 
by naval personnel;
    (ii) Fees not associated with the actual cost of reproduction;
    (iii) Producing a copy when it must be provided to the individual 
without cost under another regulation, directive, or law;
    (iv) Normal postage;
    (v) Transportation of records or personnel; or
    (vi) Producing a copy when the individual has requested only to 
review the record and has not requested a copy to keep, and the only 
means of allowing review is to make a copy (e.g., the record is stored 
in a computer and a copy must be printed to provide individual access, 
or the naval activity does not wish to surrender temporarily the 
original record for the individual to review).
    (2) Fee schedules.
    (i) Office copy (per page)............$.10
    (ii) Microfiche (per fiche)............$.25
    (3) Fee waivers. Waive fees automatically if the direct cost of 
reproduction is less than $15, unless the individual is seeking an 
obvious extension or duplication of a previous request for which he or 
she was granted a waiver. Decisions to waive or reduce fees that exceed 
$15 are made on a case-by-case basis.
    (c) Denying individual access. (1) Deny the record subject access to 
requested

[[Page 101]]

record only if it was compiled in reasonable anticipation of a civil 
action or proceeding or is in a system of records that has been exempt 
from the access provisions of Sec. 701.113.
    (2) Deny the individual access only to those portions of the record 
for which the denial will serve a legitimate government purpose. An 
individual may be refused access for failure to comply with established 
procedural requirements, but must be told the specific reason for the 
refusal and the proper access procedures.
    (3) Deny the individual access to his or her medical and 
psychological records if it is determined that access could have an 
adverse affect on the mental or physical health of the individual. This 
determination normally should be made in consultation with a medical 
practitioner. If it is medically indicated that access could have an 
adverse mental or physical effect on the individual, provide the record 
to a medical practitioner named by the individual, along with an 
explanation of why access without medical supervision could be harmful 
to the individual. In any case, do not require the named medical 
practitioner to request the record for the individual. If, however, the 
individual refuses or fails to designate a medical practitioner, access 
shall be refused. The refusal is not considered a denial for reporting 
purposes under the Privacy Act.
    (d) Notifying the individual. Written denial of access must be given 
to the individual. The denial letter shall include:
    (1) The name, title, and signature of a designated denial authority;
    (2) The date of the denial;
    (3) The specific reason for the denial, citing the appropriate 
subsections of 5 U.S.C. 552a or this subpart and subpart G of this part 
authorizing the denial;
    (4) The individual's right to appeal the denial within 60 calendar 
days of the date the notice is mailed; and
    (5) The title and address of the review authority.



Sec. 701.110  Amendment of records.

    (a) Individual review and amendment. Encourage individuals to review 
periodically, the information maintained about them in systems of 
records, and to avail themselves of the amendment procedures established 
by this subpart and subpart G of this part.
    (1) Right to amend. An individual may request to amend any record 
retrieved by his or her personal identifier from a system of records, 
unless the system has been exempt from the amendment procedures under 
this subpart. Amendments under this subpart and subpart G of this part 
are limited to correcting factual matters, not matters of opinion (i.e., 
information contained in evaluations of promotion potential or 
performance appraisals). When records sought to be amended are covered 
by another issuance, the administrative procedures under that issuance 
must be exhausted before using the Privacy Act. In other words, the 
Privacy Act may not be used to avoid the administrative procedures 
required by the issuance actually covering the records in question.
    (2) In writing. Amendment requests shall be in writing, except for 
routine administrative changes, such as change of address.
    (3) Content of amendment request. An amendment request must include 
a description of the information to be amended; the reason for the 
amendment; the type of amendment action sought (i.e., deletion, 
correction, or addition); and copies of available documentary evidence 
supporting the request.
    (b) Burden of proof. The individual must provide adequate support 
for the request.
    (c) Verifying identity. The individual may be required to provide 
identification to prevent the inadvertent or intentional amendment of 
another's record. Use the verification guidelines provided in 
Sec. 701.109(a)(4).
    (d) Limits on amending judicial and quasi-judicial evidence and 
findings. This subpart and subpart G of this part do not permit the 
alteration of evidence presented in the course of judicial or quasi-
judicial proceedings. Amendments to such records must be made in 
accordance with procedures established for such proceedings. This 
subpart and subpart G of this part do not permit a collateral attack on 
a judicial or quasi-judicial finding; however, this subpart and subpart 
G of this part may be used

[[Page 102]]

to challenge the accuracy of recording the finding in a system of 
records.
    (e) Standards for amendment request determinations. The record which 
the individual requests to be amended must meet the recordkeeping 
standards established in Sec. 701.105. The record must be accurate, 
relevant, timely, complete, and necessary. If the record in its present 
state does not meet each of the criteria, grant the amendment request to 
the extent necessary to meet them.
    (f) Time limits. Within 10 working days of receiving an amendment 
request, the systems manager shall provide the individual a written 
acknowledgement of the request. If action on the amendment request is 
completed within the 10 working days and the individual is so informed, 
no separate acknowledgment is necessary. The acknowledgment must clearly 
identify the request and advise the individual when to expect 
notification of the completed action. Only under exceptional 
circumstances should more than 30 working days be required to complete 
the action on an amendment request.
    (g) Granting an amendment request in whole or in part--(1) Notify 
the requester. To the extent the amendment request is granted, the 
systems manager shall notify the individual and make the appropriate 
amendment.
    (2) Notify previous recipients. Notify all previous recipients of 
the information (as reflected in the disclosure accounting record) that 
the amendment has been made and provide each a copy of the amended 
record. Recipients who are known to be no longer retaining the record 
need not be advised of the amendment. If it is known that other naval 
activities, DoD components, or Federal agencies have been provided the 
information that now requires amendment, or if the individual requests 
that these agencies be notified, provide the notification of amendment 
even if those activities or agencies are not listed on the disclosure 
accounting form.
    (h) Denying an amendment request in whole or in part. If the 
amendment request is denied in whole or in part, promptly notify the 
individual in writing. Include in the notification to the individual the 
following:
    (1) Those sections of 5 U.S.C. 552a or this subpart and subpart G of 
this part upon which the denial is based;
    (2) His or her right to appeal to the head of the activity for an 
independent review of the initial denial;
    (3) The procedures for requesting an appeal, including the title and 
address of the official to whom the appeal should be sent; and
    (4) Where the individual can receive assistance in filing the 
appeal.
    (i) Requests for amending OPM records. The records in an OPM 
government-wide system of records are only temporarily in the custody of 
naval activities. Requests for amendment of these records must be 
processed in accordance with OPM Regulations and the Federal Personnel 
Manual. The denial authority may deny a request, but all denials are 
subject to review by the Assistant Director for Workforce Information, 
Personnel Systems Oversight Group, Office of Personnel Management, 1900 
E Street, NW, Washington, DC 20415.
    (j) Individual's statement of disagreement. (1) If the review 
authority refuses to amend the record as requested, the individual may 
submit a concise statement of disagreement listing the reasons for 
disagreeing with the refusal to amend.
    (2) If possible, incorporate the statement of disagreement into the 
record. If that is not possible, annotate the record to reflect that the 
statement was filed and maintain the statement so that it can be readily 
obtained when the disputed information is used or disclosed.
    (3) Furnish copies of the statement of disagreement to all 
individuals listed on the disclosure accounting form (except those known 
to be no longer retaining the record), as well as to all other known 
holders of copies of the record.
    (4) Whenever the disputed information is disclosed for any purpose, 
ensure that the statement of disagreement also is used or disclosed.
    (k) Department of the Navy statement of reasons. (1) If the 
individual files a statement of disagreement, the naval activity may 
file a statement of reasons containing a concise summary of

[[Page 103]]

the activity's reasons for denying the amendment request.
    (2) The statement of reasons shall contain only those reasons given 
to the individual by the appellate official and shall not contain any 
comments on the individual's statement of disagreement.
    (3) At the discretion of the naval activity, the statement of 
reasons may be disclosed to those individuals, activities, and agencies 
that receive the statement of disagreement.



Sec. 701.111  Privacy Act appeals.

    (a) How to file an appeal. The following guidelines shall be 
followed by individuals wishing to appeal a denial of notification, 
access, or amendment of records.
    (1) The appeal must be received by the cognizant review authority 
(i.e., ASN (M&RA), NJAG, OGC, or OPM) within 60 calendar days of the 
date of the response.
    (2) The appeal must be in writing and requesters should provide a 
copy of the denial letter and a statement of their reasons for seeking 
review.
    (b) Time of receipt. The time limits for responding to an appeal 
commence when the appeal reaches the office of the review authority 
having jurisdiction over the record. Misdirected appeals should be 
referred expeditiously to the proper review authority.
    (c) Review authorities. ASN (M&RA), NJAG, and OGC are authorized to 
adjudicate appeals made to SECNAV. NJAG and OGC are further authorized 
to delegate this authority to a designated Assistant NJAG and the 
Principal Deputy General or Deputy General Counsel, respectively, under 
such terms and conditions as they deem appropriate.
    (1) If the record is from a civilian Official Personnel Folder or is 
contained on any other OPM forms, send the appeal to the Assistant 
Director for Workforce Information, Personnel Systems and Oversight 
Group, Office of Personnel Management, 1900 E Street, NW, Washington, DC 
20415. Records in all systems of records maintained in accordance with 
the OPM government-wide systems notices are only in the temporary 
custody of the Department of the Navy.
    (2) If the record pertains to the employment of a present or former 
Navy and Marine Corps civilian employee, such as Navy or Marine Corps 
civilian personnel records or an employee's grievance or appeal file, to 
the General Counsel, Navy Department, Washington, DC 20360-5110.
    (3) If the record pertains to a present or former military member's 
fitness reports or performance evaluations to the Assistant Secretary of 
the Navy (Manpower and Reserve Affairs), Navy Department, Washington, DC 
20350-1000.
    (4) All other records dealing with present or former military 
members to the Judge Advocate General, Navy Department, 200 Stovall 
Street, Alexandria, VA 22332-2400.
    (d) Appeal procedures. (1) If the appeal is granted, the review 
authority shall advise the individual that his or her appeal has been 
granted and provide access to the record being sought.
    (2) If the appeal is denied totally or in part, the appellate 
authority shall advise the reason(s) for denying the appeal, citing the 
appropriate subsections of 5 U.S.C. 552a or this subpart and subpart G 
of this part that apply; the date of the appeal determination; the name, 
title, and signature of the appellate authority; and a statement 
informing the requester of his or her right to seek judicial relief in 
the Federal District Court.
    (e) Final action, time limits and documentation. (1) The written 
appeal notification granting or denying access is the final naval 
activity action on the initial request for access.
    (2) All appeals shall be processed within 30 working days of 
receipt, unless the appellate authority finds that an adequate review 
cannot be completed within that period. If additional time is needed, 
notify the applicant in writing, explaining the reason for the delay and 
when the appeal will be completed.
    (f) Denial of appeal by activity's failure to act. An individual may 
consider his or her appeal denied if the appellate authority fails to:
    (1) Take final action on the appeal within 30 working days of 
receipt when no extension of time notice was given; or

[[Page 104]]

    (2) Take final action within the period established by the notice to 
the appellate authority of the need for an extension of time to complete 
action on the appeal.



Sec. 701.112  Disclosure of records.

    (a) Conditions of disclosure. (1) 5 U.S.C. 552a prohibits an agency 
from disclosing any record contained in a system of records to any 
person or agency, except when the record subject gives written consent 
for the disclosure or when one of the 12 conditions listed below in this 
subsection applies.
    (2) Except for disclosures made under 5 U.S.C. 552 (1988) as amended 
by the Freedom of Information Reform Act of 1986 and Secretary of the 
Navy Instruction 5720.42E, ``Department of the Navy Freedom of 
Information Act Program,'' before disclosing any record from a system of 
records to any recipient other than a Federal agency, make reasonable 
efforts to ensure the record is accurate, relevant, timely, and complete 
for Department of the Navy purposes. Records discovered to have been 
improperly filed in the system of records should be removed before 
disclosure.
    (i) If validation cannot be obtained from the record itself, the 
naval activity may contact the record subject (if reasonably available) 
to verify the accuracy, timeliness, completeness, and relevancy of the 
information.
    (ii) If validation cannot be obtained from the record and the record 
subject is not reasonably available, advise the recipient that the 
information is believed to be valid as of a specific date and reveal any 
factors bearing on the validity of the information.
    (b) Nonconsensual disclosures. 5 U.S.C. 552a provides 12 instances 
when a record in a system of records may be disclosed without the 
written consent of the record subject:
    (1) Disclosures within the Department of Defense. For purposes of 
disclosing records, the Department of Defense is considered a single 
agency; hence, a record may be disclosed to any officer or employee in 
the Department of Defense (including private contractor personnel who 
are engaged to perform services needed in connection with the operation 
of a system of records for a DoD component), who have a need for the 
record in the performance of their duties, provided this use is 
compatible with the purpose for which the record is maintained. This 
provision is based on the ``need to know'' concept.
    (i) For example, this may include disclosure to personnel managers, 
review boards, discipline officers, courts-martial personnel, medical 
officers, investigating officers, and representatives of the Judge 
Advocate General, Auditor General, Naval Inspector General, or the Naval 
Investigative Service, who require the information in order to discharge 
their official duties. Examples of personnel outside the Department of 
the Navy who may be included are: Personnel of the Joint Staff, Armed 
Forces Entrance and Examining Stations, Defense Investigative Service, 
or the other military departments, who require the information in order 
to discharge an official duty.
    (ii) It may also include the transfer of records between naval 
components and non-DoD agencies in connection with the Personnel 
Exchange Program (PEP) and interagency support agreements. Disclosure 
accountings are not required for intra-agency disclosure and disclosures 
made in connection with interagency support agreements or the PEP. 
Although some disclosures authorized by this paragraph might also meet 
the criteria for disclosure under other exceptions specified in the 
following paragraphs of this section, they should be treated under this 
paragraph for disclosure accounting purposes.
    (2) Disclosures required by the FOIA. (i) A record must be disclosed 
if required by 5 U.S.C. 552 (1988) as amended by the Freedom of 
Information Reform Act of 1986, which is implemented by Secretary of the 
Navy Instruction 5720.42E, ``Department of the Navy Freedom of 
Information Act Program.''
    (ii) 5 U.S.C. 552 (1988) as amended by the Freedom of Information 
Reform Act of 1986 and Secretary of the Navy Instruction 5720.42E, 
``Department of the Navy Freedom of Information Act Program'' require 
that records be made available to any person requesting them in writing, 
unless the record is exempt from disclosure under one of the nine FOIA 
exemptions. Therefore,

[[Page 105]]

if a record is not exempt from disclosure, it must be provided to the 
requester.
    (iii) Certain records, such as personnel, medical, and similar 
files, are exempt from disclosure under exemption (b)(6) of 5 U.S.C. 552 
(1988) as amended by the Freedom of Information Act Reform Act of 1986. 
Under that exemption, disclosure of information pertaining to an 
individual can be denied only when the disclosure would be a clearly 
unwarranted invasion of personal privacy. The first step is to determine 
whether a viable personal privacy interest exists in these records 
involving an identifiable living person. The second step is to consider 
how disclosure would benefit the general public in light of the content 
and context of the information in question. The third step is to 
determine whether the identified public interests qualify for 
consideration. The fourth step is to balance the personal privacy 
interests against the qualifying public interest. Numerous factors must 
be considered such as: The nature of the information to be disclosed 
(i.e., Do individuals normally have an expectation of privacy in the 
type of information to be disclosed?); importance of the public interest 
served by the disclosure and probability of further disclosure which may 
result in an unwarranted invasion of privacy; relationship of the 
requester to the public interest being served; newsworthiness of the 
individual to whom the information pertains (i.e., high ranking officer, 
public figure); degree of sensitivity of the information from the 
standpoint of the individual or the individual's family, and its 
potential for being misused to the harm, embarrassment, or inconvenience 
of the individual or the individual's family; the passage of time since 
the event which is the topic of the record (i.e., to disclose that an 
individual has been arrested and is being held for trial by court-
martial is normally permitted, while to disclose an arrest which did not 
result in conviction might not be permitted after the passage of time); 
and the degree to which the information is already in the public domain 
or is already known by the particular requester.
    (iv) Records or information from investigatory records, including 
personnel security investigatory records, are exempt from disclosure 
under the broader standard of ``an unwarranted invasion of personal 
privacy'' found in exemption (b)(7)(C) of 5 U.S.C. 552. This broader 
standard applies only to records or information compiled for law 
enforcement purposes.
    (v) A disclosure under 5 U.S.C. 552 about military members must be 
in accordance with Secretary of the Navy Instruction 5720.42E, 
``Department of the Navy Freedom of Information Act Program'', but the 
following information normally may be disclosed from military personnel 
records (except for those personnel assigned to sensitive or routinely 
deployable units, or located in a foreign territory), without a clearly 
unwarranted invasion of personal privacy: Full name, rank, date of rank, 
base pay, past duty stations, present duty station and future duty 
station (if finalized), unless the stations have been determined by the 
Department of the Navy to be sensitive, routinely deployable, or located 
in a foreign territory, office or duty telephone number, source of 
commission, promotion sequence number, awards and decorations, 
attendance at professional military schools, and duty status at any 
given time.
    (vi) The following information normally may be disclosed from 
civilian employee records about CONUS employees: Full name, present and 
past position titles and occupational series, present and past grades, 
present and past annual salary rates (including performance awards or 
bonuses, incentive awards, merit pay amount, Meritorious and 
Distinguished Executive Ranks, and allowances and differentials), past 
duty stations, present duty station and future duty station (if 
finalized), including room numbers, shop designations, or other 
identifying information regarding buildings or places of employment, 
unless the duty stations have been determined by the Department of the 
Navy to be sensitive, routinely deployable, or located in a foreign 
territory, position descriptions, identification of job elements, and 
those performance standards (but not actual performance appraisals) that

[[Page 106]]

the disclosure of which would not interfere with law enforcement 
programs or severely inhibit Department of the Navy effectiveness.
    (viii) Disclosure of home addresses and home telephone numbers 
normally is considered a clearly unwarranted invasion of personal 
privacy and is prohibited. However, they may be disclosed if the 
individual has consented to the disclosure; the disclosure is required 
by the FOIA; the disclosure is required by another law, such as 42 
U.S.C. 653, which provides assistance to states in locating parents who 
have defaulted on child support payments, or the collection of alimony, 
and to state and local tax authorities for the purpose of enforcing tax 
laws. However, care must be taken prior to release to ensure that a 
written record is prepared to document the reasons for the release 
determination.
    (A) When compiling home addresses and telephone numbers, the 
individual may be offered the option of authorizing disclosure of the 
information without further consent for specific purposes, such as 
locator services. In that case, the information may be disclosed for the 
stated purpose without further consent. If the information is to be 
disclosed for any other purpose, a signed consent permitting the 
additional disclosure must be obtained from the individual.
    (B) Before listing home addresses and telephone numbers in 
Department of the Navy telephone directories, give the individual the 
opportunity to refuse such a listing. If the individual requests that 
the home address or telephone number not be listed in the directory, do 
not assess any additional fee associated with maintaining an unlisted 
number for government-owned telephone services.
    (C) The sale or rental of lists of names and addresses is prohibited 
unless such action is specifically authorized by Federal law. This does 
not prohibit the disclosure of names and addresses made under Secretary 
of the Navy Instruction 5720.42E, ``Department of the Navy Freedom of 
Information Act Program.''
    (D) In response to FOIA requests, information concerning special and 
general courts-martial results (e.g., records of trial) are releasable. 
However, information regarding summary courts-martial and non-judicial 
punishment are generally not releasable. The balancing of interests must 
be done. It is possible that in a particular case, information regarding 
non-judicial punishment should be disclosed pursuant to a FOIA request 
(i.e., the facts leading to a nonjudicial punishment are particularly 
newsworthy or the case involves a senior official abusing the public 
trust through office-related misconduct, such as embezzlement). 
Announcement of nonjudicial punishment dispositions under JAGMAN, 
subsection 0107, is a proper exercise of command authority and not a 
release of information under FOIA or this subpart and subpart G of this 
part. Exceptions to this policy must be coordinated with CNO (N09B30) or 
CMC (MI-3) prior to responding to requesters, including all requests for 
this type of information from members of Congress.
    (3) Disclosures for established routine uses. (i) Records may be 
disclosed outside the Department of the Navy if the disclosure is for an 
established routine use.
    (ii) A routine use shall:
    (A) Be compatible with and related to the purpose for which the 
record was created;
    (B) Identify the persons or organizations to whom the record may be 
disclosed;
    (C) Identify specifically the uses for which the information may be 
employed by the receiving person or organization; and
    (D) Have been published previously in the Federal Register.
    (iii) A routine use shall be established for each user of the 
information outside the Department of the Navy who needs the information 
for an official purpose.
    (iv) Routine uses may be established, discontinued, or amended 
without the consent of the individuals to whom the records pertain. 
However, new and amended routine uses must be published in the Federal 
Register at least 30 days before the information may be disclosed under 
their provisions.
    (v) In addition to the routine uses established by the Department of 
the

[[Page 107]]

Navy for each system of records, common ``Blanket Routine Uses,'' 
applicable to all record systems maintained with the Department of the 
Navy, have been established. These ``Blanket Routine Uses'' are 
published at the beginning of the Department of the Navy's Federal 
Register compilation of record systems notices rather than at each 
system notice and are also reflected in periodic Chief of Naval 
Operations Notes (OPNAVNOTEs) 5211, ``Current Privacy Act Issuances.'' 
Unless a system notice specifically excludes a system of records from a 
``Blanket Routine Use,'' all ``Blanket Routine Uses'' apply to that 
system.
    (vi) If the recipient has not been identified in the Federal 
Register or if the recipient, though identified, intends to employ the 
information for a purpose not published in the Federal Register, the 
written consent of the individual is required before the disclosure can 
be made.
    (4) Disclosures to the Bureau of the Census. Records may be 
disclosed to the Bureau of the Census for purposes of planning or 
carrying out a census, survey, or related activities authorized by 13 
U.S.C. 8.
    (5) Disclosures for statistical research or reporting. Records may 
be disclosed to a recipient for statistical research or reporting if:
    (i) Prior to the disclosure, the recipient has provided adequate 
written assurance that the records shall be used solely for statistical 
research or reporting; and
    (ii) The records are transferred in a form that does not identify 
individuals.
    (6) Disclosures to the National Archives and Records Administration. 
(i) Records may be disclosed to the National Archives and Records 
Administration for evaluation to determine whether the records have 
sufficient historical or other value to warrant preservation by the 
Federal government. If preservation is warranted, the records will be 
retained by the National Archives and Record Administration, which 
becomes the official owner of the records.
    (ii) Records may be disclosed to the National Archives and Records 
Administration to carry out records management inspections required by 
Federal law.
    (iii) Records transferred to a Federal Records Center operated by 
the National Archives and Records Administration for storage are not 
within this category. Those records continue to be maintained and 
controlled by the transferring naval activity. The Federal Records 
Center is considered the agent of Department of the Navy and the 
disclosure is made under Sec. 701.112(b)(1).
    (7) Disclosures when requested for law enforcement purposes. (i) A 
record may be disclosed to another agency or an instrumentality of any 
governmental jurisdiction within or under the control of the U.S. for a 
civil or criminal law enforcement activity if:
    (A) The civil or criminal law enforcement activity is authorized by 
law (federal, state or local); and
    (B) The head of the agency (or his or her designee) has made a 
written request to the naval activity specifying the particular record 
or portion desired and the law enforcement purpose for which it is 
sought.
    (ii) Blanket requests for any and all records pertaining to an 
individual shall not be honored. The requesting agency must specify each 
record or portion desired and how each relates to the authorized law 
enforcement activity.
    (iii) If a naval activity discloses a record outside the Department 
of Defense for law enforcement purposes without the individual's consent 
and without an adequate written request, the disclosure must be under an 
established routine use, such as the ``Blanket Routine Use'' for law 
enforcement.
    (iv) Disclosure to foreign law enforcement agencies is not governed 
by the provisions of 5 U.S.C. 552a and this paragraph, but may be made 
only under established ``Blanket Routine Uses,'' routine uses published 
in the individual record system notice, or to other governing authority.
    (8) Disclosure to protect the health or safety of an individual. 
Disclosure may be made under emergency conditions involving 
circumstances affecting the health and safety of an individual (i.e., 
when the time required to obtain the consent of the individual to whom 
the records pertain might result in a delay which could impair the 
health or safety

[[Page 108]]

of a person) provided notification of the disclosure is sent to the 
record subject. Sending the notification to the last known address is 
sufficient. In instances where information is requested by telephone, an 
attempt will be made to verify the inquirer's and medical facility's 
identities and the caller's telephone number. The requested information, 
if then considered appropriate and of an emergency nature, may be 
provided by return call.
    (9) Disclosures to Congress.
    (i) A record may be disclosed to either House of Congress at the 
request of either the Senate or House of Representatives as a whole.
    (ii) A record also may be disclosed to any committee, subcommittee, 
or joint committee of Congress if the disclosure pertains to a matter 
within the legislative or investigative jurisdiction of the committee, 
subcommittee, or joint committee.
    (iii) Disclosure may not be made to a Member of Congress requesting 
in his or her individual capacity. However, for Members of Congress 
making inquiries on behalf of individuals who are subjects of records, a 
``Blanket Routine Use'' has been established to permit disclosures to 
individual Members of Congress.
    (A) When responding to a congressional inquiry made on behalf of a 
constituent by whose identifier the record is retrieved, there is no 
need to verify that the individual has authorized the disclosure to the 
Member of Congress.
    (B) The oral or written statement of a Congressional staff member is 
sufficient to establish that a request has been received from the 
individual to whom the record pertains.
    (C) If the constituent inquiry is made on behalf of an individual 
other than the record subject, provide the Member of Congress only that 
information releasable under 5 U.S.C. 552. Advise the Member of Congress 
that the written consent of the record subject is required before 
additional information may be disclosed. Do not contact the record 
subject to obtain consent for the disclosure to the Member of Congress 
unless the Congressional office specifically requests it be done.
    (10) Disclosures to the Comptroller General for the General 
Accounting Office (GAO). Records may be disclosed to the Comptroller 
General of the U.S., or authorized representative, in the course of the 
performance of the duties of the GAO.
    (11) Disclosures under court orders. (i) Records may be disclosed 
under the order of a court of competent jurisdiction.
    (ii) When a record is disclosed under this provision and the 
compulsory legal process becomes a matter of public record, make 
reasonable efforts to notify the individual to whom the record pertains. 
Notification sent to the last known address of the individual is 
sufficient. If the order has not yet become a matter of public record, 
seek to be advised as to when it will become public. Neither the 
identity or the party to whom the disclosure was made nor the purpose of 
the disclosure shall be made available to the record subject unless the 
court order has become a matter of public record.
    (iii) The court order must bear the signature of a federal, state, 
or local judge. Orders signed by court clerks or attorneys are not 
deemed to be orders of a court of competent jurisdiction. A photocopy of 
the order, regular on its face, will be sufficient evidence of the 
court's exercise of its authority of the minimal requirements of 
SECNAVINST 5820.8A \9\, ``Release of Official Information for Litigation 
Purposes and Testimony by Department of the Navy Personnel.''
---------------------------------------------------------------------------


    \9\ Copies available from the Judge Advocate General, Navy 
Department, (Code 34), 200 Stovall Street, Alexandria, VA 22332-2400.
---------------------------------------------------------------------------

    (12) Disclosures to consumer reporting agencies. Certain information 
may be disclosed to consumer reporting agencies (i.e., credit reference 
companies such as TRW and Equifax, etc.) as defined by the Federal 
Claims Collection Act of 1966 (31 U.S.C. 952d). Under the provisions of 
that Act, the following information may be disclosed to a consumer 
reporting agency:
    (i) Name, address, taxpayer identification number (SSN), and other 
information necessary to establish the identity of the individual;
    (ii) The amount, status, and history of the claim; and

[[Page 109]]

    (iii) The agency or program under which the claim arose. 31 U.S.C. 
952d specifically requires that the Federal Register notice for the 
system of records from which the information will be disclosed indicate 
that the information may be disclosed to a consumer reporting agency.
    (c) Disclosures to commercial enterprises. Records may be disclosed 
to commercial enterprises only under the criteria established by 
Secretary of the Navy Instruction 5720.42E and 42 U.S.C. 653, Parent 
Locator Service for Enforcement of Child Support.
    (1) Any information required to be disclosed by Secretary of the 
Navy Instruction 5720.42E and 42 U.S.C. 653, Parent Locator Service for 
Enforcement of Child Support may be disclosed to a requesting commercial 
enterprise.
    (2) Commercial enterprises may present a consent statement signed by 
the individual indicating specific conditions for disclosing information 
from a record. Statements such as the following, if signed by the 
individual, are considered sufficient to authorize the disclosure: I 
hereby authorize the Department of the Navy to verify my SSN or other 
identifying information and to disclose my home address and telephone 
number to authorized representatives of (name of commercial enterprise) 
to be used in connection with my commercial dealings with that 
enterprise. All information furnished will be used in connection with my 
financial relationship with (name of commercial enterprise).
    (3) When a consent statement as described in the preceding 
subsection is presented, provide the information to the commercial 
enterprise, unless the disclosure is prohibited by another regulation or 
Federal law.
    (4) Blanket consent statements that do not identify the Department 
of Defense or Department of the Navy, or that do not specify exactly the 
information to be disclosed, may be honored if it is clear that the 
individual, in signing the consent statement, was seeking a personal 
benefit (i.e., loan for a house or automobile) and was aware of the type 
of information necessary to obtain the benefit sought.
    (5) Do not honor requests from commercial enterprises for official 
evaluations of personal characteristics such as personal financial 
habits.
    (d) Disclosure of Health Care Records to the Public. This paragraph 
applies to disclosure of information to the news media and the public 
concerning individuals treated or hospitalized in Department of the Navy 
medical facilities and, when the cost of care is paid by the Department 
of the Navy, in non-Federal facilities.
    (1) Disclosures without the individual's consent. Normally, the 
following information may be disclosed without the individual's consent:
    (i) Information required to be released by Secretary of the Navy 
Instruction 5720.42E and OPM Regulations and the Federal Personnel 
Manual, as well as the information listed in Sec. 701.112(b)(2)(v) for 
military personnel and in Sec. 701.112(b)(2).
    (ii) For civilian employees; and
    (iii) General information concerning medical conditions, i.e., date 
of admission or disposition; present medical assessment of the 
individual's condition if the medical practitioner has volunteered the 
information, i.e., the individual's condition presently is (stable) 
(good) (fair) (serious) (critical), and the patient is (conscious) 
(semi-conscious) (unconscious).
    (2) Disclosures with the individual's consent. With the individual's 
informed consent, any information about the individual may be disclosed. 
If the individual is a minor or has been declared incompetent by a court 
of competent jurisdiction, the parent of the minor or appointed legal 
guardian of the incompetent may give consent on behalf of the 
individual.
    (e) Disclosure of Personal Information on Group/Bulk Orders. Do not 
use personal information including complete SSNs, home addresses and 
phone numbers, dates of birth, etc., on group/bulk orders. This personal 
information should not be posted on lists that everyone listed on the 
orders sees. Such a disclosure of personal information violates the 
Privacy Act and this subpart and subpart G of this part.
    (f) Disclosure Accounting. Keep an accurate record of all 
disclosures made from a record (including those made

[[Page 110]]

with the consent of the individual) except those made to DoD personnel 
for use in performing their official duties; and those made under the 
FOIA. Disclosure accounting is to permit the individual to determine 
what agencies or persons have been provided information from the record, 
enable Department of the Navy activities to advise prior recipients of 
the record of any subsequent amendments or statements of dispute 
concerning the record, and provide an audit trial of Department of the 
Navy's compliance with 5 U.S.C. 552a.
    (1) Disclosure accountings shall contain the date of the disclosure; 
a description of the information disclosed; the purpose of the 
disclosure; and the name and address of the person or agency to whom the 
disclosure was made.
    (2) The record subject has the right of access to the disclosure 
accounting except when the disclosure was made at the request of a civil 
or criminal law enforcement agency under Sec. 701.112(b)(7); or when the 
system of records has been exempted from the requirement to provide 
access to the disclosure accounting.
    (g) Methods of disclosure accounting. Since the characteristics of 
various records maintained within the Department of the Navy vary 
widely, no uniform method for keeping disclosure accountings is 
prescribed. The primary criteria are that the selected method be one 
which will:
    (1) Enable an individual to ascertain what persons or agencies have 
received disclosures pertaining to him/her;
    (2) Provide a basis for informing recipients of subsequent 
amendments or statements of dispute concerning the record; and
    (3) Provide a means to prove, if necessary that the activity has 
complied with the requirements of 5 U.S.C. 552a and this subpart and 
subpart G of this part.
    (h) Retention of Disclosure Accounting. Maintain a disclosure 
accounting of the life of the record to which the disclosure pertains, 
or 5 years after the date of the disclosure, whichever is longer. 
Disclosure accounting records are normally maintained with the record, 
as this will ensure compliance with Sec. 701.112(f).



Sec. 701.113  Exemptions.

    (a) Using exemptions. No system of records is automatically exempt 
from all provisions of 5 U.S.C. 552a. A system of records is exempt from 
only those provisions of 5 U.S.C. 552a that are identified specifically 
in the exemption rule for the system. Subpart G of this part contains 
the systems designated as exempt, the types of exemptions claimed, the 
authority and reasons for invoking the exemptions and the provisions of 
5 U.S.C. 552a from which each system has been exempt. Exemptions are 
discretionary on the part of Department of the Navy and are not 
effective until published as a final rule in the Federal Register. The 
naval activity maintaining the system of records shall make a 
determination that the system is one for which an exemption may be 
established and then propose an exemption rule for the system. Submit 
the proposal to CNO (N09B30) for approval and publication in the Federal 
Register.
    (b) Types of exemptions. There are two types of exemptions permitted 
by 5 U.S.C. 552a.
    (1) General exemptions. Those that authorize the exemption of a 
system of records from all but specifically identified provisions of 5 
U.S.C. 552a.
    (2) Specific exemptions. Those that allow a system of records to be 
exempt from only a few designated provisions of 5 U.S.C. 552a.
    (c) Establishing exemptions. (1) 5 U.S.C. 552a authorizes the 
Secretary of the Navy to adopt rules designating eligible systems of 
records as exempt from certain requirements. The Secretary of the Navy 
has delegated the CNO (N09B30) to make a determination that the system 
is one for which an exemption may be established and then propose and 
establish an exemption rule for the system. No system of records within 
Department of the Navy shall be considered exempt until the CNO (N09B30) 
has approved the exemption and an exemption rule has been published as a 
final rule in the Federal Register. A system of records is exempt from 
only those provisions of 5

[[Page 111]]

U.S.C. 552a that are identified specifically in the Department of the 
Navy exemption rule for the system.
    (2) No exemption may be established for a system of records until 
the system itself has been established by publishing a notice in the 
Federal Register, at least 30 days prior to the effective date, 
describing the system. This allows interested persons an opportunity to 
comment. An exemption may not be used to deny an individual access to 
information that he or she can obtain under Secretary of the Navy 
Instruction 5720.42E, ``Department of the Navy Freedom of Information 
Act Program.''
    (d) Exemption for classified material. All systems of records 
maintained by the Department of the Navy shall be exempt under section 
(k)(1) of 5 U.S.C. 552a, to the extent that the systems contains any 
information properly classified under E.O. 12958 and that is required by 
that E.O. to be kept secret in the interest of national defense or 
foreign policy. This exemption is applicable to parts of all systems of 
records including those not otherwise specifically designated for 
exemptions herein which contain isolated items of properly classified 
information.

    Note: Department of the Navy Privacy Act systems of records which 
contain classified information automatically qualify for a (k)(1) 
exemption, without establishing an exemption rule.

    (e) Exempt records in nonexempt systems. (1) An exemption rule 
applies to the system of records for which it was established. If a 
record from an exempt system is incorporated intentionally into a system 
that has not been exempt, the published notice and rules for the 
nonexempt system will apply to the record and it will not be exempt from 
any provisions of 5 U.S.C. 552a.
    (2) A record from one component's (i.e., Department of the Navy) 
exempted system that is temporarily in the possession of another 
component (i.e., Army) remains subject to the published system notice 
and rules of the originating component's (i.e., Department of the Navy). 
However, if the non-originating component incorporates the record into 
its own system of records, the published notice and rules for the system 
into which it is incorporated shall apply. If that system of records has 
not been exempted, the record shall not be exempt from any provisions of 
5 U.S.C. 552a.
    (3) A record accidentally misfiled into a system of records is 
governed by the published notice and rules for the system of records in 
which it actually should have been filed.
    (f) General exemptions--(1) Central Intelligence Agency (CIA). The 
Department of the Navy is not authorized to establish an exemption for 
records maintained by the CIA under subsection (j)(1) of 5 U.S.C. 552a.
    (2) Law enforcement. (i) The general exemption provided by 
subsection (j)(2) of 5 U.S.C. 552a may be established to protect 
criminal law enforcement records maintained by Department of the Navy.
    (ii) To be eligible for the (j)(2) exemption, the system of records 
must be maintained by an element that performs, as one of its principal 
functions, the enforcement of criminal laws. The Naval Investigative 
Service, Naval Inspector General, and military police activities qualify 
for this exemption.
    (iii) Criminal law enforcement includes police efforts to detect, 
prevent, control, or reduce crime, or to apprehend criminals, and the 
activities of prosecution, court, correctional, probation, pardon, or 
parole authorities.
    (iv) Information that may be protected under the (j)(2) exemption 
includes:
    (A) Information compiled for the purpose of identifying criminal 
offenders and alleged criminal offenders consisting of only identifying 
data and notations of arrests; the nature and disposition of criminal 
charges; and sentencing, confinement, release, parole, and probation 
status;
    (B) Information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; and
    (C) Reports identifiable to an individual, compiled at any stage of 
the enforcement process, from arrest, apprehension, indictment, or 
preferral of charges through final release from the supervision that 
resulted from the commission of a crime.

[[Page 112]]

    (v) The (j)(2) exemption does not apply to:
    (A) Investigative records maintained by a naval activity having no 
criminal law enforcement duties as one of its principle functions, or
    (B) Investigative records compiled by any element concerning 
individual's suitability, eligibility, or qualification for duty, 
employment, or access to classified information, regardless of the 
principle functions of the naval activity that compiled them.
    (vi) The (j)(2) exemption established for a system of records 
maintained by a criminal law enforcement activity cannot protect law 
enforcement records incorporated into a nonexempt system of records or 
any system of records maintained by an activity not principally tasked 
with enforcing criminal laws. All system managers, therefore, are 
cautioned to comply strictly with Department of the Navy regulations or 
instructions prohibiting or limiting the incorporation of criminal law 
enforcement records into systems other than those maintained by criminal 
law enforcement activities.
    (g) Specific exemptions. Specific exemptions permit certain 
categories of records to be exempted from specific provisions of 5 
U.S.C. 552a. Subsections (k)(1)-(7) of 5 U.S.C. 552a allow exemptions 
for seven categories of records. To be eligible for a specific 
exemption, the record must meet the corresponding criteria.

    Note: Department of the Navy Privacy Act systems of records which 
contain classified information automatically qualify for a (k)(1) 
exemption, without an established exemption rule.

    (1) (k)(1) exemption: Information properly classified under 
Secretary of the Navy Instruction 5720.42E, ``Department of the Navy 
Freedom of Information Act Program'' and E.O. 12958, in the interest of 
national defense or foreign policy.
    (2) (k)(2) exemption: Investigatory information (other than that 
information within the scope of Sec. 701.113(f)(2) compiled for law 
enforcement purposes. If maintaining the information causes an 
individual to be ineligible for or denied any right, benefit, or 
privilege that he or she would otherwise be eligible for or entitled to 
under Federal law, then he or she shall be given access to the 
information, except for the information that would identify a 
confidential source (see Sec.  701.113(h), ``confidential source''). The 
(k)(2) exemption, when established, allows limited protection on 
investigative records maintained for use in personnel and administrative 
actions.
    (3) (k)(3) exemption: Records maintained in connection with 
providing protective services to the President of the United States and 
other individuals under 18 U.S.C. 3056.
    (4) (k)(4) exemption: Records required by Federal law to be 
maintained and used solely as statistical records that are not used to 
make any determination about an identifiable individual, except as 
provided by 13 U.S.C. 8.
    (5) (k)(5) exemption: Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, military service, Federal contracts, or 
access to classified information, but only to the extent such material 
would reveal the identity of a confidential source. (See 
Sec. 701.113(h), ``confidential source''). This exemption allows 
protection of confidential sources in background investigations, 
employment inquiries, and similar inquiries used in personnel screening 
to determine suitability, eligibility, or qualifications.
    (6) (k)(6) exemption: Testing or examination material used solely to 
determine individual qualifications for appointment or promotion in the 
Federal or military service if the disclosure would compromise the 
objectivity or fairness of the testing or examination process.
    (7) (k)(7) exemption: Evaluation material used to determine 
potential for promotion in the military services, but only to the extent 
that disclosure would reveal the identity of a confidential source. (See 
Sec. 701.113(h), ``confidential source''.)
    (h) Confidential Source. Promises of confidentiality are to be given 
on a limited basis and only when essential to obtain the information 
sought. Establish appropriate procedures for granting confidentiality 
and designate

[[Page 113]]

those categories of individuals authorized to make such promises.
[59 FR 55348, Nov. 7, 1994, as amended at 61 FR 2917, Jan. 30, 1996]



Sec. 701.114  Enforcement actions.

    (a) Administrative remedies. An individual who alleges he or she has 
been affected adversely by a naval activity's violation of 5 U.S.C. 552a 
or this subpart and subpart G of this part shall be permitted to seek 
relief from SECNAV through proper administrative channels.
    (b) Civil court actions. After exhausting all administrative 
remedies, an individual may file suit in Federal court against a naval 
activity for any of the following acts:
    (1) Denial of an amendment request. The activity head, or his or her 
designee wrongfully refuses the individual's request for review of the 
initial denial of an amendment or, after review, wrongfully refuses to 
amend the record;
    (2) Denial of access. The activity wrongfully refuses to allow the 
individual to review the record or wrongfully denies his or her request 
for a copy of the record;
    (3) Failure to meet recordkeeping standards. The activity fails to 
maintain an individual's record with the accuracy, relevance, 
timeliness, and completeness necessary to assure fairness in any 
determination about the individual's rights, benefits, or privileges 
and, in fact, makes an adverse determination based on the record; or
    (4) Failure to comply with Privacy Act. The activity fails to comply 
with any other provision of 5 U.S.C. 552a or any rule or regulation 
promulgated under 5 U.S.C. 552a and thereby causes the individual to be 
adversely affected.
    (c) Criminal penalties. Subsection (i)(1) of 5 U.S.C. 552a 
authorizes three criminal penalties against individuals for violations 
of its provisions. All three are misdemeanors punishable by fines of 
$5,000.
    (1) Wrongful disclosure. Any member or employee of Department of the 
Navy who, by virtue of his or her employment or position, has possession 
of or access to records and willfully makes a disclosure knowing that 
disclosure is in violation of 5 U.S.C. 552a or this subpart and subpart 
G of this part.
    (2) Maintaining unauthorized records. Any member or employee of 
Department of the Navy who willfully maintains a system of records for 
which a notice has not been published under periodic Chief of Naval 
Operations Notes (OPNAVNOTEs) 5211, ``Current Privacy Act Issuances.''
    (3) Wrongful requesting or obtaining records. Any person who 
knowingly and willfully requests or obtains information concerning an 
individual under false pretenses.



Sec. 701.115  Computer matching program.

    (a) General. 5 U.S.C. 552a and this subpart and subpart G of this 
part are applicable to certain types of computer matching, i.e., the 
computer comparison of automated systems of records. There are two 
specific kinds of matching programs that are fully governed by 5 U.S.C. 
552a and this subpart and subpart G of this part:
    (1) Matches using records from Federal personnel or payroll systems 
of records;
    (2) Matches involving Federal benefit programs to accomplish one or 
more of the following purposes:
    (i) To determine eligibility for a Federal benefit.
    (ii) To comply with benefit program requirements.
    (iii) To effect recovery of improper payments or delinquent debts 
from current or former beneficiaries.
    (b) The record comparison must be a computerized one. Manual 
comparisons are not covered, involving records from two or more 
automated systems of records (i.e., systems of records maintained by 
Federal agencies that are subject to 5 U.S.C. 552a); or a Department of 
the Navy automated systems of records and automated records maintained 
by a non-Federal agency (i.e., State or local government or agent 
thereof). A covered computer matching program entails not only the 
actual computerized comparison, but also preparing and executing a 
written agreement between the participants, securing approval of the 
Defense Data Integrity Board, publishing a matching notice in the 
Federal Register before

[[Page 114]]

the match begins, ensuring that investigation and due process are 
completed, and taking ultimate action, if any.



                    Subpart G--Privacy Act Exemptions

    Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).

    Source: 59 FR 55363, Nov. 7, 1994, unless otherwise noted.



Sec. 701.116  Purpose.

    Subparts F and G of this part contain rules promulgated by the 
Secretary of the Navy, pursuant to 5 U.S.C. 552a (j) and (k), and 
subpart F, Sec. 70l.113, to exempt certain systems of Department of the 
Navy records from specified provisions of 5 U.S.C. 552a.



Sec. 70l.117  Exemption for classified records.

    All systems of records maintained by the Department of the Navy 
shall be exempt from the requirements of the access provision of the 
Privacy Act (5 U.S.C. 552a(d)) under the (k)(1) exemption, to the extent 
that the system contains information properly classified under E.O. 
12958 and that is required by that E.O. to be kept secret in the 
interest of national defense or foreign policy. This exemption is 
applicable to parts of all systems of records including those not 
otherwise specifically designated for exemptions herein which contain 
isolated items of properly classified information.
[59 FR 55363, Nov. 7, 1994, as amended at 61 FR 2917, Jan. 30, 1996]



Sec. 701.118  Exemptions for specific Navy record systems.

    (a) System Identifier and Name: N01070-9, White House Support 
Program.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4) 
(G) through (I), and (f).
    Authority: 5 U.S.C. 552a(k) (1), (2), (3), and (5).
    Reasons: Exempted portions of this system contain information which 
has been properly classified under E.O. 12958, and which is required to 
be kept secret in the interest of national defense or foreign policy. 
Exempted portions of this system may also contain information considered 
relevant and necessary to make a determination as to qualifications, 
eligibility, or suitability for access to classified information, and 
which was obtained by providing an express or implied promise to the 
source that his or her identity would not be revealed to the subject of 
the record. Exempted portions of this system may also contain 
information collected and maintained in connection with providing 
protective services to the President and other individuals protected 
pursuant to 18 U.S.C. 3056. Exempted portions of this system may also 
contain investigative records compiled for law enforcement purposes, the 
disclosure of which could reveal the identity of sources who provide 
information under an express or implied promise of confidentiality, 
compromise investigative techniques and procedures, jeopardize the life 
or physical safety of law-enforcement personnel, or otherwise interfere 
with enforcement proceedings or adjudications.

    (b) System Identifier and Name: N01131-1, Officer Selection and 
Appointment System.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) 
through (I), and (f).
    Authority: 5 U.S.C. 552a(k)(1), (5), (6), and (7).
    Reasons: Granting individuals access to portions of this system of 
records could result in the disclosure of classified material, or the 
identification of sources who provided information to the government 
under an express or implied promise of confidentiality. Material will be 
screened to permit access to unclassified material and to information 
that does not disclose the identity of a confidential source.
    (c) System Identifier and Name: N01133-2, Recruiting Enlisted 
Selection System.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) 
through (I), and (f).
    Authority: 5 U.S.C. 552a(k)(1), (5), (6), and (7).
    Reasons: Granting individuals access to portions of this system of 
records could result in the disclosure of classified material, or the 
identification of

[[Page 115]]

sources who provided information to the government under an express or 
implied promise of confidentiality. Material will be screened to permit 
access to unclassified material and to information that does not 
disclose the identity of a confidential source.

    (d) System Identifier and Name: N01640-1, Individual Correctional 
Records.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2), 
(e)(3), (e)(4)(G) through (I), (e)(5), (e)(8), (f), and (g).
    Authority: 5 U.S.C. 552a(j)(2).
    Reason: Granting individuals access to portions of these records 
pertaining to or consisting of, but not limited to, disciplinary 
reports, criminal investigations, and related statements of witnesses, 
and such other related matter in conjunction with the enforcement of 
criminal laws, could interfere with the orderly investigations, with the 
orderly administration of justice, and possibly enable suspects to avoid 
detection or apprehension. Disclosure of this information could result 
in the concealment, destruction, or fabrication of evidence, and 
jeopardize the safety and well-being of informants, witnesses and their 
families, and law enforcement personnel and their families. Disclosure 
of this information could also reveal and render ineffectual 
investigative techniques, sources, and methods used by these components 
and could result in the invasion of the privacy of individuals only 
incidentally related to an investigation. The exemption of the 
individual's right of access to portions of these records, and the 
reasons therefor, necessitate the exemption of this system of records 
from the requirement of the other cited provisions.

    (e) System Identifier and Name: N01754-3, Navy Child Development 
Services Program.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3) and (d).
    Authority: 5 U.S.C. 552a(k)(2).
    Reasons: Exemption is needed in order to encourage persons having 
knowledge of abusive or neglectful acts toward children to report such 
information, and to protect such sources from embarrassment or 
recrimination, as well as to protect their right to privacy. It is 
essential that the identities of all individuals who furnish information 
under an express promise of confidentiality be protected. Additionally, 
granting individuals access to information relating to criminal and 
civil law enforcement, as well as the release of certain disclosure 
accountings, could interfere with ongoing investigations and the orderly 
administration of justice, in that it could result in the concealment, 
alteration, destruction, or fabrication of information; could hamper the 
identification of offenders and the disposition of charges; and could 
jeopardize the safety and well being of parents and their children.

    (f) System Identifier and Name: N03834-1, Special Intelligence 
Personnel Access File.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4) 
(G) through (I), and (f).
    Authority: 5 U.S.C. 552a(k) (1) and (5).
    Reasons: Exempted portions of this system contain information that 
has been properly classified under E.O. 12356, and that is required to 
be kept secret in the interest of national defense or foreign policy. 
Exempted portions of this system also contain information considered 
relevant and necessary to make a determination as to qualifications, 
eligibility, or suitability for access to classified information and was 
obtained by providing an express or implied assurance to the source that 
his or her identity would not be revealed to the subject of the record.

    (g) System Identifier and Name: N04060-1, Navy and Marine Corps 
Exchange Security Files.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(4) (G) 
through (I), and (f).
    Authority: 5 U.S.C. 552a(k)(2).
    Reasons: Granting individuals access to information collected and 
maintained by these activities relating to the enforcement of criminal 
laws could interfere with orderly investigations, with orderly 
administration of justice, and possibly enable suspects to avoid 
detection or apprehension. Disclosure

[[Page 116]]

of this information could result in the concealment, destruction, or 
fabrication of evidence, and could also reveal and render ineffectual 
investigative techniques, sources, and methods used by these activities.
    (h) [Reserved]
    (i) System identifier and name: N05041-1, Inspector General (IG) 
Records.
    (1) Exemption: Portions of this system of records may be exempt from 
the provisions of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and 
(I); and (f).
    (2) Authority: 5 U.S.C. 552a(k)(1) and (k)(2).
    (3) Reasons: (i) From subsection (c)(3) because the release of the 
disclosure accounting would permit individuals to obtain valuable 
information concerning the nature of the investigation and would present 
a serious impediment to the orderly conduct of any investigative 
activities. Such accounting could result in the release of properly 
classified information which would compromise the national defense or 
disrupt foreign policy.
    (ii) From subsections (d) and (f) because access to the records 
would inform individuals of the existence and nature of the 
investigation; provide information that might result in the concealment, 
destruction, or fabrication of evidence; possibly jeopardize the safety 
and well-being of informants, witnesses and their families; likely 
reveal and render ineffectual investigatory techniques and methods and 
sources of information; and possibly result in the invasion of the 
personal privacy of third parties. Access could result in the release of 
properly classified information which could compromise the national 
defense or disrupt foreign policy. Amendment of the records would 
interfere with the ongoing investigation and impose an impossible 
administrative burden by requiring investigations to be continually 
reinvestigated.
    (iii) From subsection (e)(1) because in the course of the 
investigation it is not always possible, at least in the early stages of 
the inquiry, to determine relevance and or necessity as such 
determinations may only occur after the information has bee evaluated. 
Information may be obtained concerning the actual or potential violation 
of laws or regulations other than those relating to the ongoing 
investigation. Such information should be retained as it can aid in 
establishing patterns of improper activity and can provide valuable 
leads in the conduct of other investigations.
    (iv) From subsection (e)(4)(G) and (H) because this system of 
records is exempt from individual access pursuant to subsection (k)(1) 
and (k)(2) of the Privacy Act of 1974.
    (v) From subsection (e)(4)(I) because it is neccessary to protect 
the confidentiality of sources and to protect the privacy and physical 
safety of witnesses. Although the system is exempt from this 
requirement, the Department of the Navy has published a notice in broad, 
generic terms in the belief that this is all that subsection (e)(4)(I) 
of the Act requires.
    (j) System Identifier and Name: N05300-3, Faculty Professional 
Files.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(4) (G) and 
(H), and (f).
    Authority: 5 U.S.C. 552a(k)(5).
    Reasons: Exempted portions of this system contain information 
considered relevant and necessary to make a release determination as to 
qualifications, eligibility, or suitability for Federal employment, and 
was obtained by providing an express or implied promise to the source 
that his or her identity would not be revealed to the subject of the 
record.

    (k) System Identifier and Name: N05354-1, Equal Opportunity 
Information Management System.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(4)(G) through 
(I), and (f).
    Authority: 5 U.S.C. 552a(k)(1) and (5).
    Reasons: Granting access to information in this system of records 
could result in the disclosure of classified material, or reveal the 
identity of a source who furnished information to the Government under 
an express or implied promise of confidentiality. Material will be 
screened to permit access to unclassified material and to information 
that will not disclose the identity of a confidential source.


[[Page 117]]


    (l) System Identifier and Name: N05520-1, Personnel Security 
Eligibility Information System.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(4)(G) and 
(I), and (f).
    Authority: 5 U.S.C. 552a(k) (1), (2), (5), and (7).
    Reasons: Granting individuals access to information collected and 
maintained in this system of records could interfere with orderly 
investigations; result in the disclosure of classified material; 
jeopardize the safety of informants, witnesses, and their families; 
disclose investigative techniques; and result in the invasion of privacy 
of individuals only incidentally related to an investigation. Material 
will be screened to permit access to unclassified information that will 
not disclose the identity of sources who provide the information to the 
government under an express or implied promise of confidentiality.

    (m) System identifier and name: N05520-4, NCIS Investigative Files 
System.
    Exemption (1): Portions of this system of records are exempt from 
the following subsections of the Privacy Act: (c)(3), (c)(4), (d), 
(e)(2), (e)(3), (e)(4)(G) through (I), (e)(5), (e)(8), (f), and (g).
    Authority (1): 5 U.S.C. 552a(j)(2).
    Reason (1): Granting individuals access to information collected and 
maintained by this activity relating to the enforcement of criminal laws 
could interfere with the orderly investigations, with the orderly 
administration of justice, and possibly enable suspects to avoid 
detection or apprehension. Disclosure of this information could result 
in the concealment, destruction, or fabrication of evidence, and 
jeopardize the safety and well-being of informants, witnesses and their 
families, and law enforcement personnel and their families. Disclosure 
of this information could also reveal and render ineffectual 
investigative techniques, sources, and methods used by these components 
and could result in the invasion of the privacy of individuals only 
incidentally related to an investigation. The exemption of the 
individual's right of access to portions of these records, and the 
reasons therefor, necessitate the exemption of this system of records 
from the requirement of the other cited provisions.
    Exemption (2): Portions of this system of records are exempt from 
the following subsections of the Privacy Act: (c)(3), (d), (e)(1), 
(e)(4)(G) through (I), and (f).
    Authority (2): 5 U.S.C. 552a(k) (1), (3), (4), (5) and (6).
    Reason (2): The release of disclosure accountings would permit the 
subject of an investigation to obtain valuable information concerning 
the nature of that investigation, and the information contained, or the 
identity of witnesses or informants, would therefor present a serious 
impediment to law enforcement. In addition, disclosure of the accounting 
would amount to notice to the individual of the existence of a record. 
Access to the records contained in this system would inform the subject 
of the existence of material compiled for law enforcement purposes, the 
premature release of which could prevent the successful completion of 
investigation, and lead to the improper influencing of witnesses, the 
destruction of records, or the fabrication of testimony. Exempt portions 
of this system also contain information that has been properly 
classified under E.O. 12958, and that is required to be kept secret in 
the interest of national defense or foreign policy.
    Exempt portions of this system also contain information considered 
relevant and necessary to make a determination as to qualifications, 
eligibility, or suitability for Federal civilian employment, military 
service, Federal contracts, or access to classified information, and was 
obtained by providing an express or implied assurance to the source that 
his or her identity would not be revealed to the subject of the record. 
The notice of this system of records published in the Federal Register 
sets forth the basic statutory or related authority for maintenance of 
the system.
    The categories of sources of records in this system have been 
published in the Federal Register in broad generic terms. The identity 
of specific sources, however, must be withheld in order to protect the 
confidentiality of the

[[Page 118]]

source, of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    This system of records is exempted from procedures for notice to an 
individual as to the existence of records pertaining to him/her dealing 
with an actual or potential civil or regulatory investigation, because 
such notice to an individual would be detrimental to the successful 
conduct and/or completion of an investigation, pending or future. Mere 
notice of the fact of an investigation could inform the subject or 
others that their activities are under, or may become the subject of, an 
investigation. This could enable the subjects to avoid detection, to 
influence witnesses improperly, to destroy records, or to fabricate 
testimony.
    Exempt portions of this system containing screening board reports. 
Screening board reports set forth the results of oral examination of 
applicants for a position as a special agent with the Naval 
Investigation Service Command. Disclosure of these records would reveal 
the areas pursued in the course of the examination and thus adversely 
affect the result of the selection process. Equally important, the 
records contain the candid views of the members composing the board. 
Release of the records could affect the willingness of the members to 
provide candid opinions and thus diminish the effectiveness of a program 
which is essential to maintaining the high standard of the Special Agent 
Corps., i.e., those records constituting examination material used 
solely to determine individual qualifications for appointment in the 
Federal service.

    (n) System identifier and name: N05520-5, Personnel Security Program 
Management Records System.
    Exemption: Portions of this system of records are exempt from the 
following subsections of 5 U.S.C. 552a: (d)(1-5).
    Authority: 5 U.S.C. 552a(k)(1) and (k)(5).
    Reasons: Granting individuals access to information collected and 
maintained in this system of records could result in the disclosure of 
classified material; and jeopardize the safety of informants, and their 
families. Further, the integrity of the system must be ensured so that 
complete and accurate records of all adjudications are maintained. 
Amendment could cause alteration of the record of adjudication.

    (o) System Identifier and Name: N05527-1, Security Incident System.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2), 
and (e)(4)(G) through (I), (e)(5), (e)(8), (f) and (g).
    Authority: 5 U.S.C. 552a(j)(2).
    Reasons: Granting individuals access to information collected and 
maintained by this component relating to the enforcement of criminal 
laws could interfere with orderly administration of justice, and 
possibly enable suspects to avoid detection or apprehension. Disclosure 
of this information could result in concealment, destruction, or 
fabrication of evidence, and jeopardize the safety and well being of 
informants, witnesses and their families, and of law enforcement 
personnel and their families. Disclosure of this information could also 
reveal and render ineffectual investigative techniques, sources, and 
methods used by this component, and could result in the invasion of 
privacy of individuals only incidentally related to an investigation.The 
exemption of the individual's right of access to his or her records, and 
the reason therefore, necessitate the exemption of this system of 
records from the requirements of other cited provisions.

    (p) System Identifier and Name: N05527-4, Naval Security Group 
Personnel Security/Access Files.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) 
through (I), and (f).Authority: 5 U.S.C. 552a(k)(1) through (k)(5).
    Reasons: Exempt portions of this system contain information that has 
been properly classified under E.O. 12958, and that is required to be 
kept secret in the interest of national defense or foreign policy. 
Exempt portions of this system also contain information considered 
relevant and necessary to make a determination as to qualification, 
eligibility or suitability for access to

[[Page 119]]

classified special intelligence information, and that was obtained by 
providing an express or implied promise to the source that his or her 
identity would not be revealed to the subject of the record.

    (q) System Identifier and Name: N05800-1, Legal Office Litigation/
Correspondence Files.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (d), (e)(1), and (f)(2), (3), 
and (4).
    Authority: 5 U.S.C. 552a(k)(1), (k)(2), (k)(5), (k)(6), and (k)(7).
    Reasons: Subsection (d) because granting individuals access to 
information relating to the preparation and conduct of litigation would 
impair the development and implementation of legal strategy. 
Accordingly, such records are exempt under the attorney-client 
privilege. Disclosure might also compromise on-going investigations and 
reveal confidential informants. Additionally, granting access to the 
record subject would seriously impair the Navy's ability to negotiate 
settlements or pursue other civil remedies. Amendment is inappropriate 
because the litigation files contain official records including 
transcripts, court orders, investigatory materials, evidentiary 
materials such as exhibits, decisional memorandum and other case-related 
papers. Administrative due process could not be achieved by the 
``exparte'' correction of such materials.
    Subsection (e)(1) because it is not possible in all instances to 
determine relevancy or necessity of specific information in the early 
stages of case development. What appeared relevant and necessary when 
collected, ultimately may be deemed unnecessary upon assessment in the 
context of devising legal strategy. Information collected during civil 
litigation investigations which is not used during subject case is often 
retained to provide leads in other cases or to establish patterns of 
activity.
    Subsection (f)(2), (3), and (4) because this record system is exempt 
from the individual access provisions of subsection (d).

    (r) System Identifier and Name: N01000-5, Naval Clemency and Parole 
Board Files.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(4), (d), (e)(4)(G), and 
(f).
    Authority: 5 U.S.C. 552a(j)(2).
    Reasons: Granting individuals access to records maintained by this 
Board could interfere with internal processes by which Board personnel 
are able to formulate decisions and policies with regard to clemency and 
parole in cases involving naval prisoners and other persons under the 
jurisdiction of the Board. Material will be screened to permit access to 
all material except such records or documents as reflect items of 
opinion, conclusion, or recommendation expressed by individual board 
members or by the board as a whole.
    The exemption of the individual's right to access to portions of 
these records, and the reasons therefore, necessitate the partial 
exemption of this system of records from the requirements of the other 
cited provisions.

    (s) System Identifier and Name: N06320-2, Family Advocacy Program 
System.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3) and (d).
    Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
    Reasons: Exemption is needed in order to encourage persons having 
knowledge of abusive or neglectful acts toward children to report such 
information, and to protect such sources from embarrassment or 
recriminations, as well as to protect their right to privacy. It is 
essential that the identities of all individuals who furnish information 
under an express promise of confidentiality be protected. Additionally, 
granting individuals access to information relating to criminal and 
civil law enforcement, as well as the release of certain disclosure 
accounting, could interfere with ongoing investigations and the orderly 
administration of justice, in that it could result in the concealment, 
alteration, destruction, or fabrication of information; could hamper the 
identification of offenders or alleged offenders and the disposition of 
charges; and could

[[Page 120]]

jeopardize the safety and well being of parents and their children.
    Exempted portions of this system also contain information considered 
relevant and necessary to make a determination as to qualifications, 
eligibility, or suitability for Federal employment and Federal 
contracts, and that was obtained by providing an express or implied 
promise to the source that his or her identity would not be revealed to 
the subject of the record.

    (t) System Identifier and Name: N12930-1, Human Resources Group 
Personnel Records.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (d), (e)(4)(G) and (H), and 
(f).
    Authority: 5 U.S.C. 552a(k)(5) and (k)(6).
    Reasons: Exempted portions of this system contain information 
considered relevant and necessary to make a determination as to 
qualifications, eligibility, or suitability for Federal employment, and 
was obtained by providing express or implied promise to the source that 
his or her identity would not be revealed to the subject of the record. 
Exempted portions of this system also contain test or examination 
material used solely to determine individual qualifications for 
appointment or promotion in the Federal service, the disclosure of which 
would comprise the objectivity or fairness of the testing or examination 
process.
[59 FR 55363, Nov. 7, 1994, as amended at 61 FR 2917, Jan. 30, 1996; 62 
FR 15615, Apr. 2, 1997; 62 FR 61914, Nov. 20, 1997; 63 FR 25773, May 11, 
1998]



Sec. 701.119  Exemptions for Specific Marine Corps Record Systems.

    (a) System Identifier and Name: MMN00018, Base Security Incident 
Reporting System.
    Exemption: Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e) (2) 
and (3), (e)(4)(G) through (I), (e)(5), (e)(8), (f), and (g).
    Authority: 5 U.S.C. 552a(j)(2).
    Reasons: Granting individuals access to information collected and 
maintained by these activities relating to the enforcement of criminal 
laws could interfere with orderly investigations, with the orderly 
administration of justice, and might enable suspects to avoid detection 
or apprehension. Disclosure of this information could result in the 
concealment, destruction, or fabrication of evidence, and jeopardize the 
safety and well being of informants, witnesses and their families, and 
law enforcement personnel and their families. Disclosure of this 
information could also reveal and render ineffectual investigative 
techniques, sources, and methods used by this component, and could 
result in the invasion of the privacy of individuals only incidentally 
related to an investigation. The exemption of the individual's right of 
access to his or her records, and the reasons therefore, necessitate the 
exemption of this system of records from the requirements of other cited 
provisions.

    (b) System Identifier and Name: MIN00001, Personnel and Security 
Eligibility and Access Information System.
    Exemption: Portions of this system of records are exempt for the 
following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) 
through (I), and (f).
    Authority: 5 U.S.C. 552a(k)(2), (k)(3), and (k)(5), as applicable.
    Reasons: Exempt portions of this system contain information that has 
been properly classified under E.O. 12958, and that is required to be 
kept secret in the interest of national defense or foreign policy.
    Exempt portions of this system also contain information considered 
relevant and necessary to make a determination as to qualifications, 
eligibility, or suitability for Federal civilian employment, military 
service, Federal contracts, or access to classified, compartmented, or 
otherwise sensitive information, and was obtained by providing an 
expressed or implied assurance to the source that his or her identity 
would not be revealed to the subject of the record.
    Exempt portions of this system further contain information that 
identifies sources whose confidentiality must be protected to ensure 
that the privacy and physical safety of these witnesses and informants 
are protected.
[59 FR 55363, Nov. 7, 1994, as amended at 61 FR 2917, Jan. 30, 1996]

[[Page 121]]



PART 705--PUBLIC AFFAIRS REGULATIONS--Table of Contents




Sec.
705.1  Purpose.
705.2  Chief of Information and the Office of Information (CHINFO).
705.3  [Reserved]
705.4  Communication directly with private organizations and 
          individuals.
705.5  Taking of photos on board naval ships, aircraft and installations 
          by members of the general public.
705.6  Releasing public information material to the media.
705.7  Radio and television.
705.8  Motion pictures.
705.9  Availability of motion pictures to external audiences.
705.10  Still photography.
705.11  Supplying photographs and services to other than Navy and Marine 
          Corps.
705.12  Print media.
705.13  Commercial advertising.
705.14  Embarkation of media representatives.
705.15  Employment of Navy personnel as correspondents or staff members 
          of civilian news media.
705.16  Navy produced public information material.
705.17  Participation guidelines.
705.18  Authority and coordination.
705.19  Financing.
705.20  Use of Navy material and facilities.
705.21  Requests for Navy participation.
705.22  Relations with community groups.
705.23  Guest cruises.
705.24  Exhibits.
705.25  Navy Exhibit Center.
705.26  Exhibit availability report.
705.27-705.28  [Reserved]
705.29  Navy Art Collection.
705.30  Aerospace Education Workshop.
705.31  USS Arizona Memorial, Pearl Harbor.
705.32  Aviation events and parachute demonstrations.
705.33  Participation by Armed Forces bands, choral groups, and troops 
          in the public domain.
705.34  Other special events.
705.35  Armed Forces participation in events in the public domain.
705.36  Government transportation of civilians for public affairs 
          purposes.
705.37  Public affairs and public service awards.

    Authority: 5 U.S.C. 301; 10 U.S.C. 5031.

    Source: 41 FR 29101, July 15, 1976, unless otherwise noted.



Sec. 705.1  Purpose.

    The regulations and rules in this part prescribe policies and 
procedures for the Department of the Navy pertaining to public affairs 
practices.



Sec. 705.2  Chief of Information and the Office of Information (CHINFO).

    (a) The Chief of Information is the direct representative of the 
Secretary of the Navy and of the Chief of Naval Operations in all public 
affairs and internal relations matters. As such, the Chief of 
Information has the authority to implement public affairs and internal 
relations policies and to coordinate Navy and Marine Corps public 
affairs and internal relations activities of mutual interest.
    (b) The Chief of Information will keep Navy commands informed of 
Department of Defense policies and requirements. No command within the 
Department of the Navy, except Headquarters, Marine Corps, will deal 
directly with the Office of the Assistant Secretary of Defense (Public 
Affairs) on public affairs matters unless authorized to do so by the 
Chief of Information.
    (c) The Chief of Information will be consulted on all Navy public 
affairs and internal relations matters and informed of all operations 
and proposed plans and policies which have national or international 
(and in the case of audio-visual material, regional) public affairs 
aspects.
    (d) The Chief of Information heads the Navy Office of Information, 
the Navy Internal Relations Activity (NIRA), the Office of Information 
Branch Offices (NAVINFOs), the Navy Public Affairs Center (NAVPACENs) 
and the Fleet Home Town News Center (FHTNC). In addition, the Chief of 
Information has responsibility (on behalf of the Secretary of the Navy 
as Executive Agent for the Department of Defense) for the High School 
News Service and has operational control of the U.S. Navy Band, 
Washington, DC.
    (e) The Navy Office of Information Branch Offices (NAVINFOs) are 
located in Atlanta, Boston, Chicago, Dallas, Los Angeles, and New York. 
As representatives of the Secretary of the Navy, Chief of Naval 
Operations, and Chief of Information, the NAVINFOs have a primary 
mission of providing direct liaison with local and regional mass 
communications media.

[[Page 122]]

    (1) The function of the NAVINFOs are as follows:
    (i) Establish and maintain close personal relationships with local 
television, radio, film, publishing, and other mass-media organizations 
including minority-group-oriented media.
    (ii) Seek ways through these media to inform the public about naval 
personnel and activities.
    (iii) Provide assistance to media organizations and respond to their 
interest in Navy programs, stories, and features. In this regard, 
maintain informal liaison with various information offices afloat and 
ashore in order to respond to requests from local media representatives, 
particularly those from inland areas, who desire to visit fleet units or 
activities ashore.
    (iv) Provide advice on Navy cooperation and assistance, as 
appropriate, to representatives of national industrial and commercial 
organizations, including advertising agencies.
    (v) Maintain a library of Navy motion picture films for use by local 
television stations, distribute news films and audio material, and 
otherwise perform normal audio-visual functions at the local level.
    (vi) Provide personnel and other assistance as appropriate, to 
special Command Information Bureaus and public information staffs of 
other naval activities as directed by the Chief of Information.
    (vii) Advise the Chief of Information on current trends and 
significant problems relating to local media requirements.
    (viii) Seek ways to support the long-range goals and immediate 
priorities of the Navy.
    (ix) Provide advice and assistance in the placement of news and 
feature materials to the field activities of the Navy Recruiting 
Command.
    (x) Perform such other tasks as may be assigned by the Chief of 
Information.
    (2) Additionally, NAVINFO Los Angeles is the Navy representative for 
all appropriate liaison with motion picture and network television 
offices in the Hollywood area. Naval activities will channel all 
requests for information or assistance from these media to NAVINFO Los 
Angeles, which will coordinate with CHINFO.
    (3) Additionally, NAVINFO New York is the Navy representative for 
all appropriate liaison with television and radio networks in the New 
York area and with magazine and book publishers in that area. Requests 
for assistance originating from these media should be directed to 
NAVINFO New York, which will coordinate with CHINFO.
    (4) Except as specifically directed by CHINFO, the Branch Offices do 
not have responsibility or authority for community relations or internal 
relations.
    (5) Direct liaison between NAVINFOs and Naval District public 
affairs offices, Navy recruiters and other naval activities afloat and 
ashore is encouraged.
    (f) Areas covered by the respective offices are:
    (1) NAVINFO Atlanta: Alabama, the District of Columbia, Florida, 
Georgia, Kentucky, Maryland, Mississippi, North Carolina, South 
Carolina, Tennessee, Virginia, and Southern West Virginia.
    (2) NAVINFO Boston: Maine, Massachusetts, New Hampshire, Rhode 
Island, and Vermont.
    (3) NAVINFO Chicago: Illinois, Indiana, Iowa, Michigan, Minnesota, 
Nebraska, North Dakota, Ohio, South Dakota, Wisconsin, and Northern West 
Virginia.
    (4) NAVINFO Dallas: Arkansas, Colorado, Kansas, Louisiana, Missouri, 
New Mexico, Oklahoma, and Texas.
    (5) NAVINFO Los Angeles: Arizona, California, Idaho, Montana, 
Nevada, Oregon, Utah, Washington, and Wyoming.
    (6) NAVINFO New York: Connecticut, Delaware, New Jersey, New York, 
and Pennsylvania.
    (g) The Navy Public Affairs Centers (NAVPACENs) are located in 
Norfolk and San Diego. The centers have a primary mission of producing 
Navy stories for dissemination to the media through normal information 
channels.
    (1) The following tasks are included among the functions of the 
NAVPACENs.
    (i) Produce written, audio and photographic feature public 
information material about fleet and shore personnel,

[[Page 123]]

units and activities, as coordinated with and approved for policy and 
concept by the respective fleet and shore commander concerned.
    (ii) Serve as public affairs emergency reaction teams/resource 
personnel responsive to the requirements of the CNO and CHINFO, and when 
feasible and appropriate and as approved by CNO or CHINFO, serve as 
public affairs emergency reaction teams/resource personnel in support of 
Fleet Commanders.
    (iii) Develop feature material to support the long range goals and 
the immediate priorities of the Navy. Direct liaison is authorized with 
the Navy Recruiting Command, Recruiting Areas, Recruiting Districts, and 
other Commanders as appropriate to achieve this function.
    (iv) Perform such other tasks as may be assigned by the Chief of 
Information.
    (2) NAVPACENs will have no public affairs news media 
responsibilities which conflict with the basic public affairs 
responsibilities of Fleet Commanders-in-Chief. Specifically, NAVPACENs 
are excluded from responding to news media queries, releasing news 
information, arranging news media embarkations, or any other day-to-day 
news media services concerning the respective fleets. These 
responsibilities remain with the Fleet Commander.
    (3) NAVPACENs have no direct responsibility or authority for 
community relations or internal relations and shall defer in these areas 
to the cognizant Naval District Commandant.
    (4) Direct liaison with Fleet Commanders-in-Chief and NAVINFOs is 
appropriate and authorized. As approved by the Fleet CINCs, direct 
liaison with forces afloat and shore activities under the Fleet CINCs is 
appropriate.
    (5) NAVPACENs will carry out their mission and functions in such a 
manner as not to interfere with the public affairs responsibilities of 
the District Commandants.
[44 FR 6389, Feb. 1, 1979]



Sec. 705.3  [Reserved]



Sec. 705.4  Communication directly with private organizations and individuals.

    (a) Questions from the public and requests from groups or 
individuals for pamphlets, photos, biographies, historical matter, etc., 
must be promptly answered. (32 CFR part 701, subparts A-D refers.)
    (b) Assistance within the command's capabilities should (and in some 
cases, must) be given. Where an established channel for obtaining the 
item exists, such as a publication stocked by the Superintendent of 
Documents (Government Printing Office), or photos, as explained in the 
subparagraph below, the requester may be directed to it. Under some 
circumstances, a charge may be made. (Consult part 701 or the command's 
Freedom of Information authority for details.) If a lengthy search, 
beyond the convenient manpower resources of the command, would be 
required, the requester may be offered the opportunity of examining the 
material at the command instead of copies being made.
    (c) If a request is refused, the reason must be fully and 
courteously explained, as required by part 701 of this chapter.
    (d) Copies of released U.S. Navy photos may be purchased by the 
general public.
    (1) Photos made within the last 10 years may be purchased from the 
Naval Photographic Center. Information on the conditions of sale can be 
obtained by writing to the Commanding Officer, Naval Photographic 
Center, Naval Station, Washington, DC 20390.
    (2) Photos made more than 10 years prior to the current date may be 
purchased from the National Archives. Details are available from: Audio-
Visual Branch National Archives and Records Service, General Services 
Administration, Washington, DC 20408.
[41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979]

[[Page 124]]



Sec. 705.5  Taking of photos on board naval ships, aircraft and installations by members of the general public.

    (a) Visitors will not be allowed to take photographic equipment on 
board a naval ship or aircraft or into a naval activity or to take 
photographs within a naval jurisdiction unless specially authorized by 
the officer in command or higher authority.
    (b) Guests of the Navy who wish to take photos within naval 
jurisdictions will be advised of areas where photography is permitted. 
An escort will be assigned to assure that security is maintained, unless 
photography is permitted throughout the ship, aircraft or installation, 
or the areas in which it is not permitted are appropriately guarded or 
secured.
    (c) If there is reason to believe that film exposed by a visitor or 
media photographer contains classified information, the film will be 
processed under Navy jurisdiction.
    (1) Classified photos, if any, will be retained. All unclassified 
film will be returned to the owner.
    (2) When film exposed by civilian visitors or media representatives 
in sensitive areas is beyond the capability of the local command to 
process, it may be forwarded to the Commanding Officer, Naval 
Photographic Center, for processing. Any special processing instructions 
should be sent with the film.



Sec. 705.6  Releasing public information material to the media.

    (a) Methods of releasing information:
    (1) Release at the seat of government and/or as approved by the 
Assistant Secretary of Defense (Public Affairs).
    (i) Overall responsibility for release of information rests with the 
Assistant Secretary of Defense (Public Affairs). The Chief of 
Information is responsible for coordinating with him releases of 
national and international interest (and in the case of audiovisual 
material of regional interest) and for arranging for local release of 
such material if considered appropriate by OASD(PA). Information of the 
above types and also information proposed for release at the seat of 
government, with the exception of ``spot news,'' as described in 
paragraph (b) of this section, following.
    (2) Releases by local commands:
    (i) News of purely local interest may be released by the command 
concerned. Higher and coordinating authorities (such as the District 
Commandant) will be informed, when appropriate, that the release has 
been made.
    (ii) News of national or other wide interest may be released by a 
local command under the following circumstances:
    (A) The Assistant Secretary of Defense (Public Affairs), having 
approved a release, directs that it be issued by the command concerned.
    (B) An event of immediate and urgent news interest, such as a 
disasterous accident, occurs at the command, and emergency announcements 
must be made as delay in issuing information would be against the best 
interests of the Navy. The officer in command will make a ``spot news'' 
release of all appropriate information considered releasable.
    (1) Copies of spot news releases made (or a description if the 
announcement is made orally) will be forwarded promptly to the Chief of 
Information.
    (2) If the situation is considered critical, the spot news release 
will be forwarded by telephone or message.
    (b) Means through which information is released to media:
    (1) Navy oriented information material (written, taped, motion 
picture, still photo) is regularly released to all media presumed to be 
interested.
    (2) Similar material is provided in response to query from a news 
media representative. The material may be produced by the Navy, or the 
newsman may be assisted in researching, filming, etc. himself.
    (3) Exclusive releases:
    (i) Information concerning naval activities may be provided on an 
exclusive basis only when a specific request or inquiry is received from 
one news media representative for material not requested by other media.
    (ii) In such cases, and assuming that the information is properly 
releasable, the following rules will apply:
    (A) If prior to the time information is given to the newsman making 
the

[[Page 125]]

original inquiry or request substantially similar inquiries or requests 
are received from other newsmen, the first inquirer will be so informed, 
and subsequent inquirers will be advised that a prior request has been 
received. None of the inquirers will be told the identity of the 
individuals or media who have placed these similar inquiries.
    (B) If not more than three similar requests are received, the 
information will be provided simultaneously to each inquirer.
    (C) If more than three requests for substantially the same 
information have been received before any are answered, inquirers will 
be advised as soon as possible that the information cannot be given on 
an exclusive or limited basis, and a general release covering the 
subject will be issued to all media.
    (4) News conferences:
    (i) A news conference is held when a command has something specific 
to announce to the press that cannot be handled in a news release or by 
phone call. A news conference should not be called just to get together 
with the press. A request from the press is also a reason for conducting 
a news conference. Special events, significant operations or serious 
accidents are frequent reasons for calling news conferences. If 
requested, spokesmen may be made available to the press for questions 
without specific subject matter in mind, but the press should be clearly 
informed of the nature of this meeting. Technically, this is not 
considered a news conference.
    (ii) When a news conference is held, it is essential that all 
interested media be invited to attend.
    (iii) A record of what is said should be kept. Ideally, the news 
conference should be tape recorded and a public affairs officer should 
be present.
    (iv) Official spokesmen will be prepared to answer questions in a 
frank and candid manner. If the answer would compromise military 
security, the inquirer should be so advised. If the answer is not known 
to the spokesman, he should say so and add that the matter will be 
checked and any available unclassified information provided later.
    (v) Newsmen are not normally asked to submit their questions in 
advance. If this is considered advisable, as in cases where highly 
technical answers may be required, the answers are prepared in advance 
and given to all attending newsmen (not just the questioner) at the news 
conference.
    (5) Interviews. These are similar to news conferences except that 
they involve a single newsman (who has usually requested the interview) 
and a single Navy spokesman.
    (i) Required procedures are essentially the same as for news 
conferences. However, a public affairs officer should be present only if 
desired by the person being interviewed. The interview may be taped, if 
the newsman agrees.
    (ii) Without penalizing initiative displayed by a newsman in asking 
pertinent questions, care should be exercised by the naval spokesman not 
to make a major revelation of news material to a single media outlet in 
the course of a routine interview.
    (iii) If major areas of difficulty arise in the interview, the Chief 
of Information should be notified of them.
    (6) Background briefings; ``Not for attribution''; or ``Off the 
record.''
    (i) Since there is a possibility or risk of a misunderstanding 
arising in these briefings, it is important that all concerned 
understand and agree to the ground rules.
    (ii) In general, information will not be made public unless it can 
be openly attributed to the Navy and disseminated without reservation. 
Occasionally, a backgrounder may be helpful. An example is a briefing of 
embarked newsmen in advance of an operation, providing information which 
may not be reported until the operation is over. The purpose is to help 
the newsmen understand the operation while it is taking place.



Sec. 705.7  Radio and television.

    (a) Navy relationships with radio and TV representatives are of two 
types:
    (1) Dissemination to them of Navy produced tapes, photos, films, 
etc. (This is discussed in more detail in Sec. 705.17).
    (2) Cooperation with them when they produce a program on a Navy 
subject.

[[Page 126]]

This is discussed in the paragraph following:
    (b) Requirement for approval by higher authority.
    (1) Commanding officers may:
    (i) Release audiovisual material which is spot news, as defined in 
Sec. 705.6(a)(2)(ii) preceding, or is of purely local interest.
    (ii) Participate in local community audiovisual projects of benefit 
to the Department of Defense or in the national interest.
    (iii) Approve one-time, one-station participation by personnel of 
their commands (as individuals) in programs of purely local interest.
    (2) All other audiovisual material originated by the Department of 
the Navy or requiring Navy cooperation must be approved by the Chief of 
Information, who will effect the necessary coordination and/or approval 
of the Assistant Secretary of Defense (Public Affairs).
    (i) Requests for assistance from non-governmental audiovisual media 
will be forwarded, with the maximum available details and an evaluation 
of the request, through the chain of command to the Chief of 
Information.
    (ii) No direct coordination or contact between local naval commands 
and the Assistant Secretary of Defense (PA) is authorized unless 
specifically provided for by separate directives or correspondence.
    (c) Navy cooperation in productions by audiovisual media 
representatives (nongovernment).
    (1) The production or project must:
    (i) Be consistent with the goals and aims of the Department of 
Defense and/or be in the national interest.
    (ii) Portray military operation, historical incidents, persons and 
places, in such a manner as to give a true portrayal and interpretation 
of military life.
    (iii) Comply with accepted standards of dignity and propriety in the 
industry.
    (2) There will be no deviation from established safety standards.
    (3) Operational readiness shall not be impaired.
    (4) Official activities of military personnel assisting the 
production must be within the scope of normal military activities. 
Exceptions to this policy will be made only in unusual circumstances.
    (5) Diversion of ships, equipment, personnel and material resources 
from normal military locations or military operations will not normally 
be authorized for filming. Exceptions to such policy must be authorized 
by the Assistant Secretary of Defense (Public Affairs), through the 
Chief of Information.
    (i) The production company concerned must reimburse the government 
for any extra expense involved. A strict accounting of the additional 
expenses incurred and charged to the production company must be 
maintained by the designated project officer. A copy of this accounting 
will be forwarded to the Chief of Information.
    (6) Naval material and personnel will not be employed in such a 
manner as to compete with commercial and private enterprise. In this 
regard, any person or agency requesting their use will furnish a 
noncompetitive certification.
    (7) Additional details on procedures will be found in DOD 
Instruction 5410.16.
    (8) In addition to cooperation requested by the media, commands will 
be alert to the advantages of providing Navy programming and/or 
encouraging participation by Navy personnel in local radio and TV 
programming. Examples are community forums, local talent shows, 
educational and religious programs, children's shows, sports programs, 
etc.
    (d) Participation by individual Navy personnel on radio or TV 
programs:
    (1) In general, such participation is encouraged if it is:
    (i) Dignified and considered in the interests of the Navy.
    (ii) Compatible with operational commitments.
    (iii) Not in competition with the regular employment of professional 
performers.
    (2) The public affairs officer will screen requests for such 
appearances for members of his command to see that the programs are in 
good taste, and that neither the Navy nor its personnel are exposed to 
embarrassment for the sake of entertainment.

[[Page 127]]

    (3) Approval of participation by Navy individuals:
    (i) Approval is not required for personnel attending audience 
participation broadcasts if they are selected at random from the 
audience.
    (ii) One-time, one-station participation of purely local interest 
may be approved by the officer in command concerned.
    (iii) If participation will be on a network (defined as more than 
one station, even if local) of if the same person or program is 
requested by two or more unrelated stations, approval by the Chief of 
Information must be obtained even if the show is of local interest only.
    (e) Use of official footage:
    (1) Use of official U.S. Navy stock film footage on TV broadcasts is 
not authorized without approval and clearance by the Chief of 
Information and the Department of Defense.
    (2) Use of Navy public information motion pictures cleared for TV is 
authorized and encouraged except that such films may be used on 
subscription or pay TV only when offered to the viewers at no cost.
    (3) Navy films will not be cut or portions duplicated for TV use in 
lieu of stock footage without prior approval by the Chief of 
Information.
    (f) Music clearance. The Navy assumes no responsibility for 
clearance of music used on Navy recordings, transcriptions, or films not 
specially produced or authorized for radio or TV broadcast.
    (g) Disclaimers. A disclaimer is not necessary if a product is 
advertised on a program in which the Navy participates, but there must 
be no stated or implied endorsement of it by the Navy or by naval 
personnel appearing on the program.
    (h) Requests for courtesy prints of commercial television programs:
    (1) Requests will not be made directly to the producer or network 
concerned, but will be forwarded to the Chief of Information by the Navy 
requester.
    (2) These courtesy prints will be exhibited only under circumstances 
which cannot be construed as competitive with commercial ventures.



Sec. 705.8  Motion pictures.

    (a) The rules and procedures given in the preceding for TV will also 
apply to cooperation with commercial motion picture producers.
    (b) The Navy assists in the production of commercial, privately 
financed, nontheatrical motion pictures of institutional or of 
educational value to the public. They Navy will not:
    (1) Solicit their production.
    (2) Provide lists of subjects the Navy considers ``desirable.''
    (3) State that the Navy will use a commercially produced film.
    (4) Imply endorsement of a product.
    (5) Permit the use of official Navy seals.
    (c) Navy assistance to motion pictures and all other audio-visual 
products produced by Navy contractors will be subject to the same rules 
and procedures that apply to other non-government producers. Audio-
visual products produced by Navy contractors, with or without Navy 
assistance, will be submitted to the Chief of Information via the 
appropriate Navy headquarters activity for coordination with the 
Assistant Secretary of Defense (Public Affairs) for clearance for public 
release. They will be accompained by five copies of the script and a 
statement from the producer that costs were paid from corporate (vice 
contract) funds.
    (d) When a commercial film which has been produced with Navy 
cooperation is screened in a community, local commands can provide Navy 
exhibits for display in theater lobbies, coordinate displays of 
recruiting material, and arrange for personal appearances of Department 
of Defense and Department of the Navy military and civilian personnel, 
provided such cooperation is approved by the Chief of Information and 
the Assistant Secretary of Defense (Public Affairs).
[41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979]



Sec. 705.9  Availability of motion pictures to external audiences.

    (a) Public access. Navy and Marine Corps general motion pictures and 
motion picture projects not previously

[[Page 128]]

cleared for public exhibition will require clearance by the Chief of 
Information or the Marine Corps Director of Information, as appropriate, 
prior to public viewing. Concurrent review of legal rights and 
instruments associated with the production will be carried out by Patent 
Counsel, Naval Air Systems Command (AIR-OOP). Cleared motion pictures 
may also be made available for free loan as determined by the individual 
services. In addition, cleared motion pictures may be provided for rent 
or sale through the National Audio-Visual Center, National Archives and 
Records Service (GSA), Washington, DC 20409.
    (b) Foreign military training. Motion pictures from the Navy 
inventory may be made available for foreign military training programs 
on approval by the Chief of Naval Operations. Classified motion pictures 
selected for such use will also require a security review by the Chief 
of Naval Operations.



Sec. 705.10  Still photography.

    (a) Policy and procedures on taking photos by the general public, 
given in Sec. 705.5 apply also to media representatives.
    (b) Basic policy and procedures for still photos are set forth in 
the Manual of Naval Photography, OPNAVINST 3150.6D.
    (c) Authority to forbid photography:
    (1) On Navy property, the officer in command may forbid the taking 
of photographs and may confiscate film, reviewing it if it is suspected 
that classified material has been photographed. In such cases, all 
unclassified photos will be returned promptly to the photographer.
    (2) Navy personnel have no authority to confiscate film off Navy 
property. If, as in an accident, classified equipment is exposed which 
cannot be removed or covered, Navy representatives will ask news media 
photographers not to photograph it and will inform them of 18 U.S.C. 
793(e), 795, 797, which makes it a criminal offense to photograph 
classified material. Navy personnel will not use force if media 
photographers refuse to cooperate, but will instead seek the assistance 
of appropriate civil authorities and/or the photographer's superior in 
recovering film or photographs presumed to be of classified nature.
    (3) If media photographers are uncooperative in regard to protection 
of classified material, an account of the matter will be forwarded to 
the Chief of Information.
    (d) Release of photographs:
    (1) Most unclassified photographs of interest to the public may be 
released to news media. However, the rights of individuals photographed 
and special constraints such as those described in section 0403 of the 
Public Affairs Regulations must be taken into consideration before a 
decision is made to release a photograph. In addition, photos which 
might be harmful to recruiting or otherwise not be in the Navy's best 
interests will not be used unless this failure to release them 
constitutes suppression of legitimate news.
    (2) Photographs of strictly local interest can be made available by 
the command to local media without being submitted to review by higher 
authority.
    (3) If a feature type photo released locally is considered of 
possible interest elsewhere, because of its human interest or artistic 
merit, a single print should be forwarded to the Chief of Information, 
together with a notation of the distribution made.
    (4) Photographs of national interest:
    (i) ``Spot news'' photos may be released by a District Commandant or 
Fleet or Force Commander.
    (ii) If a photo has been released by a local command to national 
news media:
    (A) The original negative or transparency will be forwarded by the 
fastest available means to the Commanding Officer, Naval Photographic 
Center, Naval Station, Washington, DC 20390. Such forwarding will be in 
accordance with the Manual of Naval Photography, par. 0445, 
subparagraphs 3 and 4.
    (B) One print, a copy of the letter of transmittal, and the 
distribution list will be forwarded to the Chief of Information.
    (C) Navy units with a Unified Command will forward the photos 
through Unified Command channels.
    (D) All other commands will forward the photos to the Chief of 
Information who will effect coordination with the

[[Page 129]]

Office of the Assistant Secretary of Defense (Public Affairs) and, if 
necessary, arrange for security review.
    (iii) Photography of research activities is normally considered to 
be of national interest.
    (iv) Still photographs of national news interest may be forwarded, 
unprocessed, for release by the Chief of Information by any command not 
subject to the authority of a Unified or Specified Commander. Such 
forwarding will be in accordance with paragraph 0445, subparagraph 3, of 
the Manual of Naval Photography. All available caption material will be 
forwarded with this unprocessed photography.



Sec. 705.11  Supplying photographs and services to other than Navy and Marine Corps.

    (a) To avoid competition with civilian photographic organizations, 
naval aircraft will not be used to take photographs for, nor will 
photographs or mosaic maps be provided to any individuals, corporations, 
or agencies other than departments or agencies of the federal 
government, without specific permission from the Chief of Naval 
Operations.
    (b) In the case of natural catastrophe, or other circumstances where 
prompt action is required, the senior officer present may authorize a 
departure from the preceding paragraph. In all such cases, a report of 
the circumstances will be made to the Chief of Naval Operations.
    (c) This policy does not preclude releases to the media, news 
companies, and others in accordance with established procedures, or the 
sale of released photographs to private agencies or individuals under 
existing Department of Defense regulations and part 701, subparts A-D, 
Availability to the public of Department of the Navy Information and 
Records. Normally, requests by individuals for still photographs and 
motion picture photography for private use are forwarded to the 
Commanding Officer, Naval Photographic Center, Naval Station, 
Washington, DC 20390, for action. Procedures for the collection or 
authority for waiver of fees for service and material provided are set 
forth in Volume III, NAVCOMPT Manual, and part 701, subparts A-D.
    (d) Navy aerial photography released for sale to the public is 
transferred to the United States Department of the Interior. Inquirers 
regarding the purchase of this photography should be directed to Chief, 
Map Information Office, Geological Survey, Department of the Interior, 
Washington, DC 20025.
    (e) Navy training films suitable for sale to the public are 
transferred to the National Audio-Visual Center, National Archives and 
Records Service, General Services Administration, Washington, DC 20408. 
Inquires regarding the sale of Navy training films should be addressed 
to the National Audio-Visual Center.
    (f) This policy does not preclude releases to contractors and others 
properly engaged in the conduct of the Navy's business. However, when 
services are performed for other agencies of the government, and under 
certain conditions, for other military departments, the Navy Comptroller 
Manual prescribes that such are subject to reimbursement.
    (g) All private inquiries from foreign nationals should be returned, 
advising the addressee to contact his local U.S. Information Service 
officer for the desired materials.



Sec. 705.12  Print media.

    Requests for reprints of items published in national media will be 
addressed to the Chief of Information. Commands will be careful not to 
reproduce on their own authority any copyrighted material without 
advance permission from the copyright holder.



Sec. 705.13  Commercial advertising.

    (a) The Navy encourages cooperation with advertisers. However, the 
layout, artwork and text of the proposed advertisement must be submitted 
to the Chief of Information for review and for clearance by other 
appropriate authorities.
    (b) Requests from commercial enterprises (including those with Navy 
contracts) for use of Navy personnel, facilities, equipment or supplies 
for advertising purposes must be referred to the Chief of Information.

[[Page 130]]

    (c) Official Navy photos which have been cleared and are released 
for open publication may be furnished for commercial advertising, if 
properly identified and captioned. No photos will be taken exclusively 
for the use of an advertiser.
    (d) Navy cooperation in commercial advertising, publicity and other 
promotional activities will be based on the following requirements.
    (1) It must be in accordance with the provisions of 32 CFR part 721.
    (2) It must be in good taste and not reflect discredit on the Navy 
or the U.S. Government. Statements made must be matters of fact, without 
misleading information or other objectionable features.
    (3) It must not indicate that a product is used by the Navy to the 
exclusion of similar products offered by other manufacturers or appear 
to endorse or selectively benefit or favor (directly or indirectly) any 
private individual, sect, fraternal organization, commercial venture or 
political group, or be associated with solicitation of votes in a 
political election. It will not infer Navy responsibility for the 
accuracy of the advertiser's claims or for his compliance with laws 
protecting the rights of privacy of military personnel whose 
photographs, names or statements appear in the advertisement. It will 
neither indicate that a product has undergone Navy tests nor disclose 
data from any Navy tests which may have been made.
    (4) It may not promote the use of tobacco or alcohol.
    (e) Use of uniforms and naval insignias. These may be used provided 
it is done in a dignified manner.
    (f) Use of Naval personnel:
    (1) Personnel may receive no compensation.
    (2) Personnel will not be inconvenienced or have their training or 
normal duties interrupted.
    (3) Written consent from the person concerned must be obtained 
before a photo may be used.
    (4) Navy civilians and military personnel on active duty may not use 
their position titles or ranks in connection with any commercial 
enterprise or endorsement of a commercial product. (Retired personnel 
and Reserves not on active duty may use their military titles in 
connection with commercial enterprises if this does not give rise to the 
appearance of sponsorship of the enterprise by the Navy or Department or 
in any way reflect discredit upon them.)
    (5) Testimonials from naval personnel are not banned, but the person 
giving the testimonial must not be specifically identified.
    (i) The use of name, initials, rank or rate of Navy personnel 
appearing in testimonial advertising is not permitted, but such 
expressions as, ``says a Navy chief,'' may be used.
    (ii) Care will be taken to ensure that testimonials from Navy 
personnel are presented in such a way as to make clear that the views 
expressed are those of the individual and not of the Department of the 
Navy.



Sec. 705.14  Embarkation of media representatives.

    (a) General. (1) Although this paragraph applies primarily to 
embarkation in ships, provisions which are applicable to embarkation on 
aircraft or visits to shore installations apply also to those 
situations.
    (2) See also Sec. 705.37 on transportation of non-Navy civilians.
    (b) Invitations to embark. (1) Invitations should be extended as far 
in advance as possible and inclusive information on the following should 
be provided:
    (i) Type, scope and duration of operation or cruise.
    (ii) Communications, methods of press transmission, and charges, if 
any.
    (iii) Transportation arrangements.
    (iv) Approximate cost of meals and/or quarters, and the statement 
that the newsman will be expected to pay for these and other personal 
expenses incurred.
    (2) It should be made clear to the newsman that there may be limits 
on movement from one participating unit to another. If helicopters or 
highline transfers are to be used, their limitations and hazards should 
be explained.
    (3) On operations where security is critical, embarkation of newsmen 
may be made contingent to their agreement to submit copy for security 
review. Under such circumstances, the reason

[[Page 131]]

for the review will be made clear prior to embarkation, and every effort 
will be made to avoid any interpretation of such review as 
``censorship'' or interference with freedom of the press.
    (c) Arrangements aboard ship. (1) Where appropriate, a briefing 
should be held at the earliest convenient time after embarkation at 
which newsmen may meet the commanding officer and other key personnel 
and guests and at which previously supplied information is reviewed.
    (2) If feasible, an escort officer will be assigned to each newsman 
(or group of newsmen having similar requirements).
    (3) It should be reported in the ship's newspaper (and on radio and 
closed-circuit TV, if any) that newsmen will be embarked, giving their 
names and the media they represent.
    (4) If a correspondent is interested in home town material, 
personnel from his area should be contacted in advance, if possible, to 
determine if and when they would be available for interviews and photos.
    (5) Representatives of press associations and radio and TV networks 
will be embarked in the Exercise Commander's flagship or the Exercise 
Control ship, when possible. This ship should also control the ship-to-
shore press radio and teletype (RATT).
    (6) When more than one representative from the same medium is 
embarked, an attempt should be made to have them located at separate 
vantage points.
    (d) Communications. (1) Every effort will be made to provide 
suitable communication facilities for newsmen embarked (including 
equipment and personnel, if feasible).
    (2) All persons embarked with permission of proper authority and 
accredited as correspondents are eligible to file press traffic, as 
authorized by the procedures set forth in Naval Telecommunication 
Procedures (NTP-9), ``Commercial Communications.''
    (3) Navy radio or wire transmission facilities, where available, may 
be made available to news media (including accredited civilian 
photographers) when operational requirements permit, in accordance with 
instructions set forth by the Director of Naval Communications. This 
includes making live broadcasts or telecasts. (A live network broadcast 
or telecast must, however, be approved by the Chief of Information.)
    (4) Messages and instructions from editors and station managers to 
embarked newsmen will be handled as press traffic, as authorized in 
Naval Telecommunication Procedures (NTP-9).
    (5) Stations receiving press circuits will be authorized to receipt 
for press traffic without asking for time-consuming ``repeats.''
    (6) Under normal circumstances, press copy will be transmitted on a 
first-come, first-served basis; however, newsmen will be informed that 
the prerogative of limiting the amount to be filed during any one period 
rests with the Exercise Commander.
    (7) If it becomes necessary for operational reasons for newsmen to 
pool copy, such messages shall be filed as ``multiple address messages'' 
or book messages, as appropriate, or when requested by the newsmen 
concerned.
    (8) If the locale of the exercise permits newsfilm and press mail to 
be flown ashore, flights should be scheduled on a high priority basis to 
connect with scheduled commercial air traffic. Operational aircraft as 
well as scheduled government air flights should be considered for 
delivery of television news film, radio tapes and photography to the 
nearest commercial communications facility.
    (e) Voluntary submission of material by a newsman for security 
review. When a review is not required but is sought by the newsman, no 
attempt will be made to delete or change any material, whether or not it 
appears critical of the Navy or of naval personnel. If any classified 
information is included, the newsman will be asked to delete it. In 
addition, his attention will be drawn to any inaccurate or possibly 
misleading statements.
[41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979]



Sec. 705.15  Employment of Navy personnel as correspondents or staff members of civilian news media.

    (a) A member of the naval service on active duty or Navy civilian 
may act as correspondent for a news periodical or

[[Page 132]]

service, radio or TV station or network, or may work part-time for such 
an organization. The Secretary of the Navy will, however, be immediately 
informed, via the Chief of Information.
    (1) See section 0307 (par. 5), section 0308 (par. 4), and section 
0309 (par. 3) of the Navy Public Affairs Regulations for regulations 
referring to personnel assigned to public affairs staffs receiving 
compensation for such work.
    (2) In time of war, only personnel assigned to public affairs 
billets and such other personnel as the Secretary of the Navy may 
authorize can act as correspondents for civilian media.
    (b) Military personnel on active duty and Navy civilians may not 
serve on the staff of a ``civilian enterprise'' newspaper published for 
personnel of a Navy installation or activity.



Sec. 705.16  Navy produced public information material.

    (a) Still photo--(1) General. (i) The policy and procedures given 
for media produced still photos in Sec. 705.10, apply to Navy produced 
photos.
    (ii) The Office of Information does not issue, nor have funds 
available for the purchases of, any photographic equipment or supplies 
for Navy commands. Details on the establishment of authorized 
laboratories and acquisition of equipment and supplies are given in the 
Manual of Navy Photography (OPNAVINST 3150.6D).
    (2) Photographic coverage of command events. (i) If more than two 
photographers are required to cover a public event, consideration should 
be given to having them wear appropriate civilian attire.
    (ii) Personnel in uniform who are amateur photographers and who are 
attending the event as spectators will not be discouraged from taking 
photos.
    (3) Unofficial photos taken by Navy personnel. (i) The following 
regulations apply to Navy civilian employees and to Navy personnel in 
transit through a command, as well as to active duty personnel assigned 
to the command.
    (ii) Personal cameras and related equipment are permitted on Navy 
ships, aircraft and stations at the discretion of the officer in 
command.
    (iii) An officer in command may screen all photos taken by naval 
personnel with personal cameras within the jurisdiction of the command 
to protect classified information or to acquire photos for official use, 
including public affairs. Photographs taken by bystanders at times of 
accident, combat, or similar significant events can be valuable for 
preparation of official report and public release. They should be 
collected for screening and review as expeditiously as possible.
    (iv) Amateur photographers should also be encouraged to volunteer 
the use of interesting or significant photos for public affairs use.
    (v) Photos made by naval personnel, with either personal cameras and 
film, Navy equipment and film, or any combination thereof, may be 
designated ``Official Navy Photo'' if it is considered in the best 
interests of the Navy.
    (A) All precautions will be taken to protect such film from loss or 
damage, and all unclassified personal photos not designated as 
``official'' will be returned to the owner immediately after review.
    (B) When a photo taken by an individual who is not an official 
photographer is selected for public affairs release:
    (1) The photographer will receive credit for his work in the same 
manner as an official photographer.
    (2) The original negative or transparency will be retained and 
assigned an official file number. It will then be handled like any other 
official Navy photograph.
    (3) At least one duplicate negative or transparency of each 
unclassified personal photo which has been designated as ``official'' 
will be prepared and delivered to the photographer. A black-and-white 
print may also be prepared for the photographer's personal use.
    (b) Audiovisual. (1) The Chief of Information releases TV 
featurettes directly to local TV stations and the Office of 
Information's Branch Offices (NAV INFO's). After such featurettes have 
been cleared for public release by the Assistant Secretary of Defense 
(Public Affairs).
    (2) The Assistant Secretary of Defense (PA) must approve, prior to 
commitment of funds, the initiation of Navy audiovisual productions 
intended for public release.

[[Page 133]]

    (3) Motion picture film.
    (i) Film of major news value will be forwarded immediately, 
unprocessed, to the Commanding Officer, U.S. Naval Photographic Center. 
The package should be labeled as follows:

                         News Film--Do Not Delay

Commanding Officer, U.S. Naval Photographic Center (ATTN: CHINFO 
Liaison), Washington, DC 20374.

                         News Film--Do Not Delay

The Commanding Officer of the Naval Photographic Center will be advised 
(with an information copy to the Chief of Information) of its 
forwarding, the subject, type and amount of footage, method of delivery, 
and estimated time of arrival in Washington.
    (ii) The original negative of motion picture photography of feature 
value (photography which will not lose its timeliness over a reasonable 
length of time) will be forwarded to the Naval Photographic Center, and 
a copy of the forwarding letter will be sent to the Chief of 
Information.
    (c) Fleet Home Town News Center (FHTNC). (1) All public affairs 
officers will assure that appropirate news and photo releases on 
personnel of their commands are regularly sent to the Fleet Home Town 
News Center.
    (2) Procedures, requirements and formats are contained in CHIN-
FOINST 5724.1.
[41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979]



Sec. 705.17  Participation guidelines.

    (a) The provisions of this section refer to participation by naval 
personnel and use of Navy facilities and material in events sponsored by 
nongovernment organizations except where otherwise stated.
    (b) In accordance with the established responsibilities of local 
officers in command, these officers will continue to determine whether 
facilities, equipment and personnel within their cognizance may be 
provided for such programs (except in the Washington, DC area where the 
Assistant Secretary of Defense (Public Affairs) is the authorizing 
authority).
    (c) Officers in command will ensure that participation is 
appropriate in scope and type, and is limited to those occasions which 
are: In keeping with the dignity of the Department of the Navy, in good 
taste and in conformance with the provisions of part 721 of this 
chapter. The national, regional, state or local significance of the 
event and the agency sponsoring the event will be used as guides in 
determining the scope and type of Navy participation to be authorized.
    (d) Participation in community relations programs is authorized and 
encouraged to accomplish the aims and purposes as set forth in 
Sec. 705.18 (following). Where mutually beneficial to the Department of 
Defense and the public, support authorized and provided is always 
subject to operational considerations, availability of requested support 
and the policy guidance provided herein.
    (e) Military personnel, facilities, and materiel may be used to 
support non-government public affairs programs when:
    (1) The use of such facilities, equipment and personnel will not 
interfere with the military mission or the training or operational 
commmitments of the command.
    (2) Such programs are sponsored by responsible organizations.
    (3) Such programs are known to be nonpartisan in character, and 
there is no reason to believe that the views to be expressed by the 
participants will be contrary to established national policy.
    (f) The sponsoring organizations or groups will be clearly 
identified in all cases where naval personnel participate as speakers, 
or military support is furnished.
    (g) Public affairs programs sponsored by civilian organizations will 
not be cosponsored by a naval command unless expressly authorized by the 
Chief of Information.
    (h) Participation will not normally be authorized in public events 
when the presence of military participants deprives civilians of 
employment. Officers in command will screen all requests for use of 
material and personnel in Navy-sponsored social functions held off 
military installations.

[[Page 134]]

    (i) Navy participation and cooperation must not directly or 
indirectly endorse, or selectively benefit, or appear to endorse, 
benefit or favor, any private individual, group, corporation (whether 
for profit or nonprofit), sect, quasi-religious or ideological movement, 
fraternal, or political organization, or commercial venture, or be 
associated with the solicitation of votes in a political election.
    (1) Providing use of government facilities, such as transportation, 
housing, or messing, at government expense to private groups is normally 
interpreted as a selective benefit or favor and is not authorized as 
part of a community relations program. Therefore, such provisions are 
normally not authorized as part of a community relations program, even 
though certain uses of facilities may be authorized under directives on 
domestic action or other programs.
    (2) The above does not bar private groups from providing 
entertainment on base. However, the appearance must be for entertainment 
and not for fund-raising, or any political or promotional purpose.
    (j) Community relations programs must always be conducted in a 
manner free from any discrimination because of race, creed, color, 
national origin, or sex.
    (1) Navy participation in a public event is not authorized if 
admission, seating and other accommodations and facilities are 
restricted in a discriminatory manner.
    (2) Exceptions for participation may be made under certain 
circumstances for an ethnic or ideological group when they do not 
entertain any purpose of discriminating against any other group. Any 
such exceptions must be referred to the Chief of Information for 
consideration.
    (3) Support to nationally recognized veterans' organizations is 
authorized when the participation is in support of positive programs 
which are not in themselves discriminatory.
    (4) Navy support to nonpublic school activities is authorized when 
the participation is clearly in support of educational programs or Navy 
recruiting.
    (5) Commands should ensure minority participation in all community 
relations activities and events, as appropriate. This includes but is 
not limited to the following:
    (i) Ensure that the minority community is aware of the procedure for 
obtaining Navy support for community events and that they are appraised 
of the use of Navy demonstration teams, units, and speakers.
    (ii) Encourage Navy involvement in, and attention to, local minority 
community events.
    (iii) Continue to cultivate a rapport with key members of all 
minority communities.
    (k) Participation is not authorized if there is fund raising of any 
type connected with the event, except as provided for in Sec. 705.34.
    (l) No admission charge may be levied on the public solely to see an 
Armed Forces demonstration, unit, or exhibit.
    (1) When admission is charged, the Armed Forces activity must not be 
the sole or primary attraction.
    (2) A general admission charge need not be considered prohibitory to 
Navy participation, but no specific or additional charge may be made 
because of Navy participation.
    (3) Participation shall be incidental to the event except for 
programs of a patriotic nature, celebration of national holidays, or 
events which are open to the general public at no charge for admission.
    (4) The provisions of this paragraph do not apply to the Navy's Blue 
Angel Flight Demonstration Team or to the Navy Band and other special 
bands engaged in authorized concert tours conducted at no additional 
cost to the government.
    (m) Some participation in or support of commercially sponsored 
programs on audio or visual media is allowable. See Secs. 705.7 and 
705.8.
    (n) Some participation which supports commercial advertising, 
publicity and promotional activities or events is allowable. See section 
0405, par. 3 of the Navy Public Affairs Regulations.
    (o) Navy speakers may be provided for certain events at which other 
forms of Navy participation may not be appropriate. See section 0604, 
par. 8 of the Navy Public Affairs Regulations.

[[Page 135]]

    (p) When participation is in the mutual interest of the Navy and the 
sponsor of the event, participation will be authorized at no additional 
cost to the government. Additional costs to the government (travel and 
transportation of military personnel, meals and quarters, or standard 
per diem allowances, etc.) will be borne by the sponsor.
    (q) Department of Defense policy prohibits payment by the Armed 
Forces for rental of exhibit space, utilities, or janitorial costs. 
Other exceptions may be given under unusual circumstances.
    (r) Navy participation in professional sports events and post-season 
bowl games will frequently be authorized at no additional cost to the 
government, will emphasize Joint Service activity when possible, and 
must support recruiting programs. Chief of Information approval is 
required.
    (s) Navy participation in public events shall be authorized only 
when it can be reasonably expected to bring credit to the individuals 
involved and to the Armed Forces and their recruiting objectives. Naval 
personnel will not be used in such capacities as ushers, guards, parking 
lot attendants, runner or messengers, baggage handlers or for crowd 
control, or in any installations.
    (t) Maximum advantage of recruiting potential will be taken at 
appropriate events for which Navy participation has been authorized.
    (u) Navy support will not normally be authorized for commercially-
oriented events such as shopping center promotions, Christmas parades, 
and other such events clearly sponsored by, or conducted for the benefit 
of commercial interests. However, this policy does not preclude 
participation of Navy recruiting personnel and their organic equipment, 
materials and exhibits so long as their participation is not used to 
stimulate sales or increase the flow of business traffic or to give that 
appearance. Requests for exceptions will be considered on a case-by-case 
basis by the Chief of Information.
    (v) Questions as to appropriateness of Navy participation, or as to 
existing Navy and OASD (PA) policy, may be referred to the Chief of 
Information.
    (w) Procedures for requesting participation are addressed in 
Sec. 705.21.
[41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979]



Sec. 705.18  Authority and coordination.

    (a) Each naval command will coordinate its community relations 
program with the senior authority having responsibility for community 
relations in its area (District Commandant, Unified Commander, or 
other).
    (b) Within policy limitations outlined in this section, the command 
receiving a request for Navy participation, and processing the required 
resources, has the authority to process the request and provide the 
support requested.
    (c) Requests for support exceeding local capability, or requiring 
approval from higher authority, or requiring an exception to policy will 
be referred as directed in Sec. 705.21 for determination.
    (d) The Assistant Secretary of Defense (Public Affairs) has the 
overall responsibility for the Department of Defense community relations 
program. Civilian sponsors should be advised to address requests for 
approval of the following types of programs directly to the Director of 
Community Relations, Office of the Assistant Secretary of Defense 
(Public Affairs), Pentagon, Washington, DC 20301:
    (1) National and international events, including conventions, except 
those taking place in overseas areas which are primarily of internal 
concern to Unified Commanders.
    (2) Events outside the United States which have an interest and 
impact extending beyond the Unified Command areas, or which require 
assistance from outside the command area.
    (3) Public events in the Washington, DC area.
    (4) Aerial, parachute, or simulated tactical demonstrations held in 
the public domain, except those held in areas assigned to overseas 
Unified Commands.
    (5) Aerial reviews on military installations within the United 
States if the review involves more than one Service.
    (6) Programmed national sports, professional athletic events, formal 
international competitions, and contests between a Navy and professional 
team in

[[Page 136]]

the public domain. See section 0605, par. 18 of the Navy Public Affairs 
Regulations.
    (7) Performing Navy units appearing on regional or national 
television.
    (8) Overall planning for Armed Forces Day (not including local 
activities).
    (9) Granting exceptions to policy.
    (e) Overseas, Unified Commanders are designated to act for and on 
behalf of the Secretary of Defense in implementing community relations 
programs within their command areas and in granting any exceptions to 
policy or regulations. This authority may be delegated.
    (1) Policy, direction and guidance for Unified Command community 
relations programs are provided to Navy components of these commands by 
the Unified Commander concerned.
    (2) Authority of the Commander-in-Chief, Pacific extends to planning 
and execution of community relations programs in Alaska and Hawaii. 
Participation in events held in Alaska and Hawaii will be governed by 
the same principles as policies applicable to other states.
    (3) Community relations programs and events taking place within the 
United States which have an effect on a Unified or Specified Command as 
a whole, or are otherwise of significant concern to the Unified Command, 
require complete coordination through appropriate channels between the 
Unified Command and naval activities concerned.
    (4) Unified Commanders overseas requiring Navy support for a 
community reltaions program or participation in a public event should 
coordinate their requirements with the appropriate Navy component 
command.
    (f) The Secretary of the Navy will plan and execute Navy community 
relations programs and approve Navy participation in public events not 
otherwise reserved or assigned to the Secretary of Defense. This 
authority may be delegated.



Sec. 705.19  Financing.

    (a) The financial requirements for community relations purposes will 
be kept to the minimum necessary to accomplish Department of Defense 
objectives.
    (b) Costs of participation will normally be at government expense 
for the following types of events and programs when they are in the 
primary interest of the Department of Defense:
    (1) Public observances of national holidays.
    (2) Official ceremonies and functions.
    (3) Speaking engagements.
    (4) Programmed, scheduled tours by Navy information activity support 
units (e.g., an exhibit from the Navy Exhibit Center) when this method 
of reaching special audiences is considered by the Secretary of the Navy 
to be the most effective and economical way of accomplishing a priority 
public affairs program.
    (5) Tours by units (e.g., the Navy Band) for which appropriated 
funds have been specifically provided.
    (6) Support of recruiting.
    (7) Events considered to be in the national interest, or in the 
professional, scientific, or technical interests of the Navy or 
Department of Defense, when approved by the Secretary of Defense or the 
overseas Unified Commander, as appropriate.
    (c) Navy participation in all other public events will normally be 
at no additional costs to the government.
    (1) Continuing type costs to the government which would have existed 
had the Navy not participated in the event will not be reimbursed by the 
sponsor.
    (2) Transportation costs may be excluded from the costs to be borne 
by the sponsor when the transportation can be accomplished by government 
aircraft on a normal training flight or opportune airlift.



Sec.  705.20  Use of Navy material and facilities.

    (a) The loan of equipment and permission to use facilities will be 
dependent on the following:
    (1) The program support must be within the command's public affairs 
responsibility.
    (2) The loan of the equipment must not interfere with the military 
mission of the command.
    (3) Equipment must be available within the command or obtainable 
from another Navy command in the local area.

[[Page 137]]

    (4) The event must be of the type for which participation is 
considered appropriate.
    (5) It must not be in any direct or implied competition with a 
commercial source.
    (6) There must be no potential danger to persons or private property 
that could result in a claim against the government. Safety requirements 
will be observed.
    (b) Use of open mess facilities will be permitted only under one of 
the following conditions:
    (1) Incident to the holding of a professional or technical seminar 
at the command.
    (2) Incident to an official visit to the command by a civic group.
    (3) Navy League Council luncheon or dinner meetings (not to exceed 
one per quarter per group).
    (4) Incident to group visits by the Boy Scouts of America, Boys 
Clubs of America, the Navy League Sea Cadets (by virtue of their federal 
charters), Girl Scouts and the Navy League Shipmates, and a few 
representative adult leaders.
    (c) Use of the official Navy flag will be in accordance with 
SECNAVINST 10520.2C and of official emblem in accordance with OPNAVINST 
5030.11B.
    (d) Requests not meeting the criteria cited here, but which are 
considered by the officer in command to have merit, may be referred to 
the Chief of Information.
[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec.  705.21  Requests for Navy participation.

    (a) Decisions will be made on a case-by-case basis. Events which are 
inappropriate for one type of participation may be entirely appropriate 
for another type of participation. A positive and flexible approach 
should be employed.
    (b) Requests by civilian organizations for Navy participation in 
programs or events they sponsor should be addressed to the nearest naval 
installation and should be evaluated and authorized at that level if 
possible. Request exceeding local resoures, or requiring authorization 
from higher authority, should be forwarded through appropriate channels.
    (c) Requests for Armed Forces participation in public events are to 
be submitted on official request forms (Secs. 705.33, 705.34 and 705.36) 
by the sponsors of events occurring outside a command's area of direct 
knowledge and local capability, or involving a type or level of 
participation unavailable locally, or requiring approval of higher 
authority.
    (d) Fact sheets expounding upon normally requested assets are 
enclosed in Secs.  705.33, 705.34 and 705.36 and may be reproduced and 
distributed locally.
    (e) The official request form is to be used on all requests referred 
to the Chief of Information and to the Office of Assistant Secretary of 
Defense (Public Affairs).



Sec. 705.22  Relations with community groups.

    (a) Naval commands will cooperate with and assist community groups 
within their capabilities, to the event authorized by current 
instructions, and will participate in their activitis to the extent 
feasible.
    (b) Navy commands will encourage membership of personnel in 
community organizations.
    (c) Officers in command will withhold approval of requests from 
community groups, organizations or individuals whose purposes are 
unclear, pending advice from the Chief of Information.
    (d) Commands may make facilities, less housing and messing, 
available to community groups, at no expense to the government, when it 
is in the best interest of the Navy to do so. Mess facilities may not be 
used for meetings of civic groups or other asociations unless all the 
members of the group concerned are authorized participants of the mess 
as prescribed in NAVPERS 15951, except as provided below:
    (1) Requests to make open mess facilities available to professional 
or technical seminars or civic groups meeting in connection with an 
official visit to the activity may be submitted to the officer in charge 
of the mess, or other appropriate authority. Such requests may be 
approved when it is shown that the inspection of the activity or the 
holding of a professional

[[Page 138]]

seminar is of principal importance and the use of mess facilities is 
incidental thereto.
    (2) Because of the exceptional nature of the Navy League, as 
recognized by the Secretary of the Navy, open mess facilities may be 
used for luncheon or dinner meetings of Navy League Councils, but not 
more often than once per quarter per group.
    (e) Relations with Industry and Labor in the Community (refer to 
SECNAVINST 5370.2F and DOD Directive 5500.7):
    (1) Relations with Navy contractors and with industry and business 
in general are the responsibility of the officer in command, with the 
assistance of his public affairs officer.
    (2) Navy commands will cooperate with industry and its 
representatives in planning and executing community relations projects 
of mutual interest.
    (i) Visits to commands will be scheduled for industrial and employee 
groups under the same conditions as for other civilian groups.
    (ii) A contractor may be identified in a news release, exhibit, or 
the like whenever the major responsibility for the product can be 
clearly and fairly credited to him. In such cases, both the 
manufacturer's name for the product and the Navy designation of it will 
be used.
    (iii) Commands will not solicit, nor authorize others to solicit, 
contractors to provide advertising, contributions, donations, 
subscriptions, etc. Where there is a legitimate need for industrial 
promotion items, such as scale models, the command will contact the 
Chief of Information for advice as to the procedure for requesting 
procurement.
    (iv) Similarly, if Defense contractors wish to distribute 
information material through official Navy channels, the Office of 
Information will be queried as to the desirability and feasibility of 
undertaking the desired distribution.
    (v) Visits to contractor facilities are governed by the provisions 
of DOD Manual 5520.22-M (Industrial Security Manual for Safeguarding 
Classified Information). If nationally known press representatives will 
be involved, prior approval must be obtained both from the contractor 
(via the Chief of Information) and from the Assistant Secretary of 
Defense (Public Affairs).
    (3) Commands will maintain the same relationship with labor unions 
as with other community groups and will not take action in connection 
with labor disputes. Personnel inadvertently or incidentally involved in 
labor disputes will consult officers in command for guidance.
    (f) Emergency Assistance to the Community:
    (1) Navy commands will offer and provide assistance to adjacent 
communities in the event of disaster or other emergency.
    (2) The Chief of Information will be advised immediately of action 
when taken, and copies of subsequent reports to the Chief of Naval 
Operations will be forwarded to the Chief of Information.
    (3) Navy commands will participate in planning by local Civil 
Defense officials.
[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.23  Guest cruises.

    (a) General policy. (1) The embarkation of civilian guests in Navy 
ships is appropriate in the furtherance of continuing public awareness 
of the Navy and its mission.
    (i) Examples of embarkations for public affairs purposes are (but 
not limited to): Individuals, community service clubs, civic groups, the 
Navy League, and trade and professional associations.
    (ii) Embarkation of media representatives on assignment is discussed 
in Sec. 705.14.
    (iii) Other categories may be established by the Secretary of the 
Navy, subject to the approval of the Secretary of Defense.
    (2) It has also been demonstrated that the occasional embarkation on 
cruises of families and personal guests of naval personnel has 
contributed materially to the morale of the family circle and has 
instilled in each individual a sense of pride in his ship. For further 
information see OPNAVINST 5720.2G.
    (3) Embarkations should be conducted within the framework of 
regularly scheduled operations; underway periods solely to accommodate 
guests are not authorized.

[[Page 139]]

    (4) Commander-in-Chief, Pacific Fleet, Commander-in-Chief, Atlantic 
Fleet, Commander-in-Chief, U.S. Naval Forces Europe, Commander Military 
Sealift Command (and their subordinate commands if so designated), Chief 
of Naval Education and Training, and District Commandants may authorize 
the embarkation of female civilians for daylight cruises. Embarkation of 
civilians for overnight cruises must be authorized by the Chief of Naval 
Operations via the Chief of Information.
    (5) All guest visits are normally authorized on an unclassified 
basis.
    (6) In all instances, due precautions must be taken for the safety 
of the guests. (See section 0403, pars. 6(b) and, 6(e), of the Navy 
Public Affairs Regulations, for procedures to be followed in the case of 
death of, or injury to, civilians embarked on naval ships.)
    (7) For further information on policy, procedures, and eligibility 
criteria, see OPNAVINST 5720.2G.
    (b) Authority. (1) Authority to establish procedures for the conduct 
of the embarkation of guests for public affairs purposes (including the 
Secretary of the Navy Guest Cruise and Guest of the Navy Cruise 
programs, which are discussed in Sec. 705.24) is vested in the Secretary 
of the Navy. This authority is limited only insofar as the Chairman of 
the Joint Chiefs of Staff and the commanders of the Unified and 
Specified Commands (and their component commanders, if so designated) 
have the authority to use Navy ships to embark individuals other than 
news media representatives for public affairs purposes.
    (i) Public affairs embarkations originating within the geographical 
limits of the Unified Command will be approved by and coordinated with 
the commanders of such commands. This authority may be delegated. 
Requests for such embarkations originating with the subordinate fleet or 
force command of a Unified Command will be submitted via the operational 
chain of command, to the appropriate commander of the Unified Command, 
unless delegated.
    (ii) Requests for public affairs embarkations originating from any 
Navy source other than the Chairman of the Joint Chiefs of Staff, or the 
Unified and Specified Commanders or their subordinate commands, will be 
submitted to the Chief of Information, who will effect coordination with 
the Chief of Naval Operations and/or the Assistant Secretary of Defense 
(Public Affairs) as appropriate.
    (iii) When guests debark in a foreign port which is in the 
geographic area of a Unified Command other than that in which the cruise 
originated, the Chief of Information will coordinate travel by obtaining 
concurrence of all appropriate commanders and the approval of the Chief 
of Naval Operations, and the Assistant secretary of Defense (Public 
Affairs) as appropriate.
    (2) Officers in command to whom authority to embark guests for 
public affairs purposes is delegated will make maximum use of this 
authority.
    (c) Secretary of the Navy Guest Cruise and Guest of the Navy Cruise 
Programs. (1) The objective of these two programs is: To expose top-
level and middle-level opinion leaders in the fields of business, 
industry, science, education, and labor to the operation of the U.S. 
Navy, in order that they may gain a better understanding of its 
capabilities and problems, the complicated nature of modern sea-based 
equipment, and the high levels of responsibility and training required 
of Navy men and women.
    (2) In addition to policy contained in paragraph (c)(1) of this 
section, the following policy guidelines apply to the conduct of the 
Secretary of the Navy Guest Cruise and the Guest of the Navy Cruise 
Programs.
    (i) Secretary of the Navy Guest Cruise Program. (A) Only aircraft 
carriers and cruisers will be used.
    (B) Cruises will be conducted once each quarter on each coast, 
contingent upon the availability of appropriate ships.
    (C) The optimum number of guests is 15.
    (D) Guests will be drawn from top-level executives and leaders who 
have not had previous exposure to the Navy. ``Previous exposure'' is 
defined as active or reserve service in the U.S. Navy or U.S. Marine 
Corps within the last 10 years; membership in the Navy League or any 
other Navy-oriented organization; or participation in a cruise on a U.S. 
Navy ship in the last 10 years.

[[Page 140]]

    (E) Whenever feasible, Secretary of the Navy Guests will be greeted 
by CINCLANTFLT or CINCPACFLT, or in their absence by the SOPA. 
Comprehensive unclassified briefings will be given dealing with the 
Navy's mission, fleet operations, and current problems.
    (F) Cruises will vary in length from 3 to 7 days, when appropriate, 
to conform with the operating schedule of the ship.
    (ii) Guests of the Navy Cruise Program. (A) All types of ships will 
be used. This will include carriers when available, after selection of a 
cruise for the Secretary of the Navy Guest Cruise Program.
    (B) Guest of the Navy Cruise guests will be drawn from middle-level 
executives and leaders who have not had previous exposure to the Navy. 
Guests should include persons who have direct impact on recruiting, such 
as secondary school principals, guidance counselors, coaches and 
teachers.
    (C) Cruises of relatively short duration (3 to 5 days) are 
preferred, although cruises up to 7 days are authorized. Protracted 
cruises will not be approved except for special circumstances.
    (D) Invitations will be extended by the District of Commandants. 
Invitations will include:
    (1) Statement of the purpose of the Guest of the Navy Cruise 
Program.
    (2) Authorization for embarkation and, if applicable, for COD 
flights, with instructions for reporting on board.
    (3) Name and rank of the commanding officer and, if applicable, name 
and rank of embarked flag officer.
    (4) A caution that guests should not accept the invitation unless 
they are in good health.
    (5) Statement to the effect that the tempo of operations might cause 
changes in scheduling which could result in the invitation having to be 
withdrawn.
    (E) The following necessary information may be included separately 
with a letter of invitation: Recommended wardrobe, passport and 
immunization requirements, availability of emergency medical and dental 
facilities, ship's store and laundry facilities, statement that guest's 
use of a camera will be authorized subject to certain restrictions, and 
a listing of those restrictions. In addition, the following statement 
will be included with each invitation, or form part of the attached 
information sheets:

    The Department of the Navy has no specific authority to use its 
funds to defray or reimburse any personal expenses of a navy guest. As a 
result, the Department of the Navy cannot provide you with 
transportation to the port of embarkation or from the port of 
debarkation back to your home. Your expenses for meals will be quite 
nominal while you are on board a naval ship or facility. You should make 
provision for any extraordinary expense which may arise. For example, if 
a personal or other emergency arises which necessitates your returning 
home during the cruise, you should be prepared to take commercial 
transportation at your own expense from the most distant point on the 
cruise itinerary.
    Navy ships and aircraft, by their very nature, present certain 
hazards not normally encountered on shore. These hazards require persons 
on board to exercise a high degree of care for their own safety.
    Acceptance of this invitation will be considered your understanding 
of the above arrangements and limitations.

    (iii) Applicable to both programs. (A) Guests will provide their own 
transportation from home to the ship and return, and must reimburse the 
Navy for living and incidental expenses while embarked so that the 
program may be conducted at no additional expense to the government.
    (B) Because the number of billets available to accommodate all of 
the potential guests is limited, the guest's opportunity to communicate 
his experience to his associates must be considered. For this reason, 
one of the criteria for selection of guests will be their level of 
activity in civic, professional, and social organizations. In nominating 
and selecting guests, effort will be made to ensure that minority 
citizens are included as appropriate.
    (C) Atlantic cruises will be made on ships operating between East 
Coast ports, or between CONUS and the U.S. Caribbean ports of San Juan, 
PR, or Charlotte Amalie (St. Thomas), Virgin Islands. Pacific cruises 
will be made on ships operating between West Coast ports: Between CONUS 
and ports in Hawaii, Alaska, Mexico or Canada; or between ports within 
Hawaii or Alaska.

[[Page 141]]

    (D) Guests will be informed of security restrictions. Unclassified 
photography should be permitted on board, as pictures renew guests' 
feelings of identification with a ship. Guests will be advised of areas, 
however, where photography is prohibited, and security regulations will 
be courteously but firmly enforced.
    (E) Guests will be billeted in officers quarters and normally 
subsisted in the wardroom. It is not necessary that guests be assigned 
individual rooms. Billeting with ship's officers promotes mutual 
understanding, and guests feel more closely identified with the ship's 
company. They will be invited to dine at least once in each mess on 
board, if the length of the cruise permits. Guests will be encouraged to 
speak freely and mingle with the crew.
    (F) Guests will be accorded privileges of the cigar mess 
commissioned officers mess (open) ashore--with the exception of package 
store privileges--and the use of ship's or Navy Exchange laundry and 
tailor shops. Other Navy Exchange privileges will be limited to purchase 
of items for immediate personal use.
    (G) Only emergency medical and dental care will be provided and then 
only where civilian care is not conveniently available.
    (1) In the event of injury to civilians embarked in Navy ships and 
aircraft or visiting naval activities, commanding officers will notify 
the Chief of information, the appropriate Commandant, and operational 
commanders, by message, of the injury and action taken.
    (2) In the event of an emergency not covered by Navy Regulations, 
the facts and circumstances will be reported immediately to the 
Secretary of the Navy.
    (H) Guests may be allotted time for side trips at their own expense 
when an itinerary includes naval activities or ports adjacent to 
recognized points of interest.
    (I) As a souvenir of the cruise, it is suggested that guests be 
provided with a photograph of the ship, perhaps suitably inscribed by 
the commanding officer prior to debarkation.
    (J) Any publicity will be limited to that initiated by the 
participants. Navy-sponsored publicity will be avoided unless sought by 
the participants. At the same time, media inquiries or inquiries from 
the general public will be answered fully, the purposes of the cruise 
program outlined and the fact stressed that no cost to the government is 
incurred.
[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.24  Exhibits.

    (a) Navy exhibits are representations or collections of naval 
equipment, models, devices and information and orientation material 
placed on public display for information purposes before audiences at 
conventions, conferences, seminars, demonstrations, exhibits, fairs, or 
similar events. Also included are general purpose displays in public 
buildings or public locations. Museums also occasionally request a Navy 
exhibit on a permanent or temporary loan basis.
    (1) Exhibits may be displayed in any appropriate location or event 
(including commercially owned spaces such as shopping centers, malls, 
etc.) provided it is clearly established that such areas are places the 
general public frequents and that the exhibit is not for the purpose of 
drawing the public to that location, and that it is determined that 
participation is in the best interests of the Department of Defense and 
the Department of the Navy.
    (b) Exhibits will be used for the following purposes only:
    (1) To inform the public of the Navy's mission and operations.
    (2) To disseminate technical and scientific information.
    (3) To assist recruiting of personnel for Navy military service and 
for civilian employment in the Department of the Navy.
    (c) Exhibit requests and procedures:
    (1) Requests for Navy exhibits, other than local exhibits may be 
forwarded to the Navy Recruiting Exhibit Center via the local Navy 
recruiter with an information copy to the Chief of Information. The 
primary mission of the Navy Recruiting Exhibit Center is to support 
local Navy recruiters. Requests for exhibits for community relations 
events will be considered favorably only when not in conflict with 
recruiting requirements.

[[Page 142]]

    (i) Requests for exhibits must be submitted well in advance of their 
proposed dates of use.
    (ii) Requests for mobile exhibits requiring tractor-trailer 
transportation should be forwarded prior to November 15th previous to 
the year desired. A tour itinerary of mobile exhibits will then be 
established for the following year.
    (iii) The period of time for which an exhibit is authorized will be 
determined by the nature of the event and the type of exhibit (e.g., 
equipment from local resources used for a local celebration would 
normally not be exhibited for more than three days; but, a formal 
exhibit at an exposition might remain for the duration of the event).
    (2) The office of the Assistant Secretary of Defense (Public 
Affairs) is the approving authority for Navy exhibits in events of 
international or national scope, or those requiring major coordination 
among the Armed Forces, or with other agencies of the Federal 
Government.
    (i) All Navy activities will forward such requests to the Chief of 
Information for coordination with the OASD (PA).
    (ii) Subordinate commands of a Unified Command will forward exhibit 
requests of the above types to the Unified Commander concerned, via the 
chain of command.
    (3) The official OASD(PA) Request Form for Armed Forces 
Participation will be used. See Armed Forces Request Form, Sec. 705.36.
    (4) Requests for exceptions to policy for exhibit displays should be 
forwarded to the Officer in Charge, Navy Recruiting Exhibit Center.
    (5) Policy guidance on costs is defined in Sec. 705.19.
    (6) Occasionally, a project officer will be assigned to coordinate 
use of the exhibit with the sponsor.
    (i) Project officers are normally commissioned officers, equivalent 
civilian personnel, local recruiters or reservists, who have been 
assigned the responsibility of coordinating Service participation in a 
special event.
    (ii) The project officer should establish immediate liaison with the 
sponsor.
    (iii) The project officer should assist in determining the actual 
location of the exhibit, make arrangements for assembling and 
disassembling the exhibit material, and supervise these operations.
    (iv) The project officer will ensure Navy and Department of Defense 
policies are followed, and will coordinate local news releases 
concerning Navy participation.
[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.25  Navy Exhibit Center.

    (a) The center is a field activity of the Chief of Information and 
is located in the Washington Navy Yard. Its primary mission is to 
produce, transport and display U.S. Navy exhibits throughout the United 
States. It also facilitates assignments of Navy combat artists and, 
additionally, produces exhibits for its own tours and for short-term 
loans to naval commands.
[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.26  Exhibit availability report.

    (a) A center index of exhibits which are available at the local 
level in each Naval District is maintained by the exhibit center. To 
achieve maximum effectiveness for an overall integrated program, an up-
to-date registry of all exhibits is required.
    (b) A current inventory of exhibits headquartered in Washington, DC, 
and managed by the Navy Recruiting Exhibit Center for scheduling 
purposes may be obtained by writing to: Officer-in-Charge, Navy 
Recruiting Exhibit Center, Washington Navy Yard, Washington, DC 20374.
[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Secs. 705.27-705.28  [Reserved]



Sec. 705.29  Navy Art Collection.

    (a) The U.S. Navy has continued to record its military actions, 
explorations, launchings, etc., in fine art form since before World War 
II. The present Navy Combat Art Collection contains over 4,000 paintings 
and sketches. A significant number of new works is being added each 
year. The

[[Page 143]]

combat artists of World War II have been replaced by civilian artists 
who witness today's Navy in action, record their impressions, and donate 
their works of art to the Department of the Navy.
    (1) The voluntary services of most of the artists are arranged 
through the Navy Art Cooperation and Liaison Committee (NACAL) which 
operates in close cooperation with the Salmagundi Club of New York City 
and the Municipal Art Department of the City of Los Angeles.
    (2) The Chief of Information has established liaison with the 
Salmagundi Club in order to maintain a continuing historical record of 
the Navy. Organized in 1871, the Salmagundi Club is the oldest club of 
professional artists in the United States. The Club appointed a Navy Art 
Cooperation and Liaison (NACAL) Committee to advise the Navy on art 
matters and to nominate artists for assignment to paint Navy activities 
through the world. The Chief of Information reviews the nominations, and 
issues SECNAV invitational travel orders to each artist approved.
    (3) The following policy pertains:
    (i) All finished art portraying the Navy and produced by Navy 
artists on active duty for that purpose and by guest artists working 
under invitational travel orders becomes the property of the Department 
of the Navy.
    (ii) Civilian artists selected to paint Navy life through 
cooperation of a private sponsor and the Chief of Information may be 
authorized by the Chief of Information or the Office of the Secretary of 
Defense to retain their works.
    (iii) Paintings, sketches, drawings and other forms of artwork will 
not be accepted by the Department of the Navy unless all reproduction 
rights are surrendered and unless they become the permanent property of 
the Department of the Navy.
    (iv) Requests for reproduction of combat art for use in advertising 
or publication will be directed to the Chief of Information.
    (b) Responsibilities:
    (1) The Chief of Information exercises supervision and control of 
the Navy Art Program and issues SECNAV invitational travel orders and 
letters of invitation to artists selected for assignment.
    (2) When directed by the Chief of Information or other appropriate 
Navy authority, a NACAL project officer will perform the following 
functions:
    (i) Act as a local liaison officer for the NACAL Program.
    (ii) Assist NACAL artists on assignments within his area.
    (3) The Curator Navy Combat Art Center, in coordination with the 
Chief of Information, will:
    (i) Plan trips for the NACAL Program.
    (ii) Approve requests for art displays.
    (iii) Provide logistic support for the maintenance, storage, 
shipment and display of the Navy Combat Art Program.
    (c) Requests for art displays should be forwarded to the Director, 
Community Relations Division, Office of Information, Navy Department, 
Washington, DC 20350.
    (d) Exhibition of Navy Art:
    (1) Operation Palette I'' is a carefully selected group of 75 to 100 
combat art paintings depicting Navy and Marine Corps activities during 
World War II. The schedule of ``Operation Palette I'' is promulgated by 
the Officer-in-Charge, Navy Recruiting Exhibit Center and supervised by 
the Chief of Information, with the concurrence of District Commandants. 
Schedules are arranged so that the exhibition travels within a 
particular Naval District for several months at a time. District 
Commandants designate project officers for each city where ``Operation 
Palette I'' is exhibited. The project officer makes all arrangements, 
including suitable location, publicity and personnel to assist the chief 
petty officer who travels with the collection. Promotional kits are 
provided by the Officer-in-Charge, Navy Recruiting Exhibit Center. 
Requests for exhibitions are not desired, since the collection always 
travels on a prearranged tour.
    (2) ``Operation Palette II'' consists of 75 to 100 paintings 
representative of the worldwide operations of the contemporary Navy and 
Marine Corps * * * the Navy today * * *, and travels on prearranged 
tours similar to ``Operation Palette I.''

[[Page 144]]

    (3) Other exhibitions of original paintings from the Combat Art 
Collection may be scheduled on request by either Navy commands or 
civilian art groups. Requests should be directed to the Director, 
Community Relations Division, Office of Information, Navy Department, 
Washington, DC 20350 and contain the following:
    (i) The occasion.
    (ii) Inclusive dates. (Not less than 10 days or more than 90 days 
sub-custody.)
    (iii) Expected attendance and type of publicity planned.
    (iv) Amount of space allotted.
    (v) If Navy-sponsored show, certification that 24-hour security will 
be provided for the paintings while in custody.
    (vi) If civilian-sponsored show, statement that transportation and 
insurance requirements will be met. (Physical security must be available 
for exhibit, with an attendant on duty during open hours and locked 
building or other means of protecting exhibit when closed to the 
public.)
    (e) Navy Combat Art Lithograph Program:
    (1) This program makes available full color, high quality 
lithographs which are faithful reproductions of the original artwork on 
quality paper of selected works of art from the Navy Art Collection.
    (2) Additional information and ordering details are contained in 
CHINFO NOTICE 5605, which is issued periodically.
[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.30  Aerospace Education Workshop.

    (a) This program is devised by the Navy to give students at colleges 
and universities conducting teacher training a comprehensive background 
in the field of aviation. The teachers in turn integrate this knowledge 
into their education programs.
    (b) Appropriate commands are encouraged to provide assistance to 
educational institutions sponsoring the workshop program: Provided, That 
such support does not interfere with the command's primary mission and 
that such cooperation involves no additional expense to the government.
    (c) The Chief of Naval Operations has cognizance of all assistance 
provided by the Navy to all Aerospace Education Workshop program. A 
summary report of local command participation in Aerospace projects will 
be submitted to the Chief of Naval Operations via the appropriate chain 
of command. Information copies of such reports will be sent to 
Commander, Navy Recruiting Command and the Chief of Information. For 
further information see OPNAVINST 5726.1C.



Sec. 705.31  USS Arizona Memorial, Pearl Harbor.

    (a) Limited space and the desirability of keeping the Memorial 
simple and dignified require the following practices to be observed:
    (1) Rendering of formal ceremonies on the USS Arizona Memorial will 
be confined to Memorial Day.
    (2) Observances on December 7, or any other date, at the request of 
individuals or organizations, will consist of simple wreath-laying, or 
other appropriate expressions conducted with dignity.
    (3) Plaques intended for display on the Memorial may be presented by 
headquarters of national organizations only. Plaques from regional, 
state or local organizations cannot be accepted. Only one plaque will be 
accepted from any organization. The overall size of the plaques, 
including mounting, must be no larger than 12 inches square.
    (b) The Commandant, Fourteenth Naval District, is designated to 
coordinate all formal or informal observances involving the Memorial.



Sec. 705.32  Aviation events and parachute demonstrations.

    (a) Armed Forces aircraft and parachutists may be authorized to 
participate in appropriate in public events which meet basic Department 
of Defense criteria. This participation may be one of the officially 
designated military flight or parachute demonstration teams, flyover by 
aircraft, a general demonstration of capabilities by aircraft, or the 
static display of aircraft.

[[Page 145]]

    (b) Events which are appropriate for aviation participation include: 
Dedication of airports; aviation shows; aircraft exposition; air fairs; 
recruiting programs; civic events which contribute to the public 
knowledge of naval aviation equipment and capabilities and to the 
advancement of general aviation; public observances of certain national 
holidays (Armed Forces Day, Veterans Day, Memorial Day and Independence 
Day); national conventions of major veterans organizations; memorial 
services for deceased, nationally recognized dignitaries; and receptions 
for foreign dignitaries.
    (c) Support of Armed Forces recruiting is the primary purpose of 
military flight and parachute demonstration teams. Armed Forces 
recruiting teams are available to assist sponsors in coordinating 
advance publicity and information coverage to insure maximum exposure 
for the demonstration team and the event. This assistence is at no 
additional expense to the sponsor; however, the sponsor is required to 
give full support to the recruiting effort and to cooperate fully with 
local service officials. Such support could include (but is not limited 
to) the provision of prime space for recruiters at the event site and 
the provision of courtesy passes in controlled quantities to recruiters 
for the purpose of bringing recruit prospects and recruiting advisors to 
view the show.
    (d) DOD support of air show fund raising efforts in the form of 
provision of military flight and parachute demonstration teams is 
limited to charities recognized by the Federal Services Fund-Raising 
Program. These include such agencies as the United Givers Fund, 
Community Chests, National Health Agencies (as a group), International 
Service Agencies and the military aid societies. Armed Forces support to 
fund-raising events for a single cause, even though the charity is a 
member of a federated or joint campaign or donates in part to one or 
several of the campaigns, is inconsistent with the basic position of 
Department of Defense. The name of the nearest Combined Federal Campaign 
coordinator will be supplied to the sponsor, or if he chooses, he might 
elect to work with the local United Givers Fund (Community Chest). As a 
minimum, the sponsor must agree to provide at least half of the profit 
above costs to the Combined Federal or United Givers Campaigns to 
receive Armed Forces support.
    (e) Request form. This form is used to request military flight and 
parachute demonstration team participation in public events. The 
information is required to evaluate the event for appropriateness and 
compliance with Department of Defense policies and for coordination with 
the units involved.

                                 General

   1. Title of Event____________________________________________________
 Town or City: -------------- State:____________________________________
 Date: ---------------- Time--From:_____________________________________
 To: -------- Place: (Airport, etc.)____________________________________
   2. Sponsor:__________________________________________________________
    3. The sponsor (is) (is not) a civic organization and the event 
(does) (does not) have the official backing of the mayor.
    4. The sponsoring organization (does) (does not) exclude any person 
from its membership or practice any form of discrimination in its 
functins, based on race, creed, color or national origin.
    5. Sponsor's representative authorized to complete arrangements for 
Armed Forces participation and responsible for reimbursing Department of 
Defense for accrued expenses when required:

   Name:________________________________________________________________
   Address:_____________________________________________________________
   City, State: ------------------ Zip:_________________________________
   Telephone: (Office) -------- (AC)____________________________________
 _______________________________________________________________________
(home) -------------------- (AC)________________________________________
 _______________________________________________________________________
6. Purpose of this event (explain fully):_______________________________
 _______________________________________________________________________
7. Expected attendance: ------------------______________________________
8. Is this event being used to promote funds for any purpose?___________
9. Admission charge:____________________________________________________
``Charge for seating: ------------------________________________________
10. Disposition of profits which may accrue:____________________________
11. Will admission, seating and all other accommodations and facilities 
connected with the event be available to all persons without regard to 
race, creed, color or national origin?__________________________________
12. Will the standard Military Services allowance for quarters and meals 
be provided by the sponsor for Armed Forces participants?_______________
13. Will transportation at sponsor's expense be proviced for Armed 
Forces participants between the site of this event and hotel?___________

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14. Will telephone facilities, at sponsor's expense, be made available 
for necessary official communications regarding the event?______________
 _______________________________________________________________________
15. It may be necessary for representatives of the requested unit to 
visit the site prior to the event. Will transportation, meals and hotel 
accommodations be provided by the sponsor?______________________________
 _______________________________________________________________________
16. Please describe the space which will be provided to recruiters:_____
 _______________________________________________________________________
________________________________________________________________________
________________________________________________________________________
17. Designate charity beneficiary(s):___________________________________
 _______________________________________________________________________

             Flight Team, Parachute Team, Flyovers, Statics

    1. This request is for (check appropriate line):

Flight Team Demonstration...................................  ..........
U.S. Navy Blue Angels.......................................  ..........
U.S. Air Force Thunderbirds. (Cost for either team is
 $1500.00 for each day team scheduled at your event.).......  ..........
Aircraft Flyover: (No cost to sponsor.).....................  ..........
Static Aircraft: (Cost is $25.00 per day per crewmember.)...  ..........
U.S. Army Silver Eagles: (Cost for this team is $750.00 for
 each day team scheduled at your event.)....................  ..........
Parachute Team Demonstration U.S. Army Golden Knights: (Cost
 is $25.00 per day per man for each day required to support
 your event. Team consists of 10-14 personnel.).............  ..........
(Other).....................................................  ..........

2. Flight and/or Parachute Team demonstrations are restricted to 
appropriate events at airports, over open bodies of water, or over 
suitable open areas of land. Please give the specific location of your 
event___________________________________________________________________
 _______________________________________________________________________
If an airport, name of airdrome facility and longest usable landing 
runway. Airport:________________________________________________________
 _______________________________________________________________________
Runway data:----------------------------feet.
3. Flyovers, Flight and Parachute Team demonstrations require that 
sponsors secure FAA clearance or waiver. Will steps be taken by sponsor 
to accomplish this at least sixty days prior to the event?______________
4. Flight and Parachute Team demonstrations must adhere to FAA 
regulations which specify that spectators not be permitted within 1500 
feet of an area over which the flight demonstration takes place, or 250 
feet of the jump area over which parachutists are performing. What type 
of crowd control is planned?____________________________________________
 _______________________________________________________________________
5. Flight and Parachute Team demonstrations require that an ambulance 
and a doctor be on the site during the demonstration. Will this 
requirement be met?_____________________________________________________
6. Flight and Parachute Team demonstrations require that the sponsor 
provide a recent aerial photograph, taken vertically from an altitude of 
5,000 feet or higher, to the team(s) giving the demonstration. Will this 
requirement be met?_____________________________________________________
7. Flight Team demonstrations and Static Aircraft displays require that 
the sponsor provide suitable aircraft fuel (JP jet fuel or aviation gas, 
as appropriate) and pay the cost of transporting and handling this fuel, 
if it is not available at the staging airport under military contract 
prices. Will this requirement be met?___________________________________
8. Flight Team demonstrations and Static Aircraft displays require 
mobile firefighting, crash and ground-to-air communications equipment at 
the demonstration site. Will this requirement be met?___________________
9. Flight Teams and Static Aircraft displays require that the sponsor 
provide guards for the aircraft that land and are parked at the site 
during their entire stay. Will this requirement be met?_________________
10. Parachute Team demonstrations may require that the sponsor arrange 
aircraft transportation from the team's home base to the location of the 
event, for use as a jump platform and return to the home base. Will this 
requirement be met, if necessary?_______________________________________
 _______________________________________________________________________
11. Name and address of any Armed Forces representative or government 
official with whom you have discussed possible participation:___________
 _______________________________________________________________________

                              Certification

    I certify that the information provided above is complete and 
correct to the best of my knowledge and belief. I understand that 
representatives of the Military Services will contact me to discuss 
arrangements and costs involved prior to final commitments.

 Signature:_____________________________________________________________
                                              (Sponsor's Representative)

 Date of Request:_______________________________________________________
Return this form to:____________________________________________________

    (f) Definitions. A flight team demonstration is an exhibition of 
precision aerial maneuvers flown by the official Department of Defense 
military flight demonstration teams, the U.S. Air Force Thunderbirds, 
the U.S. Navy Blue Angels and the U.S. Army Silver Eagles. An aircraft 
demonstration is a flight demonstration by aircraft other than those of 
the teams listed above and designed to portray tactical capabilities of 
aircraft by a single aircraft (i.e., the U.S. Marine Corps ``Harrier'') 
or group of aircraft, including air-to-air refueling, helicopter hover 
and

[[Page 147]]

pick-up or rappelling capabilities, Low Altitude Parachute Extraction 
System, maximum performance take-off, etc. A parachute demonstration is 
an exhibition of free-fall and precision landing techniques by the 
official DOD parachute team, the U.S. Army Golden Knights. Other 
parachute demonstrations can be performed by the U.S. Navy Parachute 
Team, or another unofficial team or sports parachute club representing 
the Department of Defense. A flyover is a flight of not more than four 
aircraft over a fixed point at a specific time and does not involve 
precision maneuvers or demonstrations. Flyovers are authorized for 
certain events when the presence of Armed Forces aircraft overhead would 
contribute to the effectiveness of the event based on a direct 
correlation between the event and the aircraft. Flyovers can also be 
authorized for occasions primarily designed to encourage the advancement 
of aviation and which are of more than local interest. Flyovers by any 
of the official DOD flight teams are not authorized. Parades are not 
considered an appropriate event for authorizing flyover support. The 
static display of aircraft is the ground display of any military 
aircraft and its related equipment, not involving flight, taxiing or 
starting of engines.
    (g) Events which are appropriate for Armed Forces aviation 
participation in the public domain include such activities as dedication 
of airports and facilities, aviation shows, expositions, and fairs; and 
other civic events which contribute to the public knowledge of the U.S. 
Military Services aviation equipment and capabilities. The number one 
priority for utilization of military aircraft and parachutists in such 
events in the public domain is to support the recruiting aspects of the 
all-volunteer force concept. The approval of any such military 
demonstration will only be authorized if a maximum recruiting benefit 
exists at each location.
    (h) Costs. (1) The cost for either the United States Air Force 
Thunderbirds or the United States Navy Blue Angels will be $1500 for 
each day a demonstration is scheduled. If the United States Army Golden 
Knights precision parachute team is scheduled for your event, the cost 
will be $25 per man per day for each day required to support your event, 
to include the days of travel if required. Under normal conditions, this 
group is comprised of fourteen members: Nine jumpers, three aircraft 
crewmen, one ground controller, and a narrator. The sponsor will be 
advised by the Golden Knights in advance of the costs related to his 
event for which the government must be reimbursed. The United States 
Army Silver Eagles helicopter team, composed of seven helicopters, 
performs precision formation manuevers and solo helicopter aerobatics to 
demonstrate the capabilities of modern helicopters and the skill of Army 
aviators. The Silver Eagles performance lasts about 30 minutes and is 
conducted entirely in full view of spectators on the crowd line. The 
cost for the team is $750 for each day a demonstration is scheduled. The 
sponsor should make a check payable to the Treasurer of the United 
States for the required amount and present it to the appropriate 
demonstration team commander in advance of the scheduled event.
    (2) Costs associated with static aircraft are normally $25 per day 
for each crew member plus possible fuel requirements discussed below. 
Charges for any other military parachuting demonstration (i.e., U.S. 
Navy Parachute Team, local Armed Forces sport parachute clubs, etc.) 
will depend on the number of personnel and transportation involved. 
Checks payable to the Treasurer of the United States should be made 
available to the appropriate aircraft commander for static displays or 
parachute team commander upon arrival at the event.
    (i) As noted in the Department of Defense request form, the sponsor 
is required to pay per diem costs for team and static display crew 
members except for flyovers or aircraft demonstrations not involving 
landing.
    (3) These costs are binding after a team or crew personnel have 
arrived at the show site, even though weather conditions or other 
unforeseen circumstances force the event to be cancelled. These funds 
provided by the sponsor will be utilized by team members or crew 
personnel for paying housing and subsistence costs. The actual breakdown 
of the per diem involved is

[[Page 148]]

$13.20 for housing, $9.30 for subsistence, and $2.50 for incidental 
expenses. In those locations where housing and subsistence cannot be 
procured for these amounts, it will be the responsibility of the sponsor 
to absorb the additional cost. As stated, these costs will cover 
participation but does not include certain ground support requirements 
(i.e., ground transportation, telephone, etc.) to be furnished by a 
sponsor as outlined in a team support packet.
    (4) Other costs that could be incurred by the sponsor are in the 
area of the sponsor's agreement to provide suitable aircraft fuel 
(defined as JP jet fuel or aviation gas and lubricants) at U.S. 
Government contract prices. Where fuel is available from local military 
stocks--usually military installations--or when fuel is available from 
commercial into-plane contract locations, the U.S. Government will pay 
all fuel costs. If military contract fuel is not available at the show 
site, the sponsor will be required to pay all costs above the contract 
price and that price charged by the local supplier. However, the sponsor 
may choose to transport military contract fuel from a military base or a 
commercial airport having a U.S. Government into-plane contract. In this 
case, his cost would be only the transporting and handling of this fuel 
to the show site.
    (5) The Department of Defense no longer requires the sponsor to 
provide the Department with a public liability and property damage 
insurance policy. This should in no way deter the sponsor from obtaining 
such liability and property damage insurance he feels is necessary for 
his own protection. Due to the costs that could accrue to the sponsor in 
case of cancellations because of inclement weather, the sponsor may wish 
to consider rain insurance to protect his investment. Previous sponsors 
have advised us that such insurance is available from most commercial 
companies.
    (i) Other information. (1) Flight and/or parachute team 
demonstrations are restricted to appropriate events at airports, over 
open bodies of water, or over suitable open areas of land. For the U.S. 
Air Force Thunderbirds or U.S. Navy Blue Angels to operate from an 
airport show site, the following operational requirements must be met:
    (i) Minimum useable runway length for the Thunderbirds is 5000 feet 
by 150 feet in width.
    (ii) Minimum useable runway length for the Blue Angels is 6000 feet 
by 150 feet in width.
    (iii) Minimum single landing gear load bearing capacity for 
Thunderbirds is 45,000 pounds; for Blue Angels, 21,000 pounds. Tandem 
landing gear load bearing capacity is 155,000 pounds for Blue Angels and 
Thunderbirds.
    (2) A staged performance may not be given if the location planned 
for the show site does not meet these minimums. The maximum distance for 
a staged performance'' under normal conditions is 50 nautical miles. It 
should be noted that staged performances are seldom authorized since the 
recruiting potential is reduced at such events.
    (3) The type and number of static and/or flyover aircraft which may 
be assigned is entirely dependent upon the Military Services' capability 
to provide such resources at the time of your event. This capability is 
affected by operational commitments and sponsors are advised that 
confirmation of static/flyover aircraft cannot be made by the 
appropriate Service more than 15-30 days before your event.
    (4) The U.S. Army Silver Eagles are normally restricted to 
performances at airports. Other open land areas may be operationally 
suitable but require the prior approval of the team commander in each 
case.
    (5) Only one flight demonstration team and a parachute demonstration 
team may be authorized for any one event. Military aircraft 
demonstrations may not be authorized for events on the days a flight 
team is participating. A flyover is not authorized when a flight team is 
participating unless it can be provided by a locally-based National 
Guard or Reserve component.
    (6) Participation by the U.S. Navy Blue Angels and the U.S. Air 
Force Thunderbirds is normally limited to two consecutive years in any 
one event. This usually involves one appearance by each of the two 
flight teams. This provision may be waived when other appropriate 
requests have

[[Page 149]]

not been received, when the team is performing in the same geographical 
area and has open dates or when the event is national or international 
in nature and participation would be in the best interests of Department 
of Defense. Participation in an event is normally limited to two days 
unless a third day can be included without preempting other requests.
    (7) Sponsors are required to obtain a Federal Aviation Agency (FAA) 
waiver for any demonstration by military aircraft and/or parachutists in 
the public domain. The final authorization for such Armed Forces 
participation hinges upon the sponsor securing this waiver far enough in 
advance to permit adequate planning (normally not later than 60 days 
prior to the event). Further guidance on the details of obtaining this 
waiver will be contained in the team support packet or FAA. FAA 
regulations require that spectators be confined 1500 feet from a flight 
or aircraft demonstration and 250 feet from a parachute demonstration.
    (i) In some cases, parachute demonstrations require that the sponsor 
arrange for appropriate transportation for the team and equipment from 
its home station to the event and return.
    (ii) Mass parachute jumps, drops of equipment, assault aircraft 
demonstrations, or tactical helicopter troop landings under simulated 
tactical conditions, will be limited to military installations. These 
activities, except those scheduled as part of regular training programs, 
are not authorized for public events in the civil domain.
    (8) When civilian air racing is involved in an event where Armed 
Forces participation has also been scheduled, prize monies must come 
from sources other than admission charges.
    (9) Flight team, parachute and aircraft demonstrations also require 
that the sponsor provide: (i) Recent aerial photograph of the site; (ii) 
an ambulance and doctor at the site; and (iii) Guards for the Armed 
Forces aircraft during their entire stay. The aerial photograph should 
be recent, taken vertically from at least 5,000 feet.
    (10) Maximum advantage of Armed Forces recruiting will be taken at 
appropriate events in the public domain where demonstrations by military 
aircraft and parachutists have been authorized.
    (11) Exception to the policies contained herein will only be 
considered by OASD(PA) on events of national or international 
significance.
    (12) Department of Defense hosts a scheduling conference in mid-
December each year to prepare U.S. Air Force Thunderbirds, U.S. Navy 
Blue Angels, U.S. Army Golden Knights and U.S. Army Silver Eagles 
participation schedules for the ensuing year. All requests for such 
demonstrations from sponsors should reach OASD(PA) prior to the middle 
of November each year to be considered at this conference. In order to 
accommodate many requests Department of Defense receives for other 
parachuting demonstrations, aircraft demonstrations, static aircraft 
displays, and flyovers, each request must be received by OASD(PA) a 
minimum of 30 days in advance of the event and preferably 60 days in 
advance.
    (13) If there are any points that a member of the public might wish 
to have clarified, contact Chief, Aerial Events Branch, OASD(PA), Room 
1E790, The Pentagon, Washington, DC 20301. Telephone: AC (202) 695-6795 
or 695-9900.



Sec. 705.33  Participation by Armed Forces bands, choral groups, and troops in the public domain.

    (a) Military musical participation in public events which otherwise 
meet the criteria outlined herein will be limited to patriotic programs 
as opposed to pure entertainment and will not duplicate a performance 
within the capability of a civilian group. For example, music to 
accompany the presentation of the national colors, or a performance of 
military or patriotic music by a military band, drum and bugle corps or 
choral group may be authorized; background, dinner, dance or other 
social music is considered ``entertainment.''
    (b) Requests received for military musical participation in 
appropriate events in the civilian domain must include an indication 
from the sponsor that there is no conflict with the local civilian 
musicians concerning the appearance of Navy musicians. A statement to 
this effect from the cognizant

[[Page 150]]

local musicians' union must be obtained by the sponsor and attached to 
his request.
    (c) Armed Forces musical units may be authorized to provide certain 
specified musical programs in the public domain. The performance must 
not place military musicians in competition with professional civilian 
musicians. Background, dinner, dance or other social music cannot be 
authorized. The specified programs which may be authorized usually 
include a short opening or closing patriotic presentation. Musical 
selections normally consist of a medley of military or patriotic songs, 
honors to the President or Vice President (if he is there), or music to 
accompany the presentation of colors by a Color Detail.
    (1) Armed Forces musical units may be authorized to participate in 
official government, military and civic functions.
    (i) Official government functions include those in which senior 
officials of the Federal government are involved in the performance of 
their official duties.
    (ii) Official military functions include social activities held on 
military installations (or off when the Military Service certifies that 
suitable facilities are not available on post) which are sponsored by 
the Military Services, have as their principal purpose the promotion of 
esprit de corps, and are conducted primarily for active duty personnel 
and their guests.
    (iii) Official civic functions include such State, county or 
municipal events as inaugurals, dedication of public buildings and 
projects, the convening of legislative bodies, and ceremonies for 
officially invited government visitors.
    (2) Armed Forces musical units may also be authorized to provide 
patriotic and military programs at national conventions and meetings of 
nationally-recognized civic, patriotic and veterans organizations.
    (d) Bands, drill teams and other units can normally participate at 
no cost to the sponsor if the event is within the installation's 
immediate community relations area (approximately 100-mile radius).
    (1) Normally, not more than one band or other musical unit will be 
authorized for a parade in the civilian domain. This guidance intended 
to assure widest possible participation in public events of local 
interest (particularly on national holidays) does not apply to national 
convention of veterans' groups or other events having national 
significance.
    (2) All Armed Forces participation in international and national 
events, and in the Washington, DC area, must be authorized by the 
Assistant Secretary of Defense (Public Affairs).
    (3) Requests for Armed Forces musical or troop units when no 
military installation is accessible, or for the Washington, DC-based 
ceremonial bands or troop units (when the event is outside the 
Washington, DC area), should be addressed to the parent Service of the 
unit:

                              (I) U.S. Army

Chief of Public Information, Department of the Army, Washington, DC 
20310.

                             (II) U.S. Navy

Chief of Information, Code OI-321, Department of the Navy, Washington, 
DC 20350.

                          (III) U.S. Air Force

Director of Information, Secretary of the Air Force, Community Relations 
Division, Washington, DC 20330.

                         (IV) U.S. Marine Corps

Commandant of the Marine Corps, Code AG, Headquarters, U.S. Marine 
Corps, Washington, DC 20380.

    (4) Armed Forces units may not be authorized to participate when:
    (i) The event directly or indirectly endorses or selectively 
benefits or favors (or appears to do so) any private individual, 
commercial venture, sect, fraternal organization, political group, or if 
it is associated with solicitation of votes in a political election.
    (ii) Admission, seating and other accommodations or facilities are 
restricted in any manner with regard to race, creed, color or national 
origin.
    (iii) The sponsoring organization or group excludes any person from 
its membership or practices any form of discrimination in its functions, 
based on race, creed, color or national origin.
    (iv) An admission charge is levied on the public primarily to see 
participation by an Armed Forces unit.

[[Page 151]]

    (v) There is fund-raising of any type connected with the event, 
unless all profits are to be donated to a charity which is one of the 
consolidated programs recognized by the Federal Services Fund-Raising 
Program. These are the United Givers Fund Community Chest, National 
Health Agencies (as a group), the International Service Agencies, and 
the American Red Cross (when not included in a consolidated campaign). 
The Military Services' Welfare Societies (Army Emergency Relief, Navy 
Relief and Air Force Aid Society) are also included.
    (5) Sponsors of an event must agree to reimburse the Military 
Services concerned for transportation and per diem when participation is 
authorized at no additional cost to the government.
    (6) Participation by Armed Forces musical units in other areas is 
within the authority of local military commanders, and requests for 
participation should be made directly to those local military 
installations. All requests should be submitted no earlier than 60 days 
and preferably no later than 45 days prior to the event.



Sec. 705.34  Other special events.

    (a) Ship visits. Requests for visits generally originate with civic 
groups desiring Navy participation in local events. Often, members of 
Congress endorse these requests, advising the Navy of their interest in 
a particular event. Because of the marked increase in requests for ship 
visits, and in order to give equal consideration to all requests, the 
Chief of Information has arranged for quarterly meetings of 
representatives from CHINFO, Commander, Navy Recruiting Command, Chief 
of Naval Operations and Chief of Legislative Affairs. Based on the 
importance of the event (nationally, regionally, or locally) location, 
and prospective audience, recommendations are consolidated and forwarded 
to the fleet commanders prior to their quarterly scheduling conferences.
    (b) Visits to Naval activities--(1) Types of visits. (i) General 
visits or Open House are occasions when a ship or station acts as host 
to the general public. These visits will be conducted in accordance with 
instructions issued by Fleet and Force Commanders, District Commandants, 
or other cognizant authority.
    (ii) Casual visits are visits to ships or stations by individuals or 
specific groups, as differentiated from the general public. Details and 
procedures concerning these visits are a matter of command discretion.
    (iii) Tours are occasions when a ship or station is host to a 
specific group on a scheduled date. Some of the larger shore commands 
also regularly schedule one or more sightseeing type tours daily during 
seasons when many vacationers ask to visit the command.
    (2) General rules. Prior approval for general visiting or Open House 
at any time other than civic-sponsored public observances and official 
ceremonies for Armed Forces Day, memorial Day, Independence Day, and 
Veterans Day, and for observances in overseas areas of similar 
significant holidays, will be requested as follows: Fleet units visiting 
U.S. ports, from Senior Officer present Afloat; fleet units visiting 
foreign ports, from commander ordering the visit; shore stations and 
district vessels in the United States, from District Commandants; and 
overseas shore stations, from the naval area commander.
    (c) Official functions. (1) Navy units may be authorized by local 
commanding officers to participate in official government military and 
civic functions, except in the Washington DC area where OASD(PA) retains 
authority.
    (2) Official government functions include those in which senior 
officials of the federal government are involved in the performance of 
their official duties.
    (3) Official military functions include social activities held on 
military installations (or off, when it is certified that suitable 
facilities are not available on base), which are sponsored by the Navy, 
have as their principal purpose the promotion of esprit de corps, and 
are conducted primarily for active duty personnel and their guests.
    (4) Official civic functions include such state, county or municipal 
events as inaugurals, dedications of public buildings and projects, and 
convening of legislative bodies and ceremonies for officially invited 
government visitors.

[[Page 152]]

    (5) Overseas, similar functions attended by comparable host-country 
officials in their official capacities might also be considered 
appropriate for Navy participation.
    (d) A parade which is sponsored by the community as a whole (rather 
than by a single commercial venture) and held on a Sunday or holiday or 
at a time when shops are closed for business may be a public event for 
which participation could properly be authorized; representation by 
individual commercial ventures in such parades need not be a bar to Navy 
participation as long as the emphasis is planned and placed on the civic 
rather than commercial aspects. Such participation will be at no 
additional cost to the government.
    (e) Fund-raising events. (1) Navy support of fund-raising events 
must be limited to recognized, joint or other authorized campaigns. Navy 
support of fund-raising events or projects for a single cause, even 
though the cause is a member of one of the federated, joint or 
authorized campaigns, or donates in part to one of several of the 
recognized campaigns, is not authorized by Department of Defense.
    (2) Navy support for a single-cause fund-raising event may be 
authorized if the event is:
    (i) In support of Navy recruiting objectives;
    (ii) Supported by a letter indicating the local United Way 
representative has no objection; and
    (iii) Approved by the local Navy Commander as a single-cause charity 
which has broad local benefit.
[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.35  Armed Forces participation in events in the public domain.

    (a) Requests for bands, troops, units, teams, exhibits and other 
Armed Forces participation should be addressed to the nearest military 
installation. Local commanders have resources which they can commit to 
appropriate events if mission requirements permit. If no military 
installation is accessible, or if resources requested are not available 
locally or require approval by higher authorities, a standard Department 
of Defense Request Form should be completed. This form is used to 
evaluate the request, determine appropriateness of the event and 
compliance with Department of Defense policies, and eliminate repeated 
correspondence. The request form should be returned to the office or 
military command from which it was received unless another address is 
indicated.
    (b) Basic criteria governing Armed Forces participation in public 
events have been developed by the Department of Defense to ensure 
compliance with public law, to assure equitable distribution of 
resources to as many appropriate events as possible, and to avoid 
excessive disruption of primary training and operational missions of the 
Military Services. the following general rules and information are 
included as an aid to you in understanding Department of Defense 
policies and in planning programs of mutual benefit to the Armed Forces 
and your community.
    (1) When evaluating requests for Armed Forces participation in 
public events, the interests of the Department of Defense and the public 
at large, operational requirements of the Military services, and 
availability of resources are prime considerations. Commitment of 
resources to specific events must be balanced with the above factors and 
with requests for similar participation received from other sources.
    (2) Department of Defense participation and cooperation must not 
directly or indirectly:
    (i) Endorse or selectively benefit or favor or appear to endorse or 
selectively benefit or favor any private individual, group, corporation 
(whether for profit or nonprofit), sect, quasi-religious or ideological 
movement, fraternal organization, political organization, or commercial 
venture.
    (ii) Be associated with the solicitation of votes in a political 
election. Sites such as commercial theaters or department stores, 
churches or fraternal halls; and events such as testimonials to private 
individuals or sectarian religious services, are generally inappropriate 
for Armed Forces participation.
    (3) Participation by the Armed Forces in any event or activity may 
be

[[Page 153]]

authorized only if admission, seating and all other accommodations and 
facilities are available to all without regard to race, creed, color or 
national origin, and only if the sponsoring organization does not 
exclude any form of discrimination based on race, creed, color or 
national origin. This does not bar participation in events sponsored by 
nationally-recognized veteran's organizations when the program is 
oriented toward the veterans' interests, nor does it bar participation 
in non-public school events when the program is directed toward 
education or recruiting.
    (i) No admission charge may be levied on the public solely to see an 
Armed Forces demonstration, unit or exhibit. When admission is charged, 
the Armed Forces activity must not be the sole or primary attraction.
    (4) Armed Forces participation is authorized in a fund-raising event 
only when the sponsor certifies that all net profits in excess of actual 
operating costs will be donated to one of the consolidated programs 
recognized by the Federal Services Fund-Raising program. These include 
such agencies as the United Givers Fund, Community Chests, National 
Health Agencies (as a group), International Service Agencies and the 
military aid societies.
    (5) When Armed Forces participation in an event is in the mutual 
interest of the Department of Defense and the sponsor of the event, 
participation will be authorized at no additional cost to the 
government. Additional costs to the government--travel and 
transportation of military personnel, meals and quarters or standard per 
diem allowance, etc.--will be borne by the sponsor.
    (6) Department of Defense policy prohibits payment by the Armed 
Forces for rental of exhibit space, connection of electricity, or 
utility or janitorial costs.
    (7) The duration of participation by military units in any one event 
is limited in the interests of proper utilization and equitable 
distribution of Armed Forces manpower and resources. While an exhibit 
might be scheduled for the duration of an event, a unit such as a 
military band is limited to three days.
    (8) Armed Forces participation in professional sports events and 
post-season bowl games will normally be authorized at no additional cost 
to the government, will emphasize joint Service activity and must 
support recruiting programs. Participation in beauty contests, fashion 
shows, pageants, Christmas parades, and motion picture premieres is not 
authorized since military support would violate policy and 
appropriateness.



Sec. 705.36  Government transportation of civilians for public affairs purposes.

    (a) General policy. (1) Regulations on transportation of civilians 
vary according to whether:
    (i) The civilians are news media representatives or not.
    (ii) The travel is local or nonlocal (see paragraph (b) of this 
section).
    (iii) The purpose of the travel is to get to a desired destination 
or is to observe the Navy at first hand.
    (2) Authority for embarkation of individuals in naval vessels and 
military aircraft is vested in the Chief of Naval Operations by 
Sec. 700.710 of this chapter. Nothing in this part shall be construed as 
limiting his authority in this regard.
    (3) The following policy has been established by DOD for providing 
all types of Navy transportation to non-Navy civilians.
    (i) Military transport facilities shall not be placed in a position 
of competition with U.S. commercial carriers.
    (A) When embarkation of a newsman is necessary for him to obtain 
news material about a ship, aircraft, cargo or embarked personnel, or 
when he is invited to report on a matter of special interest to the 
Navy, it is not considered that the transportation furnished him is in 
competition with commercial transport.
    (B) An exception is also made for short trips between an airport (or 
other transportation center) and the command. Cars and buses within the 
resources of the command may be used for meeting guests or taking them 
to make their travel connections.
    (ii) When authorization is requested for travel which is of interest 
to or will affect more than one command or Service, the approving 
authority will

[[Page 154]]

coordinate the request with all other interested commands, Services and 
Agencies.
    (iii) Travel in connection with any public affairs program arranged 
by the Navy jointly with another Federal Department or Agency or a 
foreign government will be authorized only by the Assistant Secretary of 
Defense (Public Affairs, or those to whom he has delegated this 
authority. Navy commands desiring authorization of such travel will 
forward the request to the Chief of Information.
    (iv) If a request for travel for nonlocal public affairs purposes is 
disapproved, sufficient reasons should be provided so that the action is 
clearly understood by the individual or group concerned.
    (b) Definition of local v. nonlocal travel. (1) Local travel is 
travel within the immediate vicinity of the command concerned in 
connection with a public affairs program of local interest only. (For 
air travel within the continental U.S., about 150 miles or less is 
generally considered local.)
    (2) Nonlocal travel is that conducted in connection with a public 
affairs program affecting more than one Service, geographic area or 
major command, usually of primary concern to higher authority.
    (c) Transportation of news media representatives. (1) This section 
applies to media representatives who are embarked for the purpose of 
news gathering or of traveling to an area in order to cover a news 
event. It does not apply to:
    (i) Correspondents when members of groups embarked as regular cruise 
guests of the Navy.
    (ii) Casual trips by correspondents to ships in port or to shore 
stations in CONUS. Such visits may be authorized by officers in command 
or higher authority in accordance with instructions promulgated by the 
Chief of Naval Operations. Written orders are not required.
    (2) Local travel. Commanding officers at all levels are authorized 
(under Defense Department policy) to approve local travel for public 
affairs purposes within the scope of the mission and responsibilities of 
their command, if:
    (i) Public interest in the public affairs purpose involved is 
confined primarily to the vicinity of that command.
    (ii) The travel is being provided for the benefit of local media and 
meets a naval public affairs objective.
    (iii) Scheduled commercial air transportation is not readily 
available.
    (iv) The aircraft to be used is a helicopter, or multiengine dual 
piloted aircraft, and is within the resources of the host command on a 
not-to-interfere basis. This provision does not apply to orientation 
flights.
    (3) Nonlocal travel. (i) Requests for nonlocal travel will be 
submitted to the Chief of Information, who will forward them with his 
recommendations to the Chief of Naval Operations and/or the Assistant 
Secretary of Defense (Public Affairs), as appropriate.
    (ii) When the proposed travel is for news coverage of a major 
emergency nature and the coverage will be impaired or delayed, to the 
serious detriment of the interests of the Department of Defense, if 
military transportation is not provided, requests for such travel will 
be submitted to the Chief of Information, who will forward the request--
if approved--to the Assistant Secretary of Defense (Public Affairs). The 
most expeditious means (including telephone) will be used by commands 
requesting such emergency travel. Justification will include both the 
public affairs purpose and the necessity for military carriers.
    (4) Travel between the U.S. and overseas area.
    (i) The Chief of Naval Operations may authorize military 
transportation for correspondents in unusual circumstances, upon 
recommendations of the Chief of Information and the Defense Department.
    (ii) Requests for government transportation to cover specific 
assignments overseas should be made at least three weeks prior to the 
date required and should be addressed to the Assistant Secretary of 
Defense (Public Affairs) via the Chief of Information or Unified 
Commander, as appropriate. The requests should include:
    (A) A statement that the correspondent is a full-time employee, or 
has a

[[Page 155]]

specific assignment, and that the trip is for the purpose of news 
gathering.
    (B) Appropriate date of entry into area, port of entry, method of 
travel, proposed duration of visit and travel termination date.
    (C) Assurance that the correspondent will observe currency control 
regulations, and sponsoring agency will guarantee financial obligations 
incurred.
    (5) Embarkation of male correspondents between ports within CONUS.
    (i) Male correspondents may be embarked in naval ships for passage 
between ports within the area of a single Fleet command for the purpose 
of news gathering at the discretion of the Sea Frontier Commander, 
Commandants of the Naval Districts, the Chief of naval Air Training, 
Fleet, Force and Type commanders and flag officers afloat who have been 
delegated authority to arrange directly with appropriate Fleet, Force 
and Type commanders for embarkation of civilians on a local cruise 
basis.
    (ii) Invitational travel orders may be issued.
    (6) Embarkation of female correspondents in naval vessels.
    (i) Privileges equal to those given male correspondents will be 
accorded female correspondents whenever practicable.
    (ii) Female correspondents may not be embarked overnight in a naval 
ship without prior approval of the appropriate Fleet Commander-in-Chief. 
This authority may be delegated to the numbered Fleet Commanders.
    (7) Travel in ships of the Military Sealift Command. Correspondents 
may be carried in ships of the Military Sealift Command on either a 
space-required or space-available basis when travel is in the best 
interests of the Navy or the Department of Defense.
    (i) Space-available travel will be used when practicable. A nominal 
charge is made by the Military Sealift Command and must be borne by the 
correspondents.
    (ii) Space-required travel may be authorized when sufficiently in 
the interest of the Navy, and the charge may be borne by the Navy.
    (iii) In either case, determination of Navy interests will be made 
by the Chief of Information, guided by the transportation policy of the 
Chief of Naval Operations, whose approval of such embarkation is 
required.
    (iv) Requests for such travel will be submitted to the Chief of 
Information, who will coordinate with the Chief of Naval Operations and/
or the Assistant Secretary of Defense (Public Affairs), as appropriate.
    (8) Point to point transportation within the continental United 
States in naval aircraft other than those operated by the Military 
Airlift Command.
    (i) SECNAVINST 4630.2A contains guidance for travel in military 
aircraft other than those operated by the Military Airlift Command.
    (ii) Naval activities desiring to arrange such transportation will 
address requests via the chain of command to the operational command of 
the lowest echelon which has been delegated authority to approve such 
requests.
    (iii) Upon approval of such a request, the naval activity sponsoring 
the correspondent shall:
    (A) Prepare travel orders.
    (B) Ensure that any waiver forms, as may be required by governing 
directives, are executed.
    (9) Embarkation of news media representatives of foreign 
citizenship:
    (i) Requests from foreign news media representatives to cruise with 
units of the U.S. Navy are usually made to the nearest U.S. military 
installation known to the correspondent, and are often not made in the 
proper chain of command to the Fleet Commander unless authorized to 
effect arrangements for an underway cruise.
    (A) if the request is received by a command which is not a 
subordinate of the Fleet Commander concerned, it will be forwarded to 
the U.S. Naval Attache assigned to the foreign newsman's country. The 
Attache will then forward the request to the appropriate Fleet 
Commander, with his recommendations and the result of a brief background 
check on the newsman and his employer.
    (B) If the request is received by a subordinate of the appropriate 
Fleet Commander, it may be forwarded directly to the latter, but the 
U.S. Naval Attache in the newsman's country will be given the 
opportunity to comment on the proposed embarkation.

[[Page 156]]

    (ii) Naval commands should not introduce an embarked third-party 
(i.e., a foreign media representative) into a foreign country other than 
his own without first obtaining appropriate clearance from the country 
to be visited. Approval for entry should be forwarded via appropriate 
command channels to the cognizant U.S. Naval Attache.
    (10) Security considerations.
    (i) No media representative known to be affiliated with a group 
advocating the overthrow of the U.S. government will be permitted aboard 
naval ships or stations.
    (ii) If security review is directed, the reason will be made clear 
to the correspondent prior to embarkation. News media people refusing to 
agree to observe security regulations may have their privileges 
suspended. Failure to observe security regulations will be reported to 
CHINFO and interested commands.
    (d) Transportation of other civilians. (1) Although groups normally 
provide their own transportation to Navy commands, Navy transportation 
may be authorized when:
    (i) Commercial transport is not available.
    (ii) A professional group visit has been solicited by the Navy, such 
as participants in the Naval Academy Information Program (``Blue and 
Gold'') or educators invited to an Aerospace Education Workshop.
    (2) Requests for nonlocal transportation under the above 
circumstances will be made to the Chief of Naval Operations.
    (3) Carrier-on-board-delivery (COD) flights and helicopters flights 
to ships are considered local transportation.
    (4) When units or areas of a Unified Command are involved in the 
public affairs program in connection with which travel authorization is 
requested by a Navy command which is not a component of the Unified 
Command concerned, coordination will be effected by the host command, 
through command channels, via the Chief of Information, to the Assistant 
Secretary of Defense (Public Affairs), who--as appropriate--will consult 
with the Unified Commander concerned.
    (e) Special programs. (1) Cruises are discussed in Chapter 6, 
section 0604, para. 1 of the Navy Public Affairs Regulations.
    (2) Embarkation of news media representatives, especially on 
operations and exercises, is discussed in Chapter 4, section 0405, 
paragraph 4 of the Navy Public Affairs Regulations.
    (3) Other programs subject to special requirements or which have had 
exceptions authorized for them include:
    (i) Naval Air Training Command Civilian Orientation Cruise Program, 
conducted by the Chief of Naval Air Training.
    (ii) Joint Civilian Orientation Conference, conducted by the 
Assistant Secretary of Defense (Public Affairs).
    (iii) Orientation flights in government aircraft, conducted in 
accordance with OPNAVINST 37107H.
    (iv) Space-available air transportation may be provided Navy League 
members if they are invited to accompany a flag officer attending a Navy 
League convention or regional meeting and if the trip is economically 
justifiable, based on military travel considerations and not community 
relations or public affairs reasons. Approval in each instance will be 
obtained in advance from the Chief of Naval Operations.
    (v) Air transportation for the Naval Sea Cadet Corps of the Navy 
League.
    (A) Flights must be in Navy multiengine, transport type craft.
    (B) Point-to-point flights on a space-required basis are governed by 
an annual quota set by the Chief of Naval Operations. Space-available 
transportation is authorized and will not be charged against this quota 
if it will not result in delays of takeoffs or a change in the itinerary 
planned for the primary mission.
    (C) Flights must not interfere with operational commitments or 
training or results in additional expense to the government.
    (D) This transportation is not available to other youth programs, 
including others sponsored by the Navy League.
    (f) Other instructions on transportation of non-Navy civilians. 
Details on policy, procedures, and the transportation of certain 
categories of people will be

[[Page 157]]

found in OPNAVINST 5720.2G and DOD Directive 4515.13.
[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.37  Public affairs and public service awards.

    (a) General. (1) A number of public service awards are presented by 
the Department of Defense and the Navy to business and civic leaders, 
scientists and other nongovernment civilians. Other awards--military and 
civilian--are presented to members of the naval establishment.
    (2) These awards are of public affairs interest in the locale where 
they are presented and also in the home towns of those who receive them.
    (b) Department of Defense awards. (1) The Department of Defense 
Medal for Distinguished Public Service is presented to individuals. The 
Department of Defense Meritorious Award honors organizations.
    (2) Details, including nominating procedures, are given in 
SECNAVINST 5061.12.
    (c) Secretary of the Navy awards. (1) The following awards are 
presented by the Secretary of the Navy: The Navy Distinguished Public 
Service Award and Navy Meritorious Public Service Citation to 
individuals; the Navy Certificate of Commendation to members of special 
committees and groups; and the Navy Certificate of Merit to 
organizations and associations.
    (2) Details are given in SECNAVINST 5061.12.
    (3) Nominations for awards to military personnel are considered by 
the Board of Decorations and Medals, in accordance with SECNAVINST 
1650.24A.
    (4) Nominations for honorary awards to Department of the Navy 
civilian employees are considered by the Distinguished Civilian Service 
Awards Panel. (See Civilian Manpower Management Instruction 451.)
    (d) Chief of Information awards--(1) Certificate of Public Relations 
Achievement. (i) This certificate is signed by the Chief of Information. 
It honors individuals who are not Navy employees, corporations, or 
associations.
    (ii) It was established to fill the need for a civilian award for 
public relations achievements which, while not meeting the criteria for 
public service awards presented by the Secretary of the Navy, are of 
such Navy-wide significance as to merit recognition at the Department 
level. Examples of these achievements might be a particularly well done 
feature article about the Navy in a nationally read newspaper or an 
outstanding contribution to a locally sponsored event, which ultimately 
gave national or regional recognition to the Navy.
    (iii) The achievement for which the certificate is given shall meet 
the following criteria:
    (A) Contribute to accomplishment of the public information 
objectives of the Navy.
    (B) Be the result of a single outstanding project or program.
    (C) Have been accomplished within one year of the date of the 
official letter of nomination.
    (iv) Nominations will be submitted through appropriate 
administrative channels to the Chief of Information, and will include a 
description of the service rendered, a statement of its relevance to the 
accomplishment of the public affairs objectives of the Navy and a draft 
of the recommended citation. To avoid possible embarrassment, 
nominations shall be marked ``For Official Use Only'' and safeguarded 
until final action has been taken.
    (2) CHINFO Merit Awards. (i) These awards, or certificates, are 
presented quarterly to Navy publications and broadcasts considered to be 
outstanding or to have shown improvement in meeting professional 
standards of journalism.
    (ii) Publications and broadcasts eligible are those which inform the 
reader concerning aspects of service life or related matters which 
contribute to the well-being of naval personnel, their dependents, and 
civilian employees of the Navy. Civilian enterprise periodicals are 
included if produced for the exclusive use of a naval installation.
    (iii) Nominations are made in two ways:
    (A) Selection during regular review periodicals and broadast air-
checks received by the Internal Relations Activity.

[[Page 158]]

    (B) Nominations from the field. Such nominations are informal and 
may be made by the officer-in-charge, publications editor, broadcast 
station manager, or public affairs officer to the chief of Information, 
Navy Department, Washington, DC 20350 (ATTN: OP-0071).
    (3) Other awards pertaining to public affairs/internal relations. 
(i) Silver Anvil award is given by the Public Relations Society of 
America for outstanding public relations programs carried out during the 
preceding year. Entry blanks and details may be obtained by writing 
directly to Public Relations Society of America, 845 Third Ave., New 
York, NY 10022. All Navy entries will be forwarded via the Chief of 
Information.
    (ii) Freedom Foundation Awards of cash and medals are annually given 
to service personnel for letters on patriotic themes. Details are 
carried in ship and station publications, or may be obtained by writing 
to Freedom Foundations, Valley Forge, PA 19481.
    (iii) Thomas Jefferson Awards are the prizes in an annual 
interservice competition sponsored by civilian media through the 
Department of Defense's Office of Information for the Armed Forces. The 
contest is open to all Armed Forces media--broadcast and print. Details 
can be obtained by writing to Office of Information, Department of the 
Navy, Washington, DC 20350.
    (iv) Navy League Awards. Several annual awards are presented to 
naval personnel and civilians who have made a notable contribution to 
the importance of seapower. The awards are for inspirational leadership, 
scientific and technical progess, operational competence, literary 
achievement, etc. Nominations should be forwarded directly to Board of 
Awards, Navy League of the United States, 818 18th St., NW., Washington, 
DC 20006.
    (v) Nonofficial awards to outstanding Navy students or training 
units.
    (A) Various civilian organizations and private individuals have 
established awards to be presented to outstanding training units or 
naval students.
    (B) Requests to establish an award for students in the Naval Air 
Training program should be forwarded to the Chief of Naval Air Training.
    (C) Requests to establish an award which will involve more than one 
school (other than the Naval Air Training Program) will be forwarded to 
the Chief of Naval Personnel.
    (D) All other cases may be decided by the Navy authority at the 
school concerned.
    (E) Directives in the 5061, 1650 and 3590 series issued by pertinent 
authorities may provide further guidance in individual cases.
    (vi) Awards established by a command to honor non-Navy civilians.
    (A) Examples of such awards are ``Good Neighbor'' or ``Honorary Crew 
Member'' certificates.
    (B) Established to honor persons who have been helpful to the 
command, they are a valuable community relations program. They should 
not be awarded to persons or organizations with which the command is 
associated in a commercial or governmental business capacity.
[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]

[[Page 159]]



                        SUBCHAPTER B--NAVIGATION





PART 706--CERTIFICATIONS AND EXEMPTIONS UNDER THE INTERNATIONAL REGULATIONS FOR PREVENTING COLLISIONS AT SEA, 1972--Table of Contents




Sec.
706.1  Purpose of regulations.
706.2  Certifications of the Secretary of the Navy under Executive Order 
          11964 and 33 U.S.C. 1605.
706.3  Exemptions by the Secretary of the Navy under Executive Order 
          11964.

    Authority: 33 U.S.C. 1605.



Sec. 706.1  Purpose of regulations.

    (a) All ships are warned that, when U.S. naval vessels are met in 
international waters, certain navigational lights and sound-signalling 
appliances of some naval vessels may vary from the requirements of the 
International Regulations for Preventing Collisions at Sea, 1972 (33 
U.S.C. foll. section 1602 (1982)), as to number, position, range, or arc 
of visibility of lights, as well as to the disposition and 
characteristics of sound-signalling appliances. Those differences are 
necessitated by reason of the special construction or purpose of the 
naval ships. An example is the aircraft carrier where the two masthead 
lights are considerably displaced from the center or keel line of the 
vessel when viewed from ahead. Certain other naval vessels cannot comply 
with the horizontal separation requirements for masthead lights, and the 
two masthead lights on even large naval vessels will thus appear to be 
crowded together when viewed from a distance. Naval vessels may also 
have unorthodox navigational light arrangements or characteristics when 
seen either underway or at anchor.
    (b) Naval vessels may also be expected to display certain other 
lights. These lights include, but are not limited to, different colored 
rotating beacons, different colored fixed and rotary wing aircraft 
landing signal lights, red aircraft warning lights, and red or blue 
contour approach lights on replenishment-type ships. These lights may be 
shown in combination with the navigational lights.
    (c) During peacetime naval maneuvers, naval ships, alone or in 
company, may also dispense with showing any lights, though efforts will 
be made to display lights on the approach of shipping.
    (d) Executive Order 11964 of January 19, 1977, and 33 U.S.C. 1605 
provide that the requirements of the International Regulations for 
Preventing Collisions at Sea, 1972, as to the number, position, range, 
or arc of visibility of lights or shapes, as well as to the disposition 
and characteristics of sound-signalling appliances, shall not apply to a 
vessel of the Navy where the Secretary of the Navy shall find and 
certify that, by reason of special construction or purpose, it is not 
possible for such vessel to comply fully with the provisions without 
interfering with the special function of the vessel.
    (e) Executive Order 11964 also provides that the Secretary of the 
Navy is authorized to exempt, in accordance with Rule 38 of the 
International Regulations for preventing Collisions at Sea, 1972, any 
vessel, or class of vessels, the keel of which is laid, or which is at a 
corresponding stage of construction, before July 15, 1977, from full 
compliance with the International Regulations, provided that such 
vessel, or class of vessels, complies with the requirements of the 
International Regulations for Preventing Collisions at Sea, 1960.
    (f) This part consolidates and codifies certifications and 
exemptions granted by the Secretary of the Navy under Executive Order 
11964 and 33 U.S.C. 1605. It has been determined that, because of their 
special construction or purpose, the vessels and classes of vessels 
listed in this part cannot comply fully with all of the requirements of 
the International Regulations for Preventing Collisions at Sea, 1972.
[42 FR 36434, July 14, 1977, as amended at 42 FR 48876, Sept. 26, 1977; 
45 FR 43165, June 26, 1980; 52 FR 4770, Feb. 17, 1987]

[[Page 160]]



Sec. 706.2  Certifications of the Secretary of the Navy under Executive Order 11964 and 33 U.S.C. 1605.

    The Secretary of the Navy hereby finds and certifies that each 
vessel listed in this section is a naval vessel of special construction 
or purpose, and that, with respect to the position of the navigational 
lights listed in this section, it is not possible to comply fully with 
the requirements of the provisions enumerated in the International 
Regulations for Preventing Collisions at Sea, 1972, without interfering 
with the special function of the vessel. The Secretary of the Navy 
further finds and certifies that the navigational lights in this section 
are in the closest possible compliance with the applicable provisions of 
the International Regulations for Preventing Collisions at Sea, 1972.

                                Table One
------------------------------------------------------------------------
                                                            Distance in
                                                             meters of
                                                              forward
                                                              masthead
                                                            light below
                    Vessel                       Number       minimum
                                                              required
                                                            height. Sec.
                                                           2(a)(i) Annex
                                                                 I
------------------------------------------------------------------------
AALC JEFF(B).................................         ACV          7.21
USS DOLPHIN..................................    AGSS 555           0.8
USS OLIVER HAZARD PERRY......................       FFG 7           1.6
USS MC INERNY................................       FFG 8           1.6
USS WADSWORTH................................       FFG 9           1.6
USS DUNCAN...................................      FFG 10           1.6
USS CLARK....................................      FFG 11           1.6
USS GEORGE PHILIP............................      FFG 12           1.6
USS SAMUEL ELIOT MORISON.....................      FFG 13           1.6
USS SIDES....................................      FFG 14           1.6
USS ESTOCIN..................................      FFG 15           1.6
USS CLIFTON SPRAGUE..........................      FFG 16           1.6
USS JOHN A. MOORE............................      FFG 19           1.6
USS ANTRIM...................................      FFG 20           1.6
USS FLATLEY..................................      FFG 21           1.6
USS FAHRION..................................      FFG 22           1.6
USS LEWIS B. PULLER..........................      FFG 23           1.6
USS JACK WILLIAMS............................      FFG 24           1.6
USS COPELAND.................................      FFG 25           1.6
USS GALLERY..................................      FFG 26           1.6
USS MAHLON S. TISDALE........................      FFG 27           1.6
USS BOONE....................................      FFG 28           1.6
USS STEPHEN W. GROVES........................      FFG 29           1.6
USS REID.....................................      FFG 30           1.6
USS STARK....................................      FFG 31           1.6
USS JOHN L. HALL.............................      FFG 32           1.6
USS JARRETT..................................      FFG 33           1.6
USS AUBREY FITCH.............................      FFG 34           1.6
USS UNDERWOOD................................      FFG 36           1.6
USS CROMMELIN................................      FFG 37           1.6
USS CURTS....................................      FFG 38           1.6
USS DOYLE....................................      FFG 39           1.6
USS HALYBURTON...............................      FFG 40           1.6
USS MCCLUSKY.................................      FFG 41           1.6
USS KLAKRING.................................      FFG 42           1.6
USS THACH....................................      FFG 43           1.6
USS DEWERT...................................      FFG 45           1.6
USS RENTZ....................................      FFG 46           1.6
USS NICHOLAS.................................      FFG 47           1.6
USS VANDEGRIFT...............................      FFG 48           1.6
USS ROBERT G. BRADLEY........................      FFG 49           1.6
USS TAYLOR...................................      FFG 50           1.6
USS GARY.....................................      FFG 51           1.6
USS CARR.....................................      FFG 52           1.6
USS HAWES....................................      FFG 53           1.6
USS FORD.....................................      FFG 54           1.6
USS ELROD....................................      FFG 55           1.6
USS SIMPSON..................................      FFG 56           1.6
USS REUBEN JAMES.............................      FFG 57           1.6
USS SAMUEL B. ROBERTS........................      FFG 58           1.6
USS KAUFFMAN.................................      FFG 59           1.6
USS RODNEY M. DAVIS..........................      FFG 60           1.6
USS INGRAHAM.................................      FFG 61          1.37
USS DUBUQUE..................................       LPD 8           4.2
USS DENVER...................................       LPD 9           4.4
USS GUADALCANAL..............................       LPH 7           3.0
USS GUAM.....................................       LPH 9           3.3
USS TRIPOLI..................................      LPH 10           3.3
USS NEW ORLEANS..............................      LPH 11           3.3
USS INCHON...................................      LPH 12           3.0
LCAC (class).................................      LCAC 1
                                                  through
                                                 LCAC 100      \1\ 6.51
LCAC (class).................................      LCAC 1
                                                  through
                                                 LCAC 100      \2\ 7.94
USS IMPLICIT.................................     MSO 455           3.7
USS CONQUEST.................................     MSO 488           3.4
USS GALLANT..................................     MSO 489           3.2
USS PLEDGE...................................     MSO 492           3.4
NR-1.........................................        NR 1           2.7
USS TACOMA...................................       PG 92           2.3
USS WELCH....................................       PG 93           2.3
USS SEAWOLF..................................      SSN 21          4.62
USS GATO.....................................     SSN 615          4.20
USS WHALE....................................     SSN 638          2.44
USS TAUTOG...................................     SSN 639          2.44
USS GRAYLING.................................     SSN 646          2.44
USS POGY.....................................     SSN 647          2.40
USS ASPRO....................................     SSN 648          2.40
USS SUNFISH..................................     SSN 649          2.40
USS PARGO....................................     SSN 650          2.40
USS PUFFER...................................     SSN 652          2.40
USS SANDLANCE................................     SSN 660          2.40
USS GURNARD..................................     SSN 662          1.52
USS HAMMERHEAD...............................     SSN 663          2.40
USS HAWKBILL.................................     SSN 666          1.52
USS BERGALL..................................     SSN 667          2.40
USS SPADEFISH................................     SSN 668          2.40
USS SEAHORSE.................................     SSN 669          2.40
USS FINBACK..................................     SSN 670          2.40
USS NARWHAL..................................     SSN 671          2.74
USS PINTADO..................................     SSN 672          1.52
USS FLYING FISH..............................     SSN 673          2.40
USS TREPANG..................................     SSN 674          2.40
USS BLUEFISH.................................     SSN 675          2.40
USS BILLFISH.................................     SSN 676          2.40
USS DRUM.....................................     SSN 677          1.52
USS ARCHERFISH...............................     SSN 678          2.40

[[Page 161]]

USS WILLIAM H BATES..........................     SSN 680          2.40
USS BATFISH..................................     SSN 681          2.40
USS TUNNY....................................     SSN 682          2.40
USS PARCHE...................................     SSN 683          3.58
USS CAVALLA..................................     SSN 684          2.40
USS MENDEL RIVERS............................     SSN 686          2.40
USS RICHARD B RUSSELL........................     SSN 687          2.40
USS LOS ANGELES..............................     SSN 688          6.10
USS PHILADELPHIA.............................     SSN 690          6.10
USS MEMPHIS..................................     SSN 691          6.10
USS OMAHA....................................     SSN 692          6.10
USS CINCINNATI...............................     SSN 693          3.49
USS GROTON...................................     SSN 694          3.45
USS BIRMINGHAM...............................     SSN 695          3.49
USS NEW YORK CITY............................     SSN 696          3.49
USS INDIANAPOLIS.............................     SSN 697          3.49
USS BREMERTON................................     SSN 698          3.49
USS JACKSONVILLE.............................     SSN 699          3.35
USS DALLAS...................................     SSN 700           3.5
USS LA JOLLA.................................     SSN 701           3.5
USS PHOENIX..................................     SSN 702           3.5
USS BOSTON...................................     SSN 703           3.5
USS BALTIMORE................................     SSN 704           3.5
USS CITY OF CORPUS CHRISTI...................     SSN 705           3.5
USS ALBUQUERQUE..............................     SSN 706           3.5
USS PORTSMOUTH...............................     SSN 707           3.5
USS MINNEAPOLIS-ST. PAUL.....................     SSN 708           3.5
USS HYMAN G. RICKOVER........................     SSN 709           3.5
USS AUGUSTA..................................     SSN 710           3.5
USS SAN FRANCISCO............................     SSN 711           3.5
USS ATLANTA..................................     SSN 712           3.5
USS HOUSTON..................................     SSN 713           3.5
USS NORFOLK..................................     SSN 714           3.5
USS BUFFALO..................................     SSN 715           3.5
USS SALT LAKE CITY...........................     SSN 716           3.5
USS OLYMPIA..................................     SSN 717           3.5
USS HONOLULU.................................     SSN 718           3.5
USS PROVIDENCE...............................     SSN 719           3.5
USS PITTSBURGH...............................     SSN 720           3.5
USS CHICAGO..................................     SSN 721           3.5
USS KEY WEST.................................     SSN 722           3.5
USS OKLAHOMA CITY............................     SSN 723           3.5
USS LOUISVILLE...............................     SSN 724           3.5
USS HELENA...................................     SSN 725           3.5
USS NEWPORT NEWS.............................     SSN 750           3.5
USS SAN JUAN.................................     SSN 751           3.5
USS PASADENA.................................     SSN 752           3.5
USS ALBANY...................................     SSN 753           3.5
USS TOPEKA...................................     SSN 754           3.5
USS MIAMI....................................     SSN 755           3.5
USS SCRANTON.................................     SSN 756           3.5
USS ALEXANDRIA...............................     SSN 757           3.5
USS ASHEVILLE................................     SSN 758           3.5
USS JEFFERSON CITY...........................     SSN 759           3.4
USS ANNAPOLIS................................     SSN 760           3.5
USS SPRINGFIELD..............................     SSN 761           3.5
USS COLUMBUS.................................     SSN 762           3.5
USS SANTA FE.................................     SSN 763           3.5
USS BOISE....................................     SSN 764           3.5
USS MONTPELIER...............................     SSN 765           3.5
USS CHARLOTTE................................     SSN 766           3.5
USS HAMPTON..................................     SSN 767           3.5
USS HARTFORD.................................     SSN 768           3.5
USS TOLEDO...................................     SSN 769           3.5
USS TUCSON...................................     SSN 770           3.5
USS COLUMBIA.................................     SSN 771           3.5
USS GREENEVILLE..............................     SSN 772           3.5
USS CHEYENNE.................................     SSN 773           3.5
USS DANIEL WEBSTER...........................    SSBN 626          3.58
USS STONEWALL JACKSON........................    SSBN 634          3.58
USS SIMON BOLIVAR............................    SSBN 641          3.60
USS KAMEHAMEHA...............................    SSBN 642          3.58
USS JAMES K. POLK............................    SSBN 645          3.60
USS MARIANO G VALLEJO........................    SSBN 658          3.60
USS OHIO.....................................    SSBN 726          3.70
USS MICHIGAN.................................    SSBN 727          3.70
USS FLORIDA..................................    SSBN 728          3.70
USS GEORGIA..................................    SSBN 729          3.70
USS HENRY M. JACKSON.........................    SSBN 730          3.70
USS ALABAMA..................................    SSBN 731          3.70
USS ALASKA...................................    SSBN 732          3.70
USS NEVADA...................................    SSBN 733          3.70
USS TENNESSEE................................    SSBN 734          3.70
USS PENNSYLVANIA.............................    SSBN 735          3.70
USS WEST VIRGINIA............................    SSBN 736          3.70
USS KENTUCKY.................................    SSBN 737          3.70
USS MARYLAND.................................    SSBN 738          3.70
USS NEBRASKA.................................    SSBN 739          3.70
USS RHODE ISLAND.............................    SSBN 740          3.70
USS MAINE....................................    SSBN 741          3.70
USS WYOMING..................................    SSBN 742          3.70
USS LOUISIANA................................    SSBN 743          3.70
------------------------------------------------------------------------
\1\ The permanent masthead light is 5.26 meters athwartship to port of
  centerline, 5.49 meters above the main deck.
\2\ The temporary masthead light is 3.98 meters athwartship to starboard
  of centerline, 4.06 meters above the main deck.

[[Page 162]]



                                                                                            Table Two
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                   Side lights,
                                                                     Masthead     Forward anchor                    AFT anchor                     Side lights,      distance      Side lights,
                                                                      lights,         light,      Forward anchor      light,        AFT anchor    distance below    forward of       distance
                                                                    distance to   distance below   light, number  distance below   light, number   flight dk in       forward       inboard of
                     Vessel                           Number       stbd of keel    flight dk in      of; Rule      flight dk in      of; Rule      meters; Sec.   masthead light   ship's sides
                                                                    in meters;     meters; Sec.      30(a)(i)      meters; Rule      30(a)(ii)     2(g), Annex I    in meters;      in meters;
                                                                    Rule 21(a)     2(K), Annex I                    21(e), Rule                                     Sec.  3(b),     Sec.  3(b),
                                                                                                                     30(a)(ii)                                        Annex I         Annex I
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
AALC JEFF(B) \1\................................             ACV            4.01  ..............  ..............  ..............  ..............  ..............  ..............  ..............
CSP (class).....................................         CSP-101
                                                    through CSP-
                                                             182            1.62  ..............  ..............  ..............  ..............  ..............  ..............            3.93
USS FORRESTAL...................................           CV 59            26.5  ..............               1  ..............               1             1.5  ..............  ..............
USS SARATOGA....................................           CV 60            26.5  ..............               1  ..............               1             0.5  ..............  ..............
USS INDEPENDENCE................................           CV 62            26.5             0.5               2             7.0               2             0.2  ..............  ..............
USS KITTY HAWK..................................           CV 63            27.8  ..............               1  ..............               1             0.2  ..............  ..............
USS CONSTELLATION...............................           CV 64            28.2  ..............               1  ..............               1             0.4  ..............  ..............
USS AMERICA.....................................           CV 66            28.7  ..............               1             0.7               2             0.1  ..............  ..............
USS JOHN F. KENNEDY.............................           CV 67            27.5  ..............               1             9.0               2             0.4  ..............  ..............
USS ENTERPRISE..................................          CVN 65            28.0  ..............               1             6.6               2             0.4  ..............  ..............
USS NIMITZ......................................          CVN 68           31.00  ..............               1             9.2               2             0.7  ..............  ..............
USS DWIGHT D. EISENHOWER........................          CVN 69           30.00  ..............               1             9.3               2             0.7  ..............  ..............
USS CARL VINSON.................................          CVN 70            29.9             0.3               2             9.4               2             0.5  ..............  ..............
USS THEODORE ROOSEVELT..........................          CVN 71            30.0  ..............               1             9.0               2             0.6  ..............  ..............
USS ABRAHAM LINCOLN.............................          CVN 72            30.0  ..............  ..............  ..............  ..............             0.6  ..............  ..............
USS GEORGE WASHINGTON...........................          CVN 73            30.0  ..............  ..............  ..............  ..............             0.6  ..............  ..............
USS JOHN C. STENNIS.............................          CVN 74            30.0  ..............  ..............  ..............  ..............             0.6  ..............  ..............
USS HARRY S TRUMAN..............................          CVN 75           30.02  ..............               1  ..............               1            0.56  ..............  ..............
USS TARAWA......................................           LHA 1            10.0            ----               1            ----               1             2.4            71.0            ----
USS SAIPAN......................................           LHA 2            10.1            ----               1            ----               1             2.8            72.1            ----
USS BELLEAU WOOD................................           LHA 3            10.0            ----            ----            ----            ----             2.7            72.4            ----
USS NASSAU......................................           LHA 4            10.0            ----            ----            ----            ----             2.7            72.4            ----
USS PELELIU.....................................           LHA 5            10.0               4            ----            ----            ----             2.6            72.4            ----
USS WASP........................................           LHD 1             9.0            ----            ----            ----            ----             2.8            89.0            ----
USS ESSEX.......................................           LHD 2  ..............  ..............  ..............  ..............  ..............             3.1            91.1            ----
USS KEARSARGE...................................           LHD 3             8.9  ..............  ..............  ..............  ..............             3.0              91            ----
USS BOXER.......................................           LHD 4  ..............  ..............  ..............  ..............  ..............             3.0            90.9            ----
USS BATAAN......................................           LHD 5  ..............  ..............  ..............  ..............  ..............             2.9            98.6            ----
USS BONHOMME RICHARD............................           LHD 6             9.0  ..............  ..............  ..............  ..............             2.9            89.6            ----
USS GUADALCANAL.................................           LPH 7            10.6            ----               1             2.5               2             0.2            61.0            ----
USS GUAM........................................           LPH 9            10.6            ----               1             2.0               2             0.2            48.8            ----
USS TRIPOLI.....................................          LPH 10            10.6            ----               1             2.2               2             0.4            47.5            ----
USS NEW ORLEANS.................................          LPH 11            10.6            ----               1             2.2               2             0.5            50.0            ----
USS INCHON......................................          LPH 12            10.6            ----               1             2.2               2             0.4            47.5            ----
LCAC (class)....................................  LCAC 1 through
                                                        LCAC 100            5.26
                                                                      (Perm.)\2\  ..............  ..............  ..............  ..............  ..............  ..............          \3\1.5

[[Page 163]]

LCAC (class)....................................  LCAC 1 through
                                                        LCAC 100            3.98
                                                                      (Temp.)\4\  ..............  ..............  ..............  ..............  ..............  ..............          \3\1.5
SLWT (class)....................................          SLWT 1            1.62  ..............  ..............  ..............  ..............  ..............  ..............         \5\3.93
SLWT (class)....................................          SLWT 2            1.62  ..............  ..............  ..............  ..............  ..............  ..............         \5\3.93
SLWT (class)....................................          SLWT 3            1.62  ..............  ..............  ..............  ..............  ..............  ..............         \5\3.93
SLWT (class)....................................          SLWT-6            1.62  ..............  ..............  ..............  ..............  ..............  ..............            3.93
SLWT (class)....................................  SLWT-8 through
                                                         SLWT-19            1.62  ..............  ..............  ..............  ..............  ..............  ..............            3.93
SLWT (class)....................................         SLWT-22
                                                   through SLWT-
                                                              24            1.62  ..............  ..............  ..............  ..............  ..............  ..............            3.93
SLWT (class)....................................         SLWT-26
                                                   through SLWT-
                                                              65            1.62  ..............  ..............  ..............  ..............  ..............  ..............            3.93
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ On AALC JEFF(B) the masthead light is located 4.01 meters athwartship to port of centerline, at frame five, 4.79 meters above the main deck.
\2\ The permanent masthead light is 5.26 meters athwartship to port of centerline, at frame 3, 5.49 meters above the main deck.
\3\ The sidelights are on top of the port and starboard deckhouses 3.28 meters above the hull.
\4\ The temporary masthead light is 3.98 meters athwartship to starboard of centerline 4.06 meters above the main deck.
\5\ Port sidelight only.


                                                                       Table Three
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                               Forward
                                                                                                   Side lights     Stern        anchor     Anchor lights
                                                              Masthead   Side lights  Stern light    distance      light,       light,     relationship
                                                             lights arc     arc of       arc of     inboard of    distance      height     of aft light
               Vessel                          No.               of      visibility;  visibility;     ship's     forward of   above hull    to forward
                                                            visibility;   rule 21(b)   rule 21(c)    sides in     stern in    in meters;     light in
                                                             rule 21(a)                            meters 3(b)    meters;     2(K) annex    meters 2(K)
                                                                                                     annex 1     rule 21(c)       1           annex 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
USS CYCLONE.........................  PC 1                  ...........  ...........  ...........  ...........       1 25.5          3.0             1.0
USS TEMPEST.........................  PC 2                  ...........  ...........  ...........  ...........     \1\ 25.5          3.0       1.1 below
USS HURRICANE.......................  PC 3                  ...........  ...........  ...........  ...........     \1\ 25.5          3.0       1.1 below
USS MONSOON.........................  PC 4                  ...........  ...........  ...........  ...........     \1\ 25.5          3.0       1.1 below
USS TYPHOON.........................  PC 5                  ...........  ...........  ...........  ...........     \1\ 25.5          3.0       1.1 below
USS SIROCCO.........................  PC 6                  ...........  ...........  ...........  ...........     \1\ 25.5          3.0       1.1 below
USS SQUALL..........................  PC 7                                                                         \1\ 25.5          3.0             1.0
USS ZEPHYR..........................  PC 8                                                                         \1\ 25.5          3.0             1.0
USS CHINOOK.........................  PC 9                                                                         \1\ 25.5          3.0             1.0
USS FIREBOLT........................  PC 10                                                                        \1\ 25.5          3.0             1.0
USS WHIRLWIND.......................  PC 11                                                                        \1\ 25.5          3.0             1.0
USS THUNDERBOLT.....................  PC 12                                                                        \1\ 25.5          3.0             1.0
USS SHAMAL..........................  PC 13                                                                        \1\ 25.5          3.0             1.0
USS DOLPHIN.........................  AGSS 555               227.5\1/2\     119\1/2\     191\1/2\          2.1         10.8          1.8       0.5 above
NR-1................................  NR 1                   238.5\1/2\     114 deg.   136.5 deg.          1.5          4.1          2.1
USS SEAWOLF.........................  SSN 21                   225 deg.   111.5 deg.     205 deg.          5.1         10.7          2.8       1.8 below
USS GATO............................  SSN 615                  232 deg.     114 deg.     252 deg.          4.1         37.8          3.1       1.5 below
USS WHALE...........................  SSN 638                  226 deg.     113 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS TAUTOG..........................  SSN 639                  226 deg.     113 deg.     252 deg.          3.8          5.2          3.4       1.4 below

[[Page 164]]

USS GRAYLING........................  SSN 646                  228 deg.     113 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS POGY............................  SSN 647                  226 deg.     114 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS ASPRO...........................  SSN 648                  228 deg.     113 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS SUNFISH.........................  SSN 649                  226 deg.     114 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS PARGO...........................  SSN 650                  228 deg.     114 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS PUFFER..........................  SSN 652                  228 deg.     113 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS SANDLANCE.......................  SSN 660                  226 deg.     113 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS GURNARD.........................  SSN 662                  232 deg.     116 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS HAMMERHEAD......................  SSN 663                  228 deg.     114 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS HAWKBILL........................  SSN 666                  232 deg.     113 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS BERGALL.........................  SSN 667                  232 deg.     114 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS SPADEFISH.......................  SSN 668                  234 deg.     113 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS SEAHORSE........................  SSN 669                  228 deg.     113 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS FINBACK.........................  SSN 670                  234 deg.     114 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS NARWHAL.........................  SSN 671                  228 deg.     113 deg.     252 deg.          3.8          5.2          2.0       1.4 below
USS PINTADO.........................  SSN 672                  234 deg.     120 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS FLYING FISH.....................  SSN 673                  232 deg.     114 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS TREPANG.........................  SSN 674                  228 deg.     113 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS BLUEFISH........................  SSN 675                  234 deg.     113 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS BILLFISH........................  SSN 676                  234 deg.     114 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS DRUM............................  SSN 677                  234 deg.     113 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS ARCHERFISH......................  SSN 678                  232 deg.     113 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS WILLIAM H. BATES................  SSN 680                  232 deg.     114 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS BATFISH.........................  SSN 681                  234 deg.     115 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS TUNNY...........................  SSN 682                  234 deg.     114 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS PARCHE..........................  SSN 683                  232 deg.   112.5 deg.     209 deg.          4.1          6.8          2.2       0.2 below
USS CAVALLA.........................  SSN 684                  234 deg.     113 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS L. MENDEL RIVERS................  SSN 686                  236 deg.     113 deg.     252 deg.          3.8          5.2          3.4       1.4 below
USS RICHARD B. RUSSELL..............  SSN 687                  236 deg.     114 deg.     252 deg.          3.8          5.2          3.4       1.3 below
USS LOS ANGELES.....................  SSN 698                  236 deg.     115 deg.     252 deg.          4.2          6.1          2.0       1.6 below
USS PHILADELPHIA....................  SSN 690                  238 deg.     115 deg.     252 deg.          4.2          6.1          2.0       1.6 below
USS MEMPHIS.........................  SSN 691                  236 deg.     115 deg.     252 deg.          4.3          6.1          2.0       1.6 below
USS OMAHA...........................  SSN 692                  236 deg.     115 deg.     252 deg.          4.2          6.1          2.0       1.6 below
USS CINCINNATI......................  SSN 693               ...........  ...........     209 deg.          4.3          6.1          3.4       1.6 below
USS GROTON..........................  SSN 694               226 deg.55'  118 deg.37'     219 deg.          4.3          6.6          3.5       1.7 below
USS BIRMINGHAM......................  SSN 695               ...........  ...........     209 deg.          4.3          6.1          3.4       1.7 below
USS NEW YORK CITY...................  SSN 696               ...........  ...........     209 deg.          4.3          6.1          3.4       1.7 below
USS INDIANAPOLIS....................  SSN 697               ...........  ...........     209 deg.          4.3          6.1          3.4       1.7 below
USS BREMERTON.......................  SSN 698               ...........  ...........     209 deg.          4.2          6.1          3.5       1.7 below
USS JACKSONVILLE....................  SSN 699               ...........  ...........     211 deg.          4.2          6.1          3.5       1.7 below
USS DALLAS..........................  SSN 700               ...........  ...........  ...........          4.1          6.5          3.4       1.7 below

[[Page 165]]

USS LA JOLLA........................  SSN 701               ...........  ...........  ...........          4.2          6.1          3.5       1.7 below
USS PHOENIX.........................  SSN 702               ...........  ...........  ...........          4.2          6.1          3.5       1.7 below
USS BOSTON..........................  SSN 703               ...........  ...........  ...........          4.2          6.2          3.8       1.7 below
USS BALTIMORE.......................  SSN 704               ...........  ...........     209 deg.          4.2          6.1          3.5       1.7 below
USS CITY OF CORPUS CHRISTI..........  SSN 705               ...........  ...........     209 deg.          4.2          6.1          3.5       1.7 below
USS ALBUQUERQUE.....................  SSN 706               ...........     114 deg.  ...........          4.2          6.1          3.5       1.7 below
USS PORTSMOUTH......................  SSN 707               ...........  ...........     209 deg.          4.2          6.1          3.5       1.7 below
USS MINNEAPOLIS-ST. PAUL............  SSN 708               ...........  ...........     209 deg.          4.2          6.2          3.5       1.7 below
USS HYMAN G. RICKOVER...............  SSN 709               ...........  ...........     209 deg.          4.2          6.1          3.4       1.7 below
USS AUGUSTA.........................  SSN 710               ...........  ...........     209 deg.          4.2          6.1          3.4       1.7 below
USS SAN FRANCISCO...................  SSN 711               ...........  ...........  ...........          4.1          6.5          3.4       1.7 below
USS ATLANTA.........................  SSN 712               ...........  ...........  ...........          4.3          6.1          3.4       1.6 below
USS HOUSTON.........................  SSN 713               ...........  ...........     209 deg.          4.3          6.1          3.4       1.7 below
USS NORFOLK.........................  SSN 714               ...........  ...........     209 deg.          4.3          6.1          3.4       1.7 below
USS BUFFALO.........................  SSN 715               ...........  ...........     209 deg.          4.2          6.1          3.5       1.7 below
USS SALT LAKE CITY..................  SSN 716               ...........  ...........     209 deg.          4.2          6.1          3.5       1.7 below
USS OLYMPIA.........................  SSN 717               ...........  ...........     209 deg.          4.2          6.1          3.4       1.7 below
USS HONOLULU........................  SSN 718               ...........  ...........     209 deg.          4.2          6.1          3.4       1.7 below
USS PROVIDENCE......................  SSN 719               ...........  ...........     209 deg.          4.2          6.1          3.4       1.7 below
USS PITTSBURGH......................  SSN 720               ...........  ...........     209 deg.          4.2          6.1          3.4       1.7 below
USS CHICAGO.........................  SSN 721               ...........  ...........     209 deg.          4.3          6.1          3.4       1.7 below
USS KEY WEST........................  SSN 722               ...........  ...........     209 deg.          4.2          6.1          3.4       1.7 below
USS OKLAHOMA CITY...................  SSN 723               ...........  ...........     209 deg.          4.3          6.1          3.4       1.7 below
USS LOUISVILLE......................  SSN 724               ...........     113 deg.     209 deg.          4.2          6.1          3.5       1.7 below
USS HELENA..........................  SSN 725               ...........  ...........     207 deg.          4.2          6.2          3.5       1.7 below
USS NEWPORT NEWS....................  SSN 750               ...........  ...........     209 deg.          4.3          6.1          3.4       1.7 below
USS SAN JUAN........................  SSN 751                  229 deg.     113 deg.     208 deg.          4.2          6.1          3.5       1.7 below
USS PASADENA........................  SSN 752                  255 deg.   112.5 deg.     206 deg.          4.2          6.1          3.5       1.7 below
USS ALBANY..........................  SSN 753                  225 deg.   112.5 deg.     209 deg.          4.3          6.1          3.4       1.7 below
USS TOPEKA..........................  SSN 754               ...........  ...........     206 deg.          4.2          6.2          3.5       1.7 below
USS MIAMI...........................  SSN 755               ...........  ...........     206 deg.          4.2          6.2          3.5       1.7 below
USS SCRANTON........................  SSN 756               ...........  ...........     209 deg.          4.3          6.1          3.4       1.7 below
USS ALEXANDRIA......................  SSN 757               ...........  ...........     205 deg.          4.2          6.2          3.5       1.7 below
USS ASHEVILLE.......................  SSN 758               ...........  ...........     209 deg.          4.3          6.1          3.4       1.7 below
USS JEFFERSON CITY..................  SSN 759               ...........  ...........     209 deg.          4.3          6.1          3.4       1.7 below
USS ANNAPOLIS.......................  SSN 760               ...........  ...........     205 deg.          4.2          6.2          3.5       1.7 below
USS SPRINGFIELD.....................  SSN 761               ...........  ...........     205 deg.          4.2          6.2          3.5       1.7 below
USS COLUMBUS........................  SSN 762               ...........  ...........     205 deg.          4.2          6.2          3.5       1.7 below
USS SANTA FE........................  SSN 763               ...........  ...........     205 deg.          4.2          6.2          3.5       1.7 below
USS BOISE...........................  SSN 764               ...........  ...........     209 deg.          4.3          6.1          3.4       1.7 below
USS MONTPELIER......................  SSN 765               ...........  ...........     209 deg.          4.3          6.1          3.4       1.7 below
USS CHARLOTTE.......................  SSN 766               ...........  ...........     209 deg.          4.3          6.1          3.4       1.7 below
USS HAMPTON.........................  SSN 767               ...........  ...........     209 deg.          4.3          6.1          3.4       1.7 below
USS HARTFORD........................  SSN 768               ...........  ...........     205 deg.          4.2          6.2          3.5       1.7 below
USS TOLEDO..........................  SSN 769               ...........  ...........     209 deg.          4.4          6.1          3.4       1.7 below
USS TUCSON..........................  SSN 770               ...........  ...........     209 deg.          4.4          6.1          3.4       1.7 below
USS COLUMBIA........................  SSN 771               ...........  ...........     205 deg.          4.2          6.2          3.5       1.7 below
USS GREENEVILLE.....................  SSN 772               ...........  ...........     209 deg.          4.4          6.1          3.4       1.7 below
USS CHEYENNE........................  SSN 773               ...........  ...........     209 deg.          4.4          6.1          3.4       1.7 below
USS DANIEL WEBSTER..................  SSBN 626                 236 deg.     114 deg.     252 deg.          3.8          7.3          2.0       1.0 above

[[Page 166]]

USS STONEWALL JACKSON...............  SSBN 634                 236 deg.     114 deg.     252 deg.          3.8          7.3          2.0       1.4 above
USS SIMON BOLIVAR...................  SSBN 641                 234 deg.     115 deg.     252 deg.          3.8          7.6          2.1       0.8 below
USS KAMEHAMEHA......................  SSBN 642                 236 deg.     117 deg.     252 deg.          3.8          7.6          2.1     same height
USS JAMES K. POLK...................  SSBN 645                 230 deg.     114 deg.     252 deg.          3.8          7.6          2.1       0.9 below
USS MARIANO G. VALLEJO..............  SSBN 658                 234 deg.     116 deg.     252 deg.          3.8          7.6          2.1       1.1 below
USS OHIO............................  SSBN 726                 225 deg.   112.5 deg.     209 deg.          5.3          9.0          3.8       4.0 below
USS MICHIGAN........................  SSBN 727                 225 deg.   112.5 deg.     209 deg.          5.3          9.0          3.8       4.0 below
USS FLORIDA.........................  SSBN 728              ...........  ...........     209 deg.          5.3          9.0          3.8       4.0 below
USS GEORGIA.........................  SSBN 729                 225 deg.   112.5 deg.     209 deg.          5.3          9.0          3.8       4.0 below
USS HENRY M. JACKSON................  SSBN 730              ...........  ...........     209 deg.          5.3          9.0          3.8       4.0 below
USS ALABAMA.........................  SSBN 731              ...........  ...........     209 deg.          5.3          9.0          3.8       4.0 below
USS ALASKA..........................  SSBN 732              ...........  ...........     209 deg.          5.3          9.0          3.8       4.0 below
USS NEVADA..........................  SSBN 733              ...........  ...........     209 deg.          5.3          9.0          3.8       4.0 below
USS TENNESSEE.......................  SSBN 734              ...........  ...........     209 deg.          5.3          9.0          3.8       4.0 below
USS PENNSYLVANIA....................  SSBN 735              ...........  ...........   211.5 deg.          5.3          9.0          3.8       4.0 below
USS WEST VIRGINIA...................  SSBN 736              ...........  ...........   211.5 deg.          5.3          9.0          3.8       4.0 below
USS KENTUCKY........................  SSBN 737              ...........  ...........     209 deg.          5.3          9.0          3.8       4.0 below
USS MARYLAND........................  SSBN 738              ...........  ...........     209 deg.          5.3          9.0          3.8       4.0 below
USS NEBRASKA........................  SSBN 739              ...........  ...........     209 deg.          5.3          9.0          3.8       4.0 below
USS RHODE ISLAND....................  SSBN 740              ...........  ...........     209 deg.          5.3          9.0          3.8       4.0 below
USS MAINE...........................  SSBN 741              ...........  ...........     209 deg.          5.3          9.0          3.8       4.0 below
USS WYOMING.........................  SSBN 742              ...........  ...........     209 deg.          5.3          9.0          3.8       4.0 below
USS LOUISIANA.......................  SSBN 743              ...........  ...........     209 deg.          5.3          9.0          3.8       4.0 below
YTB-752.............................  YTB 752               ...........  ...........  ...........         2.69        13.71  ...........  ..............
OSHKOSH.............................  YTB 757               ...........  ...........  ...........         2.70        13.30  ...........  ..............
YTB 758.............................  YTB 758               ...........  ...........  ...........         2.66        15.97  ...........  ..............
YTB (class).........................  YTB 769               ...........  ...........  ...........         2.77        14.02  ...........  ..............
KEOKUK..............................  YTB 771               ...........  ...........  ...........         3.11        13.00  ...........  ..............
SAUGUS..............................  YTB 780               ...........  ...........  ...........         2.79        13.78  ...........  ..............
YTB 781.............................  YTB 781               ...........  ...........  ...........         2.56        13.41  ...........  ..............
YTB 785.............................  YTB 785               ...........  ...........  ...........         2.94        14.02  ...........  ..............
WAPATO..............................  YTB 788               ...........  ...........  ...........         3.10        12.88  ...........  ..............
YTB (class).........................  YTB 789               ...........  ...........  ...........         2.50        14.99  ...........  ..............
NATCHITOCHES........................  YTB 799               ...........  ...........  ...........         3.00        14.05  ...........  ..............
PALATKA.............................  YTB 801               ...........  ...........  ...........         2.80        13.00  ...........  ..............
YTB 806.............................  YTB 806               ...........  ...........  ...........         2.79        10.97  ...........  ..............
HOUMA...............................  YTB 811               ...........  ...........  ...........         3.20        14.05  ...........  ..............
YTB 812.............................  YTB 812               ...........  ...........  ...........         3.03        14.02  ...........  ..............
YTB 813.............................  YTB 813               ...........  ...........  ...........         2.63         19.2  ...........  ..............
YTB 820.............................  YTB 820               ...........  ...........  ...........         3.08        14.20  ...........  ..............
YTB 826.............................  YTB 826               ...........  ...........  ...........         2.82        14.32  ...........  ..............

[[Page 167]]

SHABONEE............................  YTB 833               ...........  ...........  ...........         2.77        13.34  ...........  ..............
YTB 835.............................  YTB 835               ...........  ...........  ...........         3.00        14.02  ...........  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Only when towing.


[[Page 168]]

                               Table Four
    1. Ships other than aircraft carrier types (CV, CVN, LHA, LHD, and 
LPH) may not simultaneously exhibit the masthead lights required by Rule 
27(b)(iii) and the lights required by Rule 27(b)(i) for vessels 
restricted in their ability to maneuver when such simultaneous 
exhibition will present a hazard to their own safe operations. In those 
instances, the lights required by Rule 27(b)(i) will be exhibited. Ships 
conducting flight operations also may not exhibit the stern light 
required by Rule 27(b)(iii).
    2. To provide all-round visibility, the lights required by Rules 27 
(a) and (b) will consist of two lights, one light port and one light 
starboard on the mast or superstructure at each location in the vertical 
array.
    3. The second masthead light required by Rule 23(a)(ii) and the 
lights and shapes required by Rules 24, 27, and 30(d)(i) are not 
displayed by submarines.
    4. On mine warfare type ships the masthead lights will not always be 
above and clear of the minesweeping lights, as is required by Annex I, 
Section 2(f). The positions of the masthead lights with relation to the 
minesweeping lights are as follows:

----------------------------------------------------------------------------------------------------------------
                                                          Relationship of    Relationship of    Relationship of
                                                         forward masthead     after masthead     after masthead
             Vessel                     MSO No.            light to all       light to lower     light to upper
                                                           minesweeping        minesweeping       minesweeping
                                                              lights              lights             lights
----------------------------------------------------------------------------------------------------------------
USS IMPLICIT...................         455             below.............  lower than.......  below
USS CONQUEST...................         488             below.............  lower than.......  below
USS GALLANT....................         489             below.............  lower than.......  below
USS PLEDGE.....................         492             below.............  lower than.......  below
MSB............................          15             below.............  ----.............  ----
MSB............................          16             do................  ----.............  ----
MSB............................          25             do................  ----.............  ----
MSB............................          28             do................  ----.............  ----
MSB............................          29             do................  ----.............  ----
MSB............................          41             do................  ----.............  ----
MSB............................          51             do................  ----.............  ----
MSB............................          52             do................  ----.............  ----
----------------------------------------------------------------------------------------------------------------

    5. The masthead light required by Rule 23(a)(i) is not located in 
the forepart of the vessel on the CSP Class and SLWT Class.

    6. The arc of visibility of the after masthead light required by 
Rule 23(a)(ii) and Annex I, section 2(f) may be obstructed from right 
ahead on certain naval ships as follows:

USS KANSAS CITY (AOR 3).....................................  1 deg. 13'
USS SAVANNAH (AOR 4)........................................  1 deg. 13'
USS WABASH (AOR 5)..........................................  1 deg. 13'
USS KALAMAZOO (AOR 6).......................................  1 deg. 13'
USS HUNLEY (AS 31)..........................................  2 deg. 10'
USS HOLLAND (AS 32).........................................  3 deg. 46'
USS KIDD (DDG 993)..........................................      0 deg.
                                                                   28.8'
USS CALLAGHAN (DDG 994).....................................      0 deg.
                                                                   28.8'
USS SCOTT (DDG 995).........................................      0 deg.
                                                                   28.8'
USS CHANDLER (DDG 996)......................................      0 deg.
                                                                   28.8'

    7. On the following ships the arc of visibility of the forward 
masthead light required by Rule 23(a)(i) may be obstructed through 
1.6 deg. arc of visibility at the points 021 deg. and 339 deg. relative 
to the ship's head.

USS OLIVER HAZARD PERRY.....................  FFG 7
USS MCINERNEY...............................  FFG 8
USS WADSWORTH...............................  FFG 9
USS DUNCAN..................................  FFG 10
USS CLARK...................................  FFG 11
USS GEORGE PHILIP...........................  FFG 12
USS SAMUEL ELIOT MORISON....................  FFG 13
USS SIDES...................................  FFG 14
USS ESTOCIN.................................  FFG 15
USS CLIFTON SPRAGUE.........................  FFG 16
USS JOHN A. MOORE...........................  FFG 19
USS ANTRIM..................................  FFG 20
USS FLATLEY.................................  FFG 21
USS FAHRION.................................  FFG 22
USS LEWIS B. PULLER.........................  FFG 23
USS JACK WILLIAMS...........................  FFG 24
USS COPELAND................................  FFG 25
USS GALLERY.................................  FFG 26
USS MAHLON S. TISDALE.......................  FFG 27
USS BOONE...................................  FFG 28
USS STEPHEN W. GROVES.......................  FFG 29
USS REID....................................  FFG 30
USS STARK...................................  FFG 31
USS JOHN L. HALL............................  FFG 32
USS JARRETT.................................  FFG 33
USS AUBREY FITCH............................  FFG 34
USS UNDERWOOD...............................  FFG 36
USS CROMMELIN...............................  FFG 37
USS CURTS...................................  FFG 38
USS DOYLE...................................  FFG 39
USS HALYBURTON..............................  FFG 40
USS MCCLUSKY................................  FFG 41
USS KLAKRING................................  FFG 42
USS THACH...................................  FFG 43
USS DEWERT..................................  FFG 45
USS RENTZ...................................  FFG 46
USS NICHOLAS................................  FFG 47
USS VANDERGRIFT.............................  FFG 48

[[Page 169]]

USS ROBERT G. BRADLEY.......................  FFG 49
USS TAYLOR..................................  FFG 50
USS GARY....................................  FFG 51
USS CARR....................................  FFG 52
USS HAWES...................................  FFG 53
USS FORD....................................  FFG 54
USS ELROD...................................  FFG 55
USS SIMPSON.................................  FFG 56
USS REUBEN JAMES............................  FFG 57
USS SAMUEL B. ROBERTS.......................  FFG 58
USS KAUFFMAN................................  FFG 59
USS RODNEY M. DAVIS.........................  FFG 60
USS INGRAHAM................................  FFG 61

    8. Sidelights on the following ships do not comply with Annex 1, 
Section 3(b):

------------------------------------------------------------------------
                                                             Distance of
                                                              sidelights
                                                              forward of
                 Vessel                        Number          masthead
                                                               light in
                                                                meters
------------------------------------------------------------------------
USS OLIVER HAZARD PERRY................  FFG 7.............         2.75
USS MCINERNEY..........................  FFG 8.............         2.75
USS WADSWORTH..........................  FFG 9.............         2.75
USS DUNCAN.............................  FFG 10............         2.75
USS CLARK..............................  FFG 11............         2.75
USS GEORGE PHILIP......................  FFG 12............         2.75
USS SAMUEL ELIOT MORISON...............  FFG 13............         2.75
USS SIDES..............................  FFG 14............         2.75
USS ESTOCIN............................  FFG 15............         2.75
USS CLIFTON SPRAGUE....................  FFG 16............         2.75
USS JOHN A. MOORE......................  FFG 19............         2.75
USS ANTRIM.............................  FFG 20............         2.75
USS FLATLEY............................  FFG 21............         2.75
USS FAHRION............................  FFG 22............         2.69
USS LEWIS B. PULLER....................  FFG 23............         2.75
USS JACK WILLIAMS......................  FFG 24............         2.75
USS COPELAND...........................  FFG 25............         2.75
USS GALLERY............................  FFG 26............         2.75
USS MAHLON S. TISDALE..................  FFG 27............         2.75
USS BOONE..............................  FFG 28............         2.75
USS STEPHEN W. GROVES..................  FFG 29............         2.75
USS REID...............................  FFG 30............         2.75
USS STARK..............................  FFG 31............         2.75
USS JOHN L. HALL.......................  FFG 32............         2.75
USS JARRETT............................  FFG 33............         2.69
USS AUBREY FITCH.......................  FFG 34............         2.75
USS UNDERWOOD..........................  FFG 36............         2.75
USS CROMMELIN..........................  FFG 37............         2.75
USS CURTS..............................  FFG 38............         2.75
USS DOYLE..............................  FFG 39............         2.75
USS HALYBURTON.........................  FFG 40............         2.75
USS MCCLUSKY...........................  FFG 41............         2.75
USS KLAKRING...........................  FFG 42............         2.75
USS THACH..............................  FFG 43............         2.75
USS DEWERT.............................  FFG 45............         2.75
USS RENTZ..............................  FFG 46............         2.75
USS NICHOLAS...........................  FFG 47............         2.75
USS VANDEGRIFT.........................  FFG 48............         2.75
USS ROBERT G. BRADLEY..................  FFG 49............         2.75
USS TAYLOR.............................  FFG 50............         2.75
USS GARY...............................  FFG 51............         2.75
USS CARR...............................  FFG 52............         2.75
USS HAWES..............................  FFG 53............         2.75
USS FORD...............................  FFG 54............         2.75
USS ELROD..............................  FFG 55............         2.75
USS SIMPSON............................  FFG 56............         2.75
USS REUBEN JAMES.......................  FFG 57............         2.75
USS SAMUEL B. ROBERTS..................  FFG 58............         2.75
USS KAUFFMAN...........................  FFG 59............         2.75
USS RODNEY M. DAVIS....................  FFG 60............         2.75
USS INGRAHAM...........................  FFG 61............         2.19
------------------------------------------------------------------------

    9. On LCAC-class amphibious vessels, full compliance with Rules 
21(a), 21(b), and 22(b), and Annex I, section 2(a)(i), 72 COLREGS, 
cannot be obtained. Tables One and Two of section 706.2 provide the 
dimensions of closest possible compliance of LCAC-class amphibious 
vessels with the aforementioned rules. The following paragraph details 
the specific dimensions of closest possible compliance and the basis for 
certification by the Secretary of the Navy that full compliance with the 
aforementioned rules is not obtainable.
    In LCAC-class amphibious vessels, there are permanent and temporary 
masts. The permanent masthead light is located 5.26 meters athwartship 
to port of centerline 5.49 meters above the hull. The temporary masthead 
light is located 3.98 meters athwartship to starboard of centerline 4.06 
meters above the hull. The temporary masthead light is displayed in lieu 
of the permanent masthead light only when LCAC-class amphibious vessels 
are operating with amphibious assault vessels. When operating in this 
mode, the sidelights are displayed at a height greater than three-
quarters of the height of the temporary masthead light. The sidelights 
are located on top of the port and starboard deckhouses to permit the 
required unobstructed arcs of visibility and are 3.28 meters above the 
hull, resulting in a vertical separation between those lights and the 
temporary masthead light of 0.78 meters. Because of the minimal vertical 
separation between the sidelights and the temporary masthead light and 
the luminous intensity of the temporary light, the sidelights on these 
vessels may not be distinguishable by the naked eye at the 2-mile range 
required by Rule 22(b).
    10. On the following ships the arc of visibility of the after 
masthead light required by Rule 23(a)(ii) may be obstructed through 
0 deg.48.6' arc of visibility at the point 349 deg. relative to the 
ship's head:

    USS KIDD (DDG 993)
    USS CALLAGHAN (DDG 994)
    USS SCOTT (DDG 995)
    USS CHANDLER (DDG 996)

[[Page 170]]

    11. On USS DOLPHIN (AGSS 555) the masthead light will be visible at 
a distance of 4.3 nautical miles and the sidelights will be visible at a 
distance of 2 nautical miles.
    12. [Reserved]
    13. [Reserved]
    14. The following harbor tugs are equipped with a hinged mast. When 
the mast is in the lowered position as during a towing alongside or 
pushing operation, the two masthead lights required by Rule 24(c), and 
the all around lights required by Rule 27(b)(i) will not be shown; 
however, an auxiliary masthead light not meeting with Annex I, section 
2(a)(i) height requirement will be exhibited.

------------------------------------------------------------------------
                                                      Distance in meters
                                                       of aux. masthead
                                                     light below minimum
                     Vessel No.                        required height.
                                                        Annex I, sec.
                                                           2(a)(i)
------------------------------------------------------------------------
YTB 752............................................            3.97
YTB 757............................................            3.40
YTB 758............................................            3.97
YTB 769............................................            3.86
YTB 771............................................            3.89
YTB 780............................................            3.53
YTB 781............................................            3.66
YTB 785............................................            4.47
YTB 788............................................            3.76
YTB 789............................................            3.30
YTB 799............................................            4.07
YTB 801............................................            3.89
YTB 806............................................            3.58
YTB 811............................................            4.07
YTB 812............................................            4.04
YTB 813............................................            6.15
YTB 820............................................            3.30
YTB 826............................................            3.89
YTB 833............................................            3.68
YTB 835............................................            4.04
------------------------------------------------------------------------

    15. Task (restricted maneuverability) lights on the following ships 
do not comply with Annex I, section 3(c).

------------------------------------------------------------------------
                                                            Horizontal
                                                           distance from
                                                           the fore and
                                                          aft centerline
                Vessel                       Number        of the vessel
                                                              in the
                                                            athwartship
                                                             direction
------------------------------------------------------------------------
USS ARLEIGH BURKE....................  DDG 51...........     1.85 meters
USS BARRY............................  DDG 52...........     1.94 meters
USS JOHN PAUL JONES..................  DDG 53...........     1.89 meters
USS CURTIS WILBUR....................  DDG 54...........     1.90 meters
USS STOUT............................  DDG 55...........     1.90 meters
USS JOHN S. MCCAIN...................  DDG 56...........     1.88 meters
USS MITSCHER.........................  DDG 57...........     1.93 meters
USS LABOON...........................  DDG 58...........     1.90 meters
USS RUSSELL..........................  DDG 59...........     1.91 meters
USS PAUL HAMILTON....................  DDG 60...........     1.88 meters
USS RAMAGE...........................  DDG 61...........     1.91 meters
USS FITZGERALD.......................  DDG 62...........     1.90 meters
USS STETHEM..........................  DDG 63...........     1.91 meters
USS CARNEY...........................  DDG 64...........     1.90 meters
USS BENFOLD..........................  DDG 65...........     1.90 meters
USS GONZALES.........................  DDG 66...........     1.90 meters
USS COLE.............................  DDG 67...........     1.90 meters
USS THE SULLIVANS....................  DDG 68...........     1.87 meters
USS MILIUS...........................  DDG 69...........     1.93 meters
USS HOPPER...........................  DDG 70...........     1.83 meters
USS ROSS.............................  DDG 71...........     1.96 meters
USS MAHAN............................  DDG 72...........     1.90 meters
USS DECATUR..........................  DDG 73...........     1.87 meters
USS MCFAUL...........................  DDG 74...........     1.91 meters
USS DONALD COOK......................  DDG 75...........     1.90 meters
------------------------------------------------------------------------

    16. On the following ships, the arc of visibility of the forward 
masthead light, required by rule 21(a), may be obstructed at the 
following angles relative to ship's heading:

------------------------------------------------------------------------
                                                      Obstruction angle
               Vessel                    Number        relative ship's
                                                           headings
------------------------------------------------------------------------
USS ARLEIGH BURKE..................  DDG 51........     100.00 deg. thru
                                                             112.50 deg.
USS BARRY..........................  DDG 52........     101.16 deg. thru
                                                             112.50 deg.
USS JOHN PAUL JONES................  DDG 53........     103.29 deg. thru
                                                             112.50 deg.
USS CURTIS WILBUR..................  DDG 54........     102.61 deg. thru
                                                             112.50 deg.
USS STOUT..........................  DDG 55........     102.00 deg. thru
                                                             112.50 deg.
USS JOHN S. MCCAIN.................  DDG 56........     102.53 deg. thru
                                                             112.50 deg.
USS MITSCHER.......................  DDG 57........     102.27 deg. thru
                                                             112.50 deg.
USS LABOON.........................  DDG 58........     102.80 deg. thru
                                                             112.50 deg.
USS RUSSELL........................  DDG 59........      92.62 deg. thru
                                                             109.38 deg.
USS PAUL HAMILTON..................  DDG 60........     101.35 deg. thru
                                                             112.50 deg.
USS RAMAGE.........................  DDG 61........     103.66 deg. thru
                                                             112.50 deg.
USS FITZGERALD.....................  DDG 62........     102.32 deg. thru
                                                             112.50 deg.
USS STETHEM........................  DDG 63........     102.51 deg. thru
                                                             112.50 deg.
USS CARNEY.........................  DDG 64........     105.06 deg. thru
                                                             112.50 deg.
USS BENFOLD........................  DDG 65........     101.86 deg. thru
                                                             112.50 deg.
USS GONZALES.......................  DDG 66........     101.69 deg. thru
                                                             112.50 deg.
USS COLE...........................  DDG 67........     101.83 deg. thru
                                                             112.50 deg.
USS THE SULLIVANS..................  DDG 68........     103.06 deg. thru
                                                             112.50 deg.
USS MILIUS.........................  DDG 69........     102.30 deg. thru
                                                             112.50 deg.
USS HOPPER.........................  DDG 70........     102.25 deg. thru
                                                             112.50 deg.
USS ROSS...........................  DDG 71........     104.05 deg. thru
                                                             112.50 deg.
USS MAHAN..........................  DDG 72........     102.11 deg. thru
                                                             112.50 deg.
USS DECATUR........................  DDG 73........     103.00 deg. thru
                                                             112.50 deg.
USS MCFAUL.........................  DDG 74........     102.00 deg. thru
                                                            112.50E deg.
USS DONALD COOK....................  DDG 75........     102.00 deg. thru
                                                             112.50 deg.
------------------------------------------------------------------------


[[Page 171]]

    17. The second masthead light required by Rule 23(a)(ii) will not be 
displayed on the PC 1 Class.
    18. On the following mine warfare type ships, the arc of visibility 
of the lower all-round minesweep lights required by Rule 27(f), may be 
obstructed through the following angles relative to the ship's heading:

------------------------------------------------------------------------
                                            Obscured angles relative to
                                                  ship's heading
            Vessel               Number  -------------------------------
                                               Port            STBD
------------------------------------------------------------------------
OSPREY.......................  MHC 51...  59.5 deg. to   281.7 deg. to
                                           78.3 deg..     300.5 deg.
HERON........................  MHC 52...  59.5 deg. to   281.7 deg. to
                                           78.3 deg..     300.5 deg.
PELICAN......................  MHC 53...  59.5 deg. to   281.7 deg. to
                                           78.3 deg..     300.5 deg.
ROBIN........................  MHC 54...  59.5 deg. to   281.7 deg. to
                                           78.3 deg..     300.5 deg.
ORIOLE.......................  MHC 55...  65.0 deg. to   284.1 deg. to
                                           75.6 deg..     294.6 deg.
KING-FISHER..................  MHC 56...  59.5 deg. to   281.7 deg. to
                                           78.3 deg..     300.5 deg.
CORMORANT....................  MHC 57...  59.5 deg. to   281.7 deg. to
                                           78.3 deg..     300.5 deg.
BLACK HAWK...................  MHC 58...  65.0 deg. to   284.1 deg. to
                                           75.6 deg..     294.6 deg.
USS FALCON...................  MHC 59...  65.0 deg. to   284.1 deg. to
                                           75.6 deg..     294.6 deg.
CARDINAL.....................  MHC 60...  65.0 deg. to   284.1 deg. to
                                           75.6 deg..     294.6 deg.
------------------------------------------------------------------------

    19. Sidelights on the following ships do not comply with Annex I, 
Section 2 (g):

----------------------------------------------------------------------------------------------------------------
                                                                       Distance in meters of sidelights above
                 Vessel                            Number                      maximum allowed height.
----------------------------------------------------------------------------------------------------------------
USS DUBUQUE.............................  LPD 8                     1.2
USS DENVER..............................  LPD 9                     4.9
----------------------------------------------------------------------------------------------------------------


                                                   Table Five
----------------------------------------------------------------------------------------------------------------
                                                       Masthead                      After masthead
                                                      lights not       Forward      light less than
                                                       over all     masthead light    \1/2\ ship's    Percentage
                                                     other lights   not in forward   length aft of    horizontal
             Vessel                      No.             and          quarter of        forward       separation
                                                    obstructions.   ship. annex I,  masthead light.    attained
                                                    annex I, sec.     sec. 3(a)      annex I, sec.
                                                         2(f)                             3(a)
----------------------------------------------------------------------------------------------------------------
USS SURIBACHI...................     AE 21          .............  ...............          X                 87
USS MAUNA KEA...................     AE 22          .............  ...............          X                 88
USS NITRO.......................     AE 23          .............  ...............          X                 86
USS PYRO........................     AE 24          .............  ...............          X                 87
USS FLINT.......................     AE 32          .............  ...............          X                 98
USS SHASTA......................     AE 33          .............  ...............          X                 98
USS MARS........................     AFS 1          .............  ...............          X                 98
USS SYLVANIA....................     AFS 2          .............  ...............          X                 99
USS NIAGARA FALLS...............     AFS 3          .............  ...............          X               97.9
USS WHITE PLAINS................     AFS 4          .............  ...............          X                 98
USS CONCORD.....................     AFS 5          .............  ...............          X                 97
USS SAN DIEGO...................     AFS 6          .............  ...............          X               97.5
USS SAN JOSE....................     AFS 7          .............  ...............          X               98.1
USS LA SALLE....................     AGF 3          .............  ...............          X                 54
USS CORONADO....................     AGF 11         .............  ...............          X                 55
USS DALE........................     CG 19          .............          X                X                 30
USS RICHMOND K. TURNER..........     CG 20          .............          X                X                 27
USS BELKNAP.....................     CG 26          .............          X                X                 30
USS TICONDEROGA.................     CG 47          .............          X                X               38.3
USS YORKTOWN....................     CG 48          .............          X                X               38.0
USS VINCENNES...................     CG 49          .............          X                X                 38
USS VALLEY FORGE................     CG 50          .............          X                X                 38
USS THOMAS S. GATES.............     CG 51          .............          X                X                 38
USS BUNKER HILL.................     CG 52          .............          X                X                 38
USS MOBILE BAY..................     CG 53          .............          X                X                 38
USS ANTIETAM....................     CG 54          .............          X                X                 38
USS LEYTE GULF..................     CG 55          .............          X                X                 38
USS SAN JACINTO.................     CG 56          .............          X                X                 38
USS LAKE CHAMPLAIN..............     CG 57          .............          X                X                 38
USS PHILIPPINE SEA..............     CG 58          .............          X                X                 38
USS PRINCETON...................     CG 59          .............          X                X                 38
USS NORMANDY....................     CG 60          .............          X                X                 38
USS MONTEREY....................     CG 61          .............          X                X                 38
USS CHANCELLORSVILLE............     CG 62          .............          X                X                 38
USS COWPENS.....................     CG 63          .............          X                X                 38
USS GETTYSBURG..................     CG 64          .............          X                X                 38
USS CHOSIN......................     CG 65          .............          X                X                 38

[[Page 172]]

USS HUE CITY....................     CG 66          .............          X                X                 38
USS SHILOH......................     CG 67          .............          X                X                 38
USS ANZIO.......................     CG 68          .............          X                X                 38
USS VICKSBURG...................     CG 69                   N/A           X                X                 38
USS LAKE ERIE...................     CG 70                   N/A           X                X                 38
USS CAPE ST. GEORGE.............     CG 71                   N/A           X                X                 38
USS VELLA GULF..................     CG 72                   N/A           X                X                 38
USS PORT ROYAL..................     CG 73                   N/A           X                X                 38
USS LONG BEACH..................     CGN 9          .............          X                X               13.5
USS BAINBRIDGE..................     CGN 25         .............          X                X                 19
USS TRUXTUN.....................     CGN 35         .............          X                X                 21
USS CALIFORNIA..................     CGN 36         .............          X                X               26.2
USS SOUTH CAROLINA..............     CGN 37         .............          X                X               26.2
USS MISSISSIPPI.................     CGN 40                  N/A           X                X                 16
USS ARKANSAS....................     CGN 41         .............          X                X                 18
USS FORRESTAL...................     CV 59          .............          X                X                 66
USS SARATOGA....................     CV 60          .............          X                X                 69
USS INDEPENDENCE................     CV 62          .............          X                X                 70
USS KITTY HAWK..................     CV 63          .............          X
USS CONSTELLATION...............     CV 64          .............          X
USS ENTERPRISE..................     CVN 65         .............          X
USS NIMITZ......................     CVN 68         .............          X
USS DWIGHT D. EISENHOWER........     CVN 69         .............          X
USS CARL VINSON.................     CVN 70         .............          X
USS THEODORE ROOSEVELT..........     CVN 71         .............          X
USS ABRAHAM LINCOLN.............     CVN 72         .............          X
USS GEORGE WASHINGTON...........     CVN 73         .............          X        ...............
USS JOHN C. STENNIS.............     CVN 74         .............          X        ...............
USS HARRY S TRUMAN..............     CVN 75         .............          X        ...............  ...........
USS SPRUANCE....................     DD 963         .............          X                X                 46
USS PAUL F. FOSTER..............     DD 964         .............          X                X               46.4
USS KINKAID.....................     DD 965         .............          X                X               46.4
USS HEWITT......................     DD 966         .............          X                X               46.4
USS ELLIOT......................     DD 967         .............          X                X               46.4
USS PETERSON....................     DD 969         .............          X                X               46.4
USS ARTHUR W. RADFORD...........     DD 968         .............          X                X               46.4
USS CARON.......................     DD 970         .............          X                X               46.4
USS DAVID R. RAY................     DD 971         .............          X                X               46.4
USS OLDENDORF...................     DD 972                  N/A           X                X                 45
USS JOHN YOUNG..................     DD 973         .............          X                X                 46
USS COMTE DE GRASSE.............     DD 974         .............          X                X               46.4
USS O'BRIEN.....................     DD 975         .............          X                X               46.1
USS MERRILL.....................     DD 976         .............  ...............          X               46.1
USS BRISCOE.....................     DD 977         .............          X                X               46.4
USS STUMP.......................     DD 978         .............          X                X                 46
USS CONOLLY.....................     DD 979         .............          X                X               46.4
USS MOOSBRUGGER.................     DD 980         .............          X                X                 46
USS JOHN HANCOCK................     DD 981         .............          X                X               46.4
USS NICHOLSON...................     DD 982         .............          X                X               46.4
USS JOHN RODGERS................     DD 983         .............          X                X               46.4
USS LEFTWICH....................     DD 984         .............          X                X                 46
USS CUSHING.....................     DD 985         .............          X                X                 46
USS HARRY W. HILL...............     DD 986         .............          X                X                 46
USS O'BANNON....................     DD 987         .............          X                X                 46
USS THORN.......................     DD 988         .............          X                X                 46
USS DEYO........................     DD 989         .............          X                X                 46
USS INGERSOLL...................     DD 990         .............          X                X                 46
USS FIFE........................     DD 991         .............          X                X                 48
USS FLETCHER....................     DD 992         .............          X                X                 46
USS KIDD........................     DD 993                    X           X                X               39.8
USS HAYLER......................     DD 997                  N/A           X                X                 44
USS ARLEIGH BURKE...............     DDG 51                    X           X                X               19.0
USS BARRY.......................     DDG 52                    X           X                X                 20
USS JOHN PAUL JONES.............     DDG 53                    X           X                X               18.9
USS CURTIS WILBUR...............     DDG 54                    X           X                X               20.4

[[Page 173]]

USS STOUT.......................     DDG 55                    X           X                X               19.6
USS JOHN S. MCCAIN..............     DDG 56                    X           X                X               19.6
USS MITSCHER....................     DDG 57                    X           X                X               20.7
USS LABOON......................     DDG 58                    X           X                X               19.6
USS RUSSELL.....................     DDG 59                    X           X                X               20.6
USS PAUL HAMILTON...............     DDG 60                    X           X                X               20.4
USS RAMAGE......................     DDG 61                    X           X                X                 20
USS FITZGERALD..................     DDG 62                    X           X                X               20.4
USS STETHEM.....................     DDG 63                    X           X                X                 20
USS CARNEY......................     DDG 64                    X           X                X               19.7
USS BENFOLD.....................     DDG 65                    X           X                X               20.4
USS GONZALES....................     DDG 66                    X           X                X               20.4
USS COLE........................     DDG 67                    X           X                X               20.4
USS THE SULLIVANS...............     DDG 68                    X           X                X               20.5
USS MILIUS......................     DDG 69                    X           X                X               20.4
USS HOPPER......................     DDG 70                    X           X                X               20.4
USS ROSS........................     DDG 71                    X           X                X               20.6
USS MAHAN.......................     DDG 72                    X           X                X               13.9
USS DECATUR.....................     DDG 73                    X           X                X               14.0
USS MCFAUL......................     DDG 74                    X           X                X               13.9
USS DONALD COOK.................     DDG 75                    X           X                X               14.0
USS CALLAGHAN...................     DDG 994                   X           X                X               44.6
USS SCOTT.......................     DDG 995                   X           X                X               44.6
USS CHANDLER....................     DDG 996                   X           X                X               44.6
USS ELK RIVER...................     IX 501         .............  ...............          X               18.4
USS BLUE RIDGE..................     LCC 19                  N/A   N/A                      X                 84
USS MOUNT WHITNEY...............     LCC 20         .............  ...............          X                 84
USS TARAWA......................     LHA 1          .............          X                X                 13
USS SAIPAN......................     LHA 2          .............          X                X               10.2
USS BELLEAU WOOD................     LHA 3          .............          X                X                 13
USS NASSAU......................     LHA 4          .............          X                X                 13
USS PELELIU.....................     LHA 5          .............          X                X                 13
USS WASP........................     LHD 1          .............          X                X                 41
USS ESSEX.......................     LHD 2          .............          X                X                 39
USS KEARSARGE...................     LHD 3          .............          X                X               39.5
USS BOXER.......................     LHD 4          .............          X                X               39.3
USS BATAAN......................     LHD 5          .............          X                X               39.7
USS BONHOMME RICHARD............     LHD 6          .............          X                X               39.8
USS AUSTIN......................     LPD 4          .............  ...............          X                 37
USS OGDEN.......................     LPD 5          .............  ...............          X                 51
USS DULUTH......................     LPD 6          .............  ...............          X                 50
USS CLEVELAND...................     LPD 7          .............  ...............          X                 49
USS DUBUQUE.....................     LPD 8          .............  ...............          X                 57
USS DENVER......................     LPD 9                   N/A   N/A                      X               54.7
USS JUNEAU......................     LPD 10         .............  ...............          X                 49
USS SHREVEPORT..................     LPD 12         .............  ...............          X                 49
USS NASHVILLE...................     LPD 13         .............  ...............          X                 48
USS TRENTON.....................     LPD 14         .............  ...............          X                 41
USS PONCE.......................     LPD 15         .............  ...............          X                 55
USS GUADALCANAL.................     LPH 7          .............          X                X                 11
USS GUAM........................     LPH 9          .............          X                X                 11
USS TRIPOLI.....................     LPH 10         .............          X                X                 12
USS NEW ORLEANS.................     LPH 11         .............          X                X                 10
USS INCHON......................     LPH 12         .............          X                X                 11
USS ALAMO.......................     LSD 33         .............  ...............          X                 47
USS HERMITAGE...................     LSD 34         .............  ...............          X                 55
USS ANCHORAGE...................     LSD 36         .............  ...............          X                 46
USS PORTLAND....................     LSD 37         .............  ...............          X                 46
USS PENSACOLA...................     LSD 38         .............  ...............          X                 46
USS MOUNT VERNON................     LSD 39         .............  ...............          X                 46
USS FORT FISHER.................     LSD 40         .............  ...............          X                 46
USS WHIDBEY ISLAND..............     LSD 41         .............  ...............          X                 65
USS GERMANTOWN..................     LSD 42         .............  ...............          X                 65
USS FORT McHENRY................     LSD 43         .............  ...............          X                 64
USS GUNSTON HALL................     LSD 44         .............  ...............          X                 64

[[Page 174]]

USS COMSTOCK....................     LSD 46         .............  ...............          X                 64
USS TORTUGA.....................     LSD 46         .............  ...............          X                 64
USS RUSHMORE....................     LSD 47         .............  ...............          X                 64
USS ASHLAND.....................     LSD 48         .............  ...............          X               64.1
USS HARPERS FERRY...............     LSD 49         .............  ...............          X               63.9
USS CARTER HALL.................     LSD 50         .............  ...............          X               63.9
USS OAK HILL....................     LSD 51         .............  ...............          X               63.9
USS PEARL HARBOR................     LSD 52         .............  ...............          X               63.9
USS FREDERICK...................     LST 1184       .............  ...............          X                 90
USS CAYUGA......................     LST 1186       .............  ...............          X                 89
USS SAGINAW.....................     LST 1188       .............  ...............          X                 86
USS SAN BERNARDINO..............     LST 1189       .............  ...............          X                 89
USS SPARTANBURG COUNTY..........     LST 1192       .............  ...............          X                 88
USS FAIRFAX COUNTY..............     LST 1193       .............  ...............          X                 90
USS LA MOURE COUNTY.............     LST 1194       .............  ...............          X                 88
USS HARLAN COUNTY...............     LST 1196       .............  ...............          X                 89
USS BARNSTABLE COUNTY...........     LST 1197       .............  ...............          X                 88
USS BRISTOL COUNTY..............     LST 1198       .............  ...............          X                 90
USS AVENGER.....................     MCM 1          .............  ...............          X                 63
USS DEFENDER....................     MCM 2          .............  ...............          X                 62
USS SENTRY......................     MCM 3          .............  ...............          X                 62
USS CHAMPION....................     MCM 4          .............  ...............          X                 64
USS GUARDIAN....................     MCM 5          .............  ...............          X                 63
USS DEVASTATOR..................     MCM 6          .............  ...............          X                 64
USS PATRIOT.....................     MCM 7          .............  ...............          X                 64
USS SCOUT.......................     MCM 8          .............  ...............          X                 64
USS PIONEER.....................     MCM 9          .............  ...............  ...............           64
USS WARRIOR.....................     MCM 10         .............  ...............          X                 64
USS GLADIATOR...................     MCM 11         .............  ...............          X                 64
USS ARDENT......................     MCM 12         .............  ...............          X                 64
USS DEXTROUS....................     MCM 13         .............  ...............          X                 64
USS CHIEF.......................     MCM 14         .............  ...............          X                 64
USNS KILAUEA....................     T-AE 26        .............  ...............          X               94.1
----------------------------------------------------------------------------------------------------------------

[42 FR 36434, July 14, 1977]
    Editorial Note: For Federal Register citations affecting Sec. 706.2, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



Sec. 706.3  Exemptions by the Secretary of the Navy under Executive Order 11964.

    The Secretary of the Navy hereby exempts, in accordance with Rule 38 
of the International Regulations for Preventing Collisions at Sea, 1972, 
the vessels and classes of vessels listed in this section, from full 
compliance with the Regulations, where an exemption is allowed by, and 
for the periods specified in, Rule 38. The Secretary of the Navy further 
finds that the vessels and classes of vessels listed have had their 
keels laid or are in corresponding stages of construction before July 
15, 1977, and that such vessels and classes of vessels comply with the 
requirements of the International Regulations for Preventing Collisions 
at Sea, 1960.

                                Table One
 [The following vessels and classes of vessels, less than 150 meters in
     length, are permanently exempted pursuant to rule 38(d)(i) from
  repositioning of masthead lights resulting from the prescriptions of
                         Annex I, section 3(a)]
------------------------------------------------------------------------
                             Vessel or class
-------------------------------------------------------------------------
USNS HAYES (T-AG-195)
USNS RANGE SENTINEL (T-AGM-22)
T-AGOR 3 Class
T-AGS 26 Class
T-AGS 33 Class
T-AOG 77 Class
USNS ALBERT J. MYER (T-ARC 6)
T-ATF 166 Class
ARS 6 Class
ARS 38 Class
ASR 7 Class
ASR 21 Class
ATF 148 Class
ATS 1 Class

[[Page 175]]

DDG 2 Class
FF 1037 Class
FF 1040 Class
FF 1052 Class
USS GLOVER (FF 1098)
FFG 1 Class
FFG 7 Class
LCU 1610 Class
LCU 1648 Class
MSO 422 Class
MSO 508 Class
PG 92 Class
USS DOLPHIN (AGSS 555)
SSN 594 Class
SSN 637 Class
SSN 688 Class
SSBN 616 Class
SSBN 627 Class
SSBN 640 Class
SSBN 726 Class
YFU (Ex-LCU 1466 Class)
------------------------------------------------------------------------

[42 FR 36434, July 14, 1977, as amended at 55 FR 27818, July 9, 1990; 60 
FR 22506, May 8, 1995]



PART 707--SPECIAL RULES WITH RESPECT TO ADDITIONAL STATION AND SIGNAL LIGHTS--Table of Contents




Sec.
707.1  Purpose of regulations.
707.2  Man overboard lights.
707.3  Yard arm signaling lights.
707.4  Aircraft warning lights.
707.5  Underway replenishment contour lights.
707.6  Minesweeping station keeping lights.
707.7  Submarine identification light.
707.8  Special operations lights.
707.9  Convoy operations stern light.
707.10  Wake illumination light.
707.11  Flight operations lights.
707.12  Amphibious operations lights.

    Authority: 33 U.S.C. 182 and 1606, E.O. 11964.

    Source: 42 FR 61596, Dec. 6, 1977, unless otherwise noted.



Sec. 707.1  Purpose of regulations.

    All ships are warned that when U.S. naval vessels are met in 
international and inland waters, some of the navigational lights 
displayed by them may be special lights for naval purposes. When used, 
they may be displayed simultaneously with the ordinary navigational 
lights required by the International Regulations for Preventing 
Collisions at Sea, 1972, or the Inland Navigational Rules. The lights 
are located and characterized in such a fashion that, as far as 
possible, they cannot be mistaken for any light authorized by either set 
of rules. This part publishes the special rules with respect to these 
additional station and signal lights promulgated by the Secretary of the 
Navy for vessels of the Navy.



Sec. 707.2  Man overboard lights.

    Naval vessels may display, as a means of indicating man overboard, 
two pulsating, all round red lights in the vertical line located on a 
mast from where they can best be seen.



Sec. 707.3  Yard arm signaling lights.

    Naval vessels may display, as a means of visual signaling, white all 
round lights at the ends of the yard arms. These lights will flash in 
varying sequences to convey the intended signal.



Sec. 707.4  Aircraft warning lights.

    Naval vessels may display, as a means of indicating the presence of 
an obstruction to low flying aircraft, one all round red light on each 
obstruction.



Sec. 707.5  Underway replenishment contour lights.

    Naval vessels may display, as a means of outlining the contour of 
the delivery ship during nighttime underway replenishment operations, 
either red or blue lights at delivery-ship-deck-edge extremities.
[42 FR 61596, Dec. 6, 1977, as amended at 44 FR 27991, May 14, 1979]



Sec. 707.6  Minesweeping station keeping lights.

    Naval vessels engaged in minesweeping operations may display, as an 
aid in maintaining prescribed intervals and bearings, two white lights 
in a vertical line visible from 070 deg. through 290 deg. relative.



Sec. 707.7  Submarine identification light.

    Submarines may display, as a distinctive means of identification, an 
intermittent flashing amber beacon with a sequence of operation of one 
flash per second for three (3) seconds

[[Page 176]]

followed by a three (3) second off-period. The light will be located 
where it can best be seen, as near as practicable, all around the 
horizon. It shall not be located less than two (2) feet above or below 
the masthead lights.
[48 FR 4284, Jan. 31, 1983]



Sec. 707.8  Special operations lights.

    Naval vessels may dispay, as a means of coordinating certain special 
operations, a revolving beam colored red, green, or amber, located on 
either yard arm or the mast platform from where it can best be seen all 
around the horizon.



Sec. 707.9  Convoy operations stern light.

    Naval vessels may display, during periods of convoy operations, a 
blue light located near the stern with the same characteristics as, but 
in lieu of, the normal white stern light.



Sec. 707.10  Wake illumination light.

    Naval vessels may display a white spot light located near the stern 
to illuminate the wake.



Sec. 707.11  Flight operations lights.

    Naval vessels engaged in night flight operations may display various 
arrangements of light systems containing combinations of different 
colored lights as a means of assisting in the launch and recovery of 
aircraft and enhancing flight safety. These light systems will be 
located at various points on the vessels, depending on the vessel type 
and the nature of the flight operations being conducted.



Sec. 707.12  Amphibious operations lights.

    Naval vessels engaged in night amphibious operations may display 
various arrangements of light systems containing combinations of 
different colored lights as a means of assisting in the launch and 
recovery of assault craft and enhancing the safety of the amphibious 
operation. These light systems will be located at various points on the 
vessel, depending on the vessel type and the nature of the amphibious 
operations being conducted.

[[Page 177]]



                         SUBCHAPTER C--PERSONNEL





PART 716--DEATH GRATUITY--Table of Contents




    Subpart A--Provisions Applicable to the Navy and the Marine Corps

Sec.
716.1  Principal rule.
716.2  Definitions.
716.3  Special situations.
716.4  Eligible survivors.
716.5  Delegation of authority.
716.6  Death occurring after active service.
716.7  Payment of the death gratuity.
716.8  Payments excluded.
716.9  Erroneous payment.

              Subpart B--Provisions Applicable to the Navy

716.10  Procedures.

          Subpart C--Provisions Applicable to the Marine Corps

716.11  Procedures.

    Authority: Sec. 301, 80 Stat. 379, 1(32)(A), 72 Stat. 1452; 5 U.S.C. 
301, 10 U.S.C. 1475-1480, Pub. L. 89-554.

    Source: 24 FR 7523, Sept. 18, 1959, unless otherwise noted.



    Subpart A--Provisions Applicable to the Navy and the Marine Corps



Sec. 716.1  Principal rule.

    Under title 10 U.S.C., section 1475, the Secretary of the Navy shall 
have a death gratuity paid immediately upon official notification of the 
death of a member of the naval service who dies while on active duty, 
active duty for training, or inactive duty training. The death gratuity 
shall equal six months' basic pay (plus special, incentive, and 
proficiency pay) at the rate to which the deceased member was entitled 
on the date of his death but shall not be less than $800 nor more than 
$3,000. A kind of special pay included is the 25% increase in pay to 
which a member serving on a naval vessel in foreign waters is entitled 
under 10 U.S.C. 5540 when retained beyond expiration of enlistment 
because such retention was essential to the public interest.



Sec. 716.2  Definitions.

    For the purposes of this part, terms are defined as follows:
    (a) Member of the naval service. This term includes:
    (1) A person appointed, enlisted, or inducted into the Regular Navy, 
Regular Marine Corps, Naval Reserve or Marine Corps Reserve, and 
includes a midshipman at the United States Naval Academy;
    (2) Enlisted members of the Fleet Reserve and Fleet Marine Corps 
Reserve and retired members;
    (3) A member of the Naval Reserve Officers Training Corps when 
ordered to annual training duty for 14 days or more, and while 
performing authorized travel to and from that duty; and
    (4) Any person while en route to or from, or at a place for final 
acceptance for entry upon active duty in the naval service who has been 
ordered or directed to go to that place, and who has been provisionally 
accepted for such duty.
    (b) Active duty. This term is defined as (1) full-time duty 
performed by a member of the naval service, other than active duty for 
training, or (2) as a midshipman at the United States Naval Academy, and 
(3) authorized travel to or from such duty or service.
    (c) Active duty for training. Such term means:
    (1) Full-time duty performed by a member of a Reserve component of 
the naval service for training purposes;
    (2) Annual training duty performed for a period of 14 days or more 
by a member of the Naval Reserve Officers Training Corps; and
    (3) Authorized travel to or from such duty.
    (d) Inactive-duty training. Such term is defined as any of the 
training, instruction, appropriate duties, or equivalent training, 
instruction, duty, appropriate duties, or hazardous duty performed with 
or without compensation by a member of a Reserve component prescribed by 
the Secretary of the Navy pursuant to sections 206, 309, and

[[Page 178]]

1002 of title 37 U.S.C. or any other provision of law. The term does not 
include:
    (1) Work or study performed by a member of a Reserve component in 
connection with correspondence courses in which he is enrolled, or
    (2) Attendance at an educational institution in an inactive status 
under the sponsorship of the Navy or Marine Corps.
[24 FR 7523, Sept. 16, 1959, as amended at 37 FR 6471, Mar. 30, 1972; 44 
FR 25647, May 2, 1979]



Sec. 716.3  Special situations.

    (a) Service without pay. Any member of a Reserve component who 
performs active duty, active duty for training, or inactive-duty 
training without pay shall, for purposes of a death gratuity payment, be 
considered as being entitled to basic pay, including special pay and 
incentive pay if appropriate, while performing such duties.
    (b) Death occurring while traveling to and from active duty for 
training and inactive-duty training. Any member of a Reserve component 
who, when authorized or required by competent authority, assumes an 
obligation to perform active duty for training or inactive-duty training 
and who dies from an injury incurred on or after January 1, 1957 while 
proceeding directly to or directly from such active duty for training or 
inactive-duty training, shall be deemed to have been on active duty for 
training or inactive-duty training as the case may be.
    (c) Hospitalization. A member of a Reserve component who suffers 
disability while on active duty, active duty for training, or inactive-
duty training, and who is placed in a new status while he is receiving 
hospitalization or medical care (including out-patient care) for such 
disability, shall be deemed, for purposes of death gratuity payment to 
have continued on active duty, active duty for training, or inactive-
duty training, as the case may be, in the event of his death in such 
status.
    (d) Discharge or release from a period of active duty. A person who 
is discharged or released from active duty (other than for training) is 
considered to continue on that duty during the period of time required 
for that person to go to his home by the most direct route. That period 
may not end before midnight of the day on which the member is discharged 
or released.
[24 FR 7523, Sept. 18, 1959, as amended at 25 FR 7792, Aug. 16, 1960]



Sec. 716.4  Eligible survivors.

    (a) The death gratuity shall be paid to or for the living survivor 
or survivors of the deceased member first listed below:
    (1) The lawful spouse. (For purpose of this part, a man or woman 
shall be considered to be the spouse if legally married to the member at 
the time of the member's death.)
    (2) His children (without regard to their age or marital status) in 
equal shares.
    (3) Parent(s), brother(s) or sister(s) or any combination of them, 
when designated by the deceased member.
    (4) Undesignated parents in equal shares.
    (5) Undesignated brothers and sisters in equal shares. In paragraphs 
(a)(2), (3) and (4), respectively, of this section, the terms ``child'' 
and ``parent'' have the meanings assigned to them by title 10 U.S.C. 
section 1477 and the term ``parents'' includes persons in loco parentis 
as indicated by that section. The terms ``brother'' and ``sister'' in 
paragraphs (a) (3) and (5) of this section include brothers and sisters 
of the half blood and those through adoption.
    (b) Designation of payee by service member. Where the service member 
has designated a beneficiary and is not survived by a spouse, child, or 
children, the payment will be made to the specific person designated by 
him provided the designee falls within the class of beneficiaries 
permitted as set forth in paragraph (a)(3) of this section. If more than 
one person is so designated on the Record of Emergency, payment will be 
made in equal shares unless the member designated a proportionate share 
to each beneficiary. Frivolous designations, such as one per centum to a 
particular beneficiary, should not be made.
    (c) Death of survivor prior to receipt of gratuity. (1) If a 
survivor dies before receiving payment, or if a designated beneficiary 
predeceases the member

[[Page 179]]

(and there is no other designated beneficiary) such amount shall be paid 
to the then living survivor or survivors listed first under paragraph 
(a) of this section.
    (2) In case one of the beneficiaries (parents or brothers or 
sisters) designated by a member, pursuant to paragraph (a)(3) of this 
section, to receive death gratuity payment dies prior to the member's 
death, or after his death but prior to the time payment is made, the 
share which would have been paid to the deceased designee may be paid to 
the other person or persons designated.
[24 FR 7523, Sept. 18, 1959, as amended at 37 FR 6471, Mar. 30, 1972]



Sec. 716.5  Delegation of authority.

    (a) Pursuant to the authority contained in title 10 U.S.C., section 
1479, as to deaths described in section 1475 thereof, the Secretary of 
the Navy has delegated to commanding officers of naval commands, 
installations, or districts, with respect to naval personnel, and to 
Marine Corps commanding generals and officers in command of regiments, 
battalions or equivalent units and of separate or detached commands who 
have custody of service records, with respect to Marine Corps personnel, 
authority to certify for the payment of death gratuity the lawful spouse 
or designated beneficiary(ies) of the deceased service member who was 
residing with him at or near his place of duty at the time of his death, 
except in cases in which a doubt may exist as to the identity of the 
legal beneficiary. Disbursing officers are authorized to make payment of 
the death gratuity upon receipt of certification from the Commanding 
Officer.
    (b) The Secretary of the Navy has delegated authority to the Chief 
of Naval Personnel as to naval personnel, and to the Commandant of the 
Marine Corps (Code MSPA-1) as to Marine Corps personnel, the authority 
to certify the beneficiary(ies) for receipt of payment of death gratuity 
in all appropriate cases of payment of death gratuity under the 
Servicemen's and Veterans' Survivor Benefits Act (now reenacted in 10 
U.S.C. 1475-1480), including, but not limited to:
    (1) Cases in which a doubt may exist as to the identity of the legal 
beneficiary; and
    (2) Cases in which the widow or designated beneficiary(ies) of the 
deceased service member was not residing with him at or near his place 
of duty at the time of his death.
[24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979]



Sec. 716.6  Death occurring after active service.

    (a) Under title 10 U.S.C., section 1476, the death gratuity will be 
paid in any case where a member or former member dies on or after 
January 1, 1957, during the 120-day period which begins on the day 
following the date of his discharge or release from active duty, active 
duty for training, on inactive duty training, if the Administrator of 
Veterans' Affairs determines that:
    (1) The decedent was discharged or released, as the case may be, 
from the service under conditions other than dishonorable from the last 
period of the duty or training performed; and
    (2) Death resulted from disease or injury incurred or aggravated 
while on such active duty or active duty for training; or while 
performing authorized travel to or from such duty; or
    (3) Death resulted from injury incurred or aggravated while on such 
inactive-duty training or while traveling directly to or from such duty 
or training.
    (b) For purposes of computing the amount of the death gratuity in 
such instances, the deceased person shall be deemed to be entitled on 
the date of his death to basic pay (plus any special, incentive and 
proficiency pay) at the rate to which he was entitled on the last day he 
performed such active duty, active duty for training, or inactive duty 
training. A kind of special pay included is a pay increase under 10 
U.S.C. 5540; see Sec. 716.1.
    (c) The Department of the Navy is precluded from making payment of 
the death gratuity pending receipt of the determinations described in 
paragraph (a) of this section. In view of this, commands should insure 
that the medical records and reports of investigations by fact-finding 
bodies be submitted to the Navy Department at the earliest

[[Page 180]]

possible date. The Veterans' Administration is promptly notified of all 
deaths of this category reported, and upon the request of that agency 
all pertinent data is forwarded.



Sec. 716.7  Payment of the death gratuity.

    (a) Claim certification and voucher for the death gratuity payment. 
The Comptroller General of the United States has approved DD Form 397 as 
the form to be used hereafter for claim certification and voucher for 
the death gratuity payment.
    (b) Active duty deaths (Navy). To effect immediate payment of death 
gratuity the following actions will be taken:
    (1) The commanding officer will ascertain that the deceased member 
died while on active duty, active duty for training, or inactive-duty 
training, and will obtain the name, relationship, and address of the 
eligible survivor from the Service Record of the deceased. The 
Dependency Application/Record of Emergency Data (NAVPERS 1070/602) or 
Record of Emergency Data (DD Form 93), will normally contain this 
information. In addition, in the case of enlisted personnel, the 
Application for Dependents Allowance (BAQ [Basic Allowance for 
Quarters]), NAVPERS Form 668, may serve as a source of corroboration. He 
will, with the cooperation of the disbursing officer, initiate 
preparation of a Claim Certification and Voucher for Death Gratuity 
Payment, DD Form 397, in original and five copies, completing blocks 5 
through 14 inclusive, and the administrative statement in block 18. The 
administrative statement in block 18 will be signed by the commanding 
officer or acting commanding officer.
    (2) The disbursing officer will, upon receipt of the DD Form 397, 
draw a check to the order of the eligible survivor named in block 5, 
complete blocks 2, 3, 4, and the check payment data portion of block 18.
    (3) Under arrangements made by the commanding officer, the check and 
the original and one copy of the voucher, DD Form 397, will be delivered 
to the payee. The payee will be required to complete block 15, sign in 
block 17a, and have two witnesses complete block 17 on the original 
voucher at the time the check is delivered. Under no circumstances will 
the check be delivered to the payee until this action has been 
accomplished. The payee will retain the copy of the voucher, DD Form 
397, and the signed original voucher will be returned by hand to the 
disbursing officer by the person designated to deliver the check.
[24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979]



Sec. 716.8  Payments excluded.

    (a) No payment shall be made if the deceased member suffered death 
as a result of lawful punishment for a crime or for a military or naval 
offense, except when death was so inflicted by any hostile force with 
which the Armed Forces of the United States have engaged in armed 
conflict.
    (b) No payment will be made to a survivor implicated in the homicide 
of the deceased in the absence of evidence clearly absolving such 
survivor of any felonious intent.
    (c) Unless the laws of the place where a minor beneficiary resides 
provide that such a payment would grant a valid acquittance of the 
Government's obligation to make a payment of death gratuity to or for a 
minor, a death gratuity of more than $1,000 may not be paid in whole or 
in part to a parent as natural guardian of a minor or to any other 
person who is not a legal guardian appointed by the civil court to 
manage the minor's financial affairs.
[24 FR 7523, Sept. 18, 1959, as amended at 37 FR 6471, Mar. 30, 1972; 44 
FR 25647, May 2, 1979]



Sec. 716.9  Erroneous payment.

    Where through administrative mistake of fact or law, payment of the 
death gratuity is made to a person clearly not entitled thereto, and it 
is equally clear that another person is entitled to the death gratuity, 
the Chief of Naval Personnel (Pers-732) or the Commandant of the Marine 
Corps (Code MSPA-1), as appropriate, will certify payment to the proper 
payee, irrespective of recovery of the erroneous payment. On the other 
hand, where a payment of the death gratuity has been made to an 
individual on the basis of representations of record made

[[Page 181]]

by the deceased member as to his marital and dependency status, and the 
Government otherwise has no information which would give rise to doubt 
that such status is as represented, the payment is not to be regarded as 
``erroneous.'' The Government has a good acquittance in such cases even 
though it may subsequently develop that the payee is not the proper 
statutory payee of the gratuity and no second payment is authorized.
[24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979]



              Subpart B--Provisions Applicable to the Navy



Sec. 716.10  Procedures.

    (a) Action by commanding officers. See Sec. 716.7(b)--(1) Immediate 
payment--Eligible beneficiary residing with deceased member. Commanding 
officers, in order to expedite the payment of the death gratuity, will, 
upon official notification of death, ascertain the duty status of the 
deceased, and determine the eligibility of the spouse or designated 
beneficiary who was residing with the deceased member on or near his 
duty station at the time of his death. The services of a staff or 
district legal officer will be utilized as required. Every effort should 
be made to effect prompt payment (within 24 hours, if possible). It is 
the intent that determinations of entitlement by commands in the field 
will be confined largely to spouses and parents designated by the 
service member who were living with him at the time of his death.
    (2) Questionable cases. If entitlement to the death gratuity payment 
is questionable after seeking advice of the staff or district legal 
officer, such case will be forwarded promptly to the Chief of Naval 
Personnel (Pers-732) with a brief statement relative to the facts which 
raised the issue of doubt. Every effort will be made to expedite action 
by a review of the official records of the decedent in the Bureau of 
Naval Personnel and the Family Allowance Activity at Cleveland, Ohio. 
Those cases wherein the service member was in a deserter status, absent 
without leave, or in the custody of civil authorities at the time of 
death, wherein guardianship must be provided for the protection of the 
decedent's children, or wherein a technicality exists which makes 
immediate certification legally unsound, will be considered 
questionable.
    (3) Exception. Where the entitlement of the survivor who is living 
with the deceased at the time of his death is questionable and such 
survivor is in dire financial circumstances, the Chief of Naval 
Personnel (Pers-G23) shall be requested by message to make an 
adjudication of entitlement. If it is determined that the survivor is 
entitled to the payment, the commanding officer will be authorized by 
message to execute DD Form 397.
    (b) Action by Casualty Assistance Calls Program (CACP) officers; 
Potential beneficiary not residing with member--(1) Widow(er). The CACP 
officer, on his or her initial visit to a widow(er), determines, 
propriety permitting, whether there is an urgent need for financial 
assistance. If there is an urgent need for financial assistance, the 
CACP officer should obtain DD Form 397 from any military disbursing 
office and, on his or her second visit to the widow(er), have him or her 
sign it and obtain the signatures of two witnesses on the form. It 
should be noted that the following procedure is confined to cases in 
which the decedent's eligible survivor for the death gratuity is a 
widow(er), and efforts to effect immediate payment in accordance with 
the intent of the governing statute are appropriate. In such cases, the 
CACP officer, upon learning that a widow(er), not residing with his or 
her spouse at or near the spouse's duty station, is in urgent need of 
financial assistance, shall advise the Chief of Naval Personnel (Pers-
732) of the need by message. The CACP officer shall send a copy of this 
message to the decedent's duty station, if known. Upon receipt, the 
disbursing officer will furnish the Navy Finance Center, Cleveland, Ohio 
44199, with the decedent's basic monthly pay [plus any special (see 
Sec. 716.1), incentive, and proficiency pay] in the event the pay 
account has not been forwarded previously to that center sufficiently 
early to have reached there. The CACP officer shall also send a copy of 
his message to the Navy Finance Center

[[Page 182]]

with the request that payment of the death gratuity be made upon receipt 
of the certification of beneficiary entitlement from the Chief of Naval 
Personnel (Pers-732).
    (2) Navy Relief. In cases where there is immediate need prior to 
receipt of the death gratuity, the Navy Relief Society will be contacted 
by the Casualty Assistance Calls Program officer.
    (c) Action by the Chief of Naval Personnel. (1) In all cases where 
death gratuity is not authorized to be paid locally and in cases where 
authority exists to pay locally but entitlement is questionable (see 
paragraph (a)(2) of this section), the Chief of Naval Personnel (Pers-
732) will expedite adjudication of claims. As indicated in paragraph 
(b)(1) of this section CACP officers will refer cases of urgent 
financial need to the Chief of Naval Personnel (Pers-732) by message for 
action.
    (2) If a minor is entitled to a death gratuity under 10 U.S.C. 1477 
not exceeding $1,000, such death gratuity may be paid to the father or 
mother as natural guardian on behalf of the minor, provided a legally 
appointed guardian has not been appointed, upon substantiation by a 
sworn (notarized) statement of the natural guardian:
    (i) That no legal guardian has been appointed and that such an 
appointment is not contemplated;
    (ii) The relationship of the natural guardian to the minor;
    (iii) That the minor is in the actual custody of the natural 
guardian;
    (iv) That an amount paid to the natural guardian will be held for, 
or applied to, the use and benefit of the minor.

If the death gratuity to which a minor is entitled exceeds $1,000, the 
appointment of a legal guardian on behalf of the minor is requested. 
Certification of the minor eligible to receive the death gratuity is 
made by the Chief of Naval Personnel (Pers-732) and payment is effected 
by the Navy Finance Center, Cleveland, OH 44199;
    (d) Cross-servicing procedure. Payment of the death gratuity may be 
made by a disbursing officer who is maintaining the pay record of a 
member of another service, provided the command to which the member is 
attached and which maintains his service record is in the immediate 
vicinity and certificates the beneficiary eligible to receive payment on 
the proper voucher (DD Form 397). Otherwise the pay record will be sent 
to the Army Finance Center, Air Force Finance Center, Commandant of the 
Marine Corps (Code CDB), the Navy Finance Center, of the Commandant, 
U.S. Coast Guard, as appropriate.
[24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979; 45 
FR 43165, June 26, 1980]



          Subpart C--Provisions Applicable to the Marine Corps



Sec. 716.11  Procedures.

    (a) Action. Commanding officers will direct immediate payment of the 
gratuity where the deceased member's spouse was, in fact, residing with 
the member on or near the station of duty at the time of the member's 
death while on active duty, active duty for training, or inactive-duty 
training. Every effort should be made to effect such payment promptly 
(within 24 hours, if possible). In cases where the eligible survivor 
residing with the member on or near the duty station is other than a 
spouse, commanding officers may direct the payment of death gratuity 
when the case can be properly determined, and an urgent need exists for 
immediate payment. Proper determination is imperative.
    (b) Qualifications. (1) Where any doubt exists as to the legal 
recipient of the gratuity, the case will be referred to the Commandant 
of the Marine Corps (Code MSPA-1) for determination.
[24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25648, May 2, 1979]



PART 718--MISSING PERSONS ACT--Table of Contents




Sec.
718.1  General provisions.
718.2  Allotments.
718.3  Transportation of dependents.
718.4  Delegations.



Sec. 718.1  General provisions.

    (a) Under the provisions of the Missing Persons Act, as amended, a 
finding of presumptive death is made by the Secretary of the Navy when a 
survey of

[[Page 183]]

all available sources of information indicates beyond doubt that the 
presumption of continuance of life has been overcome. When a finding of 
presumptive death is made, a man's pay accounts are closed as of the day 
following the expiration of the 12 months' absence or a longer period 
when justified, and the various benefits, such as the six months' 
gratuity, become payable. A finding of presumptive death concerning an 
officer or enlisted man of the Navy means simply that as of the date 
thereof he is for the purposes of Naval administration no longer alive. 
It does not mean that death occurred on that or on any other certain 
date.
    (b) Findings of presumptive death are never made when the 
``missing'' status has not continued for at least 12 months. Whenever, 
subsequent to the expiration of the 12th month, cumulative or other 
evidence establishes by its preponderance that a ``missing'' person is 
no longer alive, a prompt finding of presumptive death will be made. 
Also, such a finding will be made whenever justified by the lapse of 
time beyond the 12 months' absence without specific information being 
received.
    (c) The Secretary of the Navy, or such subordinate as he may 
designate, has authority to make all determinations necessary in the 
administration of the act, and for the purposes of the act 
determinations so made shall be conclusive as to death or finding or 
death, as to any other status dealt with by the act, and as to any 
essential date including that upon which evidence or information is 
received in the Department. The determination of the Secretary of the 
Navy, or of such subordinate as he may designate, is conclusive as to 
whether information received concerning any person is to be construed 
and acted upon as an official report of death. When any information 
deemed to establish conclusively the death of any person is received in 
the department, action shall be taken thereon as an official report of 
death, notwithstanding any prior action relating to death or other 
status of such person. Under the foregoing provisions a determination of 
death is made prior to the expiration of 12 months when the evidence 
received is considered to establish conclusively the fact of death and 
settlement of accounts is made to the date established as the date of 
receipt of evidence on which the fact of death is established.

(Sec. 301, 80 Stat. 379; 5 U.S.C. 301. Interpret or apply 80 Stat. 112-
117, 248-254; 5 U.S.C. 5561-5568, 37 U.S.C. 551-558)

[17 FR 5390, June 14, 1952]



Sec. 718.2  Allotments.

    During such period as a person is in a status of missing, missing in 
action, interned in a foreign country, captured by a hostile force, 
beleaguered by a hostile force, or besieged by a hostile force, 
allotments from his pay and allowances may be initiated, continued, 
discontinued, increased, decreased, suspended or resumed in behalf of 
his dependents and for such other purposes as are justified by the 
circumstances and are in the interests of the person or of the 
Government.

(R.S. 161, sec. 5031, 70A Stat. 278, as amended; 5 U.S.C. 22, 10 U.S.C. 
5031, 50 U.S.C. App. 1013-1015)

[26 FR 12658, Dec. 29, 1961]



Sec. 718.3  Transportation of dependents.

    (a) Whenever a person in active service is officially reported as 
dead, injured, (Only when the anticipated period of hospitalization or 
treatment is expected to be of prolonged duration as shown by a 
statement of the commanding officer at the receiving hospital), missing 
for a period of 29 days or more, interned in a foreign country, or 
captured by a hostile force, his dependents, household and personal 
effects including one privately owned motor vehicle may be moved 
(including packing, crating, drayage, temporary storage, and unpacking 
of household and personal effects) to the official residence of record 
for any such person or to the residence of his dependent, next of kin, 
or other person entitled to receive custody of the effects in accordance 
with the provisions of paragraph (d) of this section; or, upon 
application by such dependent, next of kin, heir or legal 
representative, or other person determined in accordance with paragraph 
(d) of this section, or upon the person's application if injured, to 
such location as may have been determined

[[Page 184]]

in advance or as may be subsequently approved, except that a reasonable 
relationship must exist between the condition and circumstances of the 
dependents and the destination to which transportation is requested. In 
the case of a person in an injured status, transportation of his 
dependents or household and personal effects may be authorized only when 
the hospitalization or treatment of the injured person will be of 
prolonged duration. Payment in money of amounts equal to such commercial 
transportation costs or a monetary allowance in lieu of transportation 
as authorized by law for the whole or such part of the travel for which 
transportation in kind is not furnished, may be authorized, when such 
travel has been completed.
    (b) When the Secretary of the Navy or his designee determines that 
an emergency exists and that such sale would be in the best interests of 
the Government, he may provide for the disposition of the motor vehicles 
and other bulky items of such household and personal effects of the 
person by public or private sale. Prior to any such sale, and if 
practicable, a reasonable effort shall be made to determine the desires 
of the interested persons. The net proceeds received from such sale 
shall be transmitted to the owner, next of kin, heir or legal 
representative, or other person determined in accordance with paragraph 
(d) of this section; but if there be no such persons or if such persons 
or their addresses are not ascertainable within one year from the date 
of sale, the net proceeds may be covered into the Treasury as 
miscellaneous receipts.
    (c) The Secretary of the Navy or his designee is authorized to store 
the household and personal effects of the person until such time as 
proper disposition can be made. The cost of such storage and 
transportation, including packing, crating, drayage, temporary storage, 
and unpacking of household and personal effects, will be charged against 
appropriations currently available.
    (d) The following provisions apply to the determination of the 
``other person'' or persons referred to in paragraphs (a) and (b) of 
this section who may receive the effects or proceeds.
    (1) If no duly appointed legal representative of the owner of the 
personal effects makes demand upon the Department of the Navy for the 
effects, the determination by naval authorities as to the next of kin or 
heirs of the owner of the personal effects may be made on the basis of 
the following:
    (i) Personnel records; or
    (ii) Other documents applicable to the case; or
    (iii) Title 10 U.S.C., section 2771, to the extent that it 
prescribes an order of precedence among next of kin or heirs, namely, 
the widow or widower of the owner; if no widow or widower, then the 
child or children of the owner and descendants of deceased children, by 
representation; if none of the above, the parents of the owner or the 
survivor of them; or if none of the above, other persons determined to 
be eligible under the laws of the domicile of the owner.
    (2) Such determination should be regarded as administrative rather 
than legal, as the determination does not vest title to effects or 
proceeds in the next of kin, heirs, or legal representative to whom the 
effects are delivered. Therefore, delivery of the personal effects to 
other than the owner will be made subject to the following advisory note 
which should be written on a copy of the inventory or in a letter:

    Delivery of the personal effects into the custody of other than the 
owner thereof, by the Department of the Navy, does not in any way vest 
title to the effects in the recipient. Delivery of the effects to the 
recipient is made so that distribution may be made in accordance with 
the laws of the state in which the owner of the effects was legally 
domiciled or to restore the effects to the owner in the event of his 
return from a missing status.

    (3) When it is impracticable to divide the personal effects of a 
person into equal shares, and two or more persons within a class, as 
provided in 10 U.S.C. section 2771, are entitled to receive the effects 
but cannot agree among themselves as to which one of them shall receive 
the effects, then all of the effects will be retained by either the 
Personal Effects Distribution Center at Norfolk, VA, or the Personal 
Effects Distribution Center at Oakland, CA, for a period of two years 
from the date of

[[Page 185]]

death of the member. At the expiration of the two-year period such 
effects will be sold.

(R.S. 161, sec. 5031, 70A Stat. 278, as amended; 5 U.S.C. 22, 10 U.S.C. 
5031, 50 U.S.C. App. 1013-1015; Pub. L. 89-554, 80 Stat. 379 (5 U.S.C. 
301)

[26 FR 12659, Dec. 29, 1961, as amended at 37 FR 6472, Mar. 30, 1972; 44 
FR 22456, Apr. 16, 1979]



Sec. 718.4  Delegations.

    The Secretary of the Navy has delegated to the Director, Personal 
Services Division, Bureau of Naval Personnel with respect to personnel 
in the Navy, and to the Head, Personal Affairs Branch Manpower 
Department (Code MSPA), United States Marine Corps, with respect to 
personnel in the Marine Corps, authority to make all determinations to 
administer the act.

(Pub. L. 89-554, 80 stat. 379 (5 U.S.C. 301))

[17 FR 5391, June 14, 1952, as amended at 19 FR 7959, Dec. 2, 1954; 44 
FR 22456, Apr. 16, 1979]



PART 719--REGULATIONS SUPPLEMENTING THE MANUAL FOR COURTS-MARTIAL--Table of Contents




                        Subparts A-B  [Reserved]

                        Subpart C--Trial Matters

Sec.
719.112  Authority to grant immunity from prosecution.
719.113-719.114  [Reserved]
719.115  Release of information pertaining to accused persons; 
          spectators at judicial sessions.

                          Subpart D  [Reserved]

                    Subpart E--Miscellaneous Matters

719.138  Fees of civilian witnesses.
719.139-719.141  [Reserved]
719.142  Suspension of counsel.
719.143  Petition for new trial under 10 U.S.C. 873.
719.144  Application for relief under 10 U.S.C. 869, in cases which have 
          been finally reviewed.
719.145-719.150  [Reserved]
719.151  Furnishing of advice and counsel to accused placed in pretrial 
          confinement.
719.155  Application under 10 U.S.C. 874(b) for the substitution of an 
          administrative form of discharge for a punitive discharge or 
          dismissal.

    Authority: 3 U.S.C. 301; 5 U.S.C. 301; 10 U.S.C. 815, 5013, 5148; 32 
CFR 700.206 and 700.1202.



                        Subparts A-B  [Reserved]



                        Subpart C--Trial Matters



Sec. 719.112  Authority to grant immunity from prosecution.

    (a) General. In certain cases involving more than one participant, 
the interests of justice may make it advisable to grant immunity, either 
transactional or testimonial, to one or more of the participants in the 
offense in consideration for their testifying for the Government or the 
defense in the investigation and/or the trial of the principal offender. 
Transactional immunity, as that term is used in this section, shall mean 
immunity from prosecution for any offense or offenses to which the 
compelled testimony relates. Testimonial immunity, as that term is used 
in this section, shall mean immunity from the use, in aid of future 
prosecution, of testimony or other information compelled under an order 
to testify (or any information directly or indirectly derived from such 
testimony or other information). The authority to grant either 
transactional or testimonial immunity to a witness is reserved to 
officers exercising general court-martial jurisdiction. This authority 
may be exercised in any case whether or not formal charges have been 
preferred and whether or not the matter has been referred for trial. The 
approval of the Attorney General of the United States on certain orders 
to testify may be required, as outlined below.
    (b) Procedure. The written recommendation that a certain witness be 
granted either transactional or testimonial immunity in consideration 
for testimony deemed essential to the Government or to the defense shall 
be forwarded to an officer competent to convene a general court-martial 
for the witness for whom immunity is requested, i.e., any officer 
exercising general court-martial jurisdiction. Such recommendation will 
be forwarded by the trial counsel or defense counsel in

[[Page 186]]

cases referred for trial, the pretrial investigating officer conducting 
an investigation upon preferred charges, the counsel or recorder of any 
other fact-finding body, or the investigator when no charges have yet 
been preferred. The recommendation shall state in detail why the 
testimony of the witness is deemed so essential or material that the 
interests of justice cannot be served without the grant of immunity. The 
officer exercising general court-martial jurisdiction shall act upon 
such request after referring it to his staff judge advocate for 
consideration and advice. If approved, a copy of the written grant of 
immunity must be served upon the accused or his defense counsel within a 
reasonable time before the witness testifies. Additionally, if any 
witness is expected to testify in response to a promise of leniency, the 
terms of the promise of leniency must be reduced to writing and served 
upon the accused or his defense counsel in the same manner as a grant of 
immunity.
    (c) Civilian witnesses. Pursuant to 18 U.S.C. 6002 and 6004, if the 
testimony or other information of a civilian witness at a court-martial 
may be necessary in the public interest, and if the civilian witness has 
refused or is likely to refuse to testify or provide other information 
on the basis of a privilege against self-incrimination, then the 
approval of the Attorney General of the United States, or his designee, 
must be obtained prior to the execution or issuance of an order to 
testify to such civilian witness. The cognizant officer exercising 
general court-martial jurisdiction may obtain the approval of the 
Attorney General in such a circumstance by directing a message or letter 
requesting the assistance of the Judge Advocate General (Code 20) in the 
form prescribed in paragraph (e) of this section.
    (d) Cases involving national security. In all cases involving 
national security or foreign relations of the United States, the 
cognizant officer exercising general court-martial jurisdiction shall 
forward any proposed grant of immunity to the Judge Advocate General for 
the purpose of consultation with the Department of Justice. See section 
0126 of the Manual of the Judge Advocate General regarding relations 
between the Departments of Defense and Justice. The cognizant officer 
exercising general court-martial jurisdiction may obtain approval by the 
Attorney General of a proposed grant of immunity by directing a letter 
requesting the assistance of the Judge Advocate General (Code 20) in the 
form prescribed in paragraph (e) of this section.
    (e) Content of immunity requests. In all cases in which approval of 
the Attorney General of the United States is required prior to the 
issuance of a grant of immunity, whether under paragraph (c) or (d) of 
this section, the cognizant officer exercising general court-martial 
jurisdiction shall forward by message or letter the proposed order to 
testify and grant of immunity to the Judge Advocate General (Code 20). 
The order to testify should be substantially in the form set forth in 
appendix A-1-i(3) of the Manual of the Judge Advocate General. Requests 
for assistance shall be in writing, should allow at least three weeks 
for consideration, and must contain the following information:
    (1) Name, citation, or other identifying information of the 
proceeding in which the order is to be used.
    (2) Name of the witness for whom the immunity is requested.
    (3) Name of the employer or company with which a witness is 
associated or the military unit or organization to which a witness is 
assigned.
    (4) Date and place of birth, if known, of the witness.
    (5) FBI or local police file number, if any, and if known.
    (6) Whether any State or Federal charges are pending against the 
witness and the nature of the charges.
    (7) Whether the witness is currently incarcerated, under what 
conditions, and for what length of time.
    (8) A brief resume of the background of the investigation or 
proceeding before the agency or department.
    (9) A concise statement of the reasons for the request, including:
    (i) What testimony the witness is expected to give;
    (ii) How this testimony will serve the public interest;
    (iii) Whether the witness:

[[Page 187]]

    (A) Has invoked the privilege against self-incrimination; or
    (B) Is likely to invoke the privilege;
    (iv) If paragraph (e)(9)(iii)(B) of this section is applicable, then 
why it is anticipated that the prospective witness will invoke the 
privilege.
    (10) An estimate as to whether the witness is likely to testify in 
the event immunity is granted.
    (f) Post-testimony procedure. After a witness immunized in 
accordance with paragraphs (c) and (d) of this section has testified, 
the following information should be provided to the United States 
Department of Justice, Criminal Division, Immunity Unit, Washington, DC 
20530, via the Judge Advocate General (Code 20).
    (1) Name, citation, or other identifying information, of the 
proceeding in which the order was requested.
    (2) Date of the examination of the witness.
    (3) Name and residence address of the witness.
    (4) Whether the witness invoked the privilege.
    (5) Whether the immunity order was used.
    (6) Whether the witness testified pursuant to the order.
    (7) If the witness refused to comply with the order, whether 
contempt proceedings were instituted, or are contemplated, and the 
result of the contempt proceeding, if concluded. A verbatim transcript 
of the witness' testimony, authenticated by the military judge, should 
be provided to the Judge Advocate General at the conclusion of the 
trial. No testimony or other information given by a civilian witness 
pursuant to such an order to testify (or any information directly or 
indirectly derived from such testimony or other information) may be used 
against him in any criminal case, except a prosecution for perjury, 
giving a false statement, or otherwise failing to comply with the order.
    (g) Review. Under some circumstances, the officer granting immunity 
to a witness may be disqualified from taking reviewing action on the 
record of the trial before which the witness granted immunity testified. 
A successor in command not participating in the grant of immunity would 
not be so disqualified under those circumstances.
    (h) Form of grant. In any case in which a military witness is 
granted transactional immunity, the general court-martial convening 
authority should execute a written grant, substantially in the form set 
forth in appendix section A-1-i(1) of the Manual of the Judge Advocate 
General. In any case in which a military witness is granted testimonial 
immunity, the general court-martial convening authority should execute a 
written grant substantially in the form set forth in appendix section A-
1-i(2) of the Manual of the Judge Advocate General.
[56 FR 57803, Nov. 14, 1991]



Secs. 719.113-719.114  [Reserved]



Sec. 719.115  Release of information pertaining to accused persons; spectators at judicial sessions.

    (a) Release of information--(1) General. There are valid reasons for 
making information available to the public concerning the administration 
of military justice. The task of striking a fair balance among the 
protection of individuals accused of offenses, improper or unwarranted 
publicity pertaining to their cases, public understanding of the 
problems of controlling misconduct in the military service, and the 
workings of military justice requires the exercise of sound judgment by 
those responsible for administering military justice and by 
representatives of the press and other news media. At the heart of all 
guidelines pertaining to the furnishing of information concerning an 
accused or the allegations against him is the mandate that no statements 
or other information shall be furnished to news media for the purpose of 
influencing the outcome of an accused's trial, or which could reasonably 
be expected to have such an effect.
    (2) Applicability of regulations. These regulations apply to all 
persons who may obtain information as the result of duties performed in 
connection with the processing of accused persons, the investigation of 
suspected offenses, the imposition of nonjudicial punishment, or the 
trial of persons by court-martial. These regulations are applicable from 
the time of apprehension, the

[[Page 188]]

preferral of charges, or the commencement of an investigation directed 
to make recommendations concerning disciplinary action, until the 
imposition of nonjudicial punishment, completion of trial (court-martial 
sessions) or disposition of the case without trial. These regulations 
also prescribe guidelines for the release or dissemination of 
information to public news agencies, to other public news media, or to 
other persons or agencies for unofficial purposes.
    (3) Release of information. (i) As a general matter, release of 
information pertaining to accused persons should not be initiated by 
persons in the naval service. Information of this nature should be 
released only upon specific request therefor, and, subject to the 
following guidelines, should not exceed the scope of the inquiry 
concerned.
    (ii) Except in unusual circumstances, information which is subject 
to release under the regulation should be released by the cognizant 
public affairs officer; requests for information received from 
representatives of news media should be referred to the public affairs 
office for action. When an individual is suspected or accused of an 
offense, care should be taken to indicate that the individual is alleged 
to have committed or is suspected or accused of having committed an 
offense, as distinguished from stating or implying that the accused has 
committed the offense or offenses.
    (4) Information subject to release. On inquiry, the following 
information concerning a person accused or suspected of an offense or 
offenses may generally be released except as provided in paragraph (6) 
of this section:
    (i) The accused's name, grade, age, unit, regularly assigned duties, 
duty station, and sex.
    (ii) The substance of the offenses of which the individual is 
accused or suspected.
    (iii) The identity of the victim of any alleged or suspected 
offense, except the victim of a sexual offense.
    (iv) The identity of the apprehending and investigative agency, and 
the identity of accused's counsel, if any.
    (v) The factual circumstances immediately surrounding the 
apprehension of the accused, including the time and place of 
apprehension, resistance, pursuit, and use of weapons.
    (vi) The type and place of custody, if any.
    (vii) Information which has become a part of the record of 
proceedings of the court-martial in open session.
    (viii) The scheduling of any stage in the judicial process.
    (ix) The denial by the accused of any offense or offenses of which 
he may be accused or suspected (when release of such information is 
approved by the counsel of the accused).
    (5) Prohibited information. The following information concerning a 
person accused or suspected of an offense or offenses generally may not 
be released, except as provided in paragraph (a)(6) of this section.
    (i) Subjective opinions, observations, or comments concerning the 
accused's character, demeanor at any time (except as authorized in 
paragraph (4)(v) of this section), or guilt of the offense or offenses 
involved.
    (ii) The prior criminal record (including other apprehensions, 
charges or trials) or the character or reputation of the accused.
    (iii) The existence or contents of any confession, admission, 
statement, or alibi given by the accused, or the refusal or failure of 
the accused to make any statement.
    (iv) The performance of any examination or test, such as polygraph 
examinations, chemical tests, ballistics tests, etc., or the refusal or 
the failure of the accused to submit to an examination or test.
    (v) The identity, testimony, or credibility of possible witnesses, 
except as authorized in paragraph (4)(iii), of this section.
    (vi) The possibility of a plea of guilty to any offense charged or 
to a lesser offense and any negotiation or any offer to negotiate 
respecting a plea of guilty.
    (vii) References to confidential sources or investigative techniques 
or procedures.
    (viii) Any other matter when there is a reasonable likelihood that 
the dissemination of such matter will affect the deliberations of an 
investigative body or the findings or sentence of a court-martial or 
otherwise prejudice

[[Page 189]]

the due administration of military justice either before, during, or 
after trial.
    (6) Exceptional cases. The provisions of this section are not 
intended to restrict the release of information designed to enlist 
public assistance in apprehending an accused or suspect who is a 
fugitive from justice or to warn the public of any danger that a 
fugitive accused or suspect may present. Further, since the purpose of 
this section is to prescribe generally applicable guidelines, there may 
be exceptional circumstances which warrant the release of information 
prohibited under paragraph (a)(5) of this section or the nonrelease of 
information permitted under paragraph (a)(4) of this section. Attention 
should be given to the Secretary of the Navy instructions implementing 
the Freedom of Information Act (5720.42 series) and the Privacy Act 
(5211.5C series). Consultation with the command judge advocate, if one 
is assigned, or with the cognizant Naval Legal Service Office concerning 
interpretation and application of these instructions is encouraged.
    (b) Spectators. (1) The sessions of courts-martial shall be open to 
the public, which includes members of both the military and civilian 
communities. In order to maintain the dignity and decorum of the 
proceedings or for other good cause, the military judge may reasonably 
limit the number of spectators in, and the means of access to, the 
courtroom, exclude specific persons from the courtroom, and close a 
session. Video and audio recording and taking of photographs, except for 
the purpose of preparing the record of trial, in the courtroom during 
the proceedings and radio or television broadcasting of proceedings from 
the courtroom shall not be permitted. The military judge may, as a 
matter of discretion, permit contemporaneous closed-circuit video or 
audio transmission to permit viewing or hearing by an accused removed 
from the courtroom or by spectators when courtroom facilities are 
inadequate to accommodate a reasonable number of spectators.
    (2) At pretrial hearings. In any preliminary hearing, including a 
hearing conducted pursuant to 10 U.S.C. 832 or a court of inquiry or 
investigation conducted pursuant to the Manual of the Judge Advocate 
General, the presiding officer, upon motion of the Government or the 
defense or upon his motion, may direct that all or part of the hearing 
be held in closed session and that all persons not connected with the 
hearing be excluded therefrom. The decision to exclude spectators shall 
be based on the ground that dissemination of evidence, information, or 
argument presented at the hearing may disclose matters that will be 
inadmissible in evidence at a subsequent trial by court-martial and is 
therefore likely to interfere with the right of the accused to a fair 
trial by an impartial tribunal.
[38 FR 5997, Mar. 6, 1973, as amended at 47 FR 49644, Nov. 2, 1982; 50 
FR 23800, June 6, 1985]



                          Subpart D  [Reserved]



                    Subpart E--Miscellaneous Matters



Sec. 719.138  Fees of civilian witnesses.

    (a) Method of Payment. The fees and mileage of a civilian witness 
shall be paid by the disbursing officer of the command of a convening 
authority or appointing authority or by the disbursing officer at or 
near the place where the tribunal sits or where a deposition is taken 
when such disbursing officer is presented a properly completed public 
voucher for such fees and mileage, signed by the witness and certified 
by one of the following:
    (1) Trial counsel or assistant trial counsel of the court-martial;
    (2) Summary court officer;
    (3) Counsel for the court in a court of inquiry;
    (4) Recorder or junior member of a board to redress injuries to 
property, or
    (5) Military or civil officer before whom a deposition is taken.

The public voucher must be accompanied by a subpoena or invitational 
orders (Joint Travel Regulations, vol. 2, chap. 6), and by a certified 
copy of the order appointing the court-martial, court of inquiry, or 
investigation. If, however, a deposition is taken before charges are 
referred for trial, the fees and mileage of the witness concerned shall 
be paid by the disbursing officer at or near the place where the 
deposition is taken upon presentation of a

[[Page 190]]

public voucher, properly completed as hereinbefore prescribed, and 
accompanied by an order from the officer who authorized the taking of 
the deposition, subscribed by him and directing the disbursing officer 
to pay to the witness the fees and mileage supported by the public 
voucher. When the civilian witness testifies outside the United States, 
its territories and possessions, the public voucher must be accompanied 
by a certified copy of the order appointing the court-martial, court of 
inquiry, or investigation, and by an order from the convening authority 
or appointing authority, subscribed by him and directing the disbursing 
officer to pay to the witness the fees and mileage supported by the 
public voucher.
    (b) Obtaining money for advance tender or payment. Upon written 
request by one of the officers listed in paragraph (a) of this section, 
the disbursing officer under the command of the convening or appointing 
authority, or the disbursing officer nearest the place where the witness 
is found, will, at once, provide any of the persons listed in paragraph 
(a) of this section, or any other officer or person designated for the 
purpose, the required amount of money to be tendered or paid to the 
witness for mileage and fees for one day of attendance. The person so 
receiving the money for the purpose named shall furnish the disbursing 
officer concerned with a proper receipt.
    (c) Reimbursement. If an officer charged with serving a subpoena 
pays from his personal funds the necessary fees and mileage to a 
witness, taking a receipt therefor, he is entitled to reimbursement upon 
submitting to the disbursing officer such receipt, together with a 
certificate of the appropriate person named in paragraph (a) of this 
section, to the effect that the payment was necessary.
    (d) Certificate of person before whom deposition is taken. The 
certificate of the person named in paragraph (a) of this section, before 
whom the witness gave his deposition, will be evidence of the fact and 
period of attendance of the witness and the place from which summoned.
    (e) Payment of accrued fees. The witness may be paid accrued fees at 
his request at any time during the period of attendance. The disbursing 
officer will make such interim payment(s) upon receipt of properly 
executed certificate(s). Upon his discharge from attendance, the witness 
will be paid, upon the execution of a certificate, a final amount 
covering unpaid fees and travel, including an amount for return travel. 
Payment for return travel will be made upon the basis of the actual fees 
and mileage allowed for travel to the court, or place designated for 
taking a deposition.
    (f) Computation. Travel expenses shall be determined on the basis of 
the shortest usually traveled route in accordance with official 
schedules. Reasonable allowance will be made for unavoidable detention.
    (g) Nontransferability of accounts. Accounts of civilian witnesses 
may not be transferred or assigned.
    (h) Signatures. Signatures of witnesses signed by mark must be 
witnessed by two persons.
    (i) Rates for civilian witnesses prescribed by law--(1) Civilian 
witnesses not in Government employ. A civilian not in Government employ, 
who is compelled or required to testify as a witness before a Naval 
tribunal at a specified place or to appear at a place where his 
deposition is to be taken for use before a court or fact-finding body, 
will receive fees, subsistence, and mileage as provided in 28 U.S.C. 
1821. Witness and subsistence fees are not prorated. Instead any 
fractional part of a calendar day expended in attendance or qualifying 
for subsistence entitles the witness to payment for a full day. Further, 
nothing in this paragraph shall be construed as authorizing the payment 
of attendance fees to witnesses for:
    (i) Attendance or travel which is not performed either as a direct 
result of being compelled to testify pursuant to a subpoena or as a 
direct result of invitational orders; or
    (ii) For travel which is performed prior to being duly summoned as a 
witness; or
    (iii) For travel returning to their places of residence if the 
travel from their places of residence does not qualify for payment under 
this paragraph.
    (2) Civilian witnesses in Government employ. When summoned as a 
witness, a

[[Page 191]]

civilian in the employ of the Government shall be paid as authorized by 
Joint Travel Regulations.
    (j) Supplemental construction of section. Nothing in this paragraph 
shall be construed as permitting or requiring the payment of fees to 
those witnesses not requested or whose testimony is determined not to 
meet the standards of relevancy and materiality set forth in accordance 
with MCM, 1984, R.C.M. 703.
    (k) Expert witnesses (1) The convening authority will authorize the 
employment of an expert witness and will fix the limit of compensation 
to be paid such expert on the basis of the normal compensation paid by 
United States attorneys for attendance of a witness of such standing in 
United States courts in the area involved. Information concerning such 
normal compensation may be obtained from the nearest officer exercising 
general court-martial jurisdiction having a judge advocate assigned in 
other than an additional duty, temporary duty, or temporary additional 
duty capacity. Convening authorities at overseas commands will adhere to 
fees paid such witnesses in the Hawaiian area and may obtain information 
as to the limit of such fees from the Commander, Naval Base, Pearl 
Harbor. See paragraph (l) of this section for fees payable to foreign 
nationals.
    (2) The provisions of paragraph (i) of this section are applicable 
to expert witnesses. However, the expert witness fee prescribed by the 
convening authority will be paid in lieu of ordinary attendance fees on 
those days the witness is required to attend the court.
    (3) An expert witness employed in strict accordance with MCM, 1984, 
R.C.M. 703(d), may be paid compensation at the rate prescribed in 
advance by the official empowered to authorize his employment (11 Comp. 
Gen. 504). In the absence of such authorization, no fees other than 
ordinary witness fees may be paid for the employment of an individual as 
an expert witness. After an expert witness has testified pursuant to 
such employment, the certificate of one of the officers listed in 
subsection a above, when presented to the disbursing officer, shall also 
enclose a certified copy of the authorization of the convening 
authority.
    (l) Payment of witness fees to foreign nationals: Officers 
exercising general court-martial jurisdiction in areas other than a 
State of the United States shall establish rates of compensation for 
payment of foreign nationals who testify as witnesses, including expert 
witnesses, at courts-martial convened in such areas.
[38 FR 5997, Mar 6, 1973, as amended at 47 FR 49644, Nov. 2, 1982; 50 FR 
23801, June 6, 1985]



Secs. 719.139-719.141  [Reserved]



Sec. 719.142  Suspension of counsel.

    (a) Report of Allegations of Misconduct or Disability. When 
information comes to the attention of a member of a court-martial, a 
military judge, trial or defense counsel, staff judge advocate, member 
of the Navy-Marine Corps Court of Military Review or other directly 
interested or concerned party that a judge advocate or civilian who is 
acting or is about to act as counsel before a proceeding conducted under 
the UCMJ or MCM is or has been unable to discharge properly all the 
duties of his or her position by reason of mental or physical disability 
or has been engaged in professional or personal misconduct of such a 
serious nature as to demonstrate that he or she is lacking in integrity 
or is failing to meet the ethical standards of the profession or is 
otherwise unworthy or unqualified to perform the duties of a judge 
advocate or attorney, such information should be reported to the 
commanding officer of that judge advocate or, in the case of civilian 
counsel, to the officer exercising general court-martial jurisdiction 
over the command convening the proceedings or to the Judge Advocate 
General.
    (b) Form of Report. The report shall:
    (1) Be in writing, under oath or affirmation, and made and signed by 
the individual reporting the information.
    (2) State that the individual reporting the information has personal 
knowledge or belief or has otherwise received reliable information 
indicating that:
    (i) The counsel is, or has been, unable to discharge properly all 
the duties of

[[Page 192]]

his or her office by reason of mental or physical disability; or
    (ii) The counsel is or has been engaged in professional or personal 
misconduct of such a serious nature as to demonstrate that he or she is 
lacking in integrity or is failing to meet the ethical standards of the 
profession; or
    (iii) The counsel is unworthy or unqualified to perform his or her 
duties;
    (3) Set forth the grounds of the allegation together with all 
relevant facts; and
    (4) Be forwarded to the appropriate authority as set forth in 
paragraph (a).
    (c) Consideration of the Report--(1) Action by the Commanding 
Officer of a judge advocate. Upon receipt of the report, the commanding 
officer:
    (i) Shall dismiss any report relating to the performance of a judge 
advocate more properly appealed under law or any report that is 
frivolous, unfounded, or vague and return it to the reporting 
individual;
    (ii) May make further inquiry into the report at his or her 
discretion to determine the merits of the report. The commanding officer 
may appoint an officer to investigate informally the allegations of the 
report to determine whether further action is warranted. Any officer so 
appointed should be a judge advocate senior in rank to the judge 
advocate being investigated;
    (iii) May take appropriate action to address and dispose of the 
matter being mindful of such measures as warning, counseling, caution, 
instruction, proceedings in contempt, therapy, and other punitive or 
administrative action; or
    (iv) Shall, if the commanding officer is of the opinion that 
evidence of disability or professional or personal misconduct exists, 
and that remedial measures short of suspension or decertification are 
not appropriate or will not be effective, forward the original 
complaint, a written report of the inquiry or investigation, all other 
relevant information, and his or her comments and recommendations to the 
officer in the chain of command exercising general court-martial 
authority.
    (2) Action by Officer Exercising General Court-Martial Authority. 
(i) Upon receipt of a report of an allegation of misconduct or 
disability of a counsel, the officer exercising general court-martial 
convening authority:
    (A) May take the action authorized by subsections (c)(1)(i), (ii) or 
(iii); or
    (B) Shall, if he or she considers that evidence of disability or 
professional or personal misconduct exists and that other remedial 
measures short of suspension or decertification are not appropriate or 
will not be effective, appoint a board of officers to investigate the 
matter and to report its findings and its recommendations. This board 
shall be comprised of at least three officers, each an Article 27(b), 
Uniform Code of Military Justice, certified judge advocate. If 
practicable, each of the officers of the board should be senior to the 
judge advocate under investigation. If the counsel is a member of the 
Marine Corps, a majority of the members of the board should be Marine 
Corps judge advocates. The senior officer of the board shall cause 
notice to be given to the counsel, judge advocate or civilian 
(respondent), informing him or her of the misconduct or other 
disqualification alleged and affording him or her the opportunity to 
appear before the board for a hearing. The respondent shall be permitted 
at least ten (10) days' notice prior to the hearing. Failure to appear 
on a set date after notice shall constitute waiver of appearance, absent 
good cause shown. The respondent shall be generally afforded the rights 
of a party as set out in section 0304 of this Manual, except that, in 
the event the judge advocate respondent wishes to have military counsel 
appointed, he or she shall not have the right to select or identify a 
particular military counsel. A civilian respondent may not be 
represented by military counsel, but may be represented by civilian 
counsel at no expense to the Government. Upon ascertaining the relevant 
facts after notice and hearing, a written report of the findings and 
recommendations of the board shall be made to the officer who convened 
the board. In all cases, a written copy of the board's findings and 
recommendations shall be provided to the respondent. The respondent 
shall be given an opportunity to comment on the report in writing.

[[Page 193]]

    (ii) Upon receipt of the report of the board of investigation, the 
officer exercising general court-martial authority shall:
    (A) Return the report to the board for further investigation, if the 
investigation is determined to be incomplete; or
    (B) Forward the report of the board of investigation to the Judge 
Advocate General together with comments and recommendations concerning 
suspension of the counsel involved.
    (3) Action by the Judge Advocate General. (i) Upon receipt of a 
report of an allegation of misconduct or disability of a counsel, the 
Judge Advocate General:
    (A) May take the action authorized by subsections (c)(1)(i), (ii), 
or (iii);
    (B) May appoint a board of officers for investigation and hearing in 
accordance with subsections (c)(2)(i)(B) or
    (C) May request the officer exercising general court-martial 
jurisdiction over the command of the respondent (if judge advocate 
counsel) or over the proceedings (if civilian counsel) to take the 
matter for investigation and hearing in accordance with subsection 
(c)(2)(i)(B).
    (ii) Upon receipt of the report of the investigating board, the 
Judge Advocate General:
    (A) May determine whether the respondent is to be suspended or 
decertified and, if so, whether for a stated term or indefinitely;
    (B) May determine that the findings of the board do not warrant 
further action; or
    (C) May return the report to the sending officer with appropriate 
instructions for further inquiry or action. The Judge Advocate General 
may, sua sponte, or upon petition of the respondent, modify or revoke 
any prior order of suspension or dismissal of a report. Further, if the 
Judge Advocate General suspends counsel, the Judge Advocates General of 
the other armed forces will be notified.
    (d) Grounds justifying suspension of counsel or suspension or 
decertification of a Judge Advocate. (1) Suspension or decertification 
is to be employed only after it has been established that a counsel has 
been unable to discharge properly all the duties of his or her office by 
reason of mental or physical disability or has been engaged in 
professional or personal misconduct of such a serious nature as to 
demonstrate that he or she is lacking in integrity or is failing to meet 
the ethical standards of the profession or is otherwise unworthy or 
unqualified to perform the duties of a counsel Action to suspend or 
decertify should not be initiated because of personal prejudice or 
hostility toward counsel, nor should such action be initiated because 
counsel has initiated an aggressive, zealous or novel defense, or the 
apparent misconduct stems from inexperience or lack of instruction.
    (2) Specific grounds for suspension or decertification include, but 
are not limited to, the following:
    (i) Demonstrated incompetence while acting as counsel before, during 
or after a court-martial.
    (ii) Preventing or obstructing justice, including the deliberate use 
of frivolous or unwarranted dilatory tactics.
    (iii) Fabricating papers or other evidence.
    (iv) Tampering with a witness.
    (v) Abusive conduct toward the court-martial, the Navy-Marine Corps 
Court of Military Review, the military judge, or opposing counsel.
    (vi) Flagrant or repeated violations of any specific rules of 
conduct prescribed for counsel in the Manual for Courts-Martial.
    (vii) Conviction of an offense involving moral turpitude or 
conviction for violation of article 48, UCMJ.
    (viii) Disbarment by a State Bar, Federal Court, or the United 
States Court of Military Appeals.
    (ix) Suspension as counsel by the Judge Advocate General of the 
Navy, Army, or Air Force or the General Counsel of the Department of 
Transportation.
    (x) Flagrant or repeated violations of the Uniform Rules of Practice 
Before Navy-Marine Corps Courts-Martial as outlined in appendix A-1-p(1) 
of the Manual of the Judge Advocate General.
    (xi) Flagrant or repeated violations of the provisions of section 
0134 of this Manual of the Judge Advocate General dealing with the 
Release of Information Pertaining to Accused Persons; Spectators at 
Judicial Sessions.

[[Page 194]]

    (xii) Failure to meet the rules set forth in the ABA Code of 
Professional Responsibility and the ABA Standards on Fair Trial and Free 
Press and The Prosecution Function and the Defense Function. In view of 
the unique mission and personal requirements of the military, many of 
the rules and principles of the ABA Code or Standards are not applicable 
to the military lawyer. Accordingly, the rules are to be used as a guide 
only, and a failure to comply with the specific wording of a rule is not 
to be construed as a violation of the rule where common sense would 
indicate to a reasonable person that there is a distinction between the 
civilian context, which the codes were drafted to embrace, and the 
unique concerns of the military setting, where the codes serve as a 
general guide.
[50 FR 23801, June 6, 1985]



Sec. 719.143  Petition for new trial under 10 U.S.C. 873.

    (a) Statutory provisions. 10 U.S.C. 873, provides, ``At any time 
within 2 years after approval by the convening authority of a court-
martial sentence, the accused may petition the Judge Advocate General 
for a new trial on the grounds of newly discovered evidence or fraud on 
the court. If the accused's case is pending before a Court of Military 
Review or before the Court of Military Appeals, that Judge Advocate 
General shall refer the petition to the appropriate court for action. 
Otherwise the Judge Advocate General shall act upon the petition.''
    (b) Submission Procedures: At any time within 2 years after approval 
by the convening authority of a court-martial sentence, the accused may 
petition the Judge Advocate General for a new trial on the ground of 
newly discovered evidence or fraud on the court-martial. The petition 
for new trial may be submitted by the accused personally, or by 
accused's counsel, regardless of whether the accused has been separated 
from the service. A petition may not be submitted after the death of the 
accused.
    (c) Contents of petitions: The form and contents of petitions for 
new trial are specified in MCM, 1984, R.C.M. 1210(c). The petition for a 
new trial shall be written and shall be signed under oath or affirmation 
by the accused, by a person possessing the power of attorney of the 
accused for that purpose, or by a person with the authorization of an 
appropriate court to sign the petition as the representative of the 
accused. The petition shall contain the following information, or an 
explanation why such matters are not included:
    (1) The name, service number, and current address of the accused;
    (2) The date and location of the trial;
    (3) The type of court-martial and the title or position of the 
convening authority;
    (4) The request for the new trial;
    (5) The sentence or a description thereof as approved or affirmed, 
with any later reduction thereof by clemency or otherwise,
    (6) A brief description of any finding or sentence believed to be 
unjust;
    (7) A full statement of the newly discovered evidence or fraud on 
the court-martial which is relied upon for the remedy sought;
    (8) Affidavits pertinent to the matters in subsection (6)i; and
    (9) Affidavit of each person whom the accused expects to present as 
a witness in the event of a new trial. Each affidavit should set forth 
briefly the relevant facts within the personal knowledge of the witness.
    (d) Who may act on petition. If the accused's case is pending before 
a Court of Military Review or the Court of Military Appeals, the Judge 
Advocate General shall refer the petition to the appropriate court for 
action. Otherwise, the Judge Advocate shall act on the petition.
    (e) Ground for New Trial. A new trial may be granted only on grounds 
of newly discovered evidence or fraud on the court-martial.
    (1) A new trial shall not be granted on the grounds of newly 
discovered evidence unless the petition shows that;
    (i) The evidence was discovered after the trial,
    (ii) The evidence is not such that it would have been discovered by 
the petitioner at the time of trial in the exercise of due diligence; 
and
    (iii) The newly discovered evidence, if considered by a court-
martial in the light of all other pertinent evidence,

[[Page 195]]

would probably produce a substantially more favorable result for the 
accused.
    (2) No fraud on the court-martial warrants a new trial unless it had 
a substantial contributing effect on a finding of guilty or the sentence 
adjudged.
    (f) Action on the petition. (1) The authority considering the 
petition may cause such additional investigation to be made and such 
additional information to be secured as that authority believes 
appropriate. Upon written request, and in his discretion, the authority 
considering the petition may permit oral argument on the matter.
    (2) When a petition is considered by the Judge Advocate General, any 
hearing may be before the Judge Advocate General or before an officer or 
officers designated by the Judge Advocate General.
    (3) If the Judge Advocate General believes meritorious grounds for 
relief under Article 74, Uniform Code of Military Justice have been 
established but that a new trial is not appropriate, the Judge Advocate 
General may act under article 74, Uniform Code of Military Justice, if 
authorized, or transmit the petition and related papers to the Secretary 
concerned with a recommendation.
    (4) The Judge Advocate may also, in cases which have been finally 
reviewed but have not been reviewed by a Court of Military Review, act 
under article 69, Uniform Code of Military Justice.
[50 FR 23803, June 6, 1985]



Sec. 719.144  Application for relief under 10 U.S.C. 869, in cases which have been finally reviewed.

    (a) Statutory provisions. 10 U.S.C. 869 provides in pertinent part, 
``The findings or sentence, or both, in a court-martial case not 
reviewed under subsection (a) or under section 866 of this title 
(article 66) may be modified or set aside, in whole or in part, by the 
Judge Advocate General on the ground of newly discovered evidence, fraud 
on the court, lack of jurisdiction over the accused or the offense, 
error prejudicial to the substantial rights of the accused, or the 
appropriateness of the sentence. If such a case is considered upon 
application of the accused, the application must be filed in the Office 
of the Judge Advocate General by the accused on or before the last day 
of the two-year period beginning on the date the sentence is approved 
under section 860(c) of this title (article 60(c)), unless the accused 
establishes good cause for failure to file within that time.''
    (b) Time Limitations. In order to be considered by the Judge 
Advocate General, an application for relief must be placed in military 
channels if the applicant is on active duty, or be deposited in the mail 
if the applicant is no longer on active duty, on or before the last day 
of the two-year period beginning on the date the sentence is approved by 
the convening authority. An application not filed in compliance with 
these time limits may be considered if the Judge Advocate General 
determines, in his or her sole discretion, that ``good cause'' for 
failure to file within the time limits has been established by the 
applicant.
    (c) Submission procedures. Applications for relief may be submitted 
to the Judge Advocate General by letter. If the accused is on active 
duty, the application shall be submitted via the applicant's commanding 
officer, and the command that convened the court, and the command that 
reviewed the case under 10 U.S.C. 864(a) or (b). If the original record 
of trail is held by the command that reviewed the case under 10 U.S.C. 
864(a) or (b), it shall be forwarded as a enclosure to the endorsement. 
If the original record of trial has been filed in the National Personnel 
Records Center, the endorsement will include all necessary retrieval 
data (accession number, box number, and shelf location) obtained from 
the receipt returned from the National Personnel Records Center to the 
sending activity. This endorsement shall also include information and 
specific comment on the grounds for relief asserted in the application, 
and an opinion on the merits of the application. If the applicant is no 
longer on active duty, the application may be submitted directly to the 
Judge Advocate General.
    (d) Contents of applications. All applications for relief shall 
contain:
    (1) Full name of the applicant;
    (2) Social Security number and branch of service, if any;

[[Page 196]]

    (3) Present grade if on active duty or retired, or ``civilian'' or 
``deceased'' as applicable;
    (4) Address at time the application is forwarded;
    (5) Date of trial;
    (6) Place of trial;
    (7) Command title of the organization at which the court-martial was 
convened (convening authority);
    (8) Command title of the officer exercising review authority in 
accordance with 10 U.S.C. 864 over the applicant at the time of trial, 
if applicable;
    (9) Type of court-martial which convicted the applicant, and 
sentence adjudged;
    (10) General grounds for relief which must be one or more of the 
following:
    (i) Newly discovered evidence;
    (ii) Fraud on the court;
    (iii) Lack of jurisdiction over the accused or the offense;
    (iv) Error prejudicial to the substantial rights of the accused;
    (v) Appropriateness of the sentence;
    (11) An elaboration of the specific prejudice resulting from any 
error cited. (Legal authorities to support the applicant's contentions 
may be included, and the format used may take the form of a legal brief 
if the applicant so desires.);
    (12) Any other matter which the applicant desires to submit;
    (13) Relief requested; and
    (14) Facts and circumstances to establish ``good cause'' for a 
failure to file the application within the time limits prescribed in 
paragraph (b) of this section, if applicable; and
    (15) If the application is signed by a person other than the 
applicant pursuant to subsection e, an explanation of the circumstances 
rendering the applicant incapable of making application. The applicant's 
copy of the record of trial will not be forwarded with the application 
for relief, unless specifically requested by the Judge Advocate General.
    (e) Signatures on applications. Unless incapable of making 
application, the applicant shall personally sign the application under 
oath before an official authorized to administer oaths. If the applicant 
is incapable of making application, the application may be signed under 
oath and submitted by the applicant's spouse, next of kin, executor, 
guardian or other person with a proper interest in the matter. In this 
regard, one is considered incapable of making application for purposes 
of this section when unable to sign the application under oath due to 
physical or mental incapacity.
[50 FR 23804, June 6, 1985]



Secs. 719.145-719.150  [Reserved]



Sec. 719.151  Furnishing of advice and counsel to accused placed in pretrial confinement.

    The Department of the Navy Corrections Manual, SECNAVINST 1640.9, 
reiterates the requirement of Article 10, UCMJ, that, when a person is 
placed in pretrial confinement, immediate steps should be taken to 
inform the confinee of the specific wrong of which he is accused and try 
him or to dismiss the charges and release him. The Corrections Manual 
requires that this information normally will be provided within 48 hours 
along with advice as to the confinee's right to consult with lawyer 
counsel and his right to prepare for trial. Lawyer counsel may be either 
a civilian lawyer provided by the confinee at his own expense or a 
military lawyer provided by the Government. If a confinee requests to 
confer with a military lawyer, such lawyer should normally be made 
available for consultation within 48 hours after the request is made.
[39 FR 18437, May 28, 1974]



Sec. 719.155  Application under 10 U.S.C. 874(b) for the substitution of an administrative form of discharge for a punitive discharge or dismissal.

    (a) Statutory provisions. 10 U.S.C. 874(b) provides that the 
``Secretary concerned may, for good cause, substitute an administrative 
form of discharge for a discharge or dismissal executed in accordance 
with the sentence of a court-martial.''
    (b) Submission procedures. Applications for relief will be submitted 
to the Secretary using the following address: Secretary of the Navy 
(Judge Advocate General, Code 20), 200 Stovall Street, Alexandria, VA 
22332-2400. Except in unusual circumstances, applications

[[Page 197]]

will not normally be considered if received within five (5) years of the 
execution of the punitive discharge or dismissal, or within five (5) 
years of disapproval of a prior request under 10 U.S.C. 874(b).
    (c) Contents of the application. All applications shall contain:
    (1) Full name of the applicant;
    (2) Social Security Number, service number (if different), and 
branch of service of the applicant;
    (3) Present age and date of birth of the applicant;
    (4) Present residence of the applicant;
    (5) Date and place of the trial, and type of court-martial which 
resulted in the punitive discharge or dismissal;
    (6) Command title of the convening authority of the court-martial 
which resulted in the punitive discharge or dismissal;
    (7) Offense(s) of which the applicant was convicted, and sentence 
finally approved from the trial which resulted in the punitive discharge 
or dismissal;
    (8) Date the punitive discharge or dismissal was executed;
    (9) Applicant's present marital status, and number and ages of 
dependents, if any;
    (10) Applicant's civilian criminal record (arrest(s) with 
disposition, and conviction(s)), both prior and subsequent to the court-
martial which resulted in the punitive discharge or dismissal;
    (11) Applicant's entire court-martial record (offense(s) of which 
convicted and finally approved sentence(s)), and nonjudicial punishment 
record (including offense(s) and punishment(s) awarded);
    (12) Any military administrative discharge proceedings 
(circumstances and disposition) initiated against the applicant;
    (13) Applicant's full employment record since the punitive discharge 
or dismissal was executed;
    (14) The specific type and character of administrative discharge 
requested pursuant to 10 U.S.C. 874(b) (a more favorable administrative 
discharge than that requested will not be approved);
    (15) At least three but not more than six character affidavits, (The 
character affidavits must be notarized, must indicate the relationship 
of the affiant to the applicant, and must include the address of the 
affiant as well as specific reasons why the affiant believes the 
applicant to be of good character. The affidavits should discuss the 
applicant's character primarily as reflected in the civilian community 
subsequent to the punitive discharge or dismissal which is the subject 
of the application);
    (16) Any matters, other than the character affidavits, supporting 
the considerations described in subparagraph (18) below;
    (17) Any other relief sought within the Department of the Navy and 
outside the Department of the Navy including dates of application and 
final dispositions;
    (18) A statement by the applicant, setting forth the specific 
considerations which the applicant believes constitute ``good cause,'' 
so as to warrant the substitution of an administrative form of discharge 
for the punitive discharge or dismissal previously executed. (In this 
connection, 10 U.S.C. 874(b) does not provide another regular or 
extraordinary procedure for the review of a court-martial. Questions of 
guilt or innocence, or legal issues attendant to the court-martial which 
resulted in the punitive discharge or dismissal, are neither relevant 
nor appropriate for consideration under 10 U.S.C. 874(b). As used in the 
statute, ``good cause'' was envisioned by Congress to encompass only 
Secretarial exercise of clemency and ultimate control of sentence 
uniformity. Accordingly, in determining what constitutes ``good cause'' 
under 10 U.S.C. 874(b), the primary Secretarial concern will be with the 
applicant's record in the civilian community subsequent to his or her 
punitive separation. Material submitted by the 10 U.S.C. 874(b) 
applicant should be consistent with the foregoing.)
    (d) Signature on application. Unless incapable of making application 
himself or herself, the applicant shall personally sign the application, 
under oath, before a notary or other official authorized to administer 
oaths. If the applicant is incapable of executing the application, the 
application may be signed under oath and submitted by

[[Page 198]]

the applicant's spouse, next of kin, executor, guardian and other person 
recognized as a personal representative by the law of the applicant's 
domicile. One is considered incapable of executing an application for 
purposes of this paragraph only when the applicant is unable to sign the 
application under oath due to physical or mental incapacity. When an 
application is signed by a person other than the applicant, the 
circumstances rendering the applicant incapable of making sworn 
application shall be set forth in the application, with appropriate 
documentation.
    (e) Privacy Act Statement. Disclosure of personal information 
requested by paragraph (c) of this section is voluntary; however, 
failure to accurately provide all requested information may result in 
the application being denied because of inadequate documentation of good 
cause.
[47 FR 49645, Nov. 2, 1982, as amended at 50 FR 23804, June 6, 1985]



PART 720--DELIVERY OF PERSONNEL; SERVICE OF PROCESS AND SUBPOENAS; PRODUCTION OF OFFICIAL RECORDS--Table of Contents




                    Subpart A--Delivery of Personnel

Sec.
720.1  Delivery of persons requested by state authorities in criminal 
          cases.
720.2  Delivery when persons are within territorial limits of the 
          requesting State.
720.3  Delivery when persons are beyond territorial limits of the 
          requesting State.
720.4  Persons stationed outside the United States.
720.5  Authority of the Judge Advocate General and the General Counsel.
720.6  Agreement required prior to delivery to State authorities.
720.7  Delivery of persons to federal authorities.
720.8  Delivery of persons to foreign authorities.
720.9  Circumstances in which delivery is refused.
720.10  Members released by civil authorities on bail or on their own 
          recognizance.
720.11  Interviewing servicemembers or civilian employees by federal 
          civilian investigative agencies.
720.12  Request for delivery of members serving sentence of court-
          martial.
720.13  Request for delivery of members serving sentence of a state 
          court.
720.14-720.19  [Reserved]

       Subpart B--Service of Process and Subpoenas Upon Personnel

720.20  Service of process upon personnel.
720.21  Members or civilian employees subpoenaed as witnesses in State 
          courts.
720.22  Members or civilian employees subpoenaed as witnesses in federal 
          courts.
720.23  Naval prisoners as witnesses or parties in civilian courts.
720.24  Interviews and depositions in connection with civil litigation 
          in matters pertaining to official duties.
720.25  Repossession of personal property.
720.26-720.29  [Reserved]

                Subpart C--Production of Official Records

720.30  Production of official records in response to court order.
720.31  Production of official records in the absence of court order.
720.32  Certificates of full faith and credit.

   Subpart D--Compliance With Court Orders by Department of the Navy 
    Members, Employees, and Family Members Outside the United States

720.40  Purpose.
720.41  Definitions.
720.42  Policy.
720.43  Points of contact.
720.44  Responsible officials.
720.45  Procedures.
720.46  Overseas screening programs.
720.47  Report.

    Authority: 5 U.S.C. 301; 10 U.S.C. 5031 and 5148; 32 CFR 700.206 and 
700.1202.



                    Subpart A--Delivery of Personnel

    Source: 57 FR 5228, Feb. 13, 1992, unless otherwise noted.



Sec. 720.1  Delivery of persons requested by State authorities in criminal cases.

    Subpart A of this part deals with requests by State authorities for 
the surrender of members or civilians pursuant to arrest warrants or 
similar process, generally in connection with a criminal prosecution. 
Responding to such requests by a State for delivery of members or 
civilian employees involves balancing the Federal interest in preserving 
sovereign immunity and the productivity, peace, good order, and 
discipline of the installation against the right of the State to 
exercise its jurisdiction. Additionally, by

[[Page 199]]

regulation, naval and Marine authorities are limited in the extent to 
which they can directly assist such an act. Commands should respond to 
such requests as set out below, generally using the minimum authority 
necessary to preserve the Federal interests without unduly restricting 
State jurisdiction.



Sec. 720.2  Delivery when persons are within the territorial limits of the requesting State.

    When the delivery of any member or civilian is requested by local 
civil authorities of a State for an offense punishable under the laws of 
that jurisdiction, and such person is located at a Navy or Marine Corps 
installation within the requesting jurisdiction, or aboard a ship within 
the territorial waters of such jurisdiction, commanding officers are 
authorized to and normally will deliver such person when a proper 
warrant is issued. In the case of a member, delivery will only be 
effected upon compliance with Sec. 720.6, subject to the exceptions in 
Sec. 720.9. A judge advocate of the Navy or Marine Corps should be 
consulted before delivery is effected. The rule discussed above applies 
equally to civilian employees and civilian contractors and their 
employees when located on a Navy or Marine Corps installation, except 
that compliance with Sec. 720.6 and consideration of Sec. 720.9 are not 
required (for purposes of this part, ``State'' includes the District of 
Columbia, territories, commonwealths, and all possessions or 
protectorates of the United States). Commands should normally not become 
actively involved in civilian law enforcement. When a command has 
determined that a person is to be delivered in response to a valid 
warrant, the following guidance should be considered. If the person to 
be delivered is a military member, the member may be ordered to report 
to a location designated by the commanding officer and surrendered to 
civil authorities under Article 14, UCMJ (10 U.S.C. 814). If the person 
to be delivered is a civilian, the person may be invited to report to 
the designated space for delivery. If the civilian refuses, the civilian 
authorities may be escorted to a place where the civilian is located in 
order that delivery may be effected. A civilian may be directed to leave 
a classified area. All should be done with minimum interference to good 
order and discipline.



Sec. 720.3  Delivery when persons are beyond territorial limits of the requesting State.

    (a) General. When State civil authorities request delivery of any 
member of the Navy or Marine Corps for an alleged crime or offense 
punishable under the law of the jurisdiction making the request, and 
such member is not attached to a Navy or Marine Corps activity within 
the requesting State or a ship within the territorial waters thereof, 
the following action will be taken. Any officer exercising general 
court-martial jurisdiction, or officer designated by him, or any 
commanding officer, after consultation with a judge advocate of the Navy 
or Marine Corps, is authorized (upon compliance with the provisions of 
this section and Sec. 720.6, and subject to the exceptions in 
Sec. 720.9) to deliver such member to make the member amenable to 
prosecution. The member may be delivered upon formal or informal waiver 
of extradition in accordance with Sec. 720.3(b), or upon presentation of 
a fugitive warrant, in which case the procedures of Sec. 720.3(c) apply. 
The rule discussed above applies equally to civilian employees and 
civilian contractors and their employees when located on a Department of 
the Navy installation not within the requesting State, except that 
compliance with Sec. 720.6 and consideration of Sec. 720.9 are not 
required.
    (b) Waiver of extradition. (1) Any member may waive formal 
extradition. A waiver must be in writing and be witnessed. It must 
include a statement that the member signing it has received counsel of 
either a military or civilian attorney prior to executing the waiver, 
and it must further set forth the name and address of the attorney 
consulted.
    (2) In every case where there is any doubt as to the voluntary 
nature of a waiver, such doubt shall be resolved against its use and all 
persons concerned will be advised to comply with the procedures set 
forth in Sec. 720.3(c).
    (3) Executed copies of all waivers will be mailed to the Judge 
Advocate General immediately after their execution.

[[Page 200]]

    (4) When a member declines to waive extradition, the nearest Naval 
Legal Service Office or Marine Corps staff judge advocate shall be 
informed and shall confer with the civil authorities as appropriate. The 
member concerned shall not be transferred or ordered out of the State in 
which he is then located without the permission of the Secretary of the 
Navy (Judge Advocate General), unless a fugitive warrant is obtained as 
set forth in Sec. 720.3(c).
    (c) Fugitive warrants. (1) A fugitive warrant, as used in this 
chapter, is a warrant issued by a State court of competent jurisdiction 
for the arrest of a member. Normally, a State requesting delivery of a 
member from another State will issue a fugitive warrant to the State 
where the member is then located.
    (2) Upon issuance of a fugitive warrant by the requesting State to 
the State in which the member is located, the latter State will normally 
request delivery of the member to local State authorities. Delivery to 
local State authorities should be arranged by Navy or Marine Corps 
officers designated in Sec. 720.3(a), upon compliance with the 
provisions of Sec. 720.6, and subject to the conditions of Secs. 720.9 
and 720.3(c) (3) and (4).
    (3) Upon receipt of a request for delivery of a member under 
fugitive warrant to State authorities, if the member voluntarily waives 
extradition, the provisions of Sec. 720.3(b) apply. If the member is 
delivered to local authorities but refuses to waive extradition in the 
courts of the State in which he is located.
    (4) No delivery of a member by Navy or Marine Corps officers 
pursuant to a fugitive warrant or waiver of extradition shall be 
effected without completion of the agreement required by Sec. 720.6 and 
execution of such agreement either:
    (i) By authorities of both the requesting State and the State in 
which the member is located, or
    (ii) By authorities of the State in which the member is located if 
such authorities, on behalf of the requesting State, accept the full 
responsibility for returning the number to a command designated by the 
Department of the Navy.
    (d) Members stationed outside the United States. When the member 
sought by State authorities is not located within the United States, see 
Sec. 720.4.



Sec. 720.4  Persons stationed outside the United States.

    (a) Persons desired by local U.S. authorities. When delivery of any 
member in the Navy or Marine Corps, or any civilian employee or 
dependent, is desired for trial by state authorities and the individual 
whose presence is sought is stationed outside the United States, the 
provisions of subpart D of this part will be followed. In all such 
cases, the nearest judge advocate of the Navy or Marine Corps shall be 
consulted before any action is taken.
    (b) Members desired by U.S. Federal authorities. When delivery of 
any member of the Navy or Marine Corps is desired for trial in a Federal 
district court, upon appropriate representation by the Department of 
Justice to the Secretary of the Navy (Judge Advocate General), the 
member will be returned to the United States at the expense of the 
Department of the Navy and held at a military facility convenient to the 
Department of the Navy and to the Department of Justice. Delivery may be 
accomplished as set forth in Sec. 720.7, subject to the exceptions in 
Sec. 720.9.



Sec. 720.5  Authority of the Judge Advocate General and the General Counsel.

    (a) Authority of the Judge Advocate General. The Judge Advocate 
General, the Deputy Judge Advocate General, and the Assistant Judge 
Advocates General are authorized to act for the Secretary of the Navy in 
performance of functions under this chapter.
    (b) Authority of the General Counsel. The authority of the General 
Counsel of the Navy is prescribed by Navy Regulation (32 CFR 700.203 (a) 
and (g)) and by appropriate departmental directives and instructions 
(e.g., SECNAVINST 5430.25D).\1\ The principal areas of responsibility of 
the Office of the General

[[Page 201]]

Counsel (OGC) are commerical law, including maritime contract matters; 
civilian employee law; real property law; and Freedom of Information Act 
and Privacy Act matters as delineated in 32 CFR part 701. The Office of 
the General Counsel shares responsibility with the Judge Advocate 
General for environmental law cases.
---------------------------------------------------------------------------


    \1\ Copies may be obtained if needed, from the Commanding Officer, 
Naval Publication and Forms Center, 5801 Tabor Avenue, Philadelphia, PA 
19120.
---------------------------------------------------------------------------

    (c) Points of contact. Commanding officers are advised to contact 
their local area judge advocates for assistance in referring matters to 
the appropriate office of the Judge Advocate General or General Counsel.
    (d) Coordination with the Commandant of the Marine Corps. Marine 
Corps commands shall inform the Commandant of the Marine Corps (CMC) of 
all matters referred to the Judge Advocate General or the Office of 
General Counsel. Copies of all correspondence and documents shall also 
be provided to CMC. The Staff Judge Advocate to the Commandant (CMC 
(JAR)) shall be advised of all matters referred to the Judge Advocate 
General. Counsel to the Commandant shall be advised of matters referred 
to the Office of General Counsel.



Sec. 720.6  Agreement required prior to delivery to State authorities.

    (a) Delivery under Article 14, UCMJ. When delivery of any member of 
the Navy or Marine Corps to the civilian authorities of a State is 
authorized, the member's commanding officer shall, before making such 
delivery, obtain from the Governor or other duly authorized officer of 
such State a written agreement. The State official completing the 
agreement must show that he is authorized to bind the State to the terms 
of the agreement. When indicating in the agreement the naval or Marine 
Corps activity to which the member delivered is to be returned by the 
State, care should be taken to designate the closest appropriate 
activity (to the command to which the member is attached) that possesses 
special court-martial jurisdiction. The Department of the Navy considers 
this agreement substantially complied with when:
    (1) The member is furnished transportation (under escort in cases of 
delivery in accordance with Sec. 720.12) to a naval or Marine Corps 
activity as set forth in the agreement;
    (2) The member is provided cash to cover incidental expenses en 
route thereto; and
    (3) The Department of the Navy is so informed.

As soon as practicable, a copy of the delivery agreement shall be 
forwarded to the Judge Advocate General.
    (b) Delivery under Interstate Agreement on Detainers Act. Special 
forms are used when delivering prisoners under the Interstate Agreement 
on Detainers Act. The Act is infrequently used and most requests are 
pursuant to Article 14, UCMJ. See Sec. 720.12 for a detailed discussion 
of the Detainers Act.



Sec. 720.7  Delivery of persons to Federal authorities.

    (a) Authority to deliver. When Federal law enforcement authorities 
display proper credentials and Federal warrants for the arrest of 
members, civilian employees, civilian contractors and their employees, 
or dependents residing at or located on a Department of the Navy 
installation, commanding officers are authorized to and should allow the 
arrest of the individual sought. The exceptions in Sec. 720.9 may be 
applied to members. A judge advocate of the Navy or Marine Corps should 
be consulted before delivery is effected.
    (b) Agreement not required of Federal authorities. The agreement 
described in Sec. 720.6 is not a condition to the delivery of members to 
Federal law enforcement authorities. Regardless of whether the member is 
convicted or acquitted, after final disposition of the case, the member 
will be returned to the Naval Service (provided that naval authorities 
desire his return) and the necessary expenses will be paid from an 
appropriation under the control of the Department of Justice.



Sec. 720.8  Delivery of persons to foreign authorities.

    Except when provided by agreement between the United States and the 
foreign government concerned, commanding officers are not authorized to 
deliver members or civilian employees of the Department of the Navy, or 
their dependents residing at or located on a naval or Marine Corps 
installation, to

[[Page 202]]

foreign authorities. When a request for delivery of these persons is 
received in a country with which the United States has no agreement or 
when the commanding officer is in doubt, advice should be sought from 
the Judge Advocate General. Detailed information concerning the delivery 
of members, civilian employees, and dependents to foreign authorities 
when a status of forces agreement is in effect is contained in DoD 
Directive 5525.1 of 9 April 1985 and SECNAVINST 5820.4F.\2\
---------------------------------------------------------------------------


    \2\ See footnote 1 of Sec. 720.5(b).
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Sec. 720.9  Circumstances in which delivery is refused.

    (a) Disciplinary proceedings pending. When disciplinary proceedings 
involving military offenses are pending, commanding officers should 
obtain legal guidance from a judge advocate of the Navy or Marine Corps 
prior to delivery of members to Federal or State authorities.
    (b) When delivery may be refused. Delivery may be refused only in 
the following limited circumstances:
    (1) Where the accused has been retained for prosecution; or
    (2) When the commanding officer determines that extraordinary 
circumstances exist which indicate that delivery should be refused.
    (c) Delivery under Detainers Act. When the accused is undergoing 
sentence of a court-martial, see Sec. 720.12.
    (d) Reports required. When delivery will be refused, the commanding 
officer shall report the circumstances to the Judge Advocate General by 
telephone, or by message if telephone is impractical. The initial report 
shall be confirmed by letter setting forth a full statement of the 
facts. A copy of the report shall be forwarded to the regional 
coordinator.



Sec. 720.10  Members released by civil authorities on bail or on their own recognizance.

    A member of the Navy or Marine Corps arrested by Federal or State 
authorities and released on bail or on his own recognizance has a duty 
to return to his parent organization. Accordingly, when a member of the 
Navy or Marine Corps is arrested by Federal or State authorities and 
returns to his ship or station on bail, or on his own recognizance, the 
commanding officer, upon verification of the attesting facts, date of 
trial, and approximate length of time that should be covered by the 
absence, shall grant liberty or leave to permit appearance for trial, 
unless this would have a serious negative impact on the command. In the 
event that liberty or leave is not granted, a judge advocate of the Navy 
or Marine Corps should immediately be requested to act as liaison with 
the court. Nothing in this section is to be construed as permitting the 
member arrested and released to avoid the obligations of bond or 
recognizance by reason of the member's being in the military service.



Sec. 720.11  Interviewing servicemembers or civilian employees by federal civilian investigative agencies.

    Requests by the Federal Bureau of Investigation, Naval Investigative 
Service Command, or other Federal civilian investigative agencies to 
interview members or civilian employees of the Department of the Navy 
suspected or accused of crimes should be promptly honored. Any refusal 
of such a request shall be immediately reported to the Judge Advocate 
General, or the Office of General Counsel, as appropriate, by telephone, 
or by message if telephone is impractical. When the employee in question 
is a member of an exclusive bargaining unit, a staff judge advocate or 
General Counsel attorney will be consulted to determine whether the 
employee has a right to have a bargaining unit representative present 
during the interview.



Sec. 720.12  Request for delivery of members serving sentence of court-martial.

    (a) General. Article 14, UCMJ (10 U.S.C. 814), provides authority to 
honor requests for delivery of members serving a sentence of a court-
martial. Although seldom utilized, additional authority and mandatory 
obligation to deliver such members are provided by the Interstate 
Agreement on Detainers Act (18 U.S.C. app. 9, hereinafter ``the Act''), 
which applies to the Federal agency holding the prisoner. The Department 
of the Navy, as an agency of

[[Page 203]]

the Federal Government, shall comply with the Act. The Act is designed 
to avoid speedy-trial issues and to aid in rehabilitation efforts by 
securing a greater degree of certainty about a prisoner's future. The 
Act provides a way for a prisoner to be tried on charges pending before 
State courts, either at the request of the State where the charges are 
pending or the prisoner's request. When refusal of delivery under 
Article 14, UCMJ, is intended, comply with Sec. 720.9(d).
    (b) Interstate Agreement on Detainers Act. Upon request under the 
Act by either State authorities or the prisoner, the cognizant Navy or 
Marine Corps staff judge advocate, as appropriate, shall communicate 
with the appropriate State officials, and monitor and ensure that the 
cognizant commander acts on all such requests. The Act provides that 
court-martial sentences continue to run during temporary custody. This 
section does not cover requests between Federal authorities. The 
procedure set forth in Sec. 720.12(c) shall be applied in such cases.
    (1) State request. State officials may request delivery of prisoners 
in military custody under section 2, Article IV, of the Act. Where a 
detainer has been lodged against the prisoner, and the prisoner is 
serving a sentence (regardless of whether an appeal is in process), 
delivery is mandatory unless the request is disapproved by the Director 
of the Bureau of Prisons, Washington, DC, 20537 as the designee of the 
Attorney General for this purpose. 28 CFR 0.96(n). There has been no 
further delegation to military authority. The prisoner should be 
informed that he may request the Director of the Bureau of Prisons, 
Washington, DC 20537, within 30 days after such request is received, to 
deny the request. Upon the expiration of such 30-day period or upon the 
Director of the Bureau of Prisons' denial of the prisoner's request, 
whichever occurs first, the prisoner shall be delivered to the 
requesting authority.
    (2) Prisoner request. The obligation to grant temporary custody 
under the Act also applies to prisoners' requests to be delivered to 
State authority. Section 2, Article III(c) of the Act requires the 
custodial official to inform the prisoner of the existence of any 
detainer and of the prisoner's right to request disposition. The 
prisoner's request is directed to the custodial official who must 
forward it to the appropriate prosecuting official and court, with a 
certificate of prisoner status as provided by Article III of the Act.
    (c) Article 14, UCMJ. When a request for custody does not invoke the 
Interstate Agreement on Detainers Act, delivery of custody shall be 
governed by Article 14, UCMJ, and Secs. 720.2 through 720.9. The request 
shall be honored unless, in the exercise of discretion, there is an 
overriding reason for retaining the accused in military custody, e.g., 
additional courts-martial are to be convened or the delivery would 
severely prejudice the prisoner's appellate rights. Execution of the 
agreement discussed in Sec. 720.6 is a condition precedent to delivery 
to State authorities. It is not required before delivery to Federal 
authorities. See Sec. 720.7. Unlike delivery under the Act, delivery of 
custody pursuant to Article 14, UCMJ, interrupts execution of the court-
martial sentence.



Sec. 720.13  Request for delivery of members serving sentence of a state court.

    (a) General. Ordinarily, members serving protracted sentences 
resulting from a State criminal conviction will be processed for 
administrative discharge by reason of misconduct. It may, however, be in 
the best interest of the Naval Service to retain a member charged with a 
serious offense, subject to military jurisdiction, to try the member by 
court-martial. The Navy may obtain temporary custody of incarcerated 
members for prosecution with a request to the State under the Interstate 
Agreement on Detainers Act. 18 U.S.C. app. 9. The Department of the Navy 
may use the Act in the same manner in which State authorities may 
request members purusant to Sec. 720.12.
    (b) Interstate Agreement on Detainers Act. Military authorities may 
use the Act to obtain temporary custody of a member incarcerated in a 
State institution, pursuant to conviction by a State court, to resolve 
criminal

[[Page 204]]

charges against the member before a court-martial.
    (1) Detainer. If a command requests temporary custody under the Act, 
the commanding officer of the cognizant naval legal service office or 
the Marine Corps staff judge advocate, shall file a detainer with the 
warden, commissioner of corrections, or other State official having 
custody of the member. The detainer shall identify the member with 
particularity, enumerate the military charges pending, and request the 
command be notified in advance of any intention to release the member 
from confinement.
    (2) Request for delivery. As soon as practical after filing the 
detainer, the commanding officer of the cognizant naval legal service 
office or the Marine Corps staff judge advocate, shall prepare a written 
request for temporary custody of the member addressed to the State 
official charged with administration of the State penal system. The 
request shall designate the person(s) to whom the member is to be 
delivered and shall be transmitted via the military judge to whom the 
member's case has been assigned. If the request is properly prepared, 
the military judge shall approve, record, and transmit the request to 
the addressee official. The Act provides the State with a 30-day period 
after receipt of the request before the request is to be honored. Within 
that period of time, the governor of the State may disapprove the 
request, either unilaterally or upon the prisoner's request. If the 
governor disapproves the request, the command should coordinate any 
further action with the Judge Advocate General.
    (3) Responsibilities. The cognizant command shall ensure that the 
responsibilities of a receiving jurisdiction, delineated in section 2, 
Article IV of the Act, are discharged. In particular, the Act requires 
that the receiving jurisdiction:
    (i) Commence the prisoner's trial within 120 days of the prisoner's 
arrival, unless the court, for good cause shown during an Article 39(a), 
UCMJ, session, grants a continuance necessary or reasonable to promote 
the ends of justice;
    (ii) Hold the prisoner in a suitable jail or other facility 
regularly used for persons awaiting prosecution, except for periods 
during which the prisoner attends court or travels to or from any place 
at which his presence may be required;
    (iii) Return the prisoner to the sending jurisdiction at the 
earliest practical time, but not before the charges that underlie the 
request have been resolved (prematurely returning the prisoner will 
result in dismissal of the charges); and
    (iv) Pay all costs of transporting, caring for, keeping, and 
returning the prisoner to the sending jurisdiction, unless the command 
and the State agree on some other allocation of the costs or 
responsibilities.



Secs. 720.14-720.19  [Reserved]



       Subpart B--Service of Process and Subpoenas Upon Personnel

    Source: 57 FR 5232, Feb. 13, 1992, unless otherwise noted.



Sec. 720.20  Service of process upon personnel.

    (a) General. Commanding officers afloat and ashore may permit 
service of process of Federal or State courts upon members, civilian 
employees, dependents, or contractors residing at or located on a naval 
installation, if located within their commands. Service will not be made 
within the command without the commanding officer's consent. The intent 
of this provision is to protect against interference with mission 
accomplishment and to preserve good order and discipline, while not 
unnecessarily impeding the court's work. Where practical, the commanding 
officer shall require that the process be served in his presence, or in 
the presence of a designated officer. In all cases, individuals will be 
advised to seek legal counsel, either from a legal assistance attorney 
or from personal counsel for service in personal matters, and from 
Government counsel for service in official matters. The commanding 
officer is not required to act as a process server. The action required 
depends in part on the status of the individual requested and which 
State issued the process.

[[Page 205]]

    (1) In-State process. When a process server from a State or Federal 
court from the jurisdiction where the naval station is located requests 
permission to serve process aboard an installation, the command 
ordinarily should not prevent service of process so long as delivery is 
made in accordance with reasonable command regulations and is consistent 
with good order and discipline. Withholding service may be justified 
only in the rare case when the individual sought is located in an area 
under exclusive Federal jurisdiction not subject to any reservation by 
the State of the right to serve process. Questions on the extent of 
jurisdiction should be referred to the staff judge advocate, command 
counsel, or local naval legal service office. If service is permitted, 
an appropriate location should be designated (for example, the command 
legal office) where the process server and the member or employee can 
meet privately in order that process may be served away from the 
workplace. A member may be directed to report to the designated 
location. A civilian may be invited to the designated location. If the 
civilian does not cooperate, the process server may be escorted to the 
location of the civilian in order that process may be served. A civilian 
may be required to leave a classified area in order that the process 
server may have access to the civilian. If unusual circumstances require 
that the command not permit service, see Sec. 720.20(e).
    (2) Out-of-State process. In those cases where the process is to be 
served by authority of a jurisdiction other than that where the command 
is located, the person named is not required to accept process. 
Accordingly, the process server from the out-of-State jurisdiction need 
not be brought face-to-face with the person named in the process. 
Rather, the process server should report to the designated command 
location while the person named is contacted, apprised of the situation, 
and advised that he may accept service, but also may refuse. In the 
event that the person named refuses service, the process server should 
be so notified. If service of process is attempted from out-of-State by 
mail and refused, the refusal should be noted and the documents returned 
to the sender. Questions should be referred to the staff judge advocate, 
command counsel, or the local naval legal service office.
    (b) Service of process arising from official duties. (1) Whenever a 
member or civilian employee of the Department of the Navy is served with 
process because of his official position, the Judge Advocate General or 
the Associate General Counsel (Litigation), as appropriate, shall be 
notified by telephone, or by message if telephone is impractical. 
Notification shall be confirmed by a letter report by the nearest 
appropriate command. The letter report shall include the detailed facts 
which give rise to the action.
    (2) Any member or civilian employee served with Federal or State 
court civil or criminal process or pleadings (including traffic tickets) 
arising from actions performed in the course of official duties shall 
immediately deliver all such process and pleadings to the commanding 
officer. The commanding officer shall ascertain the pertinent facts and 
notify the Judge Advocate General or Associate General Counsel 
(Litigation), as appropriate, by telephone or by message if telephone is 
impractical, of the service and immediately forward the pleadings and 
process to the relevant office. The member or civilian employee will be 
advised of the right to remove civil or criminal proceedings from State 
to Federal court under 28 U.S.C. 1442, 1442a, rights under the Federal 
Employees Liability Reform and Tort Compensation Act (28 U.S.C. 2679b), 
if applicable, and the right of a Federal employee to request 
representation by Department of Justice attorneys in Federal (civil) or 
State (civil or criminal) proceedings and in congressional proceedings 
in which that person is sued in an individual capacity, as delineated in 
28 CFR 50.15. Requests for representation shall be addressed to the 
Judge Advocate General or Associate General Counsel (Litigation), as 
appropriate, and shall be endorsed by the commanding officer, who shall 
provide all necessary data relating to the questions of whether the 
person was acting within the course of official duty or scope of 
employment at the time of the incident out of which the suit arose.

[[Page 206]]

    (3) If the service of process involves a potential claim against the 
Government, see 32 CFR 750.12(a), 750.12(b), and 750.24. The right to 
remove to Federal Court under 28 U.S.C. 1442 and 1442a must be 
considered where the outcome of the State court action may influence a 
claim or potential claim against the United States. Questions should be 
directed to the Judge Advocate General or the Associate General Counsel 
(Litigation).
    (c) Service of process of foreign courts. (1) Usually, the 
amenability of members, civilian employees, and their dependents 
stationed in a foreign country, to the service of process from courts of 
the host country will have been settled by an agreement between the 
United States and the foreign country concerned (for example, in the 
countries of the signatory parties, amenability to service of civil 
process is governed by paragraphs 5(g) and 9 of Article VIII of the NATO 
Status of Forces Agreement, TIAS 2846). When service of process on a 
person described above is attempted within the command in a country in 
which the United States has no agreement on this subject, advice should 
be sought from the Judge Advocate General or the Associate General 
Counsel (Litigation), as appropriate. When service of process is upon 
the United States Government or one of its agencies or instrumentalities 
as the named defendant, the doctrine of sovereign immunity may allow the 
service of process to be returned to the court through diplomatic 
channels. Service of process directed to an official of the United 
States, on the other hand, must always be processed in accordance with 
the applicable international agreement or treaty, regardless of whether 
the suit involves acts performed in the course of official duties. The 
Judge Advocate General or the Associate General Counsel (Litigation), as 
appropriate, will arrange through the Department of Justice for defense 
of the suit against the United States or an official acting within the 
scope of official duties, or make other arrangements, and will issue 
instructions.
    (2) Usually, the persons described in Sec. 720.20(c)(1) are not 
required to accept service of process outside the geographic limits of 
the jurisdiction of the court from which the process issued. In such 
cases, acceptance of the service is not compulsory, but service may be 
voluntarily accepted in accordance with Sec. 720.20(b). In exceptional 
cases when the United States has agreed that service of process will be 
accepted by such persons when located outside the geographic limits of 
the jurisdiction of the court from which the process issued, the 
provisions of the agreement and of Sec. 720.20(a) will govern.
    (3) Under the laws of some countries (such as Sweden), service of 
process is effected by the document, in original or certified copy, 
being handed to the person for whom the service is intended. Service is 
considered to have taken place even if the person refuses to accept the 
legal documents. Therefore, if a commanding officer or other officer in 
the military service personally hands, or attempts to hand, that person 
the document, service is considered to have been effected, permitting 
the court to proceed to judgment. Upon receipt of foreign process with a 
request that it be served upon a person described in Sec. 720.20(c)(1), 
a commanding officer shall notify the person of the fact that a 
particular foreign court is attempting to serve process and also inform 
that person that the process may be ignored or received. If the person 
to be served chooses to ignore the service, the commanding officer will 
return the document to the embassy or consulate of the foreign country 
with the notation that the commanding officer had the document, that the 
person chose to ignore it, and that no physical offer of service had 
been made. The commanding officer will advise the Judge Advocate General 
or the Associate General Counsel (Litigation), as appropriate, of all 
requests for service of process from a foreign court and the details 
thereof.
    (d) Leave or liberty to be granted persons served with process. When 
members or civilian employees are either served with process, or 
voluntarily accept service of process, in cases where the United States 
is not a party to the litigation, the commanding officer normally will 
grant leave or liberty to the person served to permit compliance with 
the process, unless to do so would

[[Page 207]]

have an adverse impact on naval operations. When a member or civilian 
employee is a witness for a nongovernmental party because of performance 
of official duties, the commanding officer may issue the person 
concerned permissive orders authorizing attendance at the trail at no 
expense to the Government. The provisions of 32 CFR part 725 must also 
be considered in such cases. Members or civilian employees may accept 
allowances and mileage tendered; however, any fees tendered for 
testimony must be paid to the Department of the Navy unless the member 
or employee is on authorized leave while attending the judicial 
proceeding. When it would be in the best interests of the United States 
Government (for example, in State criminal trails), travel funds may be 
used to provide members and civilian employees as witnesses as provided 
in the Joint Federal Travel Regulations. Responsibility for the payment 
of the member's mileage and allowances will be determined pursuant to 
the Joint Federal Travel Regulations, Volume 1, paragraph M6300, 
subsections 1-3.\3\
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    \3\ See footnote 1 of Sec. 720.5(b).
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    (e) Report where service not allowed. Where service of process is 
not permitted, or where the member or civilian employee is not given 
leave, liberty, or orders to attend a judicial proceeding, a report of 
such refusal and the reasons therefor shall be made by telephone, or 
message if telephone is impractical, to the Judge Advocate General or 
the Associate General Counsel (Litigation), as appropriate.



Sec. 720.21  Members or civilian employees subpoenaed as witnesses in State courts.

    Where members or civilian employees are subpoenaed to appear as 
witnesses in State courts, and are served as described in Secs. 720.20, 
720.20(d) applies. If these persons are requested to appear as witnesses 
in State courts when the interests of the Federal Government are 
involved (e.g., Medical Care Recovery Act cases), follow the procedures 
described in Sec. 720.22. If State authorities are attempting to obtain 
the presence of a member or a civilian employee as a witness in a civil 
or criminal case, and such person is unavailable because of an overseas 
assignment, the command should immediately contact the Judge Advocate 
General, or the Associate General Counsel (Litigation), as appropriate.



Sec. 720.22  Members or civilian employees subpoenaed as witnesses in Federal courts.

    (a) Witnesses on behalf of Federal Government. When members or 
civilian employees of the Department of the Navy are required to appear 
as witnesses in a Federal Court to testify on behalf of the Federal 
Government in cases involving Department of the Navy activities, the 
Chief of Naval Personnel or the Commandant of the Marine Corps, as 
appropriate, will issue temporary additional duty orders to that person. 
The charges for such orders will be borne by the activity to which the 
required witness is attached. Payment to witnesses will be as provided 
by the Joint Federal Travel Regulations and U.S. Navy travel 
instructions. If the required witness is to appear in a case in which 
the activities of the Department of the Navy are not involved, the 
Department of the Navy will be reimbursed in accordance with the 
procedures outlined in the Navy Comptroller Manual, section 046268.
    (b) Witnesses on behalf of nongovernmental parties--(1) Criminal 
actions. When members or civilian employees are served with a subpoena 
to appear as a witness for a defendant in a criminal action and the fees 
and mileage required by rule 17(d) of the Federal Rules of Criminal 
Procedure are tendered, the commanding officer may issue the person 
subpoenaed permissive orders authorizing attendance at the trial at no 
expense to the Government, unless the person's absence would have an 
adverse impact on naval operations. In such a case, a full report of the 
circumstances will be made to the Judge Advocate General or, in the case 
of civilian employees, to the Associate General Counsel (Litigation). In 
those cases where fees and mileage are not tendered as required by rule 
17(d) of the Federal Rules of Criminal Procedure, but the person 
subpoenaed still desires to attend, the commanding officer also may 
issue permissive orders at no cost

[[Page 208]]

to the Government. Such persons, however, should be advised that an 
agreement as to reimbursement for any expenses incident to travel, 
lodging, and subsistence should be effected with the party desiring 
their attendance and that no reimnbursement should be expected from the 
Government.
    (2) Civil actions. When members or civilian employees are served 
with a subpoena to appear as a witness on the behalf of a 
nongovernmental party in a civil action brought in a Federal court, the 
provisions of Sec. 720.20 apply.



Sec. 720.23  Naval prisoners as witnesses or parties in civilian courts.

    (a) Criminal actions. When Federal or State authorities desire the 
attendance of a naval prisoner as a witness in a criminal case, they 
should submit a written request for such person's attendance to the 
Judge Advocate General. The civilian authority should include the 
following averments in its request:
    (1) That the evidence to be derived from the prisoner's testimony is 
unavailable from any other source:
    (2) That the civilian authority will provide adequate security 
arrangements for the prisoner and assume responsibility for the prisoner 
while he is in its custody; and
    (3) that the civilian authority will assume all costs of 
transporting the prisoner from the brig, of maintaining that prisoner 
while in civilian custody, and of returning the prisoner to the brig 
from which he was removed.

The civilian authority should also include in its request an estimate of 
the length of time the prisoner's services will be required, and should 
specify the mode of transport by which it intends to return the 
prisoner. Upon receipt of such a request, authority by the Judge 
Advocate General will be given, in a proper case, for the production of 
the requested naval prisoner in court without resort to a writ of habeas 
corpus ad testificandum (a writ which requires the production of a 
prisoner to testify before a court of competent jurisdiction).
    (b) Civil actions. The Department of the Navy will not authorize the 
attendance of a naval prisoner in a Federal or State court, either as a 
party or as a witness, in private litigation pending before such a 
court. The deposition of a naval prisoner may be taken in such a case, 
subject to reasonable conditions or limitations imposed by the command 
concerned.



Sec. 720.24  Interviews and depositions in connection with civil litigation in matters pertaining to official duties.

    Requests to interview, depose, or call as witnesses, current or 
former members or civilian employees of the Department of the Navy, 
regarding information obtained in the course of their official duties, 
including expert testimony related thereto, shall be processed in 
accordance with 32 CFR part 725.



Sec. 720.25  Repossession of personal property.

    Repossession of personal property, located on a Navy or Marine Corps 
installation, belonging to a member or to any dependent residing at or 
located on a Department of the Navy installation, may be permitted in 
the discretion of the commanding officer of the installation where the 
property is located, subject to the following. The documents purporting 
to authorize repossession and the procedures for repossessing the 
property must comply with State law. Prior to permitting physical 
repossession of any property, the commanding officer shall cause an 
informal inquiry into the circumstances and then determine whether to 
allow the repossession. If repossession is to be allowed, the person 
whose property is to be repossessed should be asked if he wishes to 
relinquish the property voluntarily. Repossession must be carried out in 
a manner prescribed by the commanding officer. In the case of property 
owned by civilian employees of the Department of the Navy or civilian 
contractors or their employees or dependents, the commanding officer 
should direct that the disputed property be removed from the 
installation until the commanding officer is satisfied that the dispute 
is resolved.

[[Page 209]]



Secs. 720.26-720.29  [Reserved]



                Subpart C--Production of Official Records



Sec. 720.30  Production of official records in response to court order.

    (a) General. Where unclassified naval records are desired by or on 
behalf of litigants, the parties will be informed that the records 
desired, or certified copies thereof, may be obtained by forwarding to 
the Secretary of the Navy, Navy Department, Washington, DC, or other 
custodian of the records, a court order calling for the particular 
records desired or copies thereof. Compliance with such court order will 
be effected by transmitting certified copies of the records to the clerk 
of the court out of which the process issues. See the provisions in the 
Secretary of the Navy Instruction 5211.5 series which set forth the 
additional requirement that reasonable efforts be made to notify all 
individuals to whom the record pertains of (1) the disclosure, and (2) 
the nature of the information provided, when the court order has become 
a matter of public record and the record is contained in a system of 
records as defined in the Secretary of the Navy Instruction 5211.5 
series. If an original record is produced by a naval custodian, it will 
not be removed from the custody of the person producing it, but copies 
may be placed in evidence. Upon written request of one or more parties 
in interest or their respective attorneys, records which would be 
produced in response to a court order as set forth above may be 
furnished without court order when such records are not in a `system of 
records' as defined by the Privacy Act (5 U.S.C. 552a) except as noted 
in paragraphs (b) and (c) of this section. In determining whether or not 
a record contained in a ``system of records'' will be furnished in 
response to a written request for that record, consideration shall be 
given to the provisions of the Secretary of the Navy Instruction 5720.42 
series. If the record is in a ``system of records,'' it may be produced 
upon written request of one or more parties in interest or their 
respective attorneys in the absence of a court order only if the 
individuals to whom the record pertains give written consent to the 
production or if the production is otherwise authorized under the 
Privacy Act and the Secretary of the Navy Instruction 5211.5 series. 
Whenever compliance with a court order for production of Department of 
the Navy records is deemed inappropriate for any reason, such as when 
they contain privileged or classified information, the records and 
subpoena may be forwarded to the Secretary of the Navy (Judge Advocate 
General) for appropriate action, and the parties to the suit so 
notified. Any release of classified information for civil court 
proceedings (whether civil or criminal in nature) must also be 
coordinated within the office of the Chief of Naval Operations (OP-009D) 
in accordance with the Chief of Naval Operations Instruction 5510.1 
series.
    (b) Records in the custody of National Personnel Records Center. 
Court orders, subpoenas duces tecum, and other legal documents demanding 
information from, or the production of, service or medical records in 
the custody of the National Personnel Records Center involving former 
(deceased or discharged) Navy and Marine Corps personnel shall be served 
upon the General Services Administration, 9700 Page Boulevard; St. 
Louis, MO 63132, rather than the Department of the Navy. In the 
following situations, the request shall be forwarded to the Secretary of 
the Navy (Judge Advocate General).
    (1) When the United States (Department of the Navy) is one of the 
litigants.
    (2) When the case involves a person or persons who are or have been 
senior officers or officials within the Department of the Navy; and
    (3) In other cases considered to be of special significance to the 
Judge Advocate General or the Secretary of the Navy.
    (c) Exceptions. Where not in conflict with the foregoing 
restrictions relative to personal information, the release of which 
would result in a clearly unwarranted invasion of personal privacy, the 
production in Federal, State, territorial, or local courts of 
evidentiary material from investigations conducted pursuant to this 
Manual, and the service, employment, pay or medical records (including 
medical records

[[Page 210]]

of dependents) of persons in the naval service is authorized upon 
receipt of a court order, without procuring specific authority from the 
Secretary of the Navy. When the request for production involves material 
related to claims in favor of the Government, notification should be 
made to the affirmative claims office at the naval legal service office 
having territorial responsibility in the area. Where travel is involved, 
it must be without expense to the Government.
    (d) Medical and other records of civilian employees. Production of 
medical certificates or other medical reports concerning civilian 
employees is controlled by the provisions of Executive Order 10561, 19 
FR 5963, as implemented by Federal Personnel Manual, chapter 294, and 
chapter 339.1-4 (reprinted in MANMED article 23-255(6)). Records of 
civilian employees other than medical records may be produced upon 
receipt of a court order without procuring specific authority from the 
Secretary of the Navy, provided there is not involved any classified or 
For-Official-Use-Only information, such as loyalty or security records. 
Records relating to compensation benefits administered by the Bureau of 
Employees' Compensation may not be disclosed except upon the written 
approval of that Bureau (20 CFR 1.21). In case of doubt, the matter 
should be handled in accordance with the provisions of subsection a 
above. Where information is furnished hereunder in response to a court 
order, it is advisable that certified copies rather than originals be 
furnished and that, where original records are to be produced, the 
assistance of the U.S. Attorney or U.S. Marshal be requested so that 
custody of the records may be maintained.
[38 FR 6021, Mar. 6, 1973, as amended at 48 FR 4466, Feb. 1, 1983]



Sec. 720.31  Production of official records in the absence of court order.

    (a) General. Release of official records outside the Department of 
the Navy in the absence of a court order is governed by the Privacy Act 
(5 U.S.C. 552a) and the Freedom of Information Act (5 U.S.C. 552). The 
following sources pertain: SECNAVINST 5211.5 series (Privacy) and 
SECNAVINST 5720.42 series (Freedom of Information).
    (b) Release of JAG Manual Investigations, Court-Martial Records, 
Articles 69 and 73 Petitions, and Article 138 Complaints of Wrongs. 
Except as provided in this section, only the Assistant Judge Advocates 
General (Civil Law) and (Military Law) shall make determinations 
concerning the release of the records covered herein if less than a 
release of the complete requested record will result. In all other 
instances the Deputy Assistant Judge Advocates General, who have 
cognizance of the record(s) in issue, may release such records. Local 
record holders are reminded that the authority to release records does 
not necessarily include denial authority.
    (1) JAG Manual Investigations (including enclosures). Any request 
for release outside the Department of the Navy shall be forwarded to the 
Assistant Judge Advocate General (Military Law) for determination, 
except that Privacy Act requests for release shall be forwarded to the 
Assistant Judge Advocate General (Civil Law) for determination.
    (2) Court-martial records and Articles 69 and 73 petitions. These 
are matters of public record and may be released by any local holder. 
Court-martial records should be released only following proper 
authentication.
    (3) Article 138 Complaints of Wrongs. Forward as in paragraph (b)(1) 
of this section.
    (c) Affirmative claims files. Affirmative claims files (including 
Medical Care Recovery Act files), except to the extent that such files 
contain copies of reports of investigations prepared under the Manual of 
the Judge Advocate General, or classified or privileged information, may 
be released by local holders to insurance companies to support claims; 
to civilian attorneys representing the injured party's and the 
Government's interests; and to other components of the Department of 
Defense, without the prior approval of the Judge Advocate General, 
provided that the amount of the claim is within the monetary settlement 
authority of the releaser. When the request for production involves 
material related to

[[Page 211]]

claims in favor of the Government, notification should be made to the 
affirmative claims office at the naval legal service office having 
territorial responsibility for the area.
    (d) Accounting for disclosures of records from systems of records. 
When records located in a ``system of records'' are released, the 
official responsible for releasing the records shall consult SECNAVINST 
5211.5 series regarding the requirement that accountings of the 
disclosures be maintained. Appendix A-3-a of the Manual of the Judge 
Advocate General is recommended for this purpose.


(1 CFR 18.14, and part 21, subpart B)

[45 FR 8599, Feb. 8, 1980, as amended at 48 FR 4466, Feb. 1, 1983]



Sec. 720.32  Certificates of full faith and credit.

    The Judge Advocate General, the Deputy Judge Advocate General, or 
any Assistant Judge Advocate General is authorized to execute 
certificates of full faith and credit certifying the signatures and 
authority of officers of the Department of the Navy.
[38 FR 6021, Mar. 6, 1973]



   Subpart D--Compliance With Court Orders by Department of the Navy 
    Members, Employees, and Family Members Outside the United States

    Authority: DoD Directive 5525.9, 54 FR 296, 32 CFR part 146.

    Source: 55 FR 47876, Nov. 16, 1990, unless otherwise noted.



Sec. 720.40  Purpose.

    This instruction:
    (a) Implements 32 CFR part 146.
    (b) Establishes policy and procedures for requesting the return to 
the United States of, or other action affecting, Department of the Navy 
(DON) personnel and employees serving outside the United States, and 
family members accompanying them, in compliance with court orders.



Sec. 720.41  Definitions.

    Court. Any judicial body in the United States with jurisdiction to 
impose criminal sanctions on a Department of the Navy member, employee, 
or family member.
    Employee. A civilian employed by the Department of the Navy or a 
component service, including an individual paid from non-appropriated 
funds, who is a citizen or national of the United States.
    Family member. A spouse, natural or adopted child, or other lawful 
dependent of a Department of the Navy employee or member accompanying 
the Department of the Navy member or employee assigned to duty outside 
the United States.
    Felony. A criminal offense that is punishable by incarceration for 
more than one year, regardless of the sentence that is imposed for 
commission of that offense.
    Member. An individual on active duty in the Navy, Naval Reserve, 
Marine Corps, or Marine Corps Reserve.
    Request for return. Any request or order received from a court, or 
from federal, state or local authorities concerning a court order, for 
the return to the United States of members, employees, or family 
members, for any reason listed in Sec. 720.42.
    Respondent. A member, employee, or family member whose return to the 
United States has been requested, or with respect to whom other 
assistance has been requested under this instruction.
    Responsible Official. Officials designated in this instruction to 
act on a request to return, or take other action affecting, members, 
employees or family members to the United States under this instruction.
    United States. The 50 states, the District of Columbia, Puerto Rico, 
Guam, the Northern Mariana Islands, American Samoa, and the Virgin 
Islands.



Sec. 720.42  Policy.

    (a) It is Department of the Navy policy to cooperate, as prescribed 
in this instruction, with courts and federal, state and local officials 
in enforcing court orders. The Department of the Navy will cooperate 
with requests when such action is consistent with

[[Page 212]]

mission requirements (including operational readiness), the provisions 
of applicable international agreements, and ongoing Department of 
Defense (DoD) investigations and courts-martial.
    (b) Every reasonable effort will be made to resolve the matter 
without the respondent returning to the United States, or other action 
being taken against the respondent under this instruction.
    (c) Requests to return members for felonies or for contempt 
involving unlawful or contemptuous removal of a child from the 
jurisdiction of a court or the custody of a parent or other person 
awarded custody by a court order will normally be granted, but only if 
the member cannot resolve the issue with the court without return to the 
United States. When the member's return is inconsistent with mission 
requirements, applicable international agreements, or ongoing DoD 
investigations or courts-martial, DoD approval of denial will be 
requested.
    (d) For all other requests involving members, return will be based 
on the circumstances of the individual case as provided in this 
instruction.
    (e) Members will normally be returned on a temporary additional duty 
(TAD) basis unless there are compelling reasons the return should be a 
permanent change of duty station (PCS).
    (f) The involuntary return of employees or family members in 
response to a request for return is not authorized. However, the 
following action will be taken:
    (1) Employees will be strongly urged to comply with court orders. 
Failure to comply with court orders involving felonies or contempt 
involving unlawful or contemptuous removal of a child from the 
jurisdiction of the court or the custody of a parent or other person 
awarded custody by a court order will normally require processing for 
adverse action, up to and including removal from federal service. 
Failure to comply with other court orders may require adverse action, 
depending on the circumstances of the individual case.
    (2) Family members will be strongly encouraged to comply with court 
orders. Family members who fail to comply with court orders involving 
felonies or contempt involving unlawful or contemptuous removal of a 
child from the jurisdiction of the court or the custody of a parent or 
other person awarded custody by a court order will normally have their 
command sponsorship removed. Failure to comply with other court orders 
may also result in removal of command sponsorship, depending on the 
circumstances of the individual case.
    (g) To facilitate prompt resolution of requests for return of 
members, minimize the burden on operating units, and to provide 
consistency during initial implementation of this new program, a limited 
number of responsible officials, designated in Sec. 720.44, will respond 
to requesting officials.



Sec. 720.43  Points of contact.

    (a) Authorities issuing requests for return or for other action 
under this instruction may contact the following activities:
    (1) Chief of Naval Personnel (Pers-14), Washington, DC 20370-5000 
(For Navy members and their family members).
    (2) Commandant, U.S. Marine Corps (Code JAR), Washington, DC 20380-
0001 (For Marine Corps members and their family members).
    (3) Director, Office of Civilian Personnel Management (Code OOL), 
800 N. Quincy Street, Arlington, VA 22203-1998 (For civilian personnel, 
including non-appropriated fund employees and their family members).
    (b) Upon receipt of a request for action under this instruction, the 
Office of Civilian Personnel Management will forward the request to the 
appropriate responsible official for action in accordance with 
Sec. 720.44.



Sec. 720.44  Responsible officials.

    The following officials are designated responsible officials for 
acting on requests to return or to take other action affecting members, 
employees or family members to the United States.
    (a) The Chief of Naval Personnel (CHNAVPERS) for requests involving 
Navy members and their family members who are not employees. The 
CHNAVPERS may delegate this authority within his headquarters, not below 
the 0-6 level for routine matters and not lower than the flag officer

[[Page 213]]

level for decisions to deny the request for return.
    (b) The Commandant of the Marine Corps (CMC) for requests involving 
Marine Corps members and their family members who are not employees. The 
CMC may delegate this authority within his headquarters, not below the 
0-6 level for routine matters and no lower that the general officer 
level for decisions to deny the request for return.
    (c) The local commanding officer or officer in charge for requests 
involving employees and their family members who are not active duty 
military members.
    (d) The Assistant Secretary of the Navy (Manpower and Reserve 
Affairs) (ASN(M&RA)) for requests not covered by Secs. 720.44 (a) 
through (c).



Sec. 720.45  Procedures.

    (a) If the request pertains to a felony or to contempt involving the 
unlawful or contemptuous removal of a child from the jurisdiction of a 
court or the custody of a parent or another person awarded custody by 
court order, and the matter cannot be resolved with the court without 
the respondent returning to the United States:
    (1) For members: The responsible official shall direct the 
commanding officer or officer in charge to order the member to return to 
the United States. Failure to comply will normally be the basis for 
disciplinary action against the member.
    (2) For employees, military and civilian family members: The 
responsible official shall strongly encourage the respondent to comply. 
Failure to comply may subject employees to adverse action, to include 
removal from the Federal service, and subject military and civilian 
family members to withdrawal of command sponsorship.
    (b) For all other requests when the matter cannot be resolved with 
the court without returning the respondent to the United States, the 
responsible official shall take the action described in this instruction 
when deemed appropriate with the facts and circumstances of each 
particular case, following consultation with legal staff.
    (c) When a member's return is inconsistent with mission 
requirements, the provisions of applicable international agreements, or 
ongoing DoD investigations and courts-martial, the Department of the 
Navy will ask DoD to approve denial of the request for the military 
members's return. To initiate this action, there must be an affirmative 
showing of articulable harm to the unit's mission or violation of an 
international agreement.
    (d) When a responsible official has determined a request for return 
is apparently based on an order issued by a court of competent 
jurisdiction, the responsible official shall complete action on the 
request for return within 30 days of receipt of the request for return 
by the responsible official, unless a delay is authorized by the 
ASN(M&RA).
    (e) When a delay to complete the action is warranted, the ASN(M&RA) 
will grant a 45 day delay, and provide a copy of that approval to the 
Assistant Secretary of Defense (Force Management & Personnel (ASD(FM&P)) 
and the General Counsel, DoD. The 45 day period begins upon request by 
the responsible official of the request for return. Conditions which, 
when accompanied by full supporting justification, will warrant the 
granting of the 45 day delay are:
    (1) Efforts are in progress to resolve the matter to the 
satisfaction of the court without the respondent's return to the United 
States.
    (2) To provide sufficient time for the respondent to provide 
evidence to show legal efforts to resist the request or to show 
legitimate cause for noncompliance.
    (3) To provide commanding officers an opportunity to detail the 
specific effect on command mission and operational readiness anticipated 
from the loss of the member or Department of the Navy employee, and to 
present facts relating to any international agreement, or ongoing DoD 
investigation or courts-martial.
    (f) A commanding officer or officer in charge who receives a request 
for the return of, or other action affecting, a member, family member, 
or employee not of his/her command will forward the request to the 
appropriate commanding officer or officer in charge,

[[Page 214]]

copy to the responsible official, and advise both of them by message 
that a request for return or other action has been forwarded to them.
    (g) A commanding officer or officer in charge who receives a request 
for the return of, or other action affecting, a member, family member, 
or employee of his/her command will:
    (1) Notify the respondent of the right to provide evidence to show 
legal efforts to resist the request, or to show legitimate cause for 
noncompliance for inclusion in the submission to the responsible 
official.
    (2) For members and their family members who are not employees, 
forward the request immediately to the appropriate responsible official, 
together with:
    (i) Any information the individual desires to provide to show legal 
efforts to resist the request, or otherwise to show legitimate cause for 
noncompliance.
    (ii) Facts detailing the specific impacts on command missions and 
readiness anticipated from loss of the member.
    (iii) Facts relating to any international agreements or ongoing DoD 
investigations or courts-martial involving the respondent.
    (iv) Information regarding conditions expected to interfere with a 
member's return to the command after completion of proceedings. If, in 
the opinion of the commanding officer, there are compelling reasons for 
the member to be returned to the United States PCS, provide full 
justification to support that recommendation to the cognizant officer.
    (3) If a delay in processing is warranted under Sec. 720.42 or 
Sec. 720.45(e), make a recommendation with supporting justification to 
the responsible official.
    (4) Monitor, and update as necessary, information provided to the 
responsible official.
    (h) The responsible official shall:
    (1) Determine whether the request is based on an order issued by a 
court of apparent competent jurisdiction and if so, complete action on 
the request no later than 30 days after its receipt by the responsible 
official. If a conflicts of law issue is presented between competing 
state interests, or between a state and a foreign host-nation, or 
between two different foreign nations, the matter shall be referred to 
the ASN(M&RA) on the first issue and to the Judge Advocate General (Code 
10) on the second and third issues.
    (2) Encourage the respondent to attempt to resolve the matter to the 
satisfaction of the court or other requesting authority without return 
of or other action affecting the member, employee, or family member.
    (3) When a delay to complete action under this section is warranted, 
request the delay from ASN(M&RA) with full supporting justification.
    (4) Examine all information the respondent desires to provide to 
show legal efforts to resist the request, or otherwise to show 
legitimate cause for noncompliance.
    (5) Requests for exception from the requirements of this instruction 
shall be submitted, with supporting justification, to the ASN(M&RA) for 
submission to the ASD(FM&P).
    (6) If a member will be ordered to return to the United States, 
determine if the member will be ordered TAD or PCS and advise the 
member's commanding officer of the determination.
    (7) If a member will be ordered to return to an appropriate port of 
entry to comply with a request, ensure:
    (i) The requesting officer has given official notification to the 
responsible official that the requesting official or other appropriate 
party will initiate action with the receiving jurisdiction to secure the 
member's delivery/extradition, as appropriate, per chapter 6 of the 
Manual of the Judge Advocate General, and provide for all costs incident 
thereto, including any escort if desired.
    (ii) If applicable, the necessary accounting data are provided to 
the commanding officer of the member or orders are issued.
    (iii) The member has arranged satisfactory foster care for any 
lawful minor dependents who will be left unaccompanied overseas upon the 
member's return to the United States.
    (8) Notify the requesting official at least 10 days before the 
member's return to the selected port of entry.
    (9) In the case of an employee or of a family member, the commanding 
officer or officer in charge of the activity

[[Page 215]]

to which the family member's sponsor is attached, or by which the 
employee is employed, will carry out the following steps:
    (i) An employee shall be strongly encouraged to comply with the 
court order or other request for return. Failure to comply may be the 
basis for adverse action to include removal from Federal service. 
Adverse action should only be taken after coordination with the 
cognizant civilian personnel office and legal counsel and in compliance 
with Civilian Personnel Instruction 752.
    (ii) If a family member of either a member or an employee is the 
subject of a request for return, the family member shall be strongly 
encouraged to comply with the court order. Failure to respond may be the 
basis for withdrawal of command sponsorship of the family member.
    (10) Report promptly to the ASN(M&RA) any actions taken under 
Sec. 720.45 (a) or (b).
    (i) The ASN(M&RA):
    (1) May grant delays of up to 45 days from the date of a request for 
delay in accordance with Sec. 720.45(e).
    (2) Will report promptly all delays of requests for the return of 
members to the ASD(FM&P) and to the General Counsel of the Department of 
Defense.
    (3) Will request from the ASD(FM&P), when warranted, exception to 
the policies and procedures of DoD Directive 5525.9 of December 27, 
1988.
    (4) Consolidate and forward reports of action taken under 
Sec. 720.45 (a) or (b) to the ASD(FM&P) and the General Counsel, DoD as 
required by DoD Directive 5525.9 of December 27, 1988.



Sec. 720.46  Overseas screening programs.

    The Chief of Naval Operations (CNO) and the CMC shall incorporate 
procedures requiring members and employees to certify they have legal 
custody of all minor dependents accompanying them outside the United 
States into service overseas screening programs.



Sec. 720.47  Report.

    The report requirement in this instruction is exempt from reports 
control by SECNAVINST 5214.2B.



PARTS 721-722  [RESERVED]






PART 723--BOARD FOR CORRECTION OF NAVAL RECORDS--Table of Contents




Sec.
723.1  General provisions.
723.2  Establishment, function and jurisdiction of the Board.
723.3  Application for correction.
723.4  Appearance before the board; notice; counsel; witnesses; access 
          to records.
723.5  Hearing.
723.6  Action by the Board.
723.7  Action by the Secretary.
723.8  Staff action.
723.9  Reconsideration.
723.10  Settlement of claims.
723.11  Miscellaneous provisions.

    Authority: 10 U.S.C. 1034, 1552.

    Source: 62 FR 8166, Feb. 24, 1997, unless otherwise noted.



Sec. 723.1  General provisions.

    This part sets up procedures for correction of naval and marine 
records by the Secretary of the Navy acting through the Board for 
Correction of Naval Records (BCNR or the Board) to remedy error or 
injustice. It describes how to apply for correction of naval and marine 
records and how the BCNR considers applications. It defines the Board's 
authority to act on applications. It directs collecting and maintaining 
information subject to the Privacy Act of 1974 authorized by 10 U.S.C. 
1034 and 1552.



Sec. 723.2  Establishment, function and jurisdiction of the Board.

    (a) Establishment and composition. Under 10 U.S.C. 1034 and 1552, 
the Board for Correction of Naval Records is established by the 
Secretary of the Navy. The Board consists of civilians of the executive 
part of the Department of the Navy in such number, not less than three, 
as may be appointed by the Secretary and who shall serve at the pleasure 
of the Secretary. Three members present shall constitute a quorum of the 
Board. The Secretary of the Navy will designate one member as Chair. In 
the absence or incapacity of the Chair, an Acting Chair chosen by the 
Executive Director shall act as Chair for all purposes.

[[Page 216]]

    (b) Function. The Board is not an investigative body. Its function 
is to consider applications properly before it for the purpose of 
determining the existence of error or injustice in the naval records of 
current and former members of the Navy and Marine Corps, to make 
recommendations to the Secretary or to take corrective action on the 
Secretary's behalf when authorized.
    (c) Jurisdiction. The Board shall have jurisdiction to review and 
determine all matters properly brought before it, consistent with 
existing law.



Sec. 723.3  Application for correction.

    (a) General requirements. (1) The application for correction must be 
submitted on DD 149 (Application for Correction of Military Record) or 
exact facsimile thereof, and should be addressed to: Board for 
Correction of Naval Records, Department of the Navy, 2 Navy Annex, 
Washington, DC 20370-5100. Forms and other explanatory matter may be 
obtained from the Board upon request.
    (2) Except as provided in paragraph (a)(3) of this section, the 
application shall be signed by the person requesting corrective action 
with respect to his/her record and will either be sworn to or will 
contain a provision to the effect that the statements submitted in the 
application are made with full knowledge of the penalty provided by law 
for making a false statement or claim. (18 U.S.C. 287 and 1001)
    (3) When the record in question is that of a person who is incapable 
of making application, or whose whereabouts is unknown, or when such 
person is deceased, the application may be made by a spouse, parent, 
heir, or legal representative. Proof of proper interest shall be 
submitted with the application.
    (b) Time limit for filing application. Applications for correction 
of a record must be filed within 3 years after discovery of the alleged 
error or injustice. Failure to file within the time prescribed may be 
excused by the Board if it finds it would be in the interest of justice 
to do so. If the application is filed more than 3 years after discovery 
of the error or injustice, the application must set forth the reason why 
the Board should find it in the interest of justice to excuse the 
failure to file the application within the time prescribed.
    (c) Acceptance of applications. An application will be accepted for 
consideration unless:
    (1) The Board lacks jurisdiction.
    (2) The Board lacks authority to grant effective relief.
    (3) The applicant has failed to comply with the filing requirements 
of paragraphs (a)(l), (a)(2), or (a)(3) of this section.
    (4) The applicant has failed to exhaust all available administrative 
remedies.
    (5) The applicant has failed to file an application within 3 years 
after discovery of the alleged error or injustice and has not provided a 
reason or reasons why the Board should find it in the interest of 
justice to excuse the failure to file the application within the 
prescribed 3-year period.
    (d) Other proceedings not stayed. Filing an application with the 
Board shall not operate as a stay of any other proceedings being taken 
with respect to the person involved.
    (e) Consideration of application. (1) Each application accepted for 
consideration and all pertinent evidence of record will be reviewed by a 
three member panel sitting in executive session, to determine whether to 
authorize a hearing, recommend that the records be corrected without a 
hearing, or to deny the application without a hearing. This 
determination will be made by majority vote.
    (2) The Board may deny an application in executive session if it 
determines that the evidence of record fails to demonstrate the 
existence of probable material error or injustice. The Board relies on a 
presumption of regularity to support the official actions of public 
officers and, in the absence of substantial evidence to the contrary, 
will presume that they have properly discharged their official duties. 
Applicants have the burden of overcoming this presumption but the Board 
will not deny an application solely because the record was made by or at 
the direction of the President or the Secretary in connection with 
proceedings other than proceedings of a board for the correction of 
military or naval records. Denial of an application on the grounds

[[Page 217]]

of insufficient evidence to demonstrate the existence of probable 
material error or injustice is final subject to the provisions for 
reconsideration contained in Sec. 723.9.
    (3) When an original application or a request for further 
consideration of a previously denied application is denied without a 
hearing, the Board's determination shall be made in writing and include 
a brief statement of the grounds for denial.
    (4) The brief statement of the grounds for denial shall include the 
reasons for the determination that relief should not be granted, 
including the applicant's claims of constitutional, statutory and/or 
regulatory violations that were rejected, together with all the 
essential facts upon which the denial is based, including, if 
applicable, factors required by regulation to be considered for 
determination of the character of and reason for discharge. Further the 
Board shall make a determination as to the applicability of the 
provisions of the Military Whistleblower Protection Act (10 U.S.C. 1034) 
if it is invoked by the applicant or reasonably raised by the evidence. 
Attached to the statement shall be any advisory opinion considered by 
the Board which is not fully set out in the statement. The applicant 
will also be advised of reconsideration procedures.
    (5) The statement of the grounds for denial, together with all 
attachments, shall be furnished promptly to the applicant and counsel, 
who shall also be informed that the name and final vote of each Board 
member will be furnished or made available upon request. Classified or 
privileged material will not be incorporated or attached to the Board 
statement; rather, unclassified or nonprivileged summaries of such 
material will be so used and written explanations for the substitution 
will be provided to the applicant and counsel.



Sec. 723.4  Appearance before the board; notice; counsel; witnesses; access to records.

    (a) General. In each case in which the Board determines a hearing is 
warranted, the applicant will be entitled to appear before the Board 
either in person or by counsel of his/her selection or in person with 
counsel. Additional provisions apply to cases processed under the 
Military Whistleblower Protection Act (10 U.S.C. 1034).
    (b) Notice. (1) In each case in which a hearing is authorized, the 
Board's staff will transmit to the applicant a written notice stating 
the time and place of hearing. The notice will be mailed to the 
applicant, at least 30 days prior to the date of hearing, except that an 
earlier date may be set where the applicant waives his/her right to such 
notice in writing.
    (2) Upon receipt of the notice of hearing, the applicant will notify 
the Board in writing at least 15 days prior to the date set for hearing 
as to whether he/she will be present at the hearing and will indicate to 
the Board the name of counsel, if represented by counsel, and the names 
of such witnesses as he/she intends to call. Cases in which the 
applicant notifies the Board that he/she does not desire to be present 
at the hearing will be considered in accordance with Sec. 723.5(b)(2).
    (c) Counsel. As used in this part, the term ``counsel'' will be 
construed to include members in good standing of the federal bar or the 
bar of any state, accredited representatives of veterans' organizations 
recognized by the Secretary of Veterans Affairs under 38 U.S.C. 3402, or 
such other persons who, in the opinion of the Board, are considered to 
be competent to present equitably and comprehensively the request of the 
applicant for correction, unless barred by law. Representation by 
counsel will be at no cost to the government.
    (d) Witnesses. The applicant will be permitted to present witnesses 
in his/her behalf at hearings before the Board. It will be the 
responsibility of the applicant to notify his/her witnesses and to 
arrange for their appearance at the time and place set for hearing. 
Appearance of witnesses will be at no cost to the government.
    (e) Access to records. (1) It is the responsibility of the applicant 
to procure such evidence not contained in the official records of the 
Department of the Navy as he/she desires to present in support of his/
her case.
    (2) Classified or privileged information may be released to 
applicants only

[[Page 218]]

by proper authorities in accordance with applicable regulations.
    (3) Nothing in this part authorizes the furnishing of copies of 
official records by the Board. Requests for copies of these records 
should be submitted in accordance with applicable regulations governing 
the release of information. The BCNR can provide a requestor with 
information regarding procedures for requesting copies of these records 
from the appropriate retention agency.



Sec. 723.5  Hearing.

    (a) Convening of board. The Board will convene, recess and adjourn 
at the call of the Chair or Acting Chair.
    (b) Conduct of hearing. (1) The hearing shall be conducted by the 
Chair or Acting Chair, and shall be subject to his/her rulings so as to 
ensure a full and fair hearing. The Board shall not be limited by legal 
rules of evidence but shall maintain reasonable bounds of competency, 
relevancy, and materiality.
    (2) If the applicant, after being duly notified, indicates to the 
Board that he/she does not desire to be present or to be represented by 
counsel at the hearing, the Board will consider the case on the basis of 
all the material before it, including, but not limited to, the 
application for correction filed by the applicant, any documentary 
evidence filed in support of such application, any brief submitted by or 
in behalf of the applicant, and all available pertinent records.
    (3) If the applicant, after being duly notified, indicates to the 
Board that he/she will be present or be represented by counsel at the 
hearing, and without good cause and timely notice to the Board, the 
applicant or representative fails to appear at the time and place set 
for the hearing or fails to provide the notice required by 
Sec. 723.4(b)(2), the Board may consider the case in accordance with the 
provisions of paragraph (b)(2) of this section, or make such other 
disposition of the case as is appropriate under the circumstances.
    (4) All testimony before the Board shall be given under oath or 
affirmation. The proceedings of the Board and the testimony given before 
it will be recorded verbatim.
    (c) Continuance. The Board may continue a hearing on its own motion. 
A request for continuance by or in behalf of the applicant may be 
granted by the Board if a continuance appears necessary to insure a full 
and fair hearing.



Sec. 723.6  Action by the Board.

    (a) Deliberations, findings, conclusions, and recommendations. (1) 
Only members of the Board and its staff shall be present during the 
deliberations of the Board.
    (2) Whenever, during the course of its review of an application, it 
appears to the Board's satisfaction that the facts have not been fully 
and fairly disclosed by the records or by the testimony and other 
evidence before it, the Board may require the applicant or military 
authorities to provide such further information as it may consider 
essential to a complete and impartial determination of the facts and 
issues.
    (3) Following a hearing, or where the Board determines to recommend 
that the record be corrected without a hearing, the Board will make 
written findings, conclusions and recommendations. If denial of relief 
is recommended following a hearing, such written findings and 
conclusions will include a statement of the grounds for denial as 
described in Sec. 723.3(e)(4). The name and final vote of each Board 
member will be recorded. A majority vote of the members present on any 
matter before the Board will constitute the action of the Board and 
shall be so recorded.
    (4) Where the Board deems it necessary to submit comments or 
recommendations to the Secretary as to matters arising from but not 
directly related to the issues of any case, such comments and 
recommendations shall be the subject of separate communication. 
Additionally, in Military Whistleblower Protection Act cases, any 
recommendation by the Board to the Secretary that disciplinary or 
administrative action be taken against any Navy official based on the 
Board's determination that the official took reprisal action against the 
applicant will not be made part of the Board's record of proceedings or 
furnished the applicant but will be transmitted to the Secretary as a 
separate communication.

[[Page 219]]

    (b) Minority report. In case of a disagreement between members of 
the Board a minority report will be submitted, either as to the 
findings, conclusions or recommendation, including the reasons therefor.
    (c) Record of proceedings. Following a hearing, or where the Board 
determines to recommend that the record be corrected without a hearing, 
a record of proceedings will be prepared. Such record shall indicate 
whether or not a quorum was present, and the name and vote of each 
member present. The record shall include the application for relief, a 
verbatim transcript of any testimony, affidavits, papers and documents 
considered by the Board, briefs and written arguments, advisory 
opinions, if any, minority reports, if any, the findings, conclusions 
and recommendations of the Board, where appropriate, and all other 
papers, documents, and reports necessary to reflect a true and complete 
history of the proceedings.
    (d) Withdrawal. The Board may permit an applicant to withdraw his/
her application without prejudice at any time before its record of 
proceedings is forwarded to the Secretary.
    (e) Delegation of authority to correct certain naval records. (1) 
With respect to all petitions for relief properly before it, the Board 
is authorized to take final corrective action on behalf of the 
Secretary, unless:
    (i) Comments by proper naval authority are inconsistent with the 
Board's recommendation;
    (ii) The Board's recommendation is not unanimous; or
    (iii) It is in the category of petitions reserved for decision by 
the Secretary of the Navy.
    (2) The following categories of petitions for relief are reserved 
for decision by the Secretary of the Navy:
    (i) Petitions involving records previously reviewed or acted upon by 
the Secretary wherein the operative facts remained substantially the 
same;
    (ii) Petitions by former commissioned officers or midshipmen to 
change the character of, and/or the reason for, their discharge; or,
    (iii) Such other petitions as, in the determination of Office of the 
Secretary or the Executive Director, warrant Secretarial review.
    (3) The Executive Director after ensuring compliance with this 
section, will announce final decisions on applications decided under 
this section.



Sec. 723.7  Action by the Secretary.

    (a) General. The record of proceedings, except in cases finalized by 
the Board under the authority delegated in Sec. 723.6(e), and those 
denied by the Board without a hearing, will be forwarded to the 
Secretary who will direct such action as he or she determines to be 
appropriate, which may include the return of the record to the Board for 
further consideration. Those cases returned for further consideration 
shall be accompanied by a brief statement setting out the reasons for 
such action along with any specific instructions. If the Secretary's 
decision is to deny relief, such decision shall be in writing and, 
unless he or she expressly adopts in whole or in part the findings, 
conclusions and recommendations of the Board, or a minority report, 
shall include a brief statement of the grounds for denial. See 
Sec. 723.3(e)(4).
    (b) Military Whistleblower Protection Act. The Secretary will ensure 
that decisions in cases involving the Military Whistleblower Protection 
Act are issued 180 days after receipt of the case and will, unless the 
full relief requested is granted, inform applicants of their right to 
request review of the decision by the Secretary of Defense. Applicants 
will also be informed:
    (1) Of the name and address of the official to whom the request for 
review must be submitted.
    (2) That the request for review must be submitted within 90 days 
after receipt of the decision by the Secretary of the Navy.
    (3) That the request for review must be in writing and include:
    (i) The applicant's name, address and telephone number;
    (ii) A copy of the application to the Board and the final decision 
of the Secretary of the Navy; and
    (iii) A statement of the specific reasons the applicant is not 
satisfied with the decision of the Secretary of the Navy.

[[Page 220]]

    (4) That the request must be based on the Board record; request for 
review based on factual allegations or evidence not previously presented 
to the Board will not be considered under this paragraph but may be the 
basis for reconsideration by the Board under Sec. 723.9.



Sec. 723.8  Staff action.

    (a) Transmittal of final decisions granting relief. (1) If the final 
decision of the Secretary is to grant the applicant's request for relief 
the record of proceedings shall be returned to the Board for 
disposition. The Board shall transmit the finalized record of 
proceedings to proper naval authority for appropriate action. Similarly 
final decisions of the Board granting the applicant's request for relief 
under the authority delegated in Sec. 723.6(e), shall also be forwarded 
to the proper naval authority for appropriate action.
    (2) The Board shall transmit a copy of the record of proceedings to 
the proper naval authority for filing in the applicant's service record 
except where the effect of such action would be to nullify the relief 
granted. In such cases no reference to the Board's decision shall be 
made in the service record or files of the applicant and all copies of 
the record of proceedings and any related papers shall be forwarded to 
the Board and retained in a file maintained for this purpose.
    (3) The addressees of such decisions shall report compliance 
therewith to the Executive Director.
    (4) Upon receipt of the record of proceedings after final action by 
the Secretary, or by the Board acting under the authority contained in 
Sec. 723.6(e), the Board shall communicate the decision to the 
applicant. The applicant is entitled, upon request, to receive a copy of 
the Board's findings, conclusions and recommendations.
    (b) Transmittal of final decisions denying relief. If the final 
decision of the Secretary or the Board is to deny relief, the following 
materials will be made available to the applicant:
    (1) A statement of the findings, conclusions, and recommendations 
made by the Board and the reasons therefor;
    (2) Any advisory opinions considered by the Board;
    (3) Any minority reports; and
    (4) Any material prepared by the Secretary as required in 
Sec. 723.7. Moreover, applicant shall also be informed that the name and 
final vote of each Board member will be furnished or made available upon 
request and that he/she may submit new and material evidence or other 
matter for further consideration.



Sec. 723.9  Reconsideration.

    After final adjudication, further consideration will be granted only 
upon presentation by the applicant of new and material evidence or other 
matter not previously considered by the Board. New evidence is defined 
as evidence not previously considered by the Board and not reasonably 
available to the applicant at the time of the previous application. 
Evidence is material if it is likely to have a substantial effect on the 
outcome. All requests for further consideration will be initially 
screened by the Executive Director of the Board to determine whether new 
and material evidence or other matter (including, but not limited to, 
any factual allegations or arguments why the relief should be granted) 
has been submitted by the applicant. If such evidence or other matter 
has been submitted, the request shall be forwarded to the Board for a 
decision. If no such evidence or other matter has been submitted, the 
applicant will be informed that his/her request was not considered by 
the Board because it did not contain new and material evidence or other 
matter.



Sec. 723.10  Settlement of claims.

    (a) Authority. (1) The Department of the Navy is authorized under 10 
U.S.C. 1552 to pay claims for amounts due to applicants as a result of 
corrections to their naval records.
    (2) The Department of the Navy is not authorized to pay any claim 
heretofore compensated by Congress through enactment of a private law, 
or to pay any amount as compensation for any benefit to which the 
claimant might subsequently become entitled under the laws and 
regulations administered by the Secretary of Veterans Affairs.

[[Page 221]]

    (b) Application for settlement. (1) Settlement and payment of claims 
shall be made only upon a claim of the person whose record has been 
corrected or legal representative, heirs at law, or beneficiaries. Such 
claim for settlement and payment may be filed as a separate part of the 
application for correction of the record.
    (2) When the person whose record has been corrected is deceased, and 
where no demand is presented by a duly appointed legal representative of 
the estate, payments otherwise due shall be made to the surviving 
spouse, heir or beneficiaries, in the order prescribed by the law 
applicable to that kind of payment, or if there is no such law covering 
order of payment, in the order set forth in 10 U.S.C. 2771; or as 
otherwise prescribed by the law applicable to that kind of payment.
    (3) Upon request, the applicant or applicants shall be required to 
furnish requisite information to determine their status as proper 
parties to the claim for purposes of payment under applicable provisions 
of law.
    (c) Settlement. (1) Settlement of claims shall be upon the basis of 
the decision and recommendation of the Board, as approved by the 
Secretary or his designee. Computation of the amounts due shall be made 
by the appropriate disbursing activity. In no case will the amount found 
due exceed the amount which would otherwise have been paid or have 
become due under applicable laws had no error or injustice occurred. 
Earnings received from civilian employment, self employment or any 
income protection plan for such employment during any period for which 
active duty pay and allowances are payable will be deducted from the 
settlement. To the extent authorized by law and regulation, amounts 
found due may be reduced by the amount of any existing indebtedness to 
the Government arising from military service.
    (2) Prior to or at the time of payment, the person or persons to 
whom payments are to be made shall be advised by the disbursing activity 
of the nature and amount of the various benefits represented by the 
total settlement and shall be advised further that acceptance of such 
settlement shall constitute a complete release by the claimants involved 
of any claim against the United States on account of the correction of 
the record.
    (d) Report of settlement. In every case where payment is made, the 
amount of such payment and the names of the payee or payees shall be 
reported to the Executive Director.



Sec. 723.11  Miscellaneous provisions.

    (a) Expenses. No expenses of any nature whatsoever voluntarily 
incurred by the applicant, counsel, witnesses, or by any other person in 
the applicant's behalf, will be paid by the Government.
    (b) Indexing of decisions. (1) Documents sent to each applicant and 
counsel in accordance with Sec. 723.3(e)(5) and Sec. 723.8(a)(4), 
together with the record of the votes of Board members and all other 
statements of findings, conclusions and recommendations made on final 
determination of an application by the Board or the Secretary will be 
indexed and promptly made available for public inspection and copying at 
the Armed Forces Discharge Review/Correction Boards Reading Room located 
on the Concourse of the Pentagon Building in Room 2E123, Washington, DC.
    (2) All documents made available for public inspection and copying 
shall be indexed in a usable and concise form so as to enable the public 
to identify those cases similar in issue together with the circumstances 
under and/or reasons for which the Board and/or Secretary have granted 
or denied relief. The index shall be published quarterly and shall be 
available for public inspection and distribution by sale at the Reading 
Room located on the Concourse of the Pentagon Building in Room 2E123, 
Washington, DC. Inquiries concerning the index or the Reading Room may 
be addressed to the Chief, Micromation Branch/Armed Forces Discharge 
Review/Correction Boards Reading Room, Crystal Mall 4, 1941 Jefferson 
Davis Highway, Arlington, Virginia 22202.
    (3) To the extent necessary to prevent a clearly unwarranted 
invasion of personal privacy, identifying details of the applicant and 
other persons will be deleted from the documents made available for 
public inspection and

[[Page 222]]

copying. Names, addresses, social security numbers and military service 
numbers must be deleted. Deletions of other information which is 
privileged or classified may be made only if a written statement of the 
basis for such deletion is made available for public inspection.



PART 724--NAVAL DISCHARGE REVIEW BOARD--Table of Contents




                         Subpart A--Definitions

Sec.
724.101  Naval Service.
724.102  Naval Discharge Review Board.
724.103  NDRB panel.
724.104  NDRB Traveling Panel.
724.105  President of the NDRB.
724.106  Presiding Officer, NDRB Panel.
724.107  Discharge.
724.108  Administrative discharge.
724.109  Types of administrative discharges.
724.110  Reason/basis for administrative discharge.
724.111  Punitive discharge.
724.112  Clemency discharge.
724.113  Appication.
724.114  Applicant.
724.115  Next of kin.
724.116  Council/representative.
724.117  Discharge review.
724.118  Documentary discharge review.
724.119  Personal appearance discharge review.
724.120  National Capital Region (NCR).
724.121  Decisional document.
724.122  Recorder, NDRB Panel.
724.123  Complainant.

      Subpart B--Authority/Policy for Departmental Discharge Review

724.201  Authority.
724.202  Statutory/Directive Authority.
724.203  Broad objectives of naval discharge review.
724.204  Eligibility for naval discharge review.
724.205  Authority for review of naval discharges; jurisdictional 
          limitations.
724.206  Jurisdictional determinations.
724.207  Disposition of applications for discharge review.
724.208  Implementation of NDRB decisions.
724.209  Evidence supporting applications.
724.210  Review action in instances of unavailable records.
724.211  Regularity of government affairs.
724.212  Availability of records.
724.213  Attendance of witnesses.
724.214  Applicant's expenses.
724.215  Military representation.
724.216  Failure to appear at a hearing or respond to a scheduling 
          notice.
724.217  Limitation--Reconsiderations.
724.218  Limitation--Continuance and Postponements.
724.219  Withdrawal of application.
724.220  Review on motion of the NDRB.
724.221  Scheduling of discharge reviews.
724.222  Personal appearance discharge hearing sites.
724.223  NDRB support and augmentation by regular and reserve 
          activities.
724.224  Court-martial specifications; presumptions concerning.

  Subpart C--Director, Naval Council of Personnel Boards and President 
 Naval Discharge Review Board; Responsibilities in Support of the Naval 
                         Discharge Review Board

724.301  Mission.
724.302  Functions: Director, Naval Council of Personnel Boards.
724.303  Functions: President, Naval Discharge Review Board.
724.304  Responsibility for Department of the Navy Suppport of the Naval 
          Discharge Review Board.
724.305  Functions of the CMC and CNO.
724.306  Functions of the Commander, Naval Medical Command.
724.307  Functions of the Commander, Naval Reserve Force.

 Subpart D--Principal Elements of the Navy Department Discharge Review 
                                 System

724.401  Applicants.
724.402  Naval Discharge Review Board.
724.403  President, Naval Discharge Review Board.
724.404  Director, Naval Council of Personnel Boards.
724.405  Commandant of the Marine Corps or the Commander, Naval Military 
          Personnel Command.
724.406  Commander, Naval Medical Command.
724.407  Commander, Naval Reserve Force.
724.408  Secretary of the Navy.

Subpart E--Procedural Rights of the Applicant and Administrative Actions 
                     Preliminary to Discharge Review

724.501  Procedural rights of the applicant.
724.502  Actions to be taken by the applicant preliminary to discharge 
          review.
724.503  NDRB response to application for discharge review.
724.504  NDRB actions preliminary to discharge review.

      Subpart F--Naval Discharge Review Board Mission and Functions

724.601  General.
724.602  Mission.

[[Page 223]]

724.603  Functions.

       Subpart G--Organization of the Naval Discharge Review Board

724.701  Composition.
724.702  Executive management.
724.703  Legal counsel.

        Subpart H--Procedures of the Naval Discharge Review Board

724.801  Matters to be considered in discharge review.
724.802  Applicant's responsibilities.
724.803  The decisional document.
724.804  Decision process.
724.805  Response to items submitted as issues by the applicant.
724.806  Decisional issues.
724.807  Record of NDRB proceedings.
724.808  Issuance of decisions following discharge review.
724.809  Final disposition of the record of proceedings.
724.810  Availability of Naval Discharge Review Board documents for 
          public inspection and copying.
724.811  Privacy Act information.
724.812  Responsibilities of the Reading Room.
724.813  The recommendation of the NDRB president.
724.814  Secretarial Review Authority (SRA).
724.815  Complaints.

                Subpart I--Standards for Discharge Review

724.901  Objective of discharge review.
724.902  Propriety of the discharge.
724.903  Equity of the discharge.

                         Appendices to Part 724

Appendix A--Policy Statement by the Secretary of Defense--Addressing 
          Certain Categories of Discharges
Appendix B--Oath or Affirmation to be Administered to Discharge Review 
          Board Members
Appendix C--Samples of Formats Employed by the Naval Discharge Review 
          Board
Appendix D--Veterans' Benefits

    Authority: 5 U.S.C. 301; 10 U.S.C. 1553.

    Source: 50 FR 10943, Mar. 19, 1985, unless otherwise noted.



                         Subpart A--Definitions



Sec. 724.101  Naval Service.

    The Naval Service is comprised of the uniformed members of the 
United States Navy and the United States Marine Corps, including active 
and inactive reserve components.



Sec. 724.102  Naval Discharge Review Board.

    An administrative board, referred to as the ``NDRB'' established by 
the Secretary of the Navy pursuant to title 10 U.S.C., section 1553, for 
the review of discharges of former members of the Naval Service.



Sec. 724.103  NDRB panel.

    An element of the NDRB, consisting of five members, authorized to 
review discharges. In plenary review session, an NDRB panel acts with 
the authority delegated by the Secretary of the Navy to the Naval 
Discharge Review Board.



Sec. 724.104  NDRB Traveling Panel.

    An NDRB Panel that travels for the purpose of conducting personal 
appearances discharge review hearings at locations outside of the 
National Capital Region (NCR).



Sec. 724.105  President of the NDRB.

    A senior officer of the Naval Service designated by the Secretary of 
the Navy who is responsible for the direct supervision of the discharge 
review function within the Naval Service. (See subpart E).



Sec. 724.106  Presiding Officer, NDRB Panel.

    The senior member of an NDRB Panel shall normally be the Presiding 
Officer. He/she shall convene, recess and adjourn the NDRB Panel as 
appropriate.



Sec. 724.107  Discharge.

    In the context of the review function prescribed by 10 U.S.C. 1553, 
a discharge or dismissal is a complete separation from the Naval 
Service, other than one pursuant to the sentence of a general court-
martial. By reason of usage, the term ``discharge'' is predominantly 
applicable to the separation of enlisted personnel for any reason, and 
the term ``dismissal'' to the separation of officers as a result of 
Secretarial or general court-martial action. In the context of the 
mission of the NDRB, the term ``discharge'' used here shall, for purpose 
of ease of expression, include

[[Page 224]]

any complete separation from the naval service other than that pursuant 
to the sentence of general court-martial. The term ``discharge'' also 
includes the type of discharge and the reason/basis for that discharge, 
e.g., Other Than Honorable/Misconduct (Civil Conviction).



Sec. 724.108  Administrative discharge.

    A discharge upon expiration of enlistment or required period of 
service, or prior thereto, in a manner prescribed by the Commandant of 
the Marine Corps or the Commander, Naval Military Personnel Command, but 
specifically excluding separation by sentence of a court-martial.



Sec. 724.109  Types of administrative discharges.

    (a) A determination reflecting a member's military behavior and 
performance of duty during a specific period of service. The three 
characterizations are:
    (1) Honorable. A separation from the naval service with honor. The 
issuance of an Honorable Discharge is contingent upon proper military 
behavior and performance of duty.
    (2) Under Honorable Conditions (also termed General Discharge). A 
separation from the naval service under honorable conditions. The 
issuance of a discharge under honorable conditions is contingent upon 
military behavior and performance of duty which is not sufficiently 
meritorious to warrant an Honorable Discharge.
    (3) Under Other Than Honorable Conditions (formerly termed 
Undesirable Discharge). A separation from the naval service under 
conditions other than honorable. It is issued to terminate the service 
of a member of the naval service for one or more of the reasons/basis 
listed in the Naval Military Personnel Manual, Marine Corps Separation 
and Retirement Manual and their predecessor publications.
    (4) Entry Level Separation. (i) A separation initiated while a 
member is in entry level status will be described as an Entry Level 
Separation except in the following circumstances:
    (a) When characterization under Other Than Honorable Conditions is 
authorized and is warranted by the circumstances of the case; or
    (b) When characterization of service as Honorable is clearly 
warranted by the presence of unusual circumstances including personal 
conduct and performance of naval duty and is approved on a case-by-case 
basis by the Secretary of the Navy. This characterization will be 
considered when the member is separated by reason of Selected Changes in 
Service Obligation, Convenience of the Government, or Disability.
    (ii) With respect to administrative matters outside the 
administrative separation system that require a characterization of 
service as Honorable or General, an Entry Level Separation shall be 
treated as the required characterization. In accordance with 1163 of 
title 10, United States Code (1982), an Entry Level Separation for a 
member of a Reserve component separated from the Delayed Entry Program 
is under honorable conditions.
[50 FR 10943, Mar. 19, 1985, as amended at 51 FR 44909, Dec. 15, 1986]



Sec. 724.110  Reason/basis for administrative discharge.

    The terms ``reason for discharge'' and ``basis for discharge'' have 
the same meaning. The first is a Navy term and the second is a Marine 
Corps term. These terms identify why an administrative discharge was 
issued, e.g., Convenience of the Government, Misconduct. Reasons/basis 
for discharge are found in the Naval Military Personnel Manual and 
Marine Corps Separation and Retirement Manual as well as predecessor 
publications.



Sec. 724.111  Punitive discharge.

    A discharge awarded by sentence of a court-martial. There are two 
types of punitive discharges:
    (a) Bad conduct. A separation from the naval service under 
conditions other than honorable. It may be effected only as a result of 
the approved sentence of a general or special court-martial.
    (b) Dishonorable. A separation from the naval service under 
dishonorable conditions. It may be effected only as a result of the 
approved sentence of a general court-martial.

[[Page 225]]



Sec. 724.112  Clemency discharge.

    (a) The clemency discharge was created by the President on September 
16, 1974, in his Proclamation 4313, ``Announcing a Program for the 
Return of Vietnam Era Draft Evaders and Military Deserters.'' Upon 
issuance to individuals who have an undesirable discharge or a punitive 
discharge, a clemency discharge serves as a written testimonial to the 
fact that the individual has satisfied the requirements of the 
President's program, and has fully earned his/her return to the 
mainstream of American society in accordance with that program.
    (b) The clemency discharge is a neutral discharge, neither honorable 
nor less than honorable. It does not effect a change in the 
characterization of the individual's military service as havng been 
under other than honorable condition, nor does it serves to change, 
seal, erase or in any way modify the individual's past military record. 
Therefore, if the underlying discharge was issued as a result of a 
general court-martial, the issuance of a Clemency Discharge does not 
subject the underlying characterization to review under 10 U.S.C. 1553. 
Clemency discharges are issued by the Commander, Naval Military 
Personnel Command or the Commandant of the Marine Corps when an 
individual has met the requirements of the Presidential Proclamation.



Sec. 724.113  Application.

    In the context of this Manual, a written application to the NDRB for 
the review of a discharge submitted by a former member of the naval 
service or, where a former member is deceased or incompetent, by spouse, 
next of kin or legal representative. Department of Defense Form 293 must 
be used for the application.



Sec. 724.114  Applicant.

    A former member of the naval service who has been discharged 
administratively in accordance with the directives of the naval service 
or by sentence of a special court-martial under title 10 U.S.C. 801 et 
seq. (Uniform Code of Military Justice) and, in accordance with 
statutory and regulatory provisions:
    (a) Whose case is considered by the NDRB at the request of the 
former member, of, if authorized under Sec. 724.113, the surviving 
spouse, next-of-kin or legal representative, or
    (b) Whose case is considered on the NDRB's own motion.



Sec. 724.115  Next of kin.

    The person or persons in the highest category of priority as 
determined by the following list (categories appear in descending order 
of priority): Surviving legal spouse; children (whether by current or 
prior marriage) age 18 years or older in descending precedence by age; 
father or mother, unless by court order custody has been vested in 
another (adoptive parent takes precedence over natural parent); siblings 
(whole or half) age 18 years or older in descending precedence by age; 
grandfather or grandmother; any other relative (precedence to be 
determined in accordance with the civil law of descent of the deceased 
former member's state of domicile at time of death).



Sec. 724.116  Council/representative.

    An individual or agency designated by the applicant who agrees to 
represent the applicant in a case before the NDRB. 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; or a representative from private organizations or 
local Government agencies.



Sec. 724.117  Discharge review.

    A nonadversary administrative reappraisal at the level of the Navy 
Department of discharges from the naval service. The object of the 
reappraisal is to determine whether the discharge should be changed, and 
if so, the nature of the change. This reappraisal includes the type and 
reason/basis for separation, the procedures followed in accomplishing 
separation, and the characterization of service. This term includes 
determinations made under the provisions of 38 U.S.C. 3103(2).

[[Page 226]]



Sec. 724.118  Documentary discharge review.

    A formal session of the NDRB convened for the purpose of reviewing, 
on the basis of documentary data, an applicant's discharge. The 
Documentary data shall include the application together with all 
information accompanying that application, available service and medical 
records, and any other information considered relevant by the NDRB.



Sec. 724.119  Personal appearance discharge review.

    A formal session of the NDRB convened for the purpose of reviewing 
an applicant's discharge on the basis of a personal appearance, as well 
as documentary data. The personal appearance may be by the applicant or 
by a representative of the applicant, or both.



Sec. 724.120  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.



Sec. 724.121  Decisional document.

    The written recordation of the applicant's summary of service, the 
issue or issues presented together with any evidence offered in support 
of the application, the NDRB's response to the issue or issues, the 
votes of the members of the panel, and any recommendations or responses 
by the President of the NDRB or the Secretarial Reviewing Authority 
(SRA). The decisional document is promulgated by the ``en bloc letter''.



Sec. 724.122  Recorder, NDRB Panel.

    A panel member responsible for briefing an applicant's case from the 
documentary evidence available prior to a discharge review, presenting 
the brief to the panel considering the application, performing other 
designated functions during personal appearance discharge hearings, and 
drafting the decisional document subsequent to the hearing.



Sec. 724.123  Complainant.

    A former member of the Armed Forces (or the former member's counsel) 
who submits a complaint under 32 CFR Part 70 with respect to the 
decisional document issued in the former member's own case; or a former 
member of the Armed Forces (or the former member's counsel) who submits 
a complaint under reference (b) 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.



      Subpart B--Authority/Policy for Departmental Discharge Review



Sec. 724.201  Authority.

    The Naval Discharge Review Board, established pursuant to 10 U.S.C. 
1553, is a component of the Naval Council of Personnel Boards. By 
SECNAVINST 5430.7L, the Assistant Secretary of the Navy (Manpower and 
Reserve Affairs) is authorized and directed to act for the Secretary of 
the Navy within his assigned area of responsibility and exercises 
oversight over the Naval Council of Personnel Boards. SECNAVINST 
5420.135C of July 15, 1983 states the organization, mission, duties and 
responsibilities of the Naval Council of Personnel Boards to include the 
Naval Discharge Review Board. The Chief of Naval Operations established 
the Office of Naval Disability Evaluation and Navy Council of Personnel 
Boards on 1 October 1976 (OPNAVNOTE 5450 Ser 09B26/535376 of 9 Sep 1976 
(Canc frp: Apr 77)). The Chief of Naval Operations approved the change 
in name of the Office of Naval Disability Evaluation and Navy Council of 
Personnel Boards to Naval Council of Personnel Boards on 1 February 1977 
(OPNAVNOTE 5450 Ser 09B26/32648 of 24 Jan 1977 (Canc frp: Jul 77)) with 
the following mission statement:

    To administer and supervise assigned boards and councils.



Sec. 724.202  Statutory/Directive Authority.

    The NDRB, in its conduct of discharge review, shall be guided by the

[[Page 227]]

applicable statutes, regulations, and manuals and directives of the 
Department of the Navy, and other written public expressions of policy 
by competent authority:
    (a) 10 U.S.C. 1553, Review of discharge or dismissal:
    (1) ``The Secretary concerned shall, after consulting the 
Administrator of Veterans' Affairs, establish a board of review, 
consisting of five members, to review the discharge or dismissal (other 
than a discharge or dismissal by sentence of a general court-martial) of 
any former member of an armed force under the jurisdiction of his 
department upon its own motion or upon the request of the former member 
or, if he is dead, his surviving spouse, next of kin, or legal 
representative. A motion or request for review must be made within 15 
years after the date of the discharge or dismissal.''
    (2) A board established under this section may, subject to review by 
the Secretary concerned, change a discharge or dismissal, or issue a new 
discharge, to reflect its findings.
    (3) A review by the board established under this section shall be 
based on the records of the armed forces concerned and such other 
evidence as may be presented to the board. A witness may present 
evidence to the board in person or by affidavit. A person who requests a 
review under this section may appear before the board in person or by 
counsel or an accredited representative or an organization recognized by 
the Administrator of Veterans' Affairs under title 38 U.S.C. 3401 et 
seq.''.
    (b) Pub. L. 95-126. See appendix D.
    (c) 32 CFR part 70. This provides for uniform standards and 
procedures for review of discharges from the military services of the 
Department of Defense. The provisions of 32 CFR part 70 are incorporated 
in this Manual.
    (d) The Secretary of Defense memoranda dated August 13, 1971 and 
April 28, 1972 (NOTAL). These directed a review for recharacterization 
of (1) administrative discharges under other than honorable conditions 
issued solely on the basis of personal use of drugs or possession of 
drugs for the purpose of such use, and (2) punitive discharges and 
dismissals issued solely for conviction of personal use of drugs and 
possession for the purpose of such use for those discharges executed as 
a result of a case completed or in process on or before July 7, 1971. 
(See appendix B).
    (e) 32 CFR part 41. This prescribes policy, standards and procedures 
which govern the administrative separation of enlisted persons from the 
Armed Forces.



Sec. 724.203  Broad objectives of naval discharge review.

    Naval discharge review shall have as its broad objectives:
    (a) The furtherance of good order and discipline.
    (b) The correction of injustice or inequity in the discharge issued.
    (c) The correction of administrative or clerical errors.



Sec. 724.204  Eligibility for naval discharge review.

    Any former member of the Naval Service, eligible for review under 
reference (a) or surviving spouse, next of kin or legal representative, 
shall upon submission of an application be afforded a review of the 
member's discharge from the Naval Service as provided in Secs. 724.205 
and 724.206. Discharge review may also be initiated on the motion of the 
NDRB (See Sec. 724.220).



Sec. 724.205  Authority for review of naval discharges; jurisdictional limitations.

    (a) The Board shall have no authority to:
    (1) Review a discharge or dismissal resulting from a general court-
martial;
    (2) Alter the judgment of a court-martial, except the discharge or 
dismissal awarded may be changed for purposes of clemency;
    (3) Revoke any discharge or dismissal;
    (4) Reinstate a person in the naval service;
    (5) Recall a former member to active duty;
    (6) Change a reenlistment code;
    (7) Make recommendations for reenlistment to permit entry in the 
naval service or any other branch of the Armed Forces;
    (8) Cancel or void enlistment contracts; or

[[Page 228]]

    (9) Change the reason for discharge from or to a physical disability
    (b) Review of naval discharges shall not be undertaken in instances 
where the elapsed time between the date of discharge and the date of 
receipt of application for review exceeds fifteen years.



Sec. 724.206  Jurisdictional determinations.

    The determination as to whether the NDRB has jurisdiction in any 
case shall be predicated on the policy stated in Sec. 724.205. Decisions 
shall be made by administrative action without referral to the NDRB. 
Normally, they shall be made by the Executive Secretary of the NDRB, or 
they may be referred to the President, NDRB.



Sec. 724.207  Disposition of applications for discharge review.

    One of three dispositions will be made of an application for review 
of a discharge:
    (a) The application may be rejected for reason of:
    (1) Absence of jurisdiction;
    (2) Previous review on the same evidence; or
    (b) The application may be withdrawn by the applicant; or
    (c) The application may be accepted and the discharge reviewed by 
the NDRB, resulting in,
    (1) Change to the discharge, or
    (2) No change.



Sec. 724.208  Implementation of NDRB decisions.

    The Commandant of the Marine Corps and the Chief of Naval Operations 
are responsible for implementing Naval Discharge Review Board decisions 
within their respective services. The Commandant of the Marine Corps 
shall be notified of decisions in each discharge review case and shall 
implement the decisions within the Marine Corps. The Commander, Naval 
Military Personnel Command, acting for the Chief of Naval Operations and 
Chief of Naval Personnel, shall be notified of decisions in each 
discharge review case and shall implement the decisions within the Navy.



Sec. 724.209  Evidence supporting applications.

    In the absence of law, evidence or policy to the contrary, naval 
discharges shall be considered just, equitable and proper as issued. 
When hearings are scheduled, applicants must be prepared to present 
their case at the scheduled time. In the absence of any other evidence, 
naval discharge review shall be undertaken by examination of available 
service and health records of the applicant. Normally, the 
responsibility for presenting evidence from outside available service 
and health records shall rest with the applicant. Applications in which 
elements of relevant information are obviously omitted will be returned 
for completion and resubmission.



Sec. 724.210  Review action in instances of unavailable records.

    (a) In the event that Department of the Navy personnel or health 
records associated with a requested review of discharge are not located 
at the custodial activity, the following action shall be taken by the 
NDRB prior to consideration of the request for discharge review.
    (1) A certification that the records are unavailable shall be 
obtained from the custodial activity.
    (2) The applicant shall be notified of the situation and requested 
to provide such information and documents as may be desired in support 
of the request for discharge review. A period of not less than 30 days 
shall be allowed for such documents to be submitted. At the expiration 
of this time period, the review may be conducted with information 
available to the NDRB.
    (3) The presumption of regularity in the conduct of government 
affairs may be applicable in instances of unavailable records depending 
on the circumstances of the case. (See Sec. 724.211)
    (b) [Reserved]



Sec. 724.211  Regularity of government affairs.

    There is a presumption of regularity in the conduct of governmental 
affairs. This presumption can be applied in any review unless there is 
substantial credible evidence to rebut the presumption.

[[Page 229]]



Sec. 724.212  Availability of records.

    (a) Before applying for discharge review, potential applicants or 
their designated representatives may obtain copies of their military 
personnel records by submitting a General Services Administration 
Standard Form 180, ``Request Pertaining to Military Records,'' to the 
National Personnel Records Center (NPRC), 9700 Page Boulevard, St. 
Louis, MO 63132. Once the application for discharge review (DD Form 293) 
is submitted, an applicant's military records are forwarded to the NDRB 
where they cannot be reproduced. Submission of a request for an 
applicant's military records, including a request under the Freedom of 
Information Act (5 U.S.C. 552) or Privacy Act (5 U.S.C. 552a) after the 
DD Form 293 has been submitted, shall result automatically in the 
temporary suspension of processing of the application for discharge 
review until the requested records are sent to an appropriate location 
for copying, are copied, and are returned to the headquarters of the 
NDRB. Processing of the application shall then be resumed at whatever 
stage of the discharge review process is practicable. Applicants are 
encouraged to submit any request for their military records before 
applying for discharge review rather than after submitting DD Form 293 
to avoid delays in processing of applications and scheduling of reviews. 
Applicants and their counsel may also examine their military personnel 
records at the site of their scheduled review before the hearing. The 
NDRB shall notify applicants of the dates the records are available for 
examination in their standard scheduling information.
    (b) If the NDRB is not authorized to provide copies of documents 
that are under the cognizance of another government department, office, 
or activity, applications for such information must be made by the 
applicant to the cognizant authority. The NDRB shall advise the 
applicant of the mailing address of the government department, office, 
or activity to which the request should be submitted.
    (c) If the official records relevant to the discharge review are not 
available at the agency having custody of the records, the applicant 
shall be so notified and requested to provide such information and 
documents as may be desired in support of the request for discharge 
review. A period of not less than 60 days shall be allowed for such 
documents to be submitted. At the expiration of this period, the review 
may be conducted with information available to the NDRB.
    (d) The NDRB may take steps to obtain additional evidence that is 
relevant to the discharge under consideration beyond that found in the 
official military records or submitted by the applicant, if a review of 
available evidence suggests that it would be incomplete without the 
additional information, or when the applicant presents testimony or 
documents that require additional information to evaluate properly. Such 
information shall be made available to the applicant, upon request, with 
appropriate modifications regarding classified material.
    (1) In any case heard on request of an applicant, the NDRB shall 
provide the applicant and counsel or representative, if any, at a 
reasonable time before initiating the decision process, a notice of the 
availability of all regulations and documents to be considered in the 
discharge review, except for documents in the official personnel or 
medical records and any documents submitted by the applicant. The NDRB 
shall also notify the applicant or counsel or representative: (a) of the 
right to examine such documents or to be provided with copies of the 
documents upon request; (b) of the date by which such requests must be 
received; and (c) of the opportunity to respond within a reasonable 
period of time to be set by the NDRB.
    (2) When necessary to acquaint the applicant with the substance of a 
classified document, the classifying authority, on the request of the 
NDRB, shall prepare a summary of or an extract from the document, 
deleting all references to sources of information and other matters, the 
disclosure of which, in the opinion of the classifying authority, would 
be detrimental to the national security interests of the United States. 
Should preparation of such summary be deemed impracticable by the 
classifying authority, information from the classified source shall

[[Page 230]]

not be considered by the NDRB in its review of the case.
    (e) Regulations of a military department may be obtained at many 
installations under the jurisdiction of the Military Department 
concerned or by writing to the following address: DA Military Review 
Boards Agency, Attention: SFBA (Reading Room), Room 1E520, The Pentagon, 
Washington, DC 20310.



Sec. 724.213  Attendance of witnesses.

    Arrangement for attendance of witnesses testifying in behalf of the 
applicant at discharge review hearings is the responsibility of the 
applicant. The NDRB is not authorized to subpoena or otherwise require 
their presence.



Sec. 724.214  Applicant's expenses.

    Unless otherwise specified by law or regulation, expenses incurred 
by the applicant, witnesses, or counsel/representative will not be paid 
by the Department of Defense. The NDRB is not authorized to issue orders 
or other process to enable the applicant to appear in person.



Sec. 724.215  Military representation.

    Military officers, except those acting pursuant to specific 
detailing by appropriate authorities desiring to act for or on behalf of 
an applicant in the presentation of a case before an NDRB Panel are 
advised to consult legal counsel before undertaking such representation. 
Such representation may be prohibited by 18 U.S.C. 205.



Sec. 724.216  Failure to appear at a hearing or respond to a scheduling notice.

    (a) Except as otherwise authorized by the Secretary concerned, 
further opportunity for a hearing shall not be made available in the 
following circumstances to an applicant who has requested a hearing:
    (1) When the applicant has been sent a letter containing the month 
and location of a proposed hearing and fails to make a timely response; 
or
    (2) When the applicant, after being notified by letter of the time 
and place of the hearing, fails to appear at the appointed time, either 
in person or by representative, without having made a prior, timely 
request for a continuation, postponement, or withdrawal.
    (b) In such cases, the applicant shall be deemed to have waived the 
right to a hearing, and the NDRB shall complete its review of the 
discharge. Further request for a hearing shall not be granted unless the 
applicant can demonstrate that the failure to appear or respond was due 
to circumstances beyond the applicant's control.



Sec. 724.217  Limitation--Reconsiderations.

    A discharge review shall not be subject to reconsideration except:
    (a) When the only previous consideration of the case was on the 
motion of the NDRB;
    (b) When the original discharge review did not involve a personal 
hearing and a hearing is now desired, and the provisions of Sec. 724.216 
do not apply;
    (c) When changes in discharge policy are announced after an earlier 
review of an applicant's discharge, and the new policy is made expressly 
retroactive;
    (d) When the NDRB determines that policies and procedures under 
which the applicant was discharged differ in material respects from 
policies and procedures currently applicable on a service-wide basis to 
discharges of the type under consideration, provided that such changes 
in policies or procedures represent a substantial enhancement of the 
rights afforded an applicant in such proceedings;
    (e) When an individual is to be represented by counsel or 
representative, and was not so represented in any previous consideration 
of the case by the NDRB;
    (f) When the case was not previously considered under uniform 
standards published pursuant to Pub. L. 95-126 and such application is 
made within 15 years after the date of discharge; or
    (g) On the basis of presentation of new, substantial, relevant 
evidence not available to the applicant at the time of the original 
review. The decision whether evidence offered by an applicant in support 
of a request for reconsideration is in fact new, substantial, relevant, 
and was not available to the applicant at the time of the original 
review will be based on a comparison of

[[Page 231]]

such evidence with the evidence considered in the previous discharge 
review. If this comparison shows that the evidence submitted would have 
had a probable effect on matters concerning the propriety or equity of 
the discharge, the request for reconsideration shall be granted.



Sec. 724.218  Limitation--Continuance and Postponements.

    (a) A continuance of a discharge review hearing may be authorized by 
the President of the NDRB or presiding officer of the panel concerned, 
provided that such continuance is of reasonable duration and is 
essential to achieving a full and fair hearing. When a proposal for 
continuance is indefinite, the pending application shall be returned to 
the applicant with the option to resubmit when the case is fully ready 
for review.
    (b) Postponements of scheduled reviews normally shall not be 
permitted other than for demonstrated good and sufficient reason set 
forth by the applicant in a timely manner or for the convenience of the 
government.



Sec. 724.219  Withdrawal of application.

    An applicant shall be permitted to withdraw an application without 
prejudice at any time before the scheduled review, except that failure 
to appear for a scheduled hearing shall not be construed or accepted as 
a withdrawal.



Sec. 724.220  Review on motion of the NDRB.

    Reviews of Naval discharges may be initiated by the NDRB on its own 
motion (10 U.S.C. 1553) which includes reviews requested by the Veterans 
Administration under 38 U.S.C. 101, 3103 as amended by Pub. L. 95-126 of 
October 8, 1977 (See Pub. L. 98-209).



Sec. 724.221  Scheduling of discharge reviews.

    (a) If an applicant requests a personal appearance discharge review, 
or to be represented in absentia, the NDRB shall provide a hearing in 
the NCR or at another site within the forty-eight contiguous states.
    (b) The NDRB shall subsequently notify the applicant and 
representative (if any) in writing of the proposed personal appearance 
hearing time and place. This notice shall normally be mailed thirty to 
sixty days prior to the date of the hearing. If the applicant elects, 
this time limit may be waived and an earlier date set.
    (c) When an applicant requests a documentary review, the NDRB shall 
undertake the review as soon as practicable. Normally, documentary 
reviews shall be conducted in the order in which they are received.



Sec. 724.222  Personal appearance discharge hearing sites.

    (a) The NDRB shall be permanently located, together with its 
administrative staff, in the NCR. The NDRB shall routinely conduct 
personal appearance discharge reviews and documentary reviews at this, 
its permanent office.
    (b) In addition, as permitted by available resources, NDRB Panels 
shall travel to other selected sites within the contiguous 48 states for 
the purpose of conducting reviews. The selection of sites and frequency 
of visits shall be predicated on the number of requests pending within a 
region and the availability of resources.



Sec. 724.223  NDRB support and augmentation by regular and reserve activities.

    (a) When an NDRB Panel travels for the purpose of conducting 
hearings, it shall normally select Navy or Marine Corps installations in 
the area visited as review sites.
    (b) The NDRB Traveling Board shall normally consist of members from 
the NCPB and augmentees from regular and reserve Navy and Marine Corps 
sources, as required.
    (c) Navy and Marine Corps activities in the geographical vicinity of 
selected review sites shall provide administrative support and 
augmentation to an NDRB Panel during its visit where such assistance can 
be undertaken without interference with mission accomplishment. The NDRB 
shall coordinate requests for augmentees and administrative support 
through Commandant of the Marine Corps or the Chief of Naval Reserve, as 
appropriate.
    (d) The administrative staff of the NCPB shall undertake all 
arrangements for NDRB Traveling Panel visits

[[Page 232]]

and shall process associated review documents.



Sec. 724.224  Court-martial specifications, presumption concerning.

    (a) Relevant and material facts stated in a court-martial 
specification, shall be presumed by the NDRB Panel as established facts. 
With respect to a discharge or dismissal adjudged by a court-martial 
case tried under the Uniform Code of Military Justice, the action may 
extend only to change in the discharge or dismissal for purposes of 
clemency. This policy only applies to cases filed with the discharge 
review board after December 6, 1983.
    (b) Relevant and material facts stated in a court-martial 
specification, in the face of which the applicant requested a discharge 
for the good of the service to avoid trial by court-martial, shall be 
considered in accordance with the following:
    (1) If the applicant/accused was required to admit the facts 
contained in the charge sheet, or if the discharge authority was 
required to find that the stated facts were true, then the NDRB can 
presume the truth of such facts, unless there is a substantial credible 
evidence to rebut this presumption; or
    (2) If the discharge in lieu of court-martial only required a valid 
preferral, the NDRB may presume that the signer either had personal 
knowledge of, or had investigated the matters set forth, and that the 
charges were true in fact to the best of the signer's knowledge and 
belief.\1\ The weight to be given this presumption in determining 
whether the facts stated in the charge sheet are true is a matter to be 
determined by the NDRB. To the extent that the discharge proceeding 
reflects an official determination that the facts stated in the charge 
sheet are true; that the applicant/accused admitted the facts stated in 
the charge sheet; or that the applicant/accused admitted guilt of the 
offense(s), then the presumption is strengthened. In accordance with 
paragraph B12f of enclosure (3) to 32 CFR part 70 the presumption may be 
rebutted by ``substantial credible evidence.''
---------------------------------------------------------------------------


    \1\ Charges may be preferred by any person subject to the Uniform 
Code of Military Justice. The charges must be signed and sworn to before 
a commissioned officer authorized to administer oaths, and shall state 
that the signer has personal knowledge of, or has investigated the 
matters set forth therein; and that the charges are true in fact to the 
best of the signer's knowledge and belief. 10 U.S.C. 830 (1976) (Art. 30 
Uniform Code of Military Justice).
---------------------------------------------------------------------------



  Subpart C--Director, Naval Council of Personnel Boards and President 
 Naval Discharge Review Board; Responsibilities in Support of the Naval 
                         Discharge Review Board



Sec. 724.301  Mission.

    To administer and supervise assigned boards and councils within the 
Department of the Navy.



Sec. 724.302  Functions: Director, Naval Council of Personnel Boards.

    (a) Make recommendations to the Secretary of the Navy regarding 
organization, tasking and resources of the NDRB and its associated 
administrative support.
    (b) Submit recommendations to the Secretary of the Navy regarding 
policy and procedures for discharge review.
    (c) Provide administrative and clerical support for NDRB.
    (d) Inform the Secretary of the Navy of matters of interest to him.
    (e) Maintain a system of records, including as a minimum:
    (1) Records specified for the NDRB as stipulated in the procedures 
prescribed in subpart H of this Manual.
    (2) Records required for the administration of military and civilian 
personnel.
    (3) Files of correspondence received and issued.
    (f) Establish billet/position assignment criteria for the NDRB.
    (g) Propose to the Secretary of the Navy, changes to this 
instruction.
    (h) Issue requisite precepts and remove or add members to the NDRB 
from personnel detailed to serve on the Naval Council of Personnel 
Boards, or from personnel otherwise made available.

[[Page 233]]



Sec. 724.303  Functions: President, Naval Discharge Review Board.

    (a) Exercise primary cognizance within the Department of the Navy 
for matters relating to discharge review.
    (b) Supervise and direct the activities of the NDRB.
    (c) Maintain appropriate liaison with discharge review activities in 
other services (use Army Discharge Review Board as focal point for 
service coordination).
    (d) Maintain coordination with the Commandant of the Marine Corps 
(Code M) and the Commander, Naval Military Personnel Command in matters 
associated with discharge review.
    (e) In conformance with SECNAVINST 5211.5C, protect the privacy of 
individuals in connection with discharge review.
    (f) Assure that NDRB functions are administered in accordance with 
the appropriate Secretary of the Navy instructions dealing with privacy 
and access to information.
    (g) Convene the NDRB as authorized by the Secretary of the Navy.
    (h) Direct the movement of the NDRB Traveling Panel(s) on the basis 
of regional hearing requests.
    (i) Monitor the performance of the naval discharge review system. 
Make recommendations for changes and improvements. Take action to avoid 
delays in processing of individual discharge review actions.
    (j) Provide NDRB inputs for the maintenance of a public reading file 
and maintain associated NDRB indexes updated quarterly.



Sec. 724.304  Responsibility for Department of the Navy support of the Naval Discharge Review Board.

    The Commandant of the Marine Corps; Commander, Naval Military 
Personnel Command; Commander, Naval Reserve Force; Commander, Naval 
Medical Command; and chiefs of other bureaus and offices of the 
Department of the Navy shall provide support, as requested, to the Naval 
discharge review process.



Sec. 724.305  Functions of the CMC and CNO.

    In the case of Navy, CNMPC, under the CNP, shall discharge 
responsibilities of the CNO.
    (a) Provide and facilitate access by the NDRB to service/health 
records and other data associated with performance of duty of 
applicants.
    (b) Advise the NDRB of developments in personnel management which 
may have a bearing on discharge review judgments.
    (c) Implement the discharge review decisions of the NDRB and those 
of higher authority within respective areas of cognizance.
    (d) Include the record of NDRB proceedings as a permanent part of 
the service record of the applicant in each case.
    (e) Where appropriate, recommend cases for the NDRB to review on its 
own motion.
    (f) Provide qualified personnel as NDRB members, recorders and 
administrative staff.
    (g) Establish administrative procedures to ensure that if a member 
is separated from the Navy or the Marine Corps under other than fully 
honorable conditions, the member is advised of:
    (1) The right to a review of his or her discharge under provisions 
of 10 U.S.C. 1553, and
    (2) The procedures for applying for such a review.
    (h) Provide Navy and Marine Corps units and activities with 
information on the mission of the Naval Discharge Review Board through 
entries in appropriate personnel administration directives.



Sec. 724.306  Functions of the Commander, Naval Medical Command.

    Under the CNO the COMNAVMEDCOM shall facilitate, as required, access 
by the NDRB to health records of applicants.



Sec. 724.307  Functions of the Commander, Naval Reserve Force.

    In the case of Navy, the COMNAVRESFOR shall discharge the 
responsibilities of the CNO--

[[Page 234]]

    (a) Upon request and within available resources, provide qualified 
inactive duty reservists to serve as members of the NDRB.
    (b) Upon request, provide appropriate accommodations to the NDRB 
Traveling Panels for purposes of conducting reviews at Naval and Marine 
Corps Reserve Centers and aviation facilities.



 Subpart D--Principal Elements of the Navy Department Discharge Review 
                                 System



Sec. 724.401  Applicants.

    As defined in Sec. 724.114.



Sec. 724.402  Naval Discharge Review Board.

    As defined in Sec. 724.102.



Sec. 724.403  President, Naval Discharge Review Board.

    Supervises the Naval Discharge Review Board. (See subpart C).



Sec. 724.404  Director, Naval Council of Personnel Boards.

    Exercises adminstrative control and oversight of the Naval discharge 
review process. (See subpart C).



Sec. 724.405  Commandant of the Marine Corps or the Commander, Naval Military Personnel Command.

    Personnel managers of the Marine Corps and the Navy; responsible for 
providing limited support to the Naval Discharge Review Board and for 
implementation of departmental discharge review decisions. (See subpart 
C).



Sec. 724.406  Commander, Naval Medical Command.

    Custodian of Navy and Marine Corps health records. (See subpart C).



Sec. 724.407  Commander, Naval Reserve Force.

    Manages Naval Reserve resources. Responsible for providing limited 
support to the Naval Discharge Review Board. (See subpart C).



Sec. 724.408  Secretary of the Navy.

    The final authority within the Department of the Navy in discharge 
review.



Subpart E--Procedural Rights of the Applicant and Administrative Actions 
                     Preliminary to Discharge Review



Sec. 724.501  Procedural rights of the applicant.

    Each applicant has the following procedural rights:
    (a) Within 15 years after the date of discharge, to make a written 
request for review of the applicant's discharge if the discharge was 
other than the result of a general court-martial. The request may 
include such other statements, affidavits, or documentation as desired.
    (b) To have that review conducted by the NDRB either in the NCR or 
other designated location, when a personal appearance discharge review 
is desired.
    (c) To appear before the NDRB in person, with or without counsel/
representative; with counsel/representative concurrence, to have 
counsel/representative present the applicant's case in the absence of 
the applicant; or to have the review conducted based on records and any 
additional documentation submitted by the applicant or counsel/
representative.
    (d) To request copies of any documents or other evidence to be 
considered by the NDRB in the review of the applicant's discharge or 
dismissal other than the documents or evidence contained in the official 
record or submitted by the applicant prior to the conduct of the formal 
review and to be afforded an opportunity to examine such other documents 
or evidence or to be provided with copies of them.
    (e) To withdrawn the request for discharge review without prejudice 
at any time prior to the scheduled review, except that failure to appear 
for a scheduled hearing shall not be construed or accepted as a 
withdrawal.
    (f) To request a continuance of the review when the continuance is 
of a reasonable duration and essential to achieving a full and fair 
hearing. The request must indicate the reason why the continuance is 
required.
    (g) To request postponement of the discharge review for good and 
sufficient reason set forth in a timely manner.

[[Page 235]]

    (h) To request reconsideration of the discharge review under the 
conditions set forth in Sec. 724.217.
    (i) To have access to the information to be considered by the NDRB 
prior to the actual review of the applicant's case.
    (j) To have the applicant's right to privacy protected in any review 
conducted by the NDRB.
    (k) When appearing personally before the NDRB:
    (1) To introduce witnesses, documents, and sworn or unsworn 
testimony.
    (2) To present oral or written arguments personally or through 
counsel/representative.
    (l) To submit documents, affidavits, briefs or arguments in writing. 
When the counsel/representative appears in person before the NDRB, 
arguments may be presented orally.
    (m) To state clearly and specifically the issue or issues which the 
applicant desires the NDRB to answer in writing. These must be presented 
in writing on DD Form 293 by the applicant or counsel/representative.
    (n) To have the applicant's discharge reviewed under the standards 
of equity and propriety outlined in subpart I.
    (o) To be provided with a written decision on the applicant's 
review.
    (p) If the case is to be forwarded for Secretarial review, to 
present a timely statement rebutting any findings, conclusions, or 
reasons of the NDRB or the President, NDRB, which are alleged to be 
erroneous on the facts, against the substantial weight of the evidence, 
or contrary to law or governing regulation, prior to that Secretarial 
review.



Sec. 724.502  Actions to be taken by the applicant preliminary to discharge review.

    (a) Application for Review of Discharge or Dismissal from the Armed 
Forces of the United States, DD Form 293 must be used in requesting a 
discharge review. DD Form 293 is available at most military 
installations and regional offices of the Veterans Administration. This 
form is to be signed personally by the applicant. In the event the 
discharged individual is deceased or incompetent, the form must be 
signed by an authorized individual as discussed in Sec. 724.113 of this 
Manual.
    (b) The application is to be accompanied by:
    (1) A copy of the certificate of discharge, if available;
    (2) A copy of the Armed Forces of the United States Report of 
Transfer or Discharge (DD-214), if available;
    (3) Certification of death, incompetency and evidence of 
relationship in applicable cases (Sec. 724.113);
    (4) Other statements, affidavits, depositions, documents and 
information desired by the applicant to be considered by the NDRB.
    (c) Correspondence relating to review of naval discharges should be 
addressed to:

Naval Discharge Review Board, Suite 905--801 North Randolph Street, 
Arlington, VA 22203

    (d) NDRB telephone number is (202) 696-4881.



Sec. 724.503  NDRB response to application for discharge review.

    (a) The NDRB shall acknowledge receipt of the application.
    (b) In the event a documentary review is requested, the applicant 
shall normally receive no further communication from the NDRB until 
notified of the decision in the case.
    (c) In the event a personal appearance discharge review is 
requested, the applicant shall be notified of the proposed time and 
place of this review and shall be advised of the availability of the 
official documents to be considered by the NDRB.
    (d) A copy of NDRB correspondence to an applicant shall be sent to 
the representative of record, if any.



Sec. 724.504  NDRB actions preliminary to discharge review.

    (a) When each application for discharge review is received by the 
NDRB, the service record and health record of the applicant will be 
requested from the appropriate record custodian.
    (b) Upon receipt, each record of service will be reviewed to 
determine whether or not the applicant appears to have been discharged 
under circumstances which might act as a bar to Veterans' Administration 
benefits

[[Page 236]]

under 38 U.S.C. 3103. These circumstances of discharge are:
    (1) Discharge or dismissal by reason of the sentence of a general 
court-martial.
    (2) Discharge as a conscientious objector who refused to perform 
military duty, to wear the uniform or otherwise to comply with lawful 
orders of competent military authority.
    (3) Discharge as a deserter.
    (4) Discharge on the basis, or as part of the basis, of an absence 
without authority from active duty for a continuous period of at least 
180 days, if such discharge was under conditions other than honorable. 
Additionally, such absence is computed without regard to the applicant's 
normal or adjusted expiration of term of service.
    (5) Discharge or dismissal of an officer based on acceptance of the 
officer's resignation for the good of the service.
    (6) Discharge, on his/her own application, during a period of 
hostilities, as an alien.
    (c) If it appears that the applicant was discharged under one or 
more of the circumstances outlined in Sec. 724.504b, a written 
notification will be sent which informs the applicant that:
    (1) An initial service record review reveals that the discharge may 
have been awarded under circumstances which make the applicant 
ineligible for receipt of VA benefits regardless of any action taken by 
the NDRB.
    (2) Separate action by the Board for Correction of Naval Records 
(BCNR) and/or the VA, in case of 180 days consecutive UA 
disqualification, may confer eligibility for VA benefits. Instructions 
for making application to the BCNR and for contacting the VA are 
provided.



      Subpart F--Naval Discharge Review Board Mission and Functions



Sec. 724.601  General.

    The NDRB is a component of the Naval Council of Personnel Boards and 
has its offices located in the NCR. The NDRB conducts documentary 
reviews and personal appearance reviews in the NCR and, on a traveling 
basis, at selected sites within the 48 contiguous states. Regional site 
selection is predicated on the number of pending applications 
accumulated from a given geographical area and the resources available 
to support distant personal appearance reviews. The NDRB does not 
maintain facilities other than at its NCR offices. The primary sites of 
NCR are: Chicago, IL; Dallas, TX; and San Francisco, CA.



Sec. 724.602  Mission.

    To decide, in accordance with standards of naval law and discipline 
and the standards for discharge review set forth in subpart I, whether a 
discharge or dismissal from the naval service is proper and equitable, 
or whether it should be changed.



Sec. 724.603  Functions.

    (a) Meet as frequently as necessary to provide expeditious review of 
naval discharges.
    (b) Meet at locations within the 48 contiguous states as determined 
appropriate on the basis of the number of discharge review applications 
received from various geographical areas and of available resources and 
facilities.
    (c) Review applications for review of discharges.
    (d) In consonance with directives of higher authority and the 
policies set forth in this Manual, grant or deny change of discharges.
    (e) Promulgate decisions in a timely manner.
    (f) Maintain a system of records.
    (g) Maintain liaison in discharge review matters with:
    (1) General Counsel of the Navy.
    (2) Commandant of the Marine Corps.
    (3) Chief of Naval Operations.
    (i) Commander, Naval Reserve Force.
    (ii) Commander, Naval Medical Command.
    (iii) Commander, Naval Military Personnel Command, under the Chief 
of Naval Personnel.
    (4) Judge Advocate General of the Navy.
    (5) Veterans' service organizations.
    (6) Discharge review boards of the other services, using the Army 
Discharge Review Board as the focal point for service coordination.
    (h) Protect the privacy of individuals whose records are reviewed.

[[Page 237]]

    (i) Maintain for public access a reading file and associated index 
of records of NDRB proceedings in all reviews undertaken subsequent to 
July 1, 1975.



       Subpart G--Organization of the Naval Discharge Review Board



Sec. 724.701  Composition.

    The NDRB acting in plenary review session shall be composed of five 
members. Normally the members shall be career military officers, 
assigned to the Naval Council of Personnel Boards or otherwise made 
available; inactive duty officers of the Navy and Marine Corps Reserve 
may serve as members when designated to do so by the President, NDRB.
    (a) Presiding officers of the NDRB shall normally be Navy or Marine 
Corps officers in the grade of Captain/Colonel or above.
    (b) The remaining NDRB membership shall normally be not less than 
the grade of Lieutenant Commander/Major with preference being given to 
senior grades.
    (c) At least three of the five members of the NDRB shall belong to 
the service from which the applicant whose case is under review was 
discharged.
    (d) Individual membership in the NDRB may vary within the 
limitations of the prescribed composition.
    (e) Any member of a panel of the NDRB other than the presiding 
officer may act as recorder for cases assigned. The recorder will 
participate as a voting member of the panel.



Sec. 724.702  Executive management.

    The administrative affairs of the NDRB shall be managed by the 
Executive Secretary. This responsibility shall include schedules, 
records, correspondence and issuance of NDRB decisions.



Sec. 724.703  Legal counsel.

    Normally, the NDRB shall function without the immediate attendance 
of legal counsel. In the event that a legal advisory opinion is deemed 
appropriate by the NDRB, such opinion shall be obtained routinely by 
reference to the senior Judge Advocate assigned to the Office of the 
Director, Naval Council of Personnel Boards. In addition, the NDRB may 
request advisory opinions from staff offices of the Department of the 
Navy, including, but not limited to the General Counsel and the Judge 
Advocate General.



          Subpart H--Procedures of Naval Discharge Review Board



Sec. 724.801  Matters to be considered in discharge review.

    In the process of its review of discharges, the NDRB shall examine 
available records and pertinent regulations of the Department of the 
Navy, together with such information as may be presented by the 
applicant and/or representative, which will normally include:
    (a) The application for discharge review;
    (b) Statements, affidavits or documentation, if any, accompanying 
the application or presented during hearings;
    (c) Testimony, if any, presented during hearings;
    (d) Service and health records;
    (e) A brief of pertinent facts extracted from the service and health 
records, prepared by the NDRB recorder.



Sec. 724.802  Applicant's responsibilities.

    (a) Request for change of discharge. An applicant may request a 
change in the character of or reason for discharge (or both).
    (1) Character of discharge. Block 7 of DD Form 293 provides an 
applicant an opportunity to request a specific change in character of 
discharge (for example, General Discharge to Honorable Discharge; Other 
than Honorable Discharge to General or Honorable Discharge). A person 
separated on or after 1 October 1982 while in an entry level status may 
request a change from Other Than Honorable Discharge to Entry Level 
Separation. A request for review from an applicant who does not have an 
Honorable Discharge will be treated as a request for a change to an 
Honorable Discharge unless the applicant requests a specific change to 
another character of discharge.
    (2) Reason for discharge. Block 7 of DD Form 293 provides an 
applicant an opportunity to request a specific change

[[Page 238]]

in the reason for discharge. If an applicant does not request a specific 
change in the reason for discharge, the NDRB will presume that the 
request for review does not involve a request for change in the reason 
for discharge. Under its responsibility to examine the propriety and 
equity of an applicant's discharge, the NDRB will change the reason for 
discharge if such a change is warranted.
    (3) The applicant must ensure that issues submitted to the NDRB are 
consistent with the request for change in discharge set forth in block 7 
of the DD Form 293. If an ambiguity is created by a difference between 
and applicant's issue and the request in block 7, the NDRB will respond 
to the issue in the context of the action requested in block 7. In the 
case of a personal appearance hearing, the NDRB will attempt to resolve 
the ambiguity under Sec. 724.802(c).
    (b) Request for consideration of specific issues. An applicant may 
request the Board to consider specific issues which, in the opinion of 
the applicant, form a basis for changing the character of or reason for 
discharge, or both. In addition to the guidance set forth in this 
section, applicants should consult the other sections in this manual 
before submitting issues for consideration by the Board.
    (1) Submission of issues on DD Form 293. Issues must be provided to 
the NDRB on DD Form 293 (82 Nov) before the NDRB closes the review 
process for deliberation.
    (i) Issues must be clear and specific. An issue must be stated 
clearly and specifically in order to enable the NDRB to understand the 
nature of the issue and its relationship to the applicant's discharge.
    (ii) Separate listing of issues. Each issue submitted by an 
applicant should be listed separately. Submission of a separate 
statement for each issue provides the best means of ensuring that the 
full import of the issue is conveyed to the NDRB.
    (iii) Use of DD Form 293. DD Form 293 provides applicants with a 
standard format for submitting issues to the NDRB, and its use:
    (A) Provides a means for an applicant to set forth clearly and 
specifically those matters that, in the option of the applicant, provide 
a basis for changing the discharge;
    (B) Assists the NDRB in focusing on those matters considered to be 
important by an applicant;
    (C) Assists the NDRB in distinguishing between a matter submitted by 
an applicant in the expectation that it will be treated as a decisional 
issue, and those matters submitted simply as background or supporting 
materials;
    (D) Provides the applicant with greater rights in the event that the 
applicant later submits a complaint concerning the decisional document;
    (E) Reduces the potential for disagreement as to the content of an 
applicant's issue.
    (iv) Incorporation by reference. If the applicant makes an 
additional written submission, such as a brief, in support of the 
application, the applicant may incorporate by reference specific issues 
set forth in the written submission in accordance with the guidance on 
DD Form 293. The reference shall be specific enough for the NDRB to 
identify clearly the matter being submitted as an issue. At a minimum, 
it shall identify the page, paragraph, and sentence incorporated. 
Because it is to the applicant's benefit to bring such issues to the 
NDRB's attention as early as possible in the review, applicants who 
submit a brief are strongly urged to set forth all such issues as a 
separate item at the beginning of the brief. If it reasonably appears 
that the applicant inadvertently failed expressly to incorporate an 
issue which the applicant clearly identifies as an issue to be addressed 
by the NDRB, the NDRB shall respond to such an issue. (See Secs. 724.805 
and 724.806.)
    (v) Effective date of the new Form DD 293. With respect to 
applications pending (before November 1982, the effective date of the 
new DD Form 293), the NDRB shall consider issues clearly and 
specifically stated in accordance with the rules in effect at the time 
of submission. With respect to applications received after November 
1982, if the applicant submits an obsolete DD Form 293, the NDRB shall 
accept the application, but shall provide the applicant with a copy of 
the new form and advise the applicant that it will only respond

[[Page 239]]

to issues submitted on the new form in accordance with this instruction.
    (2) Relationship of issues to character of or reason for discharge. 
If the application applies to both character of and reason for 
discharge, the applicant is encouraged, but not required, to identify 
the issue as applying to either the character of or the reason for 
discharge (or both). Unless the issue is directed at the reason for 
discharge expressly or by necessary implication, the NDRB will presume 
that it applies solely to the character of discharge.
    (3) Relationship of issues to the standards for discharge review. 
The NDRB reviews discharges on the basis of issues of propriety and 
equity. The standards used by the NDRB are set forth in Sec. 724.804. 
The applicant is encouraged to review those standards before submitting 
any issue upon which the applicant believes a change in discharge should 
be based.
    (i) Issues concerning the equity of the discharge. An issue of 
equity is a matter that involves a determination whether a discharge 
should be changed under the equity standards of this part. This includes 
any issue, submitted by the applicant in accordance with 
Sec. 724.802(b)(1), that is addressed to the discretionary authority of 
the NDRB.
    (ii) Issues concerning the propriety of a discharge. An issue of 
propriety is a matter that involves a determination whether a discharge 
should be changed under the propriety standards of this part. This 
includes an applicant's issue, submitted in accordance with 
Sec. 724.802(b)(1), in which the applicant's position is that the 
discharge must be changed because of an error in the discharge 
pertaining to a regulation, statute, constitutional provision, or other 
source of law (including a matter that requires a determination whether, 
under the circumstances of the case, action by military authorities was 
arbitrary, capricious, or an abuse of discretion). Although a numerical 
reference to the regulation or other sources of law alleged to have been 
violated is not necessarily required, the context of the regulation or a 
description of the procedures alleged to have been violated normally 
must be set forth in order to inform the NDRB adequately of the basis 
for the applicant's position.
    (iii) The applicant's identification of an issue. The applicant is 
encouraged, but not required, to specify that each issue pertains to the 
propriety or the equity of the discharge. This will assist the NDRB in 
assessing the relationship of the issue to propriety or equity.
    (4) Citation of matter from decisions. The primary function of the 
NDRB involves the exercise of discretion on a case-by-case basis. 
Applicants are not required to cite prior decisions as the basis for a 
change in discharge. If the applicant wishes to bring the NDRB's 
attention to a prior decision as background or illustrative material, 
the citation should be placed in a brief or other supporting documents. 
If, however, it is the applicant's intention to submit an issue that 
sets forth specific principles and facts from a specific cited decision, 
the following requirements with respect to applications received on or 
after November 27, 1982 apply:
    (i) The issue must be set forth or expressly incorporated in the 
``Applicant's Issue'' portion of DD Form 293.
    (ii) If an applicant's issue cites a prior decision (of the NDRB, 
another Board, an agency, or a court), the applicant shall describe the 
specific principles and facts that are contained in the prior decision 
and explain the relevance of cited matter to the applicant's case.
    (iii) To ensure timely consideration of principles cited from 
unpublished opinions (including decisions maintained by the Armed Forces 
Discharge Review Board/Corrective Board Reading Room), applicants must 
provide the NDRB with copies of such decisions or of the relevant 
portion of the treatise, manual or similar source in which the 
principles were discussed. At the applicant's request, such materials 
will be returned.
    (iv) If the applicant fails to comply with requirements in 
Sec. 724.802(b)(4), the decisional document shall note the defect, and 
shall respond to the issue without regard to the citation.

[[Page 240]]

    (c) Identification by the NDRB of issues submitted by an applicant. 
The applicant's issues shall be identified in accordance with this 
section after a review of the materials noted under Sec. 924.803, is 
made.
    (1) Issues on DD Form 293. The NDRB shall consider all items 
submitted as issues by an applicant on DD Form 293 (or incorported 
therein).
    (2) Amendment of issues. The NDRB shall not request or instruct an 
applicant to amend or withdraw any matter submitted by the applicant. 
Any amendment or withdrawal of an issue by an applicant shall be 
confirmed in writing by the applicant. Nothing in this provision:
    (i) Limits the NDRB's authority to question an applicant as to the 
meaning of such matter;
    (ii) Precludes the NDRB from developing decisional issues based upon 
such questions;
    (iii) Prevents the applicant from amending or withdrawing such 
matter any time before the NDRB closes the review process for 
deliberation; or
    (iv) Prevents the NDRB from presenting an applicant with a list of 
proposed decisional issues and written information concerning the right 
of the applicant to add to, amend, or withdraw the applicant's 
submission. The written information will state that the applicant's 
decision to take such action (or decline to do so) will not be used 
against the applicant in the consideration of the case.
    (3) Additional issues identified during a hearing. The following 
additional procedure shall be used during a hearing in order to promote 
the NDRB's understanding of an applicant's presentation. If, before 
closing the case for deliberation, the NDRB believes that an applicant 
has presented an issue not listed on DD Form 293, the NDRB may so inform 
the applicant, and the applicant may submit the issue in writing or add 
additional written issues at that time. This does not preclude the NDRB 
from developing its own decisional issues.



Sec. 724.803  The decisional document.

    A decisional document shall be prepared for each review. At a 
minimum, this document shall contain:
    (a) The circumstances and character of the applicant's service as 
extracted from available service records, including health records, and 
information provided by other government authorities or the applicant, 
such as, but not limited to:
    (1) Information concerning the discharge under review, including:
    (i) Date (YYMMDD) of discharge;
    (ii) Character of discharge;
    (iii) Reason for discharge;
    (iv) The specific regulatory authority under which the discharge was 
issued;
    (v) Date (YYMMDD) of enlistment;
    (vi) Period of enlistment;
    (vii) Age at enlistment;
    (viii) Length of service;
    (ix) Periods of unauthorized absence;
    (x) Conduct and efficiency ratings (numerical or narrative);
    (xi) Highest rank achieved;
    (xii) Awards and decorations;
    (xiii) Educational level;
    (xiv) Aptitude test scores;
    (xv) Incidents of punishment pursuant to Article 15, Uniform Code of 
Military Justice (including nature and date (YYMMDD) of offense or 
punishment);
    (xvi) Convictions by court-martial;
    (xvii) Prior military service and type of discharge received.
    (2) Any other matters in the applicant's record which pertains to 
the discharge or the issues, or provide a clearer picture of the overall 
quality of the applicant's service.
    (b) A list of the type of documents submitted by or on behalf of the 
applicant (including written briefs, letters of recommendation, 
affidavits concerning the circumstances of the discharge, or other 
documentary evidence), if any.
    (c) A statement whether the applicant testified, and a list of the 
type of witnesses, if any , who testified on behalf of the applicant.
    (d) A notation whether the application pertained to the character of 
discharge, the reason for discharge, or both.
    (e) A list of the items submitted as issues on DD Form 293 or 
expressly incorporated therein and such other items submitted as issues 
by the applicant that are identified as inadvertently omitted. If the 
issues are listed verbatim on DD Form 293, a copy of the

[[Page 241]]

relevant portion of the form may be attached. Issues that have been 
withdrawn or modified with the written consent of the applicant need not 
be listed.
    (f) The response to the items submitted as issues by the applicant.
    (g) A list of decisional issues and a discussion of such issues.
    (h) NDRB's conclusions on the following:
    (1) Whether the character of or reason for discharge should be 
changed.
    (2) The specific changes to be made, if any.
    (i) A record of the voting, including:
    (1) The number of votes for the NDRB's decision and the number of 
votes in the minority, if any.
    (2) The NDRB members' names and votes. The copy provided to the 
applicant may substitute a statement that the names and votes will be 
made available to the applicant at the applicant's request.
    (j) Advisory opinions, including those containing factual 
information, when such opinions have been relied upon for final decision 
or have been accepted as a basis for rejecting any of the applicant's 
issues. Such advisory opinions or relevant portions that are not fully 
set forth in the discussion of decisional issues or otherwise in 
response to items submitted as issues by the applicant shall be 
incorporated by reference. A copy of opinions incorporated by reference 
shall be appended to the decision and included in the record of 
proceedings.
    (k) The recommendation of the NDRB president when required.
    (l) The addendum of the SRA when required.
    (m) Index entries for each decisional issue under appropriate 
categories listed in the index of decisions.
    (n) An authentication of the document by an appropriate official.



Sec. 724.804  Decision process.

    (a) The NDRB or the NDRB panel, as appropriate, shall meet in 
plenary session to review discharges and exercise its discretion on a 
case-by-case basis in applying the standard set forth in subpart I.
    (b) The presiding officer is responsible for the conduct of the 
discharge review. The presiding officer shall convene, recess, and 
adjourn the NDRB panel as appropriate and shall maintain an atmosphere 
of dignity and decorum at all times.
    (c) Each NDRB member shall act under oath or affirmation requiring 
careful, objective consideration of the application. NDRB members are 
responsible for eliciting all facts necessary for a full and fair 
review. They shall consider all information presented to them by the 
applicant. In addition, they shall consider available military service 
and health records, together with other records that may be in the files 
of the military department concerned and relevant to the issues before 
the NDRB, and any other evidence obtained in accordance with this 
Manual.
    (d) The NDRB shall identify and address issues after a review of the 
following material obtained and presented in accordance with this Manual 
and any implementing instructions of the NDRB: available official 
records, documentary evidence submitted by or on behalf of an applicant, 
presentation of a hearing examination, testimony by or on behalf of an 
applicant, oral or written arguments presented by or on behalf of an 
applicant, and any other relevant evidence.
    (e) If an applicant who has requested a hearing does not respond to 
a notification letter or does not appear for a scheduled hearing, the 
NDRB may complete the review on the basis of material previously 
submitted and available service records.
    (f) Application of standards. (1) When the NDRB determines that an 
applicant's discharge was improper, the NDRB will determine which reason 
for discharge should have been assigned based upon the facts and 
circumstances before the discharge authority, including the service 
regulations governing reasons for discharge at the time the applicant 
was discharged. Unless it is also determined that the discharge was 
inequitable, the provisions as to the characterization in the regulation 
under which the applicant should have been discharged will be considered 
in determining whether further relief is warranted.

[[Page 242]]

    (2) When the NDRB determines that an applicant's discharge was 
inequitable, any change will be based on the evaluation of the 
applicant's overall record of service and relevant regulations of the 
service of which the applicant was a member.
    (g) Voting shall be conducted in closed session, a majority of the 
votes of the five members constituting the NDRB decision.
    (h) Details of closed session deliberations of the NDRB are 
priviledged information and shall not be divulged.
    (i) There is no requirement for a statement of minority views in the 
event of a split vote.
    (j) The NDRB may request advisory opinions from appropriate staff 
officers of the naval service. These opinions are advisory in nature and 
are not binding on the NDRB in its decision-making process.
    (k) The preliminary determinations required by 38 U.S.C. 3103(e) 
shall be made upon majority vote of the NDRB concerned on an expedited 
basis. Such determination shall be based upon the standards set forth in 
this Manual.



Sec. 724.805  Response to items submitted as issues by the applicant.

    (a) General guidance. (1) If any issue submitted by an applicant 
contains two or more clearly separate issues, the NDRB should respond to 
each issue under the guidance of this paragraph as if it had been set 
forth separately by the applicant.
    (2) If an applicant uses a ``building block'' approach (that is, 
setting forth a series of conclusions on issues that lead to a single 
conclusion purportedly warranting a change in the applicant's 
discharge), normally there should be a separate response to each issue.
    (3) Nothing in this paragraph precludes the NDRB from making a 
single response to multiple issues when such action would enhance the 
clarity of the decisional document, but such response must reflect an 
adequate response to each separate issue.
    (b) Decisional issues. An item submitted as an issue by an applicant 
in accordance with this Manual shall be addressed as a decisional issue 
in the following circumstances:
    (1) When the NDRB decides that a change in discharge should be 
granted, and the NDRB bases its decision in whole or in part on the 
applicant's issue; or
    (2) When the NDRB does not provide the applicant with the full 
change in discharge requested, and the decision is based in whole or in 
part on the NDRB's disagreement on the merits with an issue submitted by 
the applicant.
    (c) Response to items not addressed as decisional issues. (1) If the 
applicant receives the full change in discharge requested (or a more 
favorable change), that fact shall be noted and the basis shall be 
addressed as a decisional issue. No further response is required to 
other issues submitted by the applicant.
    (2) If the applicant does not receive the full change in discharge 
requested with respect to either the character of or reason for 
discharge (or both), the NDRB shall address the items submitted by the 
applicant under Sec. 724.806, (Decisional Issues) unless one of the 
following responses is applicable:
    (i) Duplicate issues. The NDRB may state that there is a full 
response to the issue submitted by the applicant under a specified 
decisional issue. This response may be used only when one issue clearly 
duplicates another or the issue clearly requires discussion in 
conjunction with another issue.
    (ii) Citations without principles and facts. The NDRB may state that 
the applicant's issue, which consists of a citation to a decision 
without setting forth any principles and facts from the decision that 
the applicant states are relevant to the applicant's case, does not 
comply with the requirements of Sec. 724.802(b)(4).
    (iii) Unclear issues. The NDRB may state that it cannot respond to 
an item submitted by the applicant as an issue because the meaning of 
the item is unclear. An issue is unclear if it cannot be understood by a 
reasonable person familiar with the discharge review process after a 
review of the materials considered.
    (iv) Nonspecific issues. The NDRB may state that it cannot respond 
to an item submitted by the applicant as an issue because it is not 
specific. A submission

[[Page 243]]

is considered not specific if a reasonable person familiar with the 
discharge review process after a review of the materials considered 
cannot determine the relationship between the applicant's submission and 
the particular circumstances of the case. This response may be used only 
if the submission is expressed in such general terms that no other 
response is applicable. For example, if the NDRB disagrees with the 
applicant as to the relevance of matters set forth in the submission, 
the NDRB normally will set forth the nature of the disagreement with 
respect to decisional issues, or it will reject the applicant's 
position. If the applicant's submission is so general that none of those 
provisions is applicable, then the NDRB may state that it cannot respond 
because the item is not specific.



Sec. 724.806  Decisional issues.

    (a) General. Under the guidance in this section, the decisional 
document shall discuss the issues that provide a basis for the decision 
whether there should be a change in the character of or reason for 
discharge. In order to enhance clarity, the NDRB should not address 
matters other than issues relied upon in the decision or raised by the 
applicant.
    (1) Partial change. When the decision changes a discharge, but does 
not provide the applicant with the full change in discharge requested, 
the decisional document shall address both the issues upon which change 
is granted and the issues upon which the NDRB denies the full change 
requested.
    (2) Relationship of issue of character of or reason for discharge. 
Generally, the decisional document should specify whether a decisional 
issue applies to the character of or reason for discharge (or both), but 
it is not required to do so.
    (3) Relationship of an issue to propriety or equity. (i) If an 
applicant identifies an issue as pertaining to both propriety and 
equity, the NDRB will consider it under both standards.
    (ii) If an applicant identifies an issue as pertaining to the 
propriety of the discharge (for example, by citing a propriety standard 
or otherwise claiming that a change in discharge is required as a matter 
of law), the NDRB shall consider the issue solely as a matter of 
propriety. Except as provided in Sec. 724.806(a)(3)(d), the NDRB is not 
required to consider such an issue under the equity standards.
    (iii) If the applicant's issue contends that the NDRB is required as 
a matter of law to follow a prior decision by setting forth an issue of 
propriety from the prior decision and describing its relationship to the 
applicant's case, the issue shall be considered under the propriety 
standards and addressed under Sec. 724.806 (a) or (b).
    (iv) If the applicant's issue sets forth principles of equity 
contained in a prior NDRB decision, describes the relationship to the 
applicant's case, and contends that the NDRB is required as a matter of 
law to follow the prior case, the decisional document shall note that 
the NDRB is not bound by its discretionary decisions in prior cases. 
However, the principles cited by the applicant, and the description of 
the relationship of the principles to the applicant's case, shall be 
considered and addressed under the equity standards.
    (v) If the applicant's issue cannot be identified as a matter of 
propriety or equity, the NDRB shall address it as an issue of equity.
    (b) Change of discharge: issues of propriety. If a change in the 
discharge is warranted under the propriety standards, the decisional 
document shall state that conclusion and list the errors of expressly 
retroactive changes in policy or violations of regulations that provide 
a basis for the conclusion. The decisional document shall cite the facts 
in the record that demonstrate the relevance of the error or change in 
policy to the applicant's case. If the change in discharge does not 
constitute the full change requested by the applicant, the reasons for 
not granting the full change shall be set forth.
    (c) Denial of the full change requested: issues of propriety. (1) If 
the decision rejects the applicant's position on an issue of propriety, 
of if it is otherwise decided on the basis of an issue of propriety that 
the full change in discharge requested by the applicant is not 
warranted, the decisional document shall note that conclusion.

[[Page 244]]

    (2) The decisional document shall list reasons for its conclusion on 
each issue of propriety under the following guidance:
    (i) If a reason is based in whole or in part upon a regulation, 
statute, constitutional provision, judicial determination, or other 
source of law, the NDRB shall cite the pertinent source of law and the 
facts in the record that demonstrate the relevance of the source of law 
to the particular circumstances in the case.
    (ii) If a reason is based in whole or in part on a determination as 
to the occurrence or nonoccurrence of an event or circumstances, 
including a factor required by applicable service regulations to be 
considered for determination of the character of and reason for the 
applicant's discharge, the NDRB shall make a finding of fact for each 
such event or circumstance.
    (A) For each such finding, the decisional document shall list the 
specific source of the information relied upon. This may include the 
presumption of regularity in appropriate cases. If the information is 
listed in the service record section of the decisional document, a 
citation is not required.
    (B) If a finding of fact is made after consideration of 
contradictory evidence in the record (including information cited by the 
applicant or otherwise identified by members of the NDRB), the 
decisional document shall set forth the conflicting evidence and explain 
why the information relied upon was more persuasive than the information 
that was rejected. If the presumption of regularity is cited as the 
basis for rejecting such information, the decisional document shall 
explain why the contradictory evidence was insufficient to overcome the 
presumption. In an appropriate case, the explanation as to why the 
contradictory evidence was insufficient to overcome the presumption of 
regularity may consist of a statement that the applicant failed to 
provide sufficient corroborating evidence, or that the NDRB did not find 
the applicant's testimony to be sufficiently credible to overcome the 
presumption.
    (iii) If the NDRB disagrees with the position of the applicant on an 
issue of propriety, the following guidance applies in addition to the 
guidance in Sec. 724.806(c)(2) (a) and (b):
    (A) The NDRB may reject the applicant's position by explaining why 
it disagrees with the principles set forth in the applicant's issue 
(including principles derived from cases cited by the applicant in 
accordance with Sec. 724.802(b)(4).
    (B) The NDRB may reject the applicant's position by explaining why 
the principles set forth in the applicant's issue (including principles 
derived from cases cited by the applicant in accordance with 
Sec. 724.802(b)(4)) are not relevant to the applicant's case.
    (C) The NDRB may reject an applicant's position by stating that the 
applicant's issue of propriety is not a matter upon which the NDRB 
grants a change in discharge, and by providing an explanation for this 
position. When the applicant indicates that the issue is to be 
considered in conjunction with one or more other specified issues, the 
explanation will address all such specified issues.
    (D) The NDRB may reject the applicant's position on the grounds that 
other specified factors in the case preclude granting relief, regardless 
of whether the NDRB agreed with the applicant's position.
    (E) If the applicant take the position that the discharge must be 
changed because of an alleged error in a record associated with the 
discharge, and the record has not been corrected by the organization 
with primary responsibility for corrective action, the NDRB may respond 
that it will presume the validity of the record in the absence of such 
corrective action. If the organization empowered to correct the record 
is within the Department of Defense, the NDRB should provide the 
applicant with a brief description of the procedures for requesting 
correction of the record. If the NDRB on its own motion cites this issue 
as a decisional issue on the basis of equity, it shall address the 
issue.
    (F) When an applicant's issue contains a general allegation that a 
certain course of action violated his or her constitutional rights, the 
NDRB may respond in appropriate cases by noting that the action was 
consistent with statutory or regulatory authority, and

[[Page 245]]

by citing the presumption of constitutionality that attaches to statutes 
and regulations. If, on the other hand, the applicant makes a specific 
challenge to the constitutionality of the action by challenging the 
application of a statute or regulation in a particular set of 
circumstances, it is not sufficient to respond solely by citing the 
presumption of constitutionality of the statute or regulation when the 
applicant is not challenging the constitutionality of the statute or 
regulation. Instead, the response must address the specific 
circumstances of the case.
    (d) Denial of the full change in discharge requested when propriety 
is not at issue. If the applicant has not submitted an issue of 
propriety and the NDRB has not otherwise relied upon an issue of 
propriety to change the discharge, the decisional document shall contain 
a statement to that effect. The NDRB is not required to provide any 
further discussion as to the propriety of the discharge.
    (e) Change of discharge: issues of equity. If the NDRB concludes 
that a change in the discharge is warranted under the equity standards, 
the decisional document shall list each issue of equity upon which this 
conclusion is based. The NDRB shall cite the facts in the record that 
demonstrate the relevance of the issue to the applicant's case. If the 
change in discharge does not constitute the full change requested by the 
applicant, the reasons for not giving the full change requested shall be 
discussed.
    (f) Denial of the full change in discharge requested: issues of 
equity. (1) If the NDRB rejects the applicant's position on an issue of 
equity, or if the decision otherwise provides less than the full change 
in discharge requested by the applicant, the decisional document shall 
note that conclusion.
    (2) The NDRB shall list reasons for its conclusion on each issue of 
equity under the following guidance:
    (i) If a reason is based in whole or in part upon a regulation, 
statute, constitutional provision, judicial determination, or other 
source of law, the NDRB shall cite the pertinent source of law and the 
facts in the record that demonstrate the relevance of the source of law 
to the exercise of discretion on the issue of equity in the applicant's 
case.
    (ii) If a reason is based in whole or in part on a determination as 
to the occurrence or nonoccurrence of an event or circumstance, 
including a factor required by applicable service regulations to be 
considered for determination of the character of and reason for the 
applicant's discharge, the NDRB shall make a finding of fact for each 
such event or circumstance.
    (A) For each such finding, the decisional document shall list the 
specific source of the information relied upon. This may include the 
presumption of regularity in appropriate cases. If the information is 
listed in the service record section of the decisional document, a 
citation is not required.
    (B) If a finding of fact is made after consideration of 
contradictory evidence in the record (including information cited by the 
applicant or otherwise indentified by members of the NDRB), the 
decisional document shall set forth the conflicting evidence and explain 
why the information relied upon was more persuasive than the information 
that was rejected. If the presumption of regularity is cited as the 
basis for rejecting such information, the decisional document shall 
explain why the contradictory evidence was insufficient to overcome the 
presumption. In an appropriate case, the explanation as to why the 
contradictory evidence was insufficient to overcome the presumption of 
regularity may consist of a statement that the applicant failed to 
provide sufficient corroborating evidence, or that the NDRB did not find 
the applicant's testimony to be sufficiently credible to overcome the 
presumption.
    (iii) If the NDRB disagrees with the postion of the applicant on an 
issue of equity, the following guidance applies in addition to the 
guidance in paragraphs above:
    (A) The NDRB may reject the applicant's position by explaining why 
it disagrees with the principles set forth in the applicant's issue 
(including principles derived from cases cited by the applicant).
    (B) The NDRB may reject the applicant's position by explaining why 
the principles set forth in the applicant's

[[Page 246]]

issue (including principles derived from cases cited by the applicant) 
are not relevant to the applicant's case.
    (C) The NDRB may reject an applicant's position by explaining why 
the applicant's issue is not a matter upon which the NDRB grants a 
change in discharge as a matter of equity. When the applicant indicates 
that the issue is to be considered in conjunction with other specified 
issues, the explanation will address all such specified issues.
    (D) The NDRB may reject the applicant's position on the grounds that 
other specified factors in the case preclude granting relief, regardless 
of whether the NDRB agrees with the applicant's position.
    (E) If the applicant takes the position that the discharge should be 
changed as a matter of equity because of an alleged error in a record 
associated with the discharge, and the record has not been corrected by 
the organization with primary responsibility for corrective action, the 
NDRB may respond that it will presume the validity of the record in the 
absence of such corrective action. However, the NDRB will consider 
whether it should exercise its equitable powers to change the discharge 
on the basis of the alleged error. If it declines to do so, it shall 
explain why the applicant's position did not provide a sufficient basis 
for the change in the discharge requested by the applicant.
    (iv) When NDRB concludes that aggravating factors outweigh 
mitigating factors, the NDRB must set forth reasons such as the 
seriousness of the offense, specific circumstances surrounding the 
offense, number of offenses, lack of mitigating circumstances, or 
similar factors. The NDRB is not required however, to explain why it 
relied on any such factors unless the applicability or weight of such a 
factor is expressly raised as an issue by the applicant.
    (v) If the applicant has not submitted any issues and the NDRB has 
not otherwise relied upon an issue of equity for a change in discharge, 
the decisional document shall contain a statement to that effect, and 
shall note that the major factors upon which the discharge was based are 
set forth in the service record portion of the decisional document.



Sec. 724.807  Record of NDRB proceedings.

    (a) When the proceedings in any review have been concluded, a record 
thereof will be prepared. Records may include written records, 
electromagnetic records, audio and/or videotape recordings, or a 
combination.
    (b) At a minimum, the record will include the following:
    (1) The application for review;
    (2) A record of the testimony in either verbatim, summarized, or 
recorded form at the option of the NDRB;
    (3) Documentary evidence or copies, other than the military service 
record considered by the NDRB;
    (4) Briefs and arguments submitted by or on behalf of the applicant;
    (5) Advisory opinions considered by the NDRB, if any:
    (6) The findings, conclusions, and reasons developed by the NDRB;
    (7) Notification of the NDRB's decision to the cognizant custodian 
of the applicant's records, or reference to the notification document;
    (8) A copy of the decisional document.



Sec. 724.808  Issuance of decisions following discharge review.

    The applicant and counsel or representative, if any, shall be 
provided with a copy of the decisional document and of any further 
action in review. Final notification of decisions shall be issued to the 
applicant with a copy to the counsel or representative, if any, and to 
the service manager concerned.
    (a) Notification to applicants, with copies to counsel or 
representatives, shall normally be made through the U.S. Postal Service. 
Such notification shall consist of a notification of decision, together 
with a copy of the decisional document.
    (b) Notification to the service manager shall be for the purpose of 
appropriate action and inclusion of review matter in personnel records. 
Such notification shall bear appropriate certification of completeness 
and accuracy.
    (c) Actions on review by superior authority, when occurring, shall 
be provided to the applicant and counsel or representative in the same 
manner as

[[Page 247]]

to the notification of the review decision.



Sec. 724.809  Final disposition of the record of proceedings.

    The original decisional document and all appendices thereto, shall 
in all cases be incorporated in the military service record of the 
applicant and the service record shall be returned to the custody of the 
appropriate record holding facility. If a portion of the original record 
of proceedings cannot be stored with the service record, the service 
record shall contain a notation as to the place where the record is 
stored. Other copies including any electromagnetic records, audio and/or 
videotape recordings or any combination thereof shall be filed in the 
NDRB case folder and disposed of in accordance with appropriate naval 
regulations.



Sec. 724.810  Availability of Naval Discharge Review Board documents for public inspection and copying.

    (a) A copy of the decisional document prepared in accordance with 
subpart H of this enclosure shall be made available for public 
inspection and copying promptly after a notice of final decision is sent 
to the applicant.
    (b) To prevent a clearly unwarranted invasion of personal privacy, 
identifying details of the applicant and other persons will be deleted 
from documents made available for public inspection and copying.
    (1) Names, addresses, social security numbers, and military service 
numbers must be deleted. Written justification shall be made for all 
other deletions and shall be available for public inspection.
    (2) The NDRB shall ensure that there is a means for relating a 
decisional document number to the name of the applicant to permit 
retrieval of the applicant's records when required in processing a 
complaint.
    (c) Any other privileged or classified material contained in or 
appended to any documents required by this Manual to be furnished the 
applicant and counsel or representative or made available for public 
inspection and copying may be deleted only if a written statement on the 
basis for the deletions is provided the applicant and counsel or 
representative and made available for public inspection. It is not 
intended that the statement be so detailed as to reveal the nature of 
the withheld material.
    (d) NDRB documents made available for public inspection and copying 
shall be located in the Armed Forces Discharge Review/Correction Board 
Reading Room. The documents shall be indexed in a usable and concise 
form so as to enable the public, and those who represent applicants 
before the NDRB, to isolate from all these decisions that are indexed, 
those cases that may be similar to an applicant's case and that indicate 
the circumstances under or reasons for (or both) which the NDRB or the 
Secretary concerned granted or denied relief.
    (1) The reading file index shall include, in addition to any other 
item determined by the NDRB, the case number, the date, character of, 
reason and authority for the discharge. It shall also include the 
decisions of the NDRB and reviewing authority, if any, and the issues 
addressed in the statement of findings, conclusions, and reasons.
    (2) The index shall be maintained at selected permanent locations 
throughout the United States. This ensures reasonable availability to 
applicants at least 30 days before a traveling panel review. A list of 
these locations shall be published in the Federal Register by the 
Department of the Army. The index shall also be made available at sites 
selected for traveling panels or hearing examinations for such periods 
as the NDRB is present and in operation. An applicant who has requested 
a traveling panel review shall be advised, in the notice of such review, 
of the permanent index locations.
    (3) The Armed Forces Discharge Review/Corrections Board Reading Room 
shall publish indexes quarterly for all DRBs. The NDRB shall be 
responsible for timely submission to the Reading Room of individual case 
information required for update of the indexes. In addition, the NDRB 
shall be responsible for submission of new index categories based upon 
published changes in policy, procedures, or standards. These indexes 
shall be available for public inspection or purchase (or both) at the 
Reading Room. When the NDRB

[[Page 248]]

has accepted an application, information concerning the availability of 
the index shall be provided in the NDRB's response to the application.



Sec. 724.811  Privacy Act information.

    Information protected under the Privacy Act is involved in the 
discharge review functions. The provisions of SECNAVINST 5211.5C shall 
be observed throughout the processing of a request for review of 
discharge or dismissal.



Sec. 724.812  Responsibilities of the Reading Room.

    (a) Copies of decisional documents will be provided to individuals 
or organizations outside the NCR in response to written requests for 
such documents. Although the Reading Room shall try to make timely 
responses to such requests, certain factors such as the length of a 
request, the volume of other pending requests, and the impact of other 
responsibilities of the staff assigned to such duties may cause some 
delays. A fee may be charged for such documents under appropriate DOD 
and Department of the Army directives and regulations. The manual that 
accompanies the index of decisions shall notify the public that if an 
applicant indicates that a review is scheduled for a specific date, an 
effort will be made to provide requested decisional documents before 
that date. The individual or organization will be advised if that cannot 
be accomplished.
    (b) Correspondence relating to matters under the cognizance of the 
Reading Room (including requests for purchase of indexes) shall be 
addressed to:

DA Military Review Board Agency, Attention: SFBA (Reading Room), Room 
1E520, The Pentagon, Washington, DC 20310.



Sec. 724.813  The recommendation of the NDRB president.

    (a) General. The president of the NDRB may forward cases for 
consideration by the Secretarial Review Authority (SRA). There is no 
requirement that the president submit a recommendation when a case is 
forwarded to the SRA. If the president makes a recommendation with 
respect to the character of or reason for discharge, however, the 
recommendation shall be prepared under the guidance in Sec. 724.813b.
    (b) Format for recommendation. If a recommendation is provided, it 
shall contain the president's view whether there should be a change in 
the character of or reason for discharge (or both). If the president 
recommends such a change, the particular change to be made shall be 
specified. The recommendation shall set forth the president's position 
on decisional issues and issues submitted by the applicant under the 
following guidance:
    (1) Adoption of the NDRB's decisional document. The recommendation 
may state that the president has adopted the decisional document 
prepared by the majority. The president shall ensure that the decisional 
document meets the requirements of this enclosure.
    (2) Adoption of the specific statements from the majority. If the 
President adopts the views of the majority only in part, the 
recommendation shall cite the specific matter adopted from the majority. 
If the president modifies a statement submitted by the majority, the 
recommendation shall set forth the modification.
    (3) Response to issues not included in matter adopted from the 
majority. The recommendation shall set forth the following if not 
adopted in whole or in part from the majority:
    (i) The issues on which the president's recommendation is based. 
Each such decisional issue shall be addressed by the president.
    (ii) The president's response to items submitted as issues by the 
applicant.
    (iii) Reasons for rejecting the conclusion of the majority with 
respect to the decisional document which, if resolved in the applicant's 
favor, would have resulted in greater relief for the applicant than that 
afforded by the president's recommendation. Such issues shall be 
addressed under the principles in Sec. 724.806.



Sec. 724.814  Secretarial Review Authority (SRA).

    (a) Review by the SRA. The Secretarial Review Authority (SRA) is the 
Secretary concerned or the official to whom Secretary's discharge review 
authority has been delegated.

[[Page 249]]

    (1) The SRA may review the following types of cases before issuance 
of the final notification of a decision:
    (i) Any specific case in which the SRA has an interest.
    (ii) Any specific case that the president of the NDRB believes is of 
significant interest to the SRA.
    (2) Cases reviewed by the SRA shall be considered under the 
standards set forth in this part.
    (b) Processing the decisional document. (1) The decisional document 
shall be transmitted by the NDRB president under Sec. 724.813.
    (2) The following guidance applies to cases that have been forwarded 
to the SRA except for cases reviewed on the NDRB's own motion, without 
the participation of the applicant or the applicant's counsel:
    (i) The applicant and counsel or representative, if any, shall be 
provided with a copy of the proposed decisional document, including the 
NDRB president's recommendation to the SRA, if any. Classified 
information shall be summarized.
    (ii) The applicant shall be provided with a reasonable period of 
time, but not less than 25 days, to submit a rebuttal to the SRA. Any 
issue in rebuttal consists of a clear and specific statement by the 
applicant in support of or in opposition to the statements of the NDRB 
or NDRB president on decisional issues and other clear and specific 
issues that were submitted by the applicant. The rebuttal shall be based 
solely on matters in the record before the NDRB closed the case for 
deliberation or in the president's recommendation.
    (c) Review of the decisional document. If corrections in the 
decisional document are required, the decisional document shall be 
returned to the NDRB for corrective action. The corrected decisional 
document shall be sent to the applicant (and counsel, if any), but a 
further opportunity for rebuttal is not required unless the correction 
produces a different result or includes a substantial change in the 
decision by the NDRB (or NDRB president) of the issues raised by the 
majority or the applicant.
    (d) The addendum of the SRA. The decision of the SRA shall be in 
writing and shall be appended as an addendum to the decisional document 
under the guidance in this subsection.
    (1) The SRA's decision. The addendum shall set forth the SRA's 
decision whether there will be a change in the character of or reason 
for discharge (or both); if the SRA concludes that a change is 
warranted, the particular change to be made shall be specified. If the 
SRA adopts the decision recommended by the NDRB or the NDRB president, 
the decisional document shall contain a reference to the matter adopted.
    (2) Discussion of issues. In support of the SRA's decision, the 
addendum shall set forth the SRA's position on decisional issues, items 
submitted as issues by an applicant and issues raised by the NDRB and 
the NDRB president in accordance with the following guidance:
    (i) Adoption of the NDRB president's recommendation. The addendum 
may state that the SRA has adopted the NDRB president's recommendation.
    (ii) Adoption of the NDRB's proposed decisional document. The 
addendum may state that the SRA has adopted the proposed decisional 
document prepared by the NDRB.
    (iii) Adoption of specific statements from the majority or the NDRB 
president. If the SRA adopts the views of the NDRB or the NDRB president 
only in part, the addendum shall cite the specific statements adopted. 
If the SRA modifies a statement submitted by the NDRB or the NDRB 
president, the addendum shall set forth the modification.
    (iv) Response to issues not included in matter adopted from the NDRB 
or the NDRB president. The addendum shall set forth the following if not 
adopted in whole or in part from the NDRB or the NDRB president:
    (A) A list of the issues on which the SRA's decision is based. Each 
such decisional document issue shall be addressed by the SRA. This 
includes reasons for rejecting the conclusion of the NDRB or the NDRB 
president with respect to decisional issues which, if resolved in the 
applicant's favor, would have resulted in a change to the discharge more 
favorable to the applicant

[[Page 250]]

than that afforded by the SRA's decision. Such issues shall be addressed 
under the principles in Sec. 724.806(f).
    (B) The SRA's response to items submitted as issues by the 
applicant.
    (3) Response to the rebuttal. (i) If the SRA grants the full change 
in discharge requested by the applicant (or a more favorable change), 
that fact shall be noted, the decisional issues shall be addressed and 
no further response to the rebuttal is required.
    (ii) If the SRA does not grant the full change in discharge 
requested by the applicant (or a more favorable change), the addendum 
shall list each issue in rebuttal submitted by an applicant in 
accordance with this section, and shall set forth the response of the 
SRA under the following guidance:
    (A) If the SRA rejects an issue in rebuttal, the SRA may respond in 
accordance with the principals in Sec. 724.806.
    (B) If the matter adopted by the SRA provides a basis for the SRA's 
rejection of the rebuttal material, the SRA may note that fact and cite 
the specific matter adopted that responds to the issue in rebuttal.
    (C) If the matter submitted by the applicant does not meet the 
requirements for rebuttal material, that fact shall be noted.
    (4) Index entries. Appropriate index entries shall be prepared for 
the SRA's actions for matters that are not adopted from the NDRB's 
proposed decisional document.



Sec. 724.815  Complaints.

    A complaint is any correspondence in which it is alleged that a 
decisional document issued by the NDRB or the SRA contains a 
specifically indentified violation of 32 CFR part 70 or any references 
thereto. Complaints will be reviewed pursuant to 32 CFR part 70.



                Subpart I--Standards for Discharge Review



Sec. 724.901  Objective of discharge review.

    The objective of a discharge review is ot examine the propriety and 
equity of the applicant's discharge and to effect changes, if necessary. 
The standards of the review and the underlying factors which aid in 
determining whether the standards are met shall be consistent with 
historical criteria for determining honorable service. No factors shall 
be established that require automatic change or denial of a change in a 
discharge. Neither the NDRB nor the Secretary of the Navy shall be bound 
by any methodology of weighting of the factors in reaching a 
determination. In each case, the NDRB shall give full, fair, and 
impartial consideration to all applicable factors before reaching a 
decision. An applicant may not receive a less favorable discharge than 
that issued at the time of separation. This does not preclude correction 
of clerical errors.



Sec. 724.902  Propriety of the discharge.

    (a) A discharge shall be deemed to be proper unless, in the course 
of discharge review, it is determined that:
    (1) There exists an error of fact, law, procedure, or discretion 
associated with the discharge at the time of issuance; and that the 
rights of the applicant were prejudiced thereby (such error shall 
constitute prejudicial error if there is substantial doubt that the 
discharge would have remained the same if the error had not been made); 
or
    (2) A change in policy by the military service of which the 
applicant was a member, made expressly retroactive to the type of 
discharge under consideration, requires a change in the discharge.
    (b) When a record associated with the discharge at the time of 
issuance involves a matter in which the primary responsibility for 
corrective action rests with another organization (for example, another 
Board, agency, or court) the NDRB will recognize an error only to the 
extent that the error has been corrected by the organization with 
primary responsibility for correcting the record.
    (c) The primary function of the NDRB is to exercise its discretion 
on issues of equity by reviewing the individual merits of each 
application on a case-by-case basis. Prior decisions in which the NDRB 
exercised its discretion to change a discharge based on issues of equity 
(including the factors cited in such decisions or the weight

[[Page 251]]

given to factors in such decisions) do not bind the NDRB in its review 
of subsequent cases because no two cases present the same issues of 
equity.
    (d) The following applies to applicants who received less than fully 
honorable administrative discharges because of their civilian misconduct 
while in an inactive duty status in a reserve component and who were 
discharged or had their discharge reviewed on or after April 20, 1971: 
the NDRB shall either recharacterize the discharge to Honorable without 
any additional proceedings or additional proceedings shall be conducted 
in accordance with the Court's Order of December 3, 1981, in Wood v. 
Secretary of Defense to determine whether proper grounds exist for the 
issuance of a less than honorable discharge, taking into account that:
    (1) An other than honorable (formerly undesirable) discharge for an 
inactive duty reservist can only be based upon civilian misconduct found 
to have affected directly the performance of military duties;
    (2) A general discharge for an inactive duty reservist can only be 
based upon civilian misconduct found to have had an adverse impact on 
the overall effectiveness of the military, including military morale and 
efficiency.



Sec. 724.903  Equity of the discharge.

    A discharge shall be deemed to be equitable unless:
    (a) In the course of a discharge review, it is determined that the 
policies and procedures under which the applicant was discharged differ 
in material respects from policies and procedures currently applicable 
on a service-wide basis to discharges of the type under consideration, 
provided that:
    (1) Current policies or procedures represent a substantial 
enhancement of the rights afforded a respondent in such proceedings; and
    (2) There is substantial doubt that the applicant would have 
received the same discharge, if relevant current policies and procedures 
had been available to the applicant at the time of the discharge 
proceedings under consideration.
    (b) At the time of issuance, the discharge was inconsistent with 
standards of discipline in the military service of which the applicant 
was a member.
    (c) In the course of a discharge review, it is determined that 
relief is warranted based upon consideration of the applicant's service 
record and other evidence presented to the NDRB viewed in conjunction 
with the factors listed in this paragraph and the regulations under 
which the applicant was discharged, even though the discharge was 
determined to have been otherwise equitable and proper at the time of 
issuance. Areas of consideration include, but are not limited to:
    (1) Quality of service, as evidenced by factors such as:
    (i) Service history, including date of enlistment, period of 
enlistment, highest rank achieved, conduct and proficiency ratings 
(numerical and narrative);
    (ii) Awards and decorations;
    (iii) Letters of commendation or reprimand;
    (iv) Combat service;
    (v) Wounds received in action;
    (vi) Records of promotions and demotions;
    (vii) Level of responsibility at which the applicant served;
    (viii) Other acts of merit that may not have resulted in formal 
recognition through an award or commendation;
    (ix) Length of service during the service period which is the 
subject of the discharge review;
    (x) Prior military service and type of discharge received or 
outstanding post service conduct to the extent that such matters provide 
a basis for a more thorough understanding of the performance of the 
applicant during the period of service which is the subject of the 
discharge review;
    (xi) Convictions by court-martial;
    (xii) Records of nonjudicial punishment;
    (xiii) Convictions by civil authorities while a member of the 
service, reflected in the discharge proceedings or otherwise noted in 
the service records;
    (xiv) Records of periods of unauthorized absence;
    (xv) Records relating to a discharge in lieu of court-martial.
    (2) Capability to serve, as evidenced by factors such as:

[[Page 252]]

    (i) Total capabilities. This includes an evaluation of matters such 
as age, educational level, and aptitude scores. Consideration may also 
be given as to whether the individual met normal military standards of 
acceptability for military service and similar indicators of an 
individual's ability to serve satisfactorily, as well as ability to 
adjust to military service.
    (ii) Family and personal problems. This includes matters in 
extenuation or mitigation of the reason for discharge that may have 
affected the applicant's ability to serve satisfactorily.
    (iii) Arbitrary or capricious actions. This includes actions by 
individuals in authority which constiute a clear abuse of such authority 
and that, although not amounting to prejudicial error, may have 
contributed to the decision to discharge the individual or unduly 
influence the characterization of service.
    (iv) Discrimination. This includes unauthorized acts as documented 
by records or other evidence.

 Appendix A to Part 724--Policy Statement by the Secretary of Defense--
               Addressing Certain Categories of Discharges

    Secretary of Defense memorandum of August 13, 1971, to the 
Secretaries of the Military Departments, The Chairman, Joint Chiefs of 
Staff; Subject: Review of Discharges Under Other Than Honorable 
Conditions Issued to Drug Users:

    ``Consistent with Department of Defense Directive 1300.11, October 
23, 1970, and my memorandum of July 7, 1971, concerning rehabilitation 
and treatment of drug users, administrative discharges under other than 
honorable conditions issued solely on the basis of personal use of drugs 
or possession of drugs for the purpose of such use will be reviewed for 
recharacterization.
    ``Accordingly, each Secretary of a Military Department, acting 
through his Discharge Review Board, will consider applications for such 
review from former service members. Each Secretary is authorized to 
issue a discharge under honorable conditions upon establishment of facts 
consistent with this policy. Former service members will be notified of 
the results of the review. The Veterans' Administration will also be 
notified of the names of former service members whose discharges are 
recharacterized.
    ``The statute of limitations for review of discharges within the 
scope of this policy will be in accordance with 10 United States Code 
1553.
    ``This policy shall apply to those service members whose cases are 
finalized or in process on or before July 7, 1971''.
    Secretary of Defense memorandum of April 28, 1972, to Secretaries of 
the Military Departments, Chairman, Joint Chiefs of Staff; Subject: 
Review of Punitive Discharges Issued to Drug Users:
    ``Reference is made to Secretary Packard's memorandum of July 7, 
1971, concerning rehabilitation and treatment of drug users, and my 
memorandum of August 13, 1971, subject: `Review of Discharges Under 
Other Than Honorable Conditions Issued to Drug Users.'
    ``My August 13, 1971 memorandum established the current Departmental 
policy that administrative discharges under other than honorable 
conditions issued solely on the basis of personal use of drugs or 
possession of drugs for the purpose of such use will be reviewed for 
recharacterization to under honorable conditions.
    ``It is my desire that this policy be expanded to include punitive 
discharges and dismissals resulting from approved sentences of courts-
martial issed solely for conviction of personal use of drugs or 
possession of drugs for the purpose of such use.
    ``Review and recharacterization are to be effected, upon the 
application of former service members, utilizing the procedures and 
authority set forth in Title 10, United States Code, sections 874(b), 
1552 and 1553.
    ``This policy is applicable only to discharges which have been 
executed on or before July 7, 1971, or issued as a result of a case in 
process on or before July 7, 1971.
    ``Former service members requesting a review will be notified of the 
results of the review. The Veterans' Administration will also be 
notified of the names of former service members whose discharges are 
recharacterized.''

   Appendix B to Part 724--Oath or Affirmation To Be Administered to 
                     Discharge Review Board Members

    Prior to undertaking duties as a Board member, each person assigned 
to such duties in the precept of the Board shall execute the following 
oath or affirmation which shall continue in effect throughout service 
with the Board.

                            Oath/Affirmation

    I, ------------, do swear or affirm that I will faithfully and 
impartially perform all the duties incumbent upon me as a member of the 
Naval Discharge Review Board; that I will fully and objectively inquire 
into and examine all cases coming before me; that I will, without regard 
to the status of the individual in any case, render my individual

[[Page 253]]

judgment according to the facts, my conscience and the law and 
regulations applicable to review of naval discharges, so help me God.

    Appendix C to Part 724--Samples of Formats Employed by the Naval 
                         Discharge Review Board

------------------------------------------------------------------------
Attachment              Form                           Title
------------------------------------------------------------------------
1.........  Letter......................  En Block Notification of
                                           Decision to Commander, Naval
                                           Military Personnel Command
                                           (No Change).
2.........  ......do....................  En Block Notification of
                                           Decision to Commander, Naval
                                           Military Personnel Command
                                           (Change).
3.........  ......do....................  En Block Notification of
                                           Decision to Commandant,
                                           Marine Corps (No Change).
4.........  ......do....................  En Block Notification of
                                           Decision to Commandant,
                                           Marine Corps (Change).
------------------------------------------------------------------------


    Note: The Forms appearing in appendix C are not carried in the Code 
of Federal Regulations.

               Appendix D to Part 724--Veterans' Benefits

91 Stat. 1106
Pub. L. 95-126, Oct. 8, 1977
95th Congress

                                 An Act

    To deny entitlement to veterans' benefits to certain persons who 
would otherwise become so entitled solely by virtue of the 
administrative upgrading under temporarily revised standards of other 
than honorable discharges from service during the Vietnam era; to 
require case-by-case review under uniform, historically consistent, 
generally appli cable standards and procedures prior to the award of 
veterans' benefits to persons administratively discharged under other 
than honorable conditions from active military, naval, or air service; 
and for other purposes.
    Be it enacted by the Senate and the House of Representatives of the 
United States of America in Congress assembled, That (a) section 3103 of 
Title 38, United States Code, is amended by--
    (1) Inserting ``or on the basis of an absence without authority from 
active duty for a continuous period of at least one hundred and eighty 
days if such person was discharged under conditions other than honorable 
unless such person demonstrates to the satisfaction of the Administrator 
that there are compelling circumstances to warrant such prolonged 
unauthorized absence.'' after ``deserter,'' in subsection (a), and by 
inserting a coma and ``notwithstanding any action subsequent to the date 
of such discharge by a board established pursuant to section 1553 of 
title 10'' before the period at the end of such subsection; and
    (2) Adding at the end of such section the following new subsection:
    ``(e)(1) Notwithstanding any other provision of law, (A) no benefits 
under laws administered by the Veterans' Administration shall be 
provided, as a result of a change in or new issuance of a discharge 
under section 1553 of title 10, except upon a case-by-case review by the 
board of review concerned, subject to review by the Secretary concerned, 
under such section, of all the evidence and factors in each case under 
published uniform standard (which shall be historically consistent with 
criteria for determining honorable service and shall not include any 
criterion for automatically granting or denying such change or issuance) 
and procedures generally applicable to all persons administratively 
discharged or released from active military, naval, or air service under 
other than honorable conditons: and (B) any such person shall be 
afforded an opportunity to apply for such review under such section 1553 
for a period of time terminating not less than one year after the date 
on which such uniform standards and procedures are promulgated and 
published.
    ``(2) Notwithstanding any other provision of law--
    ``(A) No person discharged or released from active military, naval, 
or air service under other than honorable conditions who has been 
awarded a general or honorable discharge under revised standards for the 
review of discharges, (i) as implemented by the President's directive of 
January 19, 1977, initiating further action with respect to the 
President's Proclamation 4313 of September 16, 1974, (ii) as implemented 
on or after April 5, 1977, under the Department of Defense's special 
discharge review program, or (iii) as implemented subsequent to April 5, 
1977, and not made applicable to all persons administratively discharged 
or released from active military, naval, or air service under other than 
honorable conditions, shall be entitled to benefits under laws 
administered by the Veterans' Administration except upon a 
determination, based on a case-by-case review, under standards (meeting 
the requirements of paragraph (1) of this subsection) applied by the 
board of review concerned under section 1553 of title 10, subject to 
review by the Secretary concerned, that such person would be awarded an 
upgraded discharged under such standards;
    ``(B) Such determination shall be made by such board, (i) on an 
expedited basis after notification by the Veterans' Administration to 
the Secretary concerned that such person has received, is in receipt of, 
or has applied for such benefits or after a written request is made by 
such person or such determination, (ii) on its own initiative within one 
year after the date of enactment of this paragraph

[[Page 254]]

in any case where a general or honorable discharge has been awarded on 
or prior to the date of enactment of this paragraph under revised 
standards referred to in clause (A) (i), (ii), or (iii) of this 
paragraph, or (iii) on its own initiative at the time a general or 
honorable discharge is so awarded in any case where a general or 
honorable discharge is awarded after such enactment date.
    ``If such board makes a preliminary determination that such person 
would not have been awarded an upgraded discharge under standards 
meeting the requirements of paragraph (1) of this subsection, such 
personal shall be entitled to an appearance before the board, as 
provided for in section 1553(c) of title 10, prior to a final 
determination on such question and shall be given written notice by the 
board of such preliminary determination and of his or her right to such 
appearance. The Administrator shall, as soon as administratively 
feasible, notify the appropriate board of review of the receipt of 
benefits under laws administered by the Veterans' Administration, or the 
application for such benefits, by any person awarded an upgraded 
discharge under revised standards referred to in clause (A) (i), (ii), 
or (iii) of this paragraph with respect to whom a favorable 
determination has not been made under this paragraph.''.
    (b)(1) The Secretary of Defense shall fully inform each person 
awarded a general or honorable discharge under revised standards for the 
review of discharges referred to in section 3103(e)(2)(A) (i), (ii), or 
(iii) of title 38, United States Code, as added by subsection (a)(2) of 
this section of his or her right to obtain an expedited determination 
under section 3103(e)(2)(B)(i) of such title and of the implications of 
the provisions of this Act for each such person.
    (2) Notwithstanding any other provision of law, the Secretary of 
Defense shall inform each person who applies to a board of review under 
section 1553 of title 10, United States Code, and who appears to have 
been discharged under circumstances which might constitute a bar to 
benefits under section 3103(a), of title 38, United States Code, (A) 
that such person might possibly be administratively found to be entitled 
to benefits under laws administered by the Veterans' Administration only 
through the action of a board for the correction of military records 
under section 1552 of such title 10 or the action of the Administrator 
of Veterans' Affairs under section 3103 of such title 38, and (B) of the 
procedures for making application to such section 1552 board for such 
purpose and to the Administrator of Veterans' Affairs for such purpose 
(including the right to proceed concurrently under such sections 3103, 
1552 and 1553).
    Section 2. Notwithstanding any other provision of law, the 
Administrator of Veterans' Affairs shall provide the type of health care 
and related benefits authorized to be provided under chapter 17 of title 
38, United States Code, for any disability incurred or aggravated during 
active military, naval, or air service in line of duty by a person other 
than a person barred from receiving benefits by section 3103(a) of such 
title, but shall not provide such health care and related benefits 
pursuant to this section for any disability incurred or aggravated 
during a period of service from which such person was discharged by 
reason of a bad conduct discharge.
    Section 3. Paragraph (18) of section 101 of Title 38, United States 
Code, is amended to read as follows:
    ``(18) The term `discharge or release' includes, (A) retirement from 
the active military, naval, or air service, and (B) the satisfactory 
completion of the period of active military, naval, or air service for 
which a person was obligated at the time of entry into such service in 
the case of a person who, due to enlistment or reenlistment, was not 
awarded a discharge or release from such period of service at the time 
of such completion thereof and who, at such time, would otherwise have 
been eligible for the award of a discharge or release under conditions 
other than dishonorable.''
    Section 4. In promulgating, or making any revisions of or amendments 
to, regulations governing the standards and procedures by which the 
Veterans' Administration determines whether a person was discharged or 
released from active military, naval, or air service under conditions 
other than dishonorable, the Administrator of Veterans' Affairs shall, 
in keeping with the spirit and intent of this Act, not promulgate any 
such regulations or revise or amend any such regulations for the purpose 
of, or having the effect of, (1) providing any unique or special 
advantage to veterans awarded general or honorable discharges under 
revised standards for the review of discharges described in section 
3103(e)(2)(A) (i), (ii), or (iii) of title 38, United States Code, as 
added by section 1(a)(2) of this Act, or (2) otherwise making any 
special distinction between such veterans and other veterans.
    Section 5. This Act shall become effective on the date of its 
enactment, except that--
    (1) Section 2 shall become effective on October 1, 1977, or on such 
enactment date, whichever is later; and
    (2) The amendments made by section 1(a) shall apply retroactively to 
deny benefits under laws administered by the Veterans' Administration, 
except that, notwithstanding any other provision of law.
    (A) With respect to any person who, on such enactment date is 
receiving benefits under laws administered by the Veterans' 
Administration, (i) such benefits shall not be terminated under 
paragraph (2) of section 3103(e) of title 38, United States Code, as

[[Page 255]]

added by section 1(a)(2) of this Act, until, (I) the day on which a 
final determination not favorable to the person concerned is made on an 
expedited basis under paragraph (2) of such section 3103(e), (II) the 
day following the expiration of ninety days after a preliminary 
determination not favorable to such person is made under such paragraph, 
or (III) the day following the expiration of one hundred and eighty days 
after such enactment date, whichever day is the earliest, and (ii) the 
United States shall not make any claim to recover the value of any 
benefits provided to such person prior to such earliest day;
    (B) With respect to any person awarded a general or honorable 
discharge under revised standards for the review of discharges referred 
to in clause (A) (i), (ii), or (iii) of such paragraph who has been 
provided any such benefits prior to such enactment date, the United 
States shall not make any claim to recover the value of any benefits so 
provided; and
    (C) The amendments made by clause (1) of section 1(a) shall apply, 
(i) retroactively only to persons awarded general or honorable 
discharges under such revised standards and to persons who, prior to the 
date of enactment of this Act, had not attained general eligibility to 
such benefits by virtue of (I) a change in or new issuance of a 
discharge under section 1553 of title 10, United States Code, or (II) 
any other provision of law, and (ii) prospectively (on and after such 
enactment date) to all other persons.



PART 725--RELEASE OF OFFICIAL INFORMATION FOR LITIGATION PURPOSES AND TESTIMONY BY DEPARTMENT OF THE NAVY PERSONNEL--Table of Contents




Sec.
725.1  Purpose.
725.2  Policy.
725.3  Authority to act.
725.4  Definitions.
725.5  Applicability.
725.6  Authority to determine and respond.
725.7  Contents of a proper request or demand.
725.8  Considerations in determining to grant or deny a request.
725.9  Action to grant or deny a request.
725.10  Response to requests or demands in conflict with this 
          instruction.
725.11  Fees.

    Authority: 5 U.S.C. 301; 10 U.S.C. 113, 5013; 31 U.S.C. 9701 and 32 
CFR part 97.

    Source: 57 FR 2463, Jan. 22, 1992, unless otherwise noted.



Sec. 725.1  Purpose.

    This instruction implements 32 CFR part 97 regarding the release of 
official Department of the Navy (DON) information and provision of 
testimony by DON personnel for litigation purposes, and prescribes 
conduct of DON personnel in response to a litigation request or demand. 
It restates the information contained in Secretary of the Navy 
Instruction 5820.8A of 27 August 1991\1\, and is intended to conform in 
all respects with the requirements of that instruction.
---------------------------------------------------------------------------


    \1\ Copies may be obtained, if needed, from the Naval Publications 
and Forms Directorate, Attn: Code 301, 5801 Tabor Avenue, Philadelphia, 
PA 19120-5099.
---------------------------------------------------------------------------



Sec. 725.2  Policy.

    (a) It is DON policy that official factual information, both 
testimonial and documentary, should be made reasonably available for use 
in Federal courts, state courts, foreign courts, and other governmental 
proceedings unless that information is classified, privileged, or 
otherwise protected from public disclosure.
    (b) DON personnel, as defined in Sec. 725.4(b), however, shall not 
provide such official information, testimony, or documents, submit to 
interview, or permit a view or visit, without the authorization required 
by this part.
    (c) DON personnel shall not provide, with or without compensation, 
opinion or expert testimony concerning official DON or Department of 
Defense (DOD) information, subjects, personnel, or activities, except on 
behalf of the United States or a party represented by the Department of 
Justice, or with the written special authorization required by this 
part.
    (d) Section 725.2(b) and (c) constitute a regulatory general order, 
applicable to all DON personnel individually, and need no further 
implementation. A violation of those provisions is punishable under the 
Uniform Code of Military Justice for military personnel and is the basis 
for appropriate administrative procedures with respect to civilian 
employees. Moreover, violations of this instruction by DON personnel 
may, under certain circumstances, be actionable under 18 U.S.C. 207.

[[Page 256]]

    (e) Upon a showing by a requester of exceptional need or unique 
circumstances, and that the anticipated testimony will not be adverse to 
the interests of the DON, DOD, or the United States, the General Counsel 
of the Navy, the Judge Advocate General of the Navy, or their respective 
delegates may, in their sole discretion, and pursuant to the guidance 
contained in this instruction, grant such written special authorization 
for DON personnel to appear and testify as expert or opinion witnesses 
at no expense to the United States.



Sec. 725.3  Authority to act.

    (a) The General Counsel of the Navy, the Judge Advocate General of 
the Navy, and their respective delegates [hereafter ``determining 
authorities'' described in Sec. 725.4(a), shall respond to litigation 
requests or demands for official DOD information or testimony by DON 
personnel as witnesses.
    (b) If required by the scope of their respective delegations, 
determining authorities' responses may include: consultation and 
coordination with the Department of Justice or the appropriate United 
States Attorney as required; referral of matters proprietary to another 
DOD component to that component; determination whether official 
information originated by the Navy may be released in litigation; and 
determination whether DOD personnel assigned to or affiliated with the 
Navy may be interviewed, contacted, or used as witnesses concerning 
official DOD information or as expert or opinion witnesses. Following 
coordination with the appropriate commander, a response may further 
include whether installations, facilities, ships, or aircraft may be 
visited or inspected; what, if any, conditions will be imposed upon any 
release, interview, contact, testimony, visit, or inspection; what, if 
any, fees shall be charged or waived for access under the fee assessment 
considerations set forth in Sec. 725.11; and what, if any, claims of 
privilege, pursuant to this instruction, may be invoked before any 
tribunal.



Sec. 725.4  Definitions.

    (a) Determining authority. The cognizant DON or DOD official 
designated to grant or deny a litigation request. In all cases in which 
the United States is, or might reasonably become, a party, or in which 
expert testimony is requested, the Judge Advocate General or the General 
Counsel of the Navy, depending on the subject matter of the request, 
will act as determining authority. In all other cases, the 
responsibility to act as determining authority has been delegated to all 
officers exercising general court-martial convening authority, or to 
their subordinate commands, and to other commands and activities 
indicated in Sec. 725.6.
    (b) DON personnel. Active duty and former military personnel of the 
naval service including retirees; personnel of other DOD components 
serving with a DON component; Naval Academy midshipmen; present and 
former civilian employees of the DON including non-appropriated fund 
activity employees; non-U.S. nationals performing services overseas for 
the DON under provisions of status of forces agreements; and other 
specific individuals or entities hired through contractual agreements by 
or on behalf of DON, or performing services under such agreements for 
DON (e.g., consultants, contractors and their employees and personnel).
    (c) Factual and expert or opinion testimony. DON policy favors 
disclosure of factual information if disclosure does not violate the 
criteria stated in Sec. 725.8. The distinction between factual matters, 
and expert or opinion matters (where DON policy favors non-disclosure), 
is not always clear. The considerations set forth below pertain.
    (1) Naval personnel may merely be percipient witnesses to an 
incident, in which event their testimony would be purely factual. On the 
other hand, they may be involved with the matter only through an after-
the-event investigation (e.g., JAGMAN investigation). Describing the 
manner in which they conducted their investigation and asking them to 
identify factual conclusions in their report would likewise constitute 
factual matters to which they might testify. In contrast, asking them to 
adopt or reaffirm their findings of fact, opinions, and recommendations, 
or asking them to form or express any other opinion--particularly one 
based

[[Page 257]]

upon matters submitted by counsel or going to the ultimate issue of 
causation or liability--would clearly constitute precluded testimony 
under the above policy.
    (2) Naval personnel, by virtue of their training, often form 
opinions because they are required to do so in the course of their 
duties. If their opinions are formed prior to, or contemporaneously 
with, the matter in issue, and are routinely required of them in the 
course of the proper performance of their professional duties, they 
constitute essentially factual matters (i.e., the opinion they 
previously held). Opinions formed after the event in question, including 
responses to hypothetical questions, generally constitute the sort of 
opinion or expert testimony which this instruction is intended to 
severely restrict.
    (3) Characterization of expected testimony by a requester as fact, 
opinion, or expert is not binding on the determining authority. When 
there is doubt as to whether or not expert or opinion (as opposed to 
factual) testimony is being sought, advice may be obtained informally 
from, or the request forwarded, to the Deputy Assistant Judge Advocate 
General (General Litigation) or the Associate General Counsel 
(Litigation) for resolution.
    (d) Litigation. All pretrial, trial, and post-trial stages of all 
existing or reasonably anticipated judicial or administrative actions, 
hearings, investigations, or similar proceedings before civilian courts, 
commissions, boards (including the Armed Services Board of Contract 
Appeals), or other tribunals, foreign and domestic. This term includes 
responses to discovery requests, depositions, and other pretrial 
proceedings, as well as responses to formal or informal requests by 
attorneys or others in situations involving, or reasonably anticipated 
to involve, civil or criminal litigation.
    (e) Official information. All information of any kind, however 
stored, in the custody and control of the DOD and its components 
including the DON; relating to information in the custody and control of 
DOD or its components; or acquired by DOD personnel or its component 
personnel as part of their official duties or because of their official 
status within DOD or its components, while such personnel were employed 
by or on behalf of the DOD or on active duty with the United States 
Armed Forces (determining whether ``official information'' is sought, as 
opposed to non-DOD information, rests with the determining authority 
identified in Sec. 725.6, rather than the requester).
    (f) Request or demand (legal process). Subpoena, order, or other 
request by a federal, state, or foreign court of competent jurisdiction, 
by any administrative agency thereof, or by any party or other person 
(subject to the exceptions stated in Sec. 725.5) for production, 
disclosure, or release of official DOD information or for appearance, 
deposition, or testimony of DON personnel as witnesses.



Sec. 725.5  Applicability.

    (a) This instruction applies to all present and former civilian and 
military personnel of the DON whether employed by, or assigned to, DON 
temporarily or permanently. Affected personnel are defined more fully in 
Sec. 725.4(b).
    (b) This instruction applies only to situations involving existing 
or reasonably anticipated litigation, as defined in Sec. 725.4(d), when 
DOD information or witnesses are sought, whether or not the United 
States, the DOD, or its components are parties thereto. It does not 
apply to formal or informal requests for information in other 
situations.
    (c) This instruction provides guidance only for DON operation and 
activities of its present and former personnel in responding to 
litigation requests. It is not intended to, does not, and may not be 
relied upon to, create any right or benefit, substantive or procedural, 
enforceable at law or equity against the United States, DOD, or DON.
    (d) This instruction is not intended to infringe upon or displace 
the responsibilities committed to the Department of Justice in 
conducting litigation on behalf of the United States.
    (e) This instruction does not supersede or modify existing laws, DOD 
or DON regulations, directives, or instructions governing testimony of 
DON personnel or release of official DOD or DON information during grand 
jury proceedings.

[[Page 258]]

    (f) This instruction does not control release of official 
information in response to requests unrelated to litigation or under the 
Freedom of Information Act (FOIA), 5 U.S.C. 552, or the Privacy Act, 5 
U.S.C. 552a. This instruction does not preclude treating any written 
request for DON records as a request under the FOIA or Privacy Acts. 
Activities are encouraged to treat such requests for documents under the 
FOIA or the Privacy Act if they are invoked by the requestor either 
explicitly or by fair implication. See 32 CFR 701.3(a), 701.10(a). 
Activities are reminded that such treatment does not absolve them of the 
responsibility to respond in a timely fashion to legal process. In any 
event, if the official information requested pertains to a litigation 
matter which the United States is a present or potential party, the 
release authority should notify the delegate of the General Counsel or 
the Judge Advocate General, under Sec. 725.6.
    (g) This part does not apply to release of official information or 
testimony by DON personnel in the following situations:
    (1) Before courts-martial convened by any DOD component, or in 
administrative proceedings conducted by, or on behalf of, such 
component;
    (2) Under administrative proceedings conducted by, or on behalf of, 
the Equal Employment Opportunity Commission (EEOC) or the Merit Systems 
Protection Board (MSPB), the Federal Labor Relations Authority, the 
Federal Services Impasse Panel, or under a negotiated grievance 
procedure under a collective bargaining agreement to which the 
Government is a party;
    (3) In response to requests by Federal Government counsel, or 
counsel representing the interests of the Federal Government, in 
litigation conducted, in whole or in part, on behalf of the United 
States (e.g., Medical Care Recovery Act claims, affirmative claims, or 
subpoenas issued by, or concurred in by, Government counsel when the 
United States is a party), but the regulation does apply to an action 
brought under the qui tam provisions of the False Claims Act in which a 
private party brings an action in the name of the United States but in 
which the Department of Justice either has not yet determined to 
intervene in the litigation or has declined to intervene;
    (4) As part of the assistance required by the Defense Industrial 
Personnel Security Clearance Review Program under DOD Directive 
5220.6\2\;
---------------------------------------------------------------------------


    \2\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (5) Release of copies of Manual of the Judge Advocate General 
(JAGMAN) investigations, to the next of kin (or their representatives) 
of deceased or incompetent naval personnel;
    (6) Release of information by DON personnel to counsel retained on 
their behalf for purposes of litigation, unless that information is 
classified, privileged, or otherwise protected from disclosure (in the 
latter event, compliance with 32 CFR part 97 and this part is required);
    (7) Cases involving garnishment orders for child support and/or 
alimony. The release of official information in these cases is governed 
by 5 CFR 581 and SECNAVINST 7200.16\3\, or;
---------------------------------------------------------------------------


    \3\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (8) Release of information to Federal, state, and local prosecuting 
and law enforcement authorities, in conjunction with an investigation 
conducted by a DOD component or DON criminal investigative organization.
    (h) This part does not preclude official comment on matters in 
litigation in appropriate cases.
    (i) The DOD General Counsel may notify DOD components that DOD will 
assume primary responsibility for coordinating all litigation requests 
for demands for official DOD information or testimony of DOD personnel 
in litigation involving terrorism, espionage, nuclear weapons, and 
intelligence sources or means. Accordingly, determining officials who 
receive requests pertaining to such litigation shall notify the 
Associate General Counsel (Litigation) or the Deputy Assistant Judge 
Advocate General (International Law or General Litigation) who shall 
consult and coordinate with DOD General Counsel prior to any response to 
such requests.
    (j) Relationship with Federal Rules of Procedure. The requirements 
imposed by this instruction are intended, among other things, to provide 
adequate notice to DON regarding the

[[Page 259]]

scope of proposed discovery. This will assure that certain DON 
information, which properly should be withheld, is not inadvertently 
released in response to a litigation request or demand, including a 
subpoena or other request for discovery issued under Federal rules of 
procedure. When the United States is a party to Federal litigation and 
the party opponent uses discovery methods (e.g., request for 
interrogatories and admissions, depositions) set forth in Federal rules 
of procedure, the Judge Advocate General or General Counsel, in 
consultation with representatives of the Department of Justice or the 
cognizant United States Attorney, may determine whether the requirement 
for a separate written request in accordance with Sec. 725.7 should be 
waived. Even if this requirement is waived, however, DON personnel who 
are subpoenaed to testify still will be required to obtain the written 
permission described in Sec. 725.2.



Sec. 725.6  Authority to determine and respond.

    (a) Matters proprietary to DON. If a litigation request or demand is 
made of DON personnel for official DON or DOD information or for 
testimony concerning such information, the individual to whom the 
request or demand is made will immediately notify the cognizant DON 
official designated in Sec. 725.6(c) and (d), who will determine 
availability and respond to the request or demand.
    (b) Matters proprietary to another DOD component. If a DON activity 
receives a litigation request or demand for official information 
originated by another DOD component or for non-DON personnel presently 
or formerly assigned to another DOD component, the DON activity will 
forward appropriate portions of the request or demand to the DOD 
component originating the information, to the components where the 
personnel are assigned, or to the components where the personnel were 
formerly assigned, for action under 32 CFR part 97. The forwarding DON 
activity will also notify the requester and court (if appropriate) or 
other authority of its transfer of the request or demand.
    (c) Litigation matters to which the United States is, or might 
reasonably become, a party. Examples of such instances include suits 
under the Federal Tort Claims Act, Freedom of Information Act, Medical 
Care Recovery Act, Tucker Act, and suits against Government contractors 
where the contractor may interplead the United States or seek 
indemnification from the United States for any judgment paid, e.g., 
aviation contractors or asbestos matters. Generally, a suit in which the 
plaintiff is representing the interests of the United States under the 
Medical Care Recovery Act is not a litigation matter to which the United 
States is, or might reasonably become, a party. Determining authorities, 
if in doubt whether the United States is likely to become a party to the 
litigation, should seek guidance from representatives of the Offices of 
the Judge Advocate General or General Counsel. The Judge Advocate 
General and the General Counsel have the authority to determine whether 
a litigation request should be forwarded to them, or retained by a 
determining authority, for resolution.
    (1) Litigation requests regarding matters assigned to the Judge 
Advocate General of the Navy under Navy Regulations, art. 0331 
(1990)\4\, shall be referred to the Deputy Assistant Judge Advocate 
General (DAJAG) for General Litigation, 200 Stovall Street, Alexandria, 
VA 22332-2400, who will respond for the Judge Advocate General or 
transmit the request to the appropriate Deputy Assistant Judge Advocate 
General for response.
---------------------------------------------------------------------------


    \4\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (2) Litigation requests regarding matters assigned to the General 
Counsel of the Navy under Navy Regs., art. 0327 (1990)\5\, shall be 
referred to the cognizant Command Counsel under, and subject to, 
limitations set forth in Sec. 725.6(d)(2). That Command Counsel may 
either respond or refer the matter for action to another office. 
Requests involving asbestos litigation shall be referred to the Office 
of Counsel, Naval Sea Systems Command Headquarters, Personnel and Labor 
Law Section (Code 00LD), Washington, DC 20362-5101. Matters not clearly 
within the purview of a particular command counsel shall

[[Page 260]]

be referred to Associate General Counsel (Litigation), who may either 
respond or refer the matter for action to another office.
---------------------------------------------------------------------------


    \5\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (3) Matters involving the Armed Services Board of Contract Appeals 
shall be forwarded to these respective counsel except where the 
determination may involve the assertion of the deliberative process 
privilege before that Board. In such an event, the matter shall be 
forwarded for determination to the Associate General Counsel 
(Litigation).
    (d) Litigation matters in which the United States is not, and is 
reasonably not expected to become, a party--(1) Matters within the 
cognizance of the Judge Advocate General--(i) Fact witnesses. Requests 
to interview, depose, or obtain testimony of any present or former DON 
personnel as defined in Sec. 725.4(b) about purely factual matters shall 
be forwarded to the Navy or Marine Corps officer exercising general 
court-martial jurisdiction (OEGCMJ) in whose chain of command the 
prospective witness or requested documents lie. That determining 
authority will respond for the Judge Advocate General under criteria set 
forth in Sec. 725.8.
    (A) If the request pertains to personnel assigned to the Office of 
the Chief of Naval Operations, the Office of the Vice Chief of Naval 
Operations, or an Echelon 2 command located in the Washington, DC, area, 
it shall be forwarded to that office which will likewise respond for the 
Judge Advocate General under the criteria set forth in Sec. 725.8.
    (B) If a request pertains to Marine Corps personnel assigned to 
Headquarters Battalion, Headquarters Marine Corps, or to other Marine 
Corps commands located in the Washington, DC, area, it shall be 
forwarded to the Commandant of the Marine Corps (JAR), Headquarters, 
U.S. Marine Corps, Washington, DC 20380-0001, which will respond for the 
Judge Advocate General under criteria set forth in Sec. 725.8.
    (C) Nothing here shall prevent a determining authority from 
referring requests or demands to another determining authority better 
suited under the circumstances to determine the matter and respond, but 
the requester shall be notified of the referral. Further, each 
determining authority specified in this paragraph may further delegate 
his or her decisional authority to a principal staff member, staff judge 
advocate, or legal advisor.
    (D) In the alternative, the requester may forward the request to the 
Deputy Assistant Judge Advocate General (General Litigation), who may 
refer the matter to another determining authority for response, and so 
notify the requester.
    (ii) Visits and views. A request to visit a DON activity, ship, or 
unit, or to inspect material or spaces located there will be forwarded 
to one of the authorities stated in Sec. 725.6(d)(1)(i), who will 
respond on behalf of the Judge Advocate General. Action taken by that 
authority will be coordinated with the commanding officer of the 
activity, ship, or unit at issue, or with his or her staff judge 
advocate (if applicable). The military mission of the unit shall 
normally take precedence over any visit or view. The commanding officer 
may independently prescribe reasonable conditions as to time, place, and 
circumstances to protect against compromise of classified or privileged 
material, intrusion into restricted spaces, and unauthorized 
photography.
    (iii) Documents. 10 U.S.C. 7861 provides that the Secretary of the 
Navy has custody and charge of all DON books, records, and property. 
Under DOD Directive 5530.1\6\, the Secretary of the Navy's sole delegate 
for service of process is the General Counsel of the Navy. See 32 CFR 
257.5(c). All process for such documents shall be served upon the 
General Counsel at the Department of the Navy, Washington, DC, 20350-
1000, who will refer the matter to the proper delegate for action. 
Matters referred to the Judge Advocate General will normally be provided 
to the determining authorities described in Sec. 725.6(c) and (d). That 
authority will respond per criteria in Sec. 725.8. Process not properly 
served on the General Counsel is insufficient to constitute a legal 
demand and shall be processed as a request by counsel. Requests for 
documents maintained by the National

[[Page 261]]

Personnel Records Center will be determined by the official provided in 
Sec. 725.8(b)(2)(iii).
---------------------------------------------------------------------------


    \6\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (iv) Expert or opinion requests. Any request for expert or opinion 
consultations, interviews, depositions, or testimony will be referred to 
the Deputy Assistant Judge Advocate General (General Litigation) who 
will respond for the Judge Advocate General, or transmit the request to 
the appropriate DAJAG for response. Matters not clearly within the 
purview of a particular Deputy Assistant Judge Advocate General will be 
retained by the Deputy Assistant Judge Advocate General (General 
Litigation), who may either respond or refer the matter to another 
determining authority for response.
    (2) Matters within the cognizance of the General Counsel of the 
Navy--(i) Matters not involving issues of Navy policy. Such matters 
shall be forwarded for determination to the respective counsel for Naval 
Sea Systems Command, Naval Air Systems Command, Naval Supply Systems 
Command, Naval Facilities Engineering Command, Space and Naval Warfare 
Command, Office of the Navy Comptroller, Commandant of the Marine Corps, 
Office of the Chief of Naval Research, Military Sealift Command, Office 
of Civilian Personnel Policy, or to the Assistant General Counsel 
(Acquisition), depending upon who has cognizance over the information or 
personnel at issue.
    (ii) Matters involving issues of Navy policy. Such matters shall be 
forwarded for determination to the General Counsel of the Navy via the 
Associate General Counsel (Litigation).
    (iii) Matters involving asbestos litigation. Such matters shall be 
forwarded to the Office of Counsel, Naval Sea Systems Command 
Headquarters, Personnel and Labor Law Section (Code 00LD), Washington, 
DC 20362-5101.
    (3) Matters not clearly within the cognizance of either the Judge 
Advocate General or the General Counsel. Such matters may be sent to the 
Deputy Assistant Judge Advocate General (General Litigation) or the 
Associate General Counsel (Litigation), who will, in consultation with 
the other, determine the appropriate authority to respond to the 
request.



Sec. 725.7  Contents of a proper request or demand.

    (a) Routine requests. If official information is sought, through 
testimony or otherwise, a detailed written request must be submitted to 
the appropriate determining authority far enough in advance to assure an 
informed and timely evaluation of the request, and prevention of adverse 
effects on the mission of the command or activity that must respond. The 
determining authority shall decide whether sufficient information has 
been provided by the requester. Absent independent information, the 
following data is necessary to assess a request.
    (1) Identification of parties, their counsel and the nature of the 
litigation. (i) Caption of case, docket number, court.
    (ii) Name, address, and telephone number of all counsel.
    (iii) The date and time on which the documents, information, or 
testimony sought must be produced; the requested location for 
production; and, if applicable, the estimated length of time that 
attendance of the DON personnel will be required.
    (2) Identification of information or documents requested. (i) A 
description, in as much detail as possible, of the documents, 
information, or testimony sought, including the current military 
service, status (active, separated, retired), social security number, if 
known, of the subject of the requested pay, medical, or service records;
    (ii) The location of the records, including the name, address, and 
telephone number, if known, of the person from whom the documents, 
information, or testimony is sought; and
    (iii) A statement of whether factual, opinion, or expert testimony 
is requested (see Secs. 725.4(c) and 725.8(b)(3)(ii)).
    (3) Description of why the information is needed. (i) A brief 
summary of the facts of the case and the present posture of the case.
    (ii) A statement of the relevance of the matters sought to the 
proceedings at issue.
    (iii) If expert or opinion testimony is sought, an explanation of 
why exceptional need or unique circumstances

[[Page 262]]

exist justifying such testimony, including why it is not reasonably 
available from any other source.
    (b) Additional considerations. The circumstances surrounding the 
underlying litigation, including whether the United States is a party, 
and the nature and expense of the requests made by a party may require 
additional information before a determination can be made. Providing the 
following information or stipulations in the original request may 
expedite review and eliminate the need for additional correspondence 
with the determining authority.
    (1) A statement of the requester's willingness to pay in advance all 
reasonable expenses and costs of searching for and producing documents, 
information, or personnel, including travel expenses and accommodations 
(if applicable);
    (2) In cases in which deposition testimony is sought, a statement of 
whether attendance at trial or later deposition testimony is anticipated 
and requested. A single deposition normally should suffice;
    (3) An agreement to notify the determining authority at least 10 
working days in advance of all interviews, depositions, or testimony. 
Additional time for notification may be required where the witness is a 
DON health care provider or where the witness is located overseas;
    (4) An agreement to conduct the deposition at the location of the 
witness, unless the witness and his or her commanding officer or 
cognizant superior, as applicable, stipulate otherwise;
    (5) In the case of former DON personnel, a brief description of the 
length and nature of their duties while in DON employment, and a 
statement of whether such duties involved, directly or indirectly, the 
information or matters as to which the person will testify;
    (6) An agreement to provide free of charge to any witness a signed 
copy of any written statement he or she may make, or, in the case of an 
oral deposition, a copy of that deposition transcript, if taken by a 
stenographer, or a video tape copy, if taken solely by video tape, if 
not prohibited by applicable rules of court;
    (7) An agreement that if the local rules of procedure controlling 
the litigation so provide, the witness will be given an opportunity to 
read, sign, and correct the deposition at no cost to the witness or the 
Government;
    (8) A statement of understanding that the United States reserves the 
right to have a representative present at any interview or deposition; 
and
    (9) A statement that counsel for other parties to the case will be 
provided with a copy of all correspondence originated by the determining 
authority so they may have the opportunity to submit any related 
litigation requests and participate in any discovery.
    (c) Response to deficient requests. A letter request that is 
deficient in providing necessary information may be returned to the 
requester by the determining authority with an explanation of the 
deficiencies and a statement that no further action will be taken until 
they are corrected. If a subpoena has been received for official 
information, counsel should promptly determine the appropriate action to 
take in response to the subpoena. See Sec. 725.9(g).
    (d) Emergency requests. Written requests are generally required by 
32 CFR part 97.
    (1) The determining authority, identified in Sec. 725.6, has 
discretion to waive that requirement in the event of a bona fide 
emergency, under conditions set forth here, which were not anticipated 
in the course of proper pretrial planning and discovery. Oral requests 
and subsequent determinations should be reserved for instances where 
factual matters are sought, and compliance with the requirements of a 
proper written request would result in the effective denial of the 
request and cause an injustice in the outcome of the litigation for 
which the information is sought. No requester has a right to make an 
oral request and receive a determination. Whether to permit such an 
exceptional procedure is a decision within the sole discretion of the 
determining authority, unless overruled by the General Counsel or the 
Judge Advocate General, as appropriate.
    (2) If the determining authority concludes that the request, or any 
portion of it, meets the emergency test, he or

[[Page 263]]

she will require the requester to agree to the conditions set forth in 
Sec. 725.7(a). The determining authority will then orally advise the 
requester of the determination, and seek a written confirmation of the 
oral request. Thereafter, the determining authority will make a written 
record of the disposition of the oral request including the grant or 
denial, circumstances requiring the procedure, and conditions to which 
the requester agreed.
    (3) The emergency procedure should not be utilized where the 
requester refuses to agree to the appropriate conditions set forth in 
Sec. 725.7(a) or indicates unwillingness to abide by the limits of the 
oral grant, partial grant, or denial.



Sec. 725.8  Considerations in determining to grant or deny a request.

    (a) General considerations. In deciding whether to authorize release 
of official information, or the testimony of DON personnel concerning 
official information (hereafter referred to as ``the disclosure'' under 
a request conforming with the requirements of Sec. 725.7, the 
determining authority shall consider the following factors:
    (1) The DON policy regarding disclosure in Sec. 725.2;
    (2) Whether the request or demand is unduly burdensome or otherwise 
inappropriate under applicable court rules;
    (3) Whether disclosure, including release in camera (i.e., to the 
judge or court alone), is appropriate under procedural rules governing 
the case or matter in which the request or demand arose;
    (4) Whether disclosure would violate or conflict with a statute, 
executive order, regulation, directive, instruction, or notice;
    (5) Whether disclosure, in the absence of a court order or written 
consent, would violate 5 U.S.C. 552, 552a;
    (6) Whether disclosure, including release in camera, is appropriate 
or necessary under the relevant substantive law concerning privilege 
(e.g., attorney-client, attorney work-product, or physician-patient in 
the case of civilian personnel);
    (7) Whether disclosure, except when in camera (i.e., before the 
judge alone) and necessary to assert a claim of privilege, would reveal 
information properly classified under the DOD Information Security 
Program under DOD 5200.1-R\7\, withholding of unclassified technical 
data from public disclosure following OPNAVINST 5510.161; privileged 
Naval Aviation Safety Program information (OPNAVINST 3750.6Q 
(NOTAL))\8\, or other matters exempt from unrestricted disclosure under 
5 U.S.C. 552, 552a;
---------------------------------------------------------------------------


    \7\ See footnote 1 to Sec. 725.1.

    \8\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (8) Whether disclosure would unduly interfere with ongoing law 
enforcement proceedings, violate constitutional rights, reveal the 
identity of an intelligence source or source of confidential 
information, conflict with U.S. obligations under international 
agreement, or be otherwise inappropriate under the circumstances;
    (9) Whether attendance of the requested witness at deposition or 
trial will unduly interfere with the military mission of the command; 
and
    (10) Whether, in a criminal case, requiring disclosure by a 
defendant of detailed information about the relevance of documents or 
testimony as a condition for release would conflict with the defendant's 
constitutional rights.
    (b) Specific considerations--(1) Documents, interviews, depositions, 
testimony, and views (where the United States is, or may become, a 
party). All requests pertaining to such matters shall be forwarded to 
the Judge Advocate General or the General Counsel, as appropriate under 
Sec. 725.6(c).
    (2) Documents (where the United States is not, and is reasonably not 
expected to become a party)--(i) Unclassified Navy and Marine Corps 
records. Where parties or potential parties desire unclassified naval 
records in connection with a litigation matter, the subpoena duces tecum 
or court order will be served, under 32 CFR 257.5(c), upon the General 
Counsel of the Navy, along with a written request complying with 
Sec. 725.7.
    (A) If the determining authority to whom the matter is referred 
determines to comply with the order or subpoena, compliance will be 
effected by transmitting certified copies of records to the clerk of the 
court from which process issued. If, because of an unusual circumstance, 
an original record

[[Page 264]]

must be produced by a naval custodian, it will not be removed from the 
custody of the person producing it, but copies may be placed in 
evidence.
    (B) Upon written request of one or more parties in interest or their 
respective attorneys, records which would be produced in response to a 
court order signed by a judge as set forth above may be furnished 
without a court order, but only upon a request complying with Sec. 725.7 
and only when such records are not in a ``system of records'' as defined 
by the Privacy Act (5 U.S.C. 552a). In determining whether a record not 
contained in a ``system of records'' will be furnished in response to a 
Freedom of Information Act (FOIA) request, SECNAVINST 5720.42E\9\ 
controls.
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    \9\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (C) Generally, a record in a Privacy Act ``system of records'' may 
not be released under a litigation request except with the written 
consent of the person to whom the record pertains or in response to a 
court order signed by a judge. See SECNAVINST 5211.5C\10\ and 5 U.S.C. 
552, 552a for further guidance.
---------------------------------------------------------------------------


    \10\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (D) Whenever compliance with a court order or subpoena duces tecum 
for production of DON records is denied for any reason, the subpoena or 
court order and complete copies of the requested records will be 
forwarded to the appropriate Deputy Assistant Judge Advocate General 
(General Litigation) or the Associate General Counsel (Litigation) for 
action, and the parties to the suit notified in accordance with this 
part.
    (ii) Classified Navy and Marine Corps records. Any consideration of 
release of classified information for litigation purposes, within the 
scope of this instruction, must be coordinated within the Office of the 
Chief of Naval Operations (OP-09N) per OPNAVINST 5510.1H.\11\
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    \11\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (iii) Records in the custody of the National Personnel Records 
Center. Court orders or subpoenas duces tecum demanding information 
from, or production of, service or medical records of former Navy and 
Marine Corps personnel in the custody of the National Personnel Records 
Center will be served upon the Director, National Personnel Records 
Center, 9700 Page Boulevard, St. Louis, MO 63132. If records responsive 
to the request are identified and maintained at the National Personnel 
Records Center, that Center shall make appropriate certified 
(authenticated) copies of the information requested. These copies will 
then be forwarded, along with the request, in the case of Navy 
personnel, to Chief, Bureau of Naval Personnel (Pers-06), Washington, DC 
20370-5000, or his delegate, who will respond. In the case of Marine 
Corps personnel, the copies and request will be sent to the Commandant 
of the Marine Corps (MMRB-10), Quantico, VA 22134-0001, who will 
respond. Those requests that do not constitute legal demands will be 
refused by the Director, National Personnel Records Center, and written 
guidance provided to the requester.
    (iv) Medical and other records of civilian employees. Production of 
medical certificates or other medical reports concerning civilian 
employees is controlled by Federal Personnel Manual, chapter 294 and 
chapter 339.1-4.\12\ Records of civilian employees, other than medical 
records, may be produced upon receipt of a court order and a request 
complying with Sec. 725.7, provided no classified or for official use 
only information, such as loyalty or security records, are involved. 
Disclosure of records relating to compensation benefits administered by 
the Office of Workers' Compensation Programs of the Department of Labor 
are governed by Secretary of the Navy Instruction 5211.5C (Privacy Act 
implementation) and Secretary of the Navy Instruction 5720.42E (Freedom 
of Information Act implementation), as appropriate. Where information is 
furnished per this subparagraph in response to a court order and proper 
request, certified copies rather than originals should be furnished. 
Where original records must be produced because of unusual 
circumstances, they may not be removed from the custody of the official 
producing them, but copies may be placed on the record.
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    \12\ See footnote 1 to Sec. 725.1.

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[[Page 265]]

    (v) JAGMAN investigations (other than to next of kin). The Deputy 
Assistant Judge Advocate General having cognizance over the records at 
issue for litigation or prospective litigation purposes may release the 
records if a complete release will result. The Assistant Judge Advocate 
General (Civil Law) will make determinations concerning the release of 
the records specified in this subparagraph if a release of less than the 
complete requested record will result. A release to next of kin of 
incompetent or deceased DON personnel or their representatives is exempt 
from these requirements and this part.
    (vi) Affirmative claims files. Affirmative claims files (including 
Medical Care Recovery Act files), except to the extent they contain 
copies of JAGMAN investigations prepared under the Manual of the Judge 
Advocate General, or classified or privileged information, may be 
released by the commanding officer of the Naval Legal Service Office 
having cognizance over the claim at issue, without compliance with this 
instruction, to: insurance companies to support claims; to civilian 
attorneys representing injured service persons, their dependents, and 
the Government's interests; and to other DOD components. When a request 
for production involves material related to claims in favor of the 
Government, either the cognizant Command Counsel or the Naval Legal 
Service Office having territorial responsibility for the area should be 
notified.
    (vii) Accounting for disclosures from ``systems of records.'' When 
compliance with a litigation request or demand for production of records 
is appropriate, or when release of records is otherwise authorized, and 
records contained in a ``system of records,'' are released, the 
releasing official will consult Secretary of the Navy Instruction 
5211.5C regarding disclosure accounting requirements.
    (viii) Pay records. Official pay records of active-duty, reserve, 
retired, or former Navy members should be requested from Director, 
Defense Finance and Accounting Service (DFAS), Cleveland Center, Anthony 
J. Celebrezze Federal Building, Cleveland, OH 44199-2055. Official pay 
records of active-duty, reserve, retired, or former Marines should be 
requested from Director, Defense Finance and Accounting Service, Kansas 
City Center (Code G), Kansas City, MO 64197-0001.
    (3) Interviews, depositions, and testimony (where the United States 
is not, and is reasonably not expected to become, a party)--(i) Factual 
matters. DON policy favors disclosure of factual matters when disclosure 
does not violate the criteria stated in this section. Distinguishing 
between factual matters and expert or opinion matters (where DON policy 
favors non-disclosure) requires careful analysis. Opinion matters are 
defined at Sec. 725.4(c).
    (ii) Expert, opinion, or policy matters. Such matters are to be 
determined, under the delegation in Sec. 725.6, by the cognizant Deputy 
Assistant Judge Advocate General or by General Counsel. General 
considerations to identify expert or opinion testimony are in 
Sec. 725.4(c). DON personnel shall not provide, with or without 
compensation, opinion or expert testimony concerning official 
information, subjects, or activities, except on behalf of the United 
States or a party represented by the Department of Justice. Upon a 
showing by the requester of exceptional need or unique circumstances, 
and that the anticipated testimony will not be adverse to the interests 
of the DOD or the United States, the appropriate DON official designated 
in Sec. 725.6, may grant, in writing, special authorization for DON 
personnel to appear and testify at no expense to the United States. In 
determining whether exceptional need or unique circumstances exist, the 
determining official should consider whether such expert or opinion 
testimony is available to the requester from any other source. The 
burden of demonstrating such unavailability, if any, is solely upon the 
requester.
    (iii) Visits and views (where the United States is not, and is 
reasonably not expected to become, a party). Such disclosures are 
normally factual in nature and should not be accompanied by interviews 
of personnel unless separately requested and granted. The authority of 
the commanding officer of the activity, ship, or unit at issue is not 
limited by this part. Accordingly, he or she may prescribe appropriate

[[Page 266]]

conditions as to time, place, and circumstances (including proper 
restrictions on photography).
    (iv) Non-DOD information. A request for disclosure under this part, 
particularly through the testimony of a witness, may involve both 
official information and non-DOD information (e.g., in the case of a 
person who has acquired additional and separate knowledge or expertise 
wholly apart from Government employment). Determining whether or not 
official information is at issue is within the purview of the 
determining authority, not the requester. A requester's contention that 
only non-DOD information is at issue is not dispositive. The requester 
must still comply with this instruction to support that contention. If 
non-DOD information is at issue in whole or in part, the determining 
authority shall so state in the written determination described in 
Sec. 725.9. He or she shall make no other determination regarding that 
non-DOD information.



Sec. 725.9  Action to grant or deny a request.

    (a) The process of determining whether to grant or deny a request is 
not an adversary proceeding. This part provides guidance for the 
operation of DON only and is not intended to, does not, and may not be 
relied upon to, create any right or benefit, substantive or procedural, 
enforceable at law against the United States, DOD, or DON.
    (b) 32 CFR part 97 and this part apply to testimony by former naval 
personnel and former civilian employees of DON. A proper request must be 
made, under Sec. 725.7, to obtain testimony by former personnel 
regarding official DOD information. However, this part is not intended 
to place unreasonable restraints upon the post-employment conduct of 
such personnel. Accordingly, requests for expert or opinion testimony by 
such personnel will normally be granted unless that testimony would 
constitute a violation of the U.S. Code (e.g., 18 U.S.C. 201 et seq.), 
conflict with pertinent regulations (e.g., Secretary of the Navy 
Instruction 5370.2H), or disclose properly classified or privileged 
information.
    (c) A determination to grant or deny should be made as expeditiously 
as possible to provide the requester and the court with the matter at 
issue or with a statement of the reasons for denial. The decisional 
period should not exceed 10 working days from receipt of a complete 
request complying with the requirements of Sec. 725.7, absent 
exceptional or particularly difficult circumstances. The requester 
should also be informed promptly of the referral of any portion of the 
request to another authority for determination.
    (d) Except as provided in Sec. 725.7(d), a determination to grant or 
deny shall be in writing.
    (e) The determination letter should respond solely to the specific 
disclosures requested, stating a specific determination on each 
particular request. When a request is denied in whole or in part, a 
statement of the reasons for denial should be provided to fully inform a 
court of the reasons underlying the determination if it is challenged.
    (f) A copy of any denial, in whole or in part, of a request, should 
be forwarded to the cognizant Deputy Assistant Judge Advocate General or 
the Associate General Counsel (Litigation), as appropriate. Such 
notification is likewise appropriate when the litigation request has 
been treated under 5 U.S.C. 552, 552a and Sec. 725.5(f). Telephonic 
notification is particularly appropriate where a judicial challenge or 
contempt action is anticipated.
    (g) In cases in which a subpoena has been received and the requester 
refuses to pay fees or otherwise comply with the guidance and 
requirements imposed by this part, or if the determining authority 
declines to make some or all of the subpoenaed information available, or 
if the determining authority has had insufficient time to complete its 
determination as to how to respond to the request, the determining 
authority must promptly notify the General Litigation Division of the 
Office of the Judge Advocate General or the Navy Litigation Office of 
the Office of the General Counsel, which offices will determine, in 
consultation with the Department of Justice, the appropriate response to 
be made to the tribunal which issued the subpoena. Because the

[[Page 267]]

Federal Rules of Civil Procedure require that some objections to 
subpoenas must be made either within 10 days of service of the subpoena 
or on or before the time for compliance, whichever first occurs, and 
because this will require consultation with the Department of Justice, 
timely notice is essential.



Sec. 725.10  Response to requests or demands in conflict with this instruction.

    (a) Except as otherwise provided in this paragraph, DON personnel, 
including former military personnel and civilian employees, shall not 
produce, disclose, release, comment upon, or testify concerning any 
official DOD information in response to a litigation request or demand 
without prior written approval of the appropriate DON official 
designated in Sec. 725.6. If a request has been made, and granted, in 
whole or in part, per 32 CFR part 97 and this part, DON personnel may 
only produce, disclose, release, comment upon, or testify concerning 
those matters specified in the request and properly approved by the 
determining authority designated in Sec. 725.6. See United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    (b) If, after DON personnel have received a litigation request or 
demand and have in turn notified the appropriate determining authority 
described in Sec. 725.6, a response to the request or demand is required 
before instructions from the responsible official have been received, 
the responsible authority designated in Sec. 725.6 shall notify the 
Deputy Assistant Judge Advocate General or Associate General Counsel 
(Litigation) who has cognizance over the matter. That official will 
furnish the requester, the court, or other authority that the request or 
demand is being reviewed in accordance with this part and seek a stay of 
the request or demand pending a final determination.
    (c) If a court of competent jurisdiction or other appropriate 
authority declines to stay the effect of the request or demand in 
response to action taken under Sec. 725.10(b), or if such court or other 
authority orders that the request or demand must be complied with, 
notwithstanding the final decision of the appropriate DON official, the 
DON personnel upon whom the request or demand was made will, if time 
permits, notify the determining authority of such ruling or order. That 
authority will notify the Deputy Assistant Judge Advocate General or the 
Associate General Counsel (Litigation) having cognizance over the 
matter. After due consultation and coordination with the Department of 
Justice, as required by the Manual of the Judge Advocate General, that 
official will determine whether the individual is required to comply 
with the request or demand and will notify the requester, the court, or 
other authority accordingly. The witness shall, if directed by the 
appropriate DON official, respectfully decline to comply with the 
demand. Legal counsel for the command concerned should accompany and 
advise DON personnel during any court proceedings involving the 
foregoing circumstances.
    (d) It is expected that all DON actions in the foregoing paragraphs 
will be taken only after active consultation with the appropriate 
component of the Department of Justice. Generally, DON personnel will be 
instructed to decline to comply with a court order only if the 
Department of Justice commits to represent the DON personnel in 
question.



Sec. 725.11  Fees.

    (a) Generally. Except as provided below, determining authorities 
shall charge reasonable fees and expenses to parties seeking official 
DON information or testimony under this instruction. Pursuant to 32 CFR 
288.4, 288.10, these fees should include all costs of processing a 
request for information, including time and material expended. Travel 
for active duty members summoned as witnesses is governed by Joint 
Travel Regulations, Vol. I, Chap. 7, pt. E. and Navy Travel 
Instructions, Chap. 6, pt. E.\13\ Travel for civilian personnel summoned 
as witnesses is governed by the Joint Travel Regulations, Vol. II, Chap. 
4, pt. E.\14\
---------------------------------------------------------------------------


    \13\ See footnote 1 to Sec. 725.1.

    \14\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (1) When DON is a party. No fees normally shall be charged when the 
DON

[[Page 268]]

is a party to the proceedings, and the activity holding the requested 
information or employing the witness shall bear the expense of complying 
with the request.
    (2) When another federal agency is a party. No fees shall be charged 
to the requesting agency. Travel and per diem expenses may be paid by 
the requesting agency, or by the Navy activity to which the requested 
witness is assigned, subject to reimbursement from the requesting 
agency.
    (3) When neither DON nor another federal agency is a party. Fees 
shall be charged to the requester for time taken from official duties by 
DON personnel who are authorized to be interviewed, give testimony, or 
escort persons on views and visits of installations. At the discretion 
of the cognizant command, DON personnel need not be made available 
during duty hours unless directed by subpoena. Time which DON personnel 
spend in court testifying, or waiting to testify on factual matters 
shall not be charged. Fees should be charged, however, for expert or 
opinion testimony based upon the witness's education, training, or 
experience. Testimony by a treating physician called to testify about 
his personal knowledge of a specific case is considered fact not expert 
testimony. Fees are payable to the Treasurer of the United States for 
deposit in the Treasury's miscellaneous receipts. Rates for uniformed 
personnel are published in NAVCOMPT Notice 7041 series.\15\ Pursuant to 
32 CFR 288.4, charges for civilian personnel should include the 
employee's hourly rate of pay, as well as allowances and benefits. 
Except as provided in Sec. 725.11(b)(4), no funds may be expended for 
travel or per diem of active duty members when an agency of the Federal 
Government is not a party. The requesting party is responsible for 
travel arrangements and funding. Government funding of travel and per 
diem for civilian employees is authorized.
---------------------------------------------------------------------------


    \15\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (b) Special circumstances--(1) Refusal to pay fees. In cases in 
which a subpoena has been received and the requester refuses to pay 
appropriate fees, it may become necessary to request the Department of 
Justice to take appropriate legal action before the court issuing the 
subpoena. Determining authorities should consult promptly with the OJAG 
General Litigation Division or the Navy Litigation Office of the General 
Counsel if this course of action appears necessary, because some 
objections to subpoenas must be made either within ten days of service 
of the subpoena or on or before the time for compliance, whichever first 
occurs, and because this will require timely consultation with the 
Department of Justice. If no subpoena has been issued, the determining 
authority must decide whether to deny the request or, if appropriate, 
waive the fees.
    (2) Waiver or reduction of fees. The determining authority may waive 
or reduce fees pursuant to 32 CFR 288.4, 288.9, provided such waiver or 
reduction is in the best interest of the DON and the United States. Fee 
waivers and reductions shall not be routinely granted, or granted under 
circumstances which might create the appearance that DON favors one 
party over another.
    (3) Witness fees required by the court. Witness fees required by the 
rules of the applicable court shall be paid directly to the witness by 
the requester. Such amounts are to defray the cost of travel and per 
diem. In a case where the Government has paid the cost of travel and per 
diem, the witness shall turn over to his or her supervisor any payment 
received from a private party to defray the cost of travel that, when 
added to amounts paid by the Government, exceed the actual cost of 
travel. The supervisor shall forward the amount turned over by the 
witness to the Office of the Comptroller of the Navy for appropriate 
action.
    (4) Exceptional cases. If neither the DON, nor an agency of the 
Federal Government is a party, appropriated funds may be used to pay, 
without reimbursement, travel and per diem of DON personnel who are 
witnesses in criminal or civil proceedings, provided, the case is 
directly related to the Armed Services, or its members, and the Armed 
Services have a genuine and compelling interest in the outcome.


[[Page 269]]





PART 726--PAYMENTS OF AMOUNTS DUE MENTALLY INCOMPETENT MEMBERS OF THE NAVAL SERVICE--Table of Contents




Sec.
726.1  Purpose.
726.2  Scope.
726.3  Authority to appoint trustees.
726.4  Procedures for convening competency boards.
726.5  Procedures for designation of a trustee.
726.6  Travel orders.
726.7  Status of pay account.
726.8  Emergency funds.
726.9  Reports and supervision of trustees.

    Authority: 5 U.S.C. 301; 10 U.S.C. 5031, and 5148; 37 U.S.C. 601-
604, and 1001; 32 CFR 700.206 and 700.1202.

    Source: 56 FR 55088, Oct. 24, 1991, unless otherwise noted.

    Note: This part 726 is chapter XIV, of the Manual of the Judge 
Advocate General of the Navy.



Sec. 726.1  Purpose.

    This part explains the procedures for convening competency boards 
and how to appoint trustees for members of the Naval service who have 
been determined to be mentally incompetent in accordance with title 11 
of chapter 37, United States Code.



Sec. 726.2  Scope.

    (a) The Secretary of the Navy has authority to designate a trustee 
in the absence of notice that a legal committee, guardian, or other 
legal representative has been appointed by a State court of competent 
jurisdiction. 37 U.S.C. 601-604. Trustees receive the active duty pay 
and allowances, amounts due for accrued or accumulated leave, and 
retired pay or retainer pay, that are otherwise payable to a member 
found by competent medical authority to be mentally incapable of 
managing his affairs.
    (b) Member as used in this chapter refers to:
    (1) Members of the Navy or Marine Corps on active duty (other than 
for training) or on the retired list of the Navy or Marine Corps; and
    (2) Members of the Fleet Reserve or Fleet Marine Corps Reserve.



Sec. 726.3  Authority to appoint trustees.

    The Judge Advocate General or his designee is authorized to act for 
the Secretary of the Navy to appoint trustees to receive and administer 
Federal monies for members and to carry out the provisions of this 
chapter.



Sec. 726.4  Procedures for convening competency boards.

    (a) Competency Board. (1) The commanding officer of the cognizant 
naval medical facility will convene a board of not less than three 
medical officers or physicians, one of whom will be a psychiatrist, when 
there is evidence that a member who is a patient in the naval medical 
facility may be incapable of handling his affairs. The board will be 
convened in accordance with chapter 18, Manual of the Medical 
Department. The board may include members of the Reserve components on 
active or inactive duty. When active duty Navy or Marine corps members 
are hospitalized in nonnaval medical facilities, the regional Naval 
Office of the Medical/Dental Affairs will ensure compliance with chapter 
18.
    (2) The Judge Advocate General or his designee may direct the 
commanding officer of any naval medical facility, or request the 
commanding officer of another service medical facility or administrator 
of a Department of Veterans Affairs medical facility, to convene a board 
in accordance with this section to determine the mental capability of a 
member to manage his affairs.
    (3) A finding of restoration of competency or capability to manage 
personal and financial affairs may be accomplished in the same manner 
specified in chapter 18, Manual of the Medical Department, except that 
the board may consist of one or two medical officers or physicians, one 
of whom must be a psychiatrist.
    (4) At least one officer on the board, preferably the psychiatrist, 
will personally observe the member and ensure that the member's medical 
record, particularly that portion concerning his mental health, is 
accurate and complete.

[[Page 270]]

    (5) The requirement for the competency board is in addition to and 
separate from the medical board procedures. Each board member will sign 
the report of the board and will certify whether the member is or is not 
mentally capable of managing his affairs. After approval by the 
convening authority, the original board report is forwarded to the Judge 
Advocate General.
    (b) Records. (1) The convening authority will forward the original 
of each board report to the Judge Advocate General, Department of the 
Navy, 200 Stovall Street, Alexandria, VA 22332-2400.
    (2) In the case of a finding that a member is not mentally capable 
of managing his affairs, the forwarding endorsement will set forth the 
name, relationship, address, and telephone number(s), of the member's 
next of kin and any other data to help identify a prospective trustee.



Sec. 726.5  Procedures for designation of a trustee.

    (a) Upon receipt of a report of a board convened under section 1404 
that a member has been found mentally incapable of managing his affairs, 
the Judge Advocate General or his designee will initiate action to 
appoint a trustee, provided no notice of appointment of a committee, 
guardian, or other legal representative by a State court of competent 
jurisdiction has been received by the Judge Advocate General. The Judge 
Advocate General or his designee may direct any Navy or Marine Corps 
activity to appoint an officer to interview a prospective trustee and 
make recommendations concerning suitability. The Judge Advocate General 
will provide the interviewing officer with complete instructions 
pertaining to the interview of the prospective trustee, including the 
forms required to be completed by the prospective trustee that will be 
returned by the interviewing officer to the Judge Advocate General.
    (b) The interviewing officer will: (1) Determine whether the 
prospective trustee can obtain an appropriate bond as directed by the 
Judge Advocate General or his designee;
    (2) Ascertain that the prospective trustee is willing to execute an 
affidavit acknowledging that all monies will be applied to the use and 
benefit of the member and his legal dependents and that no fee, 
commission, or charge, for any service performed by the trustee, except 
for payment of the required bond, will be paid from Federal monies 
received by the trustee.
    (3) Forward recommendations to the Judge Advocate General for 
appropriate action.



Sec. 726.6  Travel orders.

    The Chief of Naval Personnel or the Director, Personnel Management 
Division, Headquarters, Marine Corps, may issue travel orders to a 
member to appear before an examining board convened to determine whether 
the member is mentally capable of managing his affairs. In the case of 
permanently retired members, however, travel for an appearance before a 
board convened pursuant to section 1404, above, will be at no cost to 
the Government unless the Judge Advocate General or his designee 
determines that unusual hardship exists and requests that appropriate 
authority fund the travel expenses.



Sec. 726.7  Status of pay account.

    (a) Upon notification by the commanding officer of the medical 
facility preparing the incapacitation determination that a member has 
been declared mentally incompetent to manage his affairs, the cognizant 
disbursing officer will take appropriate action and immediately send the 
member's personal financial record to the appropriate finance center 
following the guidelines in the Department of Defense Military Pay and 
Allowances Entitlements Manual, Part Four, chapter 2. The Judge Advocate 
General or his designee will then direct the appropriate finance center 
to suspend the member's pay. Thereafter, the Judge Advocate General or 
his designee will direct payment of monies to:
    (1) The appointed trustee;
    (2) The legal representative appointed by a State court of competent 
jurisdiction; or

[[Page 271]]

    (3) Directly to the member following a determination that the member 
is capable of managing his affairs.
    (b) The Commanding Officer, Navy Finance Center, or Commanding 
Officer, Marine Corps Finance Center, will notify the Judge Advocate 
General of any fact affecting the pay of a member mentally incapable of 
managing his affairs. This includes waiver of retired pay in favor of 
Veterans Administration compensation; death of the member; death of the 
trustee; or, notice of appointment of a legal representative by a State 
court of competent jurisdiction. At the request of the Judge Advocate 
General or his designee, the appropriate finance center will report all 
disbursements from the member's account.
    (c) The Navy or Marine Corps Finance Center will seek direction from 
the Judge Advocate General when information from other sources indicates 
a member is not competent to manage his affairs.



Sec. 726.8  Emergency funds.

    (a) Until a trustee is appointed, the Judge Advocate General or his 
designee may appoint the member's commanding officer or other 
appropriate official to receive emergency funds up to $1,000.00 from the 
pay account of the member without bond. The money will be used for the 
benefit of the member and his legal dependents.
    (b) The commanding officer of any naval medical facility may 
designate an officer of the command to receive and account for up to 
$35.00 per month for the health and comfort of a member who is found 
mentally incapable of handling his affairs and who is a patient at the 
naval medical facility, if:
    (1) A trustee has not been designated under this chapter and a 
committee, guardian, or other legal representative has not been 
appointed by a State court of competent jurisdiction;
    (2) The member has no other funds available for use in his own 
behalf; and
    (3) The funds are necessary for the purchase of items necessary for 
the health and comfort of the member.
    (c) This section will be cited on the pay voucher as authority for 
payment and receipt of such funds.



Sec. 726.9  Reports and supervision of trustees.

    (a) Accounting reports. The trustee designated under this chapter 
will submit accounting reports annually or at such other times as the 
Judge Advocate General or his designee directs. The Judge Advocate 
General will provide forms to be used by trustees for the required 
accounting report. The report will account for all funds received from 
the Navy or Marine Corps on behalf of the member. When payments to a 
trustee are terminated for any reason, the trustee will submit a final 
accounting report to the Judge Advocate General. Upon approval of the 
final accounting report, the trustee and the surety will be discharged 
from liability.
    (b) Failure to submit a report and default. If an accounting report 
is not received by the date designated by the Judge Advocate General or 
his designee, or an accounting is unsatisfactory, the Judge Advocate 
General or his designee will notify the trustee in writing. If a 
satisfactory accounting is not received by the Judge Advocate General 
within the time specified, the trustee will be declared in default of 
the trustee agreement and will become liable for all unaccounted trustee 
funds. If a trustee is declared in default of the trustee agreement, the 
appropriate finance center will be directed to terminate payments to the 
trustee and, if necessary, a successor trustee may be appointed. The 
trustee and surety will be notified in writing by the Judge Advocate 
General or his designee of the declaration of default. The notification 
will state the reasons for default, the amount of indebtedness to the 
Government, and will demand payment for the full amount of indebtedness. 
If payment in full is not received by the Judge Advocate General within 
an appropriate period of time from notification of default, the account 
may be forwarded to the Department of Justice for recovery of funds 
through appropriate civil action.



PART 727--LEGAL ASSISTANCE--Table of Contents




Sec.
727.1  Purpose.
727.2-727.4  [Reserved]

[[Page 272]]

727.5  Persons eligible for assistance.
727.6  Functions of legal assistance officers.
727.7  Limitations on service provided.
727.8  Confidential and privileged character of service provided.
727.9  Referrals to civilian lawyers.
727.10  Fees, compensation, solicitation, and representation in civilian 
          courts.
727.11  Supervision.
727.12  Communications.
727.13  Reports.
727.14  Files and records.
727.15  Liberal construction of part.

    Authority: 5 U.S.C. 301; 10 U.S.C. 5031 and 5148; 32 CFR 700.206 and 
700.1202.

    Source: 38 FR 6026, Mar. 6, 1973, unless otherwise noted.



Sec. 727.1  Purpose.

    A legal assistance program providing needed legal advice and 
assistance to military personnel and their dependents has been in 
operation in the naval service since 1943. The program has improved the 
morale of personnel and reduced disciplinary problems since its 
inception. The purpose of this part is to provide guidelines for the 
continuation of the program.



Secs. 727.2-727.4  [Reserved]



Sec. 727.5  Persons eligible for assistance.

    Legal assistance shall be available to members of the Armed Forces 
of the United States and their dependents, and military personnel of 
allied nations serving in the United States, its territories or 
possessions. The service is intended primarily for the benefit of 
personnel during active service, but is to be extended to retired 
military personnel, their dependents, survivors of members of the Armed 
Forces who would be eligible were the service member alive, and in 
overseas areas, to civilians, other than local-hire employees, who are 
in the employ of, serving with, or accompanying the U.S. Armed Forces, 
and their dependents, when and if the workload of the office renders 
such service feasible.



Sec. 727.6  Functions of legal assistance officers.

    (a) Basic duties. A legal assistance officer, while performing legal 
assistance duties, in addition to performing any other duties which may 
be assigned to him:
    (1) Shall counsel, advise, and assist persons eligible for 
assistance in connection with their personal legal problems, or refer 
such persons to a civilian lawyer as provided in Sec. 727.9.
    (2) Shall serve as advocate and counsel for persons eligible for 
assistance in connection with their personal legal problems and may 
prepare and sign correspondence on behalf of a client, negotiate with 
another party or his lawyer, and prepare all types of legal documents, 
including pleadings.
    (3) Shall, in appropriate cases and under guidelines prescribed in 
the Manual of the Judge Advocate General contemplating agreements or 
liaison with appropriate civilian bar officials, serve as advocate and 
counsel for, and provide full legal representation including 
representation in court to, persons eligible for assistance in 
connection with their personal legal problems.
    (4) Shall, subject to the direction of the senior legal assistance 
officer of the command, establish contact and maintain liaison with 
local bar organizations, lawyer referral services, legal aid societies, 
and other local organizations through which the services of civilian 
lawyers may be made available to military personnel and their 
dependents.
    (5) Shall supervise the personnel and operation of the legal 
assistance office in accordance with good legal practice and the 
policies and guidance provided by the Judge Advocate General.
    (6) Shall advise persons with complaints of discrimination on 
policies and procedures under the Civil Rights Act of 1964 and SECNAV 
Instruction 5350.5 series.
    (b) Nature of assistance. Legal assistance officers and 
administrative and clerical personnel assigned to legal assistance 
offices perform legal assistance duties as official duties in the 
capacity of an officer or an employee of the United States. Persons 
performing legal assistance duties, however, should not mislead those 
with whom they may deal into believing that their views or opinions are 
the official views or opinions of, approved by, or binding on, the 
Department of the Navy or the United States.
    (c) Duty to client. A legal assistance officer should exercise his 
independent

[[Page 273]]

professional judgment on behalf of his client within the standards 
promulgated in the Code of Professional Responsibility and the specific 
limitations imposed in this part.
    (d) Professional legal advice. Only legal assistance officers are 
authorized to render services that call for the professional judgment of 
a lawyer. The legal assistance officer may delegate tasks to clerks, 
secretaries, and other lay personnel provided the officer maintains a 
direct relationship with the client, supervises the delegated work, and 
has complete professional responsibility for the work product. Services 
that call for the professional judgment of a lawyer include, but are not 
limited to, the preparation of wills and powers of attorney, advising 
personnel with respect to legal rights and relationships, negotiating 
contracts, and other matters requiring an educated ability to relate the 
general body and philosophy of law to a specified legal problem of a 
client. Guidance in this matter may be had from various official sources 
including the ethical considerations under Canon 3 of the Code of 
Professional Responsibility of the American Bar Association and 
particularly EC 3-2, 3-5, 3-6, and DR 3-101(A).
[41 FR 26863, June 30, 1976, as amended at 47 FR 41561, Sept. 21, 1982]



Sec. 727.7  Limitations on service provided.

    (a) Assistance in official military matters. Legal assistance duties 
are separate and apart from the responsibilities of a trial counsel, 
defense counsel, or other officer involved in the processing of courts-
martial, nonjudicial punishment, administrative boards or proceedings, 
investigations, or other official military matters. Frequently, a 
serviceman accused or suspected of an offense or of conduct leading to 
administrative proceedings will request advice from the legal assistance 
officer. In such a case, he should be advised of the proper procedures 
for obtaining counsel or advice. This limitation does not prevent the 
assignment of the same officer to perform the functions of a legal 
assistance officer and the functions of a defense counsel, counsel for a 
respondent, or counsel for a party.
    (b) Domestic-relations cases. In domestic-relations cases, a legal 
assistance officer may, with the knowledge and consent of both parties, 
and where neither party is represented by counsel, consult both parties 
without impropriety.
    (c) Nonlegal advice. The legal assistance officer, while giving 
legal advice, may also determine that the client needs or desires advice 
on related nonlegal matters. The legal assistance officer should provide 
legal advice only, or defer giving such advice, and refer the client to 
an appropriate person or agency for such nonlegal counseling. The legal 
assistance officer should establish and maintain a working relationship 
with those individuals who are qualified to provide nonlegal counseling 
services.
    (d) Proceedings involving the United States. A legal assistance 
officer shall not advise on, assist in, or become involved with, 
individual interests opposed to or in conflict with the United States 
without the specific approval of the Judge Advocate General. In this 
connection see also 18 U.S.C. 201, and 18 U.S.C. 205.
    (e) Telephone inquiries. In the absence of unusual or compelling 
circumstances, legal advice should not be given over the telephone.
[41 FR 26863, June 30, 1976]



Sec. 727.8  Confidential and privileged character of service provided.

    All information and files pertaining to the persons served will be 
treated as confidential and privileged in the legal sense as outlined in 
Canon 4 of the Code of Professional Responsibility, as opposed to 
confidential in the military sense of security information. These 
privileged matters may not be disclosed to anyone by personnel rendering 
the service, except upon the specific permission of the person 
concerned, and disclosure thereof may not be lawfully ordered by 
superior military authority. This restriction does not prohibit 
providing the nonprivileged statistical data required by Sec. 727.13 of 
this part. Protection of the confidences of a legal assistance client is 
essential to the proper functioning of the legal assistance program in 
order

[[Page 274]]

to assure all military personnel, regardless of grade, rank, or 
position, that they may disclose frankly and completely all material 
facts of their problem to those rendering the service without fear that 
their confidence will be abused or used against them in any way. While 
case files are not subject to the control of the Department of the Navy 
and therefore do not constitute a ``system of records'' within the 
meaning of the Privacy Act of 1974 (5 U.S.C. 552a), no information which 
identifies an individual legal assistance client by name or any other 
particular, such as social security number, shall be extracted from the 
case files and incorporated into any file or index system aside from or 
in addition to the information contained on the legal assistance form 
(NAVJAG 5801/9) or locally used equivalent. Strict adherence to the 
foregoing will ensure compliance with the Privacy Act. Administrative 
and clerical personnel assigned to legal assistance offices shall 
maintain the confidential nature of matters handled.
[42 FR 35957, July 13, 1977]



Sec. 727.9  Referrals to civilian lawyers.

    (a) General. If it is determined that the legal assistance requested 
is beyond the scope of this part, or if no available legal assistance 
officer is qualified to give the assistance requested, the client should 
be referred to a civilian lawyer. When the client does not know of a 
lawyer whom he wishes to represent him, his case may be referred to an 
appropriate bar organization, lawyer referral service, legal aid 
society, or other local organization for assistance in obtaining 
reliable, competent, and sympathetic counsel, or to a civilian lawyer 
designated by such organization.
    (b) Fees charged by civilian lawyers. Legal assistance clients being 
referred to a civilian lawyer should be advised that, even when the fee 
to be charged is set by statute or subject to court approval, it should 
be one of the first items discussed to avoid later misunderstandings and 
eliminate uncertainty. Legal assistance officers should exercise caution 
in discussing possible fees to be charged by civilian lawyers so as to 
avoid embarrassment or misunderstanding between the client and his 
civilian lawyer.



Sec. 727.10  Fees, compensation, solicitation, and representation in civilian courts.

    (a) General. Active duty military personnel and civilian employees 
of the Navy and Marine Corps are prohibited from accepting or receiving, 
directly or indirectly, any fee or compensation of any nature, in cash 
or otherwise, for legal services rendered to any person entitled to 
legal assistance under this part whether or not the service rendered is 
normally provided or available to such person under this part and 
whether or not the service is rendered during duty hours as a part of 
official duties. Reserve judge advocates on inactive duty are prohibited 
from accepting or receiving any fee or compensation of any nature, in 
cash or otherwise, for legal services rendered to any person entitled to 
legal assistance under this part with respect to matters about which 
they consulted or advised said person in an official capacity. The 
prohibition may be waived only by the Judge Advocate General of the Navy 
or the Director, Naval Legal Service, as appropriate, in extraordinary 
circumstances on a case by case basis for inactive duty Reserve judge 
advocates who consulted with or advised an eligible client in an 
official capacity. Before a waiver may be granted, the following 
criteria, as well as other relevant criteria, shall be considered:
    (1) Whether the waiver is specifically requested by the party 
concerned or an appropriate representative,
    (2) Whether there is a likelihood that undue and substantial 
prejudice will otherwise be suffered by the party concerned,
    (3) Whether adequate continued representation for compensation is 
otherwise reasonably available, and
    (4) Whether the requested representation will violate the Code of 
Professional Responsibility of the American Bar Association or other 
applicable legal or ethical requirements.
    (b) Solicitation. Active duty military personnel, civilian employees 
of the Navy and Marine Corps, and inactive reservists, acting in an 
official capacity, are prohibited from soliciting, or

[[Page 275]]

advising that any person entitled to legal assistance under this part 
retain, consult, or seek legal services from themselves in their private 
capacities, or from any attorney who is a partner or associate of a law 
firm of which they are partners or associates, or from any attorney with 
whom they share office spaces; Provided that nothing herein shall 
prevent such person from being referred to civilian counsel as provided 
in Sec. 727.9.
    (c) Representation before civilian courts or agencies. No active 
duty Navy or Marine Corps judge advocate may appear as counsel on behalf 
of any person entitled to legal assistance, except as provided in 
paragraph (a)(3) of Sec. 727.6 and under guidelines prescribed in the 
Manual of the Judge Advocate General before any civil court, civil 
administrative tribunal, civil regulatory body, or civil governmental 
agency, in any proceeding, whether or not a fee or other compensation is 
accepted or received, without prior written approval of the Judge 
Advocate General, or the Director, Naval Legal Service, as appropriate. 
Requests for such permission may be in the form prescribed in the Manual 
of the Judge Advocate General.
[47 FR 41561, Sept. 21, 1982]



Sec. 727.11  Supervision.

    The Judge Advocate General will exercise supervision over all legal 
assistance activities in the Department of the Navy. Subject to the 
supervision of the Judge Advocate General, officers in charge of Naval 
Legal Service Offices, and all Marine Corps commanders exercising 
general court-martial authority, acting through their judge advocates, 
shall exercise supervision over all legal assistance activities within 
their respective areas of responsibility and shall ensure that legal 
assistance services are made available to all eligible personnel within 
their areas. The Judge Advocate General will collaborate with the 
American Bar Association, the Federal Bar Association, and other 
civilian bar organizations as he may deem necessary or advisable in the 
accomplishment of the objectives and purposes of the legal assistance 
program.
[42 FR 35957, July 13, 1977]



Sec. 727.12  Communications.

    (a) Legal assistance officers are authorized to communicate directly 
with the Judge Advocate General, with each other, and with other 
appropriate organizations and persons concerning legal assistance 
matters.
    (b) The use of a legal assistance office letterhead within the 
Department of the Navy is authorized as an exception to the standard 
letterhead requirements contained in Department of Defense Instruction 
5330.2 of July 12, 1968. A sample of the letterhead to be used is:

Legal Assistance Office, Building 200, Washington Navy Yard, Washington, 
DC 20374, Tel: 202-433-4331.


Naval Legal Service Offices and other commands having authorized legal 
assistance officers are authorized to print and use letterheads without 
seal or official command designation in those matters in which the 
correspondence pertains solely to legal assistance matters. Legal 
assistance officers are directed to ensure that their correspondence 
does not imply United States Navy or command sponsorship or approval of 
the substance of the correspondence. Such correspondence is considered a 
private matter arising from the attorney-client relationship as 
indicated in Sec. 727.8.
[42 FR 35958, July 13, 1977]



Sec. 727.13  Reports.

    Each legal assistance office shall, by the 10th day of October of 
each year, prepare and submit to the Judge Advocate General one copy of 
the Legal Assistance Report (NAVJAG 5801/3 Rev. 12-78)) covering the 
preceding fiscal year. A final report shall be submitted on the 
disestablishment of the legal assistance office. Special reports shall 
be submitted when requested by the Judge Advocate General. Information 
copies of all reports shall be furnished to the supervising commander 
referred to in Sec. 727.11. Reports symbol JAG-5801-1 is assigned for 
this reporting requirement.
[38 FR 6026, Mar. 6, 1973, as amended at 47 FR 41561, Sept. 21, 1982]

[[Page 276]]



Sec. 727.14  Files and records.

    (a) Case files. The material contained in legal assistance case 
files is necessarily limited to private unofficial matters and such 
material is privileged and protected under the attorney-client 
relationship. Each legal assistance office should therefore maintain 
only such files as are necessary for the proper operation of the office.
    (b) [Reserved]
[38 FR 6026, Mar. 6, 1973, as amended at 43 FR 17355, Apr. 24, 1978]



Sec. 727.15  Liberal construction of part.

    The provisions of this part are intended to be liberally construed 
to aid in accomplishing the mission of legal assistance.



PART 728--MEDICAL AND DENTAL CARE FOR ELIGIBLE PERSONS AT NAVY MEDICAL DEPARTMENT FACILITIES--Table of Contents




                           Subpart A--General

Sec.
728.1  Mission of Navy Medical Department facilities.
728.2  Definitions.
728.3  General restrictions and priorities.
728.4  Policies.

       Subpart B--Members of the Uniformed Services on Active Duty

728.11  Eligible beneficiaries.
728.12  Extent of care.
728.13  Application for care.
728.14  Pay patients.

  Subpart C--Members of Reserve Components, Reserve Officers' Training 
 Corps, Navy and Marine Corps Officer Candidate Programs, and National 
                             Guard Personnel

728.21  Navy and Marine Corps reservists.
728.22  Members of other reserve components of the uniformed services.
728.23  Reserve Officers' Training Corps (ROTC).
728.24  Navy and Marine Corps Officer Candidate Programs.
728.25  Army and Air Force National Guard personnel.

   Subpart D--Retired Members and Dependents of the Uniformed Services

728.31  Eligible beneficiaries and health benefits authorized.
728.32  Application for care.
728.33  Nonavailability statement (DD 1251).
728.34  Care beyond the capabilities of a naval MTF.
728.35  Coordination of benefits--third party payers.
728.36  Pay patients.

  Subpart E--Members of Foreign Military Services and Their Dependents

728.41  General provisions.
728.42  NATO.
728.43  Members of other foreign military services and their dependents.
728.44  Members of security assistance training programs, foreign 
          military sales, and their ITO authorized dependents.
728.45  Civilian components (employees of foreign military services) and 
          their dependents.
728.46  Charges and collection.

           Subpart F--Beneficiaries of Other Federal Agencies

728.51  General provisions--the ``Economy Act''.
728.52  Veterans Administration beneficiaries (VAB).
728.53  Department of Labor, Office of Workers' Compensation Programs 
          (OWCP) beneficiaries.
728.54  U.S. Public Health Service (USPHS), other than members of the 
          uniformed services.
728.55  Department of Justice beneficiaries.
728.56  Treasury Department beneficiaries.
728.57  Department of State and associated agencies.
728.58  Federal Aviation Agency (FAA) beneficiaries.
728.59  Peace Corps beneficiaries.
728.60  Job Corps and Volunteers in Service to America (VISTA) 
          beneficiaries.
728.61  Medicare beneficiaries.

                        Subpart G--Other Persons

728.71  Ex-service maternity care.
728.72  Applicants for enrollment in the Senior Reserve Officers' 
          Training Program.
728.73  Applicants for enlistment or reenlistment in the Armed Forces, 
          and applicants for enlistment in the reserve components.
728.74  Applicants for appointment in the regular Navy or Marine Corps 
          and reserve components, including members of the reserve 
          components who apply for active duty.

[[Page 277]]

728.75  Applicants for cadetship at service academies and applicants for 
          the Uniformed Services University of Health Sciences (USUHS).
728.76  Naval Home residents.
728.77  Secretarial designees.
728.78  American Red Cross representatives and their dependents.
728.79  Employees of Federal contractors and subcontractors.
728.80  U.S. Government employees.
728.81  Other civilians.
728.82  Individuals whose military records are being considered for 
          correction.
728.83  Persons in military custody and nonmilitary Federal prisoners.

                   Subpart H--Adjuncts to Medical Care

728.91  General.
728.92  Policy.
728.93  Chart of Adjuncts.

  Subpart I--Reservists--Continued Treatment, Return to Limited Duty, 
            Separation, or Retirement for Physical Disability

728.101  General.
728.102  Care from other than Federal sources.

         Subpart J--Initiating Collection Action on Pay Patients

728.111  General.
728.112  Responsibilities.
728.113  Categories of pay patients.

    Authority: 5 U.S.C. 301 and 8101; 10 U.S.C. 1071-1095, 1201-1221, 
2104, 2107, 2109, 2110, 5031, 5537, 6011, 6201-6203; 22 U.S.C. 1158, 
2357, 2504, 2505, 2507, 2522; 24 U.S.C. 15, 34, 35; 31 U.S.C. 1535; 42 
U.S.C. 249, 253; and 32 CFR 700.1202.

    Source: 52 FR 33718, Sept. 4, 1987, unless otherwise noted.



                           Subpart A--General



Sec. 728.1  Mission of Navy Medical Department facilities.

    The primary mission of Navy Medical Department facilities is to 
provide medical and dental care for members of the Navy and Marine Corps 
and for members of the other uniformed services who may be sick, 
injured, or disabled. In addition, Navy Medical Department facilities 
may provide medical and dental care to dependents of military personnel, 
to members not on active duty, and to such other persons as authorized 
by law, U.S. Navy regulations, and Department of Defense directives. 
These authorizations also provide that Navy Medical Department 
facilities may be called upon to furnish medical and dental care, under 
laws of humanity or principles of international courtesy, to civilians 
and to other persons not otherwise entitled to medical and dental care.



Sec. 728.2  Definitions.

    Unless otherwise qualified in this part, the following terms, when 
used throughout, are defined as follows:
    (a) Active duty. Full-time duty in the active military service of 
the United States. This includes full-time training duty; annual 
training duty; and attendance, while in the active military service, at 
a school designated as a service school by law or by the Secretary of 
the military department concerned. It does not include full-time 
National Guard duty.
    (b) Active duty for training. A tour of active duty for reserves for 
training under orders that provide for automatic reversion to non-active 
status when the specified period of active duty is completed. It 
includes annual training, special tours, and the initial tour performed 
by enlistees without prior military service.
    (c) CHAMPUS. Civilian Health and Medical Program of the Uniformed 
Services.
    (d) Catchment area. A specified geographic area surrounding each 
Uniformed Services Medical Treatment Facility (USMTF) or designated 
Uniformed Services Treatment Facility (USTF). In the United States, 
catchment areas are defined by zip codes and are based on an area of 
approximately 40 miles in radius for inpatient care and 20 miles in 
radius for ambulatory care. Zip codes designating such areas in the 
United States are specified in Volumes I and II of the Military Health 
Services System (MHSS) Catchment Area Directory. Catchment areas for 
facilities outside the United States are defined in Volume III of the 
MHSS Catchment Area Directory. These directories exclude certain areas 
because of geographic barriers.
    (e) Chronic condition. Any medical or surgical condition marked by 
long duration or frequent recurrence--or likely to be so marked--which, 
in light of

[[Page 278]]

medical information available, will ordinarily resist efforts to 
eradicate it completely; a condition which needs health benefits to 
achieve or maintain stability that can be provided safely only by, or 
under the supervision of, physicians, nurses, or persons authorized by 
physicians.
    (f) Civilian employee. Under 5 U.S.C. 2105, a nonmilitary individual 
(1) appointed in the civil service, (2) engaged in the performance of a 
Federal function, or (3) engaged in the performance of his or her duties 
while subject to the supervision of The President, a Member or Members 
of Congress, or the Congress, a member of a uniformed service, an 
individual who is an employee under 5 U.S.C. 2105, the head of a 
Government controlled corporation, or an adjutant general designated by 
the Secretary concerned under section 709c of title 32. Included are 
justices and judges of the United States, appointed and engaging in the 
performance of duties per 5 U.S.C. 2104.
    (g) Cooperative care. Medical services and supplies for which 
CHAMPUS will share in the cost under circumstances specified in 
Sec. 728.4(z), even though the patient remains under the primary control 
of a USMTF.
    (h) Cooperative care coordinator. Designated individual in a CHAMPUS 
contractor's office who serves as the point of contact for health 
benefits advisors on all matters related to supplemental-cooperative 
care or services provided or ordered for CHAMPUS-eligible beneficiaries 
by USMTF providers.
    (i) Dental care. Treatment which will prevent or remedy diseases, 
disabilities, and injuries to the teeth, jaws, and related structures 
and thereby contribute to maintenance or restoration of the dental 
health of an individual.
    (j) Dependent. A spouse, an unremarried widow or widower, a child, 
or a parent who bears that legal relationship to his or her sponsor. For 
the purpose of rendering care under title 10, U.S.C., chapter 55, this 
category may also include an unremarried former spouse. However, each 
beneficiary must also meet the eligibility criteria in Sec. 728.31(b) 
and Sec. 728.31(c).
    (k) Designated USTFs. The following former U.S. Public Health 
Service (USPHS) facilities operate as ``designated USTFs'' for the 
purpose of rendering medical and dental care to active duty members and 
to all CHAMPUS-eligible individuals.
    (1) Sisters of Charity of the Incarnate Word Health Care System, 
6400 Lawndale, Houston, TX 77058 (713) 928-2931 operates the following 
facilities:
    (i) St. John Hospital, 2050 Space Park Drive, Nassau Bay, TX 77058, 
telephone (713) 333-5503. Inpatient and outpatient services.
    (ii) St. Mary's Hospital Outpatient Clinic, 404 St. Mary's 
Boulevard, Galveston, TX 77550, telephone (409) 763-5301. Outpatient 
services only.
    (iii) St. Joseph Hospital Ambulatory Care Center, 1919 La Branch, 
Houston, TX 77002, telephone (713) 757-1000. Outpatient services only.
    (iv) St. Mary's Hospital Ambulatory Care Center, 3600 Gates 
Boulevard, Port Arthur, TX 77640 (409) 985-7431. Outpatient services 
only.
    (2) Inpatient and outpatient services. (i) Wyman Park Health System, 
Inc., 3100 Wyman Park Drive, Baltimore, MD 21211, telephone (301) 338-
3693.
    (ii) Alston-Brighton Aid and Health Group, Inc., Brighton Marine 
Public Health Center, 77 Warren Street, Boston, MA 02135, telephone 
(617) 782-3400.
    (iii) Bayley Seton Hospital, Bay Street and Vanderbilt Avenue, 
Staten Island, NY 10304, telephone (718) 390-5547 or 6007.
    (iv) Pacific Medical Center, 1200 12th Avenue South, Seattle, WA 
98144, telephone (206) 326-4100.
    (3) Outpatient services only. (i) Coastal Health Service, 331 
Veranda Street, Portland, ME 04103, telephone (207) 774-5805.
    (ii) Lutheran Medical Center, Downtown Health Care Services, 1313 
Superior Avenue, Cleveland, OH 44113, telephone (216) 363-2065.
    (l) Disability retirement or separation. Temporary or permanent 
retirement or separation for physical disability as provided in title 
10, U.S.C., 1201-1221.
    (m) Elective care. Medical, surgical, or dental care desired or 
requested by the individual or recommended by the physician or dentist 
which, in the opinion of other cognizant professional authority, can be 
performed at another place or time without jeopardizing life, limb, 
health, or well-being of the patient,

[[Page 279]]

e.g., surgery for cosmetic purposes and nonessential dental prosthetic 
appliances.
    (n) Emergency care. Medical treatment of patients with severe, life-
threatening, or potentially disabling conditions that require immediate 
intervention to prevent undue suffering or loss of life or limb and 
dental treatment of painful or acute conditions.
    (o) Health benefits advisors (HBA). Designated individuals at naval 
facilities who are responsible for advising and assisting beneficiaries 
covered in this part concerning medica1 and dental benefits in uniformed 
services facilities and under CHAMPUS. They also provide information 
regarding Veterans' Administration, Medicare, MEDICAID, and such other 
local health programs known to be available to beneficiaries (see 
Sec. 728.4(n)).
    (p) Hospitalization. Inpatient care in a medical treatment facility.
    (q) Inactive duty training. Duty prescribed for Reserves by the 
Secretary concerned under section 206 of title 37, U.S.C. or any other 
provision of law. Also includes special additional duties authorized for 
Reserves by an authority designated by the Secretary concerned and 
performed on a voluntary basis in connection with the prescribed 
training or maintenance activities of the units to which they are 
assigned. It includes those duties when performed by Reserves in their 
status as members of the National Guard.
    (r) Legitimate care. Those medical and dental services under the 
cooperative/supplemental care program of CHAMPUS that are legally 
performed and not contrary to governing statutes.
    (s) Maximum hospital benefit. That point during inpatient treatment 
when the patient's progress appears to have stabilized and it can be 
anticipated that additional hospitalization will not directly contribute 
to any further substantial recovery. A patient who will continue to 
improve slowly over a long period without specific therapy or medical 
supervision, or with only a moderate amount of treatment on an 
outpatient basis, may be considered as having attained maximum hospital 
benefit.
    (t) Medical care. Treatment required to maintain or restore the 
health of an individual. Medical care may include, but is not limited 
to, the furnishing of inpatient treatment, outpatient treatment, nursing 
service, medical examinations, immunizations, drugs, subsistence, 
transportation, and other adjuncts such as prosthetic devices, 
spectacles, hearing aids, orthopedic footwear, and other medically 
indicated appliances or services.
    (u) Medically inappropriate. A situation arising when denial of a 
Nonavailability Statement could result in significant risk to the health 
of a patient or significant limitation to the patient's reasonable 
access to needed health care.
    (v) Medically necessary. The level of services and supplies (i.e., 
frequency, extent, and kinds) adequate for the diagnosis and treatment 
of illness or injury, including maternity care. Medically necessary, 
includes the concept of appropriate medical care.
    (w) Medical treatment facility (MTF). Any duly authorized medical 
department center, hospital, clinic, or other facility that provides 
medical, surgical, or dental care.
    (x) Member or former member. Includes:
    (1) Members of the uniformed services ordered to active duty for 
more than 30 days.
    (2) Retired members as defined in Sec. 728.2(bb).
    (3) Members of a uniformed service ordered to active duty for more 
than 30 days who died while on that duty.
    (4) Deceased retired members.
    (y) Military patient. A member of a United States uniformed service 
on active duty, active duty for training, or inactive duty training, or 
an active duty member of the armed forces of a foreign government who is 
receiving inpatient or outpatient care.
    (z) Occupational health services. Includes medical examinations and 
tests related to preemployment, preplacement, periodic, and 
pretermination; tests required for protecting the health and safety of 
naval personnel; job-related immunizations and chemoprophylaxis; 
education and training related to occupational health; and other 
services provided to avoid lost time or to improve effectiveness of 
employees. The latter will include the furnishing of emergency

[[Page 280]]

treatment of illnesses or injuries occurring at work. Furnish such 
health services to both active duty military personnel and naval 
civilian employees per current directives.
    (aa) Retired member. A member or former member of a uniformed 
service who is entitled to retired or retainer pay, or equivalent pay, 
as a result of service in a uniformed service. This includes a member or 
former member who is: (1) Retired for length of service; (2) permanently 
or temporarily retired for physical disability; (3) on the emergency 
officers' retired list and is entitled to retired pay for physical 
disability; or (4) otherwise in receipt of retired pay under chapter 67 
of title 10.
    (bb) Routine care. Medica1 and dental care necessary to maintain 
health or dental functions other than care of an emergency or elective 
nature.
    (cc) Supplemental care or services. When medical or dental 
management is retained by a naval MTF and required care is not available 
at the facility retaining management, any additional material, 
professional diagnostic or consultative services, or other personal 
services ordered by qualified uniformed service providers, and obtained 
for the care of that patient are supplemental. See Sec. 728.12 
concerning the management of active duty member patients.
    (dd) Uniformed services. The Navy, Marine Corps, Air Force, Army, 
Coast Guard, Commissioned Corps of the Public Health Service, and the 
Commissioned Corps of the National Oceanic and Atmospheric 
Administration.
    (ee) USMTF. Uniformed services medical treatment facility.
    (ff) Visit, outpatient. Appearance by an eligible beneficiary at a 
separate, organized clinic or specialty service for: Examination, 
diagnosis, treatment, evaluation, consultation, counseling, or medical 
advice; or treatment of an eligible beneficiary in quarters; and a 
signed and dated entry is made in the patient's health record. 
Specifically excluded are personnel in an inpatient status at the time 
of such a visit.



Sec. 728.3  General restrictions and priorities.

    (a) Restrictions. (1) Naval MTFs provide care to all eligible 
beneficiaries subject to the capabilities of the professional staff and 
the availability of space and facilities.
    (2) Hospitalization and outpatient services may be provided outside 
the continental limits of the United States and in Alaska to officers 
and employees of any department or agency of the Federal Government, to 
employees of a contractor with the United States or the contractor's 
subcontractor, to accompanying dependents of such persons, and in 
emergencies to such other persons as the Secretary of the Navy may 
prescribe: Provided, such services are not otherwise available in 
reasonably accessible and appropriate non-Federal facilities. 
Hospitalization of such individuals in a naval MTF is limited to the 
treatment of acute medical and surgical conditions, exclusive of 
nervous, mental, or contagious diseases, or those requiring domiciliary 
care. Routine dental care, other than dental prosthesis or orthodontia, 
may be rendered on a space available basis outside the continental 
limits of the United States and in Alaska, Provided, such services are 
not otherwise available in reasonably accessible and appropriate non-
Federal facilities.
    (b) Priorities. When care cannot be rendered to all eligible 
beneficiaries, the priorities in the following chart will prevail. Make 
no distinction as to the sponsoring uniformed service when providing 
care or deciding priorities.

   Priorities for the Various Categories of Personnel Eligible for Care in Navy Medical Department Facilities
----------------------------------------------------------------------------------------------------------------
                Priority                               Category                      Degree of entitlement
----------------------------------------------------------------------------------------------------------------
1......................................  A. Members of the uniformed          See Subpart B.
                                          services on active duty (including
                                          active duty for training and
                                          inactive duty training) and
                                          comparable personnel of the NATO
                                          nations meeting the conditions
                                          prescribed in this part.
                                         B. Members of a Reserve Component    See Subpart C.
                                          of the Armed Forces and National
                                          Guard personnel under orders.

[[Page 281]]

2......................................  Dependents of active duty members    See Subparts D and E.
                                          of the uniformed services,
                                          dependents of persons who died
                                          while in such a status, and the
                                          dependents of active duty members
                                          of NATO nations meeting the
                                          conditions prescribed in subpart E
                                          of this part.
3......................................  Members ot the Senior Reserve        See Sec.  728.23.
                                          Officers' Training Corps of the
                                          Armed Forces.
4......................................  Retired members of the uniformed     See Subpart D.
                                          services and their dependents and
                                          dependents of deceased retired
                                          members.
5......................................  Civilian employees of the Federal    See Sec.  728.80.
                                          Government under the limited
                                          circumstances covered by the
                                          Federal Employees' Health Service
                                          program.
6......................................  All others, including ex-service     See Subparts F and G.
                                          maternity eligibles.
----------------------------------------------------------------------------------------------------------------



Sec. 728.4  Policies.

    (a) Admissions to closed psychiatric wards. Admit patients to closed 
psychiatric wards only when they have a psychiatric or emotional 
disorder which renders them dangerous to themselves or others, or when a 
period of careful closed psychiatric observation is necessary to 
determine whether such a condition exists. When a patient is admitted to 
a closed psychiatric ward, the reason for admission must be clearly 
stated in the patient's clinical record by the physician admitting the 
patient to the ward. These same policies apply equally in those 
instances when it becomes necessary to place a patient under constant 
surveillance while in an open ward.
    (b) Absence from the sick list. See Sec. 728.4 (d), (x), and (y).
    (c) Charges and collection. Charges for services rendered vary and 
are set by the Office of the Assistant Secretary of Defense 
(Comptroller) and published in a yearly NAVMEDCOMNOTE 6320, (Cost 
elements of medical, dental, subsistence rates, and hospitalization 
bills). Billing and collection actions also vary according to 
entitlement or eligibility and are governed by the provisions of NAVMED 
P-5020, Resource Management Handbook. See subpart J on the initiation of 
collection action on pay patients.
    (d) Convalescent leave. Convalescent leave, a period of authorized 
absence of active duty members under medical care when such persons are 
not yet fit for duty, may be granted by a member's commanding officer 
(CO) or the hospital's CO per the following:
    (1) Unless otherwise indicated, grant such leave only when 
recommended by COMNAVMEDCOM through action taken upon a report by a 
medical board, or the recommended findings of a physical evaluation 
board or higher authority.
    (2) Member's commanding officer (upon advice of attending 
physician); commanding officers of Navy, Army, or Air Force medical 
facilities; commanders of regional medical commands for persons 
hospitalized in designated USTFs or in civilian facilities within their 
respective areas of authority; and managers of Veterans Administration 
hospitals within the 50 United States or in puerto Rico may grant 
convalescent leave to active duty naval patients, with or without 
reference to a medical board, physical evaluation board, or higher 
authority provided the:
    (i) Convalescent leave is being granted subsequent to a period of 
hospitalization.
    (ii) Member is not awaiting disciplinary action or separation from 
the service for medical or administrative reasons.
    (iii) Medical officer in charge:
    (A) Considers the convalescent leave beneficial to the patient's 
health.
    (B) Certifies that the patient is not fit for duty, will not need 
hospital treatment during the contemplated convalescent leave period, 
and that such leave will not delay final disposition of the patient.

[[Page 282]]

    (3) When considered necessary by the attending physician and 
approved on an individual basis by the commander of the respective 
geographic regional medical command, convalescent leave in excess of 30 
days may be granted. The authority to grant convalescent leave in excess 
of 30 days may not be redelegated to hospital commanding officers. 
Member's permanent command must be notified of such extensions (see 
MILPERSMAN 3020360).
    (4) Exercise care in granting convalescent leave to limit the 
duration of such leave to that which is essential in relation to 
diagnosis, prognosis, estimated duration of treatment, and patient's 
probable final disposition.
    (5) Upon return from convalescent leave;
    (i) Forward one copy of original orders of officers, bearing all 
endorsements, to the Commander, Naval Military Personnel Command 
(COMNAVMILPERSCOM) (NMPC-4) or the Commandant of the Marine Corps (CMC), 
as appropriate.
    (ii) Make an entry on the administrative remarks page (page 13 for 
Navy personnel) of the service records of enlisted personnel indicating 
that convalescent leave was granted and the dates of departure and 
return.
    (6) lf considered beneficial to the patient's health, commanding 
officers of hospitals may grant convalescent leave as a delay in 
reporting back to the parent command.
    (e) Cosmetic surgery. (1) Defined as that surgery which is done to 
revise or change the texture, configuration, or relationship of 
contiguous structures of any feature of the human body which would be 
considered by the average prudent observer to be within the broad range 
of ``normal'' and acceptable variation for age or ethnic origin, and in 
addition, is performed for a condition which is judged by competent 
medical opinion to be without potential for jeopardy to physical or 
mental health of an individual.
    (2) Commanding officers will monitor, control, and assure compliance 
with the following cosmetic surgery policy:
    (i) Certain cosmetic procedures are a necessary part of training and 
retention of skills to meet the requirements of certification and 
recertification.
    (ii) Insofar as they meet minimum requirements and serve to improve 
the skills and techniques needed for reconstructive surgery, the 
following cosmetic procedures may be performed as low priority surgery 
on active duty members only when time and space are available.
    (A) Cosmetic facial rhytidectomies (face lifts) will be a part of 
all training programs required by certifying boards.
    (B) Cosmetic augmentation mammaplasties will be done only by 
properly credentialed surgeons and residents within surgical training 
programs to meet requirements of certifying boards.
    (f) Cross-utilization of uniformed services facilities. To provide 
effective cross-utilization of medical and dental facilities of the 
uniformed services, eligible persons, regardless of service affiliation, 
will be given equal opportunity for health benefits. Catchment areas 
have been established by the Department of Defense for each USMTF (see 
Sec. 728.2(d)). Eligible beneficiaries residing within such a catchment 
area are expected to use that inpatient facility for care. Make 
provisions to assure that:
    (1) Eligible beneficiaries residing in a catchment area served by a 
USMTF not of the sponsor's own service may obtain care at that facility 
or at a facility of the sponsor's service located in another catchment 
area.
    (2) If the facility to which an eligible beneficiary applies cannot 
furnish needed care, the other facility or facilities in overlapping 
catchment areas are contacted to determine whether care can be provided 
thereat.
    (g) Disengagement. Discontinuance of medical management by a naval 
MTF for only a specific episode of care.
    (1) General. Disengagement is accomplished only after alternative 
sources of care (i.e., transfer to another USMTF, a USTF, or other 
Federal source via the aeromedical evacuation system, if appropriate) 
and attendant costs, if applicable, have been fully explained to patient 
or responsible family member. Counselors may arrange for counseling by 
other appropriate

[[Page 283]]

sources when the patient is or may be eligible for VA, Medicare, 
MEDICAID, etc. benefits. With the individual's permission, counselors 
may also contact State programs, local health organizations, or health 
foundations to determine if care is available for the condition upon 
which disengagement is based. After the disengagement decision is made, 
the patient to be disengaged or the responsible family member should be 
advised to return to the naval MTF for any care required subsequent to 
receiving the care that necessitated disengagement.
    (2) CHAMPUS-eligible individuals. (i) Issue a Nonavailability 
Statement (DD 1251) per Sec. 728.33, when appropriate, to patients 
released to civilian sources for total care (disengaged) under CHAMPUS. 
CHAMPUS-eligible patients disengaged for total care, who do not 
otherwise require a DD 1251 (released for outpatient care or those 
released whose residence is outside the inpatient catchment area of all 
USMTFs and USTFs) will be given the original of a properly completed DD 
2161, Referral For Civilian Medical Care, which clearly indicates that 
the patient is released for total care under CHAMPUS. CHAMPUS-eligible 
beneficiaries will be disengaged for services under CHAMPUS when:
    (A) Required services are beyond your capability and these services 
cannot be appropriately provided through one of the alternatives listed 
in Sec. 728.4(z), or
    (B) You cannot effectively provide required services or manage the 
overall course of care even if augmented by services procured from other 
Government or civilian sources using naval MTF operation and maintenance 
funds as authorized in subpart Sec. 728.4(z).
    (ii) When a decision is made to disengage a CHAMPUS-eligible 
individual, commanding officers (CO) or officers-in-charge (OIC) are 
responsible for assuring that counseling and documentation of counseling 
are appropriately accomplished. Complete a NAVMED 6320/30. Disengagement 
for Civilian Medical Care, to document that all appropriate 
disengagement procedures have been accomplished.
    (iii) After obtaining the signature of the patient or responsible 
family member, the counselor will file a copy of the DD 2161 and the 
original of the NAVMED 6320/30 in the patient's Health Record.
    (3) Patients other than active duty or CHAMPUS-eligible 
individuals--(i) Categories of patients. The following are categories of 
individuals who also may be disengaged:
    (A) Medicare-eligible individuals.
    (B) MEDICAID-eligible individuals.
    (C) Civilians (U.S. and foreign) admitted or treated as civilian 
humanitarians.
    (D) Secretarial designees.
    (E) All other individuals, with or without private insurance, who 
are not eligible for care at the expense of the Government.
    (ii) Disengagement decision. Disengage such individuals when:
    (A) Required services are beyond the capability of the MTF, and 
services necessary for continued treatment in the MTF cannot be 
appropriately provided by another USMTF, a USTF, or another Federal 
source. (Explore alternative sources, for individuals eligible for care 
from these sources, before making the disengagement decision.)
    (B) The MTF cannot, within the facility's capability, effectively 
provide required care or manage the overall course of treatment even if 
augmented by services procured from other Government sources or through 
procurement from civilian sources using supplemental care funding.
    (iii) Counseling. The initial step in the disengagement process is 
appropriate counseling and documentation. In an emergency, or when the 
individual cannot be appropriately counseled prior to leaving the MTF, 
establish procedures to ensure counseling and documentation are 
accomplished during the next working day. Such ``follow-up'' counseling 
may be in person or via a witnessed telephone conversation. In either 
instance, the counselor will document counseling on a NAVMED 6320/30, 
Disengagement for Civilian Medical Care. The disengagement decision 
making authority must assure the accomplishment of counseling by 
personally initiating this service or by referring the patient or 
responsible family member to the HBA for counseling.

[[Page 284]]

As a minimum, counseling will consist of:
    (A) Explaining that the patient is being disengaged from treatment 
at the facility and the reason therefor. Assure that the individual 
understands the meaning of ``disengagement'' by explaining that the MTF 
is unable to provide for the patient's present needs and must therefore 
relinquish medical management of the patient to a health care provider 
of the individual's choice.
    (B) Assuring the individual that the disengagement action is taken 
to provide for the patient's immediate medical needs. Also assure that 
the individual understands that the disengagement is not indicative of 
whether care is or will be available in the MTF for other aspects of 
past, current, or future medical conditions.
    (C) Explaining Medicare, MEDICAID, or other known programs as they 
relate to the particular circumstance of the patient, including cost-
sharing, deductibles, allowable charges, participating and authorized 
providers, physicians accepting assignment, claim filing procedures, 
etc. Explain that once disengagement is accomplished, the Navy, is not 
responsible for any costs for care received from a health care provider 
of the patient's or responsible family member's choice.
    (iv) Documentation. Commanding officers are responsible for ensuring 
that proper documentation procedures are started and that providers and 
counselors under their commands are apprised of their individual 
responsibilities for counseling and documenting each disengagement. 
Failure to properly counsel and document counseling may result in the 
naval MTF having to absorb the cost of the entire episode of care. 
Document counseling on a NAVMED 6320/30. Disengagement for Civilian 
Medical Care. Completion of all items on the form assures documentation 
and written acknowledgement of appropriate disengagement and counseling. 
If the patient or responsible family member refuses to acknowledge 
receipt of counseling by signing the form, state this fact on the bottom 
of the form and have it witnessed by an officer. Give the patient or 
responsible family member a copy and immediately file the original in 
the patient's Health Record.
    (4) Active duty members. When an active duty member seeks care at a 
USMTF, that USMTF retains some responsibility (e.g., notification, 
medical cognizance, supplemental care, etc.) for that member even when 
the member must be transferred to another facility for care. Therefore, 
relinquishment of total management of an active duty member 
(disengagement) cannot be accomplished.
    (h) Domiciliary/custodial care. The type of care designed 
essentially to assist an individual in meeting the normal activities of 
daily living, i.e., services which constitute personal care such as help 
in walking and getting in or out of bed, help in bathing, dressing, 
feeding, preparation of special diets, and supervision over medications 
which can usually be self-administered and which does not entail or 
require the continuing attention of trained medical or paramedical 
personnel. The essential characteristics to be considered are the level 
of care and medical supervision that the patient requires, rather than 
such factors as diagnosis, type of condition, or the degree of 
functional limitation. Such care will not be provided in naval MTFs 
except when required for active duty members of the uniformed services.
    (i) Emergency care. Treat patients authorized only emergency care 
and those admitted as civilian emergencies only during the period of the 
emergency. Initiate action to effect appropriate disposition of such 
patients as soon as the emergency period ends.
    (j) Evaluation after admission. Evaluate each patient as soon as 
possible after admission and continue reevaluation until disposition is 
made. Anticipate each patient's probable type and date of disposition. 
Necessary processing by the various medical and administrative entities 
will take place concurrently with treatment of the patient. Make the 
medical disposition decision as early as possible for U.S. military 
patients inasmuch as immediate transfer to a specialized VA center or to 
a VA spinal cord injury center may be in their best interest (see

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NAVMEDCOMINST 6320.1.2). Make disposition decisions for military 
personnel of NATO nations in conformance with Sec. 728.42(d).
    (k) Extent of care. Subject to the restrictions and priorities in 
Sec. 728.3, eligible persons will be provided medical and dental care to 
the extent authorized, required, and available. When an individual is 
accepted for care, all care and adjuncts thereto, such as nonstandard 
supplies, as determined by the CO to be necessary, will be provided from 
resources available to the CO unless specifically prohibited elsewhere 
in this part. When a patient has been accepted and required care is 
beyond the capability of the accepting MTF, the CO thereof will arrange 
for the required care by one of the means shown below. The method of 
choice will be based upon professional considerations and travel 
economy.
    (1) Transfer the patient per Sec. 728.4(bb).
    (2) Procure from civilian sources the necessary material or 
professional personal services required for the patient's proper care 
and treatment.
    (3) Care authorized in Sec. 728.4(k)(2) will normally be 
accomplished in the naval MTF. However, when such action is not 
feasible, supplementation may be obtained outside the facility. Patients 
may be sent to other Federal or civilian facilities for specific 
treatment or services under Sec. 728.4(k)(3) provided they remain under 
medical management of the CO of the sending facility during the entire 
period of care.
    (l) Family planning services. Provide family planning services 
following the provisions of SECNAVINST 6300.2A.
    (m) Grouping of patients. Group hospitalized patients according to 
their requirements for housing, medical, or dental care. Provide gender 
identified quarters, facilities, and professional supervision on that 
basis when appropriate. Individuals who must be retained under limited 
medical supervision (medical hold) solely for administrative reasons or 
for medical conditions which can be treated on a clinic basis will be 
provided quarters and messing facilities, where practicable, separately 
from those hospitalized. Provide medical care for such patients on a 
periodic clinic appointment basis (see Sec. 728.4(p) for handling 
enlisted convalescent patients). Make maximum use of administrative 
versus medical personnel in the supervision of such patients.
    (n) Health benefits advising--(1) General. A Health Benefits 
Advising program must be started at all shore commands having one or 
more medical officers. While health benefits advisors are not required 
aboard every ship with a medical officer, the medical department 
representative can usually provide services to personnel requiring help. 
The number of health benefits advisors (HBAs) of a command will be 
commensurate with counseling and assistance requirements. The program 
provides health benefits information and counseling to beneficiaries of 
the Uniformed Services Health Benefits Program (USHBP) and to others who 
may or may not qualify for care in USMTFs. Office location of HBAs, 
their names, and telephone numbers will be widely publicized locally. If 
additional help is required, contact MEDCOM-333 on AUTOVON 294-1127 or 
commercial (202) 653-1127. In addition to the duties described in 
Sec. 728.4(n)(2), HBAs will:
    (i) Maintain a depository of up-to-date officially supplied health 
benefits information for availability to all beneficiaries.
    (ii) Provide information and guidance to beneficiaries and generally 
support the medical and dental staff by providing help to eligible 
beneficiaries seeking or obtaining services from USMTFs, civilian 
facilities, VA facilities, Medicare, MEDICAID, and other health 
programs.
    (iii) Assure that when a referral or disengagement is required, 
patients or responsible family members are:
    (A) Fully informed that such action is taken to provide for their 
immediate medical or dental requirements and that the disengagement or 
referral has no bearing on whether care may be available in the naval 
MTF for other aspects of current or other future medical conditions.
    (B) Provided the services and counseling outlined in 
Sec. 728.4(n)(2) or Sec. 728.3(g)(3)(ii), as appropriate, prior to their 
departure from the facility when

[[Page 286]]

such beneficiaries are referred or disengaged because care required is 
beyond the naval MTF's capability. In an emergency, or when the patient 
or sponsor cannot be seen by the HBA prior to leaving, provide these 
benefits as soon thereafter as possible.
    (2) Counseling and assisting CHAMPUS-eligible individuals. HBAs, as 
a minimum, will:
    (i) Explain alternatives available to the patient.
    (ii) If appropriate, explain CHAMPUS as it relates to the particular 
circumstance, including the cost-sharing provisions applicable to the 
patient, allowable charges, provider participation, and claim filing 
procedures. Fully inform the patient or responsible family member that 
when a patient is disengaged for care under CHAMPUS or when cooperative 
care is to be considered for payment under the provisions of 
Sec. 728.4(z) (5) and (6), the naval MTF is not responsible for monetary 
amounts above the CHAMPUS-determined allowable charge or for charges 
CHAMPUS does not allow.
    (iii) Explain why the naval MTF is paying for the supplemental care, 
if appropriate (see Sec. 728.4(z) (3) and (4)), and how the bill will be 
handled. Then:
    (A) Complete a DD 2161, Referral For Civilian Medical Care, marking 
the appropriate source of payment with the concurrence of the naval MTF 
commanding officer or CO's designee.
    (B) If referred for a specified procedure with a consultation report 
to be returned to the naval MTF retaining medical management, annotate 
the DD 2161 in the consultation report section to state this 
requirement. Advise patient or responsible family member to arrange for 
a completed copy of the DD 2161 to be returned to the naval MTF for 
payment, if appropriate, and inclusion in patient's medical record.
    (iv) Brief patient or responsible family member on the use of the DD 
2161 in USMTF payment procedures and CHAMPUS claims processing, as 
appropriate. Provide sufficient copies of DD 2161 and explain that 
CHAMPUS contractors will return claims submitted without a required DD 
2161. Obtain signature of patient or responsible family member on the 
form.
    (v) Arrange for counseling from appropriate sources when the patient 
is eligible for VA, Medicare, or MEDICAID benefits.
    (vi) Serve as liaison between civilian providers and naval MTF on 
administrative matters related to the referral and disengagement 
process.
    (vii) Serve as liaison between naval MTF and cooperative care 
coordinators on matters relating to care provided or recommended by 
naval MTF providers, as appropriate.
    (viii) Explain why the patient is being disengaged and, per 
Sec. 728.4(g)(2), provide a DD 1251, Nonavailability Statement, or DD 
2161, Referral For Civilian Medical Care, as appropriate.
    (o) Immunizations. Administer immunizations per BUMED INST 6230.1H.
    (p) Medical holding companies. Medical holding companies (MHC) have 
been established at certain activities to facilitate handling of 
enlisted convalescent patients whose medical conditions are such that, 
although they cannot be returned to full duty, they can perform light 
duty ashore commensurate with their condition while completing their 
medical care on an outpatient basis. Where feasible, process such 
patients for transfer.
    (q) Notifications. The interests of the Navy, Marine Corps, and DOD 
have been adversely affected by past procedures which emphasized making 
notifications only when an active duty member's condition was classed as 
either seriously ill or injured or classed as very seriously ill or 
injured. However, even temporary disabilities which preclude 
communication with the next of kin have generated understandable concern 
and criticism, especially when emergency hospitalization has resulted. 
Accordingly, naval MTFs will effect procedures to make notifications 
required in Sec. 728.4(q) (2), (3), and (4) upon admission or diagnosis 
of individuals specified. The provisions of Sec. 728.4(q) supplement 
articles 1810520 and 4210100 of the Naval Military Personnel Manual and 
chapter 1 of Marine Corps Order P3040.4B, Marine Corps Casualty 
Procedures Manual; they do not supersede them.
    (1) Privacy Act. The right to privacy of individuals for whom 
hospitalization reports and other notifications are

[[Page 287]]

made will be safeguarded as required by the Privacy Act, implemented in 
the Department of the Navy by SECNAVINST 5211.5C, U.S. Navy Regulations, 
the Manual of the Judge Advocate General, the Marine Corps Casualty 
Procedures Manual, and the Manual of the Medical Department.
    (2) Active duty flag or general officers and retired Marine Corps 
general officers. Upon admission of subject officers, make telephonic 
contact with MEDCOM-33 on AUTOVON 294-1179 or commercial (202) 653-1179 
(after duty hours, contact the command duty officer on AUTOVON 294-1327 
or commercial (202) 653-1327) to provide the following information:
    (i) Initial. Include in the initial report:
    (A) Officer's name, grade, social security number, and designator.
    (B) Duty assignment in ship or station, or other status.
    (C) Date of admission.
    (D) Present condition, stating if serious or very serious.
    (E) Diagnosis, prognosis, and estimated period of hospitalization. 
To prevent possible invasion of privacy, report the diagnosis only in 
International Classification of Diseases--9th Edition (ICD-9-CM) code 
designator.
    (ii) Progress reports. Call frequency and content will be at the 
discretion of the commanding officer. However, promptly report changes 
in condition or status.
    (iii) Termination report. Make a termination of hospitalization 
report to provide appropriate details for informational purposes.
    (iv) Additional commands to apprise. The geographic naval medical 
region serving the hospital and, if different, the one serving the 
officer's command will also be apprised of such admissions.
    (3) Active duty members--(i) Notification of member's command. The 
commanding officer of naval medical treatment facilities has 
responsibility for notifying each member's commanding officer under the 
conditions listed below. Make COMNAVMILPERS COM or CMC, as appropriate, 
information addressees on their respective personnel:
    (A) Direct admissions. Upon direct admission of an active duty 
member, with or without orders regardless of expected length of stay. 
The patient administration department (administrative watch officer 
after hours) is responsible for preparation, per Sec. 728.4(q)(4), and 
release of these messages. If the patient is attached to a local command 
(CO's determination), initial notification may be made telephonically. 
Record the name, grade or rate, and position of the person receiving the 
call at the member's command on the back of the NAVMED 6300/5, Inpatient 
Admission/Disposition Record and include the name and telephone number 
of the MTF's point of contact as given to the patient's command.
    (B) Change in medical condition. Upon becoming aware of any medical 
condition, including pregnancy, which will now or in the foreseeable 
future result in the loss of a member's full duty services in excess of 
72 hours. Transmit this information in a message, prepared per 
Sec. 728.4(q)(4), marked ``Commanding Officer's Eyes Only.''
    (ii) Notification of next of kin (NOK)--(A) Admitted members. As 
part of the admission procedure, encourage all patients to communicate 
expeditiously and regularly with their NOK. When an active duty member's 
incapacity makes timely personal communication impractical, i.e., 
fractures, burns, eye pathology, psychiatric or emotional disorders, 
etc., MTF personnel will initiate the notification process. Do not start 
the process if the patient specifically declines such notification or it 
is clear that the NOK already has knowledge of the admission (commands 
should develop a local form for such patients to sign attesting their 
desire or refusal to have their NOK notified). Once notification has 
been made, the facility will make progress reports, at least weekly, 
until the patient is again able to communicate with the NOK.
    (1) Navy personnel. Upon admission of Navy personnel, effect the 
following notification procedures.
    (i) In the contiguous 48 states. Patient administration department 
personnel will notify the NOK in person, by telephone, telegraph, or by 
other expeditious means. Included are notifications

[[Page 288]]

of the NOK upon arrival of all Navy patients received in the medical 
air-evacuation system.
    (ii) Outside the contiguous 48 states. If the next of kin has 
accompanied the patient on the tour of duty and is in the immediate 
area, hospital personnel will notify the next of kin in person, by 
telephone, telegraph, or by other expeditious means. If the next of kin 
is located in the 48 contiguous United States, use telegraphic means to 
notify COMNAVMILPERSCOM who will provide notification to the NOK.
    (2) Marine Corps personnel. When Marine Corps personnel are 
admitted, effect the following notification procedures.
    (i) In the contiguous 48 states. The commander of the unit or 
activity to which the casualty member is assigned is responsible for 
initiating notification procedures to the NOK of seriously or very 
seriously ill or injured Marine Corps personnel. Patient administration 
department personnel will assure that liaison is established with the 
appropriate command or activity when such personnel are admitted. 
Patient administration personnel will notify the Marine's command by 
telephone and request that cognizance be assumed for in-person initial 
notification of the NOK of Marine Corps patients admitted with an 
incapacity that makes personal and timely communication impractical and 
for those arriving via the medical air-evacuation system. If a member's 
command is unknown or cannot be contacted, inform CMC (MHP-10) on 
AUTOVON 224-1787 or commercial (202) 694-1787.
    (ii) Outside the contiguous 48 states. Make casualty notification 
for Marine Corps personnel hospitalized in naval MTFs outside the 
contiguous 48 States to the individual's command. If the command is 
unknown or not located in close proximity to the MTF, notify CMC (MHP-
10). When initial notification to the individual's command is made via 
message, make CMC (MHP-10) an information addressee.
    (iii) In and outside the United States. In life-threatening 
situations, the Commandant of the Marine Corps desires and encourages 
medical officers to communicate with the next of kin. In other 
circumstances, request that the Marine Corps member communicate with the 
NOK if able. If unable, the medical officer should communicate with the 
NOK after personal notification has been effected.
    (B) Terminally ill patients. As soon as a diagnosis is made and 
confirmed (on inpatients or outpatients) that a Navy member is 
terminally ill, MILPERSMAN 4210100 requires notification of the primary 
and secondary next of kin. Accomplish notification the same as for Navy 
members admitted as seriously or very seriously ill or injured, i.e., by 
priority message to the Commander, Naval Military Personnel Command and 
to the Casualty Assistance Calls/Funeral Honors Support Program 
Coordinator, as appropriate, who has cognizance over the geographical 
area in which the primary and secondary NOK resides (see OPNAVINST 
1770.1). Submit followup reports when appropriate. See MILPERSMAN 
4210100 for further amplification and for information addressees.
    (1) In the contiguous 48 states. Notification responsibility is 
assigned to the USMTF making the diagnosis and to the member's duty 
station if diagnosed in a civilian facility.
    (2) Outside the contiguous 48 states. Notification responsibility is 
assigned to the naval medical facility making the diagnosis. When 
diagnosed in nonnaval facilities or aboard deployed naval vessels, 
notification responsibility belongs to the Commander, Naval Military 
Personnel Command.
    (C) Other uniformed services patients. Establish liaison with other 
uniformed services to assure proper notification upon admission or 
diagnosis of active duty members of other services.
    (D) Nonactive duty patients. At the discretion of individual 
commanding officers, the provisions of Sec. 728.4(q)(3)(ii) on providing 
notification to the NOK may be extended to admissions or diagnosis of 
nonactive duty patients; e.g., admission of dependents of members on 
duty overseas.
    (4) Messages--(i) Content. Phrase contents of messages (and 
telephonic notifications) in lay terms and provide sufficient details 
concerning the patient's condition, prognosis, and diagnosis. Messages 
will also contain the name and telephone number of the facility's

[[Page 289]]

point of contact. When appropriate for addressal, psychiatric and other 
sensitive diagnoses will be related with discretion. When indicated, 
also include specific comment as to whether the presence of the next of 
kin is medically warranted. Note: In making notification to the NOK of 
patients diagnosed as having Acquired Immune Deficiency Syndrome (AIDS) 
or Human Immunodeficiency Virus (HIV), use one of the symptoms of the 
disease as the diagnosis (e.g., pneumonia) rather than ``HIV'', 
``AIDS'', or the diagnostic code for AIDS.
    (ii) Information addressees. Make the commander of the geographic 
naval medical region servicing the member's command and the one 
servicing the hospital, if different, information addressees on all 
messages. For Marine Corps personnel, also include CMC (MHP-10) and the 
appropriate Marine Corps district headquarters as information 
addressees, COMNAVMEDCOM WASHINGTON DC requires information copies of 
messages only when a patient has been placed on the seriously ill or 
injured or very seriously ill or injured list or diagnosed as terminally 
ill.
    (r) Outpatient care. Whenever possible, perform diagnostic 
procedures and provide preoperative and post operative care, surgical 
care, convalescence, and followup observations and treatment on an 
outpatient basis.
    (s) Performance of duties while in an inpatient status. U.S. 
military patients may be assigned duties in and around naval MTFs when 
such duties will be, in the judgement of the attending physician, of a 
therapeutic value. Physical condition, past training, and other acquired 
skills must all be considered before assigning any patient a given task. 
Do not assign patients duties which are not within their capabilities or 
which require more than a very brief period of orientation.
    (t) Prolonged definitive medical care. Prolonged definitive medical 
care in naval MTFs will not be provided for U.S. military patients who 
are unlikely to return to duty. The time at which a patient should be 
processed for disability separation must be determined on an individual 
basis, taking into consideration the interests of the patient as well as 
those of the Government. A long-term patient roster will be maintained 
and updated at least once monthly to enable commanding officers and 
other appropriate staff members to monitor the progress of all patients 
with 30 or more continuous days of hospitalization. Include on the 
roster basic patient identification data (name, grade or rate, register 
number, ward or absent status, clinic service, and whether assigned to a 
medical holding company), projected disposition (date, type, and 
profile), diagnosis, and cumulative hospital days (present facility and 
total).
    (u) Remediable physical defects of active duty members--(1) General. 
When a medical evaluation reveals that a Navy or Marine Corps patient on 
active duty has developed a remediable defect while on active duty, the 
patient will be offered the opportunity of operative repair or other 
appropriate remediable treatment, if medically indicated.
    (2) Refusal of treatment. Per MANMED art. 18-15, when a member 
refuses to submit to recommended therapeutic measures for a remediable 
defect or condition which has interfered with the member's performance 
of duty and following prescribed therapy, the member is expected to be 
fit for full duty, the following procedures will apply:
    (i) Transfer the member to a naval MTF for further evaluation and 
appearance before a medical board. After counseling per MANMED art. 18-
15, any member of the naval service who refuses to submit to recommended 
medical, surgical, dental, or diagnostic measures, other than routine 
treatment for minor or temporary disabilities, will be asked to sign a 
completed NAVMED 6100/4, Medical Board Certificate Relative to 
Counseling on Refusal of Surgery and/or Treatment, attesting to the 
counseling.
    (ii) The board will study all pertinent information, inquire into 
the merits of the individual's refusal to submit to treatment, and 
report the facts with appropriate recommendations.
    (iii) As a general rule, refusal of minor surgery should be 
considered unreasonable in the absence of substantial contraindications. 
Refusal of major surgical operations may be reasonable or unreasonable, 
according to

[[Page 290]]

the circumstances, The age of the patient, previous unsuccessful 
operations, existing physical or mental contraindications, and any 
special risks should all be taken into consideration.
    (iv) Where surgical procedures are involved, the board's report will 
contain answers to the following questions:
    (A) Is surgical treatment required to relieve the incapacity and 
restore the individual to a duty status, and may it be expected to do 
so?
    (B) Is the proposed surgery an established procedure that qualified 
and experienced surgeons ordinarily would recommend and undertake?
    (C) Considering the risks ordinarily associated with surgical 
treatment, the patient's age and general physical condition, and the 
member's reason for refusing treatment, is the refusal reasonable or 
unreasonable? (Fear of surgery or religious scruples may be considered, 
along with all the other evidence, for whatever weight may appear 
appropriate.)
    (v) If a member needing surgery is mentally competent, do not 
perform surgery over the member's protestation.
    (vi) In medical, dental, or diagnostic situations, the board should 
show the need and risk of the recommended procedure(s).
    (vii) If a medical board decides that a diagnostic, medical, dental, 
or surgical procedure is indicated, these findings must be made known to 
the patient. The board's report will show that the patient was afforded 
an opportunity to submit a written statement explaining the grounds for 
refusal. Forward any statement with the board's report. Advise the 
patient that even if the disability originally arose in line of duty, 
its continuance may be attributable to the member's unreasonable refusal 
to cooperate in its correction; and that the continuance of the 
disability might, therefore, result in the member's separation without 
benefits.
    (viii) Also advise the patient that:
    (A) Title 10 U.S.C. 1207 precludes disposition under chapter 61 of 
10 U.S.C. if such a member's disability is due to intentional 
misconduct, willful neglect, or if it was incurred during a period of 
unauthorized absence. A member's refusal to complete a recommended 
therapy regimen or diagnostic procedure may be interpreted as willful 
neglect.
    (B) Benefits from the Veterans Administration will be dependent upon 
a finding that the disability was incurred in line of duty and is not 
due to the member's willful misconduct.
    (ix) The Social Security Act contains special provisions relating to 
benefits for ``disabled'' persons and certain provisions relating to 
persons disabled ``in line of duty'' during service in the Armed Forces. 
In many instances persons deemed to have ``remediable'' disorders have 
been held not ``disabled'' within the meaning of that term as used in 
the statute, and Federal courts have upheld that interpretation. One who 
is deemed unreasonably to have refused to undergo available surgical 
procedures may be deemed both ``not disabled'' and to have incurred the 
condition ``not in the line of duty.''
    (x) Forward the board's report directly to the Central Physical 
Evaluation Board with a copy to MEDCOM-25 except in those instances when 
the convening authority desires referral of the medical board report for 
Departmental review.
    (xi) Per MANMED art. 18-15, a member who refuses medical, dental, or 
surgical treatment for a condition that existed prior to entry into the 
service (EPTE defect), not aggravated by a period of active service but 
which interferes with the performance of duties, should be processed for 
reason of physical disability, convenience to the Government, or 
enlisted in error rather than under the refusal of treatment provisions. 
Procedures are delineated in BUMEDINST 1910.2G and SECNAVINST 1910.4A.
    (3) Other uniformed services patients. When a patient of another 
service is found to have a remediable physical defect developed in the 
military service, refer the matter to the nearest headquarters of the 
service concerned.
    (v) Responsibilities of the commanding officer. In connection with 
the provisions of this part, commanding officers of naval MTFs will:
    (1) Determine which persons within the various categories authorized 
care in a facility will receive treatment in, be admitted to, and be 
discharged from that specific facility.

[[Page 291]]

    (2) Supervise care and treatment, including the employment of 
recognized professional procedures.
    (3) Provide each patient with the best possible care in keeping with 
accepted professional standards and the assigned primary mission of the 
facility.
    (4) Provide for counseling patients and naval MTF providers when 
care required is beyond the naval MTF's capability. This includes:
    (i) Establishing training programs to acquaint naval MTF providers 
and HBAs with the uniformed services' referral for supplemental/
cooperative care or services policy outlined in Sec. 728.4(z).
    (ii) Implementing control measures to ensure that:
    (A) Providers requesting care under the provisions Sec. 728.4(z) are 
qualified to maintain physician case management when required.
    (B) Care requested under the supplemental/cooperative care criteria 
is medically necessary, legitimate, and otherwise permissible under the 
terms of that part of the USHBP under which it will be considered for 
payment.
    (C) Providers explain to patients the reason for a referral and the 
type of referral being made.
    (D) Attending physicians properly refer beneficiaries to the HBA for 
counseling and services per Sec. 728.4(n).
    (E) Uniform criteria are applied in determining cooperative care 
situations without consideration of rate, grade, or uniformed service 
affiliation.
    (F) All DD 2161's are properly completed and approved by the 
commanding officer or designee.
    (G) A copy of the completed DD 2161 is returned to the naval MTF for 
inclusion in the medical record of the patient.
    (w) Sick call. A regularly scheduled assembly of sick and injured 
military personnel established to provide routine medical care. 
Subsequent to examination, personnel medically unfit for duty will be 
admitted to an MTF or placed sick in quarters; personnel not admitted or 
placed sick in quarters will be given such treatment as is deemed 
necessary. When excused from duty for medical reasons which do not 
require hospitalization, military personnel may be authorized to remain 
in quarters, not to exceed 72 hours.
    (x) Sicklist--authorized absence from. Commanding officers of naval 
MTFs may authorize absences of up to 72 hours for dependents and retired 
personnel without formal discharge from the sicklist. When absences are 
authorized in excess of 24 hours, subsistence charges or dependent's 
rate, as applicable, for that period will not be collected and the 
number of reportable occupied bed days will be appropriately reduced. 
Prior to authorizing such absences, the attending physician will advise 
patients of their physical limitations and of any necessary safety 
precautions, and will annotate the clinical record that patients have 
been so advised. For treatment under the Medical Care Recovery Act, make 
reporting consistent with Sec. 728.4(aa).
    (y) Subsisting out. A category in which officer and enlisted 
patients on the sicklist of a naval MTF may be placed when their daily 
presence is not required for treatment nor examination, but who are not 
yet ready for return to duty. As a general rule, patients placed in this 
category should reside in the area of the facility and should be 
examined by the attending physician at least weekly. Enlisted personnel 
in a subsisting out status should be granted commuted rations.
    (1) Granting of subsisting out privileges is one of many disposition 
alternatives; however, recommend that other avenues (medical holding 
company, convalescent leave, limited duty, etc.) be considered before 
granting this privilege.
    (2) Naval MTF patients in a subsisting out status should not be 
confused with those enlisted personnel in a rehabilitation program who 
are granted liberty and are drawing commuted rations, but are required 
to be present at the treating facility during normal working hours. 
These personnel are not subsisting out and must have a bed assigned at 
the naval MTF.
    (3) Naval MTF patients who are required to report for examinations 
or treatment more often than every 48 hours should not be placed in a 
subsisting out status.

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    (z) Supplemental/cooperative care or services--(1) General. When 
such services as defined in Sec. 728.2(cc) are rendered to other than 
CHAMPUS-eligible individuals, the cost thereof is chargeable to 
operation and maintenance funds available for operation of the facility 
requesting care or services. Cooperative care applies to CHAMPUS-
eligible patients receiving inpatient or outpatient care in a USMTF who 
require care or services beyond the capability of that USMTF. The 
following general principles apply to such CHAMPUS-eligible patients:
    (i) Cooperation of uniformed services physicians. USMTF physicians 
are required to cooperate in providing CHAMPUS contractors and OCHAMPUS 
additional medical information. SECNAVINST 5211.5C delineates policies, 
conditions, and procedures that govern safeguarding, using, accessing, 
and disseminating personal information kept in a system of records. 
Providing information to CHAMPUS contractors and OCHAMPUS will be 
governed thereby.
    (ii) Physician case management. Where required by NAVMEDCOMINST 
6320.18 (CHAMPUS Regulation; implementation of), uniformed services 
physicians are required to provide case management (oversight) as would 
an attending or supervising civilian physician.
    (iii) CHAMPUS-authorized providers. CHAMPUS contractors are 
responsible for determining whether a civilian provider is CHAMPUS-
authorized and for providing such information, upon request, to USMTFs.
    (iv) Phychiatric or psychotherapeutic services. If psychiatric care 
is being rendered by a psychiatric or clinical social worker, a 
psychiatric nurse, or a marriage and family counselor, and the uniformed 
services facility has made a determination that it does not have the 
professional staff competent to provide required physician case 
management, the patient may be (partially) disengaged for the 
psychiatric or psychotherapeutic service, yet have the remainder of 
required medical care provided by the naval MTF.
    (v) Forms and documentation. A DD 2161, Referral For Civilian 
Medical Care, will be provided to each patient who is to receive 
supplemental or cooperative care or services. When supplemental care is 
required under the provisions of Sec. 728.4(z) (3) and (4), the 
provisions of Sec. 728.4(z)(3)(iii) apply. When cooperative care or 
services are required under the provisions of Sec. 728.4(z) (5) and (6), 
the provisions of Sec. 728.4(z)(5)(iv) apply.
    (vi) Clarification of unusual circumstances. Commanding officers of 
naval MTFs will submit requests for clarification of unusual 
circumstances to OCHAMPUS or CHAMPUS contractors via the Commander, 
Naval Medical Command (MEDCOM-33) for consideration.
    (2) Care beyond a naval MTF's capability. When, either during 
initial evaluation or during the course of treatment of CHAMPUS-eligible 
beneficiaries, required services are beyond the capability of the naval 
MTF, the commanding officer will arrange for the services from an 
alternate source in the following order, subject to restrictions 
specified. The provisions of Sec. 728.4(z)(2)(i) through (iii) must be 
followed before either supplemental care, authorized in 
Sec. 728.4(z)(4), is considered for payment from Navy Operations and 
Maintenance funds, or cooperative care, authorized in Sec. 728.4(z)(6), 
is to be considered for payment under the terms of CHAMPUS.
    (i) Obtain from another USMTF or other Federal MTF the authorized 
care necessary for continued treatment of the patient within the naval 
MTF, when such action is medically feasible and economically 
advantageous to the Government.
    (ii) When the patient is a retired member or dependent, transfer per 
Sec. 728.4(bb)(3) (i), (ii), (iii), or (iv), in that order. When the 
patient is a dependent of a member of a NATO nation, transfer per 
Sec. 728.4(bb)(4) (i), (ii), or (iii), in that order.
    (iii) With the patient's permission, the naval MTF may contact State 
programs, local health agencies, or health foundations to determine if 
benefits are available.
    (iv) Obtain such supplemental care or services as delineated in 
Sec. 728.4(z)(4) from a civilian source using local operation and 
maintenance funds, or
    (v) Obtain such cooperative care or services as delineated in 
Sec. 728.4(z)(6)

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from a civilian source under the terms of CHAMPUS.
    (3) Operation and maintenance funds. When local operation and 
maintenance funds are to be used to obtain supplemental care or 
services, the following guidelines are applicable:
    (i) Care or services must be legitimate, medically necessary, and 
ordered by a qualified USMTF provider.
    (ii) The naval MTF must make the necessary arrangements for 
obtaining required care or services from a specific source of care.
    (iii) Upon approval of the naval MTF commanding officer or designee, 
provide the patient or sponsor with a properly completed DD 2161, 
Referral For Civilian Medical Care. The DD 2161 will be marked by the 
health benefits advisor or other designated individual to show the naval 
MTF as the source of payment. Forward a copy to the MTF's contracting or 
supply officer who is the point of contact for coordinating obligations 
with the comptroller and thus is responsible for assuring proper 
processing for payment.
    (iv) Authorize care on an inpatient or outpatient basis for the 
minimum period necessary for the civilian provider to perform the 
specific test, procedure, treatment, or consultation requested. Patients 
receiving inpatient services in civilian medical facilities will not be 
counted as an occupied bed in the naval MTF, but will be continued on 
the naval MTF's inpatient census. Continue to charge pay patients the 
USMTF inpatient rate appropriate for their patient category.
    (v) Naval MTF physicians will maintain professional contact with 
civilian providers.
    (4) Care and services authorized. Use local operation and 
maintenance funds to defray the cost of the following when CHAMPUS-
eligible patients are referred to civilian sources for the following 
types of care or services;
    (i) All specialty consultations for the purpose of establishing or 
confirming diagnoses or recommending a course of treatment.
    (ii) All diagnostic tests, diagnostic examinations, and diagnostic 
procedures (including genetic tests and CAT scans), ordered by qualified 
USMTF providers.
    (iii) Prescription drugs and medical supplies.
    (iv) Civilian ambulance service ordered by USMTF personnel.
    (5) CHAMPUS funds. When payment is to be considered under the terms 
of CHAMPUS for cooperative care, even though the beneficiary remains 
under naval MTF control, the following guidelines are applicable:
    (i) Process charges for care under the terms of CHAMPUS.
    (A) If the charge for a covered service or supply is above the 
CHAMPUS-determined reasonable charge, the direct care system will not 
assume any liability on behalf of the patient where a civilian provider 
is concerned, although a USMTF physician recommended or prescribed the 
service or supply.
    (B) Payment consideration for all care or services meeting 
cooperative care criteria will be under the terms of CHAMPUS and payment 
for such care or services will not be made from naval MTF funds. 
Conversely, any care or services meeting naval MTF supplemental care or 
services payment criteria will not be considered under the terms of 
CHAMPUS.
    (ii) Care must be legitimate and otherwise permissible under the 
terms of CHAMPUS and must be ordered by a qualified USMTF provider.
    (iii) Provide assistance to beneficiaries referred or disengaged 
under CHAMPUS. Although USMTF personnel are not authorized to refer 
beneficiaries to a specific civilian provider for care under CHAMPUS, 
health benefits advisors are authorized to contact the cooperative care 
coordinator of the appropriate CHAMPUS contractor for aid in determining 
authorized providers with the capability of rendering required services. 
Such information may be given to beneficiaries. Also encourage 
beneficiaries to obtain required services only from providers willing to 
participate in CHAMPUS. Subject to the availability of space, 
facilities, and capabilities of the staff, USMTFs may provide 
consultative and such other ancillary aid as required by the civilian 
provider selected by the beneficiary.
    (iv) Provide a properly completed DD 2161, Referral For Civilian 
Medical Care, to patients who are referred (versus disengaged) to 
civilian sources

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under the terms of CHAMPUS for cooperative care. (A Nonavailability 
Statement (DD 1251) may also be required. Provide this form when 
required under Sec. 728.33.) The DD 2161 will be marked by the health 
benefits advisor, or other designated individual, to show CHAMPUS as the 
source of payment consideration. All such DD 2161's must be approved by 
the commanding officer or designee. Give the patient sufficient copies 
to ensure a copy of the DD 2161 accompanies each CHAMPUS claim. Advise 
patients that CHAMPUS contractors will return claims received without 
the DD 2161. Also advise patients to arrange for return of a completed 
copy of the DD 2161 to the naval MTF for inclusion in their medical 
record.
    (v) Such patients receiving inpatient or outpatient care or services 
will pay the patient's share of the costs as specified under the terms 
of CHAMPUS for their beneficiary category. Patients receiving inpatient 
services will not be continued on the naval MTF's census and will not be 
charged the USMTF inpatient rate.
    (vi) Certain ancillary services authorized under CHAMPUS require 
physician case management during the course of treatment. USMTF 
physicians will manage the provision of ancillary services by civilian 
providers when such services are obtained under the terms of CHAMPUS. 
Examples include physical therapy, private duty (special) nursing, 
rental or lease/purchase of durable medical equipment, and services 
under the CHAMPUS Program for the Handicapped. USMTF providers 
exercising physician case management responsibility for ancillary 
services under CHAMPUS are subject to the same benefit limitations and 
certification of need requirements applicable to civilian providers 
under the terms of CHAMPUS for the same types of care. USMTF physicians 
exercising physician case management responsibility will maintain 
professional contact with civilian providers of care.
    (6) Care and services authorized. Refer CHAMPUS-eligible patients to 
civilian sources for the following under the terms of CHAMPUS:
    (i) Authorized nondiagnostic medical services such as physical 
therapy, speech therapy, radiation therapy, and private duty (special) 
nursing.
    (ii) Preauthorized (by OCHAMPUS) adjunctive dental care, including 
orthodontia related to surgical correction of cleft palate.
    (iii) Durable medical equipment. (CHAMPUS payment will be considered 
only if the equipment is not available on a loan basis from the naval 
MTF.)
    (iv) Prosthetic devices (limited benefit), orthopedic braces and 
appliances.
    (v) Optical devices (limited benefit).
    (vi) Civilian ambulance service to a USMTF when service is ordered 
by other than direct care personnel.
    (vii) All CHAMPUS Program for the Handicapped care.
    (viii) Psychotherapeutic or psychiatric care.
    (ix) Except for those types of care or services delineated in 
Sec. 728.4(z)(4), all other CHAMPUS authorized medical services not 
available in the naval MTF (for example, neonatal intensive care).
    (aa) Third party liability case. Per chapter 24, section 2403, JAG 
Manual, use the following guidelines to complete and submit a NAVJAG 
5890/12, Hospital and Medical Care, 3rd Party Liability Case, when a 
third party may be liable for the injury or disease being treated:
    (1) Preparation. All naval MTFs will use the front of NAVJAG 5890/12 
to report the value of medical care furnished to any patient when (i) a 
third party may be legally liable for causing the injury or disease, or 
(ii) when a Government claim is possible under workmen's compensation, 
no-fault insurance (see responsibilities for apprising the insurance 
carrier in Sec. 728.4(aa)(5)), uninsured motorist insurance, or under 
medical payments insurance (e.g., in all automobile accident cases). 
Block 4 of this form requires an appended statement of the patient or an 
accident report, if available. Prior to requesting such a statement from 
a patient, the person preparing the front side of NAVJAG 5890/12 will 
show the patient the Privacy Act statement printed at the bottom of the 
form and have the patient sign his or her name beneath the statement.
    (2) Submission--(i) Naval patients. For naval patients, submit the 
completed

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front side of the NAVJAG 5890/12 to the appropriate action JAG designee 
listed in section 2401 of the JAG Manual at the following times:
    (A) Initial. Make an initial submission as soon as practicable after 
a patient is admitted for any period of inpatient care, or if it appears 
that more than 7 outpatient treatments will be furnished. This 
submission should not be delayed pending the accumulation of all 
potential charges from the treating facility. This submission need not 
be based upon an extensive investigation of the cause of the injury or 
disease, but it should include all known facts. Statements by the 
patient, police reports, and similar information (if available), should 
be appended to the form.
    (B) Interim. Make an interim submission every 4 months after the 
initial submission until the patient is transferred or released from the 
facility, or changed from an inpatient status to an outpatient status.
    (C) Final. Make a final submission upon completion of treatment or 
upon transfer of the patient to another facility. The facility to which 
the patient is transferred should be noted on the form. Report control 
symbol NAVJAG 5890-1 is assigned to this report.
    (ii) Nonnaval patients. When care is provided to personnel of 
another Federal agency or department, that agency or department 
generally will assert any claim in behalf of the United States. In such 
instances, submit the NAVJAG 5890/12's (initial, interim, and final) 
directly to the appropriate of the following:
    (A) U.S. Army. Commanding general of the Army or comparable area 
commander in which the incident occurred.
    (B) U.S. Air Force. Staff judge advocate of the Air Force 
installation nearest the location where the initial medical care was 
provided.
    (C) U.S. Coast Guard. Commandant (G-K-2). U.S. Coast Guard, 
Washington, DC 20593-0001.
    (D) Department of Labor. The appropriate Office of Workers' 
Compensation Programs (OWCP).
    (E) Veterans Administration. Director of the Veterans Administration 
hospital responsible for medical care of the patient being provided 
treatment.
    (F) Department of Health and Human Services (DHHS). Regional 
attorney's office in the area were the incident occurred.
    (3) Supplementary documents. An SF 502 should accompany the final 
submission in all cases involving inpatient care. Additionally, when 
Government care exceeds $1,000, inpatient facilities should complete and 
submit the back side of NAVJAG 5890/12 to the action JAG designee. On 
this side of the form, the determination of ``patient status'' may be 
used on local hospital usage.
    (4) Health record entries. Retain copies of all NAVJAG 5890/12's in 
the Health Record of the patient. Immediately notify action JAG 
designees when a patient receives additional treatment subsequent to the 
issuance of a final NAVJAG 5890/12 if the subsequent treatment is 
related to the condition which gave rise to the claim.
    (5) No-fault insurance. When no-fault insurance is or may be 
involved, the naval legal service office at which the JAG designee is 
located is responsible for apprising the insurance carrier that the 
Federal payment for the benefits of this part is secondary to any no-
fault insurance coverage available to the injured individual.
    (6) Additional guidance. Chapter 24 of the JAG Manual and BUMEDINST 
5890.1A contain supplemental information.
    (bb) Transfer of patients--(1) General. Treat all patients at the 
lowest echelon equipped and staffed to provide necessary care; however, 
when transfer to another MTF is considered necessary, use Government 
transportation when available. Accomplish medical regulating per the 
provisions of OPNAVINST 4630.25B and BUMEDINST 6320.1D.
    (2) U.S. military patients. Do not retain U.S. military patients in 
acute care MTFs longer than the minimum time necessary to attain the 
mental or physical state required for return to duty or separation from 
the service. When required care is not available at the facility 
providing area inpatient care, transfer patients to the most readily 
accessible USMTF or designated USTF possessing the required capability. 
Transportation of the patient and a medical attendant or attendants, if 
required, is authorized at

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Government expense. Since the VA is staffed and equipped to provide care 
in the most expeditious manner, follow the administrative procedures 
outlined in NAVMEDCOMINST 6320.12 when:
    (i) A patient has received the maximum benefit of hospitalization in 
a naval MTF but requires a protracted period of nursing home type care. 
The VA can provide this type care or arrange for it from a civilian 
source for individuals so entitled.
    (ii) Determined that there is or may be spinal cord injury 
necessitating immediate medical and psychological attention.
    (iii) A patient has sustained an apparently severe head injury or 
has been blinded necessitating immediate intervention beyond the 
capabilities of naval MTFs.
    (iv) A determination has been made by the Secretary concerned that a 
member on active duty has an alcohol or drug dependency or drug abuse 
disability.
    (3) Retired members and dependents. When a retired member of a 
dependent requires care beyond the capabilities of a facility and a 
transfer is necessary, the commanding officer of that facility may:
    (i) Arrange for transfer to another USMTF or designated USTF located 
in an overlapping inpatient catchment area of the transferring facility 
if either has the required capability.
    (ii) If the patient or sponsor agrees, arrange for transfer to the 
nearest USMTF or designated USTF with required capability, regardless of 
its location.
    (iii) Arrange for transfer of retired members to the Veterans 
Administration MTF nearest the patient's residence.
    (iv) Provide aid in releasing the patient to a civilian provider of 
the patient's choice under the terms of Medicare, if the patient is 
entitled. Beneficiaries entitled to Medicare, Part A, because they are 
65 years of age or older or because of a disability or chronic renal 
disease, lose CHAMPUS eligibility but remain eligible for care in USMTFs 
and designated USTFs.
    (v) If the patient is authorized benefits under CHAMPUS, disengage 
from medical management and issue a Non-availability Statement (DD 1251) 
per the provisions of Sec. 728.33, for care under CHAMPUS. This step 
should only be taken after due consideration is made of the 
supplemental/cooperative care policy addressed in Sec. 728.4(z).
    (4) Dependents of members of NATO nations. When a dependent, as 
defined in Sec. 728.41, of a member of a NATO nation requires care 
beyond the capabilities of a facility and a transfer is necessary, the 
commanding officer of that facility may:
    (i) Arrange for transfer to another USMTF or designated USTF with 
required capability if either is located in an overlapping inpatient 
catchment area of the transferring facility.
    (ii) If the patient or sponsor agrees, arrange for transfer to the 
nearest USMTF or designated USTF with required capability, regardless of 
its location.
    (iii) Effect disposition per Sec. 728.42(d).
    (5) Others--(i) Medical care. Section 34 of title 24, United States 
Code, provides that hospitalization and outpatient services may be 
provided outside the continental limits of the United States and in 
Alaska to officers and employees of any department or agency of the 
Federal Government, to employees of a contractor with the United States 
or the contractor's subcontractor, to dependents of such persons, and in 
emergencies to such other persons as the Secretary of the Navy may 
prescribe: Provided, such services are not otherwise available in 
reasonably accessible and appropriate non-Federal facilities. 
Hospitalization of such persons in a naval MTF is further limited by 24 
U.S.C. 35 to the treatment of acute medical and surgical conditions, 
exclusive of nervous, mental, or contagious diseases, or those requiring 
domiciliary care.
    (ii) Dental care. Section 35 of title 24 provides for space 
available routine dental care, other than dental prosthesis and 
orthodontia, for the categories of individuals enumerated in 
Sec. 728.4(bb)(5)(i): Provided, that such services are not otherwise 
available in reasonably accessible and appropriate non-Federal 
facilities.

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    (iii) Transfer. Accomplish transfer and subsequent treatment of 
individuals in Sec. 728.4(bb)(5)(i) per the provisions of law enumerated 
in Sec. 728.4(bb)(5) (i) and (ii).
    (cc) Verification of patient eligibility--(1) DEERS. (i) The Defense 
Enrollment Eligibility Reporting System (DEERS) was implemented by 
OPNAVINST 1750.2. Where DEERS has been started at naval medical and 
dental treatment facilities, commanding officers will appoint, in 
writing, a DEERS project officer to perform at the base level. The 
project officer's responsibilities and functions include coordinating, 
executing, and maintaining base-level DEERS policies and procedures; 
providing liaison with line activities, base-level personnel project 
officers, and base-level public affairs project officers; meeting and 
helping the contractor field representative on site visits to each 
facility under the project officer's cognizance; and compiling and 
submitting reports required within the command and by higher authority.
    (ii) Commanding officers of afloat and deployable units are 
encouraged to appoint a unit DEERS medical project officer as a liaison 
with the hospital project officer providing services to local medical 
and dental treatment facilities. Distribute notice of such appointments 
to all concerned facilities.
    (iii) When a DEERS project officer has been appointed by a naval MTF 
or DTF, submit a message (report control symbol MED 6320-42) to 
COMNAVMEDCOM, with information copies to appropriate chain of command 
activities, no later than 10 October annually, and situationally when 
changes occur. As a minimum, the report will provide:
    (A) Name of reporting facility. If the project officer is 
responsible for more than one facility, list all such facilities.
    (B) Mailing address including complete zip code (zip + 4) and unit 
identification code (UIC). Include this information for all facilities 
listed in Sec. 728.4(cc)(1)(iii)(A).
    (C) Name, grade, and corps of the DEERS project officer designated.
    (D) Position title within parent facility.
    (E) AUTOVON and commercial telephone numbers.
    (2) DEERS and the identification card. This subpart includes DEERS 
procedures for eligibility verification checks to be used in conjunction 
with the identification card system as a basis for verifying eligibility 
for medical and dental care in USMTFs and uniformed services dental 
treatment facilities (USDTFs). For other than emergency care, certain 
patients are required to have a valid ID card in their possession and, 
under the circumstances described in Sec. 728.4(cc)(3), are also 
required to meet DEERS criteria before treatment or services are 
rendered. Although DEERS and the ID card system are interrelated, there 
will be instances where a beneficiary is in possession of an apparently 
valid ID card and the DEERS verification check shows that eligibility 
has terminated or vice versa. Eligibility verification via an ID card 
does not override an indication of ineligibility in DEERS without some 
other collateral documentation. Dependents (in possession of or without 
ID cards) who undergo DEERS checking will be considered ineligible for 
the reasons stated in Sec. 728.4(cc)(4)(v) (A) through (G). For problem 
resolution, refer dependents of active duty members to the personnel 
support detachment (PSD) servicing the sponsor's command; refer 
retirees, their dependents, and survivors to the local PSD.
    (3) Identification cards and procedures. All individuals, including 
members of uniformed services in uniform, must provide valid 
identification when requesting health benefits. Although the most widely 
recognized and acceptable forms of identification are DD 1173, DD 2, 
Form PHS-1866-1, and Form PHS-1866-3 (Ret), individuals presenting for 
care without such identification may be rendered care upon presentation 
of other identification as outlined in this part. Under the 
circumstances indicated, the following procedures will be followed when 
individuals present without the required ID card.
    (i) Children under 10. Although a DD 1173 (Uniformed Services 
Identification and Privilege Card) may be issued to children under 10 
years of age, under normal circumstances they are not.

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Accordingly, certification and identification of children under 10 years 
of age are the responsibility of the member, retired member, 
accompanying parent, legal guardian, or acting guardian. Either the DD 
1173 issued the spouse of a member or former member or the 
identification card of the member or former member (DD 2, DD 2 (Ret), 
Form PHS-1866-1, or Form PHS-1866-3 (Ret)) is acceptable for the purpose 
of verifying eligibility of a child under 10 years of age.
    (ii) Indefinite expiration. The fact that the word ``indefinite'' 
may appear in the space for the expiration date on a member's card does 
not lessen its acceptability for identification of a child. See 
Sec. 728.4(cc)(3)(iii) for dependent's cards with an indefinite 
expiration date.
    (iii) Expiration date. To be valid, a dependent's DD 1173 must have 
an expiration date. Do not honor a dependent's DD 1173 with an 
expiration date of ``indefinite''. Furthermore, such a card should be 
confiscated, per NAVMILPERSCOMINST 1750.1A, and forwarded to the local 
PSD. The PSD may then forward it to the Commander, Naval Military 
Personnel Command, (NMPC (641D)/Pers 7312), Department of the Navy, 
Washington, DC 20370-5000 for investigation and final disposition. 
Render necessary emergency treatment to such a person. The patient 
administration department must determine such a patient's beneficiary 
status within 30 calendar days and forward such determination to the 
fiscal department. If indicated, billing action for treatment will then 
proceed following NAVMED P-5020.
    (iv) Without cards or with expired cards. (A) When parents or 
parents-in-law (including step-parents and step-parents-in-law) request 
care in naval MTFs or DTFs without a DD 1173 in their possession or with 
expired DD 1173's, render care if they or their sponsor sign a statement 
that the individual requiring care has a valid ID card or that an 
application has been submitted for a renewal DD 1173. In the latter 
instance, include in the statement the allegation that: (1) The 
beneficiary is dependent upon the service member for over one-half of 
his or her support, and (2) that there has been no material change in 
the beneficiary's circumstances since the previous determination of 
dependency and issuance of the expired card. Place the statement in the 
beneficiary's medical record. Inform the patient or sponsor that if 
eligibility is not verified by presentation of a valid ID card to the 
patient administration department within 30 calendar days, the facility 
will initiate action to recoup the cost of care. If indicated, billing 
action for the cost of treatment will then proceed following NAVMED P-
5020.
    (B) When recent accessions, National Guard, reservists, or Reserve 
units are called to active duty for a period greater than 30 days and 
neither the members nor their dependents are at yet in receipt of their 
identification cards, satisfactory collateral identification may be 
accepted in lieu thereof, i.e., official documents such as orders, along 
with a marriage license, or birth certificate which establish the 
individual's status as a dependent of a member called to duty for a 
period which is not specified as 30 days or less. For a child, the 
collateral documentation must include satisfactory evidence that the 
child is within the age limiting criteria outlined in Sec. 728.31(b)(4). 
An eligible dependent's entitlement, under the provisions of this 
subpart, starts on the first day of the sponsor's active service and 
ends as of midnight on the last day of active service.
    (4) DEERS checking. Unless otherwise indicated, all DEERS 
verification procedures will be accomplished in conjunction with 
possession of a valid ID card.
    (i) Prospective DEERS processing--(A) Appointments. To minimize 
difficulties for MTFs, DTFs, and patients, DEERS checks are necessary 
for prospective patients with future appointments made through a central 
or clinic appointment desk. Without advance DEERS checking, patients 
could arrive at a facility with valid ID cards but may fail the DEERS 
check, or may arrive without ID cards but be identified by the DEERS 
check as eligible. Records, including full social security numbers, of 
central and clinic appointment systems will be passed daily to the DEERS 
representative for a prospective DEERS check. This enables

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appointment clerks to notify individuals with appointments of any 
apparent problem with the DEERS or ID card system and refer those with 
problems to appropriate authorities prior to the appointment.
    (B) Prescriptions. Minimum checking requirements of the program 
require prospective DEERS checks on all individuals presenting 
prescriptions of civilian providers (see Sec. 728.4(cc)(4)(iv)(D)).
    (ii) Retrospective DEERS processing. Pass daily logs (for walk-in 
patients, patients presenting in emergencies, or patients replacing last 
minute appointment cancellations) to the DEERS representative for 
retrospective batch processing if necessary for the facility to meet the 
minimum checking requirements in Sec. 728.4(cc)(4)(iv). For DEERS 
processing, the last four digits of a social security number are 
insufficient. Accordingly, when retrospective processing is necessary, 
the full social security number of each patient must be included on 
daily logs.
    (iii) Priorities. With the following initial priorities, conduct 
DEERS eligibility checks using a CRT terminal, single-number dialer 
telephone, or 800 number access provided for the specific purpose of 
DEERS checking to:
    (A) Determine whether a beneficiary is enrolled.
    (B) Verify beneficiary eligibility. Eastablishment of eligibility is 
under the cognizance of personnel support activities and detachments.
    (C) Identify any errors on the data base.
    (iv) Minimum checking requirements. Process patients presenting at 
USMTFs and DTFs in the 50 States for DEERS eligibility verification per 
the following minimum checking requirements.
    (A) Twenty five percent of all outpatient visits.
    (B) One hundred percent of all admissions.
    (C) One hundred percent of all dental visits at all DTFs for other 
than active duty members, retired members, and dependent.
    (1) Active duty members are exempt from DEERS eligibility 
verification checking at DTFs.
    (2) Retired members will receive a DEERS vertification check at the 
initial visit to any DTF and annually thereafter at time of treatment at 
the same facility. To qualify for care as a result of the annually 
performed verification check, the individual performing the eligibility 
check will make a notation to this effect on an SF 603, Health Record--
Dental. Include in the notation the date and result of the check.
    (3) Dependents will have a DEERS eligibility verification check upon 
initial presentation for evaluation or treatment. This check will be 
valid for up to 30 days if, when the check is conducted, the period of 
eligibility requested is 30 days. A 30-day eligibility check may be 
accomplished online or via telephone by filling in or requesting the 
operator to fill in a 30 day period in the requested treatment dates on 
the DEERS eligibility inquiry screen. Each service or clinic is expected 
to establish auditable procedures to trace the date of the last 
eligibility verification on a particular dependent.
    (D) One hundred percent of pharmacy outpatients presenting new 
prescriptions written by a civilian provider. Prospective DEERS checks 
are required for all patients presenting prescriptions of civilian 
providers. A DEERS check is not required upon presentation of a request 
for refill of a prescription of a civilian provider if the original 
prescription was filled by a USMTF within the past 120 days.
    (E) One hundred percent of all individuals requesting treatment 
without a valid ID card if they represent themselves as individuals who 
are eligible to be included in the DEERS data base.
    (v) Ineligibility determinations. When a DEERS verification check is 
performed and eligibility cannot be verified for any of the following 
reasons, deny routine nonemergency care unless the beneficiary meets the 
criteria for a DEERS eligibility override as noted in 
Sec. 728.4(cc)(4)(viii).
    (A) Sponsor not enrolled in DEERS.
    (B) Dependent not enrolled in DEERS.
    (C) ``End eligibility date'' has passed. Each individual in the 
DEERS data

[[Page 300]]

base has a date assigned on which eligibility is scheduled to end.
    (D) Sponsor has separated from active duty and is no longer entitled 
to benefits.
    (E) Spouse has a final divorce decree from sponsor and is not 
entitled to continued eligibility as a former spouse.
    (F) Dependent child is married.
    (G) Dependent becomes an active duty member of a uniformed service. 
(Applies only to CHAMPUS benefits since the former dependent becomes 
entitled to direct care benefits in his or her own right as an active 
duty member and must enroll in DEERS.)
    (vi) Emergency situations. When a physician determines that 
emergency care is necessary, initiate treatment. If admitted after 
emergency treatment has been provided, a retrospective DEERS check is 
required. If an emergency admission or emergency outpatient treatment is 
accomplished for an individual whose proof of eligibility is in 
question, the patient administration department must determine the 
individual's beneficiary status within 30 calendar days of treatment and 
forward such determination to the fiscal department. Eligibility 
verifications will normally consist of presentation of a valid ID card 
along with either a positive DEERS check or a DEERS override as noted in 
Sec. 728.4(cc)(4)(viii). If indicated, billing action for treatment will 
then proceed per NAVMED P-5020.
    (vii) Eligibility verification for nonemergency care. When a 
prospective patient presents without a valid ID card and:
    (A) DEERS does not verify eligibility, deny nonemergency care. Care 
denial will only be accomplished by supervisory personnel designated by 
the commanding officer.
    (B) The individual is on the DEERS data base, do not provide 
nonemergency care until a NAVMED 6320/9, Dependent's Eligibility for 
Medical Care, is signed by the member, patient, patient's parent, or 
patient's legal or acting guardian. This form attests the fact that 
eligibility has been established per appropriate directives and includes 
the reason a valid ID card is not in the prospective patient's 
possession. Apprise the aforementioned responsible individual of the 
provisions on the form NAVMED 6320/9 now requiring presentation of a 
valid ID card within 30 calendar days. Deny treatment or admission in 
physician determined nonemergency situations of persons refusing to sign 
the certification on the NAVMED 6320/9. For persons rendered treatment, 
patient administration department personnel must determine their 
eligibility status within 30 calendar days and forward such 
determination to the fiscal department. If indicated, billing action for 
treatment will then proceed following NAVMED P-5020.
    (viii) DEERS overrides. Possession of an ID card alone does not 
constitute sufficient proof of eligibility when the DEERS check does not 
verify eligibility. What constitutes sufficient proof will be determined 
by the reason the patient failed the DEERS check. For example, groups 
most expected to fail DEERS eligibility checks are recent accession 
members and their dependents, Guard or Reserve members recently 
activated for training periods of greater than 30 days and their 
dependents, and parents and parents-in-law with expired ID cards. Upon 
presentation of a valid ID card, the following are reasons to 
``override'' a DEERS check either showing the individual as ineligible 
or when an individual does not appear in the DEERS data base.
    (A) DD 1172. Patient presents an original of a copy of a DD 1172, 
Application for Uniformed Services Identification and Privilege Card, 
which is also used to enroll beneficiaries in DEERS. If the original is 
used, the personnel support detachment (PSD) furnishing the original 
will list the telephone number of the verifying officer to aid in 
verification. Any copy presented must have an original signature in 
section III; printed name of verifying officer, his or her grade, title, 
and telephone number; and the date the copy was issued. For treatment 
purposes, this override expires 120 days from the date issued.
    (B) Recently issued identification cards--(1) DD 1173. Patient 
presents a recently issued DD 1173, Uniformed Services Identification 
and Privilege Card. Examples are spouses recently married to sponsor, 
newly eligible stepchildren, family members of sponsors

[[Page 301]]

recently entering on active duty for a period greater than 30 days, 
parents or parents-in-law, and unremarried spouses recently determined 
eligible. For treatment purposes, this override expires 120 days from 
the date issued.
    (2) Other ID cards. Patient presents any of the following ID cards 
with a date of issue within the previous 120 days: DD 2, DD 2 (Ret), 
Form PHS 1866-1, or Form PHs 1866-3 (Ret). When these ID cards are used 
for the purpose of verifying eligibility for a child, collateral 
documentation is necessary to ensure the child is actually the alleged 
sponsor's dependent and in determining whether the child is within the 
age limiting criteria outlined in Sec. 728.31(b)(4).
    (C) Active duty orders. Patient or sponsor presents recently issued 
orders to active duty for a period greater than 30 days. Copies of such 
orders may be accepted up to 120 days of their issue date.
    (D) Newborn infants. Newborn infants for a period of 1 year after 
birth provided the sponsor presents a valid ID card.
    (E) Recently expired ID cards. If the DEERS data base shows an 
individual as ineligible due to an ID card that has expired within the 
previous 120 days (shown on the screen as ``Elig with valid ID card''), 
care may be rendered when the patient has a new ID card issued within 
the previous 120 days.
    (F) Sponsor's duty station has an FPO or APO number or sponsor is 
stationed outside the 50 United States. Do not deny care to bona fide 
dependents of sponsors assigned to a duty station outside the 50 United 
States or assigned to a duty station with an FPO or APO address as long 
as the sponsor appears on the DEERS data base. Before initiating 
nonemergency care, request collateral documentation showing relationship 
to sponsor when the relationship is or may be in doubt.
    (G) Survivors. Dependents of deceased sponsors when the deceased 
sponsor failed to enroll in or have his or her dependents enrolled in 
DEERS. This situation will be evidenced when an eligibility check on the 
surviving widow or widower (or other dependent) finds that the sponsor 
does not appear (screen shows ``Sponsor SSN Not Found'') or the 
survivor's name appears as the sponsor but the survivor is not listed 
separately as a dependent. In any of these situations, if the survivor 
has a valid ID card, treat the individual on the first visit and refer 
him or her to the local personnel support detachment for correction of 
the DEERS data base. For second and subsequent visits prior to 
appearance on the DEERS data base, require survivors to present a DD 
1172 issued per Sec. 728.4(cc)(4)(viii)(A).
    (H) Patients not eligible for DEERS enrollment. (1) Secretarial 
designees are not eligible for enrollment in DEERS. Their eligibility 
determination is verified by the letter, on one of the service 
Secretaries' letterhead, of authorization issued.
    (2) When it becomes necessary to make a determination of eligibility 
on other individuals not eligible for entry on the DEERS data base, 
patient administration department personnel will obtain a determination 
from the purported sponsoring agency, if appropriate. When necessary to 
treat or admit a person who cannot otherwise present proof of 
eligibility for care at the expense of the Government, do not deny care 
based only on the fact that the individual is not on the DEERS data 
base. In such instances, follow the procedures in NAVMED P-5020 to 
minimize, to the fullest extent possible, the write-off of uncollectible 
accounts.



       Subpart B--Members of the Uniformed Services on Active Duty



Sec. 728.11  Eligible beneficiaries.

    (a) A member of a uniformed service, as defined in subpart A, who is 
on active duty is entitled to and will be provided medical and dental 
care and adjuncts thereto. For the purpose of this part, the following 
are also considered on active duty:
    (1) Members of the National Guard in active Federal service pursuant 
to a ``call'' under 10 U.S.C. 3500 or 8500.
    (2) Midshipmen of the U.S. Naval Academy.
    (3) Cadets of the U.S. Military Academy.
    (4) Cadets of the Air Force Academy.
    (5) Cadets of the Coast Guard Academy.

[[Page 302]]

    (b) The following categories of personnel who are on active duty are 
entitled to and will be provided medical and dental care and adjuncts 
thereto to the same extent as is provided for active duty members of the 
Regular service (except reservists when on active duty for training as 
delineated in Sec. 728.21).
    (1) Members of the Reserve components.
    (2) Members of the Fleet Reserve.
    (3) Members of the Fleet Marine Corps Reserve.
    (4) Members of the Reserve Officers' Training Corps.
    (5) Members of all officer candidate programs.
    (6) Retired members of the uniformed services.



Sec. 728.12  Extent of care.

    Members who are away from their duty stations or are on duty where 
there is no MTF of their own service may receive care at the nearest 
available Federal MTF (including designated USTFs) with the capability 
to provide required care. Care will be provided without regard to 
whether the condition for which treatment is required was incurred or 
contracted in line of duty.
    (a) All uniformed services active duty members. (1) All eligible 
beneficiaries covered in this subpart are entitled to and will be 
rendered the following treatment and services upon application to a 
naval MTF whose mission includes the rendering of the care required. 
This entitlement provides that when required care and services are 
beyond the capabilities of the facility to which the member applies, the 
commanding officer of that facility will arrange for care from another 
USMTF, designated USTF, or other Federal source or will authorize and 
arrange for direct use of supplemental services and supplies from 
civilian non-Federal sources out of operation and maintenance funds.
    (i) Necessary hospitalization and other medical care.
    (ii) Occupational health services as defined in Sec. 728.2(z).
    (iii) Necessary prosthetic devices, prosthetic dental appliances, 
hearing aids, spectacles, orthopedic footwear, and other orthopedic 
appliances (see subpart H). When these items need repair or replacement 
and the items were not damaged or lost through negligence, repair or 
replacement is authorized at Goverment expense.
    (iv) Routine dental care.
    (2) When a USMTF, with a mission of providing the care required, 
releases the medical management of an active duty member of the Navy, 
Marine Corps, Army, Air Force, or a commissioned corps member of USPHS 
or NOAA, the resulting civilian health care costs will be paid by the 
referring facility.
    (3) The member's uniformed service will be billed for care provided 
by the civilian facility only when the referring MTF is not organized 
nor authorized to provide needed health care (see part 732 of this 
chapter for naval members). Saturation of service or facilities does not 
fall within this exception. When a naval MTF retains medical management, 
the costs of supplemental care obtained from civilian sources is paid 
from funds available to operate the MTF which manages care of the 
patient. When it becomes necessary to refer a USPHS or NOAA commissioned 
corps member to a non-Federal source of care, place a call to the 
Department of Health and Human Services (DHHS), Chief, Patient Care 
Services on (301) 443-1943 or FTS 443-1943 if DHHS is to assume 
financial responsibility. Patient Care Services is the sole source for 
providing authorization for non-Federal care at DHHS expense.
    (b) Maternity episode for active duty female members. A pregnant 
active duty member who lives outside the MHSS inpatient catchment area 
of all USMTFs is permitted to choose whether she wishes to deliver in a 
closer civilian hospital or travel to the USMTF for delivery. If such a 
member chooses to deliver in a naval MTF, makes application, and 
presents at that facility at the time for delivery, the provisions of 
paragraph (a) of this section apply with respect to the furnishing of 
needed care, including routine newborn care (i.e., nursery, newborn 
examination, PKU test, etc.); arrangements for care beyond the 
facility's capabilities; or the expenditure of funds for supplemental 
care or services. Pay expenses

[[Page 303]]

incurred for the infant in USMTFs or civilian facilities (once the 
mother has been admitted to the USMTF) from funds available for care of 
active duty members, unless the infant becomes a patient in his or her 
own right either through an extension of the birthing hospital stay 
because of complications, subsequent transfer to another facility, or 
subsequent admission. If the Government is to assume financial 
responsibility for:
    (1) Care of pregnant members residing within the MHSS inpatient 
catchment area of a uniformed services hospital or in the inpatient 
catchment area of a designated USTF, such members are required to:
    (i) Make application to that facility for care, or
    (ii) Obtain authorization, per part 732 of this chapter, for 
delivery in a civilian facility.
    (2) Non-Federal care of pregnant members residing outside inpatient 
catchment areas of USMTFs and USTFs, the member must request and receive 
authorization per part 732 of this chapter. Part 732 of this chapter 
also provides for cases of precipitious labor necessitating emergency 
care. OPNAVINST 6000.1, Management of Pregnant Servicewomen, contains 
medical-administrative guidelines on management prior to admission and 
after discharge from admission for delivery.
    (c) Reserve and National Guard personnel. In addition to those 
services covered in paragraphs (a) and (b) of this section, Reserve and 
National Guard personnel are authorized the following under conditions 
set forth. (See Sec. 728.25 for additional benefits for National Guard 
personnel.)
    (1) Personnel whose units have an active Army mission of manning 
missile sites are authorized spectacle inserts for protective field 
masks.
    (2) Personnel assigned to units designated for control of civil 
disturbances are authorized spectacle inserts for protective field masks 
M17.



Sec. 728.13  Application for care.

    Possession of an ID card (a green colored DD 2 (with letter suffix 
denoting branch of service), Armed Forces Identification Card; a green 
colored PHS 1866-1, Identification Card; or a red colored DD 2 Res 
(Reservists on active duty for training)) alone does not constitute 
sufficient proof of eligibility. Accordingly, make a DEERS check, per 
Sec. 728.4(cc), before other than emergency care is rendered to the 
extent that may be authorized.



Sec. 728.14  Pay patients.

    Care is provided on a reimbursable basis to: Coast Guard active duty 
officers, enlisted personnel, and academy cadets; Public Health Service 
Commissioned Corps active duty officers; and Commissioned Corps active 
duty officers of the National Oceanic and Atmospheric Administration. 
Accordingly, patient administration personnel will initiate the 
collection action process in subpart J in each instance of inpatient or 
outpatient care provided to these categories of patients.



  Subpart C--Members of Reserve Components, Reserve Officers' Training 
 Corps, Navy and Marine Corps Officer Candidate Programs, and National 
                             Guard Personnel



Sec. 728.21  Navy and Marine Corps reservists.

    (a) Scope. This section applies to reservists, as those terms are 
defined in Sec. 728.2, ordered to active duty for training or inactive 
duty training for 30 days or less. Reservists serving under orders 
specifying duty in excess of 30 days, such as Sea and Air Mariners 
(SAMS) while on initial active duty for training, will be provided care 
as members of the Regular service per subpart B.
    (b) Entitlement. Per 10 U.S.C. 1074a(a), reservists who incur or 
aggravate an injury, illness, or disease in line of duty while on active 
duty for training or inactive duty training for a period of 30 days or 
less, including travel to and from that duty, are entitled to medical 
and dental care appropriate for the treatment of that injury, disease, 
or illness until the resulting disability cannot be materially improved 
by further hospitalization or treatment. Care is authorized for such an 
injury, illness, or disease beyond the period of training to the same 
extent as care is

[[Page 304]]

authorized for members of the Regular service (see subpart B) subject to 
the provisions of Sec. 728.21(e).
    (c) Questionable circumstances. If the circumstances are 
questionable, referral to the OMA or ODA is appropriate. If necessary, 
make referral to the Naval Medical Command (MEDCOM-33 for medical and 
MEDCOM-06 for dental) on determinations of entitlements.
    (d) Line of duty. For the purpose of providing treatment under laws 
entitling reservists to care, an injury, illness, or disease which is 
incurred, aggravated, or becomes manifest while a reservist is employed 
in the performance of active duty for training or inactive duty training 
(including authorized leave, liberty and travel to and from either duty) 
will be considered to have been incurred in line of duty (LOD) unless 
the condition was incurred as a result of the reservist's own misconduct 
or under other circumstances enumerated in JAG Manual, chapter VIII. 
While the LOD investigation is being conducted, such reservists remain 
entitled to care. If the investigation determines that the injury or 
illness was not incurred in line of duty, the civilian humanitarian 
nonindigent rate is applicable if further care is required in naval 
MTFs. (See DOD Military Pay and Allowances Entitlement Manual for 
allowable constructive travel times.)
    (e) Treatment and services authorized. In addition to those services 
delineated above, the following may be rendered under circumstances 
outlined:
    (1) Prosthetic devices, including dental appliances, hearing aids, 
spectacles, and orthopedic appliances that are lost or have become 
damaged during training duty, not through negligence of the individual, 
may be repaired or replaced at Government expense.
    (2) Reservists covered by this subpart may be provided the following 
only if approved by the appropriate OMA or ODA, or by the Commander, 
Naval Medical Command (MEDCOM-33 for medical and MEDCOM-06 for dental) 
prior to initiation of services.
    (i) Treatment for acute exacerbations of conditions that existed 
prior to a reservist's period of training duty. Limit care to that 
necessary for the prevention of pain or undue suffering until the 
patient can reasonably return to control of the member's private 
physician or dentist.
    (A) Remediable physical defects and remediable treatment for other 
conditions.
    (B) Elective surgery.
    (ii) All dental care other than emergency treatment and that 
necessary to correct an injury incurred in the line of duty.
    (f) Authorization for care. (1) Reservists covered by this subpart 
may be provided inpatient or outpatient care during a period of training 
duty without written authorization.
    (2) Except in emergencies or when inpatient care initiated during a 
period of training duty extends beyond such period, reservists will be 
required to furnish written official authorization from their unit 
commanding officer, or higher authority, incident to receiving inpatient 
or outpatient care beyond the period of training duty. The letter of 
authorization will include name, grade or rate, social security number, 
and organization of the reservist; type of training duty being performed 
or that was being performed when the condition manifested; diagnosis (if 
known); and a statement that the condition was incurred in line of duty 
and that the reservist is entitled to care. If the reservist has been 
issued a notice of eligibility (NOE) (subpart I), the NOE may then be 
accepted in lieu of the letter of authorization. When authorization has 
not been obtained beforehand, care may be provided on a civilian 
humanitarian basis (see subpart G) pending final determination of 
eligibility.



Sec. 728.22  Members of other reserve components of the uniformed services.

    (a) Members of reserve components of the Coast Guard may be provided 
care the same as Navy and Marine Corps reservists.
    (b) Members of reserve components of the Army and Air Force may be 
provided care in naval MTFs to the same extent that they are eligible 
for such care in MTFs of their respective services. Consult current Army 
Regulation 40-3, Medical, Dental, and Veterinary Care, or Air Force 
Regulation 168-6,

[[Page 305]]

Persons Authorized Medical Care, as appropriate, for particular 
eligibility requirements or contact the nearest appropriate service 
facility.
    (c) When the service directive requires written authorization, 
obtain such authorization from the reservist's unit commanding officer 
or other appropriate higher authority.
    (d) Naval MTFs in the United States are authorized to conduct 
physical examinations of and administer immunizations to inactive 
reserve Public Health Service commissioned officers upon presentation of 
a written request from the Commissioned Personnel Operations Division, 
OPM/OAM, 5600 Fishers Lane, Rockville, MD 20852.



Sec. 728.23  Reserve Officers' Training Corps (ROTC).

    (a) Eligible beneficiaries. (1) Members of the Senior Reserve 
Officers' Training Corps of the Armed Forces including students enrolled 
in the 4-year Senior ROTC Program or the 2-year Advanced Training Senior 
ROTC Program.
    (2) Designated applicants for membership in the Navy, Army, and Air 
Force Senior ROTC Programs during their initial 6-weeks training period 
(practice cruises or field training).
    (3) Medical, dental, pharmacy, veterinary or science allied to 
medicine students who are commissioned officers of a reserve component 
of an Armed Force who have been admitted to and training in a unit of a 
Senior Reserve Officers' Training Corps.
    (b) Extent of care. (1) While attending or en route to or from field 
training or practice cruises:
    (i) Medical care for a condition incurred without reference to line 
of duty.
    (ii) Routine dental care.
    (iii) Prosthetic devices, including dental appliances, hearing aids, 
spectacles, and orthopedic appliances that have become damaged or lost 
during training duty, not through negligence of the individual, may be 
repaired or replaced as necessary at government expense.
    (iv) Care of remediable physical defects, elective surgery or other 
remediable treatment for conditions that existed prior to a period of 
training duty are not authorized without approval from the appropriate 
OMA or ODA, or from the Commander, Naval Medical Command (MEDCOM-33 for 
medical and MEDCOM-06 for dental).
    (v) Medical examinations and immunizations.
    (vi) ROTC members are authorized continued medical care, including 
hospitalization, upon expiration of their field training or practice 
cruise period, the same as reservists in Sec. 728.21(b) and Sec. 728.22.
    (2) While attending a civilian educational institution:
    (i) Medical care in naval MTFs, including hospitalization, for a 
condition incurred in line of duty while at or traveling to or from a 
military installation for the purpose of undergoing medical or other 
examinations or for purposes of making visits of observation, including 
participation in service-sponsored sports, recreational, and training 
activities.
    (ii) Medical examinations, including hospitalization necessary for 
the proper conduct thereof.
    (iii) Required immunizations, including hospitalization for severe 
reactions therefrom.
    (c) Authorization. The individual's commanding officer will prepare 
a letter of authorization addressed to the commanding officer of the MTF 
concerned.
    (d) ROTC members as beneficiaries of the Office of Workers' 
Compensation Programs (OWCP). Under circumstances described therein, 
render care as outlined in Sec. 728.53 to members of the ROTC as 
beneficiaries of OWCP.



Sec. 728.24  Navy and Marine Corps Officer Candidate Programs.

    Members of the Reserve Officers Candidate Program and Platoon 
Leaders Class are entitled to the same medical and dental benefits as 
are provided members of the Navy and Marine Corps Reserve Components. 
Accordingly, the provisions of Sec. 728.21 are applicable for such 
members. Additionally, candidates for, or persons enrolled in such 
programs are authorized access to naval MTFs for the purpose of 
conducting special physical examination procedures which have been 
requested by the Commander, Naval Medical Command

[[Page 306]]

to determine their physical fitness for appointment to, or continuation 
in such a program. Upon a request from the individual's commanding 
officer, the officer in charge of cognizant Navy and Marine Corps 
recruiting stations, or officer selection officer, naval MTFs are 
authorized to admit such persons when, in the opinion of the cognizant 
officer, hospitalization is necessary for the proper conduct of the 
special physical examinations. Hospitalization should be kept to a 
minimum and treatment other than for humanitarian reasons, except as 
provided in this part, is not authorized.



Sec. 728.25  Army and Air Force National Guard personnel.

    (a) Medical and dental care. Upon presentation of a letter of 
authorization, render care as set forth in AR 40-3 (Medical, Dental, and 
Veterinary Care) and AFR 168-6 (Persons Authorized Medical Care) to 
members of the Army and Air Force National Guard who contract a disease 
or become ill in line of duty while on full-time National Guard duty, 
(including leave and liberty therefrom) or while traveling to or from 
that duty. The authorizing letter will include name, social security 
number, grade, and organization of the member; type and period of duty 
in which engaged (or in which engaged when the injury or illness 
occurred); diagnosis (if known); and will indicate that the injury 
suffered or disease contracted was in line of duty and that the 
individual is entitled to medical or dental care. Limit care to that 
appropriate for the injury. disease, or illness until the resulting 
disability cannot be materially improved by further hospitalization or 
treatment.
    (b) Physical examinations. AR 40-3 and AFR 168-6 also authorize 
physical examinations for National Guard personnel. Accordingly, when 
requested by an Army or Air Force National Guard unit's commanding 
officer, naval MTFs may perform the requested physical examination per 
the appropriate service directive, subject to the availability of space, 
facilities, and the capabilities of the staff.



   Subpart D--Retired Members and Dependents of the Uniformed Services



Sec. 728.31  Eligible beneficiaries and health benefits authorized.

    (a) Retired members of the uniformed services. Retired members, as 
defined in Sec. 728.2(aa), are authorized the same medical and dental 
benefits as active duty members subject to the availability of space and 
facilities, capabilities of the professional staff, and the priorities 
in Sec. 728.3, except that:
    (1) Periodic medical examinations for members on the Temporary 
Disability Retired List, including hospitalization in connection with 
the conduct thereof, will be furnished on the same priority basis as 
care to active duty members.
    (2) When vision correction is required, one pair of standard issue 
spectacles, or one pair of nonstandard spectacles, are authorized when 
required to satisfy patient needs. Two pairs of spectacles may be 
furnished only when professionally determined to be essential by the 
examining officer. Military ophthalmic laboratories will not furnish 
occupational type spectacles, such as aviation, industrial safety, 
double segment, and mask insert, to retired military personnel 
(NAVMEDCOMINST 6810.1 refers).
    (b) Dependents of members of former members. Include:
    (1) The spouse.
    (2) The unremarried widow.
    (3) The unremarried widower.
    (4) An unmarried legitimate child, including an adopted child or a 
stepchild, who either--
    (i) Has not passed his or her 21st birthday;
    (ii) Is incapable of self-support because of a mental or physical 
incapacity that existed before the 21st birthday and is, or was at the 
time of the member's or former member's death, in fact dependent on the 
member for over one-half of his or her support; or
    (iii) Has not passed the 23rd birthday, is enrolled in a full-time 
course of study in an institution of higher learning approved by the 
administering Secretary and is, or was at the time of the member's or 
former member's death, in fact dependent on the member for over one-half 
of his or her support. (If such

[[Page 307]]

a child suffers a disabling illness or injury and is unable to return to 
school, the child remains eligible for benefits until 6 months after the 
disability is removed, or until the 23rd birthday is reached, whichever 
comes first.)
    (5) An unmarried illegitimate child or illegitimate step-child who 
is, or was at the time of sponsor's death, dependent on the sponsor for 
more than one-half of his or her support; residing with or in a home 
provided by the sponsor or the sponsor's spouse, as applicable, and is--
    (i) Under 21 years of age; or
    (ii) Twenty-one years of age or older but incapable of self-support 
because of a mental or physical incapacity that existed prior to the 
individual's 21st birthday; or
    (iii) Twenty-one or 22 years of age and pursuing a full-time course 
of education that is approved per Sec. 728.31(b)(4)(iii).
    (6) A parent or parent-in-law, who is, or was at the time of the 
member's or former member's death, in fact dependent on the member for 
over one-half of such parent's support and residing in the sponsor's 
household.
    (7) An unremarried former spouse of a member or former member who 
does not have medical coverage under an employer-sponsored health plan, 
and who:
    (i) On the date of the final decree of divorce, dissolution, or 
annulment, had been married to the member or former member at least 20 
years during which period the member of former member performed at least 
20 years of service creditable in determining that member's or former 
member's eligibility for retired or retainer pay, or equivalent pay.
    (ii) Had been married to the member of former member at least 20 
years, at least 15 of which were during the period the member of former 
member performed service creditable in determining the member's 
eligibility for retired or retainer pay, or equivalent pay. The former 
spouse's sponsor must have performed at least 20 years of service 
creditable in determining the sponsor's eligibility for retired or 
retainer pay, or equivalent pay.
    (A) Eligibility for such former spouses continue until remarriage if 
the final decree of divorce, dissolution, or annulment occurred before 1 
April 1985.
    (B) Eligibility terminates the later of: Either 2 years from the 
date of the final decree of divorce, dissolution, or annulment; or 1 
April 1988 for such former spouses whose final decree occured on or 
after 1 April 1985.
    (iii) An unremarried former spouse of a deceased member of former 
member who meets the requirements of Sec. 728.31(b)(7)(i) or (ii) may be 
provided medical and dental care as a dependent when the sponsor:
    (A) Died before attaining age 60.
    (B) At the time of death would have been eligible for retired pay 
under 10 U.S.C. 1331-1337 except that the sponsor was under 60 years of 
age; but the former spouse is not eligible for care until the date the 
sponsor would have attained age 60;
    (C) Whether or not the sponsor elected participation in the Survivor 
Benefit Plan of 10 U.S.C. 1447-1455.
    (c) Eligibility factors. Care that may be rendered to all dependents 
in this subpart D is subject to the availability of space and 
facilities, capabilities of the professional staff, and priorities in 
Sec. 728.3. Additionally:
    (1) Members of the uniformed services must be serving under orders 
specifying active duty for more than 30 days before their dependents are 
authorized benefits delineated in Sec. 728.31(d).
    (2) A dependent's eligibility begins on the date the member enters 
on active duty and ends as of midnight of the date the sponsor's period 
of active duty ends for any reason other than retirement or death. 
Dependents lose eligibility as of midnight of the date a member is 
officially place in a deserter status. Eligibility is restored on the 
date a deserter is returned to military control.
    (3) A dependent (other than a former spouse) of a member or former 
member who died before attaining age 60 and at the time of death--
    (i) Would have been eligible for retired pay under chapter 67 of 
title 10 U.S.C. but for the fact that the member of former member was 
under 60 years of age, and

[[Page 308]]

    (ii) Had elected to participate in the Survivor Benefit Plan, may 
not be rendered medical or dental care under the sponsor's entitlement 
until the date on which such member of former member would have attained 
age 60.
    (4) A spouse, not qualifying as a former spouse, who is divorced 
from a member loses eligibility for benefits as of midnight of the date 
the divorce becomes final. This includes loss of maternity care benefits 
for wives who are pregnant at the time a divorce becomes final. A spouse 
does not lose eligibility through issuance of an interlocutory decree of 
divorce even when a property settlement has been approved which releases 
the member from responsibility for the spouse's support. A spouse's 
eligibility depends upon the relationship of the spouse to the member; 
so long as the relationship of husband and wife is not terminated by a 
final divorce or annulment decree, eligibility continues.
    (5) Eligibility of children is not affected by the divorce of 
parents except that a stepchild relationship ceases upon divorce or 
annulment of natural parent and step-parent. A child's eligibility for 
health benefits is not affected by the remarriage of the divorced spouse 
maintaining custody unless the marriage is to an eligible service 
member.
    (6) A stepchild relationship does not cease upon death of the member 
step-parent but does cease if the natural parent subsequently remarries.
    (7) A child of an active duty or retired member, adopted after that 
member's death, retains eligibility for health benefits. However, the 
adoption of a child of a living member (other than by a person whose 
dependents are eligible for health benefits at USMTFs) terminates the 
child's eligibility.
    (8) If a member's child is married before reaching age 21 to a 
person whose dependents are not eligible for health benefits in USMTFs, 
eligibility ceases as of midnight on the date of marriage. Should the 
marriage be terminated, the child again becomes eligible for benefits as 
a dependent child if otherwise eligible.
    (d) Health benefits authorized. (1) Inpatient care including 
services and supplies normally furnished by the MTF.
    (2) Outpatient care and services.
    (3) Drugs (see chapter 21, MANMED).
    (i) Prescriptions written by officers of the Medical and Dental 
Corps, civilian physicians and dentists employed by the Navy, designated 
officers of the Medical Service Corps and Nurse Corps, independent duty 
hospital corpsmen, and others designated to write prescriptions will be 
filled subject to the availability of pharmaceuticals, and consistent 
with control procedures and applicable laws.
    (ii) Prescriptions written by civilian physicians and dentists (non-
Navy employed) for eligible beneficiaries may be filled if:
    (A) The commanding officer or CO's designee determines that pharmacy 
personnel and funds are available.
    (B) The items requested are routinely stocked.
    (C) The prescribed quantity is within limitations established by the 
command.
    (D) The prescriber is in the local area (limits designated by the 
commanding officer).
    (E) The provisions of chapter 21, MANMED are followed when such 
services include the dispensing of controlled substances.
    (4) Treatment on an inpatient or outpatient basis of:
    (i) Medical and surgical conditions.
    (ii) Contagious diseases.
    (iii) Nervous, mental, and chronic conditions.
    (5) Physical examinations, including eye examinations and hearing 
evaluations, and all other tests and procedures necessary for a complete 
physical examination.
    (6) Immunizations.
    (7) Maternity (obstetrical) and infant care, routine care and 
examination of the newborn infant, and well-baby care for mothers and 
infants meeting the eligibility requirements of Sec. 728.31(b). If a 
newborn infant of an unmarried dependent minor daughter becomes a 
patient in his or her own right after discharge of the mother, classify 
the infant as civilian humanitarian nonindigent inasmuch as 
Sec. 728.31(b) does not define the infant as a dependent of the active 
duty or retired service member. Therefore, the minor daughter's sponsor 
(parent) should be counseled

[[Page 309]]

concerning the possibility of Secretarial designee status for the infant 
(see Sec. 728.77).
    (8) Diagnostic tests and services, including laboratory and x-ray 
examinations. Physical therapy, laboratory, x-ray, and other ambulatory 
diagnostic or therapeutic measures requeted by non-Navy employed 
physicians may be provided upon approval of the commanding officer or 
designated department heads. Rendering of such srvices is subordinate to 
and will not unduly interfere with providing inpatient and outpatient 
care to active duty personnel and others whose priority to receive care 
is equal to or greater than such dependents. Ensure that the release of 
any information to non-Navy employed physicians is in consonance with 
applicable provisions of SECNAVINST 5211.5C.
    (9) Family planning services as delineated in SECNAVINST 6300.2A. 
Abortions, at the expense of the Government, may not be performed except 
where the life of the mother would be endangered if the fetus were 
carried to term.
    (10) Dental care worldwide on a space available basis.
    (11) Government ambulance services, surface or air, to transport 
dependents to, from, or between medical facilities when determined by 
the medical officer in charge to be medically necessary.
    (12) Home calls when determined by the medical officer in charge to 
be medically necessary.
    (13) Artificial limbs and artificial eyes, including initial issue, 
fitting, repair, replacement, and adjustment.
    (14) Durable equipment such as wheelchairs, hospital beds, and 
resuscitators may be issued on a loan basis.
    (15) Orthopedic aids, braces, crutches, elastic stockings, walking 
irons, and similar aids.
    (16) Prosthetic devices (other than artificial limbs and eyes), 
hearing aids, orthopedic footwear, and spectacles or contact lenses for 
the correction of ordinary refractive error may not be provided 
dependents. These items, however, may be sold to dependents at cost to 
the Government at facilities outside the United States and at specific 
installations within the United States where adequate civilian 
facilities are unavailable.
    (17) Special lenses (including intraocular lenses) or contact lenses 
for those eye conditions which require these items for complete medical 
or surgical management of the condition.
    (18) One wig if the individual has alopecia resulting from treatment 
of a malignant disease: Provided the individual has not previously 
received a wig at the expense of the United States.
    (e) Dependents of reserves. (1) A dependent, as defined in 
Sec. 728.31(b), of a deceased member of the Naval Reserve, the Fleet 
Reserve, the Marine Corps Reserve, or the Fleet Marine Corps Reserve, 
who--
    (i) Was ordered to active duty or to perform inactive-duty training 
for any period of time.
    (ii) Was disabled in the line of duty from an injury while so 
employed, and
    (iii) Dies from such a specific injury, illness, or disease is 
entitled to the same care as provided for dependents in Sec. 728.31(c).
    (2) The provisions of this subpart D are not intended to authorize 
medical and dental care precluded for dependents of members of Reserve 
components who receive involuntary orders to active duty under 10 U.S.C. 
270b.
    (f) Unauthorized care. In addition to the devices listed in 
Sec. 728.31(d)(16) as unauthorized, dependents are not authorized care 
for elective correction of minor dermatological blemishes and marks or 
minor anatomical anomalies.



Sec. 728.32  Application for care.

    Possession of an ID card alone (DD 2 (Retired), PHS-1866-3 
(Retired), or DD 1173 (Uniformed Services Identification and Privilege 
Card)) does not constitute sufficient proof of eligibility. Accordingly, 
a DEERS check will be instituted per Sec. 728.4 (cc) before medical and 
dental care may be rendered except in emergencies. When required 
inpatient or outpatient care is beyond the capabilities of the naval 
MTF, the provisions of Sec. 728.34 apply. When required inpatient care 
cannot be rendered and a decision is made to disengage a CHAMPUS-
eligible beneficiary, the provisions of Sec. 728.33 apply.

[[Page 310]]



Sec. 728.33  Nonavailability statement (DD 1251).

    (a) General. Per DODINST 6015.19 of 26 Nov. 1984, the following 
guidelines are effective as of 1 Jan. 1985. All previously issued 
Nonavailability Statement guidelines and reporting requirements are 
superseded.
    (b) Applicability. The following provisions are applicable to 
nonemergency inpatient care only. A DD 1251 is not required:
    (1) For emergency care (see paragraph (d)(1)) of this section.
    (2) When the beneficiary has other insurance (including Medicare) 
that provides primary coverage for a covered service.
    (3) For medical services that CHAMPUS clearly does not cover.
    (c) Reasons for issuance. DD 1251's may be issued for only the 
following reasons:
    (1) Proper facilities are not available.
    (2) Professional capability is not available.
    (3) It would be medically inappropriate (as defined in 
Sec. 728.2(u)) to require the beneficiary to use the USMTF and the 
attending physician has specific prior approval from the facility's 
commanding officer or higher authority to make such determination.
    (i) Issuance for this reason should be restricted to those instances 
when denial of the DD 1251 could result in a significant risk to the 
health of any patient requiring any clinical specialty.
    (ii) Issuing authorities have discretionary authority to evaluate 
each situation and issue a DD 1251 under the ``medically inappropriate'' 
reason if:
    (A) In consideration of individual medical needs, personal 
constraints on an individual's ability to get to the USMTF results in an 
unreasonable limitation on that individual's ability to get required 
medical care, and
    (B) The issuing authority determines that obtaining care from a 
civilian source selected by the individual would result in significantly 
less limitations on that individual's ability to get required medical 
care than would result if the individual was required to obtain care 
from a USMTF.
    (C) A beneficiary is in a travel status. The commanding officer of 
the first facility contacted, in either the beneficiary's home catchment 
area or the catchment area where hospital care was obtained, has this 
discretionary authority. Travel in this instance means the beneficiary 
is temporarily on a trip away from his or her permanent residence. The 
reason the patient is traveling, the distance involved in the travel, 
and the time away from the permanent residence is not critical to the 
principle inherent in the policy. The issuing officer to whom the 
request for a Nonavailability Statement is made should reasonably 
determine that the trip was not made, and the civilian care is not (was 
not) obtained, with the primary intent of avoiding use of a USMTF or 
USTF serving the beneficiary's home area.
    (d) Guidelines for issuing--(1) Emergency care. Emergency care 
claims do not require an NAS; however, the nature of the service or care 
must be certified as an emergency by the attending physician, either on 
the claim form or in a separate signed and dated statement. Otherwise, a 
DD 1251 is required by CHAMPUS-eligible beneficiaries who are subject to 
the provisions of this section.
    (2) Emergency maternity care. Unless substantiated by medical 
documentation and review, a maternity admission would not be deemed as 
an emergency since the fact of the pregnancy would have been established 
well in advance of the admission. In such an instance, the beneficiary 
would have had sufficient opportunity to obtain a DD 1251 if required in 
her residence catchment area.
    (3) Newborn infant(s) remaining in hospital after discharge of 
mother. A newborn infant remaining in the hospital continuously after 
discharge of the mother does not require a separate DD 1251 for the 
first 15 days after the mother is discharged. Claims for care beyond 
this 15-day limitation must be accompanied by a valid DD 1251 issued in 
the infant's name. This is due to the fact that the infant becomes a 
patient in his or her own right (the episode of care for the infant 
after discharge of the mother is not considered part of the initial 
reason for admission of the mother (delivery), and is therefore 
considered a separate admission under a different diagnosis).

[[Page 311]]

    (4) Cooperative care program. When a DD 2161, Referral for Civilian 
Medical Care, is issued for inpatient care in connection with the 
Cooperative Care Program (Sec. 728.4(z)(5)(iv)) for care under CHAMPUS, 
a DD 1251 must also be issued.
    (5) Beneficiary responsibilities. Beneficiaries are responsible for 
determining whether an NAS is necessary in the area of their residence 
and for obtaining one, if required, by first seeking nonemergency 
inpatient care in the USMTF or USTF serving the catchment area. 
Beneficiaries cannot avoid this requirement by arranging to be away from 
their residence when nonemergency inpatient care is obtained, e.g., 
staying with a relative or traveling. Individuals requiring an NAS 
because they reside in the inpatient catchment area of a USMTF or USTF 
also require an NAS for nonemergency care received while away from their 
inpatient catchment area.
    (e) Issuing authority. Under the direction of the Commander, Naval 
Medical Command, exercised through commanders of naval geographic 
medical commands, naval MTFs will issue Nonavailability Statements only 
when care required is not available from the naval MTF and the 
beneficiary's place of residence is within the catchment area (as 
defined in Sec. 728.2(d)) of the issuing facility or as otherwise 
directed by the Secretary of Defense. When the facility's inpatient 
catchment area overlaps the inpatient catchment area of one or more 
other USMTFs or USTFs with inpatient capability and the residence of the 
beneficiary is within the same catchment area of one or more other 
USMTFs or USTFs with inpatient capability, the issuing authority will:
    (1) Determine whether required care is available at any other USMTFs 
or USTFs whose inpatient catchment area overlaps the beneficiary's 
residence. If care is available, refer the beneficiary to that facility 
and do not issue a DD 1251.
    (2) Implement measures ensuring that an audit trail related to each 
check and referral is maintained, including the check required before 
retroactive issuance of a DD 1251 as delineated in paragraph (g) of this 
section. When other than written communication is made to ascertain 
capability, make a record in the log required in paragraph (h) of this 
section that ``Telephonic (or other) determination was made on (date) 
that required care was not available at (name of other USMTF(s) or 
USTF(s) contacted)''. The individual ascertaining this information will 
sign this notation.
    (3) Once established that a DD 1251 is authorized and will be 
issued, the following will apply:
    (i) Do not refer patients to a specific source of care.
    (ii) Nonavailability Statements issued at commands outside the 
United States are not valid for care received in facilities located 
within the United States. Statements issued within the United States are 
not valid for care received outside the United States.
    (iii) The issuing authority will:
    (A) If capability permits, prepare a DD 1251 via the automated 
application of DEERS. Where this system is operational, it provides for 
transmitting quarterly reports to the Office of the Assistant Secretary 
of Defense for Health Affairs (OASD(HA)) by electronic means. System 
users should refer to their DEERS/NAS Users Manual for specific guidance 
on the use of the automated system. At activities where the DEER/NAS 
automated system is not operational, prepare each DD 1251 per 
instructions on the reverse of the form. After completion, if authorized 
by the facility CO, the issuing authority will sign the DD 1251. Give a 
copy to the patient for presentation to a participating civilian 
provider, or for submission with the claim of a nonparticipating 
provider. Retain a copy for the issuing activity's records. Retain the 
original for subsequent transmittal to the Naval Medical Data Services 
Center per paragraph (j) of this section.
    (B) Explain to the patient or other responsible family member the 
validity period of the DD 1251 (see paragraph (f) of this section).
    (C) Ensure that beneficiaries are clearly advised of the cost-
sharing provisions of CHAMPUS and of the fact that the issuance of a 
Nonavailability Statement does not imply that CHAMPUS will allow any and 
all costs

[[Page 312]]

incurred through the use of the DD 1251. The issuance of a DD 1251 
indicates only that care requested is not available at a USMTF or USTF 
serving the beneficiary's residence inpatient catchment area.
    (D) Review, with the patient or responsible family member, 
instructions 1 through 6 on the face of the DD 1251 and have the patient 
or responsible family member sign acknowledgement that such review has 
been made and is understood.
    (E) Advise recipients that CHAMPUS fiscal intermediaries may deny 
claims of individuals who are not enrolled in the Defense Enrollment 
Eligibility Reporting System (DEERS).
    (f) Validity period. DD 1251's issued for:
    (1) Other than maternity care are valid for a hospital admission 
occurring within 30 days of issuance and remain valid from the date of 
admission until 15 days after discharge from the facility rendering 
inpatient care. This allows for any follow-on treatment related directly 
to the original admission.
    (2) Maternity episodes are valid if outpatient of inpatient 
treatment related to the pregnancy is initiated within 30 days of its 
issuance. They remain valid for care of the mother through termination 
of the pregnancy and for 42 days thereafter to allow for postnatal care 
to be included in the maternity episode. (See paragraph (d)(3) of this 
section for the validity period of DD 1251's for infants remaining after 
discharge of the mother.)
    (g) Retroactive issuance. Issue Nonavailability Statements 
retroactively only if required care could not have been rendered in a 
USMTF or USTF as specified in paragraph (e) of this section at the time 
services were rendered in the civilian sector. At the time a retroactive 
issuance is requested, the facility receiving the request will determine 
whether capability existed at the USMTF or USTF serving the inpatient 
catchment area wherein the beneficiary resides (resided) or at any of 
the facilities in the overlapping area described in paragraph (e) of 
this section. While the date of service will be recorded on the DD 1251, 
send the retained original to the Naval Medical Data Services Center 
along with others issued during the week of issuance (paragraph (j) of 
this section refers).
    (h) Annotating DD 1251's. Before issuance, annotate each DD 1251 per 
the instructions for completion on the reverse of the form. DD 1251's 
issued under the CO's discretionary authority for the ``medically 
inappropriate reason (paragraph (c)(3)(ii) of this section) will be 
annotated in the remarks section documenting the special circumstances 
necessitating issuance, the name and location of the source of care 
selected by the beneficiary, and approximate distance from the source 
selected to the nearest USMTF or USTF with capability (see instruction 
number 2 on the reverse of the DD 1251). Establish and maintain a 
consecutively numbered log to include for each individual to whom a DD 
1251 is issued:
    (1) Patient's name and identifying data.
    (2) The facility unique NAS number (block number 1 on the DD 1251).
    (i) Appeal procedures. Beneficiaries may appeal the denial of their 
request for a DD 1251. This procedure consists of four levels within 
Navy, any one of which may terminate action and order issuance of a 
Nonavailability Statement if deemed warranted:
    (1) The first level is the chief of service, or director of clinical 
services if the chief of service is the cognizant authority denying the 
beneficiary's original request.
    (2) The second level is the commanding officer of the naval MTF 
denying the issuance. Where the appeal is denied and denial is upheld at 
the commanding officer's level, inform beneficiaries that their appeal 
may be forwarded to the geographic commander having jurisdictional 
authority.
    (3) The third level is the appropriate geographic commander, if the 
appeal is denied at this level, inform beneficiaries that their appeal 
may be forwarded to the Commander, Naval Medical Command, Washington, DC 
20372-5120.
    (4) The Commander, Naval Medical Command, the fourth level of 
appeal, will evaluate all documentation submitted and arrive at a 
decision. The beneficiary will be notified in writing

[[Page 313]]

of this decision and the reasons therefor.
    (j) Data collection and reporting. Do not issue the original of each 
DD 1251 prepared at activities where the DEER/NAS automated system is 
not operational. Send the retained originals to the Commanding Officer, 
Naval Medical Data Services Center (Code-03), Bethesda, MD 20814-5066 
for reporting under report control symbol DD-HA (Q) 1463(6320).



Sec. 728.34  Care beyond the capabilities of a naval MTF.

    When either during initial evaluation or during the course of 
treatment of an individual authorized care in this subpart, a 
determination is made that required care or services are beyond the 
capability of the naval MTF, the provisions of Sec. 728.4(z)(2) apply.



Sec. 728.35  Coordination of benefits--third party payers.

    Title 10 U.S.C. 1095 directs the services to collect from third-
party payers the reasonable costs of inpatient hospital care incurred by 
the United States on behalf of retirees and dependents. Naval hospital 
collection agents have been provided instructions relative to this issue 
and are responsible for initiating claims to third-party payers for the 
cost of such care. Admission office personnel must obtain insurance, 
medical service, or health plan (third-party payer) information from 
retirees and dependents upon admission and forward this information to 
the collection agent.



Sec. 728.36  Pay patients.

    Care is provided on a reimbursable basis to retired Coast Guard 
officers and enlisted personnel, retired Public Health Service 
Commissioned Corps officers, retired Commissioned Corps officers of the 
National Oceanic and Atmospheric Administration, and to the dependents 
of such personnel. Accordingly, patient administration personnel will 
follow the provisions of subpart J to initiate the collection action 
process when inpatient or outpatient care is provided to these 
categories of beneficiaries.



  Subpart E--Members of Foreign Military Services and Their Dependents



Sec. 728.41  General provisions.

    (a) Dependent. As used in this subpart, the term ``dependent'' 
denotes a person who bears one of the following relationships to his or 
her sponsor:
    (1) A wife.
    (2) A husband if dependent on his sponsor for more than one-half of 
his support.
    (3) An unmarried legitimate child, including an adopted or stepchild 
who is dependent on the sponsor for over one-half of his or her support 
and who either:
    (i) Has not passed the 21st birthday; or
    (ii) Is incapable of self-support due to a physical or mental 
incapacity that existed prior to reaching the age of 21; or
    (iii) Has not passed the 23rd birthday and is enrolled in a full-
time course of study in an accredited institution of higher learning.
    (b) Transfer to naval MTFs in the United States. Do not transfer 
personnel covered in this subpart to the United States solely for the 
purpose of obtaining medical care at naval MTFs. Consideration may be 
given however, in special circumstances following laws of humanity or 
principles of international courtesy. Transfer to naval MTFs in the 
United States of such persons located outside the United States requires 
approval of the Secretary of the Navy. Naval commands, therefore, should 
not commit the Navy by a promise of treatment in the United States. 
Approval generally will not be granted for treatment of those who suffer 
from incurable afflictions, who require excessive nursing or custodial 
care, or those who have adequate facilities in their own country. When a 
request is received concerning transfer for treatment at a naval MTF in 
the United States, the following procedures apply:
    (1) Forward the request to the Chief of Naval Operations (OP-61), 
with a copy to the Commander, Naval Medical Command, Washington, DC 
20372-5120 for administrative processing. Include:

[[Page 314]]

    (i) Patient's full name and grade or rate (if dependent, the 
sponsor's name and grade or rate also).
    (ii) Country of which a citizen.
    (iii) Results of coordination with the chief of the diplomatic 
mission of the country involved.
    (iv) Medical report giving the history, diagnosis, clinical 
findings, results of diagnostic tests and procedures, and all other 
pertinent medical information.
    (v) Availability or lack thereof of professional skills and adequacy 
of facilities for treatment in the member's own country.
    (vi) Who will assume financial responsibility for costs of 
hospitalization and travel.
    (2) The Chief of Naval Operations (OP-61) will, if appropriate, 
obtain State Department clearance and guidance and advise the Secretary 
of the Navy accordingly. The Commander, Naval Medical Command will 
furnish the Chief of Naval Operations information and recommendations 
relative to the medical aspects and the name of the naval MTF with the 
capability to provide required care. If approved, the Chief of Naval 
Operations will furnish, through the chain of command, the commanding 
officer of the designated naval MTF authorization for admission of the 
beneficiary for treatment.



Sec. 728.42  NATO.

    (a) NATO SOFA nations. Belgium, Canada, Denmark, Federal Republic of 
Germany, France, Greece, Iceland, Italy, Luxembourg, the Netherlands, 
Norway, Portugal, Spain, Turkey, the United Kingdom, and the United 
States.
    (b) Beneficiaries. The following personnel are beneficiaries under 
the conditions set forth.
    (1) Members of NATO military services and their dependents. Military 
personnel of NATO nations, who, in connection with their official 
duties, are stationed in or passing through the United States, and their 
dependents residing in the United States with the sponsor may be 
provided care in naval MTFs to the same extent and under the same 
conditions as comparable U.S. uniformed services personnel and their 
dependents. Accordingly, the provisions of Sec. 728.12 are applicable to 
military personnel and Sec. 728.31(d) through Sec. 728.34 to 
accompanying dependents.
    (2) Military ships and aircraft personnel. Crew and passengers of 
visiting military aircraft and crews of ships of NATO nations which land 
or come into port at NATO or U.S. military airfields or ports within 
NATO countries.
    (3) NATO liaison officers. In overseas areas, liaison officers from 
NATO Army Forces or members of a liaison detachment from such a Force.
    (c) Application for care. Military personnel of NATO nations 
stationed in the United States and their dependents will present valid 
Uniformed Services Identification and Privilege Cards (DD 1173) when 
applying for care. For other eligible persons passing through the United 
States on official business and those enumerated in paragraph (b) (2) 
and (3) of this section, orders or other official identification may be 
accepted in lieu of the DD 1173.
    (d) Disposition. When it becomes necessary to return individuals to 
their home country for medical reasons, make immediate notification to 
the NATO unit sponsoring the member or dependent's sponsor. Include all 
pertinent information regarding the physical and mental condition of the 
individual concerned. Following are details of agreements among the 
Armed Forces of NATO, CENTO, and SEATO Nations on procedures for 
disposition of allied country patients by DOD medical installations.
    (1) Transfer of patients. (i) The patient's medical welfare must be 
the paramount consideration. When deciding upon transfer of a patient, 
give due consideration to any increased medical hazard which the 
transfer might involve.
    (ii) Arrangements for disposition of patients should be capable of 
being implemented by existing organizations. Consequently, no new 
establishment should be required specially for dealing with the 
transferring of allied casualties.
    (iii) Transfer patients to their own national organization at the 
earliest practicable opportunity consistent with the observance of 
principles established in paragraph (d)(1) (i) and (ii) of

[[Page 315]]

this section and under any of the following conditions:
    (A) When a medical facility of their own nation is within reasonable 
proximity of the facility of the holding nation.
    (B) When the patient is determined to require hospitalization in 
excess of 30 days.
    (C) Where there is any question as to the ability of the patient to 
perform duty upon release from the MTF.
    (iv) The decision as to whether a patient, other than one requiring 
transfer under paragraph (d)(1)(iii) of this section, is fit for release 
from the MTF is the responsibility of the facility's commanding officer.
    (v) All clinical documents, to include x-rays, relating to the 
patient will accompany such patients on transfer to their own national 
organization.
    (vi) The decision of suitability for transfer and the arrangements 
for transfer will be the responsibility of the holding nation.
    (vii) Final transfer channels should be arranged by local liaison 
before actual movement.
    (viii) Patients not suitable for transfer to their own national 
organization must be dealt with for treatment and disposition purposes 
as patients of the holding nation until they are transferred, i.e., they 
will be dealth with in military hospitals, military medical 
installations, or in civilian hospitals that are part of the military 
medical evacuation system of the holding nation.
    (2) Classification of patients. Different channels for disposition 
will be required for the following two types of patients:
    (i) Patients not requiring admission. Patients not requiring 
admission to an MTF will be returned to their nearest national unit 
under arrangements to be made locally.
    (ii) Patients admitted to medical installations. All such patients 
will be dealth with per paragraph (d)(1) of this section.
    (e) Care authorized outside the 48 contiguous United States. Major 
overseas commanders may authorize care in naval MTFs subject to the 
availability of space, facilities, and the capabilities of the 
professional staff in emergency situations only, Provided, the required 
care cannot reasonably be obtained in medical facilities of the host 
country or in facilities of the patient's own country, or if such 
facilities are inadequate. Provide hospitalization only for acute 
medical and surgical conditions, exclusive of nervous, mental, or 
contagious diseases or those requiring domiciliary care. Administer 
dental treatment only as an adjunct to authorized inpatient care. Do not 
include dental prostheses or orthodontia.



Sec. 728.43  Members of other foreign military services and their dependents.

    (a) Foreign military service members. For the purpose of 
Sec. 728.43, members of foreign military services include only:
    (1) Military personnel carried on the current Diplomatic List (Blue) 
or on the List of Employees of Diplomatic Missions (White) published by 
the Department of State.
    (2) Military personnel assigned or attached to United States 
military units for duty; military personnel on foreign military supply 
missions accredited to and recognized by one of the military 
departments; and military personnel on duty in the United States at the 
invitation of the Secretary of Defense or one of the military 
departments. For the purpose of Sec. 728.43, members of foreign Security 
Assistance Training Programs (SATP) and Foreign Military Sales (FMS) are 
not included (see Sec. 728.44).
    (3) Foreign military personnel accredited to joint United States 
defense boards or commissions when stationed in the United States.
    (4) Foreign military personnel covered in agreements entered into by 
the Secretary of State, Secretary of Defense, or one of the military 
departments to include, but not limited to, United Nations forces 
personnel of foreign governments exclusive of NATO nations.
    (b) Care authorized in the United States. Military personnel of 
foreign nations not covered in Sec. 728.42 and their dependents residing 
in the United States with the sponsor may be routinely provided only 
outpatient medical care in naval MTFs on a reimbursable basis. Provided, 
the sponsor is in the United States in a status officially

[[Page 316]]

recognized by an agency of the Department of Defense. Dental care and 
hospitalization for such members and their dependents are limited to 
emergencies. All outpatient care and hospitalization in emergencies are 
subject to reimbursement as outlined in Sec. 728.46.
    (c) Application for care. All personnel covered by Sec. 728.43 will 
present orders or other official U.S. identification verifying their 
status when applying for care.
    (d) Disposition. When it becomes necessary to return individuals 
covered by Sec. 728.43 to their home country for medical reasons, make 
immediate notification to the sponsoring unit of the patient or 
patient's sponsor with a copy to the Chief of Naval Operations (OP-61). 
Include all pertinent information regarding the physical and mental 
condition of the individual concerned and full identification, 
diagnosis, prognosis, estimated period of hospitalization, and 
recommended disposition. Additionally, the provisions of Sec. 728.42(d) 
(1) and (2) apply.
    (e) Care authorized outside the 48 contiguous United States. Major 
overseas commanders may authorize care in naval MTFs subject to the 
availability of space, facilities, and the capabilities of the 
professional staff in emergency situations only. Provided, the required 
care cannot reasonably be obtained in medical facilities of the host 
country or in facilities of the patient's own country, or if such 
facilities are inadequate. Provide hospitalization only for acute 
medical and surgical conditions, exclusive of nervous, mental, or 
contagious diseases or those requiring domiciliary care. Administer 
dental treatment only as an adjunct to authorized inpatient care. Do not 
include dental prostheses or orthodontia.



Sec. 728.44  Members of security assistance training programs, foreign military sales, and their ITO authorized dependents.

    (a) Policies--(1) Invitational travel orders screening. Prior to 
determining the levels of care authorized or the government or person 
responsible for payment for care rendered, carefully screen ITOs to 
detect variations applicable to certain foreign countries. For example, 
unless orders state differently, Kuwait has a civilian health plan to 
cover medical expenses of their trainees; trainees from the Federal 
Republic of Germany are personally responsible for reimbursing for 
inpatient care provided to their dependents; and all inpatient medical 
services for trainees from France and their dependents are to be borne 
by the individual trainee.
    (2) Elective and definitive surgery. The overall policy with respect 
to elective and definitive surgery for Security Assistance Training 
Program (SATP), Foreign Military Sales (FMS) personnel and their 
dependents is that conservatism will at all times prevail, except bona 
fide emergency situations which might threaten the life or health of an 
individual. Generally, elective care is not authorized nor should be 
started. However, when a commanding officer of a naval MTF considers 
such care necessary to the early resumption and completion of training, 
submit the complete facts to the Chief of Naval Operations (OP-63) for 
approval. Include the patient's name (sponsor's also if patient is an 
ITO authorized dependent), grade or rate, country of origin, diagnosis, 
type of elective care being sought, and prognosis.
    (3) Prior to entering training. Upon arrival of an SATP or FMS 
trainee in the United States or at an overseas training site, it is 
discovered that the trainee cannot qualify for training by reason of a 
physical or mental condition which will require a significant amount of 
treatment before entering or completing training, return such trainees 
to their home country immediately or as soon thereafter as travel 
permits.
    (4) After entering training. When trainees require hospitalization 
or are disabled after entering a course of training, return them to 
their home country as soon as practicable when, in the opinion of the 
commanding officer of the medical facility, hospitalization or 
disability will prevent training for a period in excess of 30 days. 
Forward a copy of the patient's clinical records with the patient. When 
a trainee is accepted for treatment that is not expected to exceed 30 
days, notify the commanding officer of the training acvitity. Further, 
when a trainee is

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scheduled for consecutive training sessions convening prior to the 
expected data of release from a naval MTF, make the next scheduled 
training activity an information addressee. Upon release from the MTF, 
direct such trainees to resume training.
    (b) Care authorized. Generally, all SATP and FMS personnel and their 
ITO authorized dependents are entitled to care to the same extent. 
However, certain agreements require that they be charged differently and 
that certain exclusions apply.
    (1) NATO members and their ITO authorized dependents--(i) Foreign 
military sales (FMS). Subject to reimbursement per Sec. 728.46, FMS 
personnel of NATO nations who are in the United States or at U.S. Armed 
Forces installations outside the United States and their accompanying 
ITO authorized dependents will be provided medical and dental care in 
naval MTFs to the same extent and under the same conditions as 
comparable United States military personnel and their dependents except 
that:
    (A) Dependent dental care is not authorized.
    (B) Dependents are not authorized cooperative care under CHAMPUS.
    (ii) International military education and training (IMET). Subject 
to reimbursement for inpatient care at the appropriate IMET rate for 
members or at the full reimbursement rate for dependents, IMET personnel 
of NATO nations who are in the United States or at U.S. Armed Forces 
installations outside the United States and accompanying dependents will 
be provided medical and dental care in naval MTFs to the same extent and 
under the same conditions as comparable United States military personnel 
and their dependents except that:
    (A) Dependent dental care is not authorized.
    (B) Dependents are not authorized cooperative care under CHAMPUS.
    (2) Other foreign members and ITO authorized dependents--(i) Foreign 
military sales. Subject to reimbursement by the trainee or the trainee's 
government for both inpatient and outpatient care at the full 
reimbursement rate, FMS personnel of non-NATO nations and ITO authorized 
accompanying dependents may be provided medical and dental care on a 
space available basis when facilities and staffing permit except that:
    (A) Prosthetic devices, hearing aids, orthopedic footwear, and 
similar adjuncts are not authorized.
    (B) Spectacles may be furnished when required to enable trainees to 
perform their assigned duties, Provided the required spectacles are not 
available through civilian sources.
    (C) Dental care is limited to emergency situations for the military 
member and is not authorized for dependents.
    (D) Dependents are not authorized cooperative care under CHAMPUS.
    (ii) International military education and training. Subject to 
reimbursement for both inpatient and outpatient care at the appropriate 
rates for members and dependents, IMET personnel of non-NATO nations may 
be provided medical and dental care on a space available basis when 
facilities and staffing permit except that:
    (A) Prosthetic devices, hearing aids, orthopedic footwear, and 
similar adjuncts are not authorized.
    (B) spectacles may be furnished when required to enable trainees to 
perform their assigned duties, Provided the required spectacles are not 
available through civilian sources.
    (C) Dental care is limited to emergency situations for military 
members and is not authorized for dependents.
    (D) Dependents are not authorized cooperative care under CHAMPUS.
    (c) Application for care. Trainees and accompanying dependents will 
present official U.S. identification or orders verifying their status 
when applying for care. If any doubt exists as to the extent of care 
authorized, ITOs should be screened (see paragraph (a)(1) of this 
section).
    (d) Notification. When trainees require hospitalization as a result 
of illness or injury prior to or after entering training, the training 
activity (the hospital if patient has been admitted) will make a message 
report through the normal chain of command to the Chief of Naval 
Operations (OP-63) with information copies to MAAG, COMNAV MEDCOM, Navy 
International Logistics Control Office (NAVIL CO), Unified Commander, 
the affected office, and the

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foreign naval attache concerned. Include details of the incident, 
estimated period of hospitalization, physical or mental condition of the 
patient, and diagnosis. For further amplification, see OPNAVINST 4950.1H 
and NAVCOMPTMAN 032103.



Sec. 728.45  Civilian components (employees of foreign military services) and their dependents.

    (a) Care authorized. Beneficiaries covered in this section are only 
authorized care in naval MTFs in the United States and then only 
civilian humanitarian emergency care on a reimbursable basis (subpart J) 
rendered at installations which have been designated as remote by the 
Secretary of the Navy. Make arrangements to transfer such beneficiaries 
to a civilian facility as soon as their condition permits.
    (b) Potential beneficiaries--(1) NATO. Civilian employee personnel 
(and their dependents residing with them) accompanying military 
personnel in Sec. 728.42(b)(1), Provided, the beneficiaries are not 
stateless persons nor nationals of any state which is not a party to the 
North Atlantic Treaty, nor nationals of, nor ordinarily residents in the 
United States.
    (2) Others. Civilian personnel not covered in Sec. 728.45(b)(1) (and 
their dependents residing with them) accompanying personnel of foreign 
nations on duty in the United States at the invitation of the Department 
of Defense or one of the military departments.
    (c) Application for care. Personnel covered by the provisions of 
Sec. 728.45 will present orders or other official U.S. identification 
verifying their status when applying for care.



Sec. 728.46  Charges and collection.

    (a) Policy. Pub. L. 99-591, section 9029, contains provisions 
prohibiting the expenditure of appropriated funds ``. . . to provide 
medical care in the United States on an inpatient basis to foreign 
military and diplomatic personnel or their dependents unless the 
Department of Defense is reimbursed for the costs of providing such 
care: Provided, That reimbursements . . . shall be credited to the 
appropriations against which charges have been made for providing such 
care, except that inpatient medical care may be provided in the United 
States without cost to military personnel and their dependents from a 
foreign country if comparable care is made available to a comparable 
number of United States military personnel in that foreign country.''
    (b) Canadian agreement. On 3 November 1986, the Department of 
National Defence of Canada and DOD concluded a comparable care agreement 
that covers certain military personnel. The agreement stipulates that:
    (1) DOD will, upon request, provide Canadian Forces members the same 
range of medical and dental services under the same conditions and to 
the same extent as such services are provided comparable United States 
military personnel. Inasmuch as the agreement covers only certain 
military personnel, the reimbursement provisions of Pub. L. 99-591 
remain in effect for inpatient care provided to Canadian diplomatic 
personnel, Canadian dependents, and Canadian foreign military sales 
trainees who receive care in the United States. Further:
    (2) Permanently stationed Canadian units with established strengths 
of more than 150 personnel are expected to have integral health care 
capability. Any health care services which members of such units receive 
from the host nation will be provided on a full reimbursement basis. 
Groups of larger than 150 personnel, which conduct collective training 
in the United States, are expected to deploy with an organic unit 
medical capability. Naval MTFs may be requested to provide services, 
beyond the capability of the organic unit, at full reimbursement rates.
    (c) Procedures. (1) Until otherwise directed, naval MTFs in the 50 
United States will collect the full reimbursement rate (FRR) for 
inpatient care provided to all foreign military personnel (except 
Canadians covered by the comparable care agreement in Sec. 728.46(b), 
and military personnel connected with a Foreign Military Sales (FMS) 
case number), foreign diplomatic personnel, and to the dependents of 
both whether they are in the United States on official duty or for other 
reasons.
    (2) Subpart J contains procedures for the initiation of collection 
action when

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inpatient care is rendered to beneficiaries from NATO nations and when 
either inpatient or outpatient care is rendered to all others enumerated 
in this part. Chapter II, part 4 of NAVMED P-5020 is applicable to the 
collection of and accounting for such charges.



           Subpart F--Beneficiaries of Other Federal Agencies



Sec. 728.51  General provisions--the ``Economy Act.''

    The Economy Act, 31 U.S.C. 1535, generally permits agency heads, or 
heads of major organizational units of agencies, to procure goods and 
services from other agencies or within their own agency so long as funds 
for procurement are available, the order is in the best interest of the 
Government, the source from which the goods or services are ordered can 
produce them or obtain them by contract, and the internal or inter-
agency procurement is more convenient, or less expensive, than 
commercial procurement. Provisions of the Economy Act apply to requests 
from other Federal agencies for medical and dental care for 
beneficiaries for whom they are responsible. Consult specific provisions 
of the Act respecting financial and acounting limitations and 
requirements.



Sec. 728.52  Veterans Administration beneficiaries (VAB).

    (a) Eligible beneficiaries-- Those who have served in the Armed 
Forces, have been separated under conditions other than dishonorable, 
and have been determined by the Veterans Administration (VA) to be 
eligible for care at VA expense. Prior to 7 September 1980, veterans 
status could be obtained by virtue of 1 day's honorable service. The 
following restrictions do not apply to individuals who are discharged 
from active duty because of a disability or who were discharged for 
reasons of ``early out'' or hardship program under 10 U.S.C. 1171 and 
1173.
    (1) For individuals with an original enlistment in the military 
service after 7 September 1980, the law generally denies benefits, 
including medical care.
    (2) For individuals entering service after 16 October 1981, the law 
generally denies medical benefits when such individuals do not complete 
the shorter of:
    (i) Twenty-four months of continuous active duty, or
    (ii) The full period for which that person was called or ordered to 
active duty.
    (b) Inpatient control-- Each VAB admitted will be required to 
conform to regulations governing the internal administration of the 
naval facility. Restrictive or punitive measures, including disciplinary 
action or denial of privileges, will conform as nearly as possible to VA 
instructions.
    (c) Resolution of problems-- All problems pertaining to VABs, 
including admission, medical or other records, and all correspondence 
will be matters of resolution between the commanding officer of the 
naval facility and the VA office of jurisdiction authorizing admission. 
Questions of policy and administration which cannot be so resolved will 
be forwarded, through the normal chain of command, to the Administrator 
of Veterans Affairs via COMNAVMEDCOM for resolution.
    (d) Care in the United States--(1) Inpatient care. An eligible VAB 
may be admitted to a naval MTF on presentation of a written 
authorization for admission signed by an official of the VA office of 
jurisdiction. Neurological and certain neuropsychiatric patients without 
obvious evidence of psychosis and not requiring restraints, and 
instances of suspected tuberculosis, may be admitted for diagnosis. When 
diagnosed, promptly report instances of psychosis, psychoneurosis, and 
tuberculosis of present clinical significance to the VA office of 
jurisdiction with a request for transfer to a VA facility.
    (i) Extent of care. Provide eligible VABs medical and surgical care, 
including prostheses such as eyes and limbs and appliances such as 
hearing aids, spectacles, or orthopedic appliances when required for the 
proper treatment of the condition upon which eligibility is based.
    (ii) Disposition of emergency admission. Notify the appropriate VA 
office of jurisdiction by message or other expeditious means within 72 
hours after the

[[Page 320]]

date and hour of an emergency admission of a potential VAB. Include a 
request for an authorization for admission and emergency treatment. If 
VA denies VAB status to such a person admitted in an emergency, the 
provisions of Sec. 728.81(a) are applicable. Once admitted in an 
emergency situation, discharage a VAB promptly upon termination of the 
emergency unless arrangements have been made with the VA office of 
jurisdiction:
    (A) For transfer to a VA treatment facility if further treatment is 
required.
    (B) To retain the patient as a VAB in the naval MTF.
    (2) Outpatient care. Outpatient care, including post hospitalization 
outpatient care, may be provided upon authorization by the VA office of 
jurisdiction. When outpatient followup care is requested, commanding 
officers are responsible for determining whether capabilities and 
workload permit providing such care. In an emergency, provide necessary 
care.
    (3) Physical examinations. Upon a determination by a naval MTF 
commanding officer that space, facilities, and capabilities exist, naval 
MTFs may provide physical examinations when requested by the VA for the 
purpose of adjudicating claims for VA physical disability compensation. 
If authorized by the VA, patients may be admitted when the examination 
requires more than 1 day.
    (4) Dental care. Limit dental treatment to inpatients who require 
services adjunctive to medical or surgical conditions for which 
hospitalized.
    (e) Care outside the United States--(1) Eligible beneficiaries. 
Beneficiaries described in paragraph (a) of this section who are 
citizens of the United States and residing or sojourning abroad may, 
within the capabilities of the facility as determined by the commanding 
officer, be provided inpatient and outpatient care upon presentation of 
an authorization from the appropriate VA office of jurisdiction listed 
in paragraph (e)(3) of this section.
    (2) Emergency care. Overseas naval MTFs furnishing emergency care to 
potential VABs will promptly notify the appropriate VA office of 
jurisdiction and request authorization for treatment and instructions 
for disposition of the patient.
    (3) Offices of jurisdiction. The following activities are vested 
with responsibility for issuing authorizations for care and furnishing 
dispisition instructions for VABs in overseas naval MTFs:
    (i) In the Trust Territory of the Pacific (Micronesia), VA Office, 
Honolulu, Hawaii.
    (ii) In the Philippines, VA Regional Office, Manila, Philippines.
    (iii) In Canada, Canadian Department of Veterans Affairs, Ottawa, 
Canada.
    (iv) In all other foreign countries, consular offices of U.S. 
embassies.
    (f) Forms required. (1) Complete a VA 10-10 (Application for Medical 
Benefits) when potential VABs are admitted for emergency care without 
prior authorization.
    (2) Prepare a VA 10-10m (Medical Certificate and History) when care 
is rendered. All information required in the medical certificate thereon 
will be furnished whether the admission is subsequently approved or 
disapproved by the VA office of jurisdiction.
    (3) Since the completion of VA 10-10m requires an examination of 
patients, admissions which are disapproved will be reported as medical 
examinations on DD 7A, Report of Treatment Furnished Pay Patients, 
Outpatient Treatment Furnished (part B) (See subpart J).
    (4) Prepare and submit a DD 7 (Report of Treatment Furnished Pay 
Patients, Hospitalization Furnished (part A)) on all VABs and potential 
VABs admitted (see subpart J).
    (5) Complete an SF 502 (Narrative Summary) or SF 539 (Abbreviated 
Clinical Record), as appropriate, when a VAB or potential VAB is 
discharged or otherwise released. When an interim report of 
hospitalization is requested by the VA office of jurisdiction, it may be 
prepared on an SF 502.



Sec. 728.53  Department of Labor, Office of Workers' Compensation Programs (OWCP) beneficiaries.

    (a) Potential beneficiaries. The following may be beneficiaries of 
one of the programs sponsored by the Office of Workers' Compensation 
Programs (OWC) under the conditions set forth. They are not 
beneficiaries of OWCP

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until authorized as such by the appropriate district officer of OWCP. 
However, they may be carried as potential beneficiaries pending OWCP 
determination of eligibility. DOD civilian employees provided medical 
services under a Defense or service health program are not included 
under this authority (see subpart G).
    (1) Members and applicants for membership in the Reserve Officers' 
Training Corps of the Navy, Army, and Air Force, provided the condition 
necessitating treatment was incurred in line of duty during an off-
campus training regimen. Such care is authorized for injury (a disease 
or illness which is the proximate result of performance of training is 
considered an injury) incurred while engaged in:
    (i) Training.
    (ii) Flight instructions.
    (iii) Travel to or from training or flight instructions.
    (2) The following employees of the Government of the United States, 
regardless of nationality or place of work, are entitled to receive care 
as outlined in paragraph (e) of this section for work incurred traumatic 
injuries at the expense of OWCP. (In addition to injury by accident, a 
disease or illness which is the proximate result of performance of 
employment duties is considered an injury.) This category includes but 
is not limited to:
    (i) Civilian student employees in training at Navy and Marine Corps 
facilities.
    (ii) Civilian seamen in the service of vessels operated by the 
Department of the Army (see paragraph (a)(7) of this section and 
Sec. 728.80(c)(2) for civilian Military Sealift Command (MSC) 
personnel).
    (iii) All civilian employees of the Government except 
nonappropriated-fund-activity employees. Nonappropriate fund employees 
may be covered under the Longshore and Harbor Workers' Compensation Act 
(contact cognizant district office of OWCP).
    (3) Civilian members of the Civil Air Patrol (except Civil Air 
Patrol Cadets) for injury or disease which is the proximate result of 
active service or travel to and from such service, rendered in 
performance or support of operational missions of the Civil Air Patrol 
under the direction and written authority of the Air Force.
    (4) Former Peace Corps enrollees for injury or disease which is the 
proximate result of their former employment with the Peace Corps or 
which was sustained or contracted while located with the Peace Corps 
outside the United States and its territories.
    (5) Former Job Crops enrollees for injury or disease which is the 
proximate result of employment with the Job Corps.
    (6) Former VISTA (Volunteers in Service to America) enrollees for 
injury or disease which is the proximate result of employment with 
VISTA.
    (7) Military Sealift Command (MSC) civilian marine personnel 
(CIVMARPERS or CIVMARS) (including temporary employees, intermittent 
employees, and employees with less than 1 year's service) are entitled 
to occupationally related care at the expense of OWCP. CIVMARS are in a 
crew status only after reporting to their assigned ship. They are in a 
travel status from crewing point to ship and return. While in a travel 
status, they are entitled to the same health care benefits as other 
Federal civil service employees in a travel status (5 U.S.C. 8101). 
CIVMARS presenting for treatment with a properly completed CA-16, 
Request for Examination and/or Treatment, will:
    (i) Enter the naval MTF's system through the occupational medicine 
service.
    (ii) Be treated for any injury or disease proximately caused by 
their employment. Although the actual determination of whether an 
illness or injury is occupationally related is a function of OWCP, 
determinations are based on the required injury report along with the 
treatment record from the attending physician. Therefore, when doubt 
exists as to the relationship of the condition to the potential 
patient's employment, the physician should report an unbiased medical 
conclusion and the medical rationale therefor, indicating the conditions 
which are responsible for the claimant's disability. As a general rule, 
the following may be initially considered as occupationally related, 
however, it

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should be emphasized that OWCP is the final approval authority:
    (A) Any injury or illness occurring as a direct result of 
employment. May occur on a ship, at a Government installation ashore, or 
in an aircraft while performing a requirement of employment.
    (B) Any injury or illness which becomes manifest while away from 
work (on leave or liberty) while in a crew status or travel status as 
long as the condition may be directly related to job activities or to 
exposures incident to travel to ship assignment.
    (C) Required immunizations.
    (D) Required physical examinations.
    (E) Periodic medical surveillance screening examinations for DOD 
occupational and industrial health programs, i.e., asbestos medical 
surveillance, hearing conservation, etc.
    (iii) Be referred to a non-Federal source of care where back-to-work 
care may be provided at the CIVMAR's expense after, if necessary, the 
immediate emergency is alleviated when a reasonable determination can be 
made that the injury or illness is not occupationally related.
    (A) Per 5 U.S.C. 7901(c)(3), the health service program for Federal 
civilian employees is limited to referral of employees, upon their 
request, to private sources of care.
    (B) Long term extended care of chronic illnesses such as 
hypertension, diabetes, etc., is not authorized in naval MTFs at the 
expense of OWCP nor at the CIVMAR's personal expense.
    (C) Patients who cannot be referred, because of medical reasons or 
because non-Federal sources are not available or available but 
inadequate, may be retained in naval MTFs at the expense of the CIVMAR 
or of his or her private insurance until transfer becomes possible. 
Although the means of access to the naval MTF may have been through the 
occupational medicine service, retention in the naval MTF is on a 
civilian humanitarian basis. This is also applicable when OWCP disallows 
a CIVMAR's claim (see paragraph (c) of this section).
    (b) Authorization required. Personnel in paragraph (a) (1) through 
(6) may be rendered inpatient and outpatient care as outlined in 
paragraph (e) of this section, unless otherwise stipulated in this 
section, upon presentation of a properly prepared and signed 
authorization from CA-16 (Request for Examination and/or Treatment). 
District offices of OWCP will honor these authorizations for 60 days 
unless written notice of termination of authorization is given earlier. 
Whereas the CA-16 is used primarily for traumatic injuries, it may also 
be used to authorize examination and treatment for disease or illness 
provided the affected agency has obtained prior permission from the 
cognizant district office of OWCP. If the condition for which treatment 
is requested appears related to employment, treatment of beneficiaries 
in paragraph (a) (1) through (7) of this section may be initiated 
without presentation of a CA-16. Patients provided treatment without a 
CA-16 may be carried as OWCP beneficiaries from the time of initial 
treatment, provided the appropriate district office of OWCP is notified 
and requested to submit a CA-16 within 48 hours giving authorization as 
of the date of actual treatment. OWCP will not be liable for payment of 
bills for unauthorized treatment. Post hospitalization care following 
authorized inpatient care does not require an additional authorization. 
First aid treatment rendered civilian employees does not require an 
authorization form
    (c) Disallowance by OWCP. When OWCP determines that any claim should 
be disallowed, OWCP will advise the naval facility rendering care that 
no further treatment should be rendered at OWCP expense. The patient 
ceases to be an OWCP beneficiary as of the date of receipt of the notice 
of disallowance by the naval MTF and the patient will be so notified. 
Any treatment subsequent to the date of receipt of the notice of 
disallowance will be at the personal expense of the patient (see 
Sec. 728.81(a)).
    (d) Authorization for transfer. Prior approval of OWCP is required 
before a transfer can be effected, except in an emergency or when 
immediate treatment is deemed more appropriate in another Federal 
facility. When transfer is effected without approval, the transferring 
facility will immediately request such authorization from the 
appropriate district office of OWCP.

[[Page 323]]

When authorized by OWCP, evacuation to the United States can be effected 
per OPNAVINST 4630.25B. Medical records and a CA-16 will accompany such 
patients.
    (e) Care authorized--(1) Inpatient care. Medical and surgical care 
necessary for the proper treatment of the condition upon which 
eligibility is based. Specific OWCP authorization is required before 
major surgical procedures can be performed unless the urgency of the 
situation is such that time does not permit obtaining said 
authorization. All necessary prostheses, hearing aids, spectacles, and 
orthopedic appliances will be furnished when required for proper 
treatment of the condition upon which eligibility is based. Upon 
specific authorization, damaged or destroyed medical braces, artificial 
limbs, and other orthopedic and prosthetic devices will be replaced or 
repaired, except that eyeglasses and hearing aids will not be replaced 
or repaired unless their damage or destruction is incidental to a 
personal injury requiring medical services.
    (2) Outpatient care. Complete medical and surgical care not 
requiring hospitalization, and posthospitalization services following 
authorized inpatient care in a naval MTF for the proper treatment of the 
condition upon which eligibility is based.
    (3) Dental care. Limit dental treatment to emergencies and that care 
necessary as an adjunct to inpatient hospital care authorized in 
advance. Such care will not include dental prostheses, unless 
specifically authorized, nor orthodontic treatment.
    (f) Reports and records. (1) Copies of medical records will 
accompany OWCP patients being transferred from one medical treatment 
facility to another. Records accompanying OWCP patients to a debarkation 
hospital will be the same as for military personnel and will clearly 
identify the patient as an OWCP beneficiary.
    (2) Forward a CA-20 (Attending Physician's Report) to the 
appropriate district office of OWCP on discharge of the patient unless 
hospitalization exceeds 1 month. In such instances, a report will be 
submitted every 30 days. When extensive hospitalization is required, use 
an SF 502 or a narrative format in lieu of CA-20. When submitted to 
OWCP, the physician's report will include:
    (i) History.
    (ii) Physical findings.
    (iii) Laboratory findings.
    (iv) Abstract of hospital records.
    (v) Diagnosis for conditions due to injury and not due to injury.
    (vi) Rationalized medical opinion for the physician's belief that 
the illness or disease treated was causally related to a specific 
condition or set of conditions to which the claimant was subjected.
    (vii) Condition on discharge with opinion as to degree of impairment 
due to injury, if any.
    (3) Complete and submit, per subpart J, a DD 7 (Report of Treatment 
Furnished Pay Patients, Hospitalization Furnished, part A) or DD 7A 
(Report of Treatment Furnished Pay Patients, Outpatient Treatment, part 
B) when outpatient or inpatient care is rendered to any OWCP 
beneficiary.



Sec. 728.54  U.S. Public Health Service (USPHS), other than members of the uniformed services.

    (a) Potential beneficiaries. The following may be beneficiaries of 
the USPHS for care in naval MTFs upon submission of the necessary form 
from appropriate officials as outlined in paragraph (b) of this section.
    (1) Within and outside the United States. Any individuals the USPHS 
may determine to be eligible for care on an interagency reimbursable 
basis.
    (2) Within the 48 Contiguous United States and the District of 
Columbia. American Indians, Alaska Natives, Eskimos, and Aleuts.
    (3) In Alaska. American Indians, Eskimos, and Aleuts.
    (b) Authorization required--(1) Normal circumstances. An American 
Indian or Alaska Native may be rendered inpatient care upon presentation 
of form HRSA 43 (Contract Health Service Purchase Order for Hospital 
Services Rendered) or HRSA form 64 (Purchase/Delivery Order for Contract 
Health Services Other Than Hospital Inpatient or Dental). Either form 
must be signed by an appropriate Indian Health Service or Alaska Native 
Health Service area/program official.

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    (2) Emergencies. In an emergency, care may be rendered upon written 
request of patient's commanding officer or superior officer, or the 
patient if neither of the above is available. When emergency care is 
rendered without prior authorization, the facility rendering care must 
notify the service unit director of the patient's home reservation 
within 72 hours from the time such care is rendered unless extenuating 
circumstances preclude prompt notification.
    (c) Care authorized. Unless limited by the provisions stipulated in 
paragraph (a) of this section and subject to the provisions of 
Sec. 728.3, the following care may be rendered, when requested, to all 
beneficiaries enumerated in paragraph (a) of this section.
    (1) Inpatient care. Necessary medical and surgical care.
    (2) Outpatient care. Necessary medical and surgical care.
    (3) Dental care. (i) Limit dental care in the United States, its 
territories, possessions, and the Commonwealth of Puerto Rico to 
emergencies for the relief of pain or acute conditions and that 
necessary as an adjunct to inpatient hospital care. Prosthetic dental 
appliances and permanent restorations are not authorized.
    (ii) In overseas areas, dental care is authorized to the extent 
necessary pending the patient's return to the United States, its 
territories, possessions, or the Commonwealth of Puerto Rico.
    (d) Report. Complete and submit, per subpart J, a DD 7 (Report of 
Treatment Furnished Pay Patients, Hospitalization Furnished, part A) or 
a DD 7A (Report of Treatment Furnished Pay Patients, Outpatient 
Treatment, part B) when outpatient or inpatient care is rendered.



Sec. 728.55  Department of Justice beneficiaries.

    Upon presentation of a letter of authorization that includes 
disposition of SF 88 (Report of Medical Examination), SF 93 (Report of 
Medical History), and address for submission of claim, the following 
personnel may be furnished requested care as beneficiaries of the 
Department of Justice. See subpart J on completing and submitting forms 
for central collection of the cost of care provided.
    (a) Federal Bureau of Investigation. Investigative employees of the 
Federal Bureau of Investigation (FBI) and applicants for employment as 
special agents with the FBI may be provided:
    (1) Immunizations.
    (2) Physical examinations and hospitalization when required to 
determine physical fitness. Use this period of hospitalization for 
diagnostic purposes only. Do not correct disqualifying defects.
    (b) U.S. Marshals. U.S. Marshals may receive physical examinations 
and hospitalizations when required to determine physical fitness. Use 
this period of hospitalization for diagnostic purposes only. Do not 
correct disqualifying defects.
    (c) Claimants against the United States. Claimants whose suits or 
claims against the United States are being defended by the Department of 
Justice may be furnished physical examinations to determine the extent 
and nature of the injuries or disabilities being claimed. 
Hospitalization is authorized for proper conduct of the examination. 
Upon completion, forward the report of the examination promptly to the 
U.S. Attorney involved.



Sec. 728.56  Treasury Department beneficiaries.

    (a) Potential beneficiaries. The following may be beneficiaries of 
the Treasury Department and may be rendered care as set forth below.
    (1) Secret Service Special Agents and support personnel.
    (2) Secret Service Agents providing protection to certain 
individuals.
    (3) Persons being provided protection by the Secret Service.
    (4) Agents of the U.S. Customs Service.
    (5) Prisoners (detainees) of the U.S. Customs Service.
    (b) Care authorized. (1) Secret Service Special Agents may be 
provided routine annual physical examinations upon request and 
presentation of a letter of authorization. Conduct and record 
examinations in the same manner as routine examinations rendered naval 
officers except that they may be conducted only on an outpatient basis.

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If hospitalization is considered desirable in connection with an 
examination, patient administration department personnel will contact 
the United States Secret Service at (202) 535-5641 at the address in 
paragraph (c) of this section. Enter a statement, attesting to the fact 
that hospitalization is desirable, in item 73 or 75 of the SF 88, as 
appropriate, before forwarding to the United States Secret Service as 
directed by the letter of authorization.
    (2) Secret Service Agents providing protection to certain 
individuals and those persons being provided such protection may be 
rendered all required medical services including hospitalization subject 
to the provisions of Sec. 728.3.
    (3) Agents of the U.S. Customs Service and their prisoners 
(detainees) may be provided emergency medical treatment and evacuation 
services to the nearest medical facility (military or civilian) in those 
remote areas of the United States where no other such services are 
available. Limit evacuation to the continental United States and do not 
cross borders. The Navy's responsibility for medical care of such 
prisoners terminates once the medical emergency has been resolved. 
Guarding of prisoners, while they or their captors are receiving 
treatment at naval MTFs, remains the responsibility of the U.S. Customs 
Service or other appropriate Federal (nonmilitary) law enforcement 
agencies.
    (c) Reports and records. (1) When examinations are rendered to 
Secret Service Special Agents and support personnel, forward one copy of 
the SF 88, one copy of the SF 93, and one copy of any forms provided 
with the letter of authorization to United States Secret Service, 
Administrative Operations Division, Safety and Health Branch, 1800 G 
Street, NW., Room 845, Washington, DC 20223 or as otherwise directed by 
the letter of authorization. Provide an information copy to the Deputy 
Comptroller of the Navy.
    (2) Complete and submit, per subpart J, a DD 7 (Report of Treatment 
Furnished Pay Patients, Hospitalization Furnished, part A) or DD 7A 
(Report of Treatment Furnished Pay Patients, Outpatient Treatment, part 
B) when outpatient or inpatient care is rendered.



Sec. 728.57  Department of State and associated agencies.

    Eligibility for care under the provisions of this section will be 
determined by the Department of State, Office of Medical Services.
    (a) Beneficiaries. Officers and employees of the following agencies, 
their dependents, and applicants for appointment to such agencies are 
authorized inpatient and outpatient medical care as set forth below in 
addition to that care that may be authorized elsewhere within this part 
(i.e., Sec. 728.53, Sec. 728.55, Sec. 728.56, and Sec. 728.58). Limit 
dental care to that delineated in paragraph (b)(6) of this section.
    (1) Department of State-U.S.Arms Control and Disarmament Agency and 
the Office of International Conferences.
    (2) U.S. Agency for International Development.
    (3) International Communications Agency.
    (4) ACTION--Peace Corps Staff.
    (5) Department of Agriculture--Foreign Agriculture Service.
    (6) Department of Commerce--Bureau of Public Roads.
    (7) Department of Interior--Bureau of Reclamation and the U.S. 
Geological Survey.
    (8) Department of Transportation--Federal Aviation Administration 
and the Federal Highway Administration.
    (9) Department of Justice--Drug Enforcement Agency.
    (10) Department of Treasury--U.S. Customs, U.S. Secret Service, 
Office of International Affairs (OIA), U.S.--Saudi Arabian Joint 
Commission for Economic Cooperation (JECOR), and the Internal Revenue 
Service.
    (11) National Aeronautics and Space Administration.
    (12) Library of Congress.
    (13) Beneficiaries of such other agencies as may be included in the 
Department of State Medical Program.
    (b) Care authorized--(1) General. The Foreign Service Act of 1946, 
as amended, authorizes care delineated in this section. Subject to the 
restrictions and priorities of Sec. 728.3 and the restrictions of this 
section, care may be rendered at the expense of the Department of State

[[Page 326]]

or one of the agencies listed in paragraph (a) of this section. The law 
allows for payment when care is furnished for an illness or injury which 
results in hospitalization or equal treatment. Outpatient care is only 
authorized as an adjunct to hospitalization.
    (2) Overseas. (i) When, in the opinion of the principal or 
administrative officer of an overseas post of the Department of State, 
an individual meets the conditions of eligibility, the post will furnish 
authorization to the naval MTF for care at the expense of the Department 
of State or one of the agencies listed in paragraph (a) of this section.
    (ii) Should the Department of State official determine that the 
illness or injury does not meet the conditions of eligibility for care 
at the expense of one of the agencies, all care provided will be at the 
expense of the patient or patient's sponsor and charged at the full 
reimbursement rate.
    (3) In the United States. (i) Care is not authorized for an injury 
or illness incurred in the United States. Authorizations and other 
arrangements for care in the United States for individuals incurring 
injury or illness outside the United States will be provided by the 
Deputy Assistant Secretary for Medical Services, Department of State, 
using appropriate authorization form(s). When personnel are admitted in 
an emergency without prior authorization, the commanding officer of the 
admitting naval MTF will immediately request authorization from the 
Deputy Assistant Secretary for Medical Services.
    (ii) The extent of care furnished in the United States, to 
individuals in paragraph (a) of this section who are evacuated to the 
United States for medical reasons, will be comparable in all respects to 
that which is authorized or prescribed for these individuals outside the 
United States. When determined appropriate by the Deputy Assistant 
Secretary for Medical Services, officers and employees and their 
accompanying dependents who have returned to the United States for 
nonmedical reasons may be furnished medical care at the expense of one 
of the above agencies for treatment of an illness or injury incurred 
while outside the United States.
    (4) Physical examinations. The Secretary of State is authorized to 
provide for comprehensive physical examinations, including dental 
examinations and other specific testing, of applicants for employment 
and for officers and employees of the Foreign Service who are U.S. 
citizens and for their dependents, including examinations necessary to 
establish disability or incapacity for retirement purposes. An 
authorization will be executed by an appropriate Department of State 
official and furnished in duplicate to the naval MTF, listing the type 
of examination required and stating that the individual is entitled to 
services at the expense of the Department of State. Furnish reports per 
the letter of authorization.
    (5) Immunizations. Inoculations and vaccinations are authorized for 
officers, employees, and their dependents upon written authorization 
from an appropriate Department of State official. This authorization, in 
duplicate, will include the type of inoculation or vaccination required 
and will state that the individual is entitled to services at the 
expense of the Department of State. Furnish reports per the letter of 
authorization.
    (6) Dental care. Limit dental care to emergencies for the relief of 
pain or acute conditions, or dental conditions as an adjunct to 
inpatient care. Do not provide prosthetic dental appliances.
    (c) Evacuation to the United States. Should a beneficiary in an 
overseas naval MTF require prolonged hospitalization, the commanding 
officer of the overseas facility will report the requirement to the 
nearest Department of State principal or administrative officer and 
request authority to return the patient to the United States. Release 
dependents who decline evacuation to the custody of their sponsor. 
Aeromedical evacuation may be used per OPNAVINST 4630.25B. Travel of an 
attendant or attendants is authorized at Department of State expense 
when the patient is too ill or too young to travel unattended.
    (d) Report. Complete and submit, per subpart J, a DD 7 (Report of 
Treatment

[[Page 327]]

Furnished Pay Patients, Hospitalization Furnished, part A) or DD 7A 
(Report of Treatment Furnished Pay Patients, Outpatient Treatment, part 
B) when outpatient or inpatient care is rendered.



Sec. 728.58  Federal Aviation Agency (FAA) beneficiaries.

    (a) Beneficiaries. Air Traffic Control Specialists (ATCS) of the FAA 
when appropriate authorization has been furnished by the FAA regional 
representative.
    (b) Authorization. Written authorization from an FAA Regional Flight 
Surgeon is required and will include instructions for forwarding the 
results of services rendered.
    (c) Care authorized. Subject to the provisions of Sec. 728.3, 
authorized personnel may be rendered chest x-rays, electrocardiograms, 
basic blood chemistries, and audiograms, without interpretation in 
support of the medical surveillance program for ATCS personnel 
established by the FAA.
    (d) Report. Complete and submit, per subpart J, a DD 7A (Report of 
Treatment Furnished Pay Patients, Outpatient Treatment, part B) 
outpatient care is rendered.



Sec. 728.59  Peace Corps beneficiaries.

    (a) Potential beneficiaries. (1) Applicants for the Peace Corps.
    (2) Peace Corps Volunteers.
    (3) Minor children of a Peace Corps volunteer living with the 
volunteer.
    (b) Care authorized in the United States. Upon written request of a 
Peace Corps official, stating care to be provided and disposition of 
reports, the following may be provided subject to the provisions of 
Sec. 728.3.
    (1) Physical examinations. Physical examinations are authorized on 
an outpatient basis only. Except for interpretation of x-rays, make no 
assessment of the physical qualifications of examinees.
    (i) Preselection physical examination may be provided applicants 
(volunteers) for the Peace Corps.
    (ii) Separation or other special physical examinations may be 
provided volunteers and their dependents as listed in paragraph (a)(3) 
of this section. Unless otherwise prescribed in written requests, report 
such examinations of Peace Corps volunteers on SF-88 and SF-93. Include:
    (A) Medical history and systemic review.
    (B) Chest x-ray with interpretation.
    (C) Complete urinalysis, serology, and blood type.
    (D) Pelvic examination and Pap smear for all female volunteers.
    (E) Hematocrit or hemoglobin for all females and for all males over 
40 years of age.
    (F) Electrocardiogram for all volunteers over 40 years of age.
    (2) Immunizations. Immunizations, as requested, may be provided all 
beneficiaries listed in paragraph (a) of this section.
    (3) Medical care. Both inpatient and outpatient care may be provided 
volunteers for illnesses or injuries occurring during their period of 
service which includes all periods of training. Dependents of volunteers 
specified in paragraph (a)(3) of this section are authorized care to the 
same extent as their sponsor.
    (4) Dental care. Limit dental care to emergencies. Render only that 
care essential to relieve pain or prevent imminent loss of teeth. All 
beneficiaries seeking dental care will be requested, whenever possible, 
to furnish advanced authorization.
    (c) Care authorized outside the United States--(1) Physical 
examinations. Termination physical examinations may be provided 
volunteers and eligible dependents of volunteers. In most instances, 
Peace Corps staff physicians will provide these examinations; however, 
help may be required of naval MTFs for ancillary services.
    (2) Immunizations. When requested, immunizations may be provided all 
beneficiaries listed in paragraph (a) of this section.
    (3) Medical care. When requested in writing by a representative or 
physician of a Peace Corps foreign service post, volunteers, eligible 
dependents of volunteers, and trainees of the Peace Corps may be 
provided necessary medical care at Peace Corps expense. When emergency 
treatment is rendered without prior approval, forward a request to the 
Peace Corps foreign service post as soon as possible.

[[Page 328]]

    (4) Dental care. Limit dental care to emergencies. Render only that 
care essential to relieve pain or prevent imminent loss of teeth. All 
beneficiaries seeking dental care will be requested, whenever possible, 
to furnish advanced authorization.
    (5) Evacuation to the United States. When a beneficiary in an 
overseas naval MTF requires prolonged hospitalization, the commanding 
officer of the overseas facility will report the requirement to the 
nearest Peace Corps foreign service post and request authorization to 
return the patient to the United States. Releases custody of dependents 
to their sponsor when evacuation is declined. Aeromedical evacuation may 
be used per OPNAVINST 4630.25B. Travel of attendant(s) is authorized 
when the patient is too ill or too young to travel unattended.
    (d) Report. Complete and submit, per subpart J, a DD 7 (Report of 
Treatment Furnished Pay Patients, Hospitalization Furnished, part A) or 
DD 7A (Report of Treatment Furnished Pay Patients, Outpatient Treatment, 
part B) when outpatient or inpatient care is rendered.



Sec. 728.60  Job Corps and Volunteers in Service to America (VISTA) beneficiaries.

    (a) Beneficiaries. Job Corps and VISTA enrollees and Job Corps 
applicants may be provided services as set forth. For former members, 
see Sec. 728.53.
    (b) Authorization required--(1) Job Corps enrollees. Presentation of 
a Job Corps Identification Card after appointment has been made by the 
corpsmember's Job Corps center.
    (2) Job Corps applicants. Presentation of a letter from a screening 
agency (e.g., State Employment Service) after an appointment has been 
made by that agency.
    (3) VISTA Volunteers and VISTA Trainees. A ``Blue-Cross and Blue 
Shield Identification Card'' is issued to such personnel as 
identification. Each card has a VISTA identification number which will 
be used on all records and correspondence.
    (c) Care authorized. Normally, medical services are provided only 
when civilian of VA facilities are not available. or if available, are 
incapable of providing needed services. However, upon presentation of an 
appropriate authorization, the following services may be rendered 
subject to the provisions of Sec. 728.3.
    (1) Job Corps enrollees are authorized emergency medical care upon 
presentation of their Job Corps Identification Card; however, the 
corpsmember's Job Corps center should be notified immediately.
    (2) Job Corps applicants may be provided preenrollment physical 
examinations and immunizations on an outpatient basis only.
    (3) Job Corps enrollees, VISTA trainees, and VISTA volunteers are 
authorized:
    (i) Outpatient medical examinations, outpatient treatment, and 
immunizations.
    (ii) Inpatient care for medical and surgical conditions which, in 
the opinion of the attending physician, will benefit from definitive 
care within a reasonable period of time. When found probable that a 
patient will require hospitalization in excess of 45 days, notify the 
Commander, Naval Medical Command (MEDCOM-33) by the most expeditious 
means.
    (iii) Limit dental care to emergencies. Render only that care 
essential to relieve pain or prevent imminent loss of teeth. 
Beneficiaries seeking dental care will be requested to furnish, whenever 
possible, advanced authorization.
    (d) Report. Complete and submit, per subpart J, a DD 7 (Report of 
Treatment Furnished Pay Patients, Hospitalization Furnished, part A) or 
DD 7A (Report of Treatment Furnished Pay Patients, Outpatient Treatment, 
part B) when outpatient or inpatient care is rendered.



Sec. 728.61  Medicare beneficiaries.

    (a) Care authorized. Emergency hospitalization and other emergency 
services are authorized for beneficiaries of the Social Security Health 
Insurance Program for the Aged and Disabled (Medicare) who reside in the 
50 United States and the District of Columbia, Guam, Puerto Rico, the 
Virgin Islands, American Samoa, and the Northern Mariana Islands. Such 
care in naval

[[Page 329]]

MTFs may be rendered when emergency services, as defined in 
Sec. 728.61(b), are necessary.
    (b) Emergency services. Services provided in a hospital emergency 
room after the sudden onset of a medical condition manifesting itself by 
acute symptoms of sufficient severity (including severe pain) such that 
the absence of immediate medical attention could reasonably be expected 
to result in:
    (1) Placing the patient's health in serious jeopardy.
    (2) Serious impairment to bodily functions of serious dysfunction of 
any bodily organ or part.
    (c) General provisions--(1) Limitations. Benefit payments for 
emergency services under Medicare can be made for only that period of 
time during which the emergency exists. Therefore, when the emergency is 
terminated and it is permissible from a medical standpoint, discharge or 
transfer the patient to a facility that participates in Medicare.
    (2) Notification. Notify the nearest office of the Social Security 
Administration as soon as possible when a Medicare beneficiary is 
rendered treatment.
    (d) Report. Complete and submit, per subpart J, a DD 7 (Report of 
Treatment Furnished Pay Patients, Hospitalization Furnished, part A) or 
DD 7A (Report of Treatment Furnished Pay Patients, Outpatient Treatment, 
part B) when outpatient or inpatient care is rendered.



                        Subpart G--Other Persons



Sec. 728.71  Ex-service maternity care.

    (a) Eligible beneficiaries. After separation from the service under 
honorable conditions because of pregnancy, or separated from the service 
under honorable conditions and found to have been pregnant at the time 
of separation, the following former members and their newborn infant(s) 
may be provided care as set forth below. The rendering of this care is 
subject to the provisions of Sec. 728.3. When certified by medical 
authorities that the pregnancy existed prior to entry into service 
(EPTE), maternity benefits are not authorized.
    (1) Former women members of the Army, Air Force, Navy, and Marine 
Corps.
    (2) On or after 12 August 1985, former women members of the 
Commissioned Corps of the United States Public Health Service (USPHS) 
and the National Oceanic and Atmospheric Administration (NOAA).
    (b) Care authorized. (1) Former women members may be rendered 
medical and surgical care in naval MTFs incident to that pregnancy, 
prenatal care, hospitalization, postnatal care, and, when requirements 
of SECNAVINST 6300.2A are met, abortions. Limit postnatal care to 6 
weeks following delivery. Do not promise civilian sources under any 
circumstances for either the mother or the infant as such care is not 
authorized.
    (2) Treatment of the newborn infant in USMTFs includes care, both 
inpatient and outpatient, only during the first 6 weeks (42 days) 
following delivery. If the newborn infant requires care beyond the 6-
weeks postnatal period, the mother or other responsible family member 
must make arrangements for disposition to private, State, welfare, or 
another Federal facility.
    (c) Application for care. In making application for care authorized 
by this section, former women members should apply either in person or 
in writing to the Armed Forces inpatient MTF nearest their home and 
present either their DD 214 (Armed Forces of the United States Report of 
Transfer or Discharge) or DD 256A (Honorable Discharge Certificate) as 
proof of eligibility for requested care. In areas with more than one 
Armed Forces MTF available and capable of providing required care, 
application should be made to the MTF of the service from which 
separated, as applicable. Disengagement in such areas to MTFs of other 
services may be made only when space is not available or capability does 
not exist in the MTF of the services from which the individual was 
separated.
    (d) Charges and collection. Charges and reimbursement procedures for 
care rendered to beneficiaries in paragraph (a)(2) of this section are 
the same as prescribed by current regulations for active Coast Guard, 
USPHS, and NOAA members.

[[Page 330]]



Sec. 728.72  Applicants for enrollment in the Senior Reserve Officers' Training Program.

    When properly authorized, designated applicants (including 
applicants for enrollment in the 2-year program and Military Science II 
enrollees applying for Military Science III) may be furnished medical 
examinations at naval MTFs including hospitalization necessary for the 
proper conduct thereof. Medical care, including hospitalization, is 
authorized for diseases contracted or injuries incurred in line of duty 
while at or traveling to or from a military installation for the purpose 
of undergoing medical or other examinations or for visits of 
observation.



Sec. 728.73  Applicants for enlistment or reenlistment in the Armed Forces, and applicants for enlistment in the reserve components.

    (a) Upon referral by a commander of a Military Enlistment Processing 
Station (MEPS), applicants will be furnished necessary medical 
examinations, including hospitalization when qualifications for service 
cannot otherwise be determined. Use the hospitalization period only for 
diagnostic purposes. Do not correct disqualifying defects.
    (b) Applicants who suffer injury or acute illness while awaiting or 
undergoing processing at Navy and Marine Corps facilities or MEPS may be 
furnished emergency medical and dental care, including emergency 
hospitalization, for that injury or illness.



Sec. 728.74  Applicants for appointment in the regular Navy or Marine Corps and reserve components, including members of the reserve components who apply for 
          active duty.

    (a) Necessary medical examinations may be furnished, including 
hospitalization when qualifications for service cannot otherwise be 
determined. Use such a period of hospitalization only for diagnostic 
purposes. Do not correct disqualifying defects.
    (b) Applicants who suffer injury or acute illness while awaiting or 
undergoing processing at Navy and Marine Corps facilities or MEPS may be 
furnished emergency medical and dental care, including emergency 
hospitalization, for that injury or illness.



Sec. 728.75  Applicants for cadetship at service academies and applicants for the Uniformed Services University of Health Sciences (USUHS).

    (a) Upon presentation of a letter of authorization from the 
Department of Defense Medical Examination Review Board (DODMERB), 
applicants for cadetship at Service Academies (Navy, Army, Air Force, 
Coast Guard, and Merchant Marine) and applicants for the Uniformed 
Services University of Health Sciences (USUHS) will be furnished medical 
examinations at facilities designated by the DODMERB. Hospitalization is 
authorized when qualifications for service cannot otherwise be 
determined. Use the hospitalization period for diagnostic purposes only, 
and not to correct disqualifying or other defects. Perform examinations 
and make disposition of completed forms per BUMEDINST 6120.3M.
    (b) Applicants who suffer injury or acute illness while awaiting or 
undergoing processing at Navy and Marine Corps facilities or at MEPS may 
be furnished emergency medical and dental care, including emergency 
hospitalization, for that injury or illness.



Sec. 728.76  Naval Home residents.

    Provide necessary medical and dental care, both inpatient and 
outpatient, to residents of the Naval Home when requested by the 
Governor of the Home. In an emergency, care may be rendered without 
prior approval of the Governor; however, the Governor of the Home should 
be contacted immediately and requested to furnish authorization.



Sec. 728.77  Secretarial designees.

    Subject to the capabilities of the professional staff and the 
availability of space and facilities, naval MTFs and DTFs will provide 
treatment to individuals that have been granted Secretarial designee 
status by any of the three service Secretaries (Navy, Army, or Air 
Force), the Secretary of Commerce for NOAA personnel, the Secretary of 
Health and Human Services for USPHS personnel, or the Secretary of 
Transportation for Coast Guard personnel.
    (a) Potential designees. Upon a showing of sufficient cause, the 
Secretary of the Navy may authorize individuals,

[[Page 331]]

not otherwise authorized by law, to receive such care as is available in 
naval MTFs in the United States. Designation may be extended on a 
worldwide basis for preadoptive children and wards of active duty 
members, and for abused dependents delineated in paragraph (a)(6) of 
this section. Temporary in loco parents or foster parent status of the 
member with regard to a minor is insufficient for approval. Also, 
civilian health care under the CHAMPUS program cannot be authorized for 
other than abused dependents. The Secretary's discretionary authority is 
exercised most conservatively, however, favorable action is usually 
taken on requests involving the following situations:
    (1) Preadoption proceedings wherein an active duty member or a 
retired member has taken affirmative legal action to adopt a child.
    (2) Custodianships and guardianships authorized by a court order 
wherein the member is designated by the court as the custodian or 
guardian and the child is fully dependent upon the active duty or 
retired member sponsor.
    (3) Evaluation and selection of nonbeneficiaries who are donor 
candidates for an organ or tissue transplant procedure in behalf of a 
military service beneficiary.
    (4) Nonbeneficiary participants in officially approved clinical 
research studies.
    (5) Unremarried former spouses who: Require care for a condition 
incurred during or caused/aggravated by conditions associated with the 
member's or former member's creditable service; do not qualify under the 
former spouses act; and do not have medical coverage under an employer-
sponsored health plan which will provide for the care required.
    (6) Abused dependents of discharged or dismissed former uniformed 
services members in need of medical or dental care resulting from 
knowledge of the abuse or for an injury or illness resulting from abuse 
by the former member. Eligibility will terminate the earliest of 1 year 
after the date on which the member is discharged or dismissed from a 
uniformed service, or when care is no longer needed.
    (7) In other instances wherein the circumstances clearly merit the 
providing of treatment in naval MTFs, and in which the best interest of 
the patient, the Navy, and the Government will be served, favorable 
Secretarial action may result. The mere need of medical care by a former 
beneficiary or other person, alone, will not support approval of such a 
request.
    (b) Requests for consideration. Requests for consideration will be 
submitted to the Commander, Naval Medical Command (MEDCOM-33) by 
applicants via their command, when applicable, or by the Medical 
Department command concerned. Requests should include any pertinent 
information which will support resolution and a return address. Requests 
involving:
    (1) Preadoption must include a legible reproducible copy of an 
interim court order or adoption agency placement agreement which names 
the sponsor and identifies the other participating parties. A petition 
for a court order is insufficient to support a recommendation for 
approval.
    (2) Custodianships and guardianships must include a legible 
reproducible copy of the court order, identification of the parties, and 
also identify any amounts of income to which the ward is entitled.
    (3) Participants in clinical research studies must include:
    (i) Sufficient clinical information concerning the nature of the 
study.
    (ii) Benefits which may accrue to the individual.
    (iii) The extent, if any, to which access by other authorized 
beneficiaries will be impaired.
    (iv) Benefits which will accrue to the command, e.g., enhancement of 
training, maximum use of specialized facilities, etc.
    (v) Recommended duration of designation.
    (vi) Whether the consenting individual has been informed concerning 
the nature of the study, its personal implications, and freely consents.
    (4) Unremarried former spouses must include:
    (i) A notarized copy of the marriage license.
    (ii) A statement attesting to the fact that the sponsoring former 
spouse

[[Page 332]]

achieved 20 or more years of creditable military service.
    (iii) Copy of divorce decree with official date.
    (5) Abused depdendents must include:
    (i) Full name, social security number, grade or rate, branch or 
service, and date and type of discharge or dismissal of the former 
member. Such a member must have received a dishonorable or bad-conduct 
discharge or dismissal from a uniformed service as a result of court-
martial conviction for an offense involving abuse of a dependent of the 
member.
    (ii) Full names, social security numbers (if assigned), and 
relationship to the former member of any dependent in need of medical or 
dental care to treat adverse health conditions resulting from such 
dependent's knowledge of the abuse or any injury or illness suffered by 
the abused person as a result of such abuse.
    (c) Blanket designation. (1) The Secretary of Defense has granted 
Secretarial designee status to full-time Schedule ``A'' faculty members 
of the Uniformed Services University of Health Sciences (USUHS). They 
have been provided documentation substantiating their eligibility and, 
where necessary, an eligibility termination date. These personnel are 
authorized routine care at the Naval Hospital, Bethesda, MD. At other 
naval MTFs, only emergency treatment is authorized while they are 
traveling on official university business. The letter of authorization 
excludes routine dental care, prosthetic appliances, and spectacles.
    (2) The following officials within the Government, the Department of 
Defense, and military departments have been granted blanket Secretarial 
designation for medical and emergency dental care in naval MTFs in the 
United States:
    (i) The President.
    (ii) The Vice President.
    (iii) Members of the Cabinet.
    (iv) Article III Federal Judges.
    (v) U.S. Court of Military Appeals Judges.
    (vi) Members of Congress.
    (vii) The Secretary, Deputy Secretary, and the Assistant Secretaries 
of Defense.
    (viii) The Under Secretary of Defense for Policy.
    (ix) The Under Secretary of Defense for Research and Engineering.
    (x) The Secretaries, Under Secretaries, and the Assistant 
Secretaries of the Military Departments.
    (d) Authorization. Designees will present a signed letter bearing 
the letterhead of the designating service. Secretarial designees are not 
included in the DEERS data base and may not possess Government 
identification cards. Therefore, the only proof of their eligibility for 
treatment may be the letter of authorization. When a Secretarial 
designee presents for treatment:
    (1) Ask for identification of the individual presenting the letter 
of authorization to assure that the person seeking care is the 
individual to whom the letter was issued.
    (2) Check the expiration date on the letter of authorization. Many 
authorizations are issued for only a specified period of time, e.g., 
abused dependents--no longer than 1 year.
    (3) Check to assure that the individual is applying for care 
authorized by the letter of authorization. Designation is often granted 
for a specific diagnosis or specific mode of treatment.
    (4) Check to assure that the individual has not been designated for 
care only as specific facility. Many authorizations are granted for 
conditions or for care that can be rendered only by a specified 
physician or under a specific program.
    (5) Place a copy of the letter of authorization in the individual's 
Health Record or outpatient treatment record on the left side at the 
first visit or admission.
    (e) Charges and collection. (1) Interagency rates are applicable for 
inpatient and outpatient care provided outside the National Capital 
Region to all individuals listed in paragraph (c)(2) of this section 
with the exception of Members of Congress. Charges are at full 
reimbursement rates for Members of Congress provided inpatient or 
outpatient care outside the National Capital Region.
    (2) In the National Capital Region:
    (i) Charges are waived for outpatient care provided to all 
categories listed in paragraph (c)(2) of this section.

[[Page 333]]

    (ii) Charge interagency rates for inpatient care of all individual 
in paragraph (c)(2) of this section except Members of Congress. Charge 
Members of Congress at full reimbursement rates.
    (3) Complete and submit, per subpart J, a DD 7 (Report of Treatment 
Furnished Pay Patients, Hospitalization Furnished, part A) or DD 7A 
(Report of Treatment Furnished Pay Patients, Outpatient Treatment, part 
B) when outpatient or inpatient care is rendered to Secretarial 
designees whose charges for care have not been waived.



Sec. 728.78  American Red Cross representatives and their dependents.

    (a) Potential beneficiaries.
    (1) Volunteer workers.
    (2) Full-time, paid employees.
    (3) Dependents of personnel enumerated in paragraph (a) (1) and (2) 
of this section when accompanying their sponsor outside the continental 
United States, including Alaska, Hawaii, and Puerto Rico.
    (b) Care authorized. (1) When services of the American Red Cross 
(ARC) have been accepted in behalf of the Federal Government under 
applicable DOD regulations, beneficiaries in paragraph (a)(1) of this 
section are considered ``employees'' of the Government for the purpose 
of this part and are authorized health care in USMTFs, both in and 
outside the United States for work-related conditions. See 
Sec. 728.53(a)(2) regarding the specific application of this 
authorization.
    (2) Beneficiaries enumerated in paragraph (a) (1) and (2) of this 
section are authorized health care in USMTFs located outside the United 
States for both work and nonwork-related conditions. See 
Sec. 728.53(a)(2) for treatment of work-related conditions of those in 
paragraph (a)(1) of this section.
    (3) Beneficiaries identified in paragraph (a) (1), (2), and (3) of 
this section are authorized emergency care in USMTFs outside the 
continental United States, including Alaska, Hawaii, and Puerto Rico 
where facilities are not otherwise available in reasonably accessible 
and appropriate non-Federal hospitals. Provide hospitalization only for 
acute medical and surgical conditions, exclusive of nervous, mental, or 
contagious diseases or those requiring domiciliary care. Routine dental 
care, other than dental prosthesis and orthodontia, is authorized on a 
space available basis provided facilities are not otherwise available in 
reasonably accessible non-Federal facilities.
    (c) Records disposal. Upon completion of treatment of accredited 
representatives of the American Red Cross or their dependents, forward 
medical records, including all clinical records and x-ray films, to the 
Medical Director, National Headquarters, American Red Cross, 20th and D 
Street NW., Washington, DC 20006.
    (d) Charges and collection. Charge beneficiaries in paragraph (a) 
(1) and (2) of this section the rate applicable to officer personnel and 
dependents in paragraph (a)(3) of this section the dependent rate. 
Complete and submit, per subpart J, a DD 7 (Report of Treatment 
Furnished Pay Patients, Hospitalization Furnished, part A) or DD 7A 
(Report of Treatment Furnished Pay Patients, Outpatient Treatment, part 
B) when outpatient or inpatient care is rendered to ARC personnel or to 
their dependents.



Sec. 728.79  Employees of Federal contractors and subcontractors.

    (a) Beneficiaries. (1) U.S. citizen contractor, engineering, and 
technical service personnel designated as U.S. Navy Technicians.
    (2) Civilian employees of contractors and subcontractors operating 
under U.S. Government contracts.
    (3) Dependents of personnel enumerated in paragraph (a) (1) and (2) 
of this section when accompanying their sponsor outside the continental 
United States or in Alaska.
    (b) Care authorized. (1) Beneficiaries identified in paragraph (a) 
(1) and (2) of this section may be provided emergency care in naval MTFs 
for illnesses and injuries occurring at work in or outside the United 
States.
    (2) While serving outside the continental United States or in 
Alaska, where facilities are not otherwise available in reasonably 
accessible and appropriate non-Federal facilities, beneficiaries 
identified in paragraph (a) (1), (2), and (3) of this section may 
receive hospitalization and necessary

[[Page 334]]

outpatient services in naval MTFs on a reimbursable basis. Except for 
beneficiaries in paragraph (a)(1) of this section who are serving aboard 
naval vessels, all others enumerated may only be hospitalized for acute 
medical and surgical conditions, exclusive of nervous, mental, or 
contagious diseases or those requiring domiciliary care. Routine dental 
care, other than dental prosthesis and orthodontia, is authorized on a 
space available basis provided facilities are not otherwise available in 
reasonably accessible and appropriate non-Federal facilities.
    (c) Charges and collection. Care is authorized on a reimbursable 
basis. Complete and submit, per subpart J, a DD 7 (Report of Treatment 
Furnished Pay Patients, Hospitalization Furnished, part A) or DD 7A 
(Report of Treatment Furnished Pay Patients, Outpatient Treatment, part 
B) when outpatient or inpatient care is rendered.



Sec. 728.80  U.S. Government employees.

    (a) Civil service employees of all Federal agencies, including 
teachers employed by Department of Defense Dependent's Schools (DODDS) 
and their dependents, may be provided hospitalization and necessary 
outpatient services, (other than occupational health services), on a 
reimbursable basis, outside the continental limits of the United States 
and in Alaska, where facilities are not otherwise available in 
reasonably accessible and appropriate non-Federal hospitals. Except for 
employees who are serving aboard naval vessels, hospitalization may be 
furnished only for acute medical and surgical conditions, exclusive of 
nervous, mental, or contagious diseases or those requiring domiciliary 
care. Routine dental care, other than dental prosthesis and orthodontia, 
is authorized on a space available basis provided facilities are not 
otherwise available in reasonably accessible and appropriate non-Federal 
facilities.
    (b) Such civilian employees and their dependents may be provided 
medical, surgical, dental treatment, hospitalization, and optometric 
care at installations in the United States which have been designated 
remote by the Secretary of the Navy for the purpose of providing medical 
care.
    (c) The major objective of the following programs for civil service 
employees, regardless of location, is emergency treatment for relief of 
minor ailments or injuries to keep the employee on the job:
    (1) The Department of Labor, Office of Workers' Compensation 
Programs (OWCP), governs the overall medical care program for employees 
of the Government who sustain injuries while in the performance of duty, 
including diseases proximately caused by conditions of employment (see 
Sec. 728.53).
    (2) Federal civil service employees and applicants for such 
employment are authorized services as outlined in chapter 22, section 
XIII, of the Manual of the Medical Department (MANMED). When 
appropriated fund and nonappropriated fund employees, including unpaid 
volunteer employees, require emergency and nonemergency occupational 
health services due to an illness or an injury on the job, provide this 
limited care through your occupational health service, emergency room, 
or evening primary care clinic, as appropriate. This care is rendered 
free of charge to the employee, the employee's command, or insurance 
carrier. Included with this group are Military Sealift Command (MSC) 
civilian marine personnel (authorized additional care and services as 
outlined in BUMINST 6320.52 and care under Sec. 728.53(a)(7)) and 
members of the National Oceanic and Atmospheric Administration (NOAA) 
serving with the Navy.
    (3) Under the technical control of the Surgeon General of the Army, 
the DOD Civilian Employees' Health Service is responsible for 
administering the health program for all Federal civil service employees 
in the District of Columbia area.
    (d) Care, other than occupational health services, is provided on a 
reimbursable basis. Complete and submit, per subpart J, a DD 7 (Report 
of Treatment Furnished Pay Patients, Hospitalization Furnished, part A) 
or DD 7A (Report of Treatment Furnished Pay Patients, Outpatient 
Treatment, part B) when outpatient or inpatient care is rendered.

[[Page 335]]



Sec. 728.81  Other civilians.

    (a) General. In an emergency, any person may be rendered care in 
naval MTFs to prevent undue suffering or loss of life or limb. Limit 
care to that necessary only during the period of the emergency, and if 
further treatment is indicated, initiate action to transfer the patient 
to a private physician or civilian facility as soon as possible. 
Further, subject to the provisions of Sec. 728.3, the following 
personnel are authorized care as set forth.
    (b) Beneficiaries and extent of care. (1) Provide all occupational 
health services to civilian employees paid from nonappropriated funds, 
including Navy exchange employees and service club employees, free of 
charge (see Sec. 728.80(c)(2)). Provide treatment of occupational 
illnesses and injuries other than in emergencies per rules and 
regulations of the Office of Workers' Compensation Programs (see 
Sec. 728.53).
    (2) Civilians attending the Federal Bureau of Investigation (FBI) 
Academy, Marine Corps Development and Education Command, Quantico, VA, 
may be rendered care at the Naval Medical Clinic, Quantico, VA, for 
emergencies. Such persons who are in need of hospitalization for 
injuries or disease may be hospitalized and classed as civilian 
humanitarian nonindigents with the approval of the cognizant hospital's 
commanding officer. Exception: Certain individuals, such as employees of 
the Federal Bureau of Investigation who are injured in the line of duty, 
may be entitled to care at the expense of the Office of Workers' 
Compensation Programs (OWCP) (see Sec. 728.53).
    (3) The following civilians who are injured or become ill while 
participating in Navy or Marine Corps sponsored sports, recreational or 
training activities may be rendered care on a temporary (emergency) 
basis until such time as disposition can be effected to another source 
of care.
    (i) Members of the Naval Sea Cadet Corps.
    (ii) Junior ROTC/NDCC (National Defense Cadet Corps) cadets.
    (iii) Civilian athletes training or competing as part of the U.S. 
Olympic effort.
    (iv) Civilians competing in Navy or Marine Corps sponsored 
competitive meets.
    (v) Members of Little League teams and Youth Conservation groups.
    (vi) Boy Scouts and Girl Scouts of America.
    (4) Other civilian personnel included below are not normally 
eligible for care in naval MTFs; however, under the conditions set 
forth, care may be rendered.
    (i) Potential beneficiaries.
    (A) Civilian representatives of religious groups.
    (B) Educational institutions representatives.
    (C) Athletic clinic instructors.
    (D) USO representatives.
    (E) Celebrities and entertainers.
    (F) Social agencies representatives.
    (G) Others in a similar status to those in Sec. 728.81(b)(4)(i) (A) 
through (F).
    (H) News correspondents.
    (I) Commercial airline pilots and employees.
    (J) Volunteer workers. This category includes officially recognized 
welfare workers, other than Red Cross.
    (ii) Care authorized. (A) Persons enumerated in paragraph (b)(4)(i) 
(A) through (G) of this section, who are contracted to provide direct 
services to the Armed Forces and who are acting under orders issued by 
the Department of Defense or one of the military departments to visit 
military commands overseas, and their accompanying dependents, may be 
provided medical care in naval MTFs outside the 48 contiguous United 
States and the District of Columbia provided local civilian facilities 
are not reasonably available or are inadequate. Limit inpatient care to 
acute medical and surgical conditions exclusive of nervous, mental, or 
contagious diseases, or those requiring domiciliary care. Routine dental 
care, other than dental prostheses and orthodontia, is authorized on a 
space available basis outside the United States, provided such care is 
not otherwise available in reasonably accessible and appropriate non-
Federal facilities.
    (B) Persons enumerated in paragraph (b)(4)(i) (H) and (I) of this 
section are authorized emergency medical and dental care in naval MTFs 
outside the 48

[[Page 336]]

contiguous United States and the District of Columbia provided local 
civilian facilities are not reasonably available or are inadequate.
    (C) Persons enumerated in paragraph (b)(4)(i)(J) of this section, 
both within and outside the 48 contiguous United States and the District 
of Columbia, may receive care in naval MTFs for injuries or diseases 
incurred in the performance of duty as beneficiaries of OWCP (see 
Sec. 728.53). Additionally, if such volunteers are sponsored by an 
international organization (e.g., the United Nations) or by a voluntary 
nonprofit-relief agency registered with and approved by the Advisory 
Committee on Voluntary Aid (e.g., CARE), they may receive other 
necessary nonemergency medical care and occupational health services 
while serving outside the 48 contiguous United States and the District 
of Columbia.
    (c) Charges and collection. Care is provided on a reimbursable 
basis. Complete and submit, per subpart J, a DD 7 (Report of Treatment 
Furnished Pay Patients, Hospitalization Furnished, part A) or DD 7A 
(Report of Treatment Furnished Pay Patients, Outpatient Treatment, part 
B) when outpatient or inpatient care is rendered.



Sec. 728.82  Individuals whose military records are being considered for correction.

    Individuals who require medical evaluation in connection with 
consideration of their individual circumstances by the Navy, Army, and 
Air Force Board for Correction of Military Records are authorized 
evaluation, including hospitalization when necessary for the proper 
conduct thereof.



Sec. 728.83  Persons in military custody and nonmilitary Federal prisoners.

    (a) Potential beneficiaries.
    (1) Military prisoners.
    (2) Nonmilitary Federal prisoners.
    (3) Enemy prisoners of war and other detained personnel.
    (b) Care authorized--(1) Military prisoners. (i) Whose punitive 
discharges have been executed but whose sentences have not expired are 
authorized all necessary medical and dental care.
    (ii) Whose punitive discharges have been executed and who require 
hospitalization beyond expiration of sentences are not eligible for care 
but may be hospitalized as civilian humanitarian nonindigents until 
final disposition can be made to some other appropriate facility.
    (iii) On parole pending completion of appellate review or whose 
parole changes to an excess leave status following completion of 
sentence to confinement while on parole are members of the military 
service and as such are authorized care as outlined in subpart B.
    (iv) On parole whose punitive discharge has been executed are not 
members of the military service and are therefore not entitled to care 
at Government expense. If the circumstances are exceptional, individuals 
herein who are not authorized care may request Secretarial designee 
status under the provisions of Sec. 728.77.
    (2) Nonmilitary Federal prisoners. Under the provisions of this 
section, nonmilitary Federal prisoners are authorized only emergency 
medical care. When such care is being rendered, the institution to which 
prisoners are sentenced must furnish necessary guards to effectively 
maintain custody of prisoners and assure the safety of other patients, 
staff members, and residents of the local area. Under no circumstances 
will military personnel be voluntarily used to guard or control such 
prisoners. Upon completion of emergency care, make arrangements for 
immediate transfer of the prisoners to a nonmilitary MTF or for return 
to the facility to which sentenced.
    (3) Enemy prisoners of war and other detained personnel. Subject to 
the provisions of Sec. 728.3, enemy prisoners of war and other detained 
personnel are entitled to and may be rendered all necessary medical and 
dental care.
    (c) Charges and collection. Care provided individuals enumerated in 
Sec. 728.83(b)(1) (ii), (iv), and (2) is on a reimbursable basis. 
Complete and submit, per subpart J, a DD 7 (Report of Treatment 
Furnished Pay Patients, Hospitalization Furnished, part A) or DD 7A 
(Report of Treatment Furnished Pay Patients, Outpatient Treatment, part 
B) when outpatient or inpatient care is rendered.

[[Page 337]]



                   Subpart H--Adjuncts to Medical Care



Sec. 728.91  General.

    Adjuncts to medical care include but are not limited to prosthetic 
devices such as artificial limbs, artificial eyes, hearing aids, 
orthopedic footwear, spectacles, wheel chairs, hospital beds, and 
similar medical support items or aids which are required for the proper 
care and management of the condition being treated. Generally, expenses 
incurred for procurement of such items, either from civilian sources as 
supplemental care or from stocks maintained by the facility, are payable 
from operation and maintenance funds available for support of naval 
MTFs. However, certain adjuncts may be cost-shared under CHAMPUS for 
CHAMPUS-eligible individuals under circumstances enumerated in the 
cooperative care or services criteria of Sec. 728.4(z).



Sec. 728.92  Policy.

    (a) Provide adjuncts to medical care to eligible beneficiaries 
receiving inpatient or outpatient care when, in the opinion of the 
attending physician, such adjuncts will offer substantial assistance in 
overcoming the handicap or condition and thereby contribute to the well-
being of the beneficiary.
    (b) Unless necessary for humanitarian reasons, do not furnish 
orthopedic and prosthetic appliances on an elective basis to members of 
the naval service with short periods of service remaining when the 
defect requiring the appliance existed prior to entry into service and 
when such members will be separated from the service because of these 
defects.
    (c) For active duty members, make the initial allowance of 
orthopedic footwear and orthopedic alterations to standard footwear the 
same quantity as provided in the initial clothing allowance.
    (d) Base the number of orthopedic and prosthetic appliances issued 
or replaced for other authorized recipients upon the individual's 
requirements as determined by the attending physician to be consistent 
with the highest standards of modern medicine.
    (e) Former members of the uniformed service should be advised that 
they may obtain durable medical equipment, medical care, and adjuncts 
from Veterans Administration facilities.
    (f) Dependents are authorized certain adjuncts per Secs. 728.31 (c) 
and (d) and in instances where items are not normally authorized at the 
expense of the Government, they may be provided at cost to the United 
States if available from Government stocks under the following 
conditions:
    (1) Outside the United States.
    (2) At specific stations within the United States which have been 
authorized by the Secretary of the Navy to sell these items.



Sec. 728.93  Chart of adjuncts.

    The following chart and footnotes provide information relative to 
adjuncts which may be furnished the several categories of beneficiaries 
eligible for medical care at naval MTFs.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Others authorized the same
              Adjuncts                 Active duty and retired      benefits as active duty or     Dependents authorized the    Other beneficiaries(\8\)
                                               members                 retired members(\8\)              same benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ambulance service..................  Yes........................  Yes...........................  Yes(\1\)...................  No
Artificial eyes....................  Yes........................  Yes...........................  Yes........................  Maybe(\3\)
Artificial limbs...................  Yes........................  Yes...........................  Yes........................  Maybe(\3\)
Contact or special lenses(\1\\1\)..  Yes(\4\)...................  Yes(\4\)......................  Maybe(\2\) (\4\) (\6\).....  No
Crutches(\7\)......................  Yes........................  Yes...........................  Yes........................  Yes
Dental prostheses..................  Yes........................  Yes...........................  Maybe(\9\).................  Maybe(\9\)
Elastic stockings..................  Yes........................  Yes...........................  Yes........................  Yes
Hearing aids(\1\\0\)...............  Yes(\5\)...................  Yes(\5\)......................  Maybe(\2\).................  Maybe(\3\)
Hearing aid parts and batteries....  Yes(\1\\0\)................  Yes(\1\\0\)...................  Maybe(\2\) (\1\\0\)........  No
Hospital beds (\7\)................  Yes........................  Yes...........................  Yes........................  Yes
Joint braces.......................  Yes........................  Yes...........................  Yes........................  Yes
Orthopedic footware................  Yes........................  Yes...........................  Maybe(\2\).................  Maybe(\3\)
Prosthetic devices, other(\7\).....  Yes........................  Yes...........................  Maybe(\2\).................  No
Respirators and inhalators(\7\)....  Yes........................  Yes...........................  Yes........................  Yes(\1\)
Resuscitators (\7\)................  Yes........................  Yes...........................  Yes........................  Yes(\1\)
Spectacles.........................  Yes........................  Yes...........................  Maybe(\2\) (\6\)...........  No
Walking irons(\7\).................  Yes........................  Yes...........................  Yes........................  Yes

[[Page 338]]

Wheel chairs(\7\)..................  Yes........................  Yes...........................  Yes........................  Yes
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ When considered medically appropriate by the attending physician.
\2\ See Sec.  728.92(f).
\3\ Outside the United States and at designated remote stations when considered medically appropriate by the attending physician.
\4\ Contact or special lenses are not to be issued solely for cosmetic reasons. Further guidelines are contained in NAVMEDCOMINST 6810.1.
\5\ In addition to the hearing aid, include in initial issue one spare receiver cord, approximately 1 month's supply of batteries, and a statement
  indicating make, model, type of receiver, serial number, code, part numbers, ``B'' battery voltage, and type of ``A'' and ``B'' batteries, as
  appropriate. Provide replacement of hearing aids upon the same basis as initial issue and, except in unusual circumstances, will not be replaced
  within 2 years of the initial furnishing or the last replacement of the appliance.
\6\ Spectacles, contact lenses, or intraocular lenses may be provided dependents with eye conditions which require these items for complete medical or
  surgical management of a condition other than ordinary refractive error. For further information, consult NAVMEDCOMINST 6810.1.
\7\ May be loaned on a custody basis at the discretion of the attending physician.
\8\ See subpart of this part relating to specific beneficiary.
\9\ When considered by the attending physician and dentist to be an adjunct to a medical or surgical condition other than dental and when in consonance
  with existing legislation and directives.
\10\ For further guidelines, consult BUMEDINST 6320.41B.
\11\ Includes intraocular lenses required for implantation upon removal of cataracts.



  Subpart I--Reservists--Continued Treatment, Return to Limited Duty, 
            Separation, or Retirement for Physical Disability



Sec. 728.101  General.

    (a) Notice of eligibility (NOE). While the NOE is basically a 
document that substantiates entitlement to a disability benefit equal to 
pay and allowances, it may be accepted when required to substantiate 
eligibility for benefits other than pay and allowances, i.e., treatment 
in USMTFs under the provisions of title 10, United States Code.
    (b) Physical disability benefits. The following, excerpted and 
paraphrased from SECNAVINST 1770.3, paragraph 10, is applicable when a 
reservist may be entitled to physical disability benefits.
    (1) When a notice of eligibility (NOE) has been issued to a member 
hospitalized in a naval MTF and the attending physician is of the 
opinion that recovery is not anticipated or that the reservist is not 
expected to be fit for return to full duty within a reasonable period, a 
medical board will be convened and the case managed the same as that of 
a Regular member. Assure that a copy of the NOE accompanies the medical 
board report forwarded to the Central Physical Evaluation Board. 
Disability benefits, equal to pay and allowances, will continue in such 
instances until final disposition.
    (2) There is no limited duty status, per se, for inactive 
reservists. However, if the attending physician determines that a 
reservist is temporarily unfit for full duty, but will be fit for full 
duty following a period of convalescence or following duty with physical 
limitations, not to exceed 6 months, the physician may return the 
reservist to duty with a summary of the hospitalization or treatment. 
The summary will set forth the limitations posed by the member's 
disability and the period of such limitations. Followup hospitalization, 
treatment, and evaluation for the same condition may be provided at 
USMTFs during the period of restricted duty, if required. If, during the 
period of the restricted duty, it appears that the reservist will be 
permanently unfit for full duty, promptly authorize the reservist to 
report for evaluation, treatment if required, and appearance before a 
medical board at the nearest naval MTF capable of accomplishing same. 
Admission to the sicklist is authorized, when required. Should the 
medical board recommend appearance before a physical evaluation board, 
disability benefits equal to pay and allowances should continue until 
final disposition is effected.



Sec. 728.102  Care from other than Federal sources.

    The provisions of this subpart do not authorize care for reservists 
at other than Federal facilities nor out of funds available for 
operation of USMTFs

[[Page 339]]

(supplemental care) after a period of active duty or a period of 
training duty ends, including travel to and from such training. Such 
care may be rendered under the provisions of part 732 of this chapter.



         Subpart J--Initiating Collection Action on Pay Patients



Sec. 728.111  General.

    The Comptroller of the Navy has approved a system of transactions 
that generates reports to COMNAV MEDCOM on unfunded reimbursable 
transactions. The purpose of the final report is to provide data on 
services furnished by naval health care facilities for which central 
collection from other Government agencies and private parties is 
required.



Sec. 728.112  Responsibilities.

    (a) Patient administration departments. The initiation of the 
collection process begins with patient administration departments. 
Collection action cannot be accomplished unless patient administration 
departments take the initial step to complete:
    (1) DD 7, Report of Treatment Furnished Pay Patients, 
Hospitalization Furnished (part A). Prepare a separate substantiating DD 
7, in triplicate, for each category of pay patient receiving inpatient 
care. At the end of each day that any pay patient is admitted, submit DD 
7's to the collection agent.
    (2) DD 7A, Report of Treatment Furnished Pay Patients, Outpatient 
Treatment Furnished (part B). Prepare a separate substantiating DD 7A, 
in triplicate, for each category of pay patient receiving outpatient 
care. At the end of each day that any pay patient is treated on an 
outpatient basis, submit DD 7A's to the collection agent.
    (b) Collection agents. Upon receipt of a completed DD 7 or DD 7A, 
collection agents will take the action indicated in paragraph 24304 of 
the Resource Management Handbook, NAVMED P-5020, to effect central 
collection action.



Sec. 728.113  Categories of pay patients.

    The categories of patients for whom collection action must be 
initiated are:
    (a) Coast Guard. (1) Active Officers; (2) Retired Officers; (3) 
Active Enlisted; (4) Retired Enlisted; (5) Dependents; (6) Cadets.
    (b) Public Health Service. (1) Active Officers; (2) Retired 
Officers; (3) Dependents of Officers.
    (c) National Oceanic and Atmospheric Administration (NOAA). (1) 
Active Officers; (2) Retired Officers; (3) Dependents of Officers.
    (d) Foreign. (1) NATO Officers (Except Canadians provided care under 
the comparable care agreement.); (2) NATO Enlisted (Except Canadians 
provided care under the comparable care agreement.); (3) NATO 
Dependents; (4) Civilians Accompanying NATO Members; (5) Foreign 
Military Sales (FMS) Officers; (6) FMS Enlisted; (7) FMS Dependents; (8) 
FMS Civilians; (9) Military Grant Aid Officers; (10) Military Grant Aid 
Enlisted; (11) Military Grant Aid Dependents; (12) Military Grant Aid 
Civilians; (13) Military Officers From Other Than NATO Nations; (14) 
Military Enlisted From Other Than NATO Nations; (15) Dependents of 
Officers and Enlisted From Other Than NATO Nations; (16) Civilians 
Accompanying Military Members of Other Than NATO Nations; (17) Nationals 
and Their Dependents.
    (e) Secretarial designees not exempted from paying.
    (f) Others. (1) Merchant Marines; (2) Military Sealift Command (MSC) 
Personnel; (3) Public Health Service beneficiaries (Other than 
Commissioned Corps); (4) Veterans Administration beneficiaries; (5) 
Peace Corps beneficiaries; (6) Job Corps beneficiaries; (7) Volunteers 
In Service to America (VISTA) beneficiaries; (8) Office of Workers 
Compensation Program (OWCP) beneficiaries; (9) Bureau of Employees 
Compensation (BEC) beneficiaries; (10) Department of State and Other 
Federal Agencies beneficiaries (prepare a separate form for each Federal 
agency); (11) Civilian Humanitarian Nonindigents (CHNI); (12) Trust 
Territory beneficiaries; (13) Others not specified above who are not 
entitled to health benefits at the expense of the Government.

[[Page 340]]



PART 732--NONNAVAL MEDICAL AND DENTAL CARE--Table of Contents




                           Subpart A--General

Sec.
732.1  Background.
732.2  Action.

        Subpart B--Medical and Dental Care from Nonnaval Sources

732.11  Definitions.
732.12  Eligibility.
732.13  Sources of care.
732.14  Authorized care.
732.15  Unauthorized care.
732.16  Emergency care requirements.
732.17  Nonemergency care requirements.
732.18  Notification of illness or injury.
732.19  Claims.
732.20  Adjudication authorities.
732.21  Medical board.
732.22  Recovery of medical care payments.
732.23  Collection for subsistence.
732.24  Appeal procedures.

 Subpart C--Accounting Classifications for Nonnaval Medical and Dental 
               Care Expenses and Standard Document Numbers

732.25  Accounting classifications for nonnaval medical and dental care 
          expenses.
732.26  Standard document numbers.

    Authority: 5 U.S.C. 301; 10 U.S.C. 1071-1088, 5031, 6148, 6201-6203, 
and 8140; and 32 CFR 700.1202.

    Source: 52 FR 32297, Aug. 27, 1987, unless otherwise noted.



                           Subpart A--General



Sec. 732.1  Background.

    When a U.S. Navy or Marine Corps member or a Canadian Navy or Marine 
Corps member receives authorized care from other than a Navy treatment 
facility, care is under the cognizance of the uniformed service medical 
treatment facility (USMTF) providing care, the USMTF referring the 
member to another treatment source, or under the provisions of this 
part. If such a member is not receiving care at or under the auspices of 
a Federal source, responsibility for health and welfare, and the 
adjudication of claims in connection with their care, remains within the 
Navy Medical Department. Part 728 of this chapter and NAVMEDCOMINST 
6320.18 contain guidelines concerning care for other eligible 
beneficiaries, not authorized care by this part.



Sec. 732.2  Action.

    Ensure that personnel under your cognizance are made aware of the 
contents of this part. Failure to comply with contents may result in 
delayed adjudication and payment or may result in denial of Navy 
financial responsibility for expenses of maternity, medical, or dental 
care obtained.



        Subpart B--Medical and Dental Care From Nonnaval Sources



Sec. 732.11  Definitions.

    Unless otherwise qualified in this part the following terms when 
used throughout are defined as follows:
    (a) Active duty. Full-time duty in the active military service of 
the United States. Includes full-time training duty; annual training 
duty; and attendance, while in the active military service, at a school 
designated as a service school by law or by the Secretary of the 
military department concerned.
    (b) Active duty for training. A specified tour of active duty for 
Reserves for training under orders that provides for automatic reversion 
to non-active duty status when the specified period of active duty is 
completed. It includes annual training, special tours, and the initial 
tour performed by enlistees without prior military service. The period 
of duty includes travel to and from training duty, not in excess of the 
allowable constructive travel time prescribed by SECNAVINST 1770.3 and 
paragraphs 10242 and 10243 of DOD Military Pay and Allowances 
Entitlements Manual.
    (c) Constructive return. For purposes of medical and dental care, an 
unathorized absentee's return to military control may be accomplished 
through notification of appropriate military authorities as outlined 
below.
    (1) For members in an unauthorized absentee (UA) status, 
constructive return to military control for the purpose of providing 
medical or dental care at Navy expense is effected when one of the 
following has occurred:
    (i) A naval activity informs a civilian provider of medical or 
dental care that

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the Navy accepts responsibility for a naval member's care. The naval 
activity providing this information must also provide documentation of 
such notification to the appropriate adjudication authority in 
Sec. 732.20.
    (ii) A member has been apprehended by civil authorities at the 
specific request of naval authorities and naval authorities have been 
notified that the member can be released to military custody.
    (iii) A naval member has been arrested, while in a UA status, by 
civil authorities for a civil offense and a naval authority has been 
notified that the member can be released to military control.
    (2) When a naval member has been arrested by civil authorities for a 
civil offense while in a UA status and the offense does not allow 
release to military control, constructive return is not accomplished. 
The individual is responsible for medical and dental care received prior 
to arrest and the incarcerating jurisdiction is responsible for care 
required after arrest.
    (d) Designated Uniformed Services Treatment Facilities (Designated 
USTFs). Under Pub. L. 97-99, the following facilities are ``designated 
USTFs'' for the purpose of rendering medical and dental care to all 
categories of individuals entitled to care under this part.
    (1) Sisters of Charity of the Incarnate Word Health Care System, 
6400 Lawndale, Houston, TX 77058 (713) 928-2931 operates the following 
facilities:
    (i) St. John Hospital, 2050 Space Park Drive, Nassau Bay, TX 77058, 
telephone (713) 333-5503. Inpatient and outpatient services.
    (ii) St. Mary's Hospital Outpatient Clinic, 404 St Mary's Boulevard, 
Galveston, TX 77550, telephone (409) 763-5301. Outpatient services only.
    (iii) St. Joseph Hospital Ambulatory Care Center, 1919 La Branch, 
Houston, TX 77002, telephone (713) 757-1000. Outpatient services only.
    (iv) St Mary's Hospital Ambulatory Care Center, 3600 Gates 
Boulevard, Port Arthur, TX 77640 (409) 985-7431. Outpatient services 
only.
    (2) Inpatient and outpatient services. (i) Wyman Park Health System, 
Inc., 3100 Wyman Park Drive, Baltimore, MD 21211, telephone (301) 338-
3693.
    (ii) Alston-Brighton Aid and Health Group, Inc., Brighton Marine 
Public Health Center, 77 Warren Street, Boston, MA 02135, telephone 
(617) 782-3400.
    (iii) Bayley Seton Hospital, Bay Street and Vanderbilt Avenue, 
Staten Island, NY 10304, telephone (718) 390-5547 or 6007.
    (iv) Pacific Medical Center, 1200 12th Avenue South, Seattle, WA 
98144, telephone (206) 326-4100.
    (3) Outpatient services only. (i) Coastal Health Service, 331 
Veranda Street, Portland, ME 04103 (207) 774-5805.
    (ii) Lutheran Medical Center, Downtown Health Care Services, 1313 
Superior Avenue, Cleveland, OH 44113, telephone (216) 363-2065.
    (e) Duty status. The situation of the claimant when maternity, 
medical, or dental care is received. Members, including reservists, on 
leave or liberty are considered in a duty status. Reservists, performing 
active duty for training or inactive duty training, are also considered 
in a duty status during their allowable constructive travel time to and 
from training.
    (f) Emergency care. Medical treatment of severe life threatening or 
potentially disabling conditions which result from accident or illness 
of sudden onset and necessitates immediate intervention to prevent undue 
pain and suffering or loss of life, limb, or eyesight and dental 
treatment of painful or acute conditions.
    (g) Federal facilities. Navy, Army, Air Force, Coast Guard, Veterans 
Administration, and USTFs (former U.S. Public Health Service facilities 
listed in Sec. 732.11(d).
    (h) Inactive duty training. Duty prescribed for Reserves by the 
Secretary of the Navy under Section 206 of Title 37, United States Code, 
or any other provision of law. Also includes special additional duties 
authorized for Reserves by an authority designated by the Secretary of 
the Navy and performed by Reserves on a voluntary basis in connection 
with the prescribed training or maintenance activities of units to which 
they are assigned.
    (i) Maternity emergency. A condition commencing or exacerbating 
during pregnancy when delay caused by referral to a uniformed services 
medical

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treatment facility (USMTF) or designated USTF would jeopardize the 
welfare of the mother or unborn child.
    (j) Member. United States Navy and Marine Corps personnel, 
Department of National Defence of Canada Navy and Marine Corps 
personnel, and Navy and Marine Corps personnel of other NATO Nations 
meeting the requirements for care under this part.
    (k) Non-federal care. Maternity, medical, or dental care furnished 
by civilian sources (includes State, local, and foreign MTFs).
    (l) Nonnaval care. Maternity, medical, or dental care provided by 
other than Navy MTFs. Includes care in other USMTFs, designated USTFs, 
VA facilities, as well as from civilian sources.
    (m) Office of Medical Affairs (OMA) or Office of Dental Affairs 
(ODA). Designated offices, under program management control of 
COMNAVMEDCOM and direct control of regional medical commands, 
responsible for administrative requirements delineated in this part. 
Responsibilities and functional tasks of OMAs and ODAs are outlined in 
NAVMEDCOMINST 6010.3.
    (n) Prior approval. Permission granted for a specific episode of 
necessary but nonemergent maternity, medical, or dental care.
    (o) Reservist. A member of the Naval or Marine Corps Reserve.
    (p) Supplemental care--(1) Operation and maintenance funds, Navy. 
Supplemental care of all uniformed services members, at Navy expense, 
encompasses only inpatient or outpatient care augmenting the capability 
of a naval MTF treating a member. Such care is usually obtained from 
civilian sources through referral by the treating naval MTF. If a 
member, authorized care under this part, is admitted to or is being 
treated on an outpatient basis at any USMTF, all supplemental care is 
the financial responsibility of that facility regardless of whether the 
facility is organized or authorized to provide needed health care. The 
cost of such care is chargeable to operation and maintenance funds 
(OM&N) available for operation of the USMTF requesting the care 
regardless of service affiliation of the member (see part 728 of this 
chapter for such care under Navy Medical Department facilities).
    (2) Nonnaval medical and dental care program funds. Adjudication 
authorities will pay claims, under this part, for care received as a 
result of a referral when:
    (i) A United States Navy or Marine Corps member or a Canadian Navy 
or Marine Corps member requires care beyond the capability of the 
referring USMTF and care is obtained for such a member not admitted to 
or not being treated on an outpatient basis by a USMTF, and
    (ii) The referring USMTF is not organized nor authorized to provide 
the needed health care.
    (3) Other uniformed services supplemental care programs. In addition 
to services that augment other USMTF's capabilities, supplemental care 
programs of the other uniformed services include care and services 
comparable to those authorized by this part, e.g., emergency care and 
pre-approved nonemergency care.
    (q) Unauthorized absence. Absence or departure without authority 
from a member's command or assigned place of duty.
    (r) Uniformed Services Medical Treatment Facilities (USMTF). Health 
care facilities of the Navy, Army, Air Force, Coast Guard, and the 
former U.S. Public Health Service facilities listed in paragraph (d) of 
this section designated as USTFs per DOD and Department of Health and 
Human Services directives.



Sec. 732.12  Eligibility.

    (a) Regular members. To be eligible for non-Federal medical, dental, 
or emergency maternity care at Government expense, Regular active duty 
United States naval members and Canadian Navy and Marine Corps members 
must be in a duty status when care is provided.
    (b) Reservists. (1) Reservists on active duty for training and 
inactive duty training, including leave and liberty therefrom, are 
considered to be in a duty status while participating in training. 
Accordingly, they are entitled to care for illnesses and injuries 
occurring while in that status.
    (2) Reservists are entitled to care for injuries and illnesses 
occurring during

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direct travel enroute to and from active duty training (ACDUTRA) and to 
and from inactive duty training.
    (c) NATO naval members. Naval members of the NATO Status of Forces 
Agreement (SOFA) nations of Belgium, Denmark, Federal Republic of 
Germany, France, Greece, Iceland, Italy, Luxembourg, the Netherlands, 
Norway, Portugal, Spain, Turkey, and the United Kingdom, are authorized 
outpatient care only under the provisions of this part when stationed in 
or passing through the United States in connection with official duties. 
Public Law 99-591 prohibits inpatient care of these foreign military 
members in the United States at the expense of the United States 
Government. The other NATO SOFA Nation, Canada, entered into a 
comparable care agreement with the United States requiring the United 
States to provide inpatient and outpatient care under the provisions of 
this part to members of the Department of National Defence of Canada 
receiving care in the United States.
    (d) Absent without authority. Naval members absent without authority 
during an entire episode of treatment are not eligible for non-Federal 
medical, dental, or emergency maternity care at Government expense. The 
only exception occurs when a member's illness or injury is determined to 
have been the direct cause of the unauthorized absentee status. In such 
an instance, eligibility will be:
    (1) Determined to have existed from the day and hour of such injury 
or illness provided the member was not in an unauthorized absentee 
status prior to the onset of the illness or injury and initiation of 
treatment.
    (2) Retained when the member is returned directly to military 
control.
    (3) Terminated should the member return to an unauthorized absentee 
status immediately after completion of treatment. Departmental level 
(MEDCOM-333 for medical and MEDCOM-06 for dental) review is required 
before benefits may be extended.
    (e) Constructive return. When constructive return, defined in 
Sec. 732.11(c), is effected, entitlement will be determined to have 
existed from 0001 hours of the day of constructive return, not 
necessarily the day and hour care was initiated.



Sec. 732.13  Sources of care.

    (a) Initial application. If a member requires maternity, medical, or 
dental care and naval facilities are unavailable, make initial 
application to other available Federal medical or dental facilities or 
USTFs. When members are stationed in or passing through a NATO SOFA 
nation and U.S. facilities are unavailable, ensure that members make 
initial application for emergency and nonemergency care to military 
facilities of the host country, or if applicable, to civilian sources 
under the NATO SOFA nation's health care program. When hospitalized in 
Hawaii, Alaska, or in a foreign medical facility, members and 
responsible commands will comply with OPNAVINST 6320.6.
    (b) Secondary sources. When either emergency or nonemergency care is 
required and there are no Federal or NATO SOFA facilities available, 
care may be obtained from non-Federal sources under this part.



Sec. 732.14  Authorized care.

    (a) Medical. (1) Consultation and treatment provided by physicians 
or at medical facilities, and procedures not involving treatment when 
directed by COMNAVMEDCOM, are authorized. Such care includes, but is not 
limited to: treatment by physicians, hospital inpatient and outpatient 
care, surgery, nursing, medicine, laboratory and x-ray services, 
physical therapy, eye examinations, etc. See Sec. 732.17 for prior 
approval of these services in nonemergency situations.
    (2) When transplant (including bone-marrow) is the treatment of 
choice, COMNAVMEDCOM approval is required. If time permits, telephone 
(A) 294-1102, (C) (202) 653-1102 during regular hours or (A) 294-1327, 
(C) 653-1327 after regular duty hours, and followup with a message. 
Request approval via message in nonemergency situations.
    (b) Maternity episode. If a member authorized care under this part 
qualifies for care under the provisions of Sec. 732.17(c) and delivers 
in a civilian hospital, routine newborn care (i.e., nursery, newborn 
examination, PKU test,

[[Page 344]]

etc.) is a part of the mother's admission expenses. Regardless of 
circumstances necessitating delivery in a civilian facility or how 
charges are separated on the bill, charges will be paid from funds 
available for care of the mother. If the infant becomes a patient in his 
or her own right--through an extension of the birthing hospital stay 
because of complications, transfer to another facility, or subsequent 
admission--the provisions of part 728 of this chapter and NAVMEDCOMINST 
6320.18 are applicable, and the sponsor becomes responsible for a part 
of the medical expenses incurred.
    (c) Dental. (1) With prior approval, the following may be provided:
    (i) All types of treatment (including operative, restorative, and 
oral surgical) to relieve pain and abort infection.
    (ii) Prosthetic treatment to restore extensive loss of masticatory 
function or the replacement of anterior teeth for esthetic reasons.
    (iii) Repair of existing dental prostheses when neglect of the 
repair would result in unserviceability of the appliance.
    (iv) Any type of treatment adjunctive to medical or surgical care.
    (v) All x-rays, drugs, etc., required for treatment or care in 
paragraphs (c)(1) (i) through (iv) of this section.
    (2) In emergencies (no prior approval), only measures appropriate to 
relieve pain or abort infection are authorized.
    (d) Eye refractions and spectacles. Includes refractions of eyes by 
physicians and optometrists and furnishing and repairing spectacles.
    (1) Refractions. A refraction may be obtained from a civilian source 
at Government expense only when Federal facilities are not available, no 
suitable prescription is in the member's Health Record, and the 
cognizant OMA or referring USMTF has given prior approval.
    (2) Spectacles. When a member has no suitable spectacles and the 
lack thereof, combined with the delay in obtaining suitable ones from a 
Federal source would prevent performance of duty; repair, replacement, 
or procurement from a civilian source may be authorized upon initiation 
of an after-the-fact request per Sec. 732.17. Otherwise, the 
prescription from the refractionist, with proper facial measurements, 
must be sent for fabrication to the appropriate dispensing activity set 
forth in NAVMED COMINST 6810.1. See Sec. 732.15(g) concerning contact 
lenses.



Sec. 732.15  Unauthorized care.

    The following are not authorized by this part:
    (a) Chiropractic services.
    (b) Vasectomies.
    (c) Tubal ligations.
    (d) Breast augmentations or reductions.
    (e) Psychiatric care, beyond the initial evaluation.
    (f) Court ordered care.
    (g) Contact lenses.
    (h) Other elective procedures.



Sec. 732.16  Emergency care requirements.

    Only in a bona fide emergency will medical, maternity, or dental 
services be obtained under this part by or on behalf of eligible 
personnel without prior authority as outlined below.
    (a) Medical or dental care. A situation where the need or apparent 
need for medical or dental attention does not permit obtaining approval 
in advance.
    (b) Maternity care. When a condition commences or exacerbates during 
pregnancy in a manner that a delay, caused by referral to a USMTF or 
USTF, would jeopardize the welfare of the mother or unborn child, the 
following constitutes indications for admission to or treatment at a 
non-Federal facility:
    (1) Medical or surgical conditions which would constitute an 
emergency in the nonpregnant state.
    (2) Spontaneous abortion, with first trimester hemorrhage.
    (3) Premature or term labor with delivery.
    (4) Severe pre-eclampsia.
    (5) Hemorrhage, second and third trimester.
    (6) Ectopic pregnancy with cardiovascular instability.
    (7) Premature rupture of membrames with prolapse of the umbilical 
cord.
    (8) Obstetric sepsis.
    (9) Any other obstetrical condition that, by definition, constitutes 
an emergency circumstance.

[[Page 345]]



Sec. 732.17  Nonemergency care requirements.

    Members are cautioned not to obtain nonemergency care from civilian 
sources without prior approval from the cognizant adjudication authority 
in Sec. 732.20. Obtaining nonemergency care, other than as specified 
herein, without documented prior approval may result in denial by the 
Government of responsibility for claims arising from such care.
    (a) Individual prior approval. (1) Submit requests for prior 
approval of nonemergency care (medical, dental, or maternity) from non-
Federal sources to the adjudication authority (Sec. 732.20) serving the 
geographic area where care is to be obtained. When the requirements of 
Sec. 732.14(d)(2) are met and spectacles have been obtained, request 
after-the-fact approval per this paragraph.
    (2) Submit requests on a NAVMED 6320/10. Statement of Civilian 
Medical/Dental Care, with blocks 1 through 7 and 19 through 25 
completed. Assistance in completing the NAVMED 6320/10 can be obtained 
from the health benefits advisor (HBA) at the nearest USMTF.
    (3) Upon receipt, the adjudication authority will review the request 
and, if necessary, forward it to the appropriate chief of service with 
an explanation of non-Federal care regulations pertaining to the 
request. The chief of service will respond to the request within 24 
hours. The adjudication authority will then complete blocks 26 and 27, 
and return the original of the approved/disapproved NAVMED 6320/10 to 
the member.
    (b) Blanket prior approval. (1) Recruiting offices and other 
activities far removed from USMTFs, uniformed services dental treatment 
facilities (USDTFs), designated USTFs, and VA facilities may request 
blanket approval for civilian medical and dental care of assigned active 
duty personnel. Letter requests should be submitted to the adjudication 
authority (Sec. 732.20) assigned responsibility for the geographic area 
of the requestor.
    (2) With full realization that such blanket approval is an 
authorization to obligate the Government without individual prior 
approval, adjudication authorities will ensure that:
    (i) Each blanket approval letter specifies a maximum dollar amount 
allowable in each instance of care.
    (ii) The location of the activity receiving blanket approval 
authority is clearly delineated.
    (iii) Travel distance and time required to reach the nearest USMTF, 
USDTF, designated USTF, or VA facility have been considered.
    (iv) Certain conditions are specifically excluded, e.g., psychiatric 
care and elective surgical procedures. These conditions will continue to 
require individual prior approval.
    (v) COMNAVMEDCOM (MEDCOM-333) is made an information addressee on 
each letter of authorization.
    (c) Maternity care. (1) Pregnant active duty members residing 
outside Military Health Services System (MHSS) inpatent catchment areas 
of uniformed services facilities (including USTFs), designated in 
Volumes I, II, and III of MHSS Catchment Area Directories, are permitted 
to choose whether to deliver in a closer civilian hospital or travel to 
a USMTF or USTF for delivery. If the Government is to assume financial 
responsibility for non-Federal maternity care of any member regardless 
of where she resides, the member must obtain individual prior approval 
as outlined in paragraph (a) of this section. Adjudication authorities 
should not approve requests from members residing within an inpatient 
MHSS catchment area unless:
    (i) Capability does not (did not) exist at the USMTF or other 
Federal MTF serving her catchment area.
    (ii) An emergency situation necessitated delivery or other treatment 
in a non-Federal facility (Sec. 732.16(b)).
    (2) Normal delivery at or near the expected delivery date should not 
be considered an emergency for members residing within an MHSS inpatient 
catchment area where delivery was expected to occur and, unless provided 
for in this part, will not be reason for delivery in a civilian facility 
at Government expense.
    (3) When granted leave that spans the period of an imminent 
delivery, the pregnant member should request a copy of her complete 
prenatal care

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records from the prenatal care physician. The physician should note in 
the record whether the member is clear to travel. If receiving prenatel 
care from a USMTF, the HBA will assist the member in obtaining a 
statement bearing the name of the MTF (may be an OMA) with 
administrative responsibility for the geographic area of her leave 
address, including the telephone number of the head of the patient 
administration department or HBA, if available. If a member is receiving 
prenatal care from other than a USMTF, she should avail herself of the 
services of the nearest HBA to effect the aforestated services. This 
statement should be attached to the approved leave request. In normal 
deliveries, requests for after-the-fact approval should be denied when 
members have not attempted to adhere to the provisions of this part.
    (4) Upon arrival at the designated leave address, members should 
contact the MTF indicated on the statement attached to their leave 
request. The MTF will make a determination whether the member's leave 
address falls within the inpatient catchment area of a USMTF or USTF 
with the capability of providing needed care. If no such USMTF or USTF 
exists, the member will be given the opportunity to choose to deliver in 
a civilian hospital closer to her leave address or travel to the most 
accessible USMTF or USTF with capability for maternity care.
    (5) Upon determination that civilian sources will be used for 
maternity care, the MTF listed on the attachment to the leave papers 
will inform the member that she (or someone acting in her behalf) must 
notify that MTF of the member's admission for delivery or other 
inpatient care so that medical cognizance can be initiated.
    (6) Automatically grant prior or retroactive approval, as the 
situation warrants, to members requiring maternity care while in a 
travel status in the execution of permanent change of station (PCS) 
orders.
    (d) Nonemergency care without prior approval. (1) If it becomes 
known that a member intends to seek medical or dental care (inpatient or 
outpatient) from a non-Federal source and prior approval has not been 
granted for the use of the Nonnaval Medical and Dental Care Program, the 
member must be counseled by, or in the presence of, a Medical Department 
officer. Request that the member sign a statement on an SF 600, 
Chronological Record of Medical Care, or an SF 603 or 603A, Health 
Record, Dental as appropriate, for inclusion in the member's Health 
Record. The statement must specify that counseling has been 
accomplished, and that the member understands the significance of 
receiving unauthorized civilian care. This must be accomplished when 
either personal funds or third party payor (insurance) funds are 
intended to be used to defray the cost of care. Counseling will include:
    (i) Availability of care from a Federal source.
    (ii) The requirement for prior approval if the Government may be 
expected to defray any of the cost of such care.
    (iii) Information regarding possible compromise of disability 
benefits should a therapeutic misadventure occur.
    (iv) Notification that should hospitalization become necessary, or 
other time is lost from the member's place of duty, such lost time may 
be chargeable as ``ordinary leave.''
    (v) Notification that the Government cannot be responsible for out-
of-pocket expenses which may be required by the insurance carrier or 
when the member does not have insurance which covers the cost of 
contemplated care.
    (vi) Direction to report to a uniformed services medical officer 
(preferably Navy) upon completion of treatment for determination of 
member's fitness for continued service.
    (2) If it becomes known that a member has already received non-
Federal medical care without prior authorization, refer the member to a 
uniformed services medical officer (preferably Navy) to determine 
fitness for continued service. At this time, counseling measures 
delineated in paragraph (d)(1)(iii), (iv), and (v) of this section must 
be taken.



Sec. 732.18  Notification of illness or injury.

    (a) Member's responsibility. (1) If able, members must notify or 
cause their

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parent command, the nearest naval activity, or per OPNAVINST 6320.6, the 
nearest U.S. Embassy or consulate when hospitalized in a foreign medical 
facility to be notified as soon as possible of the circumstances 
requiring medical or dental attention in a non-Federal facility. The 
member will also assure (request the facility to make notification if 
unable to do so personally) that the following information is passed to 
the adjudication authority serving the area of the source of care 
(Sec. 732.20). This notification is in addition to the requirements of 
article 4210100 of the Military Personnel Command Manual (MILPERSMAN) or 
Marine Corps Order 6320.3B, as appropriate. The adjudication authority 
will then arrange for transfer of the member and, if appropriate, 
newborn infant(s), to a Federal facility or for such other action as is 
appropriate.
    (i) Name, grade or rate, and social security number of patient.
    (ii) Name of non-Federal medical or dental facility rendering 
treatment.
    (iii) Date(s) of such treatment.
    (iv) Nature and extent of treatment or care already furnished.
    (v) Need or apparent need for further treatment (for maternity 
patients, need or apparent need for further care of infant(s) also).
    (vi) Earliest date on which transfer to a Federal facility can be 
effected.
    (vii) Telephone number of attending physician and patient.
    (2) Should movement be delayed due to actions of the member or the 
member's family, payment may be denied for all care received after 
provision of written notification by the adjudication authority.
    (3) The denial is Sec. 732.18(a)(2) will be for care received after 
the member's condition has stabilized and after the cognizant 
adjudication authority has made a request to the attending physician and 
hospital administration for the member's release from the civilian 
facility. This notification must specify:
    (i) Date and time the Navy will terminate its responsibility for 
payment.
    (ii) That care rendered subsequent to receipt of the written 
notification is at the expense of the member.
    (b) Adjudication authority. As soon as it is ascertained that a 
member is being treated in a nonnaval facility, adjudication authorities 
must make the notifications required in MILPERSMAN, article 4210100.11. 
See part 728 of this chapter on message drafting and information 
addressees.
    (1) Article 4210100.11 of the MILPERSMAN requires submission of a 
personnel casualty report, by priority message, to the primary and 
secondary next of kin (PNOK/SNOK) of Navy members seriously or very 
seriously ill or injured, and on those terminally ill (diagnosed and 
confirmed). While submission of the personnel casualty report to the 
PNOK and SNOK is a responsibility of the member's command, adjudication 
authorities must advise the member's command when such a member is being 
treated or diagnosed by non-Federal sources. The message will also 
request forwarding of the member's service and medical records to the 
personnel support detachment (PSD) supporting the activity in which the 
OMA is located. Additionally, the notification should contain a request 
for appropriate orders, either temporary additional duty (TEMADD) or 
temporary duty (TEMPDU).
    (i) Request TEMADD orders if care is expected to terminate within 
the time constraints imposed for these orders.
    (ii) Request TEMDU Under Treatment orders for members hospitalized 
in a NMTF within the adjudication authority's area of responsibility.
    (2) Make prompt message notification to the member's commanding 
officer when apprised of any medical condition, including pregnancy, 
which will now or in the foreseeable future result in loss of a member's 
full duty services in excess of 72 hours. Mark the message ``Commanding 
Officer's Eyes Only.''



Sec. 732.19  Claims.

    (a) Member's responsibility. Members receiving care are responsible 
for preparation and submission of claims to the cognizant adjudication 
authority identified in Sec. 732.20. A complete claim includes:
    (1) NAVMED 6320/10, Statement of Civilian Medical/Dental Care. In 
addition to its use as an authorization document, the original and three 
copies of a

[[Page 348]]

NAVMED 6320/10 are required to adjudicate claims in each instance of 
sickness, injury, or maternity care when treatment is received from a 
non-Federal source under the provisions of this part. The form should be 
prepared by a naval medical or dental officer, when practicable, by the 
senior officer present where a naval medical or dental officer is not on 
duty, or by the member receiving care when on detached duty where a 
senior officer is not present.
    (i) For nonemergency care with prior approval, submit the NAVMED 
6320/10 containing the prior approval, after completing blocks 8 through 
18.
    (ii) For emergency care (or nonemergency care without prior 
approval), submit a NAVMED 6320/10 after completing blocks 1 through 18. 
Assure that the diagnosis is listed in block 10. If prior approval was 
not obtained, state in block 11 circumstances necessitating use of non-
Federal facilities.
    (iii) Signature by the member in block 17 implies agreement for 
release of information to the responsible adjudication authority 
receiving the claim for processing. Signature by the certifying officer 
in block 18 will be considered certification that documentation has been 
entered in the member's Health Record as directed in article 16-24 of 
MANMED.
    (2) Itemized bills. The original and three copies of itemized bills 
to show:
    (i) Dates on or between which services were rendered or supplies 
furnished.
    (ii) Nature of and charges for each item.
    (iii) Diagnosis.
    (iv) Acknowledgment of receipt of the services or supplies on the 
face of the bill or by separate certificate. The acknowledgment must 
include the statement. ``Services were received and were satisfactory.''
    (3) Claims for reimbursement. To effect reimbursement, also submit 
the original and three copies of paid receipts and an SF 1164. Claim for 
Reimbursement for Expenditures on Official Business, completed per 
paragraphs 046377-2 a and b of the Naval Comptroller Manual (NAVCOMPT 
MAN).
    (4) Notice of eligibility (NOE) and line of duty (LOD) 
determination. When a reservist claims benefits for care received 
totally after the completion of either an active duty or active duty for 
training period, the claim should also include:
    (i) An NOE issued per SECNAVINST 1770.3.
    (ii) An LOD determination from the member's commanding officer.
    (b) Adjudicating authority's responsibility. Reviewing and 
processing properly completed claims and forwarding approved claims to 
the appropriate disbursing office should be completed within 30 days of 
receipt. Advice may be requested from COMNAVMEDCOM (MEDCOM-333 (A/V 294-
1127)) for medical or MEDCOM-06 (A/V 294-1250)) for dental on unusual or 
questionable instances of care. Advise claimants of any delay 
experienced in processing claims.
    (1) Review. The receiving adjudication authority will carefully 
review each claim submitted for payment or reimbursement to verify 
whether:
    (i) Claimant was entitled to benefits (i.e., was on active duty, 
active duty for training, inactive duty training, was not an 
unauthorized absentee, etc.). As required by part 728 of this chapter, a 
Defense Enrollment Eligibility Reporting System (DEERS) eligibility 
check must be performed on claims to all claimants required to be 
enrolled in DEERS.
    (ii) Care rendered was due to a bona fide emergency. (Note: When 
questions arise as to the emergency nature of care, forward the claim 
and all supporting documentation to the appropriate clinical specialist 
at the nearest naval hospital for review.)
    (iii) Prior approval was granted if a bona fide emergency did not 
exist. (Note: If prior approval was not obtained and the condition 
treated is determined to have been nonemergent, the claim may be 
denied.) Consideration should always be given to cases that would have 
received prior approval but, due to lack of knowledge of the program, 
the member did not submit a request.
    (iv) Care rendered was authorized under the provisions of this part.

[[Page 349]]

    (v) Care rendered was appropriate for the specific condition 
treated. (NOTE: When questions arise regarding appropriateness of care, 
forward all documentation to a clinical specialist at the nearest naval 
hospital for review. If care is determined to have been inappropriate, 
the claim may be denied to the extent the member was negligent.)
    (vi) Claimed benefits did not result from a referral by a USMTF. If 
the member was an inpatient or an outpatient in a USMTF immediately 
prior to being referred to a civilian source of care, the civilian care 
is supplemental and may be the responsibility of the referring USMTF. 
See Sec. 732.11(p) for the definition of supplemental care.
    (2) Dispproval. If a determination is made to disapprove a claim, 
provide the member (and provider of care, when applicable) a prompt and 
courteous letter stating the reason for the disapproval and the 
appropriate avenues of appeal as outlined in Sec. 732.24.
    (3) Processing. Subpart C contains the chargeable accounting 
classifications and Standard Document Numbers (SDN) to be cited on the 
NAVCOMPT 2277, Voucher for Disbursement and/or Collection, on an SF 1164 
submitted per paragraph (a)(3) of this section, and on supporting 
documents of approved claims before submission to disbursing offices.
    (i) For payment to providers of care, a NAV COMPT 2277 will be 
prepared and certified approved for payment by the adjudicating 
authority. This form must accompany the NAVMED 6320/10 and supporting 
documentation per paragraph 046393-1 of the NAVCOMPTMAN.
    (ii) Where reimbursement is requested, the SF 1164 submitted per 
Sec. 732.19(a)(3) will be completed, per paragraph 046377 of the 
NAVCOMPTMAN, and certified approved for payment by the adjudicating 
authority. This form must accompany the NAVMED 6320/10 and supporting 
documentation.
    (c) Amount payable. Amounts payable are those considered reasonable 
after taking into consideration all facts. Normally, payment should be 
approved at rates generally prevailing within the geographic area where 
services or supplies were furnished. Although rates specially 
established by the Veterans Administration, CHAMPUS, or those used in 
Medicare are not controlling, they should be considered along with other 
facts.
    (1) Excessive charges. If any charge is excessive, the adjudication 
authority will advise the provider of care of the conclusion reached and 
afford the provider an opportunity to voluntarily reduce the amount of 
the claim. If this does not result in a proper reduction and the claim 
is that of a physician or dentist, refer the difference in opinions to 
the grievance committee of the provider's professional group for an 
opinion of the reasonableness of the charge. If satisfactory settlement 
of any claim cannot thus be made, forward all documentation to 
COMNAVMEDCOM (MEDCOM-333) for decision. Charges determined to be above 
the allowed amount or charges for unauthorized services are the 
responsibility of the service member.
    (2) Third party payment. Do not withhold payment while seeking funds 
from health benefit plans or from insurance policies for which premiums 
are paid privately by service members (see Sec. 732.22 for possible 
recovery of payments action).
    (3) No-fault insurance. In States with no-fault automobile insurance 
requirements, adjudication authorities will notify the insurance carrier 
identified in item 16 of the NAVMED 6320/10 that Federal payment of the 
benefits in this part is secondary to any no-fault insurance coverage 
available to the potentially covered member.
    (d) Duplicate payments. Adjudication authorities and disbursing 
activities should take precautions against duplicate payments per 
paragraph 046073 of the NAVCOMPTMAN.



Sec. 732.20  Adjudication authorities.

    (a) General. Controlling activities for medical care in the United 
States are designated as ``offices of medical affairs'' (OMA) and for 
dental care, ``offices of dental affairs'' (ODA). NAVMEDCOMINST 6010.3 
delineates responsibilities and functional tasks of OMAs and ODAs, 
including monthly reporting of receipt of claims and claims payment. 
Commanders of geographic

[[Page 350]]

naval medical commands must communicate with all activities in their 
regions to ensure that messages and medical cognizance reports are 
properly furnished per higher authority directives.
    (b) Within the United States (less Hawaii). For the 48 contiguous 
United States, the District of Columbia, and Alaska, the following six 
regions are responsible for care rendered or to be rendered within their 
areas of responsibility.
    (1) Northeast Region. The States of Connecticut, Delaware, Illinois, 
Indiana, Iowa, Kentucky, Maine, Massachusetts, Michigan, Minnesota, 
Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode 
Island, Vermont, and Wisconsin are served by 1 ODA and 1 OMA:
    (i) Responsibility for dental matters for States in the Northeast 
Region is vested in: Commander, Naval Medical Command, Northeast Region, 
Office of Dental Affairs, Great Lakes, IL 60088, Tele: (A/V) 792-3940 or 
(C) (312) 688-3940.
    (ii) Responsibility for medical matters for States in the Northeast 
Region is vested in: Commander, Naval Medical Command, Northeast Region, 
Office of Medical Affairs, Great Lakes, IL 60088, Tele: (A/V) 792-3950 
or (C) (312) 688-3950.
    (2) National Capital Region. For the States of Maryland and West 
Virginia; the Virginia counties of Arlington, Fairfax, Loudoun, and 
Prince William; the Virginia cities of Alexandria, Falls Church, and 
Fairfax; and the District of Columbia, responsibility for medical and 
dental matters is vested in: Commander, Naval Medical Command, National 
Capital Region, Office of Medical Affairs, Bethesda, MD 20814, Tele: (A/
V) 295-5322 or (C) (301) 295-5322.
    (3) Mid-Atlantic Region. For the States of North Carolina, South 
Carolina, and all areas of Virginia south and west of Prince William and 
Loudoun counties, responsibility for medical and dental matters is 
vested in: Commander, Naval Medical Command, Mid-Atlantic Region, 6500 
Hampton Boulevard, Norfolk, VA 23502, Attn: Office of Medical/Dental 
Affairs, Tele: (A/V) 565-1074/1075 or (C) (804) 445-1074 or 1075.
    (4) Southeast Region. For the States of Alabama, Arkansas, Florida, 
Georgia, Louisiana, Mississippi, Oklahoma, Tennessee, and Texas, medical 
and dental responsibilities are vested in: Commanding Officer, Naval 
Medical Clinic, Code O1A, New Orleans, LA 70146, Tele: (A/V) 485-2406/7/
8 or (C) (504) 361-2406 2407 or 2408.
    (5) Southwest Region. For the States of Arizona and New Mexico; the 
counties of Kern, San Bernadino, San Luis Obispo, Santa Barbara, and all 
other California counties south thereof; the community of Bridgeport, 
California (Marine Corps cold-weather training site); and Nevada, except 
for NAS Fallon and its immediate area; medical and dental 
responsibilities are vested in: Commander, Naval Medical Command, 
Southwest Region, Office of Medical Affairs, San Diego, CA 92134-7000, 
Tele: (A/V) 987-2611 or (C) 233-2611.
    (6) Northwest Region. The States of Alaska, Colorado, Idaho, Kansas, 
Montana, Nebraska, North Dakota, Oregon, South Dakota, Utah, Washington, 
and Wyoming; the counties of Inyo, Kings, Tulare, and all other counties 
of California north thereof; and NAS Fallon, Nevada and its immediate 
area are served by 2 OMAs and 1 ODA:
    (i) Responsibility for dental matters for the area of responsibility 
of the Northwest Region is vested in: Commander, Naval Medical Command, 
Northwest Region, Office of Dental Affairs, Oakland, CA 94267-5025, 
Tele: (A/V) 855-6200 or (C) (415) 633-6200.
    (ii) Responsibility for medical matters for the States of Colorado, 
Kansas, and Utah; the California counties of Inyo, Kings, Tulare, and 
all other counties of California north thereof; and NAS Fallon, Nevada 
and its immediate area is vested in: Commander, Naval Medical Command, 
Northwest Region, Oakland, CA 94627-5025, Attn: Office of Medical 
Affairs, Tele: (A/V) 855-5705 or (C) (415) 633-5705.
    (iii) Responsibility for medical matters for the States of Alaska, 
Idaho, Montana, Nebraska, North Dakota, Oregon, South Dakota, 
Washington, and Wyoming is vested in: Commanding Officer, Naval Medical 
Clinic, Naval Station, Seattle, WA 98115, Attn: Office of Medical 
Affairs, Tele: (A/V) 941-3823 or (C) (206) 526-3823.

[[Page 351]]

    (c) Outside the United States (plus Hawaii). For all areas outside 
the United States plus Hawaii, the following activities are vested with 
responsibility for approval or disapproval of requests and claims for 
maternity, medical, and dental care:
    (1) Executive Director, OCHAMPUSEUR, U.S. Army Medical Command, APO 
New York 09102, for care rendered within the U.S. European Command, 
Africa, the Malagasy Republic, and the Middle East.
    (2) Commanding Officer, U.S. Naval Hospital, FPO San Francisco 
96652-1600 (U.S. Naval Hospital, Subic Bay, Luzon, Republic of the 
Philippines), for care rendered in Afghanistan, Bangladesh, Hong Kong, 
India, Nepal Pakistan, the Philippines, Southeast Asia, Sri Lanka and 
Taiwan.
    (3) Commanding Officer, U.S. Naval Hospital, FPO Seattle 98765-1600 
(U.S. Naval Hospital, Yokosuka, Japan), for care rendered in Japan, 
Korea, and Okinawa.
    (4) Commanding Officer, U.S. Naval Hospital, FPO San Francisco 
96630-1600 (U.S. Naval Hospital, Guam, Mariana Islands), for care 
rendered in New Zealand and Guam.
    (5) Commanding Officer, U.S. Naval Communications Station, FPO San 
Francisco 96680-1800 (U.S. Naval Communications Station, Harold E. Holt, 
Exmouth, Western Australia), for care rendered in Australia.
    (6) Commanding Officer, U.S. Naval Air Station, FPO New York 09560 
(U.S. Naval Air Station, Bermuda), for care rendered in Bermuda.
    (7) Commanding Officer, U.S. Naval Hospital, FPO Miami 34051 (U.S. 
Naval Hospital, Roosevelt Roads, Puerto Rico), for maternity and medical 
care, and Commanding Officer, U.S. Naval Dental Clinic, FPO Miami 34051 
(U.S. Naval Dental Clinic, Roosevelt Roads, PR), for dental care 
rendered in Puerto Rico, the Virgin Islands, and other Caribbean 
Islands.
    (8) Commanding Officer, Naval Medical Clinic, Box 121, Pearl Harbor, 
HI 96860, for maternity and medical care, and Commanding Officer, Naval 
Dental Clinic, Box 111, Pearl Harbor, HI 96860, for dental care rendered 
in the State of Hawaii, Midway Island, and the Central Pacific basin.
    (9) The OMA for either the Southeast Region or the Southwest Region 
for care rendered in Mexico to members stationed within the respective 
areas of responsibility of these OMAs. Forward claims for care rendered 
in Mexico to all other personnel to Commander, Naval Medical Command, 
Washington, DC 20372-5120 (MEDCOM-333).
    (10) Commander, Naval Medical Command, Washington, DC 20372-5120 
(MEDCOM-333) for inpatient and outpatient emergency and nonemergency 
care of active duty Navy and Marine Corps members in Canada and under 
the circumstances outlined in paragraph (d) of this section.
    (11) Outside the 50 United States, commanding officers of 
operational units may either approve claims and direct payment by the 
disbursing officer serving the command or forward claims to the 
appropriate naval medical command in paragraphs (b)(1) through (c)(9) of 
this section. This is a local policy decision to enhance the maintenance 
of good public relations.
    (12) The appropriate command in paragraphs (b)(1) through (c)(9) of 
this section for care rendered aboard commercial vessels en route to a 
location within the geographic areas listed.
    (13) The commanding officer authorizing care in geographical areas 
not specifically delineated elsewhere in this section.
    (d) The Commander, Naval Medical Command (MEDCOM-333), Navy 
Department, Washington, DC 20372-5120. Under the following 
circumstances, responsibility is vested in COMNAVMEDCOM for adjudication 
of claims:
    (1) For reservists who receive treatment after completion of their 
active duty or inactive duty training as prescribed in Sec. 732.12(b).
    (2) For care rendered in Mexico to personnel stationed outside the 
areas of responsibility of the Southeast and Southwest Regions.
    (3) For care rendered to members stationed in or passing through 
countries in Central and South America.
    (4) For outpatient care rendered NATO active duty members.
    (5) When Departmental level review is required prior to approval, 
adjudication, or payment. These claims:
    (i) Will be considered on appeal.

[[Page 352]]

    (ii) Must be forwarded by the member through the adjudication 
authority chain of command (In instances of unusual or controversial 
denial of claims, the adjudication authority may forward claims to 
COMNAVMEDCOM on appeal, via the chain of command, with notification to 
the member.).
    (6) For all inpatient and outpatient care of active duty Navy and 
Marine Corps members stationed in the United States who receive care in 
Canada.



Sec. 732.21  Medical board.

    When adjudication authorities uncover conditions which may be 
chronic or otherwise potentially disabling, they should make a 
determination (with help from appropriate clinical specialists) as to 
the need for a medical board. Chapter 18 of MANMED and Medical 
Disposition and Physical Standards Notes, available from COMNAVMEDCOM 
(MEDCOM-25), provide guidance.
    (a) Chronic conditions requiring a medical board include (but are 
not limited to):
    (1) Arthritis,
    (2) Asthma,
    (3) Diabetes,
    (4) Gout,
    (5) Heart disease,
    (6) Hypertension,
    (7) Peptic ulcer disease,
    (8) Psychiatric conditions, and
    (9) Allergic conditions requiring desensitization.
    (b) Other potentially disabling or chronic conditions may be 
referred to a medical board by the adjudication authority with the 
concurrence of an appropriate naval clinical specialist and the 
commander of the regional medical command.



Sec. 732.22  Recovery of medical care payments.

    Adjudication authorities must submit evidence of payment to the 
action JAG designee per chapter 24 of the Manual of the Judge Advocate 
General (JAGMAN), in each instance of payment where a third party may be 
legally liable for causing the injury or disease treated, or when a 
Government claim is possible under workers compensation, no-fault 
insurance, or under medical payments insurance (all automobile accident 
cases).
    (a) To assist in identifying possible third party liability cases, 
item 16 of each NAVMED 6320/10 must be completed whenever benefits are 
received in connection with a vehicle accident. Adjudication authorities 
should return for completion, as applicable, any claim received without 
item 16 completed.
    (b) The front of a NAVJAG Form 5890/12 (Hospital and Medical Care, 
3rd Party Liability Case) must be completed and submitted by 
adjudication authorities with evidence of payment. Block 4 of this form 
requires an appended statement of the patient or an accident report, if 
available. To ensure that Privacy Act procedures are accomplished and 
documented, the person securing such a statement from a recipient of 
care must show the recipient the Privacy Act statement printed at the 
bottom of the form prior to securing such a statement. The member should 
be asked to sign his or her name beneath the statement.
    (c) For care rendered in States with no-fault insurance laws, comply 
with procedures outlined in Sec. 732.19(c)(3).



Sec. 732.23  Collection for subsistence.

    The Navy Pay and Personnel Procedures Manual provides guidance 
regarding pay account checkage procedures to liquidate subsistence 
charges incurred by members entitled to care under the provisions of 
this part. Such members must also be entitled to basic allowance for 
subsistence (BAS) while hospitalized at Government expense. The 
responsible activity (the adjudication authority or the naval MTF to 
which such a member is transferred) should follow procedures outlined in 
the Navy Pay and Personnel Procedures Manual when an eligible officer or 
enlisted member of the naval service is subsisted at Department of the 
Navy expense while hospitalized in a nonnaval treatment facility. 
Subpart C contains the creditable accounting classification for 
inpatient subsistence collections.



Sec. 732.24  Appeal procedures.

    When a claim for care or a request for prior approval for 
nonemergency

[[Page 353]]

care is initially denied by an adjudication authority, the member may 
appeal the denial as outlined below. Any level in the appeal process may 
over-rule the previous decision and order payment of the claim in whole 
or in part or grant the request for prior approval of care.
    (a) Level I--Reconsideration by the adjudication authority making 
the initial denial. The member should submit any additional information 
that may mitigate the initial denial.
    (b) Level II--Consideration by the commander of the regional medical 
command having cognizance over the adjudication authority which upheld 
the initial denial on reconsideration.
    (c) Level III--Consideration by COMNAVMEDCOM (MEDCOM-333).



 Subpart C--Accounting Classifications for Nonnaval Medical and Dental 
               Care Expenses and Standard Document Numbers



Sec. 732.25  Accounting classifications for nonnaval medical and dental care expenses.

----------------------------------------------------------------------------------------------------------------
                       OBJ.**
 Approp.    Sub-Head   Class     BCN   SA    AAA       TT         PAA           Cost Code            Purpose
----------------------------------------------------------------------------------------------------------------
17*1804..  188M           000   00018   M   000179  2D       MDQ000        990010000MDQ         Outpatient Care
                                                                                                 Service
                                                                                                 Expenses.\1\ \2
                                                                                                 \
17*1804..  188M           000   00018   M   000179  2D       MDT000        990010000MDT         Outpatient Care
                                                                                                 Supply
                                                                                                 Expenses.\1\ \3
                                                                                                 \
17*1804..  188M           000   00018   M   000179  2D       MDE000        990010000MDE         Ambulance
                                                                                                 Expenses.\1\
17*1804..  188M           000   00018   M   000179  2D       MDQI00        990020000MDQ         Inpatient Care
                                                                                                 Service
                                                                                                 Expense.\1\ \2\
17*1804..  188M           000   00018   M   000179  2D       MDTI00        990020000MDT         Inpatient Care
                                                                                                 Supply
                                                                                                 Expenses.\1\ \3
                                                                                                 \
17*1804..  188M           006   00018   M   000179  3C       MDZI00        990020000MDZ         Inpatient
                                                                                                 Subsistence
                                                                                                 Collections.\1\
----------------------------------------------------------------------------------------------------------------
Notes:
*For the third digit of the appropriation, enter the last digit of the fiscal year current at the time claim is
  approved for payment.
**Refer to NAVCOMPT Manual par. 027003 for appropriate Expenditure Category Codes when disbursement or
  collection involves a foreign or U.S. Contractor abroad.
\1\ Not applicable when care is procured from non-DOD sources for a patient receiving either inpatient or
  outpatient care at a naval medical facility. In such instances, the expenses incurred are payable from
  operations and maintenance funds available for support of the naval medical facility.
\2\ Service expenses include: hospital, emergency room clinic, office fees; physician and dentist professional
  fees; laboratory, radiology, operating room, anesthesia, physical therapy, and other services provided.
\3\ Supply expenses include: medications and pharmacy charges; IV solutions; whole blood and blood products;
  bandages; crutches; prosthetic devices; needles and syringes; and other supplies provided.



Sec. 732.26  Standard document numbers.

    Adjudication authorities will assign to each claim approved for 
payment, a unique 15 position alpha/numeric standard document number 
(SDN). Prominently display this number on the NAVMED 6320/10, the 
NAVCOMPT 2277 (Voucher for Disbursement and/or Collection), NAVCOMPT 
1164 (Claim for Reimbursement for Expenditures on Official Business) and 
on all other documentation accompanying claims. Compose SNDs per the 
following example: N0016887MD00001 or N0016887RV00001.

[[Page 354]]





------------------------------------------------------------------------
             Position                            Data entry
------------------------------------------------------------------------
1.................................  ``N'' identifies Navy.
2 thru 6..........................  Unit Identification Code of document
                                     issuing activity.
7 and 8...........................  Last two digits of the fiscal year
                                     in which the claim is approved for
                                     payment.
9 and 10,.........................  For NAVCOMPT 2277s, ``MD''
                                     identifies the document as
                                     Miscellaneous Financial Document.
    or,
9 and 10..........................  For SF 1164s, ``RV'' identifies the
                                     document as a Reimbursement
                                     Voucher.
11 thru 15........................  Consecutively assigned five digit
                                     serial number beginning with
                                     ``00001'' each fiscal year. Each
                                     subsequent claim will then be
                                     serially numbered ``00002'',
                                     ``00003'', etc.
------------------------------------------------------------------------



PART 733--ASSISTANCE TO AND SUPPORT OF DEPENDENTS; PATERNITY COMPLAINTS--Table of Contents




Sec.
733.1  Rates of basic allowance for quarters.
733.2  Delegations.
733.3  Information and policy on support of dependents.
733.4  Complaints of nonsupport and insufficient support of dependents.
733.5  Determination of paternity and support of illegitimate children.

    Authority: 5 U.S.C. 301; 10 U.S.C. 5031; 37 U.S.C. 101, 401, 403; 50 
U.S.C. App. 2210; E.O. 11157, 29 FR 7973, 3 CFR 1964 Supp. p. 139, as 
amended.

    Source: 44 FR 42190, July 19, 1979, unless otherwise noted.



Sec. 733.1  Rates of basic allowance for quarters.

    (a) Except as otherwise provided by law, a member of the naval 
service entitled to basic pay is entitled to a basic allowance for 
quarters at the monthly rates according to the pay grade to which he or 
she is assigned, in accordance with 37 U.S.C. 403.
    (b) The term ``dependent'' with respect to a member of the naval 
service, as used in this part, means:
    (1) His or her spouse;
    (2) His or her unmarried child (including any of the following 
categories of children if such child is in fact dependent on the member: 
A stepchild; an adopted child; or an illegitimate child whose alleged 
member-parent has been judicially decreed to be the parent of the child 
or judicially ordered to contribute to the child's support, or whose 
parentage has been admitted in writing by the member) who either:
    (i) Is under 21 years of age; or
    (ii) Is incapable of self-support because of a mental or physical 
incapacity, and in fact dependent on the member for over one-half of his 
or her support; and
    (3) His or her parent (including a stepparent or parent by adoption, 
and any person, including a former stepparent, who has stood in loco 
parentis to the member at any time for a continuous period of at least 5 
years before he or she became 21 years of age) who is in fact dependent 
on the member for over one-half of his or her support; however, the 
dependency of such a parent is determined on the basis of an affidavit 
submitted by the parent and any other evidence required under 
regulations prescribed by the Secretary of the Navy, and he or she is 
not considered a dependent of the member claiming the dependency unless:
    (i) The member has provided over one-half of his or her support for 
the period prescribed by the Secretary; or
    (ii) Due to changed circumstances arising after the member enters on 
active duty, the parent becomes in fact dependent on the member for over 
one-half of is or her support.

The relationship between a stepparent and his or her stepchild is 
terminated by the stepparent's divorce from the parent by blood.

[[Page 355]]



Sec. 733.2  Delegations.

    The Director, Navy Family Allowance Activity, Anthony J. Celebrezze 
Federal Building, Cleveland, OH 44199, with respect to personnel of the 
Navy, and the Head, Personal Affairs Branch, Manpower Department, 
Headquarters United States Marine Corps, Washington, DC 20380, with 
respect to personnel of the Marine Corps, have been granted the 
authority by the Secretary of the Navy to make determinations including 
determinations of dependency and relationship when required by 
legislation or policy for eligibility for basic allowance for quarters, 
transportation and medical care in behalf of dependents of Navy and 
Marine personnel and to administer matters involving adequacy of support 
for dependents and waivers of support of a spouse, and on the basis of 
new evidence or for other good cause to reconsider or modify any such 
determination.



Sec. 733.3  Information and policy on support of dependents.

    (a) Policy--(1) General. The naval service will not be a haven or 
refuge for personnel who disregard or evade their obligations to their 
families. All members of the naval service are expected to conduct their 
personal affairs satisfactorily. This includes the requirement that they 
provide adequate and continuous support for their lawful dependents and 
comply with the terms of separation agreements and court orders. Failure 
to do so which tends to bring discredit on the naval service is a proper 
subject of command consideration for initiation of court-martial 
proceedings or other administrative or disciplinary action.
    (2) Adequacy of support. Every member has an inherent natural and 
moral obligation to support his or her spouse and family. What is 
adequate and reasonably sufficient support is a highly complex and 
individual matter dependent on numerous factors, and may be resolved 
permanently only in the civil courts. Salient factors that should be 
considered are the pay of the member, any other private income or 
resources of the member and the dependents, the cost of necessities and 
every day living expenses and financial obligations of the dependents, 
and the expenses and other financial obligations of the member in 
relation to his or her income. The Department of the Navy does not and 
cannot act as a court in these matters. It is desired that the amount of 
support to be provided for dependents either be established by mutual 
understanding between the parties concerned or adjudicated in the civil 
courts. The support scales set forth below are not intended as a fixed 
rule. They are intended as guidelines and the actual support may be 
increased or decreased as the facts and circumstances warrant until the 
amount of support to be furnished is settled by agreement of the parties 
or adjudicated by the civil courts. Because of the inherent arbitrary 
and temporary nature of the support scales set forth below, it is not 
intended that they be used as bases for any judicial proceedings, for to 
do so would lend excessive credence to administrative tools which have 
been designed for use only within the Navy and the Marine Corps.
    (i) Number of dependents and amount of support to be provided in the 
absence of a mutual agreement or court order:
    (A) Navy members:

------------------------------------------------------------------------
                                                           Support to be
          Relationship and number of dependents              provided
                                                            (gross pay)
------------------------------------------------------------------------
Spouse only.............................................           \1/3\
Spouse and one minor child..............................           \1/2\
Spouse and two or more children.........................           \3/5\
One minor child.........................................           \1/6\
Two minor children......................................           \1/4\
Three minor children....................................           \1/3\
------------------------------------------------------------------------


For purposes of this support guide, gross pay will include basic pay and 
basic allowance for quarters, but does not include hazardous duty pay, 
sea or foreign duty pay, incentive pay, or basic allowance for 
subsistence.
    (B) Marine Corps members. If the question of support is in dispute, 
the following will be used as a guide for support:

For spouse only--BAQ plus 20% of basic pay.
For spouse and one minor child--BAQ plus 25% of basic pay.
For spouse and two or more minor children--BAQ plus 30% of basic pay.
For one child--\1/6\ of basic pay.
For two minor children--\1/4\ of basic pay.
For three or more minor children--\1/3\ of basic pay.


[[Page 356]]


    (1) The amount of support to a dependent for whom basic allowance 
for quarters is claimed should not be less than the applicable rate of 
basic allowance for quarters to which the member is entitled.
    (2) A Marine's obligation to provide for the support of children by 
a former marriage has as high a priority as an obligation to provide for 
a present wife and family. In those cases of a legitimate financial 
inability to provide support for all dependents, commanders shall 
attempt to assist the Marine in the equitable distribution of income for 
the assistance of all dependents, utilizing the guidelines set forth 
above.
    (3) It is to be emphasized that the guidelines set forth are to be 
used only as an interim measure, and that the commander's decision as to 
the quantum of support to be provided will be, prima facie, the 
appropriate conclusion of the Marine Corps, pending civil court or 
extrajudicial resolution among the involved parties.
    (3) Support of a lawful wife. The laws of jurisdictions in the 
United States impose a legal obligation upon a husband to support his 
wife. Exemptions from support of a lawful wife may be in the form of an 
order of a civil court of competent jurisdiction, relinquishment by the 
wife or mutual agreement of the parties, or a waiver of the naval 
support requirement granted by the Director, Navy Family Allowance 
Activity or the Commandant of the Marine Corps, as appropriate.
    (4) Payments of alimony. Dependents for whom basic allowance for 
quarters or other allowances are payable are defined by law. For 
purposes of qualifying for basic allowance for quarters, medical care or 
other benefits, a former spouse is not a dependent even though alimony 
has been decreed. Members are expected to comply with the terms of court 
orders or divorce decrees which adjudge payments of alimony even though 
basic allowance for quarters is not payable.
    (5) Support of children. The duty of a member to support his or her 
minor children is not affected by desertion or other misconduct on the 
part of the spouse. The obligation to support a child or children is not 
affected by dissolution of the marriage through divorce, unless the 
judicial decree or order specifically negates the obligations of the 
member to support a child or children of the marriage. The fact that a 
divorce decree is silent relative to support of minor children or does 
not mention a child or children will not be considered as relieving the 
service member of the inherent obligation to provide support for the 
child or children of the marriage. In many cases, the courts may not be 
cognizant of the existence of a child or children, or may not have 
jurisdiction over the child or children. A commanding officer has 
discretion to withhold action for alleged failure to support a child 
under the following conditions:
    (i) Where the member cannot ascertain the whereabouts and welfare of 
the child concerned.
    (ii) Where it is apparent that the person requesting support for a 
child does not have physical custody of the child.
    (iii) Where the member has been granted custody of the child by 
court order but does not have physical control of the child and the 
member is ready, willing, and able to care for and support the child if 
physical control is obtained.
    (6) Adopted children. The natural parents of an adopted child are 
relieved of the obligation to support the child as such duty is imposed 
on the adoptive parents. A Navy or Marine Corps member who contemplates 
the adoption of a child should be aware of the legal obligation to 
provide continuous support for such child during minority.
    (7) Entitlement to basic allowance for quarters. Entitlement of 
members to basic allowance for quarters on behalf of dependents is 
provided by statute. No member should be denied the right to submit a 
claim or application for basic allowance for quarters, nor should any 
command refuse or fail to forward any such claim or application. In 
cases involving parents, the member should furnish an estimate of the 
dependency situation to the best of his or her knowledge. Commanding 
officers should not contact parents for dependency information to 
include in the member's application. This delays the

[[Page 357]]

application and serves no useful purpose, as such cases are thoroughly 
investigated by the Navy Family Allowance Activity or Headquarters 
Marine Corps, which obtains necessary dependency affidavits directly 
from the parents. Any person, including a service member or dependent 
who obtains an allowance by fraudulent means is subject to criminal 
prosecution.
    (8) Application of the rule based on Robey v. United States 71 Ct. 
Cl. 561. Determinations that no dependency exists may be made in 
disputed cases--if a member does not contribute to the support of spouse 
and child at least to the extent of:
    (i) The full amount of his/her basic allowance for quarters, or
    (ii) An amount specified in a court order or legal separation 
agreement, or
    (iii) An amount agreed to by the parties as acceptable, adequate 
support, whichever is lesser. Pertinent decisions of the Court of Claims 
or Comptroller General will be followed in determinations of dependency.



Sec. 733.4  Complaints of nonsupport and insufficient support of dependents.

    (a) Upon receipt of a complaint alleging that a member is not 
adequately supporting his or her lawful dependents (spouse or children), 
the member will be interviewed and informed of the policy of the 
Department of the Navy concerning support of dependents. In the absence 
of a determination by a civil court or a mutual agreement of the 
parties, the applicable guide in Sec. 733.3 will apply. The member will 
be informed that his/her Navy or Marine Corps career may be in jeopardy 
if he/she does not take satisfactory action. The member may become 
ineligible to reenlist or extend enlistment (in the case of enlisted 
members), and may be subject to administrative or disciplinary action 
that may result in separation from the Navy or Marine Corps.
    (1) Waiver of support of spouse. If the member feels that he or she 
has legitimate grounds for a waiver of support for the spouse, the 
Director, Navy Family Allowance Activity, acting under the policy 
guidance of the Chief of Naval Personnel or the Commandant of the Marine 
Corps (Code MSPA), may grant such a waiver for support of a spouse (but 
not children) on the basis of evidence of desertion without cause or 
infidelity on the part of the spouse. The evidence may consist of--
    (i) An affidavit of the service member, relative, disinterested 
person, public official, or law enforcement officer. However, affidavits 
of the service member and relatives should be supported by other 
corroborative evidence. All affidavits must be based upon the personal 
knowledge of the facts set forth; statements of heresay, opinion, and 
conclusion are not acceptable as evidence.
    (ii) Written admissions by the spouse contained in letters written 
by that spouse to the service member or other persons.

The request for waiver of support of a spouse should be submitted to the 
Director, Navy Family Allowance Activity or the Commandant of the Marine 
Corps (Code MSPA) with a complete statement of the facts and 
substantiating evidence, and comments or recommendations of the 
commanding officer.
    (2) Action. After a written complaint that a member has failed or 
refused to furnish support for his or her spouse or children has been 
received, and the member has been counseled with regard to his/her 
rights and obligations in the support matter, continued failure or 
refusal, without justification, to furnish support for dependents in 
accordance with the provisions of a valid court order, written 
agreement, or, in the absence of a court order or agreement, the 
appropriate support guide set forth above, will be a basis for 
consideration of disciplinary or administrative action which may result 
in the member's separation from active service.



Sec. 733.5  Determination of paternity and support of illegitimate children.

    (a) Illegitimate children. If the service member desires marriage, 
leave for this purpose is recommended whenever consistent with the needs 
or exigencies of the service. When the blood parents of an illegitimate 
child marry, the child is considered to be legitimized by the marriage 
unless a court finds the child to be illegitimate.

[[Page 358]]

    (b) Judicial order or decree of paternity or support. Normally any 
order or decree which specifies the obligation to render support of 
illegitimate children will include within it a determination of 
paternity of such children; however, some jurisdictions provide for 
determinations of the legal obligation to support illegitimate children 
without a determination of paternity. Either type of order or decree 
falls within the scope of this paragraph. If a judicial order or decree 
of paternity or support is rendered by a United States or foreign court 
of competent jurisdiction against a member of the Navy or Marine Corps 
on active duty, the member concerned will be informed of his moral and 
legal obligations as well as his legal rights in the matter. The member 
will be advised that he is expected to render financial assistance to 
the child regardless of any doubts of paternity that the member may 
have. If the court order or decree specifies an amount of support to be 
provided the member will be expected to comply with the terms of such 
decree or order. If no amount is specified, support should be rendered 
in accordance with such reasonable agreement as may be made with the 
mother or legal guardian of the child or, in the absence of such 
agreement, in accordance with the applicable guide set forth above. 
However, no basic allowance for quarters will be included in using the 
guide unless basic allowance for quarters is payable in behalf of 
illegitimate children. If the member refuses to comply with the terms of 
the court order, administrative action will be taken as indicated in 
Sec. 733.4.
    (1) Court of competent jurisdiction. A court of competent 
jurisdiction is generally a court that has jurisdiction over the subject 
matter and the parties involved. As a general rule, the competency of 
the court to render the judicial order or decree may be tested by the 
enforceability of the order or decree. Normally, although not always, 
personal service of the court's process on the member is considered 
essential. With respect to a foreign judicial order or decree, the 
general rule is that where the defendant was a citizen or subject of the 
foreign country in which the order or decree was issued, the court may 
have acquired jurisdiction over the member by any mode of service or 
notice recognized as sufficient by the laws of that country. It should 
be noted, however, that an order or decree against a citizen or 
permanent resident of another country, without personal service or 
personal notice of the action to him or her, is null and void unless the 
member voluntarily submitted to the jurisdiction by appearing and 
contesting the action. In the event there is doubt as to the competency 
of the court to enter the order or decree, the question shall be 
referred to the Judge Advocate General.
    (2) [Reserved]
    (c) Nonjudicial determination. In the absence of an adjudication of 
paternity or of a court-ordered obligation to furnish support, the 
member shall be privately consulted and asked, where appropriate, 
whether he or she admits either paternity of, or the legal obligation to 
support, the child or expected child. If the answer is affirmative, the 
member shall be informed that he or she is expected to furnish support 
as set forth in paragraph (b) of this section. Where paternity or the 
legal obligation to support is admitted by a male member, such member 
should be informed of his moral obligation to assist in the payment of 
prenatal expenses.
    (d) Members not on active duty. Allegations of paternity against 
members of the naval service who are not on active duty will be 
forwarded to the individual concerned in such a manner as to insure that 
the charges are delivered to the addressee only. The correspondence 
should be forwarded via the commandant of the naval district in which 
the member resides.
    (e) Former members. (1) If a certified copy of a judicial order or 
decree of paternity or support duly rendered by a United States or 
foreign court of competent jurisdiction against a former member of the 
Navy or Marine Corps is submitted, his or her last-known address will be 
furnished to the complainant with return of the correspondence and court 
order. The complainant will be informed of the date of discharge and 
advised that the individual concerned is no longer a member of the Navy 
or Marine Corps in any capacity.

[[Page 359]]

    (2) Where there has been no court adjudication, the correspondence 
will be returned to the complainant with an appropriate letter stating 
that the individual is no longer a member of the Navy or the Marine 
Corps in any capacity and giving the date of his or her discharge or 
final separation except that the last-known address of the former member 
shall be furnished to the claimant if the complaint against the former 
member is supported by a document which establishes that the former 
member has made an admission or statement acknowledging paternity or 
responsibility for support of a child before a court of competent 
jurisdiction, administrative or executive agency, or official authorized 
to receive it. In cases where the complaint, along with the 
corroboration of a physician's affidavit, alleges and explains an 
unusual medical situation which makes it essential to obtain information 
from the alleged father in order to protect the physical health of 
either the prospective mother or the unborn child, the last-known 
address of the former member shall likewise be furnished to the 
claimant.



PART 734--GARNISHMENT OF PAY OF NAVAL MILITARY AND CIVILIAN PERSONNEL FOR COLLECTION OF CHILD SUPPORT AND ALIMONY--Table of Contents




Sec.
734.1  Purpose.
734.2  Scope.
734.3  Service of process.
734.4  Responsibilities.
734.5  Administrative procedures.

    Authority: 42 U.S.C. 659 (Social Security Act, sec. 459 added by 
Pub. L. 93-647, part B, sec. 101(a), 88 Stat. 2357, as amended by the 
Tax Reform and Simplification Act of 1977, Pub. L. 95-30, title V, sec. 
502, 91 Stat. 157).

    Source: 44 FR 42193, July 19, 1979, unless otherwise noted.



Sec. 734.1  Purpose.

    This part prescribes responsibilities and procedures applicable in 
the Department of the Navy when processsing and honoring legal process 
brought for the enforcement of legal obligations to provide child 
support or make alimony payments under 42 U.S.C. 659 (Social Security 
Act, section 459 added by Pub. L. 93-647, part B, sec. 101(a), 88 Stat. 
2357, as amended by the Tax Reform and Simplification Act of 1977, Pub. 
L. 95-30, title V, sec. 502, 91 Stat. 157).



Sec. 734.2  Scope.

    The provisions of this part shall apply to legal process affecting 
any Federal pay administered by the Department of the Navy and due and 
payable to all categories of naval military or civilian personnel 
including personnel of Navy or Marine Corps nonappropriated-fund 
activities. This part is not applicable to legal process affecting 
entitlements administered by other agencies, such as civilian employees' 
retirement benefits administered by the Office of Personnel Management 
or compensation administered by the Veterans Administration.
[44 FR 42193, July 19, 1979, as amended at 47 FR 28371, June 30, 1982]



Sec. 734.3  Service of process.

    (a) It is the policy of the Department of the Navy to respond 
promptly to legal process addressed to naval officials. Service of legal 
process affecting the pay of Department of the Navy personnel shall be 
made on the following designated officials in the manner and in the 
circumstances specified below:
    (1) Navy members. Process affecting the military pay of active duty, 
Reserve, Fleet Reserve, or retired Navy members, wherever serving or 
residing, may be served personnally or by registered or certified mail, 
return receipt requested, on the Director, Navy Family Allowance 
Activity, Anthony J. Celebrezze Federal Building, Room 967, Cleveland, 
Ohio 44199.
    (2) Marine Corps members. Process affecting the military pay of 
active-duty, Reserve, Fleet Marine Corps Reserve, or retired Marine 
Corps members, wherever serving or residing, may be served personally or 
by registered or certified mail, return receipt requested, on the 
Commanding Officer, Marine Corps Finance Center (AA), Kansas City, 
Missouri 64197.
    (3) Civilian Employees. Process affecting the pay of active civilian 
employees of the Department of the Navy:

[[Page 360]]

    (i) If currently employed at Navy or Marine Corps activities 
(including nonappropriated-fund instrumentalities) or installations 
situated within the territorial jurisdiction of the issuing court, such 
process may be served personally, or by registered or certified mail, 
return receipt requested, on the commanding officer or head of such 
activity or installation, or principal assistant specifically designated 
in writing by such official.
    (ii) In other cases involving civilian employees, such process may 
be served personally or by registered or certified mail, return receipt 
requested, in the manner indicated below:
    (A) If pertaining to civil service personnel of the Navy or Marine 
Corps, such process may be served on the Director of Civilian Personnel 
Law, Office of the General Counsel, Navy Department, Washington, DC 
20390.
    (B) If pertaining to non-civil service civilian personnel of Navy 
Exchanges or related nonappropriated-fund instrumentalities administered 
by the Navy Resale System Office, such process may be served on the 
Commanding Officer, Navy Resale System Office, Attention: Industrial 
Relations Officer, 29th Street and Third Avenue, Brooklyn, New York 
11232.
    (C) If pertaining to non-civil service civilian personnel of Navy 
clubs, messes, or recreational facilities (non-appropriated funds), such 
process may be served on the Chief of Naval Personnel, Director, 
Recreational Services Division (Pers/NMPC-72), Washington, DC 20370.
    (D) If pertaining to non-civil service civilian personnel of other 
nonappropriated-fund instrumentalities which fall outside the purview of 
the Chief of Naval Personnel or the Commanding Officer, Navy Resale 
Systems Office, such as locally established morale, welfare, and other 
social and hobby clubs, such process may be served on the commanding 
officer of the activity concerned.
    (E) If pertaining to non-civil service civilian personnel of any 
Marine Corps nonappropriated-fund instrumentalities, such process may be 
served on the commanding officer of the activity concerned.
    (b) The Department of the Navy officials designated above are 
authorized to accept service of process within the purview of 42 U.S.C. 
659 (Social Security Act, sec. 459 added by Pub. L. 93-647, part B, sec. 
101(a), 88 Stat. 2357, as amended by the Tax Reform and Simplification 
Act of 1977, Pub. L. 95-30, title V, sec. 502, 91 Stat. 157). Where 
service of process is offered to an official not authorized to accept it 
under paragraph (a) of this section, the person offering such service 
shall be referred to the appropriate official designated in paragraph 
(a) of this section.



Sec. 734.4  Responsibilities.

    (a) Designated officials. Within their respective areas of 
cognizance as set forth in Sec. 734.3, the designated officials are 
responsible for the following functions with regard to legal process:
    (1) Sending such notifications and directions to the member 
concerned and his or her commanding officer as may be required.
    (2) Obtaining or providing an appropriate review by qualified legal 
counsel.
    (3) Taking or directing actions, temporary and final, as are 
necessary to comply with 42 U.S.C. 659, as amended (see Sec. 734.3(b)), 
the Marine Corps Manual, Navy Comptroller Manual, and the court's order 
in the case, and
    (4) Apprising the cognizant United States Attorney of the Department 
of the Navy's disposition, as required, and, in coordination with the 
Judge Advocate General, effecting liaison with the Department of Justice 
or United States Attorneys in instances of noncompliance with process or 
other circumstances requiring such action.
    (b) Command responsibility. (1) The Commanding officer of the member 
or employee concerned shall, upon receipt of notification from the 
appropriate designated official, ensure that the member or employee has 
received written notification of the pendency of the action and that the 
member or employee is afforded counseling concerning his or her 
obligations in the matter, and legal assistance if applicable, in 
dealing with the legal action to affect his or her Federal pay. The 
commanding officer shall comply with the

[[Page 361]]

directions of the designated official in responding to the legal 
process.
    (2) For the purposes of this part, the Director, Navy Family 
Allowance Activity, Cleveland, Ohio, will function as the commanding 
officer with regard to retired Navy military personnel and members of 
the Fleet Reserve.
    (c) Legal services. The Judge Advocate General is responsible for 
the following functions pertaining to legal process within the purview 
of this part:
    (1) Providing overall technical direction and guidance, as required, 
for all Department of the Navy military and civilian attorneys engaged 
in reviewing such process or advising on its disposition.
    (2) Ensuring, as Director, Naval Legal Sevice, the availability of 
attorneys in Naval Legal Service Offices who are qualified to advise and 
assist the designated officials concerning the disposition of legal 
process, and
    (3) Where required, ensuring effective liaison with the Department 
of Justice or United States Attorneys.



Sec. 734.5  Administrative procedures.

    The designated officials specified in Sec. 734.3, shall, in 
consultation with the Judge Advocate General and Commander, Navy 
Accounting and Finance Center or the Commandant of the Marine Corps 
(FD), as appropriate, establish procedures for effectively executing 
their assigned responsibilities. Implementing procedures shall conform 
with 42 U.S.C., 659, as amended, the Marine Corps manual, the Navy 
Comptroller Manual, and the Federal Personnel Manual.



PART 735--REPORTING BIRTHS AND DEATHS IN COOPERATION WITH OTHER AGENCIES--Table of Contents




Sec.
735.1  Purpose.
735.2  Background.
735.3  Action.

    Authority: 70A Stat. 278; 80 Stat. 379, 383; 5 U.S.C. 301, 552; and 
10 U.S.C. 5031.

    Source: 51 FR 15321, Apr. 23, 1986, unless otherwise noted.



Sec. 735.1  Purpose.

    To promulgate latest guidance on reporting births and deaths, 
including births to which part 138 of this title is applicable.



Sec. 735.2  Background.

    For Armed Forces members and their dependents on duty overseas, 
registration of vital statistics with an appropriate foreign government 
may be a distinct advantage should documentary evidence, acceptable in 
all courts, be required at any future time. Department of Defense (DOD) 
policy is that military services will require their members to make 
official record of births, deaths, marriages, etc., with local civil 
authorities in whose jurisdiction such events occur.



Sec. 735.3  Action.

    When a medical officer has knowledge of a birth or death occurring 
under the following conditions, he or she shall refer the matter to the 
commanding officer for assurance of compliance with DOD policy.
    (a) Births. (1) In accordance with local health laws and 
regulations, the commanding officer of a naval hospital in the United 
States (U.S.) shall report to proper civil authorities all births, 
including stillbirths, occurring at the hospital. Medical officers on 
ships and aircraft operating within U.S. political boundaries, or at 
stations other than naval hospitals in the U.S., shall report all births 
occurring within their professional cognizance. It shall be the duty of 
the medical officer to determine the requirements of local civil 
authorities for these reports.
    (2) When births occur on aircraft or ships operating beyond U.S. 
political boundaries, the medical officer responsible for delivery shall 
make a report to the commanding officer, master of the ship, or to the 
officer in command of any aircraft, in every case to be recorded in the 
ship or aircraft log. A report shall also be made to local civil 
authorities in the first port of entry if required by law and regulation 
of such authorities when births occur on a course inbound to the U.S. 
Additionally, the medical officer shall:
    (i) Furnish the parents with appropriate certificates and shall, if 
the report is not accepted by the local registrar of vital statistics or 
other civil authority, or in any case in which local

[[Page 362]]

authority has indicated in writing that such a report will not be 
accepted,
    (ii) Advise the parents to seek the advice of the nearest office of 
the U.S. Immigration and Naturalization Service (USINS), at the earliest 
practicable time. USINS offices are located in ports of entry and in 
major cities of the United States.
    (iii) For births occurring on courses out-bound and beyond the 
continental limits of the U.S., report to the U.S. consular 
representative at the next appropriate foreign port. When the aircraft 
or ship does not enter a foreign port, procedures described in 
Sec. 735.3(a)(2)(ii) shall be followed.
    (3) Attention is invited to the fact that reports of birth may be 
forwarded to the Bureau of Health Statistics, Department of Health, 
Honolulu, Hawaii for any births occurring on courses destined for 
islands in the Pacific Ocean over which the United States has 
jurisdiction as well as for those births which are otherwise accepted by 
civil authorities for Hawaii.
    (4) Part 138 of this title prescribes policy, responsibilities, and 
procedures on birth registration of infants born to U.S. citizens, in 
military medical facilities outside the United States and its 
possessions.
    (b) Deaths. When a death occurs at a naval activity in any State, 
Territory, or insular possession of the United States, the commanding 
officer or designated representative shall report the death promptly to 
proper civil authorities in accordance with Naval Medical Command 
directives. If requested by these civil authorities, the civil death 
certificate may be prepared and signed by the cognizant naval medical 
officer. Local agreements concerning reporting and preparation of death 
certificates should be made between the naval facility and local civil 
authorities.

[[Page 363]]



    SUBCHAPTER D--PROCUREMENT, PROPERTY, PATENTS, AND CONTRACTSCross 
 Reference: For joint procurement regulations of the Armed Forces, see 
                        chapter I of this title.





PART 736--DISPOSITION OF PROPERTY--Table of Contents




Sec.
736.1  General.
736.2  Dispositions under contracts.
736.3  Sale of personal property.
736.4  Disposition of real property.
736.5  Disposition of real and personal property under special statutory 
          authority.
736.6  Certification prior to disposition.
736.7  Approval by the Attorney General.

    Authority: Secs. 5031, 6011, 70A Stat. 278, as amended; 10 U.S.C. 
5031, 6011. Interpret or apply R.S. 3618, 3678, 3709, 38 Stat. 1084, 44 
Stat. 605, 49 Stat. 885, 53 Stat. 811, 54 Stat. 396, 57 Stat. 380, 59 
Stat. 260, sec. 27, 60 Stat. 856, sec. 5, 60 Stat. 998, sec. 4, 62 Stat. 
286, secs. 7(c), 8(a-b), 62 Stat. 452, 63 Stat. 377, 64 Stat. 1109, 65 
Stat. 645, 68 Stat. 832, sec. 501(c)(3), 68A Stat. 163, secs. 2481, 
2541, 2542, 2571-2574, 2662, 2667, 6155, 6156, 6901, 7227, 7228, 7230, 
7304-7308, 7541-7547, 7601-7604, 70A Stat. 141, sec. 5003, 72 Stat. 
1252, 72 Stat. 1793, sec. 616, 73 Stat. 381, as amended; 31 U.S.C. 487, 
628, 41 U.S.C. 5, 31 U.S.C. 686, 686a, 40 U.S.C. 304a, 50 U.S.C. 98-98h, 
22 U.S.C. 521, 44 U.S.C. 366-380, 42 U.S.C. 1572, 24 U.S.C. 37, 20 
U.S.C. 77d, 15 U.S.C. 328, 49 U.S.C. 1156(c), 1157(a-b), 40 U.S.C. 471 
et seq., 42 U.S.C. 1855-1855g, 22 U.S.C. 1611-1613c, 1750 et seq., 26 
U.S.C. 501(c)(3), 10 U.S.C. 2481, 2541, 2542, 2571-2574, 2662, 2667, 
6155, 6156, 6901, 7227, 7228, 7230, 7304-7308, 7541-7547, 7601-7604, 38 
U.S.C. 5003, 42 U.S.C. 1891-1893, 40 U.S.C. 483a. E.O. 10885, 25 FR 
8471.

    Source: 25 FR 4674, May 27, 1960, unless otherwise noted.



Sec. 736.1  General.

    Real and personal property under the jurisdiction of the Department 
of the Navy, exclusive of battleships, aircraft carriers, cruisers, 
destroyers, and submarines (referred to as warships in this part) and 
certain public domain lands and mineral interests, may be disposed of 
under the authority contained in the Federal Property and Administrative 
Services Act of 1949 (63 Stat. 377), as amended (40 U.S.C. 471), in this 
part referred to as the Federal Property Act. The Federal Property Act 
places the responsibility for the disposition of excess and surplus 
property located in the United States, Puerto Rico, the Virgin Islands, 
American Samoa, Guam, and the Trust Territory of the Pacific Islands 
with the Administrator of General Services, and for disposition of such 
property located in foreign areas, with the head of each executive 
agency. The Act of August 10, 1956 (70A Stat. 451; 10 U.S.C. 7304, 7305, 
7307) and Executive Order 11765 of January 21, 1974, (39 FR 2577) 
provide authority for the disposal of warships as well as other vessels 
stricken from the Naval Vessel Register. The United States Maritime 
Commission, however, is authorized to dispose of surplus vessels, other 
than warships, or 1,500 gross tons or more which the Commission 
determines to be merchant vessels or capable of conversion to merchant 
use (40 U.S.C. 484(i)). Accordingly, in disposing of its property, the 
Department of the Navy is subject to applicable regulations of the 
Administrator of General Services and the Secretary of Defense, and, in 
regard to potential merchant vessels other than warships, to 
determinations of the United States Maritime Commission. In general, 
property of the Department of the Navy, which becomes excess to its 
needs, may not be disposed of to the general public until it has been 
determined to be surplus after screening such property with the other 
military departments of the Department of Defense and all other agencies 
of the Government, and after it has been offered for donation to the 
educational institutions.
    (a) Within the limitations indicated in the introductory paragraph 
of this section, the Department of the Navy is authorized to sell its 
surplus personal property under the authority of the Federal Property 
Act and the Act of August 10, 1956 (70A Stat. 451; 10 U.S.C. 7305), and 
to report its real property, when excess to the needs of the Department 
of Defense, to the General Services Administration for ultimate 
disposition by that agency or the Department of the Navy. The Department 
of

[[Page 364]]

the Navy is also authorized to transfer real and personal property to 
other departments or agencies of the Government, and to sell, transfer 
and otherwise dispose of certain vessels and other personal property 
under special statutory authority. Ships other than warships are sold 
pursuant to the Federal Property Act (40 U.S.C. 484(i)) by the U.S. 
Maritime Commission if over 1500 gross tons and determined by the 
Maritime Commission to be merchant vessels or capable of conversion to 
merchant use. In certain cases, Navy vessels and other property may be 
transferred or otherwise made available to other agencies without 
reimbursement (sec. 616, 73 Stat. 381; 40 U.S.C. 483a).
    (b) This part sets forth the general procedures and authority with 
respect to the disposition of property under the control of the 
Department of the Navy except disposition of property to foreign 
governments under the authority of such statutes as the Aid to American 
Republics Act (54 Stat. 396; 22 U.S.C. 521) and the Mutual Defense 
Assistance Control Act of 1951 (65 Stat. 644; 22 U.S.C. 1611-1613c).
    (c) The Department of Defense Disposal Manual and directives issued 
by the Department of the Navy cover the disposition of all property of 
the Department including disposition under the Federal Property Act. The 
Navy Personnel Property Disposal Manual and the Marine Corps Supply 
Manual contain information and operating instructions for the guidance 
of field personnel in disposing of personal property at Navy and Marine 
Corps installations, respectively. Section XXIV of Navy Procurement 
Directives contains similar information applicable to the disposition of 
contractor inventory. These publications are available for inspection at 
the Naval Material Command Headquarters, Washington, DC; at the offices 
of the Commandants of the several Naval Districts; and at various Navy 
and Marine Corps installations.
[25 FR 4674, May 27, 1960, as amended at 39 FR 18442, May 28, 1974; 41 
FR 26008, June 24, 1976]



Sec. 736.2  Dispositions under contracts.

    (a) Contractor inventory (that is, personal property acquired by a 
contractor under terms vesting title in the Government but in excess of 
the amount required for performance of a contract) may be sold to the 
contractor or otherwise disposed of in accordance with the terms and 
conditions set forth in the contract and applicable Navy instructions. 
See also parts 8 and 13 and Secs. 30.2 and 30.3 of this title.
    (b) Industrial and plant equipment provided by the Government to a 
contractor for the performance of a contract may, subject to applicable 
statutory authority and Navy instructions be disposed of in accordance 
with the applicable contract terms and conditions.
    (c) Transfer to nonprofit education or research institutions of 
title to equipment purchased with funds available for grants or 
contracts for the conduct of basic or applied research is authorized by 
the act of September 6, 1958 (sec. 2, 72 Stat. 1793; 42 U.S.C. 1892) and 
implementing regulations (Secs. 13.800 to 13.803 of this title).



Sec. 736.3  Sale of personal property.

    (a) The sale of personal property determined to be surplus or 
foreign excess or for exchange purposes is authorized by the Federal 
Property Act and regulations of the Administrator of General Services 
(see Sec. 736.1(a)). Certain vessels stricken from the Naval Vessel 
Register may be sold under the act of August 19, 1956, (70A Stat. 451, 
10 U.S.C. 7305).
    (b) Sales are by sealed bid, auction, spot bid or, under limited 
conditions prescribed by law, negotiated method. A deposit, generally 20 
percent of the amount bid, is normally required of each bidder. Awards 
are usually made to the highest acceptable bidder. Normally property may 
not be removed from Government control until full payment is made. 
Arrangements must be made by the successful bidder to remove the 
property within the time limit prescribed in the invitation to bid or 
sales contract. The Government reserves the right to withdraw any 
property from sale when in the best interest of the Government.

[[Page 365]]

    (1) The Department of Defense has a contact point for any person 
interested in purchasing surplus Department of Defense personal property 
within the United States. The contact point is the Defense Surplus 
Bidders Control Office, Defense Logistics Service Center, Federal Center 
Building, Battle Creek, Michigan. This office maintains a single bidders 
list for all military departments. The list is arranged to show each 
person's buying interests, both geographically and with respect to 
categories of property. The categories of property (together with an 
application blank) are listed in a pamplet ``How to Buy Surplus Personal 
Property From The Department of Defense,'' prepared by the Defense 
Logistics Services Center, Defense Supply Agency, Battle Creek, 
Michigan.
    (2) Retail sales at fixed prices based on the current market value 
are conducted by certain Defense property disposal offices.
[39 FR 18442, May 28, 1974]



Sec. 736.4  Disposition of real property.

    (a) Real property, including related personal property, determined 
to be excess to the needs of the Department of Defense is subject to 
disposition under the Federal Property Act. In the States of the United 
States, the District of Columbia, the Commonwealth of Puerto Rico, the 
Virgin Islands, American Samoa, Guam, and the Trust Territory of the 
Pacific Islands, Department of the Navy real property determined to be 
excess to the Department of Defense and not required for the needs and 
the discharge of the responsibilities of all Federal agencies, is 
generally disposed of by the General Services Administration as surplus 
property. Exceptions, however, are property worth less than $1,000; 
certain leases, permits, licenses, easements or similar interests; 
certain fixtures, structures, and improvements; and other special 
classes of property which, when determined to be surplus, are disposed 
of by the Commander, Naval Facilities Engineering Command, Field 
Division Directors, and District or Area Public Works Officers under 
authority delegated in Title II, Regulations of the General Services 
Administration, or under special delegations from the Administrator of 
General Services.
    (b) Outside the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American 
Samoa, Guam, and the Trust Territory of the Pacific Islands, Department 
of the Navy real property determined to be excess to the Department of 
Defense is disposed of directly by the Commander, Naval Facilities 
Engineering Command, Field Division Directors, and District or Area 
Public Works Officers.

(5 U.S.C. 301, 40 U.S.C. 471-514)

[35 FR 10008, June 18, 1970, as amended at 41 FR 26008, June 24, 1976]



Sec. 736.5  Disposition of real and personal property under special statutory authority.

    In addition to the authority to sell personal property to the 
general public and to transfer real property to the General Services 
Administration under the provisions of Secs. 736.3 and 736.4, the 
Department of the Navy has further authority to dispose of personal and 
real property as described in paragraphs (a) through (h) of this 
section.
    (a) Disposition to other Government agencies. The Department of the 
Navy is authorized to transfer real and personal property to other 
governmental departments or agencies under statutes applicable to 
particular agencies, the act of March 4, 1915 (38 Stat. 1084) as amended 
(31 U.S.C. 686) and, as to certain personal property, under directives 
of the General Services Administration.
    (b) Leases. Real and personal property under the control of the 
Department of the Navy not excess to its needs and not for the time 
being required for public use may be leased, when the Secretary of the 
Navy shall deem it to be advantageous to the Government, to such lessee 
or lessees and upon such terms and conditions as in his judgment will 
promote the national defense or will be in the public interest. Such 
leases shall be for a period of not exceeding five years unless the 
Secretary determines that a longer period will promote the national 
defense or will be in the public interest. Such leases are authorized by 
the act of August 10, 1956 (70A Stat. 150; 10 U.S.C. 2667). Leases of

[[Page 366]]

Government-owned real property where the estimated annual rental is more 
than 50,000 must be deferred for 30 days after reporting the proposed 
transaction to the Armed Services Committees of Congress in accordance 
with the act of August 10, 1956 70A Stat. 147), as amended (10 U.S.C. 
2662).
    (c) Disposition of strategic materials. Strategic materials may be 
disposed of by the Department of the Navy under the authority described 
in Sec. 736.3 only when such property is excess to the needs of the 
Department of Defense and when the Director of the Office of Civil and 
Defense Mobilization (acting through the Defense Materials Service of 
the General Services Administration) determines that the amounts of such 
materials to be disposed of are so small as to make transfer thereof 
under the act of June 7, 1939 (53 Stat. 811) as amended (50 U.S.C. 98-
98h) economically impractical, or such materials are not necessary for 
stockpile requirements determined in accordance with section 2 of said 
act.
    (d) Disposition of vessels. Vessels stricken from the Naval Vessel 
Register may be sold by the Department of the Navy under the authority 
and subject to the limitations of the Federal Property Act (sections 
203(i), 63 Stat. 386, 40 U.S.C. 484(i)) and the act of August 10, 1956, 
(70A Stat. 451; 10 U.S.C. 7304, 7305, 7307) and Executive Order 11765 
(39 FR 2577). However, pursuant to section 203(i) of the Federal 
Property Act (40 U.S.C. 484(i)), the United States Maritime Commission 
disposes of vessels, other than warships, if over 1,500 gross tons and 
determined by the Maritime Commission to be merchant vessels or capable 
of conversion to merchant use. Vessels may be sold for scrapping or for 
use under such authority or, if such sale is not feasible, the Naval 
Ship Systems Command may arrange for the demolition of a vessel and sale 
of the resulting materials by an authorized selling activity as set 
forth in Sec. 736.3.
    (e) Exchange of sale of property for replacement purposes. Under the 
authority of section 201(c) of the Federal Property Act (40 U.S.C. 
481(c)) and of the Armed Services Procurement Regulation, the Department 
of the Navy is authorized in the procurement of new equipment, to 
exchange or sell similar items which are not excess to its needs, and 
apply the exchange allowance or proceeds of sale in whole or part 
payment for the items procured.
    (f) Donations and loans of personal property. (1) Certain personal 
property of the Department of the Navy, including vessels, which become 
surplus, may be donated or loaned under the authority contained in the 
Federal Property Act and the act of August 10, 1956 (70A Stat. 453; 10 
U.S.C. 2572, 7308, 7545) to:
    (i) Schools such as maritime academies or military, naval, Air Force 
or Coast Guard preparatory schools, designated by the Secretary of 
Defense as educational activities of special interest to the armed 
services.
    (ii) Accredited schools, colleges and universities and educational 
institutions which have been exempted from taxation under section 
501(c)(3) of the Internal Revenue Code of 1954 and State Departments of 
Education for use by tax exempt educational institutions. Applications 
for donation shall be approved by the Department of Health and Human 
Services and the Administrator of General Services and may be filed with 
the field representative of the Department of Health and Human Services 
located nearest the applicant.
    (iii) States, Territories, Commonwealths, or possessions of the 
United States and political subdivisions, municipal corporations, 
veterans associations, soldiers' monument associations, State museums, 
and non-profit educational museums, subject in certain cases to the 
approval of the Curator for the Navy and to objection by a concurrent 
resolution of the Congress.
    (2) Applications other than those to be filed with the field 
representative of the Department of Health and Human Services shall be 
filed with the Department of the Navy and referred to the cognizant 
Command or Headquarters for action except that applications for vessels 
and district craft shall be referred to the Chief of Naval Operations, 
applications for boats to the Naval Ship Systems Command, and 
applications for barges, floating drydocks, and other floating 
construction equipment to the Naval Facilities Engineering Command. 
Detailed instructions with

[[Page 367]]

respect to such applications are set forth in the Defense Disposal 
Manual.
    (g) Disposition of equipment for research. Under the act of 
September 6, 1958 (72 Stat. 1793; 42 U.S.C. 1891-1893), equipment 
purchased with research grant or contract funds may be transferred for 
the conduct of basic or applied scientific research to (1) non-profit 
institutions of higher education or (2) non-profit organizations whose 
primary purpose is the conduct of scientific research. An annual report 
of such transfers must be made to the appropriate Committees of 
Congress.
    (h) Assistance in major disaster relief. Under the act of December 
31, 1970, (42 U.S.C. 4401-4485) and subject to directions of the 
Director of the Office of Emergency Preparedness, certain excess 
personal property may be utilized for or donated to States and local 
governments for relief of suffering and damage resulting from major 
disasters. Surplus property may also be disposed of to States for sale 
to small business concerns affected by specific disasters such as 
hurricanes.
[25 FR 4674, May 27, 1960, as amended at 25 FR 11066, Nov. 22, 1960, 26 
FR 12158, Dec. 20, 1961; 35 FR 10008, June 18, 1970; 39 FR 18442, May 
28, 1974; 41 FR 26008, June 24, 1976; 47 FR 28371, June 30, 1982]



Sec. 736.6  Certification prior to disposition.

    The transfer, sale, or other disposition of a battleship, aircraft 
carrier, cruiser, destroyer, or submarine shall not be made unless and 
until the Chief of Naval Operations, in accordance with the act of 
August 10, 1956 (70A Stat. 452; 10 U.S.C. 7307), has certified that such 
material is not essential to the defense of the United States.



Sec. 736.7  Approval by the Attorney General.

    Prior to the disposition, either competitively or by negotiation, to 
private interests of a plant or plants, or other property, which cost 
the Government $1,000,000 or more if real property, or $3,000,000 or 
more if personal property (other than a patent, process, technique or 
invention), or of patents, processes, techniques or inventions, 
irrespective of cost, the Department of the Navy must notify the 
Attorney General of the proposed disposal and the probable terms and 
conditions thereof. Within a reasonable time, in no event to exceed 
sixty days after receiving such notification, the Attorney General will 
advise the Department of the Navy, whether, insofar as he can determine, 
the proposed disposition would tend to create or maintain a situation 
inconsistent with the antitrust laws. In such cases, the Department of 
the Navy must obtain from the proposed purchaser information regarding 
its financial status, the anticipated use to be made of the property and 
any other information as may be required by the Attorney General; the 
award or final sale must be delayed until the Attorney General advises 
of his determination.



PART 744--POLICIES AND PROCEDURES FOR THE PROTECTION OF PROPRIETARY RIGHTS IN TECHNICAL INFORMATION PROPOSED FOR RELEASE TO FOREIGN GOVERNMENTS--Table of Contents




    Authority: Sec. 301, 80 Stat. 379, secs. 5031, 6011, 70A Stat. 278, 
375 as amended; 5 U.S.C. 301, 10 U.S.C. 5031, 6011. Interpret or apply 
the Mutual Security Act of 1954 (68 Stat. 832) as amended, 22 U.S.C. 
1750 et seq., and Act of Sept. 4, 1961 (Pub. L. 87-195, 75 Stat. 424), 
22 U.S.C. 2151-2406 (2351, 2356).



Sec. 744.1  Purpose.

    This part implements part 264 of this title and the Technical 
Property Interchange Agreements between the United States and foreign 
governments which agreements are designed to facilitate the interchange 
of patent rights and technical information for defense purposes.
[26 FR 12217, Dec. 21, 1961]



Sec. 744.6  Authorization for release without consent of the owner.

    (a) Military equipment including the information essential for its 
operation, maintenance and repair and technical information, known or 
claimed to be proprietary, which is being considered for release in 
accordance with Sec. 264.4(d)(3), may be released when the

[[Page 368]]

Chief of Naval Operations or his designee or a bureau chief or deputy 
bureau chief determines under the authority of the Act that such action 
clearly warrants the assumption of financial liability that may be 
incurred and there is no acceptable substitute equipment or information 
for which consent to release is obtainable or which is not proprietary.
    (b) Where any technical information is released in accordance with 
this section, such release shall be subject to the conditions of release 
set forth in Sec. 264.4(f).
    (c) Military equipment, including the information essential for its 
operation, maintenance, and repair, known or claimed to be privately 
owned and for which consent for release cannot be obtained may be 
furnished to foreign governments in accord with Sec. 264.4(d)(3) without 
further legal authorization, provided such release is made pursuant to 
the grant aid provisions of the Mutual Security Act of 1954, as amended, 
and provided further, there is no acceptable substitute equipment or 
information for which consent for release is obtainable or which is not 
proprietary.
[24 FR 10715, Dec. 25, 1959, as amended at 44 FR 30686, May 29, 1979]



PART 746--LICENSING OF GOVERNMENT INVENTIONS IN THE CUSTODY OF THE DEPARTMENT OF THE NAVY--Table of Contents




Sec.
746.1  Purpose.
746.2  Policy.
746.3  Delegation of authority.
746.4  Definitions.
746.5  Government inventions available for licensing.
746.6  Nonexclusive license.
746.7  Limited exclusive license.
746.8  Additional licenses.
746.9  Royalties.
746.10  Reports.
746.11  Procedures.
746.12  Litigation.
746.13  Transfer of custody of Government inventions.

    Authority: 5 U.S.C. 301; 10 U.S.C. 5031; 40 U.S.C. 486(c); and 41 
CFR 101-4.1.

    Source: 41 FR 55712, Dec. 22, 1976, unless otherwise noted.



Sec. 746.1  Purpose.

    This part implements Department of Defense Directive 5535.3 of 
November 2, 1973 and 41 CFR subpart 101-4.1, and sets forth the policy, 
terms, conditions, and procedures for the licensing of rights in 
domestic patents and patent applications vested in the United States of 
America and in the custody of the Department of the Navy.



Sec. 746.2  Policy.

    (a) A major premise of the Presidential Statement fo Government 
Patent Policy, August 23, 1971 (36 FR 16887, August 26, 1971), is that 
government inventions normally will best serve the public interest when 
they are developed to the point of practical application and made 
available to the public in the shortest possible time. The granting of 
express nonexclusive or exclusive licenses for the practice of these 
inventions may assist in the accomplishment of the national objective to 
achieve a dynamic and efficient economy.
    (b) The granting of nonexclusive licenses generally is preferable, 
since the invention is thereby laid open to all interested parties and 
serves to promote competition in industry, if the invention is in fact 
promoted commercially. However, to obtain commercial utilization of the 
invention, it may be necessary to grant an exclusive license for a 
limited period of time as an incentive for the investment of risk 
capital to achieve practical application of an invention.
    (c) Whenever the grant of an exclusive license is deemed 
appropriate, it shall be negotiated on terms and conditions most 
favorable to the public interest. In selecting an exclusive licensee, 
consideration shall be given to the capabilities of the prospective 
licensee to further the technical and market development of the 
invention, his plan to undertake the development, the projected impact 
on competition, and the benefit to the Government and the public. 
Consideration shall be given also to assisting small business and 
minority business enterprises, as well as economically depressed, low 
income, and labor surplus areas, and whether each or any applicant is a 
United States citizen or corporation. Where

[[Page 369]]

there is more than one applicant for an exclusive license, that 
applicant shall be selected who is determined to be most capable of 
satisfying the criteria and achieving the goals set forth in this part.
    (d) Subject to the following: (1) Any existing or future treaty or 
agreement between the United States and any foreign government or inter-
governmental organization, or
    (2) Licenses under or other rights to inventions made or conceived 
in the course of or under Department of the Navy research and 
development contracts where such licenses or other rights to such 
inventions are provided for in the contract and retained by the party 
contracting with the Department of the Navy, no license shall be granted 
or implied in a government invention, except as provided for in this 
part.
    (e) No grant of a license under this part shall be construed to 
confer upon any licensee any immunity from the antitrust laws or from a 
charge of patent misuse, and the acquisiton and use of rights pursuant 
to this part shall not be immunized from the operation of state or 
federal law by reason of the source of the grant.



Sec. 746.3  Delegation of authority.

    The Chief of Naval Research is delegated the authority to administer 
the patent licensing program, with the authority to redelegate such 
authority.



Sec. 746.4  Definitions.

    (a) Government invention means an invention covered by a domestic 
patent or patent application that is vested in the United States and in 
the custody of the Department of the Navy, and is designated by the 
Chief of Naval Research as appropriate for the grant of an express non-
exclusive or exclusive license.
    (b) To the point of practical application means to manufacture in 
the case of a composition or product, to practice in the case of a 
process, or to operate in the case of a machine, under such conditions 
as to establish that the invention is being worked and that its benefits 
are reasonably accessible to the public.



Sec. 746.5  Government inventions available for licensing.

    Government inventions normally will be made available for the 
granting of express nonexclusive or limited exclusive licenses to 
responsible applicants according to the factors and conditions set forth 
in Secs. 746.6 and 746.7, subject to the applicable procedures of 
Sec. 746.11. The Chief of Naval Research may remove a prior designation 
of availability for licensing of any patent(s) or patent application(s), 
provided that no outstanding licenses to that invention are in effect.



Sec. 746.6  Nonexclusive license.

    (a) Availability of licenses. Each government invention normally 
shall be made available for the granting of nonexclusive revocable 
licenses, subject to the provisions of any other licenses, including 
those under Sec. 746.8.
    (b) Terms of grant. (1) The duration of the license shall be for a 
period as specified in the license agreement, provided that the licensee 
complies with all the terms of the license.
    (2) The license shall require the licensees to bring the invention 
to the point of practical application within a period specified in the 
license, or such extended period as may be agreed upon, and to contine 
to make the benefits of the invention reasonably accessible to the 
public.
    (3) The license may be granted for all or less than all fields of 
use of the invention, and throughout the United States of America, its 
territories and possessions, the Commonwealth of Puerto Rico, and the 
District of Columbia, or in any lesser geographic portion thereof.
    (4) After termination of a period specified in the license 
agreement, the Chief of Naval Research may restrict the license to the 
fields of use and/or geographic areas in which the licensee has brought 
the invention to the point of practical application and continues to 
make the benefits of the invention reasonably accessible to the public.
    (5) The license may extend to subsidiaries and affiliates of the 
licensee but shall be nonassignable without approval of the Chief of 
Naval Research, except to the successor of that part of

[[Page 370]]

the licensee's business to which the invention pertains.
    (6) The Government shall make no representation or warranty as to 
the validity of any licensed application(s) or patent(s), or of the 
scope of any of the claims contained therein, or that the exercise of 
the license will not result in the infringement of any other patent(s), 
nor shall the Government assume any liability whatsoever resulting from 
the exercise of the license.



Sec. 746.7  Limited exclusive license.

    (a) Availability of licenses. Each government invention may be made 
available for the granting of a limited exclusive license, provided 
that:
    (1) The invention has been published as available for licensing 
pursuant to paragraph (a) of Sec. 746.11 for a period of at least six 
months;
    (2) The Chief of Naval Research has determined that:
    (i) The invention may be brought to the point of practical 
application in certain fields of use and/or in certain geographical 
locations by exclusive licensing;
    (ii) The desired practical application has not been achieved under 
any nonexclusive license granted on the invention; and
    (iii) The desired practical application is not likely to be achieved 
expeditiously in the public interest under a nonexclusive license or as 
a result of further government-funded research or development;
    (3) The notice of the prospective licensee has been published, 
pursuant to paragraph (d) of Sec. 746.11 for at least 60 days; and
    (4) After termination of the period set forth in paragraph (a)(3) of 
Sec. 746.7 the Chief of Naval Research has determined that no applicant 
for a nonexclusive license has brought or will bring, within a 
reasonable period, the invention to the point of practical application, 
as specified in the exclusive license, and that to grant the exclusive 
license would be in the public interest.
    (b) Selection of exclusive licensee. An exclusive licensee will be 
selected on bases consistent with the policy set forth in Sec. 746.2 and 
in accordance with the procedures set forth in Sec. 746.11.
    (c) Terms of grant. (1) The license may be granted for all or less 
than all fields of use of the government invention, and throughout the 
United States of America, its territories and possessions, the 
Commonwealth of Puerto Rico, and the District of Columbia, or in any 
lesser geographic portion thereof.
    (2) Subject to the rights reserved to the Government in paragraphs 
(c)(6) and (c)(7) of Sec. 746.7, the licensee shall be granted the 
exclusive right to practice the invention in accordance with the terms 
and conditions specified in the license.
    (3) The duration of the license shall be negotiated but shall be for 
a period less than the terminal portion of the patent, the period 
remaining being sufficient to make the invention reasonably available 
for the grant of a nonexclusive license; and such period of exclusivity 
shall not exceed 5 years unless the Chief of Naval Research determines, 
on the basis of a written submission supported by a factual showing, 
that a longer period is reasonably necessary to permit the licensee to 
enter the market and recoup his reasonable costs in so doing.
    (4) The license shall require the licensee to bring the invention to 
the point of practical application within a period specified in the 
license, or within a longer period as approved by the Chief of Naval 
Research, and to continue to make the benefits of the invention 
reasonably accessible to the public.
    (5) The license shall require the licensee to expend a specified 
minimum amount of money and/or take other specified actions, within a 
specified period of time after the effective date of the license, in an 
effort to bring the invention to the point of practical application.
    (6) The license shall be subject to the irrevocable, royalty-free 
right of the Government of the United States to practice and have 
practiced the invention throughout the world, by or on behalf of the 
Government of the United States, and by or on behalf of any foreign 
government or intergovernmental organization pursuant to any existing or 
future treaty or agreement with the

[[Page 371]]

United states. If the Chief of Naval Research finds it to be in the 
public interest, this license may also be expressly subject to this same 
royalty-free right by or on behalf of state and municipal governments.
    (7) The license shall reserve to the Chief of Naval Research the 
right to require the licensee to grant sublicenses to responsible 
applicants on terms that are reasonable in the circumstances:
    (i) The extent that the invention is required for public use by 
government regulations, or
    (ii) As may be necessary to fulfill health or safety needs, or
    (iii) For other public purposes stipulated in the license.
    (8) The license may extend to subsidiaries and affiliates of the 
licensee but shall be nonassignable without approval of the Chief of 
Naval Research, except to successors of that part of the licensee's 
business to which the invention pertains.
    (9) An exclusive licensee may grant sublicenses under his license, 
subject to the approval of the Chief of Naval Research. Each sublicense 
granted by an exclusive licensee shall make reference to the exclusive 
license, including the rights retained by the Government under the 
exclusive license, and a copy of such sublicense shall be furnished to 
the Chief of Naval Research.
    (10) The license may be subject to such other terms as may be in the 
public interest.
    (11) The Government shall make no representation or warranty as to 
validity of any licensed application(s) or patent(s), or of the scope of 
any of the claims contained therein, or that the exercise of the license 
will not result in the infringement of any other patent(s), nor shall 
the Government assume any liability whatsoever resulting from the 
exercise of the license.



Sec. 746.8  Additional licenses.

    Subject to any outstanding licenses, nothing in this part shall 
preclude the Chief of Naval Research from granting additional 
nonexclusive or limited exclusive licenses for government inventions 
when he determines that to do so would provide for an equitable exchange 
of patent rights. The following exemplify circumstances wherein such 
licenses may be granted:
    (a) In consideration of the settlement of an interference;
    (b) In consideration of a release of a claim of infringement; or
    (c) In exchange for, or as part of, the consideration for a license 
under adversely held patents.



Sec. 746.9  Royalties.

    (a) Nonexclusive license. Normally, royalties shall not be changed 
under nonexclusive licenses granted to United States citizens and United 
States corporations on government inventions; however, the Chief of 
Naval Research may require other consideration.
    (b) Limited exclusive license. A limited exclusive license on a 
government invention shall contain a royalty provision and/or other 
consideration flowing to the Government.



Sec. 746.10  Reports.

    A license shall require the licensee to submit periodic reports on 
his efforts to achieve practical application of the invention. The 
reports shall contain information within his knowledge, or which he may 
acquire under normal business practices, pertaining to the commercial 
use being made of the invention, and other information which the Chief 
of Naval Research may determine is pertinent to its licensing activities 
and is specified in the license.



Sec. 746.11  Procedures.

    (a) Publication requirements. The Chief of Naval Research shall 
cause to be published in the Federal Register, the Official Gazette of 
the United States Patent and Trademark Office, and at least one other 
publication that the Chief of Naval Research deems would best serve the 
public interest, a list of the government inventions available for 
licensing under the conditions specified in this part. The list shall be 
revised periodically to include directly, or by reference to a 
previously published list, all inventions currently available for 
licensing. Other publications on inventions available for licensing are 
encouraged, and may include abstracts, when appropriate, as

[[Page 372]]

well as information on the design, construction, use, and potential 
market for the inventions.
    (b) Contents of a nonexclusive license application. An application 
for a nonexclusive license under a government invention should be 
addressed to the Chief of Naval Research (Code 300), Arlington, VA 
22217, and shall include:
    (1) Identification of the invention for which the license is 
desired, including the patent application serial number or patent 
number, title, and date, if known, and any other identification of the 
invention;
    (2) Name and address of the person, company, or organization 
applying for the license, and whether the applicant is a United States 
citizen or a United States corporation;
    (3) Name and address of the representative of applicant to whom 
correspondence should be sent;
    (4) Nature and type of applicant's business;
    (5) Source of information concerning the availability of a license 
on this invention;
    (6) Purpose for which the license is desired and a brief description 
of applicant's plan to achieve that purpose;
    (7) A statement of the fields of use for which applicant intends to 
practice the invention; and
    (8) A statement as to the geographic areas in which the applicant 
would practice the invention.
    (c) Contents of an exclusive license application. An application for 
an exclusive license should be addressed to the Chief of Naval Research 
(Code 300), Arlington, VA 22217, and, in addition to the information 
indicated in paragraph (b) of Sec. 746.11, an application for an 
exclusive license shall include:
    (1) Applicant's status, if any, in any one or more of the following 
categor- ies:
    (i) Small business firm;
    (ii) Minority business enterprise;
    (iii) Location in a surplus labor area;
    (iv) Location in a low-income area; and
    (v) Location in an economically depressed area;
    (2) A statement of applicant's capability to undertake the 
development and marketing required to achieve the practical application 
of the invention;
    (3) A statement describing the time, expenditure, and other acts 
which the applicant considers necessary to achieve practical application 
of the invention and the applicant's offer to invest that sum to perform 
such acts if the license is granted;
    (4) A statement that contains the applicant's best knowledge of the 
extent to which the government invention is being practiced by private 
industry and the Government;
    (5) Identification of other exclusive licenses granted to applicant 
under inventions in the custody of other government agencies; and
    (6) Any other facts which the applicant believes are evidence that 
it is in the public interest for the Chief of Naval Research to grant an 
exclusive license rather than a nonexclusive license, and that such 
exclusive license should be granted to the applicant.
    (d) Published notices. (1) A notice that a prospective exclusive 
licensee has been selected shall be published in the Federal Register, 
and a copy of the notice shall be sent to the Attorney General. The 
notice shall include:
    (i) Identification of the invention;
    (ii) Identification of the selected licensee;
    (iii) Duration and scope of the contemplated license; and
    (iv) A statement to the effect that the license will be granted 
unless:
    (A) An application for a nonexclusive license, submitted by a 
responsible applicant pursuant to paragraph (b) of Sec. 746.11, is 
received by the Chief of Naval Research within 60 days from the 
publication of the notice in the Federal Register, and the Chief of 
Naval Research determines in accordance with his prescribed procedures, 
under which procedures the Chief of Naval Research shall record and make 
available for public inspection all decisions made pursuant thereto and 
the basis therefore, that the applicant has established that he has 
already achieved or is likely to bring the invention to the point of 
practical application withing a reasonable period under a nonexclusive 
license; or
    (B) The Chief of Naval Research determines that third party has 
presented evidence and argument which has established that it would not 
be in

[[Page 373]]

the public interest to grant the exclusive license.
    (2) If an exclusive license has been granted pursuant to this part, 
notice thereof shall be published in the Federal Register. Such notice 
shall include:
    (i) Identification of the invention;
    (ii) Identification of the licensee; and
    (iii) Duration and scope of the license.
    (3) If an exclusive license has been modified or revoked pursuant to 
paragraph (e) Sec. 746.11, notice thereof shall be published in the 
Federal Register. Such notice shall include:
    (i) Identification of the invention;
    (ii) Identification of the licensee; and
    (iii) Effective date of the modification or revocation.
    (e) Modification or revocation. (1) Any license granted pursuant to 
this part may be modified or revoked by the Chief of Naval Research if 
the licensee at any time defaults in making any report required by the 
license or commits any breach of covenant or agreement therein 
contained.
    (2) A license may also be revoked by the Chief of Naval Research if 
the licensee willfully makes a false statement of material fact or 
willfully omits a material fact in the license application or any report 
required in the license agreement.
    (3) Before modifying or revoking any license granted pursuant to 
this part for any cause, the Chief of Naval Research shall furnish the 
licensee and any sublicensee of record a written notice of intention to 
modify or revoke the license, and the licensee and any sublicensee shall 
be allowed 30 days after such notice to remedy any breach of any 
covenant or agreement as referred to in paragraph (e)(1) of Sec. 746.11, 
or to show cause why the license should not be modified or revoked.
    (f) Appeals. An applicant for a license, a licensee, or such other 
third party who has participated under paragraph (d)(1)(iv)(B) of 
Sec. 746.11 shall have the right to appeal, in accordance with 
procedures prescribed by the Chief of Naval Research, any decision 
concerning the granting, denial, interpretation, modification, or 
revocation of a license.



Sec. 746.12  Litigation.

    The property interest in a patent is the right to exclude. It is not 
the intent of the Government to transfer the property right in a patent 
when a license is issued pursuant to this part. Accordingly, the right 
to sue for infringement shall be retained with respect to all licenses 
so issued by the Government.



Sec. 746.13  Transfer of custody of Government inventions.

    The Chief of Naval Research may enter into an agreement to transfer 
custody of a Government invention to another government agency for 
purposes of administration, including the granting of licenses pursuant 
to this part.

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                          SUBCHAPTER E--CLAIMS





PART 750--GENERAL CLAIMS REGULATIONS--Table of Contents




                Subpart A--General Provisions for Claims

Sec.
750.1  Scope of subpart A.
750.2  Investigations: In general.
750.3  Investigations: The report.
750.4  Claims: In general.
750.5  Claims: Proper claimants.
750.6  Claims: Presentment.
750.7  Claims: Action by receiving command.
750.8  Claims: Responsibility of the adjudicating authority.
750.9  Claims: Payments.
750.10  Claims: Settlement and release.
750.11  Claims: Denial.
750.12  Claims: Action when suit filed.
750.13  Claims: Single service responsibility.
750.14-750.20  [Reserved]

                   Subpart B--Federal Tort Claims Act

750.21  Scope of subpart B.
750.22  Exclusiveness of remedy.
750.23  Definitions.
750.24  Statutory/regulatory authority.
750.25  Scope of liability.
750.26  The administrative claim.
750.27  Information and supporting documentation.
750.28  Amendment of the claim.
750.29  Investigation and examination.
750.30  Denial of the claim.
750.31  Reconsideration.
750.32  Suits under the Federal Tort Claims Act (FTCA).
750.33  Damages.
750.34  Settlement and payment.
750.35  Attorney's fees.
750.36  Time limitations.
750.37-750.40  [Reserved]

                     Subpart C--Military Claims Act

750.41  Scope of subpart C.
750.42  Statutory authority.
750.43  Claims payable.
750.44  Claims not payable.
750.45  Filing claim.
750.46  Applicable law.
750.47  Measure of damages for property claims.
750.48  Measure of damages in injury or death cases.
750.49  Delegations of adjudicating authority.
750.50  Advance payments.
750.51  Final disposition.
750.52  Appeal.
750.53  Cross-servicing.
750.54  Payment of costs, settlements, and judgments related to certain 
          medical or legal malpractice claims.
750.55  Attorney's fees.
750.56-750.60  [Reserved]

    Subpart D--Claims Not Cognizable Under Any Other Provision of Law

750.61  Scope of subpart D.
750.62  Statutory authority.
750.63  Definitions.
750.64  Claim procedures.
750.65  Statute of limitations.
750.66  Officials with authority to settle.
750.67  Scope of liability.
750.68  Claims not payable.
750.69  Measure of damages.

    Authority: 5 U.S.C. 301; 10 U.S.C. 939, 5013, and 5148; E.O. 11476, 
3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202.

    Source: 57 FR 4722, Feb. 7, 1992, unless otherwise noted.



                Subpart A--General Provisions for Claims



Sec. 750.1  Scope of subpart A.

    (a) General. (1) The Judge Advocate General is responsible for the 
administration and supervision of the resolution of claims arising under 
the Federal Tort Claims Act (subpart B of this part), the Military 
Claims Act (subpart C of this part), the Nonscope Claims Act (subpart D 
of this part), the Personnel Claims Act (part 751 of this chapter), the 
Foreign Claims Act, the International Agreements Claims Act pertaining 
to cost sharing of claims pursuant to international agreements, the 
Federal Claims Collection Act of 1966 (subpart A of part 757 of this 
chapter), the Medical Care Recovery Act (subpart B of part 757 of this 
chapter), and postal claims.
    (2) The Deputy Assistant Judge Advocate General (Claims and Tort 
Litigation) is the functional manager of the Navy claims system 
established to evaluate, adjudicate, and provide litigation support for 
claims arising under the acts listed above and is responsible to the 
Judge Advocate General for the management of that system. The claims 
system consists of field activities delegated claims processing and

[[Page 375]]

adjudicating authority and the attorneys and support personnel assigned 
to the Claims and Tort Litigation Division of the Office of the Judge 
Advocate General. For economy of language, Naval Legal Service Offices 
and Naval Legal Service Office Detachments are referred to as Naval 
Legal Service Command Activities.
    (3) Commanding officers of commands receiving claims are responsible 
for complying with the guidance on investigations in Secs. 750.2 and 
750.3 and the guidance on handling and forwarding claims found in 
Sec. 750.5.
    (b) This subpart A delineates general investigative and claims-
processing requirements to be followed in the handling of all incidents 
and claims within the provisions of this part. Where the general 
provisions of this subpart A conflict with the specific provisions of 
any subsequent subpart of this part, the specific provisions govern.



Sec. 750.2  Investigations: In general.

    (a) Conducting the investigation. The command where the incident 
giving rise to the claim is alleged to have happened is responsible for 
conducting an investigation in accordance with this part.
    (b) Thorough investigation. Every incident that may result in a 
claim against or in favor of the United States shall be promptly and 
thoroughly investigated under this part. Investigations convened for 
claims purposes are sufficiently complex that they should be performed 
with the assistance and under the supervision of a judge advocate or 
other attorney. Where the command has an attorney assigned, he shall be 
involved in every aspect of the proceedings. When an attorney is not 
assigned to the investigating command, consultation shall be sought from 
the appropriate Naval Legal Service Command activity.
    (c) Recovery barred. Even when recovery may be barred by statute or 
case law, all deaths, serious injuries, and substantial losses to 
property that are likely to give rise to claims must be investigated 
while the evidence is available. Claims against persons in the naval 
service arising from the performance of their official duties shall be 
investigated as though they were claims against the United States. When 
an incident involves an actual or potential claim against the United 
States for property damage only and the total amount likely to be paid 
does not exceed $5,000.00, an abbreviated investigative report may be 
submitted. Where this monetary figure may be exceeded, but the 
circumstances indicate an abbreviated report may be adequate to preserve 
the facts and protect the Government's claims interests, approval to 
submit a limited investigative report may be sought from the nearest 
Naval Legal Service Command activity.
    (d) Developing the facts. Any investigation convened for claims 
purposes must focus on developing the facts of the incident, i.e., the 
who, what, where, when, why, and how of the matter. Opinions on the 
possible liability of the United States under any of the claims statutes 
listed above shall not be expressed. Early and continuous consultation 
with claims attorneys at Naval Legal Service Command activities is 
essential to ensure the timely development of all necessary facts, the 
identification and preservation of relevant evidence, and to void the 
need for supplemental inquiries.
    (e) Attorney work product. (1) The convening order and the 
preliminary statement of an investigative report prepared to inquire 
into the facts of an incident giving or likely to give rise to a claim 
against the United States shall include the following:

    This investigation has been convened and conducted, and this report 
prepared, in contemplation of claims adjudication and litigation and for 
the express purpose of assisting attorneys representing the interests of 
the United States.

    (2) When an investigation is prepared by or at the direction of an 
attorney representing the Department of the Navy and is prepared in 
reasonable anticipation of litigation, it is exempt from mandatory 
disclosure under the Freedom of Information Act exemption (b)(5) and is 
normally privileged from discovery in litigation under the attorney work 
product privilege. 5 U.S.C. 552(b)(5). Unless an attorney prepares the 
report or personally directs its preparation, the investigation may not 
be privileged, even if it was prepared in reasonable anticipation of 
litigation.

[[Page 376]]

    (f) Advance copy. An advance copy of any investigation conducted 
because a claim has been, or is likely to be, submitted shall be 
forwarded to the Naval Legal Service Command activity claims office 
responsible for the area where the incident giving rise to the claim 
occurred.



Sec. 750.3  Investigations: The report.

    (a) Purpose. The purpose of investigations into claims incidents is 
to gather all relevant information about the incident so adjudicating 
officers can either pay or deny the claim. The essential task of the 
investigating officer is to answer the questions of who, what, where, 
when, why and how? The Navy's best interests are served when the 
investigation is thorough and is performed in a timely manner so the 
claimant can be advised promptly of the action on the claim.
    (b) Duties of the investigating officer. It is the investigating 
officer's responsibility:
    (1) To interview all witnesses to the incident and prepare summaries 
of their comments. Obtaining signed statements of Government witnesses 
is not necessary. Summaries of the witnesses' remarks prepared by the 
investigating officer are quite sufficient and generally expedite the 
gathering of information. On the other hand, written signed statements 
should be obtained from the claimant, wherever possible;
    (2) To inspect the property alleged to have been damaged by the 
action of Government personnel;
    (3) To determine the nature, extent, and amount of any damage, and 
to obtain pertinent repair bills or estimates and medical, hospital, and 
associated bills necessary to permit an evaluation of the claimant's 
loss;
    (4) To obtain maintenance records of the Navy motor vehicle, plane, 
or other piece of equipment involved in the claim;
    (5) To reduce to writing and incorporate into an appropriate 
investigative report all pertinent statements, summaries, exhibits, and 
other evidence considered by the investigator in arriving at his 
conclusions; and,
    (6) To furnish claim forms to any person expressing an interest in 
filing a claim and to advise such personnel where they should file their 
claim.
    (c) Content of the report. The written report of investigation shall 
contain information answering the questions mentioned in Sec. 750.3(a) 
and, depending on the nature of the incident, will include the 
following:
    (1) Date, time, and exact place the accident or incident occurred, 
specifying the highway, street, or road;
    (2) A concise but complete statement of the incident with reference 
to physical facts observed and any statements by the personnel involved;
    (3) Names, grades, organizations, and addresses of military 
personnel and civilian witnesses;
    (4) Opinions as to whether military or civilian employees involved 
in the incident were acting within the scope of their duties at the 
time;
    (5) Description of the Government property involved in the incident 
and the nature of any damage it sustained; and,
    (6) Descriptions of all private property involved.
    (d) Immediate report of certain events. The Navy or Marine Corps 
activity most directly involved in the incident shall notify the Judge 
Advocate General and the appropriate adjudicating authority immediately 
by message, electronic mail, or telephone in any of the following 
circumstances:
    (1) Claims or possible claims arising out of a major disaster or out 
of an incident giving rise to five or more possible death or serious 
injury claims.
    (2) Upon filing of a claim that could result in litigation that 
would involve a new precedent or point of law.
    (3) Claims or possible claims that involve or are likely to involve 
an agency other than the Department of the Navy.
    (e) Request for assistance. When an incident occurs at a place where 
the naval service does not have an installation or a unit conveniently 
located for conducting an investigation, the commanding officer or 
officer in charge with responsibility for performing the investigation 
may request assistance from the commanding officer or officer in charge 
of any other organization of the Department of Defense. Likewise, if a 
commanding officer or officer in

[[Page 377]]

charge of any other organization of the Department of Defense requests 
such assistance from a naval commanding officer or officer in charge, 
the latter should normally comply. If a complete investigation is 
requested it will be performed in compliance with the regulations of the 
requested service. These investigations are normally conducted without 
reimbursement for per diem, mileage, or other expenses incurred by the 
investigating unit or installation.
    (f) Report of Motor Vehicle Accident, Standard Form 91. RCS OPNAV 
5100-6. The operator of any Government motor vehicle involved in an 
accident of any sort shall be responsible for making an immediate report 
on the Operator's Report of Motor Vehicle Accident, Standard Form 91. 
This operator's report shall be made even though the operator of the 
other vehicle, or any other person involved, states that no claim will 
be filed, or the only vehicles involved are Government owned. An 
accident shall be reported by the operator regardless of who was 
injured, what property was damaged, or who was responsible. The 
operator's report shall be referred to the investigating officer, who 
shall be responsible for examining it for completeness and accuracy and 
who shall file it for future reference or for attachment to any 
subsequent investigative report of the accident.
    (g) Priority of the investigation. To ensure prompt investigation of 
every incident while witnesses are available and before damage has been 
repaired, the duties of an investigating officer shall ordinarily have 
priority over any other assignments he may have.
    (h) Contents of the report of investigation. The report should 
include the following items in addition to the requirements in 
Sec. 750.3(c):
    (1) If pertinent to the investigation, the investigating officer 
should obtain a statement from claimant's employer showing claimant's 
occupation, wage or salary, and time lost from work as a result of the 
incident. In case of personal injury, the investigating officer should 
ask claimant to submit a written statement from the attending physician 
setting forth the nature and extent of injury and treatment, the 
duration and extent of any disability, the prognosis, and the period of 
hospitalization or incapacity.
    (2) A Privacy Act statement for each person who was asked to furnish 
personal information shall be provided. Social Security numbers of 
military personnel and civilian employees of the U.S. Government should 
be included in the report but should be obtained from available records, 
not from the individual.
    (3) Names, addresses, and ages of all civilians or military 
personnel injured or killed; names of insurance companies; information 
on the nature and extent of injuries, degree of permanent disability, 
prognosis, period of hospitalization, name and address of attending 
physician and hospital, and amount of medical, hospital, and burial 
expenses actually incurred; occupation and wage or salary of civilians 
injured or killed; and names, addresses, ages, relationship, and extent 
of dependency of survivors of any such person fatally injured should be 
included.
    (4) If straying animals are involved, a statement as to whether the 
jurisdiction has an ``open range law'' and, if so, reference to such 
statute.
    (5) A statement as to whether any person involved violated any State 
or Federal statute, local ordinance, or installation regulation and, if 
so, in what respect. The statute, ordinance, or regulation should be set 
out in full.
    (6) A statement on whether a police investigation was made. A copy 
of the police report of investigation should be included if available.
    (7) A statement on whether arrests were made or charges preferred, 
and the result of any trial or hearing in civil or military courts.
    (i) Expert opinions. In appropriate cases the opinion of an expert 
may be required to evaluate the extent of damage to a potential 
claimant's property. In such cases the investigating officer should 
consult Navy-employed experts, experts employed by other departments of 
the U.S. Government, or civilian experts to obtain a competent 
assessment of claimant's damages or otherwise to protect the 
Government's interest. Any cost involved with obtaining the opinion of 
an expert not employed by the Navy shall be borne by the command 
conducting the investigation. Any cost

[[Page 378]]

involved in obtaining the opinion of a Navy-employed expert shall be 
borne by the command to which the expert is attached. Medical experts 
shall be employed only after consultation with the Chief, Bureau of 
Medicine and Surgery.
    (j) Action by command initiating the investigation and subsequent 
reviewing authorities. (1) The command initiating the investigation in 
accordance with Sec. 750.3 or Sec. 750.5 shall review the report of 
investigation. If additional investigation is required or omissions or 
other deficiencies are noted, the investigation should be promptly 
returned with an endorsement indicating that a supplemental 
investigative report will be submitted. If the original or supplemental 
report is in order, it shall be forwarded by endorsement, with any 
pertinent comments and recommendations. An advance copy of the 
investigation shall be forwarded to the Naval Legal Service Command 
activity having territorial responsibility for the area where the 
incident giving rise to the claim occurred as indicated in 
Sec. 750.34(c)(2)(ii).
    (2) A reviewing authority may direct that additional investigation 
be conducted, if considered necessary. The initial investigation should 
not be returned for such additional investigation, but should be 
forwarded by an endorsement indicating that the supplemental material 
will be submitted. The report shall be endorsed and forwarded to the 
next-level authority with appropriate recommendations including an 
assessment of the responsibility for the incident and a recommendation 
as to the disposition of any claim that may subsequently be filed. If a 
reviewing authority may be an adjudicating authority for a claim 
subsequently filed, one copy of the report shall be retained by such 
authority for at least 2 years after the incident.
    (3) It is essential that each investigative report reflect that a 
good faith effort was made to comply with the Privacy Act of 1974 (5 
U.S.C. 552a) as implemented by 32 CFR part 701, subpart F. Any 
indication of noncompliance shall be explained either in the preliminary 
statement or the forwarding endorsements and, when required, corrected. 
The adjudicating Naval Legal Service Command activity listed in 
Sec. 750.34(c)(2)(ii) has the responsibility to ensure that remedial 
action is taken to rectify noncompliance indicated in the investigative 
report prior to forwarding the report to the Judge Advocate General.



Sec. 750.4  Claims: In general.

    (a) Claims against the United States. Claims against the United 
States shall receive prompt and professional disposition. Every effort 
will be made to ensure an investigation is thoroughly and accurately 
completed, the claimant's allegations evaluated promptly, and where 
liability is established, a check issued as quickly as possible to 
prevent further harm to a meritorious claimant. Similarly, claims not 
payble will be processed promptly and the claimant advised of the 
reasons for the denial.
    (b) Claims in favor of the United States. Potential claims in favor 
of the United States will be critically evaluated and, where 
appropriate, promptly asserted and aggressively pursued.
    (c) Assistance to Claimants. Claimants or potential claimants who 
inquire about their rights or the procedures to be followed in the 
resolution of their claims will be referred to a claims officer. The 
officer will provide claim forms, advise where the forms should be 
filed, and inform the requester of the type of subtantiating information 
required. Claims officers may provide advice on the claims process but 
shall not provide advice or opinions about the merits or the wisdom of 
filing a particular claim. While claims officers have a responsiblity to 
provide general information about claims, they must consider 18 U.S.C. 
205 which makes it a crime for an officer or employee of the United 
States to act as an agent or an attorney in the prosecution of any claim 
against the United States.



Sec. 750.5  Claims: Proper claimants.

    (a) Damage to property cases. A claim for damage to, or destruction 
or loss of, property shall be presented by the owner of the property or 
a duly authorized agent or legal representative. ``Owner'' includes a 
bailee, lessee, or mortgagor, but does not include a mortgagee, 
conditional vendor, or

[[Page 379]]

other person having title for security purposes only.
    (b) Personal injury and death cases. A claim for personal injury 
shall be presented by the person injured or a duly authorized agent or 
legal representative, or, in the case of death, by the properly 
appointed legal representative of the deceased's estate or survivor 
where authorized by State law.
    (c) Subrogation. A subrogor and a subrogee may file claims jointly 
or separately. When separate claims are filed and each claim 
individually is within local adjudicating authority limits, they may be 
processed locally, even if the aggregate of such claims exceeds local 
monetary jurisdiction, if they do not exceed the sum for which approval 
of the Department of Justice is required (currently, $100,000.00) under 
the Federal Tort Claims Act. Where they exceed this amount, they shall 
be referred to the Claims and Tort Litigation Division.
    (d) Limitation on transfers and assignment. All transfers and 
assignments made of any claim upon the United States, and all powers of 
attorney, orders, or other authorities for receiving payment of any such 
claim, are absolutely null and void unless they are made after the 
allowance of such a claim, the ascertainment of the amount due, and the 
issuing of a warrant for the payment thereof. 31 U.S.C. 203. This 
statutory provision does not apply to the assignment of a claim by 
operation of law, as in the case of a receiver or trustee in bankruptcy 
appointed for an individual, firm, or corporation, or the case of an 
administrator or executor of the estate of a person deceased, or an 
insurer subrogated to the rights of the insured.



Sec. 750.6  Claims: Presentment.

    (a) Written demand and Standard Form 95. A claim shall be submitted 
by presenting a written statement with the amount of the claim expressed 
in a sum certain, and, as far as possible, describing the detailed facts 
and circumstances surrounding the incident from which the claim arose. 
The Claim for Damage or Injury, Standard Form 95, shall be used whenever 
practical for claims under the Federal Tort and Military Claims Acts. 
Claims under the Personnel Claims Act shall be submitted on DD Form 
1842. The claim and all other papers requiring the signature of the 
claimant shall be signed by the claimant personally or by a duly 
authorized agent. If signed by an agent or legal representative, the 
claim shall indicate the title or capacity of the person signing and be 
accompanied by evidence of appointment. When more than one person has a 
claim arising from the same incident, each person shall file a claim 
separately. A subrogor and a subrogee may file a claim jointly or 
separately.
    (b) To whom submitted. Claims under the Federal Tort and Military 
Claims Acts shall be submitted to the commanding officer of the Navy or 
Marine Corps activity involved, if known. Otherwise, they shall be 
submitted to the commanding officer of any Navy or Marine Corps 
activity, preferably the one nearest to where the accident occurred, the 
local Naval Legal Service Command activity, or to the Judge Advocate 
General, 200 Stovall Street, Alexandria, VA 22332-2400.



Sec. 750.7  Claims: Action by receiving command.

    (a) Record date of receipt. The first command receiving a claim 
shall stamp or mark the date of recipt on the letter or claim form. The 
envelope in which the claim was received shall be preserved.
    (b) Determine the military activity involved. The receiving command 
shall determine the Navy or Marine Corps activity most directly involved 
with the claim--usually the command where the incident is alleged to 
have occurred--and forward a copy of the claim to that activity. The 
original claim (and the transmittal letter, if a copy is forwarded to a 
more appropriate activity) should immediately be sent to the servicing 
Naval Legal Service Command activity claims office.
    (c) Initiate an investigation. An investigation under this part 
shall be commenced immediately by the command most directly involved 
with the claim. Once the investigation has been completed, an advance 
copy shall be forwarded by the convening authority to

[[Page 380]]

the Naval Legal Service Command activity providing claims support. 
Waiting until endorsements have been obtained before providing a copy of 
the investigation to the cognizant claims adjudicating authority is 
neither required nor desirable. The facts of the incident must be made 
known to cognizant claims personnel as soon as possible.



Sec. 750.8  Claims: Responsibility of the adjudicating authority.

    (a) Reviewing prior actions. The adjudicating authority determines 
whether an adequate investigation has been conducted, whether the 
initial receipt date is recorded on the face of the claim, and whether 
all holders of the investigation, if completed, are advised of the 
receipt of the claim.
    (b) Determining sufficiency of the claim. The claim should be 
reviewed and a determination of its sufficiency made. If the claim is 
not sufficient as received, it shall be returned to the party who 
submitted it along with an explanation of the insufficiency. This does 
not constitute denial of the claim. The claim shall not be considered 
``presented'' until it is received in proper form.
    (c) Adjudicating the claim. (1) The adjudicating authority shall 
evaluate and either approve or disapprove all claims within its 
authority, except where the payment of multiple Federal Torts Claims Act 
claims arising from the same incident will exceed $100,000.00 in the 
aggregate and thereby require approval of the Department of Justice. In 
this latter instance, the claims and the investigative report shall be 
forwarded to the Judge Advocate General for action.
    (2) The adjudicating authority shall evaluate and, where liability 
is established, attempt to settle claims for amounts within its 
adjudicating authority. Permission of higher authority to conduct 
settlement negotiations to effect such settlements is not necessary. 
Negotiation at settlement figures above the adjudicating authority's 
payment limits may be attempted if the claimant is informed that the 
final decision on the claim will be made at a higher level.
    (3) If a claim cannot be approved, settled, compromised, or denied 
within the adjudicating authority limits established in this 
instruction, the claim shall be referred promptly to the Judge Advocate 
General. The following materials shall be forwarded with the claim:
    (i) An official endorsement or letter of transmittal containing a 
recommendation on resolution of the claim.
    (ii) A memorandum of law containing a review of applicable law, an 
evaluation of liability, and recommendation on the settlement value of 
the case. This memorandum should concentrate on the unusual aspects of 
applicable law, chronicle the attempts to resolve the claim at the local 
level, provide information about the availability of witnesses, and 
outline any other information material to a resolution of the claim, 
i.e. prior dealings with the claimant's attorney, local procedural 
rules, or peculiarities that may make trial difficult. The memorandum 
should not repeat information readily obtained from the investigative 
report and should be tailored to the complexity of the issues presented. 
An abbreviated memorandum should be submitted if the claim is 
statutorily barred because of the statute of limitations or Federal 
Employees' Compensation Act or otherwise barred because of the Feres 
doctrine.
    (iii) The original investigative report and all allied papers.
    (iv) The original claim filed by the claimant (and the envelope in 
which it arrived, if preserved). The adjudicating authority shall retain 
at least one copy of all papers forwarded to the Judge Advocate General 
under this section.
    (d) Preparing litigation reports. A litigation report is prepared 
when a lawsuit is filed and a complaint received. The report is 
addressed to the Department of Justice official or the U.S. Attorney 
having cognizance of the matter. The report is a narrative summary of 
the facts upon which the suit is based and has as enclosures the claims 
file and a memorandum of law on the issues presented.
    (1) When the claim has been forwarded to the Judge Advocate General 
prior to the initiation of a suit, litigation reports originate in the 
Claims and Tort Litigation Division of the Office of the Judge Advocate 
General.

[[Page 381]]

    (2) When, however, the claim has not been forwarded and is still 
under the cognizance of the Naval Legal Service Command claims office, 
that command will ordinarily be required to prepare and forward the 
litigation report to the requesting organization. In this instance, the 
litigation report should be sent directly to the cognizant Department of 
Justice official or U.S. Attorney with a copy of the report and all 
enclosures to the Judge Advocate General.



Sec. 750.9  Claims: Payments.

    Claims approved for payment shall be expeditiously forwarded to the 
disbursing office or the General Accounting Office depending on the 
claims act involved and the amount of the requested payment. Generally, 
payment of a Federal tort claim above $2,500.00 requires submission of 
the payment voucher to the General Accounting Office. All other field 
authorized payment vouchers are submitted directly to the servicing 
disbursing office for payment.



Sec. 750.10  Claims: Settlement and release.

    (a) Fully and partially approved claims. When a claim is approved 
for payment in the amount claimed, no settlement agreement is necessary. 
When a federal tort, military, or non-scope claim is approved for 
payment in a lesser amount than that claimed, the claimant must indicate 
in writing a willingness to accept the offered amount in full settlement 
and final satisfaction of the claim. In the latter instance, no payment 
will be made until a signed settlement agreement has been received.
    (b) Release. (1) Acceptance by the claimant of an award or 
settlement made by the Secretary of the Navy or designees, or the 
Attorney General or designees, is final upon acceptance by the claimant. 
Acceptance is a complete release by claimant of any claim against the 
United States by reason of the same subject manner. Claimant's 
acceptance of an advance payment does not have the same effect.
    (2) The claimant's acceptance of an award or settlement made under 
the provisions governing the administrative settlement of Federal tort 
claims or the civil action provisions of 28 U.S.C. 1346(b) also 
constitutes a complete release of any claim against any employee of the 
Government whose act or omission gave rise to the claim.



Sec. 750.11  Claims: Denial.

    A final denial of any claim within this chapter shall be in writing 
and sent to the claimant, his attorney, or legal representative by 
certified or registered mail with return receipt requested. The denial 
notification shall include a statement of the reason or reasons for the 
denial. The notification shall include a statement that the claimant 
may:
    (a) If the claim is cognizable under the Federal Tort Claims Act, 
file suit in the appropriate United States District Court within 6 
months of the date of the denial notification.
    (b) If the claim is cognizable under the Military Claims Act, appeal 
in writing to the Secretary of the Navy within 30 days of the receipt of 
the denial notification. The notice of denial shall inform the claimant 
or his representative that suit is not possible under the Act.



Sec. 750.12  Claims: Action when suit filed.

    (a) Action required of any Navy official receiving notice of suit. 
The commencement, under the civil action provisions of the Federal Tort 
Claims Act (28 U.S.C. 1346(b)), of any action against the United States 
and involving the Navy, that comes to the attention of any official in 
connection with his official duties, shall be reported immediately to 
the commanding officer of the servicing Naval Legal Service Command 
activity who shall take any necessary action and provide prompt 
notification to the Judge Advocate General. The commencement of a civil 
action against an employee of the Navy for actions arising from the 
performance of official duties shall be reported in the same manner.
    (b) Steps upon commencement of civil action. Upon receipt by the 
Judge Advocate General of notice from the Department of Justice or other 
source that a civil action involving the Navy has been initiated under 
the civil action provisions of the Federal Tort

[[Page 382]]

Claims Act, and there being no investigative report available at the 
headquarters, a request shall be made to the commanding officer of the 
appropriate Naval Legal Service Command activity for an investigative 
report into the incident. If there is not a completed investigation, the 
request shall be forwarded to the appropriate naval activity to convene 
and complete such a report. The commanding officer of the Naval Legal 
Service Command activity shall determine whether an administrative claim 
had been filed and, if available information indicates none had, advise 
the Office of the Judge Advocate General (Claims and Tort Litigation 
Division) immediately.



Sec. 750.13  Claims: Single service responsibility.

    (a) The Department of Defense has assigned single-service 
responsibility for processing claims in foreign countries under the 
following acts. The service and country assignments are in DODDIR 5515.8 
of 9 June 1990.\1\
---------------------------------------------------------------------------


    \1\ Copies may be obtained if needed, from Commanding Officer, U.S. 
Naval Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, PA 
19120.
---------------------------------------------------------------------------

    (1) Foreign Claims Act (10 U.S.C. 2734);
    (2) Military Claims Act (10 U.S.C. 2733);
    (3) International Agreements Claims Act (10 U.S.C. 2734a and b), on 
the pro-rata cost sharing of claims pursuant to international agreement;
    (4) NATO Status of Forces Agreement (4 UST 1792, TIAS 2846) and 
other similar agreements;
    (5) Medical Care Recovery Act (42 U.S.C. 2651-2653) claims for 
reimbursement for medical care furnished by the United States;
    (6) Nonscope Claims Act (10 U.S.C. 2737), claims not cognizable 
under any other provision of law;
    (7) Federal Claims Collection Act of 1966 (31 U.S.C. 3701); the Act 
of June 1921 (31 U.S.C. 3702), claims and demands by the U.S. 
Government; and
    (8) Public Law 87-212 (10 U.S.C. 2736), advance or emergency 
payments.
    (b) Single service assignments for processing claims mentioned above 
are as follows:
    (1) Department of the Army: Austria, Belgium, El Salvador, France, 
the Federal Republic of Germany, Grenada, Honduras, Korea, the Marshall 
Islands, and Switzerland and as the Receiving State Office in the United 
States under 10 U.S.C. 2734a and 2734b and the NATO Status of Forces 
Agreement, and other Status of Forces Agreements with countries not 
covered by the NATO agreement.
    (2) Department of the Navy: Bahrain, Iceland, Israel, Italy, 
Portugal, and Tunisia.
    (3) Department of the Air Force: Australia, Azores, Canada, Cyprus, 
Denmark, Greece, India, Japan, Luxembourg, Morocco, Nepal, Netherlands, 
Norway, Pakistan, Saudi Arabia, Spain, Turkey, the United Kingdom, 
Egypt, Oman, and claims involving, or generated by, the U.S. Central 
Command (CENTCOM) and the U.S. Special Operations Command (USSOC), that 
arise in countries not specifically assigned to the Departments of the 
Army and the Navy.
    (c) U.S. forces afloat cases under $2,500.00. Notwithstanding the 
single service assignments above, the Navy may settle claims under 
$2,500.00 caused by personnel not acting within the scope of employment 
and arising in foreign ports visited by U.S. forces afloat and may, 
subject to the concurrence of the authorities of the receiving state 
concerned, process such claims.



Secs. 750.14-750.20  [Reserved]



                   Subpart B--Federal Tort Claims Act



Sec. 750.21  Scope of subpart B.

    This subpart provides information regarding the administrative 
processing and consideration of claims against the United States under 
the FTCA. The FTCA is a limited waiver of sovereign immunity. Under the 
FTCA, an individual can seek money damages for personal injury, death, 
or property damage caused by the negligent or wrongful act or omission 
of a Federal employee acting within the scope of employment. The FTCA 
also provides for compensation for injuries caused by certain 
intentional, wrongful conduct.

[[Page 383]]

The liability of the United States is determined in accordance with the 
law of the State where the act or omission occured.



Sec. 750.22  Exclusiveness of remedy.

    (a) The Federal Employees Liability Reform and Tort Compensation Act 
of 1988, Public Law 100-694 (amending 28 U.S.C. 2679(b) and 2679(d)), 
provides that the exclusive remedy for damage or loss of property, or 
personal injury or death arising from the negligent or wrongful acts or 
omissions of all Federal employees, acting within the scope of their 
employment, will be against the United States. This immunity from 
personal liability does not extend to allegations of constitutional 
torts, nor to allegations of violations of statutes specifically 
authorizing suits against individuals.
    (b) Other statutory provisions create immunity from personal 
liability for specific categories of Federal employees whose conduct, 
within the scope of their employment, gives rise to claims against the 
Government. Department of Defense health care providers are specifically 
protected by 10 U.S.C. 1089, the Gonzalez Act. DOD attorneys are 
specifically protected by 10 U.S.C. 1054.



Sec. 750.23  Definitions.

    (a) Negligent conduct. Generally, negligence is the failure to 
exercise that degree of care, skill, or diligence a reasonable person 
would exercise under similar circumstances. Negligent conduct can result 
from either an act or a failure to act. The law of the place where the 
conduct occurred will determine whether a cause of action lies against 
the Government. 28 U.S.C. 1346(b) and 2674.
    (b) Intentional torts. Although any employee who commits an 
intentional tort is normally considered to be acting outside the scope 
of employment, the FTCA does allow claimants to seek compensation for 
injuries arising out of the intentional torts of assault, battery, false 
imprisonment, false arrest, abuse of process, and malicious prosecution, 
if committed by a Federal investigative or law enforcement officer. An 
``investigative or law enforcement officer'' is any officer of the 
United States empowered by law to execute searches, to seize evidence, 
or to make arrests for violations of Federal law. 28 U.S.C. 2680(h).
    (c) Government employees--(1) General . ``Employee of the 
Government,'' defined at 28 U.S.C. 2671, includes officers or employees 
of any Federal agency, members of the U.S. military or naval forces, and 
persons acting on behalf of a Federal agency in an official capacity.
    (2) Government contractors Government (also referred to as 
independent) contractors, are those individuals or businesses who enter 
into contracts with the United States to provide goods or services. 
Because the definition of ``Federal agency,'' found at 28 U.S.C. 2671, 
specifically excludes ``any contractor with the United States,'' the 
United States is generally not liable for the negligence of Government 
contractors. There are, however, three limited exceptions to the general 
rule, under which a cause of action against the United States has been 
found to exist in some jurisdictions. They are:
    (i) Where the thing or service contracted for is deemed to be an 
``inherently dangerous activity'';
    (ii) where a nondelegable duty in the employer has been created by 
law; or,
    (iii) where the employer retains control over certain aspects of the 
contract and fails to discharge that control in a reasonable manner.
    (3) Employees of nonappropriated-fund activities. Nonappropriated-
fund activities are entities established and operated for the benefit of 
military members and their dependents, and have been judicially 
determined to be ``arms'' of the Federal government. These entities 
operate from self-generated funds, rather than from funds appropriated 
by Congress. Examples include Navy and Marine Corps Exchanges, officer 
or enlisted clubs, and recreational services activities. A claim arising 
out of the act or omission of an employee of a nonappropriated-fund 
activity not located in a foreign country, acting within the scope of 
employment, is an act or omission committed by a Federal employee and 
will be handled in accordance with the FTCA.
    (d) Scope of employment. ``Scope of employment'' is defined by the 
law of

[[Page 384]]

respondeat superior (master and servant) of the place where the act or 
omission occurred. Although 28 U.S.C. 2671 states that acting within the 
scope of employment means acting in the line of duty, the converse is 
not always true. For administrative purposes, a Government employee may 
be found ``in the line of duty,'' yet not meet the criteria for a 
finding of ``within the scope of employment'' under the law of the place 
where the act or omission occurred.



Sec. 750.24  Statutory/regulatory authority.

    The statutory provisions of the Federal Tort Claims Act (FTCA) are 
at 28 U.S.C. 1346(b), 2671-2672, and 2674-2680. The Attorney General of 
the United States has issued regulations on administrative claims filed 
under the FTCA at 28 CFR part 14. If the provisions of this section and 
the Attorney General's regulations conflict, the Attorney General's 
regulations prevail.



Sec. 750.25  Scope of liability.

    (a) Territorial limitations. The FTCA does not apply to any claim 
arising in a foreign country. 28 U.S.C. 2680(k) and Beattie v. United 
States, 756 F.2d 91 (D.C. Cir. 1984).
    (b) Exclusions from liability. Statutes and case law have 
established categories of exclusions from FTCA liability.
    (1) Statutory exclusions. Section 2680 of Title 28 lists claims not 
cognizable under the FTCA. They include:
    (i) Claims based on the exercise or performance of, or the failure 
to exercise or perform, a discretionary Government function;
    (ii) Admiralty claims under 46 U.S.C. 741-752 or 781-790. Claims 
under the Death on the High Seas Act (46 U.S.C. 761), however, are 
cognizable under the FTCA. All admiralty claims will be referred to the 
Judge Advocate General for adjudication. Admiralty claims against the 
Navy shall be processed under part 752 of this Chapter;
    (iii) Claims arising from intentional torts, except those referred 
to in Sec. 750.23(b);
    (iv) Claims arising from the combat activities of the military or 
naval forces, or the Coast Guard, during time of war.
    (2) Additional claims not payable. Although not expressly 
statutorily excepted, the following types of claims shall not be paid 
under the FTCA:
    (i) A claim for personal injury or death of a member of the armed 
forces of the United States incurred incident to military service or 
duty. Compare United States v. Johnson, 481 U.S. 681 (1987); Feres v. 
United States, 340 U.S. 135 (1950) with Brooks v. United States, 337 
U.S. 49 (1949);
    (ii) Any claim by military personnel or civilian employees of the 
Navy, paid from appropriated funds, for personal property damage 
occurring incident to service or Federal employment, cognizable under 31 
U.S.C. 3721 and the applicable Personnel Claims Regulations, 32 CFR part 
751;
    (iii) Any claim by employees of nonappropriated-fund activities for 
personal property damage occurring incident to Federal employment. These 
claims will be processed as indicated in 32 CFR part 756;
    (iv) Any claim for personal injury or death covered by the Federal 
Employees' Compensation Act (5 U.S.C. 8116c);
    (v) Any claim for personal injury or death covered by the Longshore 
and Harbor Workers' Compensation Act (33 U.S.C. 905 and 5 U.S.C. 8171);
    (vi) That portion of any claim for personal injury or property 
damage, caused by the negligence or fault of a Government contractor, to 
the extent such contractor may have assumed liability under the terms of 
the contract (see United States v. Seckinger, 397 U.S. 203 (1969) and 
Sec. 750.23(c)(2);
    (vii) Any claim against the Department of the Navy by another 
Federal agency. Property belonging to the Government is not owned by any 
one department of the Government. The Government does not reimburse 
itself for the loss of its own property except where specifically 
provided for by law; and
    (viii) Any claim for damage to a vehicle rented pursuant to travel 
orders.



Sec. 750.26  The administrative claim.

    (a) Proper claimant. See Sec. 750.5 of this part.

[[Page 385]]

    (b) Claim presented by agent or legal representative. A claim filed 
by an agent or legal representative will be filed in the name of the 
claimant; be signed by the agent or legal representative; show the title 
or legal capacity of the person signing; and be accompanied by evidence 
of the individual's authority to file a claim on behalf of the claimant.
    (c) Proper claim. A claim is a notice in writing to the appropriate 
Federal agency of an incident giving rise to Government liability under 
the FTCA. It must include a demand for money damages in a definite sum 
for property damage, personal injury, or death alleged to have occurred 
by reason of the incident. The Attorney General's regulations specify 
that the claim be filed on a Standard Form 95 or other written 
notification of the incident. If a letter or other written notification 
is used, it is essential that it set forth the same basic information 
required by Standard Form 95. Failure to do so may result in a 
determination that the administrative claim is incomplete. A suit may be 
dismissed on the ground of lack of subject matter jurisdiction based on 
claimant's failure to present a proper claim as required by 28 U.S.C. 
2675(a).
    (d) Presentment. A claim is deemed presented when received by the 
Navy in proper form. A claim against another agency, mistakenly 
addressed to or filed with the Navy shall be transferred to the 
appropriate agency, if ascertainable, or returned to the claimant. A 
claimant presenting identical claims with more than one agency should 
identify every agency to which the claim is submitted on every claim 
form presented. Claims officers shall coordinate with all other affected 
agencies and ensure a lead agency is designated. 28 CFR 14.2.



Sec. 750.27  Information and supporting documentation.

    (a) Proper documentation. Depending on the type of claim, claimants 
may be required to submit information, as follows:
    (1) Death. (i) An authenticated death certificate or other competent 
evidence showing cause of death, date of death, and age of the decedent;
    (ii) Decedent's employment or occupation at time of death, including 
monthly or yearly earnings and the duration of last employment;
    (iii) Full names, addresses, birth dates, relationship, and marital 
status of the decedent's survivors, including identification of 
survivors dependent for support upon decedent at the time of death;
    (iv) Degree of support provided by decedent to each survivor at time 
of death;
    (v) Decedent's general physical and mental condition before death;
    (vi) Itemized bills for medical and burial expenses;
    (vii) If damages for pain and suffering are claimed, a physician's 
detailed statement specifying the injuries suffered, duration of pain 
and suffering, any drugs administered for pain, and the decedent's 
physical condition during the interval between injury and death; and,
    (viii) Any other evidence or information which may affect the 
liability of the United States.
    (2) Personal injury. (i) A written report by attending physician or 
dentist on the nature and extent of the injury, nature and extent of 
treatment, any degree of temporary or permanent disability, the 
prognosis, period of hospitalization, any any diminished earning 
capacity. In addition, the claimant may be required to submit to a 
physical or mental examination by a physician employed by any Federal 
agency. Upon written request, a copy of the report of the examining 
physician shall be provided;
    (ii) Itemized bills for medical, dental, and hospital expenses 
incurred, or itemized receipts of payments of such expenses;
    (iii) A statement of expected expenses for future treatment;
    (iv) If a claim is made for lost wages, a written statement from the 
employer itemizing actual time and wages lost;
    (v) If a claim is made for lost self-employed income, documentary 
evidence showing the amount of earnings actually lost; and
    (vi) Any other evidence or information which may affect the 
liability of the United States for the personal injury or the damages 
claimed.
    (3) Property damage. (i) Proof of ownership;

[[Page 386]]

    (ii) A detailed statement of the amount claimed for each item of 
property;
    (iii) An itemized receipt of payment for necessary repairs or 
itemized written estimates of the cost of repairs;
    (iv) A statement listing date of purchase, purchase price, and 
salvage value where repair is not economical; and
    (v) Any other evidence or information which may affect the liability 
of the United States for the property damage claimed.
    (b) Failure to submit necessary documentation. If claimant fails to 
provide sufficient supporting documentation, claimant should be notified 
of the deficiency. If after notice of the deficiency, including 
reference to 28 CFR 14.4, the information is still not supplied, two 
follow-up requests should be sent by certified mail, return receipt 
requested. If after a reasonable period of time the information is still 
not provided, the appropriate adjudicating authority should deny the 
claim.



Sec. 750.28  Amendment of the claim.

    A proper claim may be amended at any time prior to settlement, 
denial, or the filing of suit. An amendment must be submitted in writing 
and must be signed by the claimant or duly authorized agent or legal 
representative. No finally denied claim for which reconsideration has 
not been requested under Sec. 750.31 may be amended.



Sec. 750.29  Investigation and examination.

    Subpart A of this part requires an investigation for every incident 
that may result in a claim against or in favor of the United States. 
Where a previously unanticipated claim is filed against the Government 
and an investigation has not already been conducted, the appropriate 
claims officer shall immediately request an investigation. See subpart A 
of this part for specific action required by an adjudicating authority.



Sec. 750.30  Denial of the claim.

    Final denial of an administrative claim shall be in writing and 
shall be sent to the claimant, his duly authorized agent or legal 
representative by certified or registered mail, with return receipt 
requested. The notification of final denial shall include the reasons 
for the denial. The notification shall include a statement informing the 
claimant of his right to file suit in the appropriate Federal district 
court not later than 6 months after the date of the mailing of the 
notification. 28 CFR 14.9(a).



Sec. 750.31  Reconsideration.

    (a) Request. Prior to the commencement of suit and prior to the 
expiration of the 6-month period for filing suit, a claimant or his duly 
authorized agent or legal representative may present a request for 
reconsideration to the authority who denied the claim. The request shall 
be in writing and shall state the reasons for the requested 
reconsideration. A request for reconsideration is presented on the date 
it is received by the DON. 28 CFR 14.9(b).
    (b) Proper basis. A request for reconsideration shall set forth 
claimant's reasons for the request, and shall include any supplemental 
supporting evidence or information. Any writing communicating a desire 
for reconsideration that reasonably appears to have been presented 
solely for the purpose of extending the statutory period for filing 
suit, shall not be treated as a request for reconsideration. Claimant or 
claimant's authorized representative shall be notified promptly that the 
writing is not considered a proper request for reconsideration.
    (c) Effect of presentment of request. The presentment of a proper 
request for reconsideration starts a new 6-month period for the DON to 
act on the request to reconsider. The claimant may not file suit until 
the expiration of the new 6-month period, or until after the date of 
mailing of the final denial of the request. Final denial of a request 
for reconsideration shall be accomplished in the manner prescribed in 
Sec. 750.30. 28 CFR 14.9(b).



Sec. 750.32  Suits under the Federal Tort Claims Act (FTCA).

    (a) Venue. Venue is proper only in the judicial district where the 
plaintiff resides or where the act or omission complained of occurred. 
28 U.S.C. 1402.

[[Page 387]]

    (b) Jury trial. There is no right to trial by jury in suits brought 
under the FTCA. 28 U.S.C. 2402.
    (c) Settlement. The Attorney General of the United States, or 
designee, may arbitrate, compromise, or settle any action filed under 
the FTCA. 28 U.S.C. 2677.
    (d) Litigation support--(1) Who provides. The adjudicating authority 
holding a claim at the time suit is filed shall be responsible for 
providing necessary assistance to the Department of Justice official or 
U.S. Attorney responsible for defending the Government's interests.
    (2) Litigation report. A litigation report, including a legal 
memorandum emphasizing anticipated issues during litigation, shall be 
furnished to the appropriate Department of Justice official or U.S. 
Attorney.
    (3) Pretrial discovery. Complete and timely responses to discovery 
requests are vital to the effective defense of tort litigation. Subject 
to existing personnel and resources available, appropriate assistance 
shall be provided. The Judge Advocate General should be notified 
promptly when special problems are encountered in providing the 
requested assistance.
    (4) Preservation of evidence. Tort litigation is often accomplished 
over an extended period of time. Every effort shall be made to preserve 
files, documents, and other tangible evidence that may bear on 
litigation. Destruction of such evidence, even in accordance with 
routine operating procedures, undermines defense of a case.



Sec. 750.33  Damages.

    (a) Generally. The measure of damages is determined by the law of 
the place where the act or omission occurred. When there is a conflict 
between local and applicable Federal law, the latter governs. 28 U.S.C. 
1346(b).
    (b) Limitations on liability. The United States is not liable for 
interest prior to judgment or for punitive damages. In a death case, if 
the place where the act or omission complained of occurred provides for 
only punitive damages, the United States will be liable in lieu thereof, 
for actual or compensatory damages. 28 U.S.C. 2674.
    (c) Setoff. The United States is not obligated to pay twice for the 
same injury. Claimants under the FTCA may have received Government 
benefits or services as the result of the alleged tort. The cost of 
these services or benefits shall be considered in arriving at any award 
of damages. For example, the cost of medical or hospital services 
furnished at Government expense, including CHAMPUS payments, shall be 
considered. Additionally, benefits or services received under the 
Veterans Act (38 U.S.C. 101-800) must be considered. Brooks v. United 
States, 337 U.S. 49 (1949).
    (d) Suit. Any damage award in a suit brought under the FTCA is 
limited to the amount claimed administratively unless based on newly 
discovered evidence. 28 U.S.C. 2675(b). Plaintiff must prove the 
increased demand is based on facts not reasonably discoverable at the 
time of the presentment of the claim or on intervening facts relating to 
the amount of the claim.



Sec. 750.34  Settlement and payment.

    (a) Settlement agreement--(1) When required. A settlement agreement, 
signed by the claimant, must be received prior to payment in every case 
in which the claim is either:
    (i) Settled for less than the full amount claimed, or
    (ii) The claim was not presented on a Standard Form 95.
    (2) Contents. Every settlement agreement must contain language 
indicating payment is in full and final settlement of the applicable 
claim. Each settlement agreement shall contain language indicating 
acceptance of the settlement amount by the claimant, or his agent or 
legal representative, shall be final and conclusive on the claimant, or 
his agent or legal representative, and any other person on whose behalf 
or for whose benefit the claim has been presented, and shall constitute 
a complete release of any claim against the United States and against 
any employee of the Government whose conduct gave rise to the claim, by 
reason of the same subject matter. 28 CFR 14.10(b). In cases where 
partial payment will benefit both claimant and the Government, such as 
payment for property

[[Page 388]]

damage to an automobile, the settlement agreement shall be tailored to 
reflect the terms of the partial settlement. All settlement agreements 
shall contain a recitation of the applicable statutory limitation of 
attorneys fees. 28 U.S.C. 2678.
    (b) DON role in settlement negotiations involving the U.S. Attorney 
or DOJ. Agency concurrence is generally sought by the Department of 
Justice or U.S. Attorney's office prior to settlement of suits involving 
the DON. Requests for concurrence in settlement proposals shall be 
referred to the appropriate DON adjudicating authority with primary 
responsibility for monitoring the claim. Adjudicating authorities shall 
consult with the Judge Advocate General concerning proposed settlements 
beyond their adjudicating authority.
    (c) Payment of the claim--(1) Statutory authority. Pursuant to 28 
U.S.C. 2672 and in accordance with 28 CFR 14.6(a), the Secretary of the 
Navy or designee, acting on behalf of the United States, may compromise 
or settle any claim filed against the Navy under the FTCA, provided any 
award, compromise, or settlement by the Navy in excess of $100,000.00 
may be effected only with the prior written approval of the Attorney 
General or designee. Title 28 CFR 14.6 requires consultation with the 
Department of Justice prior to compromise or settlement of a claim in 
any amount when:
    (i) A new precedent or a new point of law is involved;
    (ii) A question of policy is or may be involved;
    (iii) The United States is or may be entitled to indemnity or 
contribution from a third party and the agency is unable to adjust the 
third party claim;
    (iv) The compromise of a particular claim, as a practical matter, 
will or may control the disposition of a related claim in which the 
amount to be paid may exceed $100,000.00; or
    (v) The DON is informed or is otherwise aware that the United States 
or an employee, agent, or cost-plus contractor of the United States is 
involved in litigation based on a claim arising out of the same incident 
or transaction.
    (2) Specific delegation and designation--(i) Payment authority.

------------------------------------------------------------------------
    Delegated and designated authority        Federal Tort Claims Act
------------------------------------------------------------------------
Judge Advocate General...................  Unlimited.
Deputy Judge Advocate General............  Unlimited.
Assistant Judge Advocate General (General  Unlimited.
 Law).
Deputy Assistant Judge Advocate General    $100,000.00.
 (Claims and Tort Litigation) and Deputy
 Division Director.
Head, Federal Tort Claims Branch, Claims   $50,000.00.
 and Tort Division, OJAG.
Commanding Officers of Naval Legal         $25,000.00.
 Service Offices; Officers in Charge of
 Naval Legal Service Office Detachments
 when Specifically Designated by
 Cognizant Commanding Officers of Naval
 Legal Service Offices.
------------------------------------------------------------------------

    Any payment of over $100,000.00 must be approved by the Department 
of Justice. In addition, the authority to deny Federal Tort Claims is 
double the Federal Tort Claims Act approval authority shown above. The 
Judge Advocate General, the Deputy Judge Advocate General, the Assistant 
Judge Advocate General (General Law), and the Deputy Assistant Judge 
Advocate General (Claims and Tort Litigation) may deny Federal Tort 
Claims in any amount.
    (ii) Territorial responsibility.

------------------------------------------------------------------------
            Responsible command                       Territory
------------------------------------------------------------------------
NAVLEGSVCOFF Newport......................  Maine, Vermont, New
                                             Hampshire, Massachusetts,
                                             Rhode Island, and
                                             Connecticut.
NAVLEGSVCOFF Philadelphia.................  Pennsylvania, New Jersey,
                                             Ohio, and New York.
NAVLEGSVCOFF Washington, DC...............  Maryland, the District of
                                             Columbia, and Northern
                                             Virginia area (zip 220-
                                             223).
NAVLEGSVCOFF Norfolk......................  Virginia (less Northern
                                             Virginia area--zip 220-
                                             223), and West Virginia,
                                             North Carolina (counties of
                                             Currituck, Camden,
                                             Pasquotonk, Gates,
                                             Perquimans, Chowan, Dare,
                                             Tyrrell, Washington, Hyde,
                                             Beaufort, Pamlico, Craven,
                                             Jones, Carteret, and Onslow
                                             only), Bermuda, Iceland,
                                             Greenland, Azores, The
                                             Caribbean, The Republics of
                                             Guatemala, El Salvador,
                                             Honduras, Nicaragua, Costa
                                             Rica, and Panama, Belize,
                                             Colombia, Venezuela,
                                             Guyana, French Guiana,
                                             Surinam, Brazil, Bolivia,
                                             Paraguay, Uruguay,
                                             Argentina, and all Atlantic
                                             and Arctic Ocean areas and
                                             islands not otherwise
                                             assigned.
NAVLEGSVCOFF Charleston...................  North Carolina (less
                                             counties of Currituck,
                                             Camden, Pasquotonk, Gates,
                                             Perquimans, Chowan, Dare,
                                             Tyrrell, Washington, Hyde,
                                             Beaufort, Pamlico, Craven,
                                             Jones, Carteret, Onslow),
                                             and Georgia (less Counties
                                             of Charlton, Camden, and
                                             Glynn).
NAVLEGSVCOFF Jacksonville.................  That portion of Florida east
                                             of the western boundaries
                                             of Gadsen, Liberty, and
                                             Franklin Counties and
                                             Georgia (counties of
                                             Charlton, Camden, and
                                             Glynn).

[[Page 389]]

NAVLEGSVCOFF Pensacola....................  Florida [Pensacola/Panama
                                             City area (zip 324-325)],
                                             Alabama, Louisiana and
                                             Mississippi (that portion
                                             south of Washington,
                                             Humphreys, Holmes, Attala,
                                             Winston, and Noxubee
                                             Counties, and that portion
                                             of the Gulf of Mexico East
                                             of longitude 90 W).
NAVLEGSVCOFF Memphis......................  Missouri, Tennessee,
                                             Kentucky, Arkansas, and
                                             that portion of Mississippi
                                             north of the southern
                                             boundaries of Washington,
                                             Humphreys, Holmes, Attala,
                                             Winston, and Noxubee
                                             Counties.
NAVLEGSVCOFF Great Lakes..................  North Dakota, South Dakota,
                                             Nebraska, Minnesota,
                                             Michigan, Iowa, Wisconsin,
                                             Illinois, and Indiana.
NAVLEGSVCOFF Corpus Christi...............  Texas.
NAVLEGSVCOFF San Diego....................  California (Imperial County,
                                             San Diego County, and that
                                             area included in Marine
                                             Corps Base, Camp Pendleton
                                             extending into Orange
                                             County, only), that portion
                                             of Mexico including and
                                             West of the States of
                                             Chihuahua, Durango,
                                             Nayarit, Jalisoc, and
                                             Colima, Pacific Ocean areas
                                             and islands South of
                                             Latitude 45N and East of
                                             Longitude 135W, Ecuador,
                                             Peru, Chile, Arizona, New
                                             Mexico, Oklahoma, and
                                             Nevada (Clark County only).
NAVLEGSVCOFF Long Beach...................  That portion of California
                                             in Kern, Santa Barbara,
                                             Ventura, Los Angeles and
                                             Orange Counties (excluding
                                             Marine Corps Base, Camp
                                             Pendleton), Riverside, San
                                             Bernadino, and the China
                                             Lake Naval Weapons Station
                                             Center.
NAVLEGSVCOFF San Francisco................  Northern California
                                             (Counties of San Luis
                                             Obispo, Kings, Tulare,
                                             Inyo, and all counties
                                             North thereof), Colorado,
                                             Nevada (less Clark County),
                                             Utah, and Kansas.
NAVLEGSVCOFF Puget Sound..................  Washington, Oregon, Idaho,
                                             Montanta, Wyoming, and
                                             Alaska.
NAVLEGSVCOFF Pearl Harbor.................  Hawaii, including Midway and
                                             Pacific Island possessions
                                             serviced from Hawaii.
NAVLEGSVCOFF Mayport......................  Claims involving commands
                                             located at Naval Station,
                                             Mayport, Florida.
NAVLEGSVCOFF Guam.........................  Guam, The Trust Territory of
                                             The Pacific Islands, The
                                             Republic of The Marshall
                                             Island, The Federated
                                             States of Micronesia and
                                             The Commonwealth of The
                                             Northern Marianas.
NAVLEGSVCOFF Yokosuka.....................  Japan, Okinawa, Korea, that
                                             portion of the Eurasian
                                             Continent North of latitude
                                             30N and East of longitude
                                             60E, and those Pacific and
                                             Arctic Ocean areas and
                                             islands North of latitude
                                             30N that are East of
                                             longitude 60E and West of
                                             longitude 170w.
NAVLEGSVCOFF Naples.......................  Europe, the African
                                             Continent (excluding that
                                             portion thereof assigned to
                                             NLSO Subic Bay), the
                                             Eurasian Continent
                                             (excluding that portion
                                             thereof assigned to NLSO
                                             Yokosuka and NLSO Subic
                                             Bay), and the
                                             Mediterranean.
NAVLEGSVCOFF Subic Bay....................  Philippines, Hong Kong,
                                             Singapore, Diego Garcia,
                                             and unless otherwise
                                             specified, all Pacific and
                                             Indian Ocean areas and
                                             islands located between
                                             longitude 135E and
                                             longitude 15E; Ethiopia,
                                             Somalia, Kenya, Tanzania,
                                             Mozambique, Swaziland,
                                             Lesotho, and South Africa;
                                             that portion of the
                                             Eurasian Continent South of
                                             latitude 30N and East of
                                             longitude 60E.
------------------------------------------------------------------------

    (3) Funding. Claims approved for $2,500.00 or less are paid from DON 
appropriations. Claims approved in excess of $2,500.00 are paid from the 
judgment fund and must be forwarded to the United States General 
Accounting Office (GAO) for payment. 28 CFR 14.10(a). Claims arising out 
of the operation of nonappropriated-fund activities and approved for 
payment shall be forwarded to the appropriate nonappropriated-fund 
activity for payment.



Sec. 750.35  Attorney's fees.

    Attorney's fees are limited to 20 percent of any compromise or 
settlement of an administrative claim, and are limited to 25 percent of 
any judgment rendered in favor of a plaintiff, or of any settlement 
accomplished after suit is filed. These amounts are to be paid out of 
the amount awarded and not in addition to the award. 28 U.S.C. 2678.



Sec. 750.36  Time limitations.

    (a) Administrative claim. Every claim filed against the United 
States under the FTCA must be presented in writing within 2 years after 
the claim accrues. 28 U.S.C. 2401(b). Federal law determines the date of 
accrual. A claim accrues when the claimant discovers or reasonably 
should have discovered the existence of the act giving rise to the 
claim. In computing the statutory time period, the day of the incident 
is excluded and the day the claim was presented included.
    (b) Amendments. Upon timely filing of an amendment to a pending 
claim, the DON shall have 6 months to make a final disposition of the 
claim as amended, and the claimant's option to file suit under 28 U.S.C. 
2675(a) shall not accrue until 6 months after the presentment of an 
amendment. 28 CFR 14.2(c).
    (c) Suits. A civil action is barred unless suit is filed against the 
United

[[Page 390]]

States not later than 6 months after the date of mailing of notice of 
final denial of the claim. 28 U.S.C. 2401(b). The failure of the DON to 
make final disposition of a claim within 6 months after it is presented 
shall, at the option of the claimant any time thereafter, be deemed a 
final denial of the claim. 28 U.S.C. 2675(a).



Secs. 750.37-750.40  [Reserved]



                     Subpart C--Military Claims Act



Sec. 750.41  Scope of subpart C.

    This section prescribes the substantive bases and special procedural 
requirements for the settlement of claims against the United States for 
death, personal injury, or damage, loss, or destruction of property:
    (a) Caused by military personnel or civilian employees of the 
Department of the Navy (DON) (hereinafter DON personnel). For the 
purposes of this section, DON personnel include all military personnel 
of the Navy and Marine Corps, volunteer workers, and others serving as 
employees of the DON with or without compensation, and members of the 
National Oceanic and Atmospheric Administration or of the Public Health 
Service when serving with the DON. DON personnel does not include DON 
contractors or their employees.
    (b) Incident to noncombat activities of the DON. Claims for personal 
injury or death of a member of the Armed Forces or Coast Guard, or 
civilian officer or employee of the U.S. Government whose injury or 
death is incident to service, however, are not payable.
    (c) Territorial limitation. There is no geographical limitation on 
the application of the MCA, but if a claim arising in a foreign country 
is cognizable under the Foreign Claims Act (10 U.S.C. 2734), the claim 
shall be processed under that statute. See 10 U.S.C. 2733(b)(2).
    (d) Suit. The MCA authorizes the administrative settlement and 
payment of certain claims. The United States has not consented to be 
sued.



Sec. 750.42  Statutory authority.

    10 U.S.C. 2733, as amended, commonly referred to as the Military 
Claims Act (MCA).



Sec. 750.43  Claims payable.

    (a) General. Unless otherwise prescribed, a claim for personal 
injury, death, or damage or loss of real or personal property is payable 
under this provision when:
    (1) Caused by an act or omission determined to be negligent, 
wrongful, or otherwise involving fault of DON personnel acting within 
the scope of their employment; or
    (2) Incident to noncombat activities of the DON. A claim may be 
settled under this provision if it arises from authorized activities 
essentially military in nature, having little parallel in civilian 
pursuits, and in which the U.S. Government has historically assumed a 
broad liability, even if not shown to have been caused by any particular 
act or omission by DON personnel while acting within the scope of their 
employment. Examples include practice firing of missiles and weapons, 
sonic booms, training and field exercises, and maneuvers that include 
operation of aircraft and vehicles, use and occupancy of real estate, 
and movement of combat or other vehicles designed especially for 
military use. Activities incident to combat, whether or not in time of 
war, and use of DON personnel during civil disturbances are excluded.
    (b) Specific claims payable. Claims payable by the DON under 
Sec. 750.43(a) (1) and (2) shall include, but not be limited to:
    (1) Registered or insured mail. Claims for damage to, loss, or 
destruction, even if by criminal acts, of registered or insured mail 
while in the possession of DON authorities are payable under the MCA. 
This provision is an exception to the general requirement that 
compensable damage, loss, or destruction of personal property be caused 
by DON personnel while acting within the scope of their employment or 
otherwise incident to noncombat activities of the DON. The maximum award 
to a claimant under this section is limited to that to which the 
claimant would be entitled from the Postal Service under the registry or 
insurance fee paid. The award shall not exceed the cost of the item to 
the claimant regardless of the fees paid. Claimant may be reimbursed for 
the postage and registry or insurance fees.

[[Page 391]]

    (2) Property bailed to the DON. Claims for damage to or loss of 
personal property bailed to the DON, under an express or implied 
agreement are payable under the MCA, even though legally enforceable 
against the U.S. Government as contract claims, unless by express 
agreement the bailor has assumed the risk of damage, loss, or 
destruction. Claims filed under this paragraph may, if in the best 
interest of the U.S. Government, be referred to and processed by the 
Office of the General Counsel, DON, as contract claims.
    (3) Real property. Claims for damage to real property incident to 
the use and occupancy by the DON, whether under an express or implied 
lease or otherwise, are payable under the MCA even though legally 
enforceable against the DON as contract claims. Claims filed under this 
paragraph may, if in the best interest of the U.S. Government, be 
referred to and processed by the Office of the General Counsel, DON, as 
contract claims.
    (4) Property of U.S. military personnel. Claims of U.S. military 
personnel for property lost, damaged, or destroyed under conditions in 
Sec. 750.43(a) (1) and (2) occurring on a military installation, not 
payable under the Military Personnel and Civilian Employees' Claims Act, 
are payable under the MCA.
    (5) Health care and Legal Assistance Providers. Claims arising from 
the personal liability of DON health care and legal assistance personnel 
for costs, settlements, or judgments for negligent acts or omissions 
while acting within the scope of assigned duties or employment are 
payable under the MCA. See Sec. 750.54.



Sec. 750.44  Claims not payable.

    (a) Any claim for damage, loss, destruction, injury, or death which 
was proximately caused, in whole or in part, by any negligence or 
wrongful act on the part of the claimant, or his agent or employee, 
unless the law of the place where the act or omission complained of 
occurred would permit recovery from a private individual under like 
circumstances, and then only to the extent permitted by the law.
    (b) Any claim resulting from action by the enemy or resulting 
directly or indirectly from any act by armed forces engaged in combat.
    (c) Any claim for reimbursement of medical, hospital, or burial 
expenses to the extent already paid by the U.S. Government.
    (d) Any claim cognizable under:
    (1) Military Personnel and Civilian Employees' Claims Act, as 
amended. 31 U.S.C. 3721.
    (2) Foreign Claims Act. 10 U.S.C. 2734.
    (3) 10 U.S.C. 7622, relating to admiralty claims. See part 752 of 
this Chapter.
    (4) Federal Tort Claims Act. 28 U.S.C. 2671, 2672, and 2674-2680.
    (5) International Agreements Claims Act. 10 U.S.C. 2734a and 2734b.
    (6) Federal Employees' Compensation Act. 5 U.S.C. 8101-8150.
    (7) Longshore and Harbor Workers' Compensation Act. 33 U.S.C. 901-
950.
    (e) Any claim for damage to or loss or destruction of real or 
personal property founded in written contract [except as provided in 
Sec. 750.43(b) (2) and (3)].
    (f) Any claim for rent of real or personal property [except as 
provided in Sec. 750.43(b) (2) and (3)].
    (g) Any claim involving infringement of patents.
    (h) Any claim for damage, loss, or destruction of mail prior to 
delivery by the Postal Service to authorized DON personnel or occurring 
due to the fault of, or while in the hands of, bonded personnel.
    (i) Any claim by a national, or corporation controlled by a 
national, of a country in armed conflict with the United States, or an 
ally of such country, unless the claimant is determined to be friendly 
to the United States.
    (j) Any claim for personal injury or death of a member of the Armed 
Forces or civilian employee incident to his service. 10 U.S.C. 
2733(b)(3).
    (k) Any claim for damage to or loss of bailed property when bailor 
specifically assumes such risk.
    (l) Any claim for taking private real property by a continuing 
trespass or by technical trespass such as overflights of aircraft.
    (m) Any claim based solely on compassionate grounds.

[[Page 392]]



Sec. 750.45  Filing claim.

    (a) Who may file. Under the MCA, specifically, the following are 
proper claimants:
    (1) U.S. citizens and inhabitants.
    (2) U.S. military personnel and civilian employees, except not for 
personal injury or death incident to service.
    (3) Persons in foreign countries who are not inhabitants.
    (4) States and their political subdivisions (including agencies).
    (5) Prisoners of war for personal property, but not personal injury.
    (6) Subrogees, to the extent they paid the claim.
    (b) Who may not file. (1) Inhabitants of foreign nations for loss or 
injury occurring in the country they inhabit.
    (2) U.S. Government agencies and departments.
    (c) When to file/statute of limitations. Claims against the DON must 
be presented in writing within 2 years after they accrue. In computing 
the 2 year period, the day the claim accrues is excluded and the day the 
claim is presented is included. If the incident occurs in time of war or 
armed conflict, however, or if war or armed conflict intervenes within 2 
years after its occurrence, an MCA claim, on good cause shown, may be 
presented within 2 years after the war or armed conflict is terminated. 
For the purposes of the MCA, the date of termination of the war or armed 
conflict is the date established by concurrent resolution of Congress or 
by the President. See 10 U.S.C. 2733(b)(1).
    (d) Where to file. The claim shall be submitted by the claimant to 
the commanding officer of the naval activity involved, if it is known. 
Otherwise, it shall be submitted to the commanding officer of any naval 
activity, preferably the one within which, or nearest to which, the 
incident occurred, or to the Judge Advocate General of the Navy, 200 
Stovall Street, Alexandria, VA 22332-2400.
    (e) Claim form. A claim is correct in form if it constitutes written 
notification of an incident, signed by the claimant or a duly authorized 
agent or legal representative, with a claim for money damages in a sum 
certain. A Standard Form 95 is preferred. A claim should be 
substantiated as discussed in section 750.27 of this part. A claim must 
be substantiated as required by this Part in order to be paid. See 10 
U.S.C. 2733(b)(5).
    (f) Amendment of claim. A proper claim may be amended by the 
claimant at any time prior to final denial or payment of the claim. An 
amendment shall be submitted in writing and signed by the claimant or a 
duly authorized agent or legal representative.
    (g) Payment. Claims approved for payment shall be forwarded to such 
disbursing officer as may be designated by the Comptroller of the Navy 
for payment from appropriations designated for that purpose. If the 
Secretary of the Navy considers that a claim in excess of $100,000.00 is 
meritorious and would otherwise be covered by 10 U.S.C. 2733 and 
Sec. 750.43, he may make a partial payment of $100,000.00 and refer the 
excess to the General Accounting Office for payment from appropriations 
provided therefore.



Sec. 750.46  Applicable law.

    (a) Claims arising within the United States, Territories, 
Commonwealth, and Possessions. The law of the place where the act or 
omission occurred will be applied in determining liability and the 
effect of contributory or comparative negligence on claimant's right of 
recovery.
    (b) Claims within foreign countries. (1) Where the claim is for 
personal injury, death, or damage to or loss or destruction of real or 
personal property caused by an act or omission determined to be 
negligent, wrongful, or otherwise involving fault of DON personnel 
acting within the scope of their employment, liability of the United 
States will be assessed under general principles of tort law common to 
the majority of American jurisdictions.
    (2) Apply the law of the foreign country governing the legal effect 
of contributory or comparative negligence by the claimant to determine 
the relative merits of the claim. If there is no foreign law on 
contributory or comparative negligence, apply traditional rules of 
contributory negligence. Apply foreign rules and regulations on 
operation of motor vehicles (rules of the road) to

[[Page 393]]

the extent those rules are not specifically superseded or preempted by 
U.S. Armed Forces traffic regulations.
    (c) Clarification of terms. The principles of absolute liability and 
punitive damages do not apply to claims under the MCA. Federal law 
determines the meaning and construction of the MCA.



Sec. 750.47  Measure of damages for property claims.

    Determine the measure of damages in property claims arising in the 
United States or its territories, commonwealth, or possessions under the 
law of the place where the incident occurred. Determine the measure of 
damages in property claims arising overseas under general principles of 
American tort law, stated as follows:
    (a) If the property has been or can be economically repaired, the 
measure of damages shall be the actual or estimated net cost of the 
repairs necessary to substantially restore the property to the condition 
that existed immediately prior to the incident. Damages shall not exceed 
the value of the property immediately prior to the incident less the 
value thereof immediately after the incident. To determine the actual or 
estimated net cost of repairs, the value of any salvaged parts or 
materials and the amount of any net appreciation in value effected 
through the repair shall be deducted from the actual or estimated gross 
cost of repairs. The amount of any net depreciation in the value of the 
property shall be added to such gross cost of repairs, if such 
adjustments are sufficiently substantial in amount to warrant 
consideration. Estimates of the cost of repairs shall be based upon the 
lower or lowest of two or more competitive bids, or upon statements or 
estimates by one or more competent and disinterested persons, preferably 
reputable dealers or officials familiar with the type of property 
damaged, lost, or destroyed.
    (b) If the property cannot be economically repaired, the measure of 
damages shall be the value of the property immediately prior to the 
incident less the value immediately after the incident. Estimates of 
value shall be made, if possible, by one or more competent and 
disinterested persons, preferably reputable dealers or officials 
familiar with the type of property damaged, lost, or destroyed.
    (c) Loss of use of damaged property which is economically repairable 
may, if claimed, be included as an additional element of damage to the 
extent of the reasonable expense actually incurred for appropriate 
substitute property, for such period reasonably necessary for repairs, 
as long as idle property of the claimant was not employed as a 
substitute. When substitute property is not obtainable, other competent 
evidence such as rental value, if not speculative or remote, may be 
considered. When substitute property is reasonably available but not 
obtained and used by the claimant, loss of use is normally not payable.



Sec. 750.48  Measure of damages in injury or death cases.

    (a) Where an injury or death arises within the United States or its 
territories, commonwealth, or possessions, determine the measure of 
damages under the law of the location where the injury arises.
    (b) Where an injury or death arises in a foreign country and is 
otherwise cognizable and meritorious under this provision, damages will 
be determined in accordance with general principles of American tort 
law. The following is provided as guidance.
    (1) Measure of Damages for Overseas Personal Injury Claims. 
Allowable compensation includes reasonable medical and hospital expenses 
necessarily incurred, compensation for lost earnings and services, 
diminution of earning capacity, anticipated medical expenses, physical 
disfigurement, and pain and suffering.
    (2) Wrongful Death Claims Arising in Foreign Countries. (i) 
Allowable compensation includes that in paragraph (b)(1) of this 
section, burial expenses, loss of support and services, loss of 
companionship, comfort, society, protection, and consortium, and loss of 
training, guidance, education, and nurturing, as applicable.
    (ii) The claim may be presented by or on behalf of the decedent's 
spouse, parent, child, or dependent relative. Claims may be consolidated 
for joint presentation by a representative of some or all of the 
beneficiaries or may

[[Page 394]]

be filed by a proper beneficiary individually.



Sec. 750.49  Delegations of adjudicating authority.

    (a) Settlement Authority. (1) The Secretary of the Navy may settle 
claims in any amount. The Secretary may pay the first $100,000.00 and 
report the excess to the Comptroller General for payment under 31 U.S.C. 
1304. See 10 U.S.C. 2733(d).
    (2) The Judge Advocate General has delegated authority to settle 
claims for $100,000.00 or less.
    (3) The Deputy Judge Advocate General, the Assistant Judge Advocate 
General (General Law), and the Deputy Assistant Judge Advocate General 
(Claims and Tort Litigation) have delegated authority to settle claims 
for $25,000.00 or less.
    (4) Naval Legal Service Office commanding officers and the Officer 
in Charge, U.S. Sending State Office for Italy have delegated authority 
to settle claims for $15,000.00 or less.
    (5) Officers in charge of Naval Legal Service Office Detachments, 
when specifically designated by cognizant commanding officers of Naval 
Legal Service Offices; and the Claims Officer at the U.S. Naval Station, 
Panama Canal have delegated authority to settle claims for $10,000.00 or 
less.
    (6) Overseas commands with a Judge Advocate General's Corps officer 
or a judge advocate of the Marine Corps attached, have delegated 
authority to settle claims for $5,000.00 or less.
    (b) Denial Authority. (1) The Secretary of the Navy may deny a claim 
in any amount.
    (2) The Judge Advocate General, the Deputy Judge Advocate General, 
the Assistant Judge Advocate General (General Law), and the Deputy 
Assistant Judge Advocate General (Claims and Tort Litigation) have 
delegated authority to deny claims in any amount.
    (3) All other adjudicating authorities have delegated authority to 
deny claims only to the amount of their settlement authority.
    (c) Appellate Authority. Adjudicating authorities have the same 
authority as delegated in paragraph b above to act upon appeals. No 
appellate authority below the Secretary of the Navy may deny an appeal 
of a claim it had previously denied.



Sec. 750.50  Advance payments.

    (a) Scope. This paragraph applies exclusively to the payment of 
amounts not to exceed $100,000.00 under 10 U.S.C. 2736 in advance of 
submission of a claim.
    (b) Statutory authority. Title 10 U.S.C. 2736 authorizes the 
Secretary of the Navy or designee to pay an amount not in excess of 
$100,000.00 in advance of the submission of a claim to or for any 
person, or the legal representative of any person, who was injured or 
killed, or whose property was damaged or lost, as the result of an 
accident for which allowance of a claim is authorized by law. Payment 
under this law is limited to that which would be payable under the MCA 
(10 U.S.C. 2733). Payment of an amount under this law is not an 
admission by the United States of liability for the accident concerned. 
Any amount so paid shall be deducted from any amount that may be allowed 
under any other provision of law to the person or his legal 
representative for injury, death, damage, or loss attributable to the 
accident concerned.
    (c) Officials with Authority to make Advance Payments. (1) The 
Secretary of the Navy has authority to make advance payments up to 
$100,000.00
    (2) The Judge Advocate General has delegated authority to make 
advance payments up to $100,000.00.
    (3) The Deputy Assistant Judge Advocate General (Claims and Tort 
Litigation) has delegated authority to make advance payments up to 
$25,000.00.
    (4) Naval Legal Service Office commanding officers and the Officer 
in Charge, U.S. Sending State Office for Italy have delegated authority 
to make advance payments up to $5,000.00.
    (5) Officers in Charge of Naval Legal Service Office Detachments, 
when specifically designated by cognizant Commanding Officers of Naval 
Legal Service Offices; and the Staff Judge Advocate at the U.S. Naval 
Station, Panama Canal have delegated authority to make advance payments 
up to $3,000.00.
    (6) Overseas commands with a Judge Advocate General's Corps officer 
or a

[[Page 395]]

judge advocate of the Marine Corps attached, have delegated authority to 
make advance payments up to $3,000.00.
    (d) Conditions for Advance Payments. Prior to making an advance 
payment under 10 U.S.C. 2736, the adjudicating authority shall ascertain 
that:
    (1) The injury, death, damage, or loss would be payable under the 
MCA (10 U.S.C. 2733);
    (2) The payee, insofar as can be determined, would be a proper 
claimant, or is the spouse or next of kin of a proper claimant who is 
incapacitated;
    (3) The provable damages are estimated to exceed the amount to be 
paid;
    (4) There exists an immediate need of the person who suffered the 
injury, damage, or loss, or of his family, or of the family of a person 
who was killed, for food, clothing, shelter, medical, or burial 
expenses, or other necessities, and other resources for such expenses 
are not reasonably available;
    (5) The prospective payee has signed a statement that it is 
understood that payment is not an admission by the Navy or the United 
States of liability for the accident concerned, and that the amount paid 
is not a gratuity but shall constitute an advance against and shall be 
deducted from any amount that may be allowed under any other provision 
of law to the person or his legal representative for injury, death, 
damage, or loss attributable to the accident concerned; and
    (6) No payment under 10 U.S.C. 2736 may be made if the accident 
occurred in a foreign country in which the NATO Status of Forces 
Agreement (4 U.S.T. 1792, TIAS 2846) or other similar agreement is in 
effect and the injury, death, damage, or loss
    (i) Was caused by a member or employee of the DON acting within the 
scope of employment or
    (ii) Occurred ``incident to noncombat activities'' of the DON as 
defined in Sec. 750.43.



Sec. 750.51  Final disposition.

    (a) Claimant to be notified. The adjudicating authority shall notify 
the claimant, in writing, of the action taken on the claim.
    (b) Final denial. A final denial, in whole or in part, of any MCA 
claim shall be in writing and sent to the claimant, or his attorney or 
legal representative, by certified or registered mail, return receipt 
requested. The notification of denial shall include a statement of the 
reason or reasons for denial and that the claimant may appeal. The 
notification shall also inform the claimant:
    (1) The title of the appellate authority who will act on the appeal 
and that the appeal will be addressed to the adjudicating authority who 
last acted on the claim.
    (2) No form is prescribed for the appeal, but the grounds for appeal 
should be set forth fully.
    (3) The appeal must be submitted within 30 days of receipt by the 
claimant of notice of action on the claim.



Sec. 750.52  Appeal.

    (a) A claim which is disapproved in whole or in part may be appealed 
by the claimant at any time within 30 days after receipt of notification 
of disapproval. An appeal shall be in writing and state the grounds 
relied upon. An appeal is not an adversary proceeding and a hearing is 
not authorized; however, the claimant may obtain and submit any 
additional evidence or written argument for consideration by the 
appellate authority.
    (b) Upon receipt, the adjudicating authority examines the appeal, 
determines whether the appeal complies with this regulation, and reviews 
the claims investigative file to ensure it is complete. The claim, with 
the complete investigative file and a memorandum of law, will be 
forwarded to the appellate authority for action. If the evidence in the 
file, including information submitted by the claimant with the appeal, 
indicates the appeal should be approved, the adjudicating authority may 
treat the appeal as a request for reconsideration.
    (c) Processing of the appeal may be delayed pending further efforts 
by the adjudicating authority to settle the claim. Where the 
adjudicating authority does not reach a final agreement on an appealed 
claim, it shall send the entire claim file to the next higher settlement 
authority, who is the appellate authority for that claim.

[[Page 396]]

    (d) The appellate authority shall notify the claimant in writing of 
the determination on appeal; that such determination constitutes the 
final administrative action on the claim; and there is no right to sue 
under the MCA.



Sec. 750.53  Cross-servicing.

    (a) See Sec. 750.13 or information about single-service claims 
responsibility under DODDIR 5515.8 of 9 June 1990.
    (b) Claims Settlement Procedures. Where a single service has been 
assigned a country or area claims responsibility, that service will 
settle claims cognizable under the MCA under the regulations of that 
service. The forwarding command shall afford any assistance necessary to 
the appropriate service in the investigation and adjudication of such 
claims.



Sec. 750.54  Payment of costs, settlements, and judgments related to certain medical or legal malpractice claims.

    (a) General. Requests for reimbursement/indemnification of costs, 
settlements, and judgments cognizable under 10 U.S.C. 1089(f) [for 
personal injury or death caused by any physician, dentist, nurse, 
pharmacist, paramedic, or other supporting personnel (including medical 
and dental technicians, nurse assistants, and therapists)] or 10 U.S.C. 
1054(f) (for damages for injury or loss of property caused by any 
attorney, paralegal, or other member of a legal staff) while acting as 
DON personnel will be paid if:
    (1) The alleged negligent or wrongful actions or omissions arose in 
connection with either providing health care functions or legal services 
and within the scope of employment; and
    (2) Such personnel furnish prompt notification and delivery of all 
process served or received, and other documents, information, and 
assistance as requested; and cooperate in defending the action on the 
merits.
    (b) Requests for Indemnification. All requests for indemnification 
for personal liability of DON personnel for acts or omissions arising 
out of assigned duties shall be forwarded to the Judge Advocate General 
for action.



Sec. 750.55  Attorney's fees.

    Attorney's fees not in excess of 20 percent of any settlement may be 
allowed. Attorney's fees so determined are to be paid out of the amount 
awarded and not in addition to the award. These fee limitations shall be 
incorporated in any settlement agreement secured from a claimant.



Secs. 750.56-750.60  [Reserved]



    Subpart D--Claims Not Cognizable Under Any Other Provision of Law



Sec. 750.61  Scope of subpart D.

    This section provides information on payment of claims against the 
United States, not payable under any other statute, caused by the act or 
omission, negligent, wrongful, or otherwise involving fault, of 
Department of the Navy (DON) military and civilian personnel 
(hereinafter DON personnel) acting outside the scope of their 
employment.



Sec. 750.62  Statutory authority.

    Section 2737 of title 10, United States Code, provides authority for 
the administrative settlement in an amount not to exceed $1,000.00 of 
any claim against the United States not cognizable under any other 
provision of law for damage, loss, or destruction of property or for 
personal injury or death caused by military personnel or a civilian 
official or employee of a military department incident to the use of a 
vehicle of the United States at any place, or any other property of the 
United States on a Government installation. There is no right to sue. 
There are no territorial limitations and the Act has worldwide 
application.



Sec. 750.63  Definitions.

    (a) Civilian official or employee. Any civilian employee of the DON 
paid from appropriated funds at the time of the incident.
    (b) Vehicle. Includes every description of carriage or other 
artificial contrivance used, or capable of being used, as a means of 
transportation on land. See 1 U.S.C. 4.

[[Page 397]]

    (c) Government installation. Any Federal facility having fixed 
boundaries and owned or controlled by the U.S. Government. It includes 
both military bases and nonmilitary installations.



Sec. 750.64  Claim procedures.

    (a) The general provisions of subpart A of this part shall apply in 
determining what is a proper claim, who is a proper claimant, and how a 
claim is to be investigated and processed under 10 U.S.C. 2737 and this 
section.
    (b) A claim is presented when the DON receives from a claimant or 
the claimant's duly authorized agent, written notification of a nonscope 
claim incident accompanied by a demand for money damages in a sum 
certain.
    (c) A claimant may amend a claim at any time prior to final action. 
Amendments will be submitted in writing and signed by the claimant or 
the claimant's duly authorized agent.
    (d) Claims submitted under the provisions of the Federal Tort Claims 
Act (FTCA) or Military Claims Act (MCA) shall be considered 
automatically for an award under this section when payment would 
otherwise be barred because the DON personnel were not in the scope of 
their employment at the time of the incident. If a tender of payment 
under this section is not accepted by the claimant in full satisfaction 
of the claim, no award will be made, and the claim will be denied 
pursuant to the rules applicable to the statute under which it was 
submitted.
    (e) Damages caused by latent defects of ordinary, commercial type, 
Government equipment that were not payable under the MCA, Foreign Claims 
Act, or FTCA are payable under this section.
    (f) Nonscope claims for damages caused by local national DON 
employees overseas are also payable under this section if the injury was 
caused by the use of Government equipment.
    (g) Payment may not be made on a nonscope claim unless the claimant 
accepts the amount offered in full satisfaction of the claim and signs a 
settlement agreement.
    (h) Payment for nonscope claims adjudicated by field commands will 
be affected through their local disbursing office by use of funds 
obtained from the Judge Advocate General.
    (i) Claims submitted solely under 10 U.S.C. 2737 shall be promptly 
considered. If a nonscope claim is denied, the claimant shall be 
informed of reasons in writing and advised he may appeal in writing to 
the Secretary of the Navy (Judge Advocate General) provided the appeal 
is received within 30 days of the notice of denial. The provisions of 
Sec. 750.51(b) of subpart C also apply to denials of nonscope claims.



Sec. 750.65  Statute of limitations.

    (a) A claim must be presented in writing within 2 years after it 
accrues. It accrues at the time the claimant discovers, or in the 
exercise of reasonable care should have discovered, the existence of the 
act or omission for which the claim is filed.
    (b) In computing time to determine whether the period of limitation 
has expired, exclude the incident date and include the date the claim 
was presented.



Sec. 750.66  Officials with authority to settle.

    Judge Advocate General; Deputy Judge Advocate General; Assistant 
Judge Advocate General (General Law); Deputy Assistant Judge Advocate 
General (Claims and Tort Litigation Division); Head, Federal Tort Claims 
Branch (Claims and Tort Litigation Division); Head, Military Claims 
Branch (Claims and Tort Litigation Division), and commanding officers of 
Naval Legal Service Offices may settle a nonscope claim.



Sec. 750.67  Scope of liability.

    (a) Subject to the exceptions in Sec. 750.68 of specific claims not 
payable, the United States shall not pay more than $1,000.00 for a claim 
against the United States, not cognizable under any other provision of 
law, except Article 139, UCMJ.
    (b) Article 139, UCMJ, 10 U.S.C. 939, is not preemptive. The 
prohibition in 10 U.S.C. 2737 on paying claims ``not cognizable under 
any other provisions of law'' applies only to law authorizing claims 
against the United States. Article 139 authorizes claims against 
servicemembers. See part 755 of this chapter.

[[Page 398]]



Sec. 750.68  Claims not payable.

    (a) A claim for damage, loss, or destruction of property or the 
personal injury or death caused wholly or partly by a negligent or 
wrongful act of the claimant or his agent or employee.
    (b) A claim, or any part thereof, that is legally recoverable by the 
claimant under an indemnifying law or indemnity contract.
    (c) A subrogated claim.



Sec. 750.69  Measure of damages.

    Generally, the measure-of-damage provisions under the MCA are used 
to determine the extent of recovery for nonscope claims. Compensation is 
computed in accordance with Secs. 750.47 and 750.48 of subpart C, except 
damages for personal injury or death under this section shall not be for 
more than the cost of reasonable medical, hospital, and burial expenses 
actually incurred and not otherwise furnished or paid for by the United 
States.



PART 751--PERSONNEL CLAIMS REGULATIONS--Table of Contents




               Subpart A--Claims Against the United States

Sec.
751.1  Scope of subpart A.
751.2  Claims against the United States: In general.
751.3  Authority.
751.4  Construction.
751.5  Definitions.
751.6  Claims payable.
751.7  Claims not payable.
751.8  Adjudicating authorities.
751.9  Presentment of claim.
751.10  Form of claim.
751.11  Investigation of claim.
751.12  Computation of award.
751.13  Payments and collections.
751.14  Partial payments.
751.15  Reconsideration and appeal.
751.16-751.20  [Reserved]

          Subpart B--Demand on Carrier, Contractor, or Insurer

751.21  Scope of Subpart B.
751.22  Carrier recovery: In general.
751.23  Responsibilities.
751.24  Notice of loss or damage.
751.25  Types of shipments and liability involved.
751.26  Demand on carrier, contractor, or insurer.
751.27  Preparation and dispatch of demand packets.
751.28  Assignment of claimants rights to the government.
751.29  Recoveries from carrier, contractor, or insurer.
751.30  Settlement procedures and third party responses.
751.31  Common reasons for denial by carrier or contractor.
751.32  Forwarding claims files for offset action.
751.33  Unearned freight packet.
751.34  GAO appeals.
751.35  Forms and instructions.

    Authority: 5 U.S.C 301; 10 U.S.C. 939, 5013, and 5148; E.O. 11476, 3 
CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202.

    Source: 57 FR 5055, Feb. 12, 1992, unless otherwise noted.



               Subpart A--Claims Against the United States



Sec. 751.1  Scope of subpart A.

    Subpart A of this part prescribes procedures and substantive bases 
for administrative settlement of claims against the United States 
submitted by Department of the Navy (DON) personnel and civilian 
employees of the naval establishment.



Sec. 751.2  Claims against the United States: In general.

    (a) Maximum amount payable. The Military and Civilian Employees' 
Personnel Claims Act (Personnel Claims Act), 31 U.S.C. 3701, 3702, and 
3721, provides that the maximum amount payable for any loss or damage 
arising from a single incident is limited to $40,000.00. Claims for 
losses occurring prior to 31 October 1988 are limited to $25,000.00.
    (b) Additional instructions. The Judge Advocate General of the Navy 
may issue additional instructions or guidance as necessary to give full 
force and effect to this section.
    (c) Preemption. The provisions of this section and the Personnel 
Claims Act are preemptive of other claims regulations. Claims not 
allowable under the Personnel Claims Act may, however, be allowable 
under another claims act.
    (d) Other claims. Claims arising from the operation of a ship's 
store, laundry, dry cleaning facility, tailor shop, or

[[Page 399]]

cobbler shop should be processed in accordance with NAVSUP P487.



Sec. 751.3  Authority.

    The Personnel Claims Act provides the authority for maximum payment 
up to $40,000.00 for loss, damage, or destruction of personal property 
of military personnel or civilian employees incident to their service. 
The Act provides for the recovery from carriers, warehouse firms, and 
other third parties responsible for such loss, damage, or destruction. 
No claim may be paid unless it is presented in writing within 2 years of 
the incident giving rise to the claim.



Sec. 751.4  Construction.

    The provisions of this section and the Personnel Claims Act provide 
limited compensation to service members and civilian employees of the 
DON for loss and damage to personal property incurred incident to 
service. This limited compensation is not a substitute for private 
insurance. Although not every loss may be compensated under the 
Personnel Claims Act, its provisions shall be broadly construed to 
provide reasonable compensation on meritorious claims. Adjudications 
must be based on common sense and the reasoned judgment of the claims 
examiner giving the benefit of realistic doubt to the claimant.



Sec. 751.5  Definitions.

    (a) Proper claimants--(1) Members of the DON. All Navy and Marine 
Corps active duty members and reservists on active duty for training 
under Federal law whether commissioned, enrolled, appointed, or 
enlisted. A retired member may only claim under this Act if loss or 
damage occurred while the claimant was on active duty or in connection 
with the claimant's last movement of personal property incident to 
service.
    (2) Civilian employees of the Navy. Federal employees of the naval 
establishment paid from appropriated funds. This term does not include 
Red Cross employees, USO personnel, and employees of Government 
contractors (including technical representatives).
    (3) Claims by nonappropriated-fund employees. Claims by employees of 
Navy and Marine Corps nonappropriated-fund activities for loss, damage, 
or destruction of personal property incident to their employment will be 
processed and adjudicated in accordance with this enclosure and 
forwarded to the appropriate local nonappropriated-fund activity which 
employs the claimant for payment from nonappropriated-funds.
    (4) Separation from service. Separation from the service or 
termination of employment shall not bar former military personnel or 
civilian employees from filing claims or bar designated officers from 
considering, ascertaining, adjusting, determining, and authorizing 
payment of claims otherwise falling within the provision of these 
regulations when such claim accrued prior to separation or termination.
    (b) Improper claimants. Insurers, assignees, subrogees, vendors, 
lienholders, contractors, subcontractors and their employees, and other 
persons not specifically mentioned as proper claimants.
    (c) Unusual occurrence. Serious events and natural disasters not 
expected to take place in the normal course of events. Two different 
types of incidents may be considered unusual occurrences: those of an 
unusual nature and those of a common nature that occur to an unexpected 
degree of severity. Examples of unusual occurrences include structural 
defects in quarters, faulty plumbing maintenance, termite or rodent 
damage, unusually large size hail, and hazardous health conditions due 
to Government use of toxic chemicals. Examples of occurrences that are 
not unusual include potholes or foreign objects in the road, ice and 
snow sliding off a roof onto a vehicle, and tears, rips, snags, or 
stains on clothing. Claims that electrical or electronic devices were 
damaged by a power surge may be paid when lightning has actually struck 
the claimant's residence or objects outside the residence, such as a 
transformer box, or when power company records or similar evidence shows 
that a particular residence or group of residences was subjected to a 
power surge of unusual intensity. In areas subject to frequent 
thunderstorms or power fluctuations, claimants are expected to use surge 
suppressors, if

[[Page 400]]

available, to protect delicate items such as computers or videocassette 
recorders.
    (d) Personal property. Property including but not limited to 
household goods, unaccompanied baggage, privately owned vehicles 
(POV's), mobile homes, and boats.
    (e) Intangible property. Property that has no intrinsic marketable 
value such as bankbooks, checks, promissory notes, non-negotiable stock 
certificates, bonds, baggage checks, insurance policies, money orders, 
and travelers checks.
    (f) Vehicles. Includes automobiles, motorcycles, mopeds, utility 
trailers, camping trailers, trucks, mounted camper bodies, motor homes, 
boats, boat trailers, bicycles, and aircraft. Mobile homes and other 
property used as dwelling places are not considered vehicles.



Sec. 751.6  Claims payable.

    Claims for loss, damage, or destruction of property may be 
considered as set out below if possession of the property was reasonable 
and useful under the circumstances and the loss did not result from the 
negligence of the claimant.
    (a) Transportation and storage losses. (1) Incurred during 
transportation under orders, whether in possession of the Government, 
carrier, storage warehouse, or other Government contractor.
    (2) Incurred during travel under orders, including temporary duty.
    (3) Incurred during travel on a space available basis on a military 
aircraft, vessel, or vehicle.
    (4) Do-it-yourself (DITY) moves. In certain circumstances, loss of 
or damage to property during a DITY move is compensable. Claimants, 
however, are required to substantiate the fact of loss or damage in 
shipment. Claimants who do not prepare inventories have difficulty 
substantiating thefts. In addition, unless evidence shows that something 
outside the claimant's control caused the damage, breakage is presumed 
to be the result of improper packing by the claimant. For example, if a 
claimant's truck is rear-ended by a drunk driver during a DITY move, it 
is out of claimant's control. If the claimant can substantiate that he 
was free from negligence, he can file a claim for damages to his 
household goods.
    (5) Shipment or storage at the claimant's expense. The shipment or 
storage is considered Government-sponsored if the Government later 
reimburses the claimant for it. The Government, however, will not 
compensate a claimant for loss or damage that occurs while property is 
being shipped or stored at the claimant's expense, even if the 
Government reimburses the claimant for the shipment or storage fees. The 
reason for this is that there is no contract, called a Government Bill 
of Lading (GBL), between Government and the carrier. In such cases the 
claimant must claim against the carrier.
    (b) Losses at assigned quarters or other authorized places. Damage 
or loss caused by fire, explosion, theft, vandalism, lightning, flood, 
earthquake, and unusual occurrences. Losses due to theft may only be 
paid if the claimant took reasonable measures to safeguard the property 
and the theft occurred as a result of a forced entry. Claimants are 
expected to secure windows and doors of their barracks, quarters, wall 
lockers, and other storage areas. Claimants are expected to store 
valuables in a secure area within their barracks, quarters, and storage 
areas. Claimants are also expected to take extra measures to protect 
cash, valuable jewelry, and similar small, easily pilferable items. 
Normally, such items should be kept in a locked container within a 
secured room. It is also advisable that the locked container be large 
enough that it is not convenient for a thief to carry off. Bicycles 
located at quarters or on base must be secured to a fixed object. 
Overseas housing is considered assigned quarters for claimants who are 
not local inhabitants.
    (c) Vehicle losses. (1) Incurred while a vehicle is used in the 
performance of military duty, if such use was authorized or directed for 
the convenience of the Government, provided the travel did not include 
commuting to or from the permanent place of duty, and did not arise from 
mechanical or structural defect of the vehicle. There is no requirement 
that the loss be due to fire, flood, hurricane, or other unusual 
occurrence, or to theft or vandalism.

[[Page 401]]

As a general rule, however, travel is not considered to be for the 
convenience of the Government unless it was pursuant to written orders 
authorizing use for which the claimant is entitled to reimbursement. The 
claimant must be free from negligence in order to be paid for a 
collision loss. Travel by the claimant to other buildings on the 
installation is not considered to be under orders for the convenience of 
the Government. Travel off the installation without written orders may 
only be deemed to be for the convenience of the Government if the 
claimant was expressly directed by his superior to use POV to accomplish 
the mission. The issuance of written orders after the fact raises the 
presumption that travel was not for the convenience of the Government. 
The maximum payment of $2,000.00 authorized by the Allowance List-
Depreciation Guide still applies to loss of or damage to vehicles and 
contents. This maximum does not apply to DITY moves.
    (2) Incurred while a vehicle is shipped at Government expense, 
provided the loss or damage did not arise from mechanical or structural 
defect of the vehicle during such shipment. Damage caused during 
shipment at the claimant's expense or while the vehicle is being moved 
to or from the port by an agent of the claimant is not compensable.
    (3) Incurred while a vehicle is located at quarters or other 
authorized place of lodging, including garages, carports, driveways, 
assigned parking spaces, if the loss or damage is caused by fire, flood, 
hurricane, theft, or vandalism, or other unusual occurrence. Vandalism 
is damage intentionally caused. Stray marks caused by children playing, 
falling branches, gravel thrown by other vehicles, or similar 
occurrences are not vandalism. The amount payable on vandalism claims is 
limited to $2,000.00.
    (4) Incurred while a vehicle is located at places other than 
quarters but on a military installation, if the loss or damage is caused 
by fire, flood, hurricane, theft, or vandalism, or other unusual 
occurrence. ``Military installation'' is used broadly to describe any 
fixed land area, wherever situated, controlled, and used by military 
activities or the Department of Defense (DOD). A vehicle properly on the 
installation should be presumed to be used incident to the claimant's 
service. A vehicle that is not properly insured or registered in 
accordance with local regulations is not properly on the installation. A 
vehicle left in a remote area of the installation that is not a 
designated long-term parking area for an undue length of time is 
presumed not to be on the installation incident to service.
    (5) Theft of property stored inside a vehicle. Claimants are 
expected to lock doors and windows. Neither the passenger compartment 
nor the trunk of a vehicle is a proper place for the long-term storage 
of property unconnected with the use of the vehicle. The passenger 
compartment of a vehicle does not provide adequate security, except for 
very short periods of time for articles that are not of high value or 
easily pilferable. Car covers and bras are payable if bolted or secured 
to the vehicle with a wire locking device.
    (6) Rental vehicles. Damage to rental vehicles is considered under 
paragraphs of the Joint Federal Travel Regulations (JFTR), rather than 
as a loss incident to service.
    (d) Mobile homes and contents in shipment. Claims for damage to 
mobile homes and contents in shipment are payable unless the damage was 
caused by structural or mechanical defects (see Sec. 751.12(g) below on 
mobile homes).
    (e) Borrowed property (including vehicles). Loss or damage to 
borrowed property is compensable if it was borrowed for claimant's or 
dependent's own use. A statement will be provided by the owner of the 
property attesting to the use of the property by the claimant.
    (f) Clothing and articles being worn. Repairs/replacement of 
clothing and articles being worn while on a military installation or in 
the performance of official duty may be paid if loss is caused by fire, 
flood, hurricane, theft, or vandalism, or other unusual occurrence. This 
paragraph shall be broadly construed in favor of compensation, but see 
Sec. 751.5(c) for the definition of unusual occurrence. Articles being 
worn include hearing aids, eyeglasses, and items the claimant is 
carrying, such as a briefcase.

[[Page 402]]

    (g) Personal property held as evidence or confiscated property. If 
property belonging to the victim of a crime is to be held as evidence 
for an extended period of time (in excess of 2 months) and the temporary 
loss of the property will work a grave hardship on the claimant, a claim 
for the loss may be considered for payment. This provision will not be 
used unless every effort has been made to determine whether secondary 
evidence, such as photographs, may be substituted for the item. No 
compensation is allowed to a person suspected of an offense for property 
seized from that same person in the investigation of that offense. This 
also applies to property a foreign government unjustly confiscates or an 
unjust change in a foreign law that forces surrender or abandonment of 
property.
    (h) Theft from possession of claimant. Theft from the person of the 
claimant is reimbursable if the theft occurred by use of force, 
violence, or threat to do bodily harm, or by snatching or pickpocketing, 
and at the time of theft the claimant was either on a military 
installation, utilizing a recreation facility operated or sponsored by 
the Department of Defense or any agency thereof, or in the performance 
of official duty. The theft must have been reported to appropriate 
police authorities as soon as practicable, and it must have been 
reasonable for the claimant to have had on his person the quality and 
the quantity of the property allegedly stolen.
    (i) Property used for the benefit of the Government. Compensation is 
authorized where property is damaged or lost while being used in the 
performance of Government business at the direction or request of 
superior authority or by reason of military necessity.
    (j) Money deposited for safekeeping, transmittal, or other 
authorized disposition. Compensation is authorized for personal funds 
delivered to and accepted by military and civilian personnel authorized 
by the commanding officer to receive these funds for safekeeping, 
deposit, transmittal, or other authorized disposition, if the funds were 
neither applied as directed by the owner nor returned to the owner.
    (k) Fees--(1) For obtaining certain documents. The fees for 
replacing birth certificates, marriage certificates, college diplomas, 
passports, or similar documents may be allowed if the original or a 
certified copy is lost or destroyed incident to service. In general, 
compensation will only be allowed for replacing documents with a raised 
seal that are official in nature. No compensation will be allowed for 
documents that are representative of value, such as stock certificates, 
or for personal letters or records.
    (2) Estimate fees. An estimate fee is a fixed cost charged by a 
person in the business of repairing property to provide an estimate of 
what it would cost to repair property. An estimate fee in excess of 
$50.00 should be examined with great care to determine whether it is 
reasonable. A person becomes obligated to pay an estimate fee when the 
estimate is prepared. An estimate fee should not be confused with an 
appraisal fee, which is not compensable (see Sec. 751.7). A reasonable 
estimate fee is compensable if it is not going to be credited toward the 
cost of repair. If it is to be credited toward the cost of repair, it is 
not compensable regardless of whether the claimant chooses to have the 
work done. When an estimate fee is claimed, the file must reflect 
whether the fee is to be credited.



Sec. 751.7  Claims not payable.

    (a) Losses in unassigned quarters in the United States. Claims for 
property damaged or lost at quarters occupied by the claimant within the 
United States that are not assigned or otherwise provided by the 
Government.
    (b) Currency or jewelry shipped or stored in baggage. Claims for 
lost money, currency, or jewelry shipped or stored in baggage are not 
payable. Coin or paper money included in collections is payable only if 
listed on an inventory prepared at origin.
    (c) Enemy property or war trophies. This includes only property that 
was originally enemy property or a war trophy that passed into the hands 
of a collector and was then purchased by a claimant.
    (d) Unserviceable or Worn-Out Property.
    (e) Loss or Damage to Property to the Extent of any Available 
Insurance

[[Page 403]]

Coverage as Set Forth in Sec. 751.26 of this part.
    (f) Inconvenience or loss of use. Expenses arising from late 
delivery of personal property, including but not limited to the expenses 
for food, lodging, and furniture rental, loss of use, interest, carrying 
charges, attorney's fees, telephone calls, additional costs of 
transporting claimant or family members, time spent in preparation of 
claim, or cost of insurance are not compensable. While such claims do 
not lie against the Government, members should be referred to the 
Personal Property Office for assistance in filing their inconvenience 
claims against the commercial carriers (NAVSUP Publication 490, 
Transportation of Personal Property).
    (g) Items of speculative value. Theses, manuscripts, unsold 
paintings, or a similar creative or artistic work done by the claimant, 
friend, or a relative is limited to the cost of materials only. The 
value of such items is speculative. Compensation for a utilitarian 
object made by the claimant, such as a quilt or bookcase, is limited to 
the value of an item of similar quality.
    (h) Loss or damage to property due to negligence of the claimant. 
Negligence is a failure to exercise the degree of care expected under 
the circumstances that is the proximate cause of the loss. Losses due, 
in whole or in part, to the negligence of the claimant, the claimant's 
spouse, child, houseguest, employee, or agent are not compensable.
    (i) Business property. Losses of items acquired for resale or use in 
a private business are not compensable. If property is acquired for both 
business and personal use, compensation will not be allowed if business 
use is substantial, or is the primary purpose for which the item was 
purchased, or if the item is designed for professional use and is not 
normally intended for personal use.
    (j) Motor vehicles. Collision damage is not payable unless it meets 
the criteria for payment as property used for the benefit of the 
Government as established in Sec. 751.6(c)(1).
    (k) Violation of law or directives. Property acquired, possessed, or 
transported unlawfully or in violation of competent regulations or 
directives. This includes vehicles, weapons, or property shipped to 
accommodate another person, as well as property used to transport 
contraband.
    (1) Sales tax. Sales taxes associated with repair or replacement 
costs will not be considered unless the claimant provides proof that the 
sales tax was actually paid.
    (m) Appraisal fees. An appraisal, as distinguished from an estimate 
of replacement or repair, is defined as a valuation of an item provided 
by a person who is not in the business of selling or repairing that type 
of property. Normally, claimants are expected to obtain appraisals on 
expensive items at their own expense.
    (n) Quantities of property not reasonable or useful under the 
circumstances are not compensable. Factors to be considered are 
claimant's living conditions, family size, social obligations, and any 
particular need to have more than average quantities, as well as the 
actual circumstances surrounding the acquisition and loss.
    (o) Intangible Property, such as Bankbooks, Checks, Promissory 
Notes, Stock Certificates, Bonds, Bills of Lading, Warehouse Receipts, 
Baggage Checks, Insurance Policies, Money Orders, and Traveler's Checks 
are not Compensable.
    (p) Property Owned by the United States, Except where the Claimant 
is Responsible to an Agency of the Government other than the DON.
    (q) Contractual coverage. Losses, or any portion thereof, that have 
been recovered or are recoverable pursuant to contract are not 
compensable.



Sec. 751.8  Adjudicating authorities.

    (a) Claims by Navy personnel. (1) The following are authorized to 
adjudicate and authorize payment of personnel claims up to $40,000.00:
    (1) The Judge Advocate General;
    (ii) Deputy Judge Advocate General;
    (iii) Any Assistant Judge Advocate General;
    (iv) The Deputy Assistant Judge Advocate General (Claims and Tort 
Litigation); and
    (v) Commanding officers of Naval Legal Service Offices.

[[Page 404]]

    (2) The Staff Judge Advocate attached to Naval Supply Center, 
Oakland is authorized to adjudicate and pay claims up to $25,000.00.
    (3) The Staff Judge Advocate attached to Naval Station, Panama Canal 
is authorized to adjudicate and pay claims up to $10,000.00.
    (4) The following are authorized to adjudicate and authorize payment 
of personnel claims up to $5,000.00:
    (i) Officers in charge of Naval Legal Service Office Detachments;
    (ii) The Staff Judge Advocate attached to Naval Station, Keflavik; 
and
    (iii) Any personnel attached to a Naval Legal Service Office when 
specifically designated by the commanding officer of that Naval Legal 
Service Office.
    (5) Any individual, when personally designated by the Judge Advocate 
General, may be authorized to adjudicate and authorize payment of 
personnel claims up to any delegated amount, not to exceed $40,000.00.
    (b) Claims by Marine Corps personnel. (1) The following individuals 
are authorized to adjudicate and authorize payment of personnel claims 
up to $40,000.00:
    (i) Commandant of the Marine Corps;
    (ii) Deputy Chief of Staff, Manpower and Reserve Affairs Department;
    (iii) Director, Human Resources Division;
    (iv) Head, Personal Affairs Branch;
    (v) Deputy Head, Personal Affairs Branch;
    (vi) Head, Personnel Claims Section; and
    (vii) Any individual, when personally designated by the Commandant 
of the Marine Corps, may be authorized to adjudicate and authorize 
payment of personnel claims up to any delegated amount, and not to 
exceed $40,000.00.
    (2) The following individuals are authorized to adjudicate and 
authorize payment of personnel claims up to $25,000.00:
    (i) Head, Adjudication Unit;
    (ii) Head, Carrier Recovery Unit; and
    (iii) Head, Administration Unit.



Sec. 751.9  Presentment of claim.

    (a) General. A claim shall be submitted in writing and, if 
practicable, be presented to the claims office or personal property 
office serving the installation where the claimant is stationed, or 
nearest to the point where the loss or damage occurred. If submission in 
accordance with the foregoing is impractical under the circumstances, 
the claim may be submitted in writing to any installation or 
establishment of the Armed Forces which will forward the claim to the 
appropriate Navy or Marine Corps claims office for processing. To 
constitute a filing under this regulation, a claim must be presented in 
writing to one of the military departments. Claims that are incomplete 
will not be refused and shall be logged in as received. Claimants 
submitting such claims, however, shall be informed in writing that 
properly completed forms or necessary substantiation must be received 
within a fixed period of time (normally 30 days), otherwise the claim 
will be denied or paid only in the amount substantiated.
    (b) Statute of limitations. A claim must be presented in writing to 
a military installation within 2 years after it accrues. This 
requirement is statutory and may only be waived if a claim accrues 
during armed conflict, or armed conflict intervenes before the 2 years 
have run, and good cause is shown. In this situation, a claim may be 
presented not later than 2 years after the end of the armed conflict. A 
claim accrues on the day the claimant knows or should know of the loss. 
For losses that occur in shipment of personal property, normally the day 
of delivery or the day the claimant loses entitlement to storage at 
Government expense (whichever occurs first) is the day the claim 
accrues. If a claimant's entitlement to Government storage terminates, 
but the property is later delivered at Government expense, the claim 
accrues on delivery. In computing the 2 years, exclude the first day 
(day of delivery or incident) and include the last day. If the last day 
falls on a non-workday, extend the 2 years to the next workday.
    (c) Substantiation. The claimant is responsible for substantiating 
ownership or possession, the fact of loss or damage, and the value of 
property. Claimants are expected to report losses promptly. The greater 
the delay in reporting a loss, the more substantiation the claimant is 
expected to provide.

[[Page 405]]

    (1) Obviously damaged or missing inventory items that are not 
reported at delivery. Claimants are expected to list missing inventory 
items and obvious damage at time of delivery. Claimants who do not 
should be questioned. Obviously some claimants will simply not notice 
readily apparent damage. If, however, the claimant cannot provide an 
explanation or lacks credibility, payment should be denied based on lack 
of evidence that the item was lost or damaged in shipment.
    (2) Later-discovered shipment loss or damage. A claimant has 70 days 
to unpack, discover, and report loss and damage that is not obvious at 
delivery. In most cases, loss and damage that is discovered later and 
reported in a timely manner should be deemed to have been incurred in 
shipment.
    (3) Damage to POV's in shipment. Persons shipping POV's are expected 
to list damage on DD Form 788 (Private Vehicle Shipping Document for 
Automobile) when they pick up the vehicle. Obvious external damage that 
is not listed is not payable. Damage the claimant could reasonably be 
expected not to notice at the pickup point should be considered if the 
claimant reports the damage to claims personnel within a short time, 
normally a few days, after arriving at the installation.
    (4) Credibility. Most claimants are honest. Most claimants 
objectively attempt to claim only what is due them. These persons are 
entitled to the presumption that what they list is honest, although it 
may not be correct. Some claimants lack credibility and their claims 
require careful scrutiny. Factors that indicate a claimant's credibility 
is questionable include amounts claimed that are exaggerated in 
comparison with the cost of similar items, insignificant or almost 
undetectable damage, very recent purchase dates for most items claimed, 
and statements that appear incredible. Such claimants should be required 
to provide more evidence than is normally expected.
    (5) Inspections. Whenever a question arises about damage to 
property, the best way to determine a proper award is to examine the 
item closely to determine that nature of the damage. For furniture, 
undersurfaces and the edges of drawers and doors should be examined to 
determine whether the material is solid hardwood, fine quality veneer 
over hardwood, veneer over pressed wood, or other types of material. If 
the inspection is conducted at the claimant's quarters, the general 
quality of property should be determined. Claimants should routinely be 
directed to bring in vehicles and small broken items of value such as 
figurines for inspection, and inspections should be conducted on all 
large claims. Observations by repairmen and transportation inspectors 
are very valuable, but on occasion, claims personnel must go out of the 
office and inspect items themselves. Such inspections are necessary to 
reduce the number of reconsiderations and fraudulent claims and are 
invaluable in enabling claims personnel to understand the facts in many 
situations.



Sec. 751.10  Form of claim.

    The claim should be submitted on DD Form 1842 (Claim for Personal 
Property) accompanied by DD Form 1844 (List of Property). If DD Forms 
1842 and 1844 \1\ are not available, any writing will be accepted and 
considered if it asserts a demand for a specific sum and substantially 
describes the facts necessary to support a claim cognizable under these 
regulations. The claim must be signed by a proper claimant (see 
Sec. 751.5) or by a person with a power of attorney for a proper 
claimant. A copy of the power of attorney must be included with the 
claim.
---------------------------------------------------------------------------


    \1\ Copies of these forms may be obtained by contacting the claims 
office or personal property office serving the installation where the 
claimant is stationed, or nearest to the point where the loss or damage 
occurred.
---------------------------------------------------------------------------



Sec. 751.11  Investigation of claim.

    Upon receipt of a claim filed under the Personnel Claims Act, the 
claim shall be stamped with the date and receiving office, and be 
referred to a claims investigating officer. The investigating officer 
shall consider all information and evidence submitted with the claim and 
shall conduct such further investigation as may be necessary and 
appropriate.

[[Page 406]]



Sec. 751.12  Computation of award.

    The Judge Advocate General will periodically publish an Allowance 
List-Depreciation Guide specifying rates of depreciation and maximum 
payments applicable to categories of property. The Allowance List-
Depreciation Guide will be binding on all DON claims personnel. The 
value of the loss is determined and adjusted to reflect payments, 
repairs, or replacement by carriers or insurers, or lost potential 
insurance or carrier recoveries.
    (a) Repair of items. For items that can be economically repaired, 
the cost of repair or an appropriate loss in value is the measure of the 
loss. The cost of repair may be the actual cost, as demonstrated by a 
paid bill, or reasonable estimated costs, as demonstrated by an estimate 
of repair prepared by a person in the business of repairing that type of 
property.
    (1) Loss of value (LOV)--(i) Minor damage not worth repairing. An 
LOV, rather than replacement cost, should be awarded when an item 
suffers minor damage that is not economical to repair but the item 
remains useful for its intended purpose. An LOV is particularly 
appropriate when the item is not of great value and has preexisting 
damage (PED). An LOV is also appropriate to compensate claimants for 
minor damage, such as a chip or surface crack to a figure or knickknack. 
For example, if an inexpensive, fiberboard coffee table with extensive 
PED is scratched, repair of the scratch would exceed the value of the 
table. Under the circumstances, LOV is appropriate.
    (ii) Damage to upholstered furniture. If damage can be repaired 
imperceptibly by cleaning or reweaving, the claimant is only entitled to 
repair cost. If repairs would be somewhat noticeable but the damage is 
to an area not normally seen, repair costs plus an LOV would be 
appropriate. Alternatively, if repairs would be somewhat noticeable but 
the item is of no great value and has already suffered PED, repair costs 
and LOV would be appropriate even if the damage is in an obvious area. 
If, however, repairs would be so noticeable as to destroy the usefulness 
of the item, the item should be reupholstered or replaced. What is 
noticeable will depend on the nature and value of the item, and the 
nature of the damage, and claims personnel should exercise sound 
judgment to avoid being too lenient or too harsh.
    (iii) Cosmetic damage to nondecorative items. LOV should also be 
awarded to compensate claimants for cosmetic damage to items that were 
not purchased for purposes of display or decoration. For example, the 
casing of a washing machine is dented. The washing machine is not 
decorative in nature and still functions perfectly. An LOV, rather than 
replacement of the washing machine or the casing, is the appropriate 
measure of the claimant's loss.
    (2) PED to repairable items. PED is damage to an item that predates 
the incident giving rise to a claim. PED is most commonly identified by 
the use of symbols on household goods shipment inventories. Whenever PED 
is listed on an inventory, claims personnel must determine whether the 
PED did in fact exist and whether the cost of repairing the item 
includes repairing PED. The fact that a claimant signed the inventory 
that listed PED is conclusive evidence that PED did exist unless the 
member has taken written exceptions on the inventory to the carrier's 
description of PED. These findings are essential for recovery purposes. 
Often inspecting the item or calling the repairman who prepared the 
estimate is the only way to make an effective determination.
    (i) Estimates that do not include repair of PED. If the estimate 
does not include repair of PED, even if PED is listed on the inventory, 
no deduction should be made. This fact should be recorded on the 
chronology sheet and on carrier recovery documents.
    (ii) Estimates that include repair of PED. If repair of PED is 
included in the estimate, the percentage attributable to repair of PED 
is deducted.
    (3) Mechanical defects. The Personnel Claims Act only provides 
compensation for losses incurred incident to service. Damage resulting 
from a manufacturer's defect or from normal wear and tear is not 
compensable. Damage to the engine or transmission of an old vehicle 
during shipment is probably due to a mechanical defect. Internal damage 
to appliances, such as old televisions,

[[Page 407]]

is also often due to a mechanical defect, particularly when their is no 
external damage to the item. Claims for internal damage to small 
appliances that are not normally repaired, such as toasters or hair 
dryers, should be assessed based on damage to other items in the carton 
and the shipment, the age of the item, the honesty of the claimant, and 
whether there are loose parts inside. If the evidence suggests rough 
handling caused the damage, a claim for the item should be paid. 
Internal damage to larger items such as televisions or stereos should be 
evaluated by a repairman. Evidence that suggests rough handling, such as 
smashed boards, provides a basis for payment. Evidence that suggests a 
fault in the item, such as burned-out circuits, does not. Deterioration 
because an item in storage was not used for a long time, rather than 
because the item was mishandled or the conditions of storage were 
improper, is also considered due to a mechanical defect.
    (4) Wrinkled clothing. Clothing wrinkled in shipment presents 
special problems. Normally, unless the wrinkling is so severe as to 
amount to actual damage, the cost to press wrinkles out of clothing 
after a move is not compensable. The mere fact that clothing was 
``wadded up'' or ``used as packing material'' is not in itself 
sufficient. The wrinkling must be such that professional pressing is 
necessary to make the clothing usable. This determination will depend on 
the wrinkling and the nature of the material.
    (5) Wet and mildewed items. A claimant has a duty to mitigate 
damages by drying wet items to prevent further deterioration. Items that 
have been wet are not necessarily damaged and claimants who throw them 
away have difficulty substantiating that a loss has occurred. Although a 
deeply seated mildew infestation is almost impossible to remove 
completely, items lightly infested can often be cleaned.
    (b) Replacement of items. A claimant is entitled to the value of 
missing and destroyed items. An item that has sustained damage is 
considered destroyed if it is no longer useful for its intended purpose 
and the cost of repairing it exceeds its value. Value is measured in the 
following ways:
    (1) Similar used items. If there is a regular market for used items 
of that particular type, the loss may be measured by the cost of a 
similar item of similar age. Prices obtained from industry guides or 
estimates from dealers in this type of property are acceptable to 
establish value. There is a regular market on used cars and the value of 
a used automobile is always measured according to the N.A.D.A. Official 
Car Guide rather than the depreciated replacement cost. Similarly, the 
Mobile Home Manufactured Housing Replacement Guide may be used to value 
a destroyed mobile home. Where there is no regular market in a 
particular type of used item, however, estimates from dealers in 
``collector's items'' should be avoided.
    (2) Depreciated replacement cost. This is the normal measure of a 
claimant's loss. A catalog or store price for a new item similar in size 
and quality is depreciated using the Allowance List-Depreciation Guide 
to reflect wear and tear on the missing or destroyed item. The 
replacement cost for identical items--particularly decorative items--
should be used whenever the item is readily available in the local area, 
but a claimant who is eligible to use the Navy Exchange (NEX) and the 
NEX Mail Order Catalog should not be allowed a higher replacement cost 
of an item, such as a television, from a specialty store when the NEX 
carries an item comparable in size, quality, and features from another 
manufacturer.
    (3) ``Fair and reasonable'' (F&R) awards. A fair and reasonable 
award should be used sparingly when other measures would compensate the 
claimant appropriately. Overuse of such awards impedes carrier recovery 
and ``F&R'' should never be used when a more precise measure of damages 
is available. An F&R award for a missing or destroyed item should 
reflect the value of an item similar in quality, description, age, 
condition, and function to the greatest extent possible. An F&R award 
for a damaged item should reflect either the amount a firm would charge 
for repair or the reduced value to the greatest extent possible. 
Whenever such an award is made, the basis for the award should be 
explained on the chronology sheet, in the comments

[[Page 408]]

block of DD Form 1844 (List of Property), or in a separate memorandum. A 
fair and reasonable award may be considered in the following instances:
    (i) The item is obsolete and a simple deduction of a percentage for 
obsolescence is not appropriate.
    (ii) The claimant cannot replace the item in the local area.
    (iii) The claimant cannot replace the item at any cost.
    (iv) Repair costs or replacement costs are excessive for the item 
and an LOV is not appropriate.
    (v) The claimant has substantiated a loss in some amount but has 
failed to substantiate a loss in the amount claimed.
    (c) Depreciation. The Personnel Claims Act is only intended to 
compensate claimants for the fair market value of their loss. Except in 
unusual cases, a used item that has been lost or destroyed is worth less 
than a new item of the same type. The price of a new replacement item 
must be depreciated to award the claimant the value of the lost or 
destroyed item. Average yearly and flat rates of depreciation have been 
established to determine the fair value of used property in various 
categories. These rates are listed in the Allowance-List Depreciation 
Guide. The listed depreciation rate should be adjusted if an item has 
been subjected to greater or lesser wear and tear than normal or if the 
replacement cost the claimant provides is for a used item rather than a 
new one. Yearly depreciation is not taken during periods of storage and 
normally no depreciation is taken on repair costs or on replacement cost 
for items less than 6 months old, excluding the month of purchase and 
the month the claim accrued (but see Sec. 751.12(c)(3)).
    (1) Depreciating replacement parts. No depreciation should be taken 
on replacement parts for damaged items unless these are parts separately 
purchased or normally replaced during the useful life of these items. 
The replacement cost for these latter items should be depreciated. For 
example, the glass top to a table is not normally replaced during the 
useful life of the table and should not be depreciated.
    (2) Depreciating fabric for reupholstery. Fabric is normally 
replaced during the useful life of upholstered furniture. When 
upholstered furniture is reupholstered because the damage is too severe 
to be repaired and an LOV is not appropriate, the cost of new fabric is 
depreciated at a rate of 5 percent per year. If the item has been 
reupholstered since it was purchased, depreciation is measured from the 
date the item was last reupholstered, rather than from the date the item 
was originally purchased. Labor costs are allowed as claimed. If the 
estimate does not list separate costs for fabric and labor, the labor 
costs may be assumed to be 50 percent of the total bill.
    (3) Rapidly depreciating items. Tires, most clothing items, and most 
toys rapidly lose their value, as the high depreciation rate for these 
items reflects. Depreciation should be taken on such items even when 
they are less than 6 months old. As a rule of thumb, half of the normal 
yearly or flat rate depreciation should be taken on such items when they 
are between 3 and 6 months old at the time of loss.
    (4) Obsolescence. Even though depreciation is not taken during 
periods of storage, obsolescence should be claimed on those items that 
have lost value because of changes in style or technological 
innovations.
    (5) Military uniforms. Normally, no depreciation should be taken on 
military uniforms. Depreciation, however, should be taken on military 
uniform items that are being phased out or that belong to persons 
separating from the service. Socks and underwear are not considered 
military uniform items.
    (d) Salvage value. Whenever a claimant has been fully compensated 
for a destroyed item that still has some value, the claimant has the 
option of either retaining the item and having the claims office deduct 
an amount for the salvage value, or turning the item over to the 
Government or to the carrier if the carrier will fully reimburse the 
Government.
    (1) Turn-in to the Government. On all claims, except CONUS domestic 
shipments, if the claimant does not choose to retain the items and 
accepts a reduction in the amount paid on the claim for salvage value, 
the claims office will require the claimant to turn them into a disposal 
unit designated by

[[Page 409]]

the Personal Property Office. Normally, the amount that the Government 
may obtain from selling such items is very low. If the claims office 
determines that the salvage value is less than $25.00, the claimant may 
be advised to dispose of the items by other means, either by throwing 
the item away or by turning it over to a charitable organization. 
Claimants may also be directed to make alternative disposition of items 
that have been refused by the designated disposal unit. This alternate 
disposition must be noted on the chronology sheet that is kept as part 
of the claims file. Claims personnel will not divert such items to 
personal use or use them to furnish Government offices. In determining 
whether an item has salvage value, the size of the item and the distance 
the claimant must travel to turn it in should be considered. A claimant 
must make his own arrangements to transport salvageable items prior to 
payment. Claims personnel should ask the claimant's command to make 
transportation available to assist the claimant in appropriate cases, 
particularly when the item is large or bulky. Sound discretion prohibits 
requiring a claimant living far from a designated disposal unit to turn 
in an item of relatively slight value.
    (2) Turn-in to the carrier. On CONUS domestic shipments, the carrier 
may choose to pick up items for which it will fully reimburse the 
Government. Pursuant to a Joint Military-Industry Memorandum on Salvage, 
items that are hazardous to keep around, such as mildewed items or 
broken glass (except items such as figurines and crystal with a per item 
value of more than $50.00), may be disposed of as the claimant chooses. 
Claimants must retain other items for a maximum of 120 days from the 
date of delivery to allow the carrier to pick them up. Pursuant to this 
memorandum of understanding, the carrier has until the end of the 
inspection period or 30 days after receipt of the demand, whichever is 
greater, to identify such items. Claims offices must identify files in 
which the carrier is entitled to salvage and must process these claims 
for recovery action within 30 days so that the claimant does not dispose 
of salvageable items before the end of the period allotted for carrier 
pick-up.
    (3) Maximum allowances. If the claimant will not be fully 
compensated for an item because a maximum allowance is applied, he will 
not be required to turn in the item.
    (e) Standard abbreviations. The claims examiner's intent should be 
clear and unmistakable to anyone reviewing the remarks section of DD 
Form 1844. The following standardized abbreviations are used in 
completing the remarks section. Other abbreviations should not be used. 
Whenever one or more of these abbreviations will not adequately explain 
how the claimant has been compensated, a brief explanation should be 
inserted in the remarks section, in the comments section on the bottom 
of DD Form 1844, or on the chronology sheet that is kept in each claims 
file.
    (1) AC: Amount claimed. The amount claimed was awarded to the 
claimant. This abbreviation is not used if the claimant has presented an 
estimate of repair.
    (2) AGC: Agreed cost of repairs. The claimant did not present an 
estimate but instead, after discussing the matter with claims personnel, 
entered an amount that represents the claimant's guess as to how much it 
would cost to repair the damaged item. The claims office may accept this 
amount as a fair estimation of the cost of repair based on the amount of 
damage, the value of the item, and the cost of similar repairs in the 
area. A claimant may be allowed up to $50.00 as an AGC without an 
inspection and between $50.00 and $100.00 if claims personnel have 
inspected the item. The use of AGC is an integral part of small claims 
procedures.
    (3) CR: Carrier recovery. The claimant was paid this amount by the 
carrier for the item. The payment is recorded in the remarks column, and 
the total carrier payment is deducted at the bottom of DD Form 1844 in 
the same manner as insurance recovery.
    (4) D: Depreciation. Yearly depreciation was taken on the destroyed 
or missing item in accordance with the appropriate depreciation guide in 
effect at the time of the loss. Deviations from standard rates must be 
explained.

[[Page 410]]

    (5) DV: Depreciated value. A claimant's repair costs exceeded the 
value of the item, so the depreciated value was awarded instead. 
Whenever a claimant claims a repair cost that is very high, relative to 
the age and probable replacement cost, the replacement cost should be 
obtained and the depreciated value determined.
    (6) ER: Estimate of repair. The claimant provided an estimate of 
repair that was used to value the loss. If multiple estimates were 
provided, they should be numbered and referred to as exhibits.
    (7) EX: Exhibit. When numerous documents have been provided to 
substantiate a claim, they should be numbered and referred to as 
exhibits.
    (8) FR: Flat rate depreciation. Flat rate depreciation was taken on 
an item in accordance with the Depreciation Guide in effect at the time 
of the loss. Deviations from the normal rate must be explained.
    (9) F&R: Fair and reasonable. A fair and reasonable award was made 
(see Sec. 751.12(b)(3)).
    (10) LOV: Loss of value. An LOV was awarded (see Sec. 751.5(a)(1)).
    (11) MA: Maximum allowance. The adjudicated value, listed in the 
``Amount Allowed'' column, exceeds a maximum allowance. The amount in 
excess of the maximum allowance is subtracted at the bottom of the DD 
Form 1844.
    (12) N/P: Not payable. The item is not payable. The reason for this 
comment should be noted (i.e., ``not substantiated'').
    (13) OBS: Obsolescence. A percentage was deducted for obsolescence.
    (14) PCR: Lost potential carrier recovery. A deduction was made for 
lost PCR.
    (15) PED: Preexisting damage. A deduction was made for PED.
    (16) PP: Purchase price. The purchase price was used to value the 
loss. Normally, the purchase price is not an adequate measure of the 
claimant's loss. If, however, the claimant used the replacement cost of 
a dissimilar item or otherwise failed to substantiate the replacement 
cost, a recent purchase price may be used at the discretion of claims 
personnel, if a true replacement cost is not available.
    (17) NEX: Navy Exchange replacement cost. A replacement from the NEX 
was used.
    (18) RC: Replacement cost. A replacement cost was used. The store or 
catalog from which the replacement cost was taken should be listed.
    (19) SV/N: Item has no salvage value. A destroyed item was 
determined to have no salvage value.
    (20) SV/R: Salvage value, item retained. A destroyed item was 
determined to have salvage value and the claimant chose to keep the 
item. Accordingly, a deduction was made for the salvage value.
    (21) SV/T: Salvage value, item turned in. A destroyed item was 
determined to have salvage value and the claimant chose not to keep the 
item. If the item is part of a CONUS domestic shipment, the claimant 
must keep it for the carrier to pick up. Otherwise, the claimant must 
turn the item in prior to payment on the claim.
    (f) Sets. Normally, when component parts of a set are missing or 
destroyed, the claimant is only entitled to the replacement cost of the 
missing or destroyed components. In some instances, however, a claimant 
would be entitled to replacement of the entire set or to an additional 
LOV. Some claimants will assert that all of the items in a room are part 
of a set. Pieces sold separately, however, are ordinarily not considered 
parts of a set, and pieces that merely complement other items, such as a 
loveseat purchased to complement a particular hutch, are never 
considered part of a set. When a component part of a set is missing or 
destroyed and cannot be replaced with a matching item, or has to be 
repaired so that it no longer matches other component parts of the set, 
the following rules apply:
    (1) The set is no longer useful for its intended purpose. When a set 
is no longer useful for its intended purpose because component parts are 
missing or destroyed the entire set may be replaced. Note that several 
firms will match discontinued sets of china and crystal and that 
replacement of the set is not authorized if replacement items can be 
thus obtained. Generally, with china and crystal the value of the set as 
a whole is not destroyed unless more

[[Page 411]]

than 25 percent of the place settings are unusable. Exceptions may be 
made if the claimant can demonstrate a particular need for a certain 
number of place settings because of family size or social obligations. 
In those rare instances when an entire set is replaced, the claimant 
will be required to turn in undamaged pieces.
    (2) The set is still useful for its intended purpose. When missing 
pieces cannot be matched and there is measurable decrease in the value 
of the set, but the set is still useful for its intended purpose, the 
claimant is awarded the value of the missing pieces plus an amount for 
the diminution in value of the set as a whole. The amount awarded as an 
LOV will vary depending on the exact circumstances.
    (3) Mattresses and upholstered furniture are recovered. A mattress 
and box spring set is covered during normal use. Such sets are still 
useful for their intended purpose if one piece of the set has to be 
recovered in a different fabric. No award will be made for the undamaged 
piece. When one piece of a set of upholstered furniture suffers damage 
that cannot be repaired or recovered in matching fabric, recovering the 
entire set or recovering the damaged piece plus LOV should be 
considered. Factors to take into account include the value of the set, 
PED to the set, the nature of the current damage, and the extent to 
which the claimant's furniture is already mismatched.
    (g) Mobile homes. Mobile homes present special problems. Most mobile 
homes, particularly larger ones, are not built to withstand the stress 
of multiple long moves. While the Mobile Home One-Time Only rate 
solicitation program, effective 1 November 1987, may have reduced the 
incidence of loss and damage by encouraging carriers to use extra axles 
when necessary, mobile home shipments can result in enormous, 
uncompensated losses for servicemembers and present unusual difficulties 
for claims adjudicators. Because the risk is so great, claims offices 
must coordinate with their servicing transportation offices to ensure 
both that servicemembers shipping mobile homes are advised of the risk 
and of their responsibilities, and that the transportation office does 
not authorize shipment of a mobile home that has not been placed in a 
fit condition to be shipped.
    (1) Transportation counseling prior to shipment. Servicemembers 
should be advised of the following:
    (i) They are responsible for placing the mobile home and its tires, 
tubes, frames, and other parts in fit condition to ship and for loading 
the mobile home to withstand the stresses of normal transportation. They 
will not be compensated for any damage that results either from a latent 
defect in the construction of the mobile home (except when the carrier 
is aware of the defect and the servicemember is not) or from their 
failure to place the mobile home in fit condition to ship.
    (ii) They are responsible for paying for necessary repairs en route. 
Such repairs can amount to several hundred or even several thousand 
dollars, and some mobile homes have been left in storage at the 
servicemember's expense hundreds of miles from destination because the 
owner could not pay for necessary repairs.
    (iii) They are responsible for resealing the roof and 
weatherproofing the mobile home after delivery. The cost of this is not 
compensable, nor is any damage caused by the servicemember's failure to 
have it done.
    (iv) They are responsible for removing obstructions, grading the 
roadway, or otherwise preparing the site to make it accessible for the 
carrier's equipment at both origin and destination.
    (v) Because of the risk that damage will result for which they 
cannot be compensated, servicemembers should strongly consider 
purchasing private insurance coverage. A claimant usually must purchase 
separate insurance for property shipped inside the mobile home and most 
mobile home carriers will sell some sort of insurance coverage for 
damage to the mobile home itself. Often, when a mobile home has been 
moved repeatedly, the risk of uncompensated loss is so high that the 
servicemember should consider selling the home rather than attempting to 
ship it.
    (2) Inspection Prior to Shipment. Transportation personnel should 
inspect the

[[Page 412]]

home prior to shipment in all instances. All defects should be recorded. 
In particular:
    (i) A mobile home should not be shipped with a servicemember's 
furniture and other household goods inside. The maximum safe weight of 
appliances and additional property is very low. An overweight mobile 
home tends to blow tires and break apart during shipment. Servicemembers 
should be advised long before shipment that they will have to make other 
arrangements for shipping such items at their own expense.
    (ii) A mobile home should never be shipped with defects in the steel 
frame or tow hitch.
    (iii) The condition of all tires should be checked and recorded. 
Some carriers submit huge bills for ``blown'' tires during shipment.
    (iv) Structural changes to the interior of the home, particularly 
those that involve cutting through beams, should be examined closely and 
a civil engineer should be called in to render an opinion. Frequently, 
it is not safe to ship mobile homes in which the claimant has altered 
the interior framing.
    (3) Latent Defects. Many carriers will attempt to escape liability 
by attributing all damage to latent manufacturing defects. A loss due to 
such a defect, like a loss due to any other mechanical defect, is not 
considered incident to service. When an engineer's report or other 
evidence shows that damage was indeed caused by a defect rather than by 
the carrier's failure to take the necessary care, the following rules 
apply:
    (i) If both the carrier and the claimant knew or should have known 
of the defect, and if the claimant took no corrective action and had the 
mobile home shipped anyway, the claim is not payable.
    (ii) If the carrier knew or should have known of the defect, and the 
claimant could not reasonably have been expected to know of it, the 
claim is payable and liability should be pursued against the carrier.
    (iii) If neither the claimant nor the carrier could reasonably be 
expected to know of the defect, the claim is not payable.
    (4) Substantiation of a claim. Prior to adjudication of such claims, 
the mobile home should be inspected and the following evidence obtained, 
if possible:
    (i) DD Form 1800 (Mobile Home Shipment Inspection at Destination). 
This document shows the condition of the home at origin prior to 
shipment. This document is prepared by the Transportation Office (TO) 
and is signed by the servicemember, the carrier's representative, and 
the Government inspector. It is vital and a claim should not be paid 
without it. At destination, damages noted at delivery should be 
annotated and the form dated and signed by the driver and the 
servicemember. Damages may be listed on this form or on the DD Form 1840 
(Joint Statement of Loss or Damage at Delivery).
    (ii) DD Form 1863 (Accessorial Services-Mobile Home). For shipments 
after 1 November 1987, DD Form 1863 lists all services the carrier is 
required to provide, including line-haul, payment of tolls, 
overdimension charges, permits and licenses, provision of anti-sway 
devices, axles with wheels and tires, temporary lights, and escort 
services. All costs and services may not appear on the GBL. For 
shipments prior to 1 November 1987, damages may also be listed on this 
form.
    (iii) DD Form 1840/1840R. Beginning 1 November 1987, later-
discovered damages must be listed on DD Form 1840R and dispatched to the 
carrier within 75 days of delivery. Timely notice on mobile home 
shipments differs slightly from such notice on other shipments. Item 306 
of the carrier's rate solicitation provides that ``upon delivery by the 
carrier, all loss of or damage to the mobile home shall be noted on the 
delivery document, the inventory form, the DD Form 1800, and/or the DD 
Form 1840. Late discovered loss or damage, including personal property 
within the mobile home, will be noted on the DD Form 1840R not later 
than 75 days following delivery and shall be accepted by the carrier as 
overcoming the presumption of correctness of delivery receipt.''
    (iv) DD Form 1412 (Inventory of Items Shipped in Housetrailer). 
Prior to 1 November 1987, the servicemember prepared DD Form 1412. After 
1 November 1987, the carrier is required to prepare this in coordination 
with the servicemember.

[[Page 413]]

    (v) DD Form 1841. If a Government representative does not inspect 
the mobile home at delivery, an inspection should be requested.
    (vi) Driver's statement. The mobile home carrier should be requested 
to provide (within 14 days) a statement from the driver of the towing 
vehicle explaining the circumstances surrounding the damage as well as 
detailed travel particulars. If the mobile home carrier does not 
respond, the file should be so annotated. Such statements are often 
self-serving and should be reviewed critically to determine whether the 
carrier is attributing damage to a latent defect.
    (vii) Owner's statement. The claimant should provide a statement 
concerning the age of the mobile home, the date and place purchased, any 
prior damage or repairs, all prior moves, and prior claims.
    (viii) Estimates of repair. When possible, the claimant should 
obtain two estimates of repair from firms in the business of repairing, 
rather than selling, mobile homes. Such estimates should list the 
approximate value of the home before and after damage, a detailed 
breakdown of the repairs needed and their cost, and the cause of damage.
    (ix) Engineer's statement. Where the facts indicate the possibility 
of a latent defect, the claimant should be assisted in obtaining a 
statement from a qualified engineer or vehicle maintenance professional 
with expertise in mobile homes explaining the cause of damage. The 
claims office should coordinate in advance with facilities engineers or 
with local reserve units with engineering expertise to provide such 
inspection where possible.
    (5) Compensable damage. In adjudicating the claim, the claimant may 
be paid for loss of or damage to the mobile home except when the damage 
is due to a latent defect, to the servicemember's failure to place the 
home in fit condition to ship, or to the servicemember's failure to have 
the roof resealed. The servicemember may also be compensated for the 
reasonable cost of repair estimates provided by firms in the business of 
mobile home repair and of opinions prepared by qualified engineers. The 
claimant may not be compensated for services the carrier failed to 
perform or performed improperly or for other incidental expenses. The 
claimant should be referred to the transportation office for these. Such 
services (listed on DD Form 1843 and the GBL correction notice) include:
    (i) Escort or pilot services, ferry fees, tolls, permits, 
overdimension charges, or taxes.
    (ii) Storage costs or parking fees en route.
    (iii) Expand charges and charges for anti-sway devices, brakes and 
brake repairs, or adding or replacing axles, tubes, or tires.
    (iv) Wrecker service.
    (v)Connecting or disconnecting utilities.
    (vi) Blocking, unblocking, or removing or installing skirting.
    (vii) The cost of separating or reassembling and resealing a double-
wide mobile home.
    (6) Carrier liability and attempted waivers. In the absence of 
additional coverage, the carrier's maximum liability for personal 
property shipped with the mobile home is $250.00. The carrier is fully 
liable for damages to the mobile home itself. Carriers are also liable 
for damage caused by third parties with whom they contract, such as 
wrecker services. Some carriers may still try to obtain waivers, from 
the servicemember. A waiver signed by the servicemember, however, is not 
binding on the United States. The Navy is the contracting party and the 
owner has not authority to sign a waiver agreement or any other document 
purporting to exempt the carrier from the liability imposed under the 
GBL.



Sec. 751.13  Payments and collections.

    Payment of approved personnel claims and deposit of checks received 
from carriers, contractors, insurers, or members will be made by the 
Navy or Marine Corps disbursing officer serving the adjudicating 
authority. Payments will be charged to funds made available to the 
adjudicating authority for this purpose. Credit for collections will be 
to the accounting data specified in Navy Comptroller Manual section 
046370, paragraph 2 or in superseding messages, if applicable.

[[Page 414]]



Sec. 751.14  Partial payments.

    (a) Partial payments when hardship exists. When claimants need funds 
to feed, clothe, or house themselves and/or their families as a result 
of sustaining a compensable loss, the adjudicating authority may 
authorize a partial payment of an appropriate amount, normally one-half 
of the estimated total payment. When a partial payment is made, a copy 
of the payment voucher and all other information related to the partial 
payment shall be placed in the claim file. Action shall be taken to 
ensure the amount of the partial payment is deducted from the 
adjudicated value of the claim when final payment is made.
    (b) Marine hardship payments. The Marine claimant's Transportation 
Management Office (TMO) shall ensure compliance with all requirements of 
Sec. 751.14(a), and may request authority for payment by message from 
the Commandant of the Marine Corps (MHP-40).
    (c) Effect of partial payment. Partial payments are to be subtracted 
from the adjudicated value of the claim before payment of the balance 
due. Overpayments are to be promptly recouped.



Sec. 751.15  Reconsideration and appeal.

    (a) General. When a claim is denied either in whole or in part, the 
claimant shall be given written notification of a the initial 
adjudication and of the right to submit a written request for 
reconsideration to the original adjudicating authority within 6 months 
from the date the claimant receives notice of the initial adjudication 
of the claim. If a claimant requests reconsideration and if it is 
determined that the original action was erroneous or incorrect, it shall 
be modified and, when appropriate, a supplemental payment shall be 
approved. If full additional payment is not granted, the file shall be 
forwarded for reconsideration to the next higher adjudicating authority. 
The next higher adjudicating authority may be the commanding officer of 
the Naval Legal Service Office if a properly delegated subordinate has 
acted initially on the claim. For claims originally adjudicated by the 
commanding offer, the files will be forwarded to the Judge Advocate 
General for final action. The claimant shall be notified of this action 
either by letter or by copy of the letter forwarding the file to higher 
adjudicating authority. The forwarding letter shall include a synopsis 
of action taken on the file and reasons for the action or denial, as 
well as a recommendation of further action or denial.
    (b) Files forwarded to JAG. For files forwarded to JAG in accordance 
with Sec. 751.15(a), the forwarding endorsement shall include the 
specific reasons why the requested relief was not granted and shall 
address the specific points or complaints raised by the clamant's 
request for reconsideration.
    (c) Appeals procedure for claims submitted by Marine Corps 
personnel. Where any of the Marine Corps adjudication authorities listed 
in Sec. 751.8(b) fail to grant the relief requested, or otherwise 
resolve the claim the satisfaction of the claimant, the request for 
reconsideration shall be forwarded together with the entire original 
file and the adjudicating authority's recommendation, to the Judge 
Advocate General.



Secs. 751.16-751.20  [Reserved]



          Subpart B--Demand On Carrier, Contractor, or Insurer



Sec. 751.21  Scope of subpart B.

    Subpart B addresses the recovery process for loss or damage 
occurring during the storage or transport of household goods and other 
personal property for which military personnel and civilian employees 
were paid under the provisions of 31 U.S.C. 3721. The authority for 
pursuing recovery action is found at 31 U.S.C. 3711.



Sec. 751.22  Carrier recovery: In general.

    (a) Responsibility. Recovery of amounts due for personal property 
lost or damaged while in transit or in storage at Government expense is 
a joint Personal Property Office/Naval Legal Service Office 
responsibility. In order to establish liability and to effectively 
pursue a recovery claim against a carrier, warehouseman, or other third 
party, it is essential that all required action be accomplished in an 
expeditious manner. Failure of the property

[[Page 415]]

owner or any Government agent to exercise diligence in the performance 
of duties may render collection of the claim impossible and thereby 
deprive the Government of rightful revenue. Claims approving and 
settlement authorities will ensure that all actions required of the 
property owner and naval personnel are accomplished promptly.
    (b) Elements of collection. There are four elements in the 
successful assertion and collection of a recovery claim. They are:
    (1) Proving that a transit loss occurred;
    (2) Determining who had responsibility for the goods at the time of 
the transit loss;
    (3) Calculating the amount of damages; and
    (4) Pursuing the responsible party or parties vigorously.



Sec. 751.23  Responsibilities.

    (a) Notice of loss. Claims office personnel must ensure that Notice 
of Loss or Damage, DD Form 1840R, is properly completed and dispatched 
to the liable third party or parties within 75 days of delivery of the 
property.
    (b) Counseling of claimant. Claims office personnel should 
coordinate with the local personal property office to ensure proper 
counseling regarding potential claim procedures.
    (c) Documents. Claims office personnel must obtain from the claimant 
or from the transportation office the following documents needed to 
process recovery actions:
    (1) A copy of the GBL or other document used for shipment or 
storage.
    (2) A copy of the inventory.
    (3) A copy of the DD Form 1840 and DD Form 1840R.
    (4) Where storage in transit was extended from 180 days to 270 days, 
a copy of the authorization from the transportation office allowing this 
extension at Government expense.
    (5) Where storage converted from Government paid storage to storage 
at owner's expense, a copy of the claimant's contract with the 
warehouse.
    (6) When necessary, a copy of DD Form 1164, Service Order for 
Personal Property, from the transportation office.
    (7) When necessary, DD Form 619-1, Statement of Accessorial Services 
Performed, from the transportation office.
    (d) Carrier inspection. Claims office personnel should inform 
claimants that the carrier has the right to inspect damaged goods within 
75 days of delivery, or 45 days of dispatch of DD Form 1840R, whichever 
is later, and that damaged items must be held out for carrier inspection 
during that period. Essential items such as washer, dryer, television 
etc., may be repaired prior to that time if necessary.
    (e) Repair estimates. Claims personnel must ensure that repair 
estimates describe the specific location and damage claimed and that the 
same damage is claimed on DD Form 1844, Schedule of Property and Claims 
Analysis Chart. Repair estimates that merely note ``refinished'' or 
``repaired'' are not acceptable.
    (f) DD Form 1844. Claims personnel must ensure that DD Form 1844 is 
properly completed with the nature and extent of the loss or damage to 
each item fully described, the correct inventory numbers supplied, and 
correct item weights utilized from the Military-Industry Table of 
Weights (when these weights are required for the code of service 
involved).
    (g) Demands on third parties. Claims personnel must ensure that 
written demands against appropriate third parties are prepared as 
described in Sec. 751.26 and Sec. 751.27. No demand will be made where 
it conclusively appears that the loss or damage was caused solely by 
Government employees or where a demand would otherwise be clearly 
improper under the circumstances. If it is determined that a demand is 
not required, a brief written statement setting forth the basis for this 
determination will be included on the chronology sheet. Pursuant to the 
Joint Military-Industry Agreement on Claims of $25.00 or Less, claims of 
$25.00 or less will not be pursued because administrative costs outweigh 
recovery proceeds.



Sec. 751.24  Notice of loss or damage.

    (a) Exceptions. The claimant is required to take exceptions and note 
any loss of damage at the time of delivery on the DD Form 1840 (Joint 
Statement of Loss or Damage at Delivery). Later

[[Page 416]]

discovered damage must be noted on the DD Form 1840R (Notice of Loss or 
Damage) and delivered to the claims office or Personal Property Office 
within 70 days of delivery. Failure to take exceptions at delivery and 
note and report later discovered damage will result in deduction on any 
lost potential carrier recovery from payment of the claim. Failure to 
note on the DD Form 1840 items missing at the time of delivery may 
result in denial of claims for those items.
    (b) DD Form 1840/1840R. The DD Form 1840/1840R is printed in carbon 
sets of five with DD Form 1840 on the front side and DD Form 1840R on 
the reverse side. DD Form 1840/1840R is provided by the carrier to the 
member at delivery. Carriers were required to use this revised DD Form 
1840/1840R beginning 15 August 1988 for international shipments and 15 
September 1988 for domestic shipments. This is the only document the 
carriers will accept for reporting loss and damage to household goods. 
The requirement to list all know loss and damage at the time of delivery 
on the DD Form 1840 is a joint responsibility of the claimant and the 
carrier. If the carrier fails to give the claimant a DD Form 1840 at the 
time of the delivery, the carrier is liable for all damage and does not 
have to be notified in the 75-day timeframe
    (c) Military-Industry Memorandum of Understanding on Loss and Damage 
Rules. The Military-Industry Memorandum of Understanding on Loss and 
Damage Rules became effective in 1985 with the implementation of the new 
DD Form 1840/1840R. This document should be thoroughly studied and 
completely understood.



Sec. 751.25  Types of shipments and liability involved.

    (a) Codes 1 and 2 (domestic including Alaska). Increased released 
valuation, also referred to as ``Basic Coverage,'' became effective 
within CONUS and Alaska on 1 April 1987 for intrastate shipments 
(shipments within a single State), and on 1 May 1987 for interstate 
shipments (shipments from one State to another). For Codes 1 and 2 
shipments picked up after these dates, the carrier's released valuation 
(the carrier's maximum liability for loss and damage) increased from 
$.60 per pound per article to $1.25 multiplied by the net weight of the 
shipment ($2.50 for shipments to and from Alaska). For Codes 1 and 2 
shipments picked up prior to these dates, carrier liability remains at 
$.60 per pound per article and is calculated the same as for Code 4 
shipments. There are also two higher levels of coverage available in 
which the owner pays the difference between the basic coverage and the 
higher level requested: High or higher increased released valuation 
(Option 1) and full replacement protection (Option 2). These higher 
carrier released valuation rates only apply to Codes 1 and 2 shipments 
and they do not affect the liability of a non-temporary storage (NTS) 
warehouse which remains at $50.00 per line item.
    (1) Increased Released Valuation (IRV). IRV is the basic valuation 
for service Codes 1 and 2 and is fully paid by the Government. If the 
claimant is due additional recovery money, the words ``claimant due 
carrier recovery'' must be added on the claims file to ensure the 
recovered amount is provided to the claimant if eligible. IRV is not 
reflected on the GBL by an special language. For Codes 1 and 2 shipments 
picked up after the effective dates mentioned above, the carrier's 
released valuation is $1.25 multiplied by the new weight of the shipment 
($2.50 multiplied times the net weight of the shipment for shipments to 
and from Alaska). For example, if the weight of an IRV shipment moved 
from Kansas to New York is 10,000 pounds, the most the carrier could be 
held liable for would be $12,500 (10,000 pounds times $1.25=$12,500). If 
the same shipment was moved from Alaska to New York, the maximum carrier 
liability would instead be $25,000 (10,000 pounds times $2.50=$25,000).
    (2) Higher Increased Released Valuation (Option 1). This type of 
coverage may be purchased by an owner who desires protection for items 
whose value exceeds a maximum allowance or for a shipment whose value 
exceeds the statutory maximum. If the claimant is due additional 
recovery money, the words ``claimant due carrier recovery'' must be 
added in the claims file. Option 1 must be annotated on the original

[[Page 417]]

GBL. A GBL correction notice is acceptable only if the carrier or his 
agent has notice of the correction before pick-up. Option 1 may be 
listed in block 27 or block 30 either as a lump sum, such as ``Option 
1--$30,000,'' or as a multiple, such as ``Option 1--$3.00 times the net 
weight.'' The carrier's maximum liability is whatever higher valuation 
the claimant places on the shipment. For example: The owner of a 10,000 
pound shipment requests Option 1 coverage of $30,000.00 and has this 
listed on the GBL. The carrier's maximum liability is $30,000.00. Under 
basic coverage, the carrier's maximum liability for this shipment would 
only be $12,500.00. The claimant must initially file a claim with the 
carrier. The Government will only accept a claim if the carrier denies 
the claim, if delay would cause hardship, or if the carrier fails to 
satisfactorily settle the claim within 30 days. The claim is adjudicated 
in the normal fashion, applying depreciation and maximum allowances. 
Demand is then made on the carrier for the full value of the item lost 
or damaged. When recovery is effected, the Government keeps an amount 
equal to that paid to the claimant and disperses the remaining recovery 
to the claimant.
    (3) Full Replacement Protection (Option 2). This type of coverage 
may be purchased by an owner who desires protection for items whose 
value exceeds a maximum allowance, for a shipment whose value exceeds 
the statutory maximum, or because the claimant does not wish to have the 
replacement cost of destroyed or missing items depreciated to their fair 
market value. The minimum coverage available under Full Replacement 
Protection is $21,000.00 or $3.50 times the net weight of the shipment, 
whichever is greater. A member who chooses this coverage must initially 
file a claim with the carrier, allowing the carrier the right to repair 
or replace items. The Government will only accept a claim if the carrier 
denies the claim, if delay would cause hardship, or if the carrier fails 
to satisfactorily settle the claim within 30 days. If a claim is 
submitted to the Government, the claim is adjudicated normally, applying 
depreciation and maximum allowances. The claimant should be informed 
that any additional amount will be forwarded after recovery action is 
effected against the carrier. Option 2 must be annotated on the original 
GBL. A GBL correction notice is acceptable only if the carrier or his 
agent receives notice of the correction before pick-up. Option 2 may be 
listed in block 27 or block 30 either as a lump sum, such as ``Full 
Replacement Protection--$50,000.00,'' or as a multiple, such as ``Full 
Replacement Protection--$3.50 times the net weight.'' The carrier's 
maximum liability is the higher valuation the claimant places on the 
shipment. For example: The owner of a 10,000 pound shipment requests 
full replacement protection of $3.50 times the net weight of the 
shipment and has this listed on the GBL. The carrier's maximum liability 
is $35,000.00 (10,000 pounds times $3.50=$35,000.00). Under basic 
coverage, the carrier's maximum liability for this shipment would only 
be $12,500.00.
    (4) Calculating liability on IRV, Option 1, and Option 2 shipments. 
(i) Under IRV and Option 1, the carrier's maximum liability for loss or 
damage to a single item is limited to the repair cost or depreciated 
replacement cost of the item. Under Option 2, the carrier's maximum 
liability for a single item is the repair cost or the undepreciated 
replacement cost of the item. The carrier's maximum liability for the 
entire claim is limited to the released valuation, which is either the 
lump sum declared by the owner or the net weight of the shipment times 
the applicable multiplier. The net weight of the shipment is normally 
listed in block 4 of DD Form 1840 (block 3 of DD Form 1840 dated 
September 84). If the net weight is missing, it should be obtained from 
the transportation office.
    (ii) In completing the carrier liability section of DD Form 1844, 
ignore the Joint Military-Industry Table of Weights. Assert the amount 
adjudicated on each item for which the carrier is liable in the carrier 
liability column. Where the Government payment was limited by 
application of a maximum allowance (or by depreciation on full 
replacement cost claims), assert the full, substantiated value. Total 
the amounts for which the carrier is liable in the carrier liability 
column. If this

[[Page 418]]

total exceeds the maximum carrier liability for the entire claim, the 
maximum carrier liability should be entered on DD Form 1843 as the 
amount demanded. Do not, however, change the total of the amounts for 
which the carrier is liable on the DD Form 1844.
    (iii) If the amount the claimant receives from the Government is 
limited by application of a maximum allowance (or by depreciation on 
full replacement protection claims) leaving the claimant with an 
uncompensated loss, the claimant may be due reimbursement from recovery 
money after recovery is effected on the claim. Claimants with 
uncompensated losses who have basic coverage are only entitled to 
reimbursement from recovery money if the amount recovered exceeds the 
amount paid by the Government (unless the loss was in excess of the 
statutory maximum). Claimants with uncompensated losses who purchased 
Option 1 or Option 2 are entitled to reimbursement up to the value of 
their additional coverage. Such files should be marked: ``claimant due 
carrier recovery.'' The claimant should be informed that recovery from 
the carrier is dependent on the amount and quality of the substantiation 
the claimant provided, and that the actual recovery may be less than 
anticipated. The claimant should further be informed that considerable 
time will elapse before recovery is effected and reimbursement made. 
Such claims should be processed for recovery action as expeditiously as 
possible.
    (b) Codes 4 and 6 (International and Hawaii). On Codes 4 and 6, 
international GBL shipments, carrier liability is computed at $.60 per 
pound multiplied by the weight of the article or carton as prescribed by 
the Joint Military-Industry Table of Weights. In cases where the entire 
shipment is lost or damaged, liability will be computed on the net 
weight of the shipment times $.60 per pound. The net weight of the 
shipment may be obtained from the origin transportation office.
    (c) Codes 5 and T (International and Hawaii). (1) A Code 5 shipment 
is the movement of household goods in Military Traffic Management 
Command (MTMC) approved door-to-door shipping containers (wooden boxes) 
and where a carrier provides line-haul service from origin residence to 
a military ocean terminal. The Government, through the Military Sealift 
Command (MSC), provides ocean transportation to the designated port of 
discharge, and the carrier provides line-haul service to the destination 
residence.
    (2) A Code T shipment is the movement of household goods where the 
carrier provides containerization at origin and transportation to the 
designated Military Airlift Command (MAC) terminal. MAC provides 
terminal services at both origin and destination, and air transportation 
to a designated MAC terminal. The carrier provides transportation to the 
destination residence.
    (3) On Code 5 and T shipments, it is often difficult to decide 
whether the Government or the carrier was in actual custody of the 
shipment at the time of loss or damage. In order to reduce liability 
disputes in such situations, a 50-percent compromise agreement between 
industry and the military has been reached.
    (4) When the 50-percent compromise is appropriate or applicable, the 
DD Form 1844 is prepared in the normal fashion utilizing weights 
indicated in the Military-Industry Table of Weights multiplied by $.60 
per pound. Two different sums should be listed for carrier liability at 
the bottom of the DD Form 1844, the amount of liability due under the 
50-percent compromise and the full amount that will be offset if carrier 
fails to pay, e.g., ``$100.00 Code T, $200.00 Full Liability.'' This 
same computation should be reflected in the ``amount of claim'' box on 
DD Form 1843 (Demand on Carrier/Contractor). If a carrier refuses to 
make a satisfactory settlement or fails to make a timely response to the 
demand, the carrier's full liability will be collected.
    (d) Codes 7, 8, and J (Unaccompanied Baggage Shipments). Gross 
Weight Rules. Government payment to the carrier for transportation of 
unaccompanied baggage (Codes 7, 8, and J) is based upon gross weight of 
the shipment. Unless the inventory is prepared as a ``Proper Household 
Goods Descriptive Inventory,'' computation of carrier liability for loss 
or damage incurred in a Code 7, 8, or J shipment will also be based upon 
gross weight. Gross weight is defined as

[[Page 419]]

the total weight of all articles, including necessary packing materials 
and packing containers. The shipping container is the external crate 
(tri-wall or other Government approved container) into which individual 
articles and/or packing cartons are placed. For the majority of claims, 
liability will be asserted on gross weight of the container.
    (2) Baggage shipments prepared using a ``Proper Household Goods 
Descriptive Inventory.'' The Joint Military/Industry Table of Weights 
will apply to Code 7, 8, or J unaccompanied baggage shipments if the 
inventory has been prepared as a ``Proper Household Goods Descriptive 
Inventory,'' in accordance with Paragraph 54 of the Tender of Service 
for Personal Property Household Goods and Unaccompanied Baggage (DOD 
4500.34-R, appendix A). A properly prepared inventory should reflect the 
size of each individual carton, give a general description of carton 
contents, and note preexisting damage. The complete inventory, not just 
a portion, must have been prepared as a proper household goods 
inventory. If an inventory is only partially prepared as a proper 
household goods descriptive inventory, gross weight will be used.
    (e) Local moves and NTS. There are basically two types of NTS 
shipments: A direct delivery from NTS by the same company that stored 
the property and a delivery from NTS which was picked up at the 
warehouse by a GBL carrier. Direct deliveries of household goods from 
NTS are often erroneously construed as local moves. It is sometimes 
difficult to tell the difference between the two since a shipment 
delivered from NTS by the warehouseman is usually also a short distance 
(local) move. The type of contract involved determines whether or not 
the shipment is considered a local move, a direct delivery from NTS, or 
a carrier delivery picked up from NTS. These distinctions are important 
since different liability is involved.
    (1) Local move. A local move is a shipment performed under a local 
contract that authorizes property to be moved from one residence to 
another within a specified area (usually a move from off base to on 
base, or the reverse). The contract for a local move is the purchase 
order prepared by the transportation office which lists the services 
required of the carrier in accordance with the provisions of the Federal 
Acquisition Regulation (FAR). The purchase order usually includes 
packing and picking up the goods at origin residence or from storage, 
transporting the goods within a designated distance, and delivering and 
unpacking the goods at destination. All these services are performed 
under the authority of one purchase order and will usually be 
accomplished the same day or within a few days of pickup. Timely notice 
must exist in order to pursue carrier recovery and liability is usually 
based on a released valuation of $.60 per pound per article. The Joint 
Military/Industry Table of Weights is used to calculate liability. There 
is no insurance coverage required on local contractors; if the local 
contractor is no longer in business or bankrupt, the file may be closed.
    (2) Direct delivery from NTS. In circumstances where one contractor 
is responsible for pick-up, NTS, and delivery of the shipment, liability 
for loss or damage is assessed against that carrier. Nontemporary 
storage of household goods requires completion of DD Form 1164 (Service 
Order for Personal Property) in accordance with the provisions of the 
Basic Ordering Agreement (BOA). The ``handling-in'' portion of the 
shipment is accomplished by issuance of the Initial Service Order, DD 
Form 1164. The goods are usually stored for a period of 6 months to 4 
years. The ``handling-out'' and post-storage services are accomplished 
by a supplemental service order. These are usually long term storage, 
short distance moves processed under the authority of at least two 
documents: the initial service order and the supplemental service order. 
The BOA states that the contractor shall be liable ``in an amount not 
exceeding fifty dollars ($50.00) per article or package listed on the 
warehouse receipt or inventory form'' (i.e., $50.00 per inventory line 
item).
    (3) Carrier delivery picked up from NTS. The NTS portion of the 
shipment requires completion of an Initial Service Order, DD Form 1164, 
to accomplish the ``handling-in'' of the goods into the warehouse for 
storage, as prescribed by

[[Page 420]]

the provisions of the BOA. When storage is terminated, the ``handling-
out'' and post-storage services are accomplished by issuance of a GBL in 
accordance with the tender of service. The GBL may be issued to a 
different company or in some cases to the same company that stored the 
goods. These are long-term storage, long-distance moves processed under 
the authority of two documents: the initial service order and the GBL. 
Liability is assessed entirely against the delivering carrier at 
whatever rate is appropriate for the code of service involved, unless 
the carrier prepares an exception sheet (rider) noting damage or loss at 
the time the goods are picked up from the warehouse. The exception sheet 
must be signed by a warehouse representative. If a valid exception sheet 
exists, liability for items noted on the exception sheet is assessed 
against the NTS warehouse at $50.00 per inventory line item. An 
exception sheet should be prepared by the GBL carrier who picks up the 
goods from NTS even if that carrier is the same company that stored the 
goods. This is necessary in order to relieve the carrier from liability 
as a carrier. If either the carrier alone, or both the carrier and the 
NTS facility, fail to pay their proper liability, the file is forwarded 
to the Naval Material Transportation Office, (NAVMTO), Norfolk, Virginia 
for offset action.
    (f) Direct Procurement Method (DPM). (1) A DPM move is a method in 
which the Government manages the shipment from origin to destination. 
Contracts are issued to commercial firms for packing, containerization, 
local drayage, and storage services, or Government facilities and 
employees provide these services. Separate arrangements are made with 
carriers and separate documents are issued for each segment throughout. 
DPM contractors are also known as packing and crating (P&C) contractors, 
as local drayage contractors, or just as local contractors.
    (2) GBL's for DPM shipments are usually only issued to motor freight 
carriers.
    (i) Block 3 on the GBL entitled ``service code'' will contain the 
letters A, B, H, or V, followed by a second letter A, H, K, N, P, R, W, 
X, or Y. These two letter codes identify the GBL as a DPM contract.
    (ii) Block 18, ``consignee,'' and Block 19, ``from,'' on the GBL 
contain the name and address of another carrier or transportation office 
rather than the name and address of the claimant.
    (iii) Block 27, ``description of shipment,'' on most GBL's contains 
the statement, ``household goods released at a value of 10 cents per 
pound per article.'' This refers to the motor freight carrier's 
liability only. The origin and destination contractors' liability is 
still $.60 per pound times the weight of the article or carton, as 
indicated in the Joint Military/Industry Table of Weights.
    (iv) If liability lies against the motor freight carrier, the term 
``article'' is defined as the weight of each packed item, such as the 
weight of a broken dish within a carton rather than the net weight of a 
carton, as used against the origin and destination contractors. 
Liability is computed against the motor freight carrier at a rate of 
$.10 per pound times the weight of the article.
    (3) Since 1 January 1981 the destination contractor has been held 
liable for loss and damage unless it can prove that it is not at fault, 
i.e., took exceptions prior to receipt of goods. The motor freight 
carrier is liable for any damage or loss noted against it during its 
portion of the move. If the motor freight carrier has noted specific 
damage when it received the shipment, liability is charged against the 
origin contractor at $.60 per pound times the weight of the article or 
carton. Damage noted against the origin contractor or motor freight 
carrier should be indicated on a valid shipping document and generally 
involves distinct damage to or missing containers. These documents must 
be signed by all parties involved in the transfer of the goods.
    (4) The destination contractor must receive timely notice of loss or 
damage via DD Form 1840/1840R and a demand packet. If exceptions were 
taken against the origin contractor or motor freight carrier on a 
transfer document, they should receive only demand packets.

[[Page 421]]

    (5) In determining destination or origin contractor's liability, the 
term ``article'' has been defined as each shipping carton or container 
and the contents thereof, less any exterior crate or shipping carton. 
The net weight of each article (carton or box) packed within the 
exterior crate or carton may be used to determine the contractor's 
liability for a damaged or missing item originating out of that carton.
    (6) Claims offices should obtain a copy of the DPM contract from the 
local contracting office or transportation office in order to identify 
which company has the DPM contract and verify the limits of the 
liability clause. Contracts are awarded on a calendar-year basis.
    (g) Mobile homes. Mobile home claims represent such a small 
percentage of claims received that claims personnel are often unfamiliar 
with the requirements and documentation necessary to process such 
claims. For an explanation of the adjudication of such claims and the 
forms used to effect shipment, see Sec. 751.12(g) above.
    (1) Carrier liability--(i) For damage to the mobile home. Carrier 
liability for damage to a mobile home is generally the full cost of 
repairs for damage incurred during transit. A mobile home carrier is 
excused from liability when the carrier can introduce substantial proof 
that a latent structural defect (one not detectable during the carrier's 
preliminary inspection) caused the loss or damage.
    (ii) For damage to contents. The carrier's liability for loss or 
damage to household or personal effects inside the mobile home (such as 
clothing and furniture. or furnishings which were not part of the mobile 
home at the time it was manufactured) is limited to $250.00 unless a 
greater value is declared in writing on the GBL. Under the Mobile Home 
One-Time-Only (MOTO) rate system, effective for shipments after 1 
November 1987 the owner no longer prepares his own inventory. Under the 
MOTO system, the carrier in coordination with the owner is required to 
prepare a legible descriptive inventory on DD Form 1412, Inventory of 
Articles Shipped in House Trailer.
    (iii) Agents of the mobile home carrier. If the shipment is 
transferred to another mobile home carrier for transport, the first 
carrier will continue to be shown on the GBL and is responsible for the 
mobile home from pickup to delivery. The carrier is also responsible for 
damage caused by third parties it engages to perform services such as 
auxiliary towing and wrecking.
    (iv) Water damage. Water damage to a double-wide or expando-type 
mobile home is usually due to the carrier's failure to provide 
sufficient protection against an unexpected rainstorm. Carriers will 
often assert that this damage is due to an ``act of God'' and attempt to 
avoid liability. It is, however, the carrier's responsibility to ensure 
safe transit of the mobile home from origin to destination. Not only 
should carriers be aware of the risk of flash floods and storms in 
certain locales during certain seasons, but a carrier is supposed to 
provide protective covering over areas of the mobile home exposed to the 
elements. Carrier recovery should be pursued for water damage to these 
types of mobile homes.
    (v) Waivers signed by the claimant. The carrier may attempt to 
escape liability by having the owner execute a waiver of liability. Such 
waivers are not binding upon the United States.
    (vi) Extensions of storage in transit (SIT). The extension of SIT 
past 180 days is only applicable to household goods and holdbaggage 
shipments. It is not applicable to the shipment of mobile homes. If a 
mobile home remains in SIT past 180 days, storage is at the owner's 
expense.
    (2) Notice. Item 306 of the carrier's rate solicitation states that: 
``Upon delivery by the carrier, all loss of or damage to the mobile home 
shall be noted on the delivery document, the inventory form, the DD Form 
1800, and/or the DD Form 1840. Late(r) discovered loss or damage, 
including personal property within the mobile home, will be noted on DD 
Form 1840R not later than 75 days following delivery and shall be 
accepted by the carrier as overcoming the presumption of correctness of 
delivery receipt.'' Notification to the carrier may be made on any of 
the documents. Claims personnel will dispatch the DD Form 1840R in 
accordance with Sec. 751.14.

[[Page 422]]

    (3) Preparation of demands. The carrier is liable for the full 
amount of substantiated damage to the mobile home itself (less estimate 
fees), plus up to $250.00 for loss or damage to contents (unless the 
claimant purchased increased released valuation on the contents). 
Prepare a demand for this amount. In addition to the DD Form 1843 and DD 
Form 1844, the demand packet should include the following documents:
    (i) DD Form 1800, Mobile Home Inspection Record;
    (ii) DD Form 1863, Assessorial Services, Mobile Home;
    (iii) DD Form 1840/1840R, Joint Statement of Loss or Damage at 
Delivery/Notice of Loss;
    (iv) DD Form 1412, Inventory of Items Shipped in House Trailer;
    (v) DD Form 1841, Government Inspection Report;
    (vi) Driver's statement, from the driver of the towing vehicle;
    (vii) Claimant's statement concerning previous moves;
    (viii) Estimates of repair, preferably two, from firms in the 
business of repairing mobile homes; and
    (ix) Engineer's statement, or statement by other qualified 
professionals.
    (4) References. Chapter 3 and Appendix E of DOD 4500.34-R, pertain 
to mobile home shipment and contain much valuable information. Another 
source is NAVSUP 490, Chapter 10 ``Mobile Homes of Military Personnel.''



Sec. 751.26  Demand on carrier, contractor, or insurer.

    (a) Carrier. When property is lost, damaged, or destroyed during 
shipment under a GBL pursuant to authorized travel orders, the claims 
investigating officer or adjudicating authority (whichever can more 
efficiently perform the task) shall file a written claim for 
reimbursement with the carrier according to the terms of the bill of 
lading or contract. This demand shall be made against the last carrier 
known to have handled the goods, unless the carrier in possession of the 
goods when the damage or loss occurred is known. In this event, the 
demand shall be made against the responsible carrier. If it is apparent 
the damage or loss is attributable to packing, storing or handling while 
in the custody of the Government, no demand shall be made against the 
carrier.
    (b) Marine Corps claimants. For Marine Corps claimants, the claims 
investigating officer will prepare the claim against the carrier, 
contractor, and/or insurer and will mail it (together with the DD Form 
1842 claim package) to the Commandant of the Marine Corps (MHP-40), who 
will submit and assume the responsibility of monitoring the claim 
against the carrier.
    (c) NTS warehousemen. Whenever property is lost, damaged, or 
destroyed while being stored under a basic agreement between the 
Government and the warehouseman, the claims investigating officer, or 
appropriate Naval Legal Service Command (NLSC) activity, shall file a 
written claim for reimbursement with the warehouseman under the terms of 
the storage agreement.
    (d) Insurer. When the property lost, damaged, or destroyed is 
insured, the claimant must make a demand against the insurer for payment 
under the terms of the insurance coverage within the time provided in 
the policy. If the amount claimed is clearly less than the policy 
deductible, no demand need be made. Failure to pursue a claim against 
available insurance will result in reducing the amount paid on the claim 
by the amount which could have been recovered from the insurer. When an 
insurer makes a payment on a claim in which the Government has made a 
recovery against the carrier or contractor, the insurer shall be 
reimbursed a pro rated share of any money recovered.



Sec. 751.27  Preparation and dispatch of demand packets.

    Demand on a carrier or contractor shall be made in writing on DD 
Form 1843 (Demand on Carrier) with a copy of the adjudicated DD Form 
1844 (Schedule of Property) attached.
    (a) Demand packets. A demand is a monetary claim against a carrier, 
contractor, or insurer, to compensate for loss or damage incurred to 
personal property during shipment or storage. DD Form 1843 represents 
the actual demand. The demand packet is a group of documents, stapled 
together and sent

[[Page 423]]

to the liable third party. More than one demand packet should be 
prepared when more than one party is deemed to be liable. Do not use 
original documents. Demand packets should be mailed in official DON 
envelopes. No demand packet should be prepared for claim files that have 
been closed or when potential recovery is $25.00 or less. In those cases 
the outside of file folders in the upper left-hand corner should be 
marked ``CLOSED.'' A demand packet will include the following:
    (1) DD Form 1843, Demand on Carrier/Contractor;
    (2) DD Form 1844, Schedule of Property and Claim Analysis Chart;
    (3) DD Form 1841, Government Inspection Report (if available);
    (4) DD Form 1164, Service Order for Personal Property (when 
applicable);
    (5) Copies of all repair estimates (translated from foreign 
languages); and
    (6) Copies of all other supporting documents deemed appropriate.
    (b) Dispatch of demand packets. (1) The demand packets are directly 
dispatched by the appropriate personal property office or the Naval 
Legal Service Office to the third party.
    (2) Privately Owned Vehicles (POV's). Demands for loss or damage to 
POV's will not be made directly against ocean carriers operating under 
contract with the MSC. After payment is made to the claimant, one copy 
of the complete claim file will be forwarded directly to Commander, MSC. 
Each file shall include the following:
    (i) The payment voucher;
    (ii) The completed personnel claim forms;
    (iii) The estimated or actual cost of repair;
    (iv) A document indicating the conditions of the items upon delivery 
to the carrier; and
    (v) a document indicating the forwarding condition of the POV upon 
its return to Government control.
    The letter of transmittal should identify the vessel by name, 
number, and if available, the sailing date.



Sec. 751.28  Assignment of claimants rights to the government.

    The claimant shall assign to the Government, to the extent of any 
payment made on the claim, all rights and interest the claimant may have 
against any contractor, carrier, or insurer or other party arising out 
of the incident on which the claim is based. The claimant shall also 
furnish such evidence as may be required to enable the Government to 
enforce its claim. If the claimant refuses to cooperate, steps may be 
taken to ensure return of monies paid on the item which the Government 
is trying to collect.



Sec. 751.29  Recoveries from carrier, contractor, or insurer.

    (a) Recoveries. If a claimant receives payment from the Government 
under this instruction and also receives compensation from a carrier, 
contractor, or insurer for the same loss, the Government shall collect 
from the claimant the amount necessary to prevent the claimant from 
being compensated twice for the same loss. If the amount payable on a 
claim is less than the adjudicated value of the claim, excess recoveries 
from carriers, and other third parties shall be paid to the member as 
long as the total amount paid does not exceed the value of the claim as 
adjudicated.
    (b) Recovered property. When lost property is found, the claimant 
may, at his option, accept all or part of the property and return the 
full payment or a pro-rated share of the payment received from the 
Government on the claim for the recovered property. Surrendered property 
shall be disposed of under applicable salvage and disposal procedures.



Sec. 751.30  Settlement procedures and third party responses.

    (a) Settlement procedures. In the interest of expeditious office 
administration, correspondence to carriers and contractors should be 
kept to a minimum. Normally, one rebuttal to a third party's denial of 
liability is sufficient, unless the carrier or contractor raises new 
arguments or provides new information.
    (1) Checks from third parties. Accept checks for the amount demanded 
from

[[Page 424]]

carriers and contractors. If a carrier or contractor forwards a check 
for less than the amount demanded, review the carrier's arguments for 
reducing liability to determine if they are acceptable. If the third 
party's basis for reducing liability is acceptable in the light of all 
evidence, deposit the check and dispatch the unearned freight letter, if 
applicable. Mark the front upper left-hand corner of the file as 
``CLOSED.''
    (2) Third party offers of settlement. If a carrier or contractor 
offers to settle the claim, review the carrier's arguments for reducing 
liability to determine if they are acceptable. If the third party's 
basis for reducing liability is acceptable in light of all evidence, 
inform the carrier that the offer is accepted, but that offset action 
will be initiated if a check for that amount is not received within 45 
days. If a check in the amount acceptable to the Government is received, 
deposit it and dispatch the unearned freight letter, if applicable. Mark 
the front upper left-hand corner of the file as ``CLOSED.'' If a check 
in the proper amount is not received within 45 days, send the request to 
NAVMTO, Norfolk (or appropriate contract officer) for offset action (see 
Sec. 751.32 of this part).
    (3) Unacceptable third party checks and offers of settlement. If a 
third party's basis for denying liability is not valid, respond to that 
carrier or contractor. Return unacceptable checks. Explain the reasons 
for not accepting the check or offer, and request the amount that is 
justified under the circumstances in the light of all the evidence. If a 
release was included, amend the release to the revised amount and sign, 
date, witness, and return it. Warn the carrier or contractor that the 
claim will be forwarded for offset action if a check for the amount 
justified under the circumstances is not received within 45 days. 
Suspend the file for 45 days and if a check in the proper amount is 
received, deposit it and dispatch the unearned freight letter, if 
applicable. If a check in the proper amount is not received within 45 
days, request NAVMTO, Norfolk (or appropriate contract officer) to take 
offset action.
    (4) Third party denials of liability. Upon receipt, review the 
carrier or contractor's basis for denying liability in the light of all 
the evidence.
    (i) Acceptable third party reasons for denial. Mark the front upper 
left-hand corner of such files as ``CLOSED.''
    (ii) Partially acceptable and unacceptable third party reasons for 
denial. If the carrier or contractor's basis for denying liability is 
acceptable only in part or is completely unacceptable, follow the 
procedures in subparagraph (3) above, requesting the amount that is 
justified under the circumstances in the light of all the evidence. If a 
response is not received within 45 days, or if the third party's reply 
is not responsive, request NAVMTO, Norfolk (or appropriate contract 
officer) take offset action as described above.
    (b) Depreciation. In determining payments to claimants, the 
depreciation rates from the Allowance List--Depreciation Guide are used. 
In determining third party liability, however, a different depreciation 
guide, the Joint Military/Industry Depreciation Guide is used instead. 
In most instances, the depreciation rates are the same in both guides, 
and claims personnel are not required to consult the Joint Military/
Industry Depreciation Guide or alter the depreciation taken on items 
prior to dispatching demands. If, however, a carrier or contractor 
objects to the depreciation rate utilized for certain items, consult the 
Joint Military/Industry Depreciation Guide and use the depreciation rate 
found in that guide if it differs from the rate in the Allowance List-
Depreciation Guide.



Sec. 751.31  Common reasons for denial by carrier or contractor.

    The following are common reasons given for denial of an entire 
claim, or for individual items on a claim. Each reason for denial is 
followed by a short discussion of the validity of such a denial.
    (a) The carrier alleges that valid exceptions were made at the time 
of pickup from the NTS facility. When a carrier provides an exception 
sheet it contends was made at time of transfer, this exception sheet 
must bear the signature of a representative of the NTS facility. Without 
a signed exception sheet there is no evidence that the NTS facility was 
made aware of these exceptions

[[Page 425]]

and given the opportunity to confirm or deny the alleged condition of 
the items in question. The burden of proof is on the carrier to provide 
the valid exception sheet and establish its freedom from liability.
    (b) The carrier denies liability for missing or damaged item packed 
in cartons because it did not pack the shipment and the cartons did not 
show outside damage. When a carrier accepts a shipment in apparent good 
order, it is responsible for damage to packed items, unless it can prove 
that the packing was improper and was the sole cause of the damage.
    (c) The carrier contends that the mildew damage occurred in NTS and 
not during its transport of the shipment. Mildew formation is more 
likely to occur in NTS than in transport. Unsupported by evidence, 
however, an allegation that mildew formation occurred during NTS does 
not rebut the established prima facie case of a carrier liability. A 
carrier must prepare an exception sheet and note any mold or mildew 
damage when the items were picked up from the NTS facility. The burden 
of proof is on the carrier to show that it was free from negligence and 
that the damage was due solely to the formation of mildew or mold during 
the NTS storage.
    (d) The carrier claims that damage is due to ``inherent vice.'' 
Although the carrier may allege that damage was due to ``inherent 
vice,'' the mere allegation of ``inherent vice'' is insufficient to 
relieve the carrier of liability. The burden of proof is on the carrier 
to establish that an ``inherent vice'' existed and that it was the sole 
cause of the damage claimed. Since the carrier can rarely establish this 
burden of proof, denial due to ``inherent vice'' is seldom acceptable.
    (e) The carrier contends that it was denied the right to inspect. 
Often a carrier will state that it made several attempts to make an 
inspection, but the shipper failed to keep the appointment. If such a 
case exists, the proper procedure for the carrier to follow is to 
contact the claims office for assistance in accomplishing the inspection 
within a timely manner. A carrier's efforts to obtain the inspection 
should be documented in the file by claims personnel. Lack of an 
inspection alone, however, does not relieve the carrier of liability and 
is insufficient to rebut a well-established prima facie case of 
liability.
    (f) The carrier denies liability on missing items because the items 
do not appear on the new inventory made at pickup from the NTS facility. 
When a carrier picks up a shipment from NTS and chooses to prepare a new 
inventory, it must use identical or cross-referenced numbers. If an 
article such as a chair or a lawnmower is missing, it must be indicated 
as ``missing'' on the new inventory. Whether or not a new inventory is 
made, an exception sheet must be prepared and the missing articles must 
be noted thereon. To relieve the carrier of liability, both the new 
inventory and the exception sheet must be signed by representatives of 
the NTS facility and the carrier.
    (g) The carrier denies liability due to ``act of God.'' An act of 
God is an event that could not have been prevented by human prudence. It 
is generally seen as an occurrence in which human skill or watchfulness 
could not have foreseen the disaster. The burden of proof is on the 
carrier to establish that an ``act of God'' existed and that it was the 
sole cause of the damage claimed. Since the carrier can rarely establish 
this burden of proof, denial due to an ``act of God'' is generally not 
acceptable. The carrier cannot avoid liability if it has been negligent 
in exposing the goods to potential danger or if it failed to take 
reasonable steps to reduce the extent of the injury once the danger was 
discovered.
    (h) The carrier contends that the claimant's repair estimate is 
excessive and that its own repair firm can do the job cheaper. A 
claimant has the right to select a repair firm provided the cost is 
reasonable and not in excess of the item's value. The carrier is liable 
for the reasonable cost of repairing damaged merchandise that includes 
labor, material, overhead, and other incidental expenses incurred in 
reconditioning or putting the goods in salable condition. If the carrier 
did not provide the claims office with an acceptable, lower estimate to 
use in adjudicating the claim, and if the claimant's estimate is 
reasonable, then the carrier is liable for the amount paid the claimant.

[[Page 426]]

    (i) The carrier contends that liability should have been predicated 
on the agreed weight of a sofa and not a hide-a-bed. This argument only 
applies when carrier liability is based on weight. At the time the 
inventory is prepared, the carrier's driver must establish whether a 
sofa is merely a sofa, or one that converts into a bed. Failure to 
properly identify the item on the inventory does not relieve the carrier 
of liability for the greater weight of a sofa bed.
    (j) The carrier argues that it is not responsible for warpage, rust, 
etc., due to climatic changes. This argument does not relieve a carrier 
of liability unless the carrier offers substantial evidence to show that 
the damages resulted solely from unusual circumstances beyond its 
control, as with an ``act of God,'' or that it occurred while the 
property was in the hands of another contractor, as reflected upon a 
valid NTS exception sheet. The burden of proof is on the carrier to 
establish that the damage was not due to its negligence and that 
circumstances beyond its control were the sole cause of the loss. 
Because the carrier can rarely establish this, denial due to ``climatic 
changes'' is rarely acceptable.



Sec. 751.32  Forwarding claims files for offset action.

    (a) General. Claim files are forwarded with a recommendation for 
offset action when 120 days have passed since a demand and a response 
has not been received from the carrier or contractor. Files are also 
forwarded for offset action when an impasse is reached. An impasse 
occurs when legitimate efforts to collect the fully justified amount 
demanded have reached a standstill and the carrier has no valid basis 
for denial. Prior to forwarding files for offset action, claims 
personnel must ensure that timely notice has been given, that all 
necessary documents are included, and that the demand and any 
correspondence were mailed to the proper carrier or contractor at its 
correct address. When applicable, claims personnel must also ensure that 
an unearned freight packet is included.
    (b) Claim files forward to local contracting offices. Claims 
forwarded to local contracting offices for offset action include claims 
involving local moves and DPM shipments in which the origin and/or 
destination contractor is determined to be liable. When the contractor 
fails to reply to a demand within 120 days or fails to make an 
acceptable offer, the file should be forwarded to the local contracting 
office with a request for offset action.
    (c) Unjustified denials and inadequate settlement offers by carrier 
or contractor--(1) GBL carriers. If a GBL carrier or insurer has refused 
to acknowledge or respond to a demand within a reasonable time (usually 
30 days), if the claims investigating officer considers a valid claim to 
have been denied or not adequate settlement offered, or if settlement 
has been delayed beyond 120 days (see Sec. 751.32(a)), the claim shall 
be forwarded to the NLSC activity serving the geographical location 
recommending that set-off action be taken against the carrier or 
contractor. The 120-day period begins to run on the date initial demand 
is made on the carrier. The NLSC activity shall review the file and if 
the carrier liability is correctly computed, forward a copy of the GBL, 
copies of the DD Forms 1843 and 1844, SCAC code, and final demand on 
carrier to the Commanding Officer, Naval Material Transportation Office, 
Code 023, Bldg. Z-133-5, Naval Station, Norfolk, VA 23511 directing set-
off action against the carrier or contractor.
    (2) Nontemporary warehousemen. If a warehouseman or insurer has 
refused to acknowledge or respond to a claim within a reasonable time, 
if the claims investigating officer considers a valid claim to have been 
denied or no adequate settlement offered, or if settlement has been 
delayed beyond 120 days, the claim shall be referred to the NLSC 
activity serving the geographic location recommending set-off action be 
taken against the contractor. The 120-day time period begins to run on 
the date the initial demand was made. The NLSC activity shall review the 
file and if the warehouseman's liability is correctly computed, forward 
the file to the appropriate MTMC Regional Storage Management Office for 
set-off.



Sec. 751.33  Unearned freight packet.

    (a) Preparation. An unearned freight packet should be prepared when 
the

[[Page 427]]

loss or destruction of an item in shipment is attributable to a GBL 
carrier. Unearned freight packets should be addressed to the carrier, 
and not to the agents of GBL carriers, NTS contractors, or other 
contract movers. An unearned freight packet is required when a mobile 
home is lost or completely destroyed. An unearned freight packet 
includes:
    (1) A Request For Deduction of Unearned Freight Charges;
    (2) A copy of DD Form 1843;
    (3) A copy of DD Form 1844; and
    (4) A copy of the GBL.
    (b) Dispatch. The unearned freight packet is not dispatched to the 
NAVMTO, Norfolk until the carrier has paid its agreed liability or when 
offset has been accomplished.



Sec. 751.34  GAO appeals.

    (a) General. Sections 1 through 12 and 52 through 65 of Title 4, GAO 
Manual, Policy and Procedures Manual for Guidance of Federal Agencies, 
and 4 CFR parts 30-32 set forth procedures for carriers to appeal setoff 
action. Before a carrier can appeal a setoff action to GAO, the command 
requesting setoff action must make an administrative report to GAO.
    (b) Procedures for appeals. (1) The carrier must request appeal from 
the command requesting setoff action and request a GAO review.
    (2) The command requesting setoff action will review the appeal and 
if it is determined the setoff action was appropriate, will do an 
administrative report and notify the carrier when this has been 
accomplished.
    (3) The administrative report and complete claims file will be 
forwarded to the NLSC activity serving the geographic location for 
review prior to forwarding to GAO.
    (4) The complete claims package, including all correspondence with 
the carrier, will then be forwarded to GAO.
    (c) The administrative report and enclosures must support the setoff 
action.
    (d) GAO Manual. All NLSC activities have been provided a copy of a 
manual published by the Claims Group General Government Division, U.S. 
General Accounting Office entitled Procedures of the U.S. General 
Accounting Office for Household Goods Loss and Damage Claims. Other 
commands dealing with carrier recoveries should get a copy of the manual 
from the NLSC activity servicing the local area.



Sec. 751.35  Forms and instructions.

    Copies of all of the forms and instructions discussed in this part 
may be obtained if needed, from the Commanding Officer, Naval 
Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, PA 
19120.



PART 752--ADMIRALTY CLAIMS--Table of Contents




Sec.
752.1  Scope.
752.2  Organization.
752.3  Claims against the Navy.
752.4  Affirmative claims.
752.5  Salvage.

    Authority: 5 U.S.C. 301; 10 U.S.C. 5013, 5148, and 7621-7623; 32 CFR 
700.206 and 700-1202.



Sec. 752.1  Scope.

    This part applies to admiralty-tort claims. These include claims 
against the United States for damage caused by a vessel in the naval 
service or by other property under the jurisdiction of the Navy, or 
damage caused by a maritime tort committed by an agent or employee of 
the Navy, and affirmative claims by the United States for damage caused 
by a vessel or floating object to Navy property.
[39 FR 9962, Mar. 15, 1974



Sec. 752.2  Organization.

    (a) Administrative authority of the Secretary of the Navy. The 
Secretary of the Navy has administrative authority for settlement and 
direct payment where the amount paid does not exceed $1,000,000 and 
where the matter is not in litigation, of claims for damage caused by 
naval vessels or by other property under the jurisdiction of the Navy, 
or damage caused by a maritime tort committed by an agent or employee of 
the Navy, and for towage or salvage services rendered to naval vessels 
(10 U.S.C. 7622 (1982)). The Secretary also has authority to settle 
affirmative admiralty claims for damage caused by a vessel or floating 
object to property under the jurisdiction of the Navy (10 U.S.C. 7623 
(1982)).

[[Page 428]]

    (b) Admiralty Division of the Office of the Judge Advocate General. 
The Navy's admiralty-tort claims are processed and adjudicated in the 
Admiralty Division of the Office of the Judge Advocate General. All 
correspondence with the Admiralty Division should be addressed to the 
Office of the Judge Advocate General (Code 31), Navy Department, 200 
Stovall Street, Alexandria, VA 22332-2400.
    (c) Mission and policy. The primary mission of the Admiralty 
Division is to effect prompt and equitable settlements of admiralty 
claims, both against and in favor of the United States. The settlement 
procedure has evolved to eliminate the expenses and delays arising out 
of litigation and to obtain results advantageous to the financial 
interests of the United States. Where settlements cannot be made, 
litigation ensues in the Federal Courts. The final test of whether a 
settlement is justified is the probable result of litigation. 
Settlements are therefore considered and determined by the probable 
results of litigation. The policy of the Navy is to effect fair and 
prompt settlements of admiralty claims wherever legal liability exists.
    (d) Admiralty-tort claims. As indicated above, the Admiralty 
Division primarily handles admiralty-tort claims. These are claims for 
damage caused by vessels in the naval service or by other property under 
the jurisdiction of the Navy, or damage caused by a maritime tort 
committed by an agent or employee of the Navy, and claims for damage 
caused by a privately owned vessel to a vessel or property of the Navy 
(affirmative claims). The Admiralty Division also handles claims for 
towage and salvage services rendered to a vessel in the naval service.
    (e) Admiralty-contract claims. Admiralty-contract claims arising out 
of the operations of the Military Sealift Command (MSC) are handled by 
its Office of Counsel. MSC is responsible for the procurement of vessels 
and space for the commercial ocean transportation of Department of 
Defense cargo, mail, and personnel. It is also responsible for the 
maintenance, repair, and alteration of Government-owned vessels assigned 
to it. The Office of Counsel, MSC, deals with the various claims of a 
contract nature which arise out of these operations. These include 
claims for cargo damage, charter hire, redelivery, general average, and 
claims arising under MSC ship-repair contracts.
    (f) Damage caused by Navy contract stevedores. Office of Counsel, 
Naval Supply Systems Command, has cognizance of admiralty claims for 
damage caused by Navy contract stevedores. Under these stevedore 
contracts, the stevedoring companies are responsible for negligent acts 
of their employees which result in vessel damage. It is important that 
the extent of any such damage be accurately determined and promptly 
reported to the contracting officer having cognizance of the particular 
stevedore contract involved.
    (g) Resolving conflicts. Admiralty-tort claims, such as collision, 
personal-injury, and death claims, are dealt with by the Admiralty 
Division, irrespective of whether an MSC vessel or other naval vessel is 
involved. Whether any particular claim is to be handled by JAG or by 
MSC, therefore, is determined by the nature of the claim. Cases may 
arise which could be handled by either office. If doubt exists, such 
matters should be reported both to JAG and to MSC. An agreement will 
then be reached between the Admiralty Division and the Office of 
Counsel, MSC, as to how the incident should be handled.
[39 FR 9962, Mar. 15, 1974, as amended at 55 FR 12173, Apr. 2, 1990]



Sec. 752.3  Claims against the Navy.

    (a) Settlement authority. 10 U.S.C. 7622 (1982) provides settlement 
authority for ``(1) Damage caused by a vessel in the naval service or by 
other property under the jurisdiction of the Department of the Navy; (2) 
compensation for towage or salvage service, including contract salvage, 
rendered to a vessel in the naval service or to other property of the 
Navy; or (3) damage caused by a maritime tort committed by any agent or 
employee of the Department of the Navy or by property under the 
jurisdiction of the Department of the Navy.'' The limit on the 
Secretary's settlement authority is payment of $1,000,000. A claim which 
is settled for an amount over $1,000,000 is certified to

[[Page 429]]

Congress for payment. Section 7622 provides that the Secretary may 
delegate his settlement authority in matters where the amount to be paid 
is not over $100,000. Under the Secretary's delegation, settlements not 
exceeding $100,000 may be effected by the Judge Advocate General, Deputy 
Judge Advocate General, Assistant Judge Advocate General (General Law), 
and the Deputy Assistant Judge Advocate General (Admiralty). Authority 
has also been delegated to Deputy Commander in Chief, U.S. Naval Forces, 
Europe, and to Commander Sixth Fleet, to pay admiralty claims against 
the Navy not exceeding $10,000, and to Commander Fleet Air, Caribbean, 
for damage to fishing equipment arising in Culebra-Vieques waters, not 
to exceed $3,000.
    (b) Settlement is final. The legislation specifically authorizes the 
Secretary to settle, compromise, and pay claims. The settlement, upon 
acceptance of payment by the claimant, is final and conclusive for all 
purposes.
    (c) Settlement procedures. Where the amount paid is over $100,000, 
after agreement is reached with counsel or claimants, the procedure is 
to prepare a settlement recommendation for the approval of the Secretary 
of the Navy. When settlement has been approved, the voucher required for 
effecting payment is prepared. The settlement check is then exchanged, 
in keeping with the commercial practice, for an executed release. In 
some situations, where the exchange of documents is impracticable, a 
claimant is requested to forward the executed release by mail, on the 
understanding that the release does not become effective until the check 
is received in payment. Claims settled under 10 U.S.C. 7622 are paid out 
of annual Department of Defense appropriations.
    (d) Limitation period. The Secretary's settlement authorization is 
subject to a two-year limitation. This limitation is not extended by the 
filing of claim nor by negotiations or correspondence. A settlement 
agreement must be reached before the end of the two-year period. If 
settlement is not accomplished, then the claimant must file suit under 
the appropriate statute to avoid the limitation bar. The agreement 
reached in negotiations must receive the approval of the Secretary of 
the Navy or his designee, depending on the amount involved, prior to the 
expiration of the two-year period.
    (e) Matters in litigation. When suit is filed, the matter comes 
within the cognizance of the Department of Justice, and the Secretary of 
the Navy is no longer able to entertain a claim or to make 
administrative settlement.
[39 FR 9962, Mar. 15, 1974, as amended at 55 FR 12173, Apr. 2, 1990]



Sec. 752.4  Affirmative claims.

    (a) Settlement authority. The Navy has the same authority to settle 
affirmative admiralty claims as it does claims against the Navy. The 
statute conferring this authorization is codified in 10 U.S.C. 7623 
(1982), and is the reciprocal of 10 U.S.C. 7622 (1982) referred to in 
Sec. 752.3.
    (b) Scope. 10 U.S.C. 7623 is a tort claims-settlement statute. It is 
not limited to affirmative claims arising out of collision, but embraces 
all instances of damage caused by a vessel or floating object to 
property of the United States under the jurisdiction of the Department 
of the Navy. Perhaps the most frequent instance is where a privately 
owned vessel damages a Navy pier or shore structure. To eliminate any 
issue of whether the damaging instrumentality was a vessel, the words 
``or floating object'' were included.
    (c) Statute of limitation. The United States is subject to a three-
year statute of limitation when it asserts an affirmative claim for 
money damages grounded in tort. This limitation is subject to the usual 
exclusions, such as inability to prosecute due to war, unavailability of 
the ``res'' or defendant, and certain exemptions from legal process (28 
U.S.C. 2415, 2416 (1982)).
    (d) Litigation. 10 U.S.C. 7623 does not apply to any claim where 
suit is filed. If the Admiralty Division is unable to effect settlement, 
the matter is referred to the Department of Justice for the filing of a 
complaint against the offending party. Thereafter, as in the case of 
adverse litigated claims, the Navy has no further authority to effect 
settlement.
[39 FR 9962, Mar. 15, 1974, as amended at 55 FR 12174, Apr. 2, 1990]

[[Page 430]]



Sec. 752.5  Salvage.

    (a) Scope. This section relates to salvage claims against or by the 
Navy for compensation for towage and salvage services, including 
contract salvage, rendered to a vessel in the naval service or to other 
property under the jurisdiction of the Department of the Navy, or for 
salvage services rendered by the Department of the Navy. Suits for 
salvage may be maintained under the Public Vessels Act, and salvage 
claims are within the Secretary of the Navy's administrative-settlement 
authority under 10 U.S.C. 7622. Salvage claims against the Navy are 
reported to and processed by the Judge Advocate General (Admiralty 
Division). Both claims and suits for salvage against the United States 
are subject to the two-year limitation of the Public Vessels Act and the 
Navy's settlement authority.
    (b) Affirmative claims. Authorization for the settlement of 
affirmative salvage claims is contained in 10 U.S.C. 7365 (1982). 
Assertion of such claims is handled in the first instance by the 
Assistant Supervisor of Salvage (Admiralty), USN, Naval Sea Systems 
Command (SEA OOCL), Washington, DC 20362-5101. Salvage claims are 
referred to the Admiralty Division only if the Assistant Supervisor of 
Salvage (Admiralty) is unsuccessful in making collection. Any money 
received in settlement of affirmative salvage claims is credited to 
appropriations for maintaining salvage facilities by the Navy, pursuant 
to 10 U.S.C. 7367 (1982).
[39 FR 9962, Mar. 15, 1974, as amended at 41 FR 26866, June 30, 1976; 55 
FR 12174, Apr. 2, 1990]



PART 755--CLAIMS FOR INJURIES TO PROPERTY UNDER ARTICLE 139 OF THE UNIFORM CODE OF MILITARY JUSTICE--Table of Contents




Sec.
755.1  Statutory authority.
755.2  Scope.
755.3  Claims not cognizable.
755.4  Limitation on claims.
755.5  Complaint by the injured party and investigation.
755.6  Action where offenders are members of one command.
755.7  Action where offenders are members of different commands.
755.8  Reconsideration and appeal.
755.9  Effect of court-martial proceedings.

    Authority: 5 U.S.C. 301; 10 U.S.C. 939, 5013, and5148; E.O. 11476, 
as reported in 3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202.

    Source: 56 FR 42232, Aug. 27, 1991, unless otherwise noted.

    Note 1: This part 755 is chapter IV of the Manual of the Judge 
Advocate General of the Navy.


    Note 2: The Uniform Code of Military Justice (10 U.S.C. 801-940) is 
referred to in this part 755 as the ``UCMJ''. The Manual for Courts-
Martial, United States, 1984 (E.O. 12473 of August 1, 1984) is referred 
to in this part 755 as ``MCM 1984''.



Sec. 755.1  Statutory authority.

    Article 139, UCMJ, redress of injuries to property, is the basis for 
this chapter.



Sec. 755.2  Scope.

    This chapter provides for assessments against the pay of members of 
the naval service in satisfaction of claims for property damage caused 
under certain circumstances. Claims for damage, loss, or destruction of 
privately owned property caused by a person or persons in the naval 
service, are payable under Article 139, UCMJ, only if such damage, loss, 
or destruction is caused by riotous conduct, willful conduct, or acts 
showing such reckless or wanton disregard of the property rights of 
others that willful damage or destruction is implied. Acts of the type 
punishable under Article 109, UCMJ, are cognizable under Article 139, 
UCMJ. Charges against pay under these regulations shall be made only 
against the pay of persons shown to have been principal offenders or 
accessories.



Sec. 755.3  Claims not cognizable.

    The following claims are not cognizable under this chapter.
    (a) Claims resulting from simple negligence.
    (b) Claims of subrogees.
    (c) Claims for personal injury or death.

[[Page 431]]

    (d) Claims arising from acts or omissions within the scope of 
employment of the offender.
    (e) Claims for reimbursement for damage, loss, or destruction of 
Government property.



Sec. 755.4  Limitation on claims.

    (a) Time limitations. A claim must be submitted within 90 days of 
the incident giving rise to it.
    (b) Acts of property owner. When the acts or omissions of the 
property owner, his lessee, or agent were a proximate contributing 
factor to the loss or damage of the property, assessments will not be 
made against members of the naval service in excess of the amount for 
which they are found to be directly responsible, i.e., comparative 
responsibility for the loss will be the standard for determining 
financial responsibility.
    (c) Only direct damages considered. Assessment will be made only for 
direct physical damages to the property. Indirect, remote, or 
inconsequential damage will not be considered.



Sec. 755.5  Complaint by the injured party and investigation.

    (a) A claim shall contain a statement setting forth the amount of 
the claim, the facts and circumstances surrounding the claim and any 
other information that will assist in the investigation and resolution 
of the matter. When there is more than one complaint resulting from a 
single incident, each claimant must file a claim separately and 
individually. The claim shall be personally signed by the claimant or 
his duly authorized representative or agent.
    (b) Where the claim alleges misconduct by members of the command, a 
commanding officer to whom the claim is submitted shall convene an 
investigation under this Manual to inquire into the matter. Where a 
complaint is received by a commanding officer to whose command the 
alleged offenders do not report, he shall forward the claim and other 
pertinent information about the matter to the member's commanding 
officer who will convene an investigation into the incident. Where the 
command of the alleged offenders cannot be determined, the claim and 
supporting materials shall be forwarded to the Chief of Naval Personnel 
or the Commandant of the Marine Corps, as appropriate, for action.
    (c) The investigation shall inquire into the circumstances 
surrounding the claim, gather all relevant information about the matter 
(answering the who, what, where, when, why, and how questions) and make 
findings and opinions, as appropriate, about the validity of the claim 
under Article 139, UCMJ, and these regulations. The investigation shall 
determine the amount of damage suffered by the property owner.
    (d) The investigation shall make recommendations about the amount to 
be assessed against the pay of the responsible parties. If more than one 
person is found responsible, recommendations shall be made about the 
assessments against all individuals.



Sec. 755.6  Action where offenders are members of one command.

    (a) Action by commanding officer. The commanding officer shall 
ensure the alleged offenders are shown the investigative report and are 
advised they have 20 days within which to submit a statement or 
additional information on the incident. If the member declines to submit 
information, he shall so state in writing within the 20 day period. The 
commanding officer shall review the investigation and determine whether 
the claim is properly within the provisions of Article 139, UCMJ, and 
these regulations, and whether the facts indicate responsibility for the 
damage on members of the command. If the commanding officer finds the 
claim payable under these regulations, he shall fix the amount to be 
assessed against the offenders.
    (b) Review. If the commanding officer has authority to convene a 
general court-martial, no further review of the investigation is 
required as to the redress of injuries to property. If the commanding 
officer does not have general court-martial convening authority, the 
investigation and the commanding officer's action thereon shall be 
forwarded to the officer exercising general court-martial jurisdiction 
(OEGCM) over the command for review and action on the claim. That 
officer's

[[Page 432]]

action on the claim shall be communicated to the commanding officer who 
will take action consistent with the determination.
    (c) Charge against pay. Where the amount does not exceed $5,000.00, 
the amount ordered by the commanding officer shall, as provided in the 
Navy Comptroller Manual, be charged against the pay of the offenders and 
the amounts so collected will be paid to the claimant. Where the amount 
exceeds $5,000.00, the claim, the investigation, and the commanding 
officer's recommendation shall be forwarded for review prior to checkage 
to Headquarters, U.S. Marine Corps (Code JAR) or the Judge Advocate 
General, as appropriate. The amount charged in any single month against 
the pay of offenders shall not exceed one-half of basic pay, as defined 
in paragraph 126h(2), Manual for Courts-Martial. The action of the 
commanding officer in ordering the assessment shall be conclusive on any 
disbursing officer for payment to the claimant of the damages assessed, 
approved, charged, and collected.



Sec. 755.7  Action where offenders are members of different commands.

    (a) Action by common superior. The investigative report shall be 
forwarded to the common superior exercising general court-martial 
jurisdiction over the commands to which the alleged offenders are 
assigned. That officer shall ensure the alleged offenders are shown the 
investigative report and permitted to comment on it, should they desire, 
before action is taken on the claim. That officer shall review the 
investigation and determine whether the claim is properly within the 
provisions of Article 139, UCMJ, and these regulations, and whether the 
facts indicate responsibility for the damage on members of his command. 
If the claim is found payable under these regulations, he shall fix the 
amount to be assessed against the offenders and direct the appropriate 
commanding officers to take action accordingly.
    (b) Forwarding to SECNAV (JAG). Where it is not practical or 
possible to carry out the procedure in Sec. 755.7(a) of this section, 
the investigation or investigations shall be forwarded to the Secretary 
of the Navy (Judge Advocate General) who will take action in the matter. 
Commanding officers, in such a situation, are not to make charges 
against the pay of their members until directed by the Secretary of the 
Navy (Judge Advocate General).



Sec. 755.8  Reconsideration and appeal.

    (a) Reconsideration. The OEGCM may, upon a receipt of a request for 
reconsideration by either the claimant or a member who has been assessed 
pecuniary liability, reopen the investigation or take any other action 
he believes is necessary in the interests of justice. If the OEGCM 
contemplates acting favorably on the request, he will provide all 
individuals interested in the claim with notice and an opportunity to 
respond. The basis for any change will be noted in the OEGCM's decision.
    (b) Appeal. In claims involving $5,000.00 or less, a claimant or 
member who has been assessed pecuniary liability may appeal the decision 
to the OEGCM. An appeal must be submitted within 5 days of the receipt 
of the OEGCM's decision. Appeals will be forwarded, via the OEGCM, to 
the Judge Advocate General for review and final action. In the event of 
an appeal, the imposition of the OEGCM's decision will be held in 
abeyance pending the final action by JAG. If it appears that good cause 
exists that would make it impracticable for an appeal to be submitted 
within 5 days, the OEGCM may, in his discretion, grant an extension of 
time, as appropriate. His decision on extensions is final and 
nonappealable.



Sec. 755.9  Effect of court-martial proceedings.

    Administrative action under these regulations is separate and 
distinct from and is not affected by any disciplinary action against the 
offender. The two proceedings are independent. Acquittal or conviction 
of the alleged offender by court-martial is evidence for the 
administrative action, but is not determinative on the issue of 
responsibility for damages under these regulations.

[[Page 433]]



Part 756--NONAPPROPRIATED-FUND CLAIMS REGULATIONS--Table of Contents




Sec.
756.1  Scope.
756.2  Definitions.
756.3  Notification.
756.4  Responsibility.
756.5  Investigation.
756.6  Negotiation.
756.7  Payment.
756.8  Denial.
756.9  Claims by employees.

    Authority: 5 U.S.C. 301; 10 U.S.C. 939, 5013, and 5148; E.O. 11476 
(3 CFR, 1969 Comp., p. 132); 32 CFR 700.206 and 700.1202.

    Source: 57 FR 4736, Feb. 7, 1992, unless otherwise noted.



Sec. 756.1  Scope.

    This part explains how to settle claims for and against the United 
States for property damage, personal injury, or death arising out of the 
operation of nonappropriated-fund instrumentalities.



Sec. 756.2  Definitions.

    (a) Nonappropriated-fund instrumentality (NAFI). An instrumentality 
of the Federal Government established to generate and administer 
nonappropriated-funds for programs and services contributing to the 
mental and physical well-being of Department of Defense personnel and 
their dependents. A NAFI is not incorporated under the laws of any State 
and enjoys the privileges and immunities of the Federal Government.
    (b) Nonappropriated-funds. Funds generated through the use and 
patronage of NAFI's, not including funds appropriated by Congress.
    (c) Employees of NAFI. Civilian personnel employed by NAFI's whose 
salaries are paid from nonappropriated-funds. Also, military personnel 
working part-time at NAFI's when compensated from nonappropriated-funds.



Sec. 756.3  Notification.

    (a) Some NAFI's, such as flying clubs, carry private commercial 
insurance to protect them from claims for property damage and personal 
injury attributable to their operations. The Commandant of the Marine 
Corps, the Chief of Naval Personnel, and the Commander, Naval Supply 
Systems Command determine whether NAFI's within their cognizance shall 
carry liability insurance or become self-insurers, in whole or in part.
    (b) The Marine Corps requires mandatory participation in the Morale, 
Welfare and Recreation (MWR) Composite Insurance Program by the 
following operations: MWR operations and retail services, food and 
hospitality, recreation; and special NAFI activities including flying 
clubs, rod and gun clubs, Interservice Rifle Fund, Marine Corps Marathon 
and Dependent Cafeteria Fund. The following organizations may also 
participate in the MWR Composite Insurance Program, if desired: Child 
welfare centers, billeting funds, chapel funds, and civilian welfare 
funds.
    (c) When the operations of NAFI's result in property damage or 
personal injury, the insurance carrier, if any, should be given 
immediate written notification. Notification should not be postponed 
until a claim is filed. When the activity is self-insured, the self-
insurance fund shall be notified of the potential liability by the 
activity.



Sec. 756.4  Responsibility.

    The primary responsibility for the negotiation and settlement of 
claims resulting from nonappropriated-fund activities is normally with 
the NAFI and its insurer. NAFI's, however, are Federal agencies within 
the meaning of the Federal Tort Claims Act if charged with an essential 
function of the Department of the Navy and if the degree of control and 
supervision by the Navy is more than casual or perfunctory. Compare 
United States v. Holcombe, 277 F.2d 143 (4th Cir. 1960) and Scott v. 
United States, 226 F. Supp. 846, (D. Ga. 1963). Consequently, to the 
extent sovereign immunity is waived by the Federal Tort Claims Act, 28 
U.S.C. 1346(b), 2671-2672, 2674-2680, the United States remains 
ultimately liable for payment of NAFI claims.



Sec. 756.5  Investigation.

    Claims arising out of the operation of NAFI's, in and outside the 
United

[[Page 434]]

States, shall be investigated in accordance with the procedures for 
investigating similar claims against appropriated fund activities in 
order to protect the residual liability of the United States. All claims 
should be submitted to the command having cognizance over the NAFI 
involved.



Sec. 756.6  Negotiation.

    (a) General. Claims from NAFI's should be processed primarily 
through NAFI claims procedures, using as guidelines the regulations and 
statutes applicable to similar appropriated fund activity claims.
    (b) When the NAFI is insured. When a NAFI is insured, the insurer or 
the contracted third-party claims administrator (TPA) will normally 
conduct negotiations with claimants. The appropriate naval adjudicating 
authority as shown in 32 CFR 750.34(c)(2)(ii) has the responsibility of 
monitoring the negotiations conducted by the insurer or TPA. Monitoring 
is normally limited to ascertaining someone has been assigned to 
negotiate, to obtain periodic status reports, and to close files on 
settled claims. Any dissatisfaction with the insurer's or TPA's handling 
of the negotiations should be referred directly to the Judge Advocate 
General for appropriate action. Under special circumstances, even when 
there is an insurer or TPA, the appropriate naval adjudicating authority 
may conduct negotiations, provided the command involved and the insurer 
agree to it. When an appropriate settlement is negotiated by the Navy, 
the recommended award will be forwarded to the insurer or TPA for 
payment.
    (c) When the NAFI is not insured. When there is no private, 
commercial insurer and the NAFI has made no independent arrangements for 
negotiations, the appropriate Navy adjudicating authority is responsible 
for conducting negotiations. When an appropriate settlement is 
negotiated by the Navy, the recommended award will be forwarded to the 
NAFI for payment from nonappropriated-funds.



Sec. 756.7  Payment.

    (a) Claims that can be settled for less than $1000.00. A claim not 
covered by insurance (or not paid by the insurer), that can be settled 
for $1000.00 or less, may be adjudicated by the commanding officer of 
the activity concerned or designee. The claim shall be paid out of funds 
available to the commanding officer.
    (b) Claims that cannot be settled for less than $1000.00. A claim 
negotiated by the Navy, not covered by insurance, that cannot be settled 
for less than $1000.00, shall be forwarded to the appropriate 
nonappropriated-fund headquarters command for payment from its 
nonappropriated-funds.
    (c) When payment is possible under another statute. In some cases 
neither the NAFI nor its insurer may be legally responsible. In those 
instances, when there is no negligence, and payment is authorized under 
some other statute, such as the Foreign Claims Act, 10 U.S.C. 2734-2736, 
the claim may be considered for payment from appropriated funds or may 
be referred to the Judge Advocate General for appropriate action.
    (d) Other claims. A NAFI's private insurance policy is usually not 
available to cover losses which result from some act or omission of a 
mere participant in a nonappropriated-fund activity. In the event the 
NAFI declines to pay the claim, the file shall be forwarded to the Judge 
Advocate General for determination.



Sec. 756.8  Denial.

    Claims resulting from nonappropriated-fund activities may be denied 
only by the appropriate naval adjudicating authority. Such a denial is 
necessary to begin the 6-month limitation on filing suit against the 
United States for claims filed under the Federal Tort Claims Act. Denial 
of a claim shall be in writing and in accordance with subparts A or B of 
part 750 of this chapter, as appropriate. The appropriate naval 
adjudicating authority should not deny claims which have initially been 
processed and negotiated by a nonappropriated-fund activity, its insurer 
or TPA until the activity or its insurer has clearly stated in writing 
that it does not intend to pay the claim and has elected to defend in 
court.

[[Page 435]]



Sec. 756.9  Claims by employees.

    (a) Personal injury or death of citizens or permanent residents of 
the United States employed anywhere, or foreign nationals employed 
within the United States. Compensation is provided by the Longshore and 
Harbor Workers' Compensation Act (33 U.S.C. 901-950) for employees of 
NAFI's who have suffered injury or death arising out of and in the 
course of their employment (5 U.S.C. 8171). That Act is the exclusive 
basis for Government liability for injuries or deaths that are covered 
(5 U.S.C. 8173). A claim should first be made under that Act if there is 
a substantial possibility the injury or death is covered.
    (b) Personal injury or death of foreign nationals employed outside 
of the continental United States. Employees who are not citizens or 
permanent residents, and who are employed outside the continental United 
States, are protected by private insurance of the NAFI or by other 
arrangements (5 U.S.C. 8172). When a nonappropriated-fund activity has 
neglected to obtain insurance coverage or to make other arrangements, 
the matter shall be processed as a Foreign Claims Act or a Military 
Claims Act claim if appropriate, and any award will be paid from 
nonappropriated-funds.



PART 757--AFFIRMATIVE CLAIMS REGULATIONS--Table of Contents




                    Subpart A--Property Damage Claims

Sec.
757.1  Scope of subpart A.
757.2  Statutory authority.
757.3  Regulatory authority.
757.4  Claims that may be collected.
757.5  Assertion of claims and collection procedures.
757.6  Waiver, compromise, and referral of claims.
757.7-757.10  [Reserved]

           Subpart B--Medical Care Recovery Act (MCRA) Claims

757.11  Scope of subpart B.
757.12  Statutory authority.
757.13  Responsibility for MCRA action.
757.14  Claims asserted.
757.15  Claims not asserted.
757.16  Claims asserted only with JAG approval.
757.17  Statute of limitations.
757.18  Asserting the claim.
757.19  Waiver and compromise.
757.20  Receipt and release.

    Authority: 5 U.S.C. 301; 10 U.S.C. 939, 5013, and 5148; E.O. 11476, 
3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202.

    Source: 57 FR 5072, Feb. 12, 1992, unless otherwise noted.



                    Subpart A--Property Damage Claims



Sec. 757.1  Scope of subpart A.

    Subpart A describes how to assert, administer, and collect claims 
for damage to or loss or destruction of Government property through 
negligence or wrongful acts.



Sec. 757.2  Statutory authority.

    (a) General. With the exception of MCRA claims, all affirmative 
claims for money or property in favor of the United States shall be 
processed in accordance with the Federal Claims Collection Act (31 
U.S.C. 3711). Department of Defense Directive 5515.11 \1\ of 10 December 
1966 delegates to the Secretary of the Navy, and designees, the 
authority granted to the Secretary of Defense under the Federal Claims 
Collection Act.
---------------------------------------------------------------------------


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

    (b) Statute of limitations. There is a 3-year statute of limitations 
on affirmative Government tort claims pursuant to 28 U.S.C. 2415(b).



Sec. 757.3  Regulatory authority.

    The regulations published in 4 CFR chapter II control the collection 
and settlement of affirmative claims. This section supplements the 
material contained in those regulations. Where this section conflicts 
with the materials and procedure published in 4 CFR chapter II, the 
latter controls.



Sec. 757.4  Claims that may be collected.

    (a) Against responsible third parties for damage to government 
property, or the property of nonappropriated-fund activities. It should 
be noted, however, that as a general rule, the Government does

[[Page 436]]

not seek payment from servicemembers and Government employees for 
damages caused by their simple negligence. Exceptions to this general 
policy will be made when the incident involves aggravating 
circumstances.
    (b) For medical costs from third party payers in accordance with 10 
U.S.C. 1095. These claims are asserted and collected by the medical 
treatment facilities under the coordination of benefits program.
    (c) For money paid or reimbursed by the government for damage to a 
rental car in accordance with the Joint Federal Travel Regulations 
(volume 1, paragraph U 3415-C and volume 2, paragraph C 2101-2). 
Collection action shall be taken against third parties liable in tort. 
Collection action shall not be taken against Government personnel who 
rented the vehicle.
    (d) Other claims. Any other claim for money or property in favor of 
the United States cognizable under the Federal Claims Collection Act not 
specifically listed above.



Sec. 757.5  Assertion of claims and collection procedures.

    (a) General. The controlling procedures for administrative 
collection of claims are established in 4 CFR part 102.
    (b) Officials authorized to pursue claims. The following officers 
are authorized to pursue and collect all affirmative claims in favor of 
the United States:
    (1) The Judge Advocate General; the Deputy Judge Advocate General; 
any Assistant Judge Advocate General; and the Deputy Assistant Judge 
Advocate General (Claims and Tort Litigation); and
    (2) Commanding officers of Naval Legal Service Offices and 
applicable Detachments, except Naval Legal Service Offices in countries 
where another service has single service responsibility in accordance 
with DOD Directive 5515.8.\2\
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    \2\ See footnote 1 to Sec. 757.2.
---------------------------------------------------------------------------

    (c) Dollar limitations. All of the officers listed in Sec. 757.5(b) 
are authorized to compromise and terminate collection action on 
affirmative claims of $20,000.00 or less.
    (d) Determining liability. Liability must be determined in 
accordance with the law of the place in which the damage occurred, 
including the applicable traffic laws, elements of tort, and possible 
defenses.
    (e) Assertion of a claim. (1) Assertion of the claim is accomplished 
by mailing to the tortfeasor a ``Notice of Claim.'' The notice is to be 
mailed certified mail, return receipt requested, and should include the 
following information:
    (i) Reference to the statutory right to collect;
    (ii) A demand for payment or restoration;
    (iii) A description of damage;
    (iv) The date and place of the incident; and
    (v) The name, phone number, and office address of the claims 
personnel to contact.
    (2) See also 4 CFR part 102.
    (f) Full payment. When a responsible party or insurer tenders full 
payment or a compromise settlement on a claim, the payment should be in 
the form of a check or money order made payable to the collection 
activity, such as the ``Commanding Officer, Naval Legal Service Office, 
(Name).'' The check or money order shall then be forwarded to the 
disbursing officer serving the collecting activity for deposit in 
accordance with the provisions of the Navy Comptroller Manual.
    (g) Installment payments. See 4 CFR 102.11 for specific procedures. 
In general, if the debtor is financially unable to pay the debt in one 
lump sum, an installment payment plan may be arranged. Installment 
payments will be required on a monthly basis and the size of payment 
must bear a reasonable relation to the size of the debt and the debtor's 
ability to pay. The installment agreements should specify payments of 
such size and frequency to liquidate the Government's claim in not more 
than 3 years. Installment payments of less than $50.00 per month should 
be accepted only if justified on the grounds of financial hardship or 
for some other reasonable cause. In all installment arrangements, a 
confession

[[Page 437]]

of judgment note setting out a repayment schedule should be executed.
    (h) Damage to nonappropriated-fund instrumentality (NAFI) property. 
Any amount collected for loss or damage to property of a NAFI shall be 
forwarded to the headquarters of the nonappropriated-fund activity for 
deposit with that activity. In those situations where the recovery 
involves damage to both NAFI-owned property and other Government 
property, e.g., destruction of an exchange building resulting in damage 
to both the building and the exchange-owned property inside, recovery 
for the exchange-owned property shall be forwarded to the NAFI. Recovery 
for building damage shall be deposited in accordance with Sec. 757.5(f) 
above.
    (i) Damage to industrial-commercial property. When a loss or cost of 
repair has been borne by an industrial-commercial activity, payment 
shall be deposited in the Navy Industrial Fund of the activity in 
accordance with the provisions of the Navy Comptroller Manual. When a 
claim is based on a loss or damage sustained by such an activity, a 
notation to this effect shall be included in any claim file forwarded to 
the Judge Advocate General.
    (j) Replacement in kind or repair. The responsible party, or 
insurer, may want to repair or replace in kind damaged property. The 
commanding officer or officer in charge of the activity sustaining the 
loss is authorized to accept repair or replacement if, in his 
discretion, it is considered to be in the best interests of the United 
States.
    (k) Release. The commanding officer or officer in charge is 
authorized to execute a release of the claim when all repairs have been 
completed to the Government's satisfaction, and when all repair bills 
have been paid. No prior approval from the Judge Advocate General is 
required for this procedure. If repair or replacement is made, a 
notation shall be made in any investigation or claims file.



Sec. 757.6  Waiver, compromise, and referral of claims.

    (a) Officials authorized to compromise claims. The officers 
identified in Sec. 757.5(b) may collect the full amount on all claims, 
and may compromise, execute releases or terminate collection action on 
all claims of $20,000.00 or less. Collection action may be terminated 
for the convenience of the Government if the tortfeasor cannot be 
located, is found to be judgment-proof, has denied liability, or has 
refused to respond to repeated correspondence concerning legal liability 
involving a small claim. A termination for the convenience of the 
Government is made after it is determined that the case does not warrant 
litigation or that it is not cost-effective to pursue recovery efforts.
    (b) Claims over $100,000.00. Claims in excess of $100,000.00 may not 
be compromised for less than the full amount or collection action 
terminated without approval from the Department of Justice (DOJ).
    (c) Notification. The Judge Advocate General shall be notified prior 
to all requests made to the DOJ to compromise, terminate collection, or 
referral for further collection action or litigation.
    (d) Litigation Reports. Litigation reports prepared in accordance 
with 4 CFR part 103 shall be forwarded to the DOJ along with any case 
file forwarded for further collection action or litigation as required 
by the Federal Claims Collections Standards.



Secs. 757.7-757.10  [Reserved]



           Subpart B--Medical Care Recovery Act (MRCA) Claims



Sec. 757.11  Scope of subpart B.

    Subpart B describes the assertion and collection of claims for 
medical care under the Medical Care Recovery Act (MCRA). The MCRA states 
that when the Federal Government provides treatment or pays for 
treatment of an individual who is injured or suffers a disease, the 
Government is authorized to recover the reasonable value of that 
treatment from any third party legally liable for the injury or disease.



Sec. 757.12  Statutory authority.

    Medical Care Recovery Act, 42 U.S.C. 2651-2653 (1982).

[[Page 438]]



Sec. 757.13  Responsibility for MCRA action.

    (a) JAG designees. (1) Primary responsibility for investigating, 
asserting, and collecting Department of the Navy (DON) MCRA claims and 
properly forwarding MCRA claims to other Federal departments or agencies 
rests with the following officers:
    (i) Commanding officers and officers in charge, Naval Legal Service 
Command (NLSC) activities, in their areas of geographic responsibility;
    (ii) Officer in charge, U.S. Sending State Office, Rome in his area 
of geographic responsibility.
    (2) JAG designees may assert and receive full payment on any MCRA 
claim. They may, however, agree to compromise or waive only claims for 
$40,000.00 or less. Claims in excess of $40,000.00 may be compromised or 
waived only with DOJ approval. Such claims will be forwarded to the 
Judge Advocate General in accordance with Sec. 757.6. See Sec. 757.7 for 
further discussion of waiver and compromise.
    (b) Navy Medical Treatment Facilities (MTF). (1) Naval MTF's are 
responsible for ensuring potential MCRA claims are brought to the 
attention of the appropriate NLSC activity or U.S. Sending State Office 
(USSSO).
    (2) The MTF reports all potential MCRA cases by forwarding a copy of 
the daily injury log entries and admissions records to the cognizant 
NLSC activity or USSSO within 7 days of treatment for which a third 
party may be liable. The NLSC activity or USSSO makes the determination 
of liability.
    (i) MTF computes the value of the care it provided on NAVJAG Form 
5890/12. Rates used to compute this value are published annually in the 
Federal Register by the Office of Management and Budget.
    (ii) Block 4 of NAVJAG Form 5890/12 requires a statement from the 
patient describing the circumstances of the injury or disease.
    (iii) An ``interim'' report is prepared for inpatients only. An 
interim report is prepared every 4 months until the patient is released, 
transferred or changed to an outpatient status.
    (iv) A ``final'' report is prepared for all patients when inpatient 
and outpatient treatment is completed or the patient's care is 
transferred to another facility. A narrative summary should accompany 
the final report in all cases involving inpatient care. In addition, the 
back side of NAVJAG Form 5890/12 is completed as part of the final 
report when the value of Federal Government care exceeds $1,000.00.
    (c) The Office of Medical and Dental Affairs (OMA). The office pays 
emergency civilian medical expenses incurred by active duty members. 
This office furnishes MCRA claims information to the NLSC activity or 
USSSO. The address is Bldg. 38H, U.S. Naval Training Center, Great 
Lakes, IL 60088-5200.
    (d) Civilian Health and Medical Program of the Uniformed Services 
(CHAMPUS) contractors. CHAMPUS contractors forward reports of payments 
in injury cases to the appropriate NLSC activity. Responsible JAG 
designees should, however, initiate regular contact with contractors 
within their geographic area to ensure all relevant cases have been 
reported.
    (e) Department of Justice (DOJ). Only the DOJ may authorize 
compromise or waiver of an MCRA claim in excess of $40,000.00; settle an 
MCRA claim which was previously forwarded by the DON to DOJ for action; 
or settle an MCRA claim in which the third party has filed a suit 
against the United States or the injured person as a result of the 
incident which caused the injury.



Sec. 757.14  Claims asserted.

    (a) General. The DON asserts MCRA claims when medical care is 
furnished to Navy and Marine Corps active duty personnel, retirees, or 
their dependents, and third-party tort liability for the injury or 
disease exists. Claims are asserted when the injured party is treated in 
a military MTF or when the DON is responsible for reimbursing a non-
Federal care provider. Claims for medical care furnished are also 
asserted using alternate theories of recovery if the MCRA does not 
apply. See Sec. 757.14(e).
    (b) Independent cause of action. The MCRA creates an independent 
cause of action for the United States. The Government can 
administratively assert and litigate MCRA claims in its own

[[Page 439]]

name and for its own benefit. Procedural defenses, such as a failure of 
the injured person to properly file and/or serve a complaint on the 
third party, that may prevent the injured person from recovering, do not 
prevent the United States from pursuing its own action to recover the 
value of medical treatment provided to the injured person. The right 
arises directly from the statute; the statutory reference to subrogation 
pertain only to one mode of enforcement. In creating an independent 
right in the Government, the Act prevents a release given by the injured 
person to a third party from affecting the Government's claim.
    (c) Liable parties. MCRA claims may be asserted against individuals, 
corporations, associations and non-Federal Government agencies subject 
to the limitations described in Sec. 757.15.
    (d) Reasonable value of medical care. The reasonable value of 
medical care provided to an injured person is determined:
    (1) By using the rates set by the Office of Management and Budget 
and published in the Federal Register for care provided in Federal 
medical care facilities; or
    (2) By the actual amount paid by the Federal Government to non-
Federal medical care providers.
    (e) Alternate Theories of Recovery. Often, recovery under the MCRA 
is not possible because no third-party tort liability exists. For 
example, if a member, retiree, or dependent is driving a vehicle and is 
injured in a single-car accident, there is no tortfeasor. State law, 
including insurance, workers' compensation, and uninsured motorist 
coverage provisions, determines the DON's right to recover in situations 
not covered by the MCRA. If, under the law where the injury occurred, 
the injured party is entitled to compensation for medical care received, 
usually the Federal Government may recover. The two most common 
alternate theories are described below.
    (1) Recovery may be possible under the injured party's automobile 
insurance policy. In most cases, the Federal Government should seek 
recovery as a third-party beneficiary under the medical payments or the 
underinsured/uninsured portion of the injured party's policy. The 
ability of the Federal Government to recover as a third-party 
beneficiary has been upheld in some states, while other states have 
taken the contrary position.
    (2) Recovery may also be possible under State workers' compensation 
laws. Case law in this area is still emerging, but in most 
jurisdictions, the United States stands in the position of a lien 
claimant for services rendered.



Sec. 757.15  Claims not asserted.

    In some cases, the MCRA or public policy considerations limit the 
DON's assertion of claims against apparent third-party tortfeasors. MCRA 
claims are not asserted against:
    (a) Federal Government agencies. Claims are not asserted against any 
department, agency or instrumentality of the United States. ``Agency or 
instrumentality'' includes self-insured, non-appropriated-fund 
activities but does not include private associations.
    (b) Injured servicemembers, dependents and employers of the United 
States. Claims are not asserted directly against a servicemember, the 
dependent of a servicemember, or an employee of the United States who is 
injured as a result of his willful or negligent acts. The United States 
does assert, however, against medical care and treatment insurance 
coverage the member, employee, or dependent might have.
    (c) Employers of merchant seamen. Claims are not asserted against 
the employer of a merchant seaman who receives Federal medical care 
under 42 U.S.C. 249.
    (d) Department of Veterans Affairs care for service-connected 
disability. Claims are not asserted for care provided to a veteran by 
the Department of Veterans Affairs when the care is for a service-
connected disability. The United States will, however, claim for the 
reasonable value of care provided an individual before he is transferred 
to a Department of Veterans Affairs hospital.



Sec. 757.16  Claims asserted only with JAG approval.

    The responsible NLSC activity or USSSO will investigate potential 
MCRA claims against the following

[[Page 440]]

third parties and forward a copy of their claims file, along with 
recommendations on assertion, to the Judge Advocate General:
    (a) Certain Government contractors. JAG approval is required before 
asserting an MCRA claim against a Federal Government contractor when the 
contract provides that the contractor will be indemnified or held 
harmless by the Federal Government for tort liability.
    (b) Foreign Governments. JAG approval is required before asserting 
MCRA claims against foreign governments, their political subdivisions, 
Armed Forces members, or civilian employees.
    (c) U.S. personnel. JAG approval is required before asserting MCRA 
claims against U.S. servicemembers, their dependents and employees of 
the United States, or their dependents for injury to another person.



Sec. 757.17  Statute of limitations.

    (a) Federal. The United States, or the injured party on behalf of 
the United States, must file suit within 3 years after an MCRA action 
accrues. 28 U.S.C. 2415. Generally this is 3 years from the date of 
initial Federal treatment or Federal Government payment to a private 
care provider, whichever is first.
    (b) State. Some State statutes of limitations may also apply where 
recovery is based on authority such as workers' compensation statutes, 
no-fault insurance statutes, no-fault medical payments, or uninsured 
motorist provisions of insurance contracts.



Sec. 757.18  Asserting the claim.

    (a) Initial action by JAG designee. When advised of a potential MCRA 
claim, the JAG designee will determine the Federal agency or department 
responsible for investigating and asserting the claim.
    (1) When the DON has reimbursed a non-Federal provider for health 
care or when CHAMPUS has made payment for a Navy health care 
beneficiary, the DON will assert any resulting MCRA claim.
    (2) When care is provided in a Federal treatment facility, the 
status of the injured person will determine the agency which will assert 
a resulting MCRA claim.
    (i) Where Navy or Marine Corps members, retirees, or their 
dependents receive medical treatment from another Federal agency or 
department, the DON will usually assert any MCRA claim on behalf of the 
United States based on information provided by the treating agency or 
department.
    (ii) Similarly, where a Navy MTF provides care to personnel of 
another Federal agency or department, that other agency or department 
will usually assert any claim on behalf of the United States.
    (3) If the claim is not one which the DON should assert, the JAG 
designee will forward all available information to the appropriate 
department or agency.
    (4) If the claim is one which the DON should assert, the JAG 
designee will ensure an appropriate investigation into the circumstances 
underlying the claim is initiated and will provide notice to the injured 
party and all third parties who may be liable to the injured person and 
the United States under the MCRA.
    (b) Investigating the claim. While there is no prescribed form or 
content for investigating these claims, the claims file will contain 
sufficient information on which to base valuation, assertion, 
settlement, waiver, and/or compromise decisions. Usually the file will 
contain:
    (1) Identification of each person involved in the incident including 
name, address, occupation, and nature of involvement;
    (2) Police, social service, and other Federal, State and local 
agency reports on the incident;
    (3) Completed copies of NAVJAG Form 5890/12 \3\ or equivalent forms 
from other agencies and departments;
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    \3\ See footnote 3 to Sec. 757.2.
---------------------------------------------------------------------------

    (4) Inpatient summaries and outpatients records of treatment of the 
involved injury in non-Federal facilities;
    (5) Documents reflecting Federal payment for non-Federal treatment 
of the injured person;
    (6) Calculations of the reasonable value of the Government's MCRA 
claim;

[[Page 441]]

    (7) Itemized repair bills or estimates of repair of damaged Federal 
Government property;
    (8) Where an identified third-party tortfeasor is a uniformed 
servicemember or a U.S. employee, information and findings concerning 
that person's duty or scope of employment status at the time of the 
incident giving rise to the injury;
    (9) Where an identified third-party tortfeasor is a uniformed 
servicemember or a U.S. employee or the dependent of a uniformed service 
member or U.S. employee, information and findings concerning whether 
that individual was grossly negligent or willfully culpable and whether 
that individual had insurance coverage at the time of the incident 
giving rise to the injury;
    (10) Financial information on identified third-party tortfeasors 
including names and addresses of insurance carriers, insurance policy 
numbers, and extent of coverage; and
    (11) A statement whether the injured person or his attorney will 
protect the interests of the United States.
    (c) Claims forwarded to JAG or DOJ. In those cases where the file 
must be forwarded to JAG or DOJ, the file will also include:
    (1) A summary of the case which includes the circumstances of the 
incident which caused the injury, the source, extent and value of 
medical care provided and a brief of the applicable law on the liability 
of the third party;
    (2) Copies of all correspondence; and
    (3) Recommended disposition.
    (d) Request for assistance in conducting investigation. When an 
injury for which the DON may assert an MCRA claim occurs at a place 
where the DON does not have a command, unit, or activity conveniently 
located for conducting an inquiry into the circumstances underlying the 
injury, the NLSC activity or USSSO having responsibility for 
administering any resulting MCRA claim may request assistance from any 
other command, unit, or activity within the DOD. Such assistance may 
take the form of a complete inquiry into the circumstances underlying 
the incident or it may only cover part of the necessary inquiry and fact 
gathering. If a NLSC activity or USSSO receives a similar request from 
another command, unit or activity within the DOD, every effort should be 
made to honor the request. Assistance will normally be provided without 
reimbursement from the requesting service.
    (e) Notice of claim. (1) The JAG designee will assert appropriate 
MCRA claims by mailing, certified mail, return receipt requested, a 
notice of claim (SF 96) to identified third-party tortfeasors and their 
insurers, if known. Many insured tortfeasors fail to notify their 
insurance companies of incidents. This failure may be a breach of the 
cooperation clause in the policy and may be grounds for the insurer to 
refuse to defend the insured or be responsible for any liability. The 
United States, as a claimant, may preclude such an invocation by giving 
the requisite notification itself. The purpose of the insurance clause 
is satisified if the insurer receives actual notice of the incident, 
regardless of the informant. This notice should be mailed as soon as it 
reasonably appears an identified third party may be liable for the 
injuries to the injured person. It is not necessary or desirable to 
delay mailing this notice until the completion of the investigation 
convened to inquire into the circumstances underlying the incident 
causing the injury. The prompt assertion of the claim will ensure that 
the Government is named on the settlement draft. If the United States is 
not so named, and the claim has been asserted, the insurer settles at 
its own risk.
    (2) The JAG designee will also notify the injured person or his 
legal representative of the Government's interest in the value of the 
medical care provided by the United States. This notice will advise 
that:
    (i) The United States may be entitled to recover the reasonable 
value of medical care furnished or paid for by the Federal Government;
    (ii) The injured person is required to cooperate in the efforts of 
the United States to recover the reasonable value of medical care 
furnished or paid for by the Federal Government;

[[Page 442]]

    (iii) The injured person is required to furnish a statement 
regarding the circumstances surrounding the care and treatment;
    (iv) The injured person may seek legal guidance concerning any 
possible claim for personal injury;
    (v) The injured person is required to furnish information concerning 
legal action brought against any individual involved in the incident and 
provide the name of counsel representing the parties to such an action; 
and
    (vi) The injured person should not execute a release or settle a 
claim arising from the incident causing the injury without first 
notifying the JAG designee.
    (f) Administering the claim. (1) After investigating and asserting 
the claim, the JAG designee will maintain contact with all parties, 
their legal representatives, and insurers.
    (2) An effort should be made to coordinate collection of the Federal 
Government's MCRA interest with the injured person's action to collect 
his own claim for damages.
    (i) Attorneys representing an injured person may be authorized to 
include the Federal Government's MCRA claim as an item of special 
damages with the injured person's claim or suit.
    (ii) An agreement that the Government's claim will be made a party 
of the injured person's action should be in writing and state that 
counsel fees will not be paid by the Government or computed on the basis 
of the Government's portion of recovery.
    (3) If the injured person is not bringing an action for damages or 
is refusing to include the Federal Government's MCRA interest, the JAG 
designee will pursue independent collection. The United States is 
specifically allowed to intervene or join in any action at law brought 
by or through the injured person against the liable third person or 
bring an original suit in its own name or in the name of the injured 
person. The JAG designee will ensure all parties are aware that the 
United States must be a party to all subsequent collection negotiation.
    (4) When the MCRA interests are not being represented by the injured 
person and independent collection efforts have failed, the JAG designee 
will request JAG to refer the claim to the DOJ for possible suit. In 
such cases, the JAG designee will forward the complete file to JAG in 
accordance with Secs. 757.18 (b) and (c).
    (g) Access to DON records and information. (1) The medical records 
of the injured person will be released to the injured person or his 
legal representative upon request. This release will be without cost 
except in unusual circumstances. These records may not be released to 
anyone else outside the DON except in accordance with the provisions of 
the Privacy Act, 5 U.S.C. 552a. Usually such a release will require 
authorization from the injured individual or legal representative or an 
order from a court of competent jurisdiction. A clerk or attorney signed 
subpoena is not ``an order from a court of competent jurisdiction.''
    (2) In appropriate cases, military health care providers who have 
examined or treated the injured person may be made available by their 
commands to testify regarding the medical care provided to the injured 
person. Requests for such testimony will be processed in accordance with 
DOD Directive 5405.2, 28 CFR part 725, and 32 CFR part 725, except when 
the injured party is asserting the Federal Government's MCRA claim as 
part of his action for damages. In that situation, the injured person or 
legal representative is considered also to be a representative of the 
United States and the foregoing regulations are not applicable. In such 
a case, the JAG designee may, if appropriate, request the command of an 
involved military health care provider to make the provider available 
for testimony on behalf of the injured person.



Sec. 757.19  Waiver and compromise.

    (a) General. A JAG designee may authorize waiver or compromise of 
any MCRA claim under his authority which does not exceed $40,000.00. A 
third party's liability for medical costs to the United States arising 
from a particular incident will be considered as a single claim in 
determining whether the claim is more than $40,000.00 for the purpose of 
waiver and compromise. When the JAG designee considers waiver or 
compromise appropriate in a claim which exceeds $40,000.00, the

[[Page 443]]

claim file will be forwarded to JAG in accordance with Secs. 757.18 (b) 
and (c).
    (b) Waiver. The JAG designee may waive the Federal Government's MCRA 
interest when a responsible third-party tortfeasor cannot be located, is 
judgment proof, or has refused to pay and litigation is not feasible. 
Waiver is also appropriate when, upon written request by the injured 
person or legal representative, it is determined that collection would 
cause undue hardship to the injured person. In assessing undue hardship, 
the following circumstances of the injured person should be considered:
    (1) Permanent disability or disfigurement;
    (2) Lost earning capacity;
    (3) Out-of-pocket expenses;
    (4) Financial status;
    (5) Disability, pension and similar benefits available;
    (6) Amount of settlement or award from third-party tortfeasor; and
    (7) Any other factors which objectively indicate fairness requires 
waiver.
    (c) Compromise. The JAG designee may, upon written request of the 
injured person or legal representative, compromise the Federal 
Government's MCRA interest using the criteria listed above.



Sec. 757.20  Receipt and release.

    (a) Payment. The JAG designee may receive payment in part or in full 
for any claim for which he is responsible. Written acknowledgment of 
this receipt will be mailed to the party making payment and a copy of 
the acknowledgement kept in the claim file.
    (b) Release. The JAG designee will execute and deliver a release to 
third parties making full or compromised payment on the Federal 
Government's MCRA interest. A copy of the release will be kept in the 
claims file.

[[Page 444]]



              SUBCHAPTER F--ISLANDS UNDER NAVY JURISDICTION





PART 761--NAVAL DEFENSIVE SEA AREAS; NAVAL AIRSPACE RESERVATIONS, AREAS UNDER NAVY ADMINISTRATION, AND THE TRUST TERRITORY OF THE PACIFIC ISLANDS--Table of Contents




                         Subpart A--Introduction

Sec.
761.1  Scope.
761.2  Background and general policy.
761.3  Authority.
761.4  Special provisions.
761.5  Definitions.

                 Subpart B--Criteria and Basic Controls

761.6  Criteria.
761.7  Basic controls.

                     Subpart C--Entry Authorization

761.8  General.
761.9  Entry Control Commanders.
761.10  Persons: Group authorizations.
761.11  Persons: Individual authorizations.
761.12  Ships: Group authorizations.
761.13  Ships: Individual authorizations.
761.14  Aircraft: Group authorizations.
761.15  Aircraft: Individual authorizations.
761.16  Notice of action.
761.17  Revocation.
761.18  Appeals.
761.19  Forms.

                   Subpart D--Additional Instructions

761.20  Additional regulations governing persons and vessels in Naval 
          Defensive Sea Areas.

    Authority: 5 U.S.C. 301, 10 U.S.C. 5031, 6011, 18 U.S.C. 2152. The 
text of part 761 contains additional references, including Executive 
Orders.

    Source: 28 FR 13778, Dec. 18, 1963, unless otherwise noted.



                         Subpart A--Introduction



Sec. 761.1  Scope.

    (a) This part provides regulations governing the entry of persons, 
ships, and aircraft into:
    (1) Naval Defensive Sea Areas and Naval Airspace Reservations 
established by Executive order of the President (see Sec. 761.3(a)).
    (2) Areas placed under the Secretary of the Navy for administrative 
purposes by Executive order of the President (see Sec. 761.3(b)).
    (3) The Trust Territory of the Pacific Islands (see Sec. 761.3(c)).
    (b) The entry authorizations issued under the authority of this part 
do not supersede or eliminate the need for visas or other clearances or 
permits required by other law or regulation.
[28 FR 13778, Dec. 18, 1963, as amended at 35 FR 10008, June 18, 1970]



Sec. 761.2  Background and general policy.

    (a) Certain areas, due to their strategic nature or for purposes of 
defense, have been subjected to restrictions regarding the free entry of 
persons, ships, and aircraft. Free entry into the areas listed and 
defined in this part, and military installations contiguous to or within 
the boundaries of defense areas, is subject to control as provided for 
by Executive order or other regulation. The object of controls over 
entry into naval defensive sea areas, naval airspace reservations, 
administrative areas, and the Trust Territory of the Pacific Islands, is 
to provide for the protection of military installations as well as other 
facilities, including the personnel, property, and equipment assigned to 
or located therein. Persons, ships, and aircraft are excluded unless and 
until they qualify for admission under the applicable Executive order or 
regulation.
    (b) The control of entry into or movement within defense areas by 
persons, ships, or aircraft will be exercised so as to fully protect the 
physical security of, and insure the full effectiveness of, bases, 
stations, facilities and other installations within or contiguous to 
defense areas. However, unnecessary interference with the free movement 
of persons, ships, and aircraft is to be avoided.
    (c) This part will be administered so as to provide for the prompt 
processing of all applications and to insure uniformity of 
interpretation and application, insofar as changing conditions permit.

[[Page 445]]

    (d) In cases of doubt, the determination will be made in favor of 
the course of action which will best serve the interests of the United 
States and national defense as distinguished from the private interests 
of an individual or group.
[28 FR 13778, Dec. 18, 1963, as amended at 35 FR 10008, June 18, 1970]



Sec. 761.3  Authority.

    (a) Naval Defensive Sea Areas and Naval Airspace Reservations. By 
Executive orders, as amended, the President has reserved, set aside, and 
established the following Naval Defensive Sea Areas and Naval Airspace 
Reservations under the control of the Secretary of the Navy. 
Incorporated therein are provisions for the exercise of control by the 
Secretary over the entry of persons, ships, and aircraft into the areas 
so described. (See Sec. 761.4(b) for delineation of areas where entry 
controls are suspended.)
    (1) Atlantic areas. Guantanamo Bay Naval Defensive Sea Area; 
Guantanamo Bay Naval Airspace Reservation: Executive Order 8749 of May 
1, 1941 (6 FR 2252; 3 CFR, 1943 Cum. Supp., p. 931).
    (2) Pacific areas. (i) Honolulu Defensive Sea Area: Executive Order 
8987 of December 20, 1941 (6 FR 6675; 3 CFR, 1943 Cum. Supp., p. 1048).
    (ii) Kaneohe Bay Naval Defensive Sea Area; Kaneohe Bay Naval 
Airspace Reservation: Executive Order 8681 of February 14, 1941 (6 FR 
1014; 3 CFR, 1943 Cum. Supp., p. 893).
    (iii) Pearl Harbor Defensive Sea Area: Executive Order 8143 of May 
26, 1939 (4 FR 2179; 3 CFR, 1943 Cum. Supp., p. 504).
    (iv) Johnston Island Naval Defensive Sea Area; Johnston Island Naval 
Airspace Reservation: Executive Order 8682 of February 14, 1941 (6 FR 
1015; 3 CFR, 1943 Cum. Supp., p. 894) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919) and 
Executive Order 9881 of August 4, 1947 (12 FR 5325; 3 CFR, 1943-1948 
Comp., p. 662).
    (v) Kingman Reef Naval Defensive Sea Area; Kingman Reef Naval 
Airspace Reservation: Executive Order 8682 of February 14, 1941 (6 FR 
1015; 3 CFR, 1943 Cum. Supp., p. 894) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919) and 
Executive Order 9881 of August 4, 1947 (12 FR 5325; 3 CFR, 1943-1948 
Comp., p. 662).
    (vi) Midway Island Naval Defensive Sea Area; Midway Island Naval 
Airspace Reservation: Executive Order 8682 of February 14, 1941 (6 FR 
1015; 3 CFR, 1943 Cum. Supp., p. 894) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919) and 
Executive Order 9881 of August 4, 1947 (12 FR 5325; 3 CFR, 1943-1948 
Comp., p. 662).
    (vii) Wake Island Naval Defensive Sea Area; Wake Island Naval 
Airspace Reservation: Executive Order 8682 of February 14, 1941 (6 FR 
1015; 3 CFR, 1943 Cum. Supp., p. 894) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919) and 
Executive Order 9881 of August 4, 1917 (12 FR 5325; 3 CFR, 1943-1948 
Comp., p. 662).
    (viii) Kiska Island Naval Defensive Sea Area; Kiska Island Naval 
Airspace Reservation: Executive Order 8680 of February 14, 1941 (6 FR 
1014; 3 CFR 1943 Cum. Supp., p. 892) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919).
    (ix) Kodiak Naval Defensive Sea Area: Executive Order 8717 of March 
22, 1941 (6 FR 1621; 3 CFR, 1943 Cum. Supp., p. 915). Kodiak Naval 
Airspace Reservation: Executive Order 8597 of November 18, 1940 (5 FR 
4559; 3 CFR, 1943 Cum. Supp., p. 837) as amended by Executive Order 9720 
of May 8, 1946 (11 FR 5105; 3 CFR, 1943-1948 Comp., p. 527).
    (x) Unalaska Island Naval Defensive Sea Area, Unalaska Island Naval 
Air-space Reservation: Executive Order 8680 of February 14, 1941 (6 FR 
1014; 3 CFR, 1943 Cum. Supp., p. 892) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919). See 
Sec. 761.4(d) for delineation of areas where entry controls are 
suspended.
    (b) Administrative areas. By Executive orders, as amended, the 
President has reserved, set aside, and placed under the control and 
jurisdiction of the Secretary of the Navy for administrative purposes 
the following named areas including their appurtenant reefs and 
territorial waters:

[[Page 446]]

    (1) Johnston Island--Executive Order 6935 of December 29, 1934 as 
amended by Executive Order 11048 of September 4, 1962 (27 FR 8851; 3 
CFR, 1962 Supp., p. 241).
    (2) Kingman Reef--Executive Order 6935 of December 29, 1934 as 
amended by Executive Order 11048 of September 4, 1962 (27 FR 8851; 3 
CFR, 1962 Supp., p. 241).
    (3) Midway Island--Executive Order 11048 of September 4, 1962 (27 FR 
8851; 3 CFR, 1962 Supp., p. 241).
    (4) Sand Island--Executive Order 6935 of December 29, 1934 as 
amended by Executive Order 11048 of September 4, 1962 (27 FR 8851; 3 
CFR, 1962 Supp., p. 241).
    (c) Trust Territory of the Pacific Islands. The Trust Territory of 
the Pacific Islands is a strategic area administered by the United 
States under the provisions of a trusteeship agreement with the United 
Nations. Under Executive Order 11021 of May 7, 1962 (27 FR 4409; 3 CFR, 
1959-1963 Comp., p. 600), the Secretary of the Interior is charged with 
responsibility for administration of the civil government of the Trust 
Territory of the Pacific Islands. Under July 1, 1963 amendment two 
agreements effective July 1, 1951 and July 1, 1962 between the 
Department of the Navy and the Department of the Interior concerning 
responsibility for administration of the Government of the Trust 
Territory, the entry of individuals, ships and aircraft into the Trust 
Territory (other than areas under the control of the Department of the 
Army (Kwajalein Atoll) and of the Defense Nuclear Agency (Eniwetok 
Atoll) see Sec. 761.4) is controlled by the High Commissioner of the 
Trust Territory and the Department of the Navy as follows:
    (1) Entry of U.S. citizens and nationals and citizens of the Trust 
Territory, into areas of the Trust Territory other than those areas 
under control of the Department of the Army and the Defense Nuclear 
Agency as outlined above, shall be controlled by the High Commissioner.
    (2) All other persons: Applications for entry into the Trust 
Territory except for those areas under control of the Department of the 
Army or of the Defense Nuclear Agency, of all persons who are not U.S. 
citizens, U.S. nationals, or who are not citizens of the Trust 
Territory, shall be made to the High Commissioner for processing in 
accordance with the laws and regulations of the Trust Territory: 
Provided, That prior to the issuance of an authorization to enter the 
Trust Territory, the High Commissioner shall provide the Department of 
the Navy in all cases (with the exception of alien individuals who 
possess a valid U.S. visa and seek admission to the Trust Territory for 
a period of 30 days or less for the purpose of tourism) information on 
the applicants for its consideration and comment, granting thereby the 
Department of the Navy the right to object to the issuance of an 
authorization.
    (3) Ships and aircraft: (i) The entry of ships and aircraft, other 
than U.S. public ships and aircraft, documented under either the laws of 
the United States or the laws of the Trust Territory into areas of the 
Trust Territory, excepting those areas where entry is controlled by the 
Department of the Army (Kwajalein Atoll) and the Defense Nuclear Agency 
(Eniwetok Atoll), shall be controlled solely by the High Commissioner.
    (ii) Applications for entry into the Trust Territory, except for 
those areas under military control, of ships and aircraft not documented 
under the laws of the United States or the laws of the Trust Territory, 
shall be made to the High Commissioner for processing in accordance with 
the laws and regulations of the Trust Territory: Provided, That prior to 
the issuance of an authorization to enter the Trust Territory, the High 
Commissioner shall provide the Department of the Navy in all cases with 
information on the applicants for its consideration and comment, 
granting thereby the right of the Department of the Navy to object to 
the issuance of an authorization.
    (d) [Reserved]
    (e) Exercise of authority. The authority of the Secretary of the 
Navy to control entry of ships, planes, and persons into the areas 
listed is exercised through the Chief of Naval Operations and certain of 
his subordinates as prescribed in this part.
    (f) Penalties. Penalties are provided by law: (1) For violations of 
orders or regulations governing persons or ships within the limits of 
defensive sea areas

[[Page 447]]

(62 Stat. 799; 18 U.S.C. 2152); (2) for entering military, naval or 
Coast Guard property for prohibited purposes or after removal or 
exclusion therefrom by proper authority (62 Stat. 765; 18 U.S.C. 1382); 
(3) for violation of regulations imposed for the protection or security 
of military or naval aircraft, airports, air facilities, vessels, 
harbors, ports, piers, waterfront facilities, bases, forts, posts, 
laboratories, stations, vehicles, equipment, explosives, or other 
property or places subject to the jurisdiction, administration, or in 
the custody of the Department of Defense, any department or agency of 
which said department or agency consists, or any officer of employee of 
said department or agency (sec. 21 of the Internal Security Act of 1950 
(50 U.S.C. 797) and Department of Defense Directive 5200.8 of 20 August 
1954 (19 FR 5446)); and (4) for knowingly and willfully making a false 
or misleading statement or representation in any matter within the 
jurisdiction of any department or agency of the United States (18 U.S.C. 
1001).
[28 FR 13778, Dec. 18, 1963, as amended at 35 FR 10008, June 18, 1970; 
36 FR 21889, Nov. 17, 1971; 41 FR 28957, July 14, 1976]



Sec. 761.4  Special provisions.

    (a) Entry into islands in the Kwajalein Atoll under military 
jurisdiction is controlled by the Department of the Army. Inquiries 
concerning entries into islands under military control in the Kwajalein 
Atoll should be directed to: National Range Commander, U.S. Army 
Safeguard System Command, ATTN: SSC-R, P.O. Box 1500, Huntsville, AL 
35807.
    (b) Entry into Eniwetok Atoll is controlled by the Defense Nuclear 
Agency. Inquiries concerning entries into Eniwetok Atoll should be 
directed to: Commander, Field Command, Defense Nuclear Agency, Kirtland 
Air Force Base, NM 87115.
    (c) Entry into Johnston Atoll is controlled by the Defense Nuclear 
Agency. Inquiries concerning entries into Johnston Atoll should be 
directed to: Commander, Johnston Atoll (FCDNA), APO San Francisco, CA 
96305.
    (d) Suspension of restrictions. Restrictions imposed under the 
authority of the above cited Executive Orders on entry into the 
following Naval Defensive Sea Areas and Naval Airspace Reservations and 
Administrative Areas have been suspended subject to reinstatement 
without notice at any time when the purposes of national defense may 
require.
    (1) All Naval Airspace Reservations, except the Guantanamo Bay Naval 
Airspace Reservation
    (2) Honolulu Defensive Sea Area.
    (3) Kiska Island Naval Defensive Sea Area.
    (4) Kodiak Island Naval Defensive Sea Area.
    (5) Unalaska Island Naval Defensive Sea Area.
    (6) Wake Island Naval Defensive Sea Area except for entry of foreign 
flag ships and foreign nationals.
    (7) The portion of Kaneohe Defensive Sea Area lying beyond a 500 
yard buffer zone around the perimeter of the Kaneohe Marine Corps Air 
Station (Mokapu Peninsula) and eastward therefrom to Kapoho Point, Oahu.
    (e) Suspension of restrictions on entry into a naval airspace 
reservation, naval defensive sea area, or naval administrative area, 
does not affect the authority of a commanding officer or other 
appropriate commander to control entry into or passage through any base, 
station, or other installation or area, including port or harbor 
facilities under Navy control.
[41 FR 28957, July 14, 1976]



Sec. 761.5  Definitions.

    (a) Defense area. A naval defensive sea area, naval airspace 
reservation, or naval administrative area established by Executive order 
of the President.
    (b) Department of Defense. The Department of Defense, including the 
Departments of the Army, Navy, and Air Force.
    (c) Entry authorization. A document which authorizes a ship, 
aircraft, or person to enter a defense area.
    (d) Entry Control Commander. A commander empowered to issue entry 
authorizations for one or more defense areas (see Sec. 761.9).
    (e) Excluded person. A person who does not hold a currently valid 
entry authorization for the area concerned and who has been notified by 
an Entry Control Commander that authority for

[[Page 448]]

him to enter any defense area has been denied, suspended or revoked.
    (f) Foreign nationals. Persons who are not citizens or nationals of 
the United States.
    (g) Military installation. A military (Army, Navy, Air Force, Marine 
Corps, and/or Coast Guard) activity ashore, having a commanding officer, 
and located in an area having fixed boundaries, within which all persons 
are subject to military control and to the immediate authority of a 
commanding officer.
    (h) Public vessel or aircraft. A ship or aircraft owned by or 
belonging to a government and not engaged in commercial activity.
    (i) Territorial sea--(1) Trust Territory. In accordance with title 
19, section 101(3), of the Trust Territory Code ``* * * that part of the 
sea comprehended within the envelope of all arcs of circles having a 
radius of three marine miles drawn from all points of the barrier reef, 
fringing reef, or other reef system of the Trust Territory, measured 
from the low water line, or, in the absence of such reef system, the 
distance to be measured from the low water line of any island, islet, 
atoll, reef, or rocks within the jurisdiction of the Trust Territory.''
    (2) Other areas. That part of the sea included within the envelope 
of all arcs of circles having a radius of three marine miles with 
centers on the low water line of the coast. For the purpose of this 
definition, the term ``coast'' includes the coasts of islands, islets, 
rocks, atolls, reefs and other areas of land permanently above the high 
water mark.
    (j) Trust Territory Registry. Registration of a ship or aircraft in 
accordance with the laws of the Trust Territory.
    (k) U.S. Registry. Registration of a ship or aircraft in accordance 
with the laws and regulations of the United States.
    (l) U.S. Armed Forces. Military personnel of the Department of 
Defense, the Departments of the Army, Navy, Air Force, and the United 
States Coast Guard.
[28 FR 13778, Dec. 18, 1963, as amended at 35 FR 10009, June 18, 1970; 
41 FR 28958, July 14, 1976]



                 Subpart B--Criteria and Basic Controls



Sec. 761.6  Criteria.

    (a) General. (1) Entry authorizations may be issued only after an 
Entry Control Commander, or a duly authorized subordinate acting in his 
behalf, has determined that the presence of the person, ship, or 
aircraft will not, under existing or reasonably foreseeable future 
conditions, endanger, place an undue burden upon, or otherwise 
jeopardize the efficiency, capability, or effectiveness of any military 
installation located within or contiguous to a defense area. Factors to 
be considered shall include, but not be limited to, the true purpose of 
the entry, the personal history, character and present or past 
associates of the individuals involved, the possible burdens or threats 
to the defense facilities which the presence of the ship, aircraft or 
the individual or individuals involved impose or might reasonably be 
expected to impose on the related base complex.
    (2) Requests for entry authorizations will be evaluated and adjudged 
as to whether the entry at the time and for the purpose stated will or 
will not be inimical to the purposes of national defense.
    (b) Adverse. Substantial evidence of any of the following shall 
preclude the granting of entry authorization except with the specific 
approval of the Chief of Naval Operations in each case:
    (1) Prior noncompliance with entry control regulations or failure to 
observe terms under which any entry authorization may have been granted; 
1
---------------------------------------------------------------------------


    1 The criteria so marked are applicable only to those 
applications concerning entry into areas under military cognizance.
---------------------------------------------------------------------------

    (2) Willfully furnishing false, incomplete, or misleading 
information in an application for an entry authorization;1
    (3) Advocacy of the overthrow or alteration of the Government 
of the United States by unconstitutional means;
    (4) Commission of, or attempt or preparation to commit, an act of 
espionage, sabotage, sedition, or treason, or conspiring with or aiding 
or abetting another to commit such an act;

[[Page 449]]

    (5) Performing, or attempting to perform, duties, or otherwise 
acting so as to serve the interest of another government to the 
detriment of the United States;
    (6) Deliberate unauthorized disclosure of classified defense 
information;
    (7) Knowing membership with the specific intent of furthering the 
aims of, or adherence to and active participation in, any foreign or 
domestic organization, association, movement, group, or combination of 
persons (hereinafter referred to as organizations) which unlawfully 
advocates or practices the commission of acts of force or violence to 
prevent others from exercising their rights under the Constitution or 
laws of the United States or of any State, or which seeks to overthrow 
the Government of the United States or any State or subdivision thereof 
by unlawful means;
    (8) Serious mental irresponsibility evidenced by having been 
adjudged insane, or mentally irresponsible, or an incompetent, or a 
chronic alcoholic, or treated for serious mental or neurological 
disorders or for chronic alcoholism, without evidence of cure;1
---------------------------------------------------------------------------


    1 The criteria so marked are applicable only to those 
applications concerning entry into areas under military cognizance.
---------------------------------------------------------------------------

    (9) Conviction of any of the following offenses under circumstances 
indicative of a criminal tendency potentially dangerous to the security 
of a strategic area containing military establishments; arson, unlawful 
trafficking in drugs, murder, kidnaping, blackmail, or sex offenses 
involving minors or perversion.
    (10) Chronic alcoholism or addiction to the use of narcotic drugs 
without adequate evidence of rehabilitation; 1
    (11) Illegal presence in the United States, its territories or 
possessions, having been finally subject to deportation order, or 
voluntary departure in lieu of deportation order, by the United States 
Immigration and Naturalization Service; 1
    (12) Being the subject of proceedings for deportation or 
voluntary departure in lieu of deportation for any reasons which have 
not been determined in the applicant's favor; 1
    (13) Conviction of larceny of property of the United States, 
willful injury to or destruction of property of the United States, 
fraudulent enlistment, impersonation of a commissioned officer of the 
United States or any state or territory thereof, or any offense 
involving moral turpitude, except offenses, which, in the jurisdiction 
within which the conviction was obtained, are punishable by imprisonment 
for not more than one year or a fine of not more than one thousand 
dollars. 1
    (c) Aliens. (1) Entry of aliens for employment or residence in 
an area entirely within the borders of a defense area is not authorized 
except when such entry would serve the interests of National Defense, 
and then only for specified periods and under prescribed conditions.
    (2) Entry of aliens for any purpose into areas over which the United 
States exercises sovereignty is further subject to requirements imposed 
by law for the obtaining of a United States visa. Naval authorization 
for entry into areas covered by this part will not be issued to foreign 
nationals for purposes, places, or periods of time in excess of those 
stipulated in the visa.
    (3) Alien spouses and bona fide dependents of U.S. citizen employees 
of the United States may, if otherwise qualified, be granted entry 
authorization so long as the U.S. citizen sponsor or principal remains 
on duty or resident within the defense area.
    (d) Renewals. Entry authorizations having been granted and utilized 
may be extended or renewed upon request at the expiration of the period 
for which the entry was originally authorized or extended, provided the 
justification for remaining in the area or for making a reentry meets 
the criteria set forth in this part. It shall be the responsibility of 
every applicant to depart the defense area for which entry was 
authorized upon expiration of the time prescribed in the authorization, 
unless such authorization has been extended or renewed. Failure to 
comply herewith will be considered as evidence of violation

[[Page 450]]

of this part and may result in denial of future authorizations.
[28 FR 13778, Dec. 18, 1963, as amended at 36 FR 21890, Nov. 17, 1971; 
41 FR 28958, July 14, 1976]



Sec. 761.7  Basic controls.

    (a) General. Except for such persons, ship, or aircraft as are 
issued an authorization to enter by an Entry Control Commander:
    (1) No person, except persons aboard public vessels or aircraft of 
the United States, shall enter any defense area.
    (2) No vessel or other craft, except public vessels of the United 
States shall enter any naval defensive sea area or other defense area.
    (3) No aircraft, except public aircraft of the United States, shall 
be navigated within any naval airspace reservation of the airspace over 
other defense areas.
    (b) Excluded persons--(1) Entry prohibited. Excluded persons, as 
defined in Sec. 761.5(e), are prohibited from entering any defense area. 
In a bona fide emergency which requires an excluded person's presence in 
or transit through a military installation which is also a defense area, 
the commanding officer of the installation may grant permission to enter 
or transit subject to such restrictions as may be imposed by regulation 
or which may, in his discretion, be required.
    (2) Carrying prohibited. Except in a bona fide emergency and after 
being authorized by the appropriate local authority, no vessel or 
aircraft, except public vessels and aircraft of the United States, shall 
enter into or be navigated within any defense area while carrying any 
excluded person, as defined in this part, as passenger, officer or crew 
member.
    (c) Control of violators. No commanding officer of a military 
installation shall permit any ship or aircraft which has entered the 
limits of his command by passing through a defense area without 
authorization to land, except in emergency, or, if permitted to land, to 
disembark passengers or cargo except as authorized by the appropriate 
Entry Control Commander. Commanding officers will take appropriate 
action to apprehend violators who come within their jurisdiction and 
request disposition instructions from the appropriate Entry Control 
Commander.
    (d) Trust Territory. An authorization from the High Commissioner is 
required for all persons desiring to enter the Trust Territory, except 
for those areas under military jurisdiction where entry is controlled by 
the Department of the Army (Kwajalein Atoll) and the Defense Nuclear 
Agency (Eniwetok Atoll).
    (e) Military areas. Entries authorized under this Instruction do not 
affect the authority of a commanding officer or other appropriate 
commander to impose and enforce proper regulations pertaining to 
movement into or within naval stations or other military installations.
    (f) Waiver prohibited. No officer of the U.S. Armed Forces, except 
as authorized in writing by the Chief of Naval Operations, has authority 
to waive the requirements of this part, and any waiver must be in 
writing and signed by an authorized person.
[28 FR 13778, Dec. 18, 1963, as amended at 36 FR 21890, Nov. 17, 1971; 
41 FR 28958, July 14, 1976]



                     Subpart C--Entry Authorization



Sec. 761.8  General.

    (a) As indicated in Sec. 761.7(a), certain persons, ships, and 
aircraft must be specifically authorized under the provisions of this 
part to enter defense areas.
    (b) When entering or transiting a defense area each person, ship, or 
aircraft must have a valid authorization or satisfactory evidence 
thereof.



Sec. 761.9  Entry Control Commanders.

    The following commanders are designated Entry Control Commanders 
with authority to approve or disapprove individual entry authorizations 
for persons, ships, or aircraft as indicated (Commander Seventeenth 
Coast Guard District has been designated an Entry Control Commander by 
the authority of the Commandant, U.S. Coast Guard and Commander, Western 
Area, U.S. Coast Guard);
    (a) Chief of Naval Operations. Authorization for all persons, ships, 
or aircraft to enter all defense areas.

[[Page 451]]

    (b) Commander in Chief, U.S. Atlantic Fleet. Authorization for all 
persons, ships, or aircraft to enter defense areas in the Atlantic.
    (c) Commander in Chief, U.S. Pacific Fleet. Authorization for all 
persons, ships, or aircraft to enter defense areas in the Pacific.
    (d) Commander U.S. Naval Forces Caribbean. Authorization for all 
persons, ships, and aircraft to enter the Guantanamo Bay Naval Defensive 
Sea Area and the Guantanamo Naval Airspace Reservation. (This authority 
delegated to Commander U.S. Naval Base, Guantanamo Bay.)
    (e) Commander U.S. Naval Base, Guantanamo Bay. Authorization for all 
persons, ships, and aircraft to enter the Guantanamo Bay Naval Defensive 
Sea Area and the Guantanamo Naval Airspace Reservation.
    (f) Commander Third Fleet. Authorization for U.S. citizens and U.S. 
registered private vessels to enter Midway Island, Kingman Reef, Kaneohe 
Bay Naval Defensive Sea Area, Pearl Harbor Defensive Sea Area and 
Filipino workers employed by U.S. contractors to enter Wake Island.
    (g) Commander U.S. Naval Forces, Marianas. Authorization in 
conjunction with the High Commissioner, for non-U.S. citizens, ships, or 
aircraft documented under laws other than those of the United States or 
the Trust Territory to enter those portions of the Trust Territory where 
entry is not controlled by the Department of the Army or the Defense 
Nuclear Agency.
    (h) Senior naval commander in defense area. Emergency authorization 
for persons, ships, or aircraft in cases of emergency or distress. In 
all cases the Chief of Naval Operations, and as appropriate, the 
Commander in Chief, U.S. Atlantic Fleet or the Commander in Chief, U.S. 
Pacific Fleet, and other interested commands, shall be informed 
immediately of the nature of the emergency, and action taken.
    (i) U.S. Coast Guard. The U.S. Coast Guard regulates the movement of 
shipping within the Honolulu Harbor under the authority of Executive 
Orders 10173 and 10289; such shipping is considered to be under U.S. 
authorized supervision within the meaning of Executive Order 8987. The 
Commandant, Fourteenth Naval District, as representative of the 
Secretary of the Navy, retains responsibility for security of the 
Honolulu Defensive Sea Area, as required by naval interest, and, as 
such, issues amplifying instructions relating to the Honolulu Defensive 
Sea Area.
[41 FR 28958, July 14, 1976]



Sec. 761.10  Persons: Group authorizations.

    Persons in the following categories, except those persons who have 
been denied individual authorization or have had a prior authorization 
revoked, may enter the defense areas indicated without individual 
authorization:
    (a) Persons aboard U.S. public vessels or aircraft entering a Naval 
Defensive Sea Area or a Naval Airspace Reservation.
    (b) Military members of the U.S. Armed Forces or U.S. civil service 
employees of the Department of Defense when traveling on official 
orders.
    (c) U.S. ambassadors, cabinet members, elected U.S. Government 
officers and U.S. citizen civil service employees of the U.S. Government 
traveling on official orders on U.S. Government business may enter 
defense areas as required by their orders.
    (d) Dependents of military members of the U.S. Armed Forces and U.S. 
citizen dependents of U.S. civil service employees traveling on official 
orders and entering for purposes of joining a principal permanently 
stationed in an area covered by this part.
    (e) U.S. Navy Technicians, U.S. Army Contract Technicians, or U.S. 
Air Force Contract Technicians, who are traveling on official (does not 
include invitational) travel orders on U.S. Government business, may 
enter defense areas as specifically required by such orders.
    (f) [Reserved]
    (g) Individuals on board any foreign public vessel or aircraft which 
has been granted diplomatic or other official U.S. Government 
authorization to enter an area covered by this part.
    (h) Through passengers and bona fide regularly employed crew 
members, unless otherwise excluded, on nonpublic vessels authorized to 
enter areas covered by this part. This does not include an authorization 
to disembark at a

[[Page 452]]

port contiguous to or within the areas covered in this part. Application 
for authorization to disembark may be submitted to an Entry Control 
Commander having jurisdiction over the particular port.
    (i) Through passengers and bona fide regularly employed crew 
members, unless otherwise excluded, on nonpublic aircraft authorized to 
enter areas covered by this part. Such persons are subject to local 
regulations governing entry into or movement within military air 
stations or facilities. Application for authorization to disembark may 
be submitted to an Entry Control Commander having jurisdiction over the 
air facility.
    (j) U.S. citizen news correspondents and photographers when properly 
accredited by the Department of Defense to enter areas covered by this 
part except that special authorization is required to enter the 
restricted areas listed in Sec. 761.4(a).
[28 FR 13778, Dec. 18, 1963, as amended at 36 FR 21890, Nov. 17, 1971]



Sec. 761.11  Persons: Individual authorizations.

    (a) Application; filing. Applications for authorization to enter 
defense areas shall be filed with one of the following:
    (1) Chief of Naval Operations.
    (2) Commander in Chief, U.S. Atlantic Fleet.
    (3) Commander in Chief, U.S. Pacific Fleet.
    (4) Any Naval Sea Frontier Commander.
    (5) Any Naval Fleet or Force Commander.
    (6) Any Naval District Commandant.
    (7) Any Naval Attache. The Commander or Attache with whom the 
application is filed is responsible for taking such action on the 
application as he may be empowered to do or for forwarding the 
application to the nearest Entry Control Commander authorized by this 
part to take action thereon. Applications received in the United States 
and those received indicating that the applicant has resided in the 
United States for the major portion of ten years immediately prior to 
date of request will normally be forwarded to the Chief of Naval 
Operations for action. In all cases where the forwarding activity has 
information regarding the applicant or his employer, appropriate comment 
and/or recommendation for disposition will be included in the forwarding 
letter.
    (b) Form. (1) Applications for entry authorizations will be made on 
the standard form Statement of Personal History, DD 398, which is 
available at most military installations. In addition to the information 
required by the form, an entry application shall include the following 
additional information under Item 20, ``Remarks'':

    21. Purpose of proposed visit: (Detailed statement including names 
of principal persons, firms, or establishments to be visited)
    22. Proposed duration of visit:
    23. Estimated date of arrival:
    24. Address to which authorization should be mailed:


In the event that a DD 398 form is not available, a locally produced 
form containing identical information including the certification and 
signature of applicant and witness may be utilized.
    (2) Incomplete forms will be returned for completion.
    (3) When time is of the essence, emergency applications may be 
forwarded by message to the appropriate Entry Control Commander. Such 
messages shall include the following:
    (i) Name of applicant.
    (ii) Date and place of birth.
    (iii) Citizenship.
    (iv) Residence for last ten (10) years.
    (v) Employers and their addresses for last ten (10) years.
    (vi) Results of Local Agency Check, if pertinent.
    (vii) Place to be entered and date of entry.
    (viii) Purpose of entry and duration of stay.
    (ix) Comments and/or recommendations of forwarding officer as 
appropriate.
    (x) A statement that a completed DD 398 or appropriate substitute 
has been mailed prior to the sending of the message.
    (c) Processing. The Entry Control Commander empowered to issue entry 
authorizations shall upon receipt of an application take the following 
action:
    (1) Initiate or conduct such investigation as may be required to 
establish

[[Page 453]]

facts upon which to make a determination that the entry of the applicant 
at the time and for the purpose indicated is or is not in accordance 
with the criteria set forth in Sec. 761.6.
    (2) Request additional information from the applicant if required, 
or
    (3) Issue an entry authorization as requested or modified as 
circumstances require, or
    (4) Deny the request and advise the applicant of his right to 
appeal, or,
    (5) Forward the application to the next superior in command together 
with a statement of the investigation conducted and the reason for 
forwarding and comments or recommendations as appropriate.
    (d) Authorizations. Entry authorizations will state the purpose for 
which the entry is authorized and such other information and conditions 
as are pertinent to the particular authorization. Authorizations to 
enter and re-enter may be issued to resident U.S. citizens and be valid 
for a specified time not to exceed two years. Authorizations may be 
issued to U.S. citizens residing abroad and to aliens to enter and re-
enter for a specified period of time required to accomplish the purpose 
for which the authorization was issued not to exceed one year.
[28 FR 13778, Dec. 18, 1963, as amended at 41 FR 28958, July 14, 1976]



Sec. 761.12  Ships: Group authorizations.

    Ships or other craft in the following categories, except those ships 
which have been denied individual authorization or have had a prior 
authorization revoked, may enter the defense areas indicated without 
individual authorizations:
    (a) U.S. Public vessels, to enter all defense areas.
    (b) U.S. private vessels which are: (1) Under charter to the 
Department of Defense (including the Military Sealift Command), or (2) 
operating under a contract or charter with the Department of Defense 
providing for the employment of such vessels, or (3) routed by a Naval 
Control of Shipping Office, or (4) employed exclusively in support of 
and in connection with a Department of Defense construction, 
maintenance, or repair contract and whose crews carry individual entry 
clearances, to enter defense areas as authorized by controlling Defense 
Department agency.
    (c) [Reserved]
    (d) Privately owned local craft, registered with and licensed by 
appropriate local U.S. Government authorities, and owned and operated by 
local inhabitants who have been granted an authorization to enter the 
local defense area at the discretion of the local commanders.
    (e) Foreign flag ships traveling on diplomatic or other special 
clearance or for which special arrangements have been made under 
international agreements or treaties.
    (f) Ships operating under a group authorization issued by the Chief 
of Naval Operations.
    (g) Ships in distress, subject to local clearances and control by 
senior officer present.
[28 FR 13778, Dec. 18, 1963, as amended at 36 FR 21890, Nov. 17, 1971]



Sec. 761.13  Ships: Individual authorizations.

    (a) Applications; form; filing. Applications for authorization to 
navigate ships within the limits of defense areas shall be filed with 
the cognizant Entry Control Commander by letter or telegram including 
the following information and any additional information that may be 
relative to the proposed operation:
    (1) Name of ship.
    (2) Place of registry and registry number.
    (3) Name, nationality and address of operator.
    (4) Name, nationality and address of owner.
    (5) Gross tonnage of ship.
    (6) Nationality and numbers of officers and crew (include crewlist 
when practicable).
    (7) Number of passengers (include list when practicable).
    (8) Last port of call prior to entry into area for which clearance 
is requested.
    (9) Purpose of visit.
    (10) Proposed date of entry and estimated duration of stay.
    (b) Processing. Authorization for single entries or for multiple 
entries for a period not to exceed one year may be

[[Page 454]]

granted or denied by an Entry Control Commander. Authorizations for 
multiple entries for a period to exceed one year or for special group 
entries must be forwarded to the Chief of Naval Operations with 
appropriate comments and recommendations.



Sec. 761.14  Aircraft: Group authorizations.

    Aircraft in the following categories, except those aircraft which 
have been denied individual authorization or have had a prior 
authorization revoked, may enter the defense areas indicated without 
individual authorization:
    (a) U.S. public aircraft to enter all defense areas.
    (b) U.S. private aircraft which are under charter to the Department 
of Defense (including the Military Airlift Command), or operating under 
a contract with the Department of Defense providing for the employment 
of such aircraft to overfly U.S. island positions to enter defense areas 
as authorized by controlling Defense Department agency. If landing at 
U.S. military facilities is required, see Sec. 761.15(a).
    (c) Foreign flag aircraft for which special arrangements have been 
made under international agreements or treaties.
    (d) Aircraft operated by companies authorized to utilize naval 
facilities in defense areas for regular commercial activity, to enter 
defense areas associated therewith. For landing clearance at U.S. 
military facilities, see Sec. 761.15(a).
    (e) Any aircraft in distress, subject to local clearance and control 
by senior officer present.
[41 FR 28958, July 14, 1976]



Sec. 761.15  Aircraft: Individual authorizations.

    (a) Special procedures. In addition to the entry authorization to 
enter or navigate within the defense area concerned, certain special 
procedures must be followed by aircraft:
    (1) If landing at U.S. naval aviation facilities, an Aviation 
Facility License must be obtained, in accordance with Secretary of the 
Navy Instruction 3770.1B, Use of Department of the Navy aviation 
facilities by other than United States Department of Defense aircraft.
    (2) If landing at U.S. Air Force aviation facilities, a Civil 
Aircraft Landing Permit must be obtained, in accordance with Department 
of the Airforce Regulation 55-20, Use of United States Air Force 
installations by other than United States Department of Defense 
aircraft.
    (3) Foreign public aircraft must obtain diplomatic clearance or 
clearance under applicable special agreements or treaties.
    (b) Application; Form; Filing. Applications for authorization to 
navigate aircraft within the limits of defense areas shall be made by 
letter or telegram addressed to the appropriate entry control commander 
as indicated in Sec. 761.9 with information copies to the Chief of Naval 
Operations, Commander in Chief, U.S. Atlantic (or Pacific) Fleet, as 
appropriate, and other local commanders who are known to be concerned. 
Applications shall include the following:
    (1) Type and serial number of aircraft (the number of aircraft in 
flight if a mass movement is involved), nationality and name of 
registered owner.
    (2) Name and rank of senior pilot.
    *(3) Number in crew.
---------------------------------------------------------------------------


    *See ``Note'' to this paragraph.
---------------------------------------------------------------------------

    *(4) Number of passengers and whether military or civilian; include 
name (and rank) of distinguished passengers.
    (5) Purpose of flight.
    (6) Plan of flight route, including:
    (i) Point of origin of flight and its destination.
    (ii) Estimated date and times of arrival and departure at all 
airspaces covered by this part 761 including stops within the Trust 
Territory, when pertinent.
    (7) Radio call signs of aircraft and radio frequencies available.
    (8) Whether cameras are to be carried and whether they will be used.
    *(9) Whether arms are to be carried.
    *(10) Whether authorization to land as indicated in Sec. 761.15(a) 
has been obtained.

    Note: Information on those items marked with an asterisk (*) need 
not be reported when the aircraft will only overfly the areas covered by 
this part.

    (c) Processing. Authorization for individual entries or for multiple 
entries for a period not to exceed three months

[[Page 455]]

may be granted by an Entry Control Commander. Authorizations for 
multiple entries over a period to exceed three months and applications 
for group authorizations must be forwarded to the Chief of Naval 
Operations with appropriate comments and recommendations.
[41 FR 28958, July 14, 1976]



Sec. 761.16  Notice of action.

    All applicants will be kept advised of action being taken relative 
to the processing of applications. Individuals whose applications cannot 
be processed promptly (usually within ten working days) or whose 
applications must be forwarded to another office for processing will be 
notified of the anticipated delay and advised of the approximate time 
when action may be expected to be taken. Under no circumstances will a 
notice of disapproval include a statement of the reason therefor. Copies 
of all notices will be distributed to commands and Entry Control 
Commanders concerned. Copies of all notices of disapproval will be 
mailed to the Chief of Naval Operations concurrently with the mailing to 
the applicant.



Sec. 761.17  Revocation.

    Entry authorizations will be revoked only by an Entry Control 
Commander upon being advised of the discovery of information which would 
have been ground for denial of the initial request. Such a revocation 
will be confirmed in writing to the holder of an entry authorization. No 
reason for revocation of the entry authorization will be given. When an 
entry authorization is revoked, a one-way permit will be issued as 
appropriate, to permit the ship, aircraft, or person to transit the 
defense area in order to depart from a contiguous area.



Sec. 761.18  Appeals.

    (a) Appeals may be filed with the Entry Control Commander who issued 
the denial or revocation. It shall contain a complete statement of the 
purpose of the proposed entry and a statement of reasons why the entry 
should be authorized, including a showing that the entry will be 
consistent with the purposes of national defense.
    (b) Appeal letters shall be forwarded promptly to the next superior 
Entry Control Commander with an endorsement setting forth the reasons 
for the denial or revocation and a recommendation as to the action to be 
taken by the superior.
    (c) The superior may act on the appeal and notify the applicant of 
the decision, or he may forward the appeal to the next superior and 
notify the applicant of this referral.
[28 FR 13778, Dec. 18, 1963, as amended at 41 FR 28959, July 14, 1976]



Sec. 761.19  Forms.

    The following forms shall be used in connection with the processing 
of applications for authorization to enter defense areas and for 
revocation of authorizations as indicated:
    (a) Application. Statement of Personal History (Form DD 398, Stock 
Number 0102-004-220) may be obtained from NAVPUBFORMCEN, Building 26, 
5801 Tabor Ave., Philadelphia, PA 19120.
    (b) Entry authorization. (1) Defense Area Entry Authorization 
(OPNAVForm 4600-2 (Rev. 5-59) may be obtained from Office of the Chief 
of Naval Operations (OP-09B33), Navy Department, Washington, DC 20350.
    (2) Letter or message authorization.
    (c) Disapproval of request for entry authorization.

    My Dear ------------: Your application of ------ has been reviewed 
and we regret to advise you that the requested authorization for ------
---------- to enter ---------------- is not granted as the entry at this 
time for the purpose stated is not considered to be in the interest of 
national defense.
    The application may be resubmitted again in six months at which time 
it will be reconsidered in the light of then existing circumstances.
    If you desire to appeal this decision, you may do so by submitting a 
letter to this office setting forth in full why you consider that the 
granting of the application would be in the interest of national defense 
and any other information that you believe will be of value of this 
person considering the appeal. Your letter will be forwarded to the 
appropriate authority for review and you will be advised in due course 
of his determination.

Sincerely yours,

    (d) Revocation of entry authorization.

    My Dear ------------: This is to notify you that entry authorization 
to enter

[[Page 456]]

---------------- granted by (issuing activity) on -------- is hereby 
revoked effective this date.

Sincerely yours,
[41 FR 28959, July 14, 1976]



                   Subpart D--Additional Instructions



Sec. 761.20  Additional regulations governing persons and vessels in Naval Defensive Sea Areas.

    (a) By virtue of the authority vested in the President by section 44 
of the United States Criminal Code, as amended and reenacted in 18 
U.S.C. 2152, the President has prescribed the following additional 
regulations in Executive Order 9275 of November 23, 1942 (7 FR 9767; 
1943 Cum. Supp. p. 1227) to govern persons and vessels within the limits 
of defensive sea areas theretofore or thereafter established.
    (1) No person shall have in his possession within the limits of any 
defensive sea area, any camera or other device for taking pictures, or 
any film, plate or other device upon or out of which a photographic 
imprint, negative or positive, can be made, except in the performance of 
official duty or employment in connection with the national defense, or 
when authorized pursuant to the provisions of the Act approved June 25, 
1942 (Pub. L. 627, 77th Congress), as amended (50 U.S.C. App. 781-785), 
and the regulations promulgated thereunder (7 FR 7307; 32 CFR 
765.19(b)).
    (2) It shall be the duty of the master or officer in charge of any 
vessel to take custody of and safeguard all cameras or other devices for 
taking pictures, or film, plate or other device upon or out of which a 
photographic imprint, positive or negative, can be made, the possession 
of which is prohibited by Executive Order 9275, from any person, prior 
to the time any vessel enters any defensive sea area or upon the 
boarding by any person of any vessel while within a defensive sea area, 
and to retain custody thereof until such vessel is outside the defensive 
sea area or the person is about to disembark.
    (3) There shall be prominently displayed on board all vessels, 
except public war vessels of the United States manned by personnel in 
the naval service, a printed notice containing the regulations 
prescribed in Executive Order 9275.
    (4) Any person violating section 1 of Executive Order 9275 (restated 
in paragraph (a)(1) of this section) shall be liable to prosecution as 
provided in section 44 of the Criminal Code as amended and reenacted in 
18 U.S.C. 2152.
    (b) The regulations stated in paragraph (a) of this section are not 
a limitation on prosecution under any other statute that may have been 
violated by acts or omissions prohibited by Executive Order 9275.



PART 762--MIDWAY ISLANDS CODE--Table of Contents




                           Subpart A--General

Sec.
762.1  Applicability.
762.3  Purpose.
762.4  Scope.

 Subpart B--Executive Authority; Authorized Powers; Emergency Authority

762.6  Executive authority; duration.
762.8  Authorized functions, powers, and duties.
762.10  Emergency authority.

           Subpart C--Criminal Law; Petty Offenses; Penalties

762.15  General.
762.16  Adoption of certain criminal provisions of the Hawaii Revised 
          Statutes.
762.17  Conflicts of laws.
762.18  Time limitations.
762.19  Petty offenses; general.
762.20  Breach of the peace offenses.
762.22  Offenses against property.
762.24  Moral offenses.
762.26  Alcoholic beverages offenses.
762.28  Vehicle offenses.
762.30  Weapons offenses.
762.32  Offenses against the environment.
762.34  Miscellaneous offenses.
762.35  Attempt.
762.40  Penalties for petty offenses.
762.42  Penalties for motor vehicle violations.
762.44  Contempt.

      Subpart D--Midway Islands Court; Rules of Criminal Procedure

762.50  Establishment; members; sessions.
762.52  Attorney for the United States.
762.54  Criminal jurisdiction.
762.55  Venue.
762.56  Rules of criminal procedure.
762.58  Release prior to trial and bail.

[[Page 457]]

762.62  Information.
762.64  Motions and pleas.
762.66  Trial.
762.68  Sentence.
762.70  Subpoenas.
762.72  Appeals.
762.74  New trial.

            Subpart E--Warrants; Arrests; Special Procedures

762.80  Warrants.
762.82  Arrests.
762.84  Citation in place of arrest.
762.86  Abatement of nuisance.

             Subpart F--Registration and Permit Regulations

762.90  Registration of certain property.
762.92  Permits.
762.94  Expiration of permits.
762.96  Revocation or suspension of permits.

                    Subpart G--Civil Small Claims Law

762.100  Applicable law and jurisdiction over small claims.
762.102  Small claims procedure; complaint and service.
762.104  Time limitations.
762.106  Costs and fees; waiver.
762.108  Set-off or counterclaim; pleading; retention of jurisdiction.
762.109  Jury trial; demand.
762.110  Pre-trial settlement.
762.112  Trial.
762.114  Judgments.
762.116  Award of costs.
762.118  No appeal.
762.120  Judgment creditors and remedies.
762.126  Parties.
762.128  Forms and public information.

                        Subpart H--Savings Clause

762.130  Severability of subparts, sections, paragraphs, or provisions.

    Authority: Sec. 48, Pub. L. 86-624, 74 Stat. 424; 3 U.S.C. 301: E.O. 
11048, 3 CFR 1959--1963 Comp., p. 632 (1962).

    Source: 41 FR 29672, July 19, 1976, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 762 appear at 51 FR 
22283, June 19, 1986.



                           Subpart A--General



Sec. 762.1  Applicability.

    (a) The local criminal and civil laws of the Midway Islands consist 
of this part, the provisions of the laws of the State of Hawaii adopted 
pursuant to Sec. 762.16(a) and Sec. 762.112(a), applicable provisions of 
the laws of the United States, and those laws made applicable under the 
special maritime jurisdiction contained in the Act of June 15, 1950 (ch. 
253, 64 Stat. 217).
    (b) For the purposes of this part, the Midway Islands include all 
public lands on, and all territorial waters and the contiguous zone 
adjacent to or surrounding, the Midway Islands, Hawaiian Group, between 
the parallels of 28 deg.5' and 28 deg.25' North Latitude, and between 
the meridians of 177 deg.10' and 177 deg.30' West Longitude, as were 
placed under the jurisdiction and control of the Navy Department by the 
provisions of Executive Order No. 199-A of January 20, 1903, as 
superseded by Executive Order No. 11048 of September 5, 1962.



Sec. 762.3  Purpose.

    The purpose of this part 762 is to provide:
    (a) For the civil administration of the Midway Islands;
    (b) For vesting powers and duties in appropriate officers of the 
United States for the civil administration of the Midway Islands, 
including judicial and executive functions;
    (c) Certain criminal provisions applicable to the Midway Islands not 
otherwise provided for, and penalties for their violations;
    (d) A judicial system for the Midway Islands not otherwise provided 
for; and
    (e) Certain civil laws for the Midway Islands not otherwise provided 
for.



Sec. 762.4  Scope.

    (a) This part is applicable to all civilian and nonmilitary persons, 
and to all military personnel for matters involving civil 
administration, civil law, or criminal offenses not otherwise covered by 
the Uniform Code of Military Justice, while such persons are on the 
Midway Islands.
    (b) In no event shall the provisions of this part supersede federal 
law, or the Uniform Code of Military Justice, nor shall the provisions 
of this part derogate the inherent or delegated authority, 
responsibility, and powers of the Officer-in-Charge, U.S. Naval Air 
Facility, Midway Island, under U.S. Navy Regulations, 1973, the Uniform 
Code of

[[Page 458]]

Military Justice, other pertinent Navy directives, and federal law.
[41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986]



 Subpart B--Executive Authority; Authorized Powers; Emergency Authority



Sec. 762.6  Executive authority; duration.

    The executive authority at the Midway Islands is vested in the 
Secretary of the Navy. The Officer-in-Charge, U.S. Naval Air Facility, 
Midway Island, is the agent of the Secretary or his disignee in carrying 
out any function, power, or duty under this part 762. The Officer-in-
Charge's authority commences upon his assumption of command of U.S. 
Naval Air Facility, Midway Island, and continues until he is relieved of 
that command by replacement. In the event of the absence, disability, or 
death of the Officer-in-Charge, the Acting Commanding Officer of U.S. 
Naval Air Facility, Midway Island, is vested with the authority 
prescribed in this part for the Officer-in-Charge and shall remain so 
vested until the return, recovery, or replacement of the Officer-in-
Charge.
[41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986]



Sec. 762.8  Authorized functions, powers, and duties.

    The Officer-in-Charge may, personally or through his staff:
    (a) Issue citations for violations of subpart C of this part;
    (b) Abate any public nuisance upon the failure of the person 
concerned to comply with a removal notice;
    (c) Make sanitation and fire-prevention inspections;
    (d) Perform marriages, and maintain records of vital statistics, 
including birth, marriage, and death certificates;
    (e) Inspect vehicles, including bicycles, for roadworthiness, and 
boats for seaworthiness;
    (f) Confiscate property used in committing a crime;
    (g) Investigate accidents and suspected crimes;
    (h) Move unlawfully parked vehicles, boats, or aircraft;
    (i) Take possession of lost or abandoned property and dispose of it 
under the provisions of 10 U.S.C. 2575 and applicable Navy directives;
    (j) Delay or restrict the departure of any aircraft for reasonable 
cause;
    (k) Impose quarantines;
    (l) Impound and destroy unsanitary food, fish, or beverages;
    (m) Evacuate any person from a hazardous area;
    (n) Establish and maintain a facility for the lawful restraint or 
confinement of persons and provide for their care;
    (o) Remove any person from the Midway Islands for cause;
    (p) Issue traffic regulations that are not inconsistent with this 
part, and post traffic signs;
    (q) Perform any other acts, not inconsistent with this part or other 
applicable laws or regulations, that he considers necessary for 
protecting the health and safety of persons and property on the Midway 
Islands: and
    (r) Issue any order or notice necessary to implement this section.
[41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986]



Sec. 762.10  Emergency authority.

    During the imminence and duration of any emergency, the Officer-in-
Charge may perform any acts necessary to protect life and property.
[41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986]



           Subpart C--Criminal Law; Petty Offenses; Penalties



Sec. 762.15  General.

    In addition to any act made criminal in this part, any act committed 
on Midway Islands which would be a violation of the laws of the United 
States; or of the provisions of title 37, ``Hawaii Revised Statutes,'' 
as they now appear or as they may be amended or recodified; or any act 
committed on the Midway Islands that would be criminal if committed on 
board a merchant vessel or other vessel belonging to the United States, 
is a criminal offense and shall be punished, respectively, according to 
this part; the laws of the United States; title 37, ``Hawaii Revised 
Statutes,'' as it now appears or as it may be

[[Page 459]]

amended or recodified; or according to the laws applicable on board 
United States vessels on the high seas. [The Act of June 15, 1950 (ch. 
253, 64 Stat. 217).]



Sec. 762.16  Adoption of certain criminal provisions of the Hawaii Revised Statutes.

    (a) Offenses adopted. Whoever on the Midway Islands is guilty of any 
act or omission, which, although not made punishable by an enactment of 
Congress or under Secs. 762.20 through 762.39, would be punishable if 
committed within the State of Hawaii by the laws thereof at the time of 
such act or omission, shall be guilty of a like offense and subject to a 
like punishment.
    (b) Jurisdiction over such offenses. The United States District 
Court for the District of Hawaii shall have jurisdiction to try all such 
offenses except those which are subject, under title 37, ``Hawaii 
Revised Statutes,'' as it now appears or as it may be amended or 
recodified, to a penalty of imprisonment for six months or less or a 
fine of not more than $500 or both. Those offenses falling within the 
above-stated exception shall be tried in the Midway Islands Court.



Sec. 762.17  Conflicts of laws.

    In no event shall the provisions of this part supersede the Uniform 
Code of Military Justice when the latter is applicable. Any adopted 
provisions of title 37, ``Hawaii Revised Statutes,'' as they now appear 
or as they may be amended or recodified, which duplicate or conflict 
with any other provisions of this part shall be of no effect.



Sec. 762.18  Time limitations.

    (a) A prosecution for any petty offense under this part must be 
commenced within two years after it is committed.
    (b) An offense is committed either when every element occurs, or, if 
a legislative purpose to prohibit a continuing course of conduct plainly 
appears, at the time when the course of conduct or the defendant's 
complicity therein is terminated. Time starts to run on the day after 
the offense is committed.
    (c) A prosecution is commenced either when an information is filed, 
or when an arrest warrant or other process is issued, provided that such 
warrant or process is executed without unreasonable delay.
    (d) The period of limitation does not run:
    (1) During any time when the accused is absent from the Midway 
Islands or has no reasonably ascertainable place of abode or work within 
the Midway Islands, but in no case shall this provision extend the 
period of limitation otherwise applicable by more than three years; or
    (2) During any time when a prosecution against the accused for the 
same conduct is pending in the Midway Islands Court.
    (e) Except those offenses which are subject, under title 37 of the 
``Hawaii Revised Statutes,'' as they now appear or as they may be 
amended or recodified, to a penalty of imprisonment for six months or 
less or a fine of not more than $500, or both, offenses charged and 
treated under Sec. 762.16 (a) and (b), shall be subject to the 
appropriate time-limitation rules set forth in section 108, title 37, 
``Hawaii Revised Statutes,'' as it now appears or as it may be amended 
or recodified.



Sec. 762.19  Petty offenses; general.

    All offenses contained in Secs. 762.20 through 762.39 and those 
offenses adopted under Sec. 762.16(a), as they now appear or as they may 
be amended or recodified, which are subject, under title 37, ``Hawaii 
Revised Statutes,'' to a penalty of imprisonment for six months or less 
or a fine of not more than $500, or both, shall be termed ``Petty 
Offenses'' and subject to the penalties set forth in Secs. 762.40 
through 762.49.



Sec. 762.20  Breach of the peace offenses.

    It shall be unlawful for any person, while on the Midway Islands:
    (a) With intent to cause public inconvenience, annoyance, or alarm, 
or recklessly creating a risk thereof, to engage in fighting, 
threatening, or other violent or tumultuous behavior; or to make 
unreasonable noise or offensively coarse utterances, gestures, or 
displays, or address abusive language to

[[Page 460]]

any person present; or to create a hazardous or physically offensive 
condition by any act which is not performed under any authorized license 
or permit;
    (b) Having no legal privilege to do so, knowingly or recklessly to 
obstruct any roadway, alley, runway, private driveway, or public 
passage, or interfere with or unreasonably delay any emergency vehicle 
or equipment or authorized vehicle, boat, vessel, or plane, or any peace 
officer, fireman, or other public official engaged in or attempting to 
discharge any lawful duty or office, whether alone or with others. 
``Obstruction'' as used in this paragraph means rendering impassable 
without unreasonable inconvenience or hazard;
    (c) When in a gathering, to refuse to obey a reasonable request or 
order by a peace officer, fireman, or other public official to move;
    (1) To prevent an obstruction of any public road or passage;
    (2) To maintain public safety by dispersing those gathered in 
dangerous proximity to a public hazard. An order to move under this 
paragraph addressed to a person whose speech or other lawful behavior 
attracts an obstructing audience, is not reasonable if the obstruction 
can be readily remedied by police control;
    (d) To be substantially intoxicated on any street, road, beach, 
theater, club, or other public place from the voluntary use of 
intoxicating liquor, drugs, or other substance. As used in this 
paragraph, ``substantially intoxicated'' is defined as an actual and 
considerable disturbance of mental or physical capacities;
    (e) With intent to arouse or gratify sexual desire of any other 
person, to expose one's genitals to a person to whom one is not married 
under circumstances in which one's conduct is likely to cause affront or 
alarm; or
    (f) Who is a minor under the age of 18 years, except a person in the 
military, to loiter about or otherwise be on any street, road, beach or 
other public place or in any theater, club, or other facility between 
the hours of 12:00 midnight and 5:30 a.m. unless accompanied by an adult 
over the age of 21 years and with the express permission of such minor's 
parent or legal guardian; and for any parent, guardian, or other person 
having the legal care, custody, or control of any minor under the age of 
18 years, except a person in the military, to allow or permit such minor 
to violate this ordinance.



Sec. 762.22  Offenses against property.

    It shall be unlawful for any person, while on the Midway Islands:
    (a) To loiter, prowl, or wander upon or near the assigned living 
quarters and adjacent property of another without lawful purpose, or, 
while being upon or near the assigned living quarters and adjacent 
property of another, to peek in any door or window of any inhabited 
building or structure located thereon without lawful purpose;
    (b) To enter upon any assigned residential quarter or areas 
immediately adjacent thereto, without permission of the assigned 
occupant;
    (c) Who is a male to enter any area, building, or quarter reserved 
for women, except in accordance with established visiting procedures;
    (d) Who is a female to enter any area, building, or quarter reserved 
for men, except in accordance with established visiting procedures;
    (e) To enter or remain in, without lawful purpose, any office 
building, warehouse, plant, theater, club, school, or other building 
after normal operating hours for that building;
    (f) To enter or remain in any area or building designated and posted 
as ``restricted'' unless authorized by proper authority to be there; or
    (g) To steal any services or property of a value of less than $50 
belonging to or property of another.



Sec. 762.24  Moral offenses.

    It shall be unlawful for any person, while on the Midway Islands:
    (a) To engage in prostitution. ``Prostitution'' means the giving or 
receiving of the body for sexual intercourse for hire or for 
indiscriminate sexual intercourse with or without hire; or
    (b) To do any lewd act in a public place which is likely to be 
observed by others who would be affronted or alarmed. ``Lewd Act'' 
includes any indecent or obscene act.

[[Page 461]]



Sec. 762.26  Alcoholic beverages offenses.

    It shall be unlawful for any person, while on the Midway Islands:
    (a) To sell any alcoholic beverages to any person who, because of 
age, would be prohibited from purchasing that beverage in a civilian 
establishment in Hawaii. It shall not be unlawful, however, for persons 
authorized to sell alcoholic beverages to sell beer with an alcoholic 
content of not more than 3.2 percent by weight to military personnel 
regardless of age; or
    (b) To present or have in his possession any fraudulent evidence of 
age for the purpose of obtaining alcoholic beverages in violation of 
Sec. 762.26(a).



Sec. 762.28  Vehicle offenses.

    It shall be unlawful for any person, while on the Midway Islands:
    (a) To operate or use intentionally any automobile, truck, bicycle, 
motorcycle or other vehicle, aircraft, or boat or other vessel, for any 
purpose, without consent of the owner thereof or his authorized agent;
    (b) To operate any bicycle that has not been properly registered 
with the Security Department, U.S. Naval Air Facility, Midway Island, 
within one week after entering U.S. Naval Air Facility, Midway Island, 
with such bicycle, or within 72 hours after ownership or possession 
thereof has been obtained on the Midway Islands.
    (c) To operate any automobile, truck, bicycle, motorcycle or other 
vehicle, aircraft, or boat or other vessel, without due regard for 
safety of others;
    (d) To operate any automobile, truck, bicycle, motorcycle, or other 
vehicle and disregard or disobey any traffic regulation, sign, or 
marking erected, inscribed, or placed by competent authority on the 
Midway Islands, including, but not limited to, ``Stop,'' ``Yield,'' 
``Speed,'' and ``No Parking'' signs;
    (e) To operate a United States Government vehicle without holding a 
current United States Government operator's license for that type of 
vehicle;
    (f) To operate a privately owned automobile, truck, motorcycle, or 
like motor vehicle without holding a valid operator's license from some 
State or territory of the United States;
    (g) To operate any automobile, truck, bicycle, motorcycle, or other 
vehicle, aircraft, or boat or other vessel, or other means of conveyance 
while under the influence of alcoholic beverages, narcotic drugs, 
central nervous system stimulants, hallucinogenic drugs or barbiturates; 
or
    (h) To exceed the speed limit for automobiles, trucks, bicycles, 
motorcycles, or other vehicles. Unless otherwise posted, the speed limit 
throughout the Midway Islands is 15 miles per hour.



Sec. 762.30  Weapons offenses.

    It shall be unlawful for any person, while on the Midway Islands:
    (a) Other than a security patrolman or shore patrolman or other duly 
appointed official in the performance of an official duty, to carry a 
concealed pistol or other concealed firearm, or a concealed knife with a 
blade more than four inches long or with a blade capable of being opened 
by a mechanical device, commonly known as a switchblade knife; or
    (b) Without proper authority, to keep or use in any place any 
dangerous weapons including rifles, shotguns, pistols, airguns, CO!
2 guns, pellet guns, and BB guns.



Sec. 762.32  Offenses against the environment.

    It shall be unlawful for any person, while on the Midway Islands:
    (a) Knowingly to place, throw, drop, or allow to drop any litter on 
any property or in any waters or beach. ``Litter'' means rubbish, 
refuse, and debris of whatever kind or description, whether or not it is 
of value;
    (b) To grossly waste potable water; or
    (c) To remove, injure, or destroy any wild bird, egg, or seal, or 
for any owner of a dog or other pet to allow knowingly such dog or other 
pet to remove, injure, or destroy any wild bird, egg, or seal, or for 
the parent or legal guardian of any minor child to allow knowingly such 
minor child to remove, injure, or destroy any wild bird, egg, or seal.



Sec. 762.34  Miscellaneous offenses.

    It shall be unlawful for any person, while on the Midway Islands:

[[Page 462]]

    (a) To engage in a trade, business, or other commercial activity on 
Midway Islands without first obtaining written permission from the 
Officer-in-Charge, U.S. Naval Air Facility, Midway Island;
    (b) To smoke or ignite any fire in any designated and posted ``No 
Smoking'' area, or in the immediate proximity of any aircraft, fueling 
pit, or ordnance or pyrotechnic storage areas;
    (c) Knowingly to report or cause to be reported to the Security 
Department, Fire Department, or any official thereof, or to any other 
public official, or willfully to activate, or cause to be activated, any 
alarm, that an emergency exists, knowing that such report or alarm is 
false. ``Emergency,'' as used herein, includes any condition which 
results, or could result, in the response of a public official in an 
emergency vehicle, or any condition which jeopardizes, or could 
jeopardize, public lives or safety, or results or could result in the 
evacuation of an area, building, structure, vehicle, aircraft, or boat 
or other vessel, or any other place by its occupants; or
    (d) Intentionally to report to any shore patrolman, security 
patrolman, fireman, officer of the day, junior officer of the day, or 
other public official authorized to issue a warrant of arrest or make an 
arrest, that a crime has been committed, or make any oral or written 
statement to any of the above officials concerning a crime or alleged 
crime or other matter, knowing such report or statement to be false.
[41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986]



Sec. 762.35  Attempt.

    (a) A person is guilty of attempt to commit a crime if he commits an 
act, done with the specific intent to commit an offense, amounting to 
more than mere preparation and tending, even though failing, to effect 
its commission.
    (b) It shall be unlawful for any person, while on the Midway Islands 
to attempt to violate any section of subpart C, including all offenses 
adopted from title 37, ``Hawaii Revised Statutes,'' as they now appear 
or as they may be amended or recodified. Any person convicted of an 
attempt to commit an offense shall be subject to the same appropriate 
penalties authorized under Secs. 762.40 through 762.49 for the 
commission of the offense attempted, except that attempts of all 
offenses adopted under Sec. 762.16, except those which are subject, 
under title 37, ``Hawaii Revised Statutes,'' as it now appears or as it 
may be amended or recodified, to a penalty of imprisonment of six months 
or less or a fine of not more than $500, shall be punished as directed 
by appropriate sections of title 37, ``Hawaii Revised Statutes,'' as 
they now appear or as they may be amended or recodified.



Sec. 762.40  Penalties for petty offenses.

    Whoever is found guilty of a violation of any petty offense under 
this subpart, other than Sec. 762.28 (b) through (h), is subject to a 
fine of not more than $500 or imprisonment for not more than six months, 
or both.



Sec. 762.42  Penalties for motor vehicle violations.

    Whoever is found guilty of a violation of any one of Sec. 762.28 (b) 
through (h), is subject to a fine of not more than $100, imprisonment of 
not more than 30 days, or suspension or revocation of his privilege to 
drive a motor vehicle aboard U.S. Naval Air Facility, Midway Island, or 
any combination of, or all of, these punishments.



Sec. 762.44  Contempt.

    Judges of the Midway Islands Court may, in any criminal case or 
proceeding, punish any person for disobedience of any order of the 
court, or for any contempt committed in the presence of the court, by a 
fine of not more than $100, or imprisonment of not more than 30 days, or 
both.



      Subpart D--Midway Islands Court; Rules of Criminal Procedure



Sec. 762.50  Establishment; members; sessions.

    (a) There is created a ``Midway Islands Court'' which is vested with 
the judicial authority provided in this part 762. The court shall 
consist of such Navy judge advocates as are designated by the Officer-
in-Charge, U.S. Naval Air Facility, Midway Island, or such other command 
as may be designated

[[Page 463]]

by the Commander in Chief, U.S. Pacific Fleet. In the absence of an 
appointment to the contrary, the most senior in date of rank of those 
appointed shall act as senior judge.
    (b) The Senior Judge shall appoint someone under his authority to 
act as Clerk of the Court who will be responsible for maintaining a 
public docket containing such information as the Senior Judge may 
prescribe.
    (c) Sessions of the court are held on the Midway Islands at times 
and places designated by the Senior Judge.
    (d) Normally, not more than one judge shall be required to hear any 
individual case.
[41 FR 29672, July 19, 1986, as amended at 51 FR 22283, June 19, 1986]



Sec. 762.52  Attorney for the United States.

    The Senior Judge may appoint any judge advocate or attorney to 
represent the United States in any criminal case in the Midway Islands 
Court or on appeal to the Commander, U.S. Naval Base, Pearl Harbor or 
such other command as may be designated by the Commander in Chief, U.S. 
Pacific Fleet.



Sec. 762.54  Criminal jurisdiction.

    The Midway Islands Court has jurisdiction over all petty offenses 
and other minor violations of this part. The United States District 
Court for the District of Hawaii shall have jurisdiction over all other 
offenses adopted under Sec. 762.16, over offenses against the laws of 
the United States, and over those offenses committed within the special 
maritime jurisdiction contained in the Act of June 15, 1950 (chapter 
253, 64 Stat. 217).



Sec. 762.55  Venue.

    Trial of all offenses under the jurisdiction of the Midway Islands 
Court shall be had at the U.S. Naval Air Facility, Midway Island; trial 
of all other offenses shall be in the United States District Court for 
the District of Hawaii.



Sec. 762.56  Rules of criminal procedure.

    (a) Sections 762.56 through 762.79 govern the procedure in criminal 
proceedings in the Midway Islands Court. They shall be construed to 
ensure simplicity in procedure and fairness in administration, and to 
eliminate unjustifiable expenses and delay.
    (b) The judge of the court who presides at any trial or other 
criminal proceeding is responsible for the making of an appropriate 
record of the proceeding.



Sec. 762.58  Release prior to trial and bail.

    (a) The release of any person arrested on the Midway Islands for a 
violation of this part shall be in accordance with 18 U.S.C. 3146 as it 
now appears or as it may be amended or recodified.
    (b) When an offense has been charged by a citation issued by a 
security patrolman, shore patrolman, or other duly designated peace 
officer or the Officer-in-Charge, U.S. Naval Air Facility, Midway 
Island, bail shall be set in the amount prescribed by the Senior Judge 
for the violation. The bail shall be paid in cash to the Clerk of the 
Court. The bail may be forfeited by the accused and the proceedings 
thereby terminated in the case of a violation of Sec. 762.28 that does 
not involve a moving vehicle collision or intoxication while driving, or 
with permission of the court in the case of any other offense charged by 
citation pursuant to Sec. 762.84.
[41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986]



Sec. 762.62  Information.

    (a) Any petty offense may be prosecuted by a written information 
signed by the attorney charged with prosecuting the case. If, however, 
the offense is one for which issue of a citation is authorized by this 
part and a citation for the offense has been issued, the citation serves 
as the information. Offenses against the laws of the United States, 
offenses committed against the laws made applicable by the Act of June 
15, 1950 (chapter 253, 64 Stat. 217), and offenses adopted under 
Sec. 762.16, except those which are subject, under title 37, ``Hawaii 
Revised Statutes,'' as it now appears or as it may be amended or 
recodified, to a penalty of imprisonment for six months or less or a 
fine of not more than $500, or both, shall be referred to the United 
States Attorney, Hawaii, for appropriate disposition.

[[Page 464]]

    (b) A copy of the information shall be delivered to the accused or 
his counsel as soon as practicable after it is filed.
    (c) Each count of an information may charge one offense only and 
must be particularized sufficiently to identify the place, the time, and 
the subject matter of the alleged offense. It shall refer to the 
provision of law under which the offense is charged, but any error in 
this reference or its omission may be corrected by leave of court at any 
time before sentence and is not grounds for reversal of a conviction if 
the error or omission did not mislead the accused to his prejudice.



Sec. 762.64  Motions and pleas.

    (a) Upon motion of the accused at any time after filing of the 
information or copy of citation, the court may order the prosecutor to 
allow the accused to inspect and copy or photograph designated books, 
papers, documents, or tangible objects obtained from or belonging to the 
accused, or obtained from others by seizure or process, upon a showing 
that the items sought may be material to the preparation of his defense 
and that the request is reasonable.
    (b) When the court is satisfied that it has jurisdiction to try the 
accused as charged, it shall require the accused to identify himself and 
state whether or not he has counsel. If he has no counsel, but desires 
counsel, the court shall give him a reasonable opportunity to procure 
counsel. If he cannot afford counsel or is unable to procure counsel 
after reasonable efforts have been expended, the court shall advise him 
of his right to have counsel appointed, and shall appoint a judge 
advocate or other lawyer counsel for the accused unless the accused 
shall have made a voluntary and intelligent waiver of his right to 
counsel.
    (c) When both sides are ready for arraignment, or when the court 
determines that both sides have had adequate opportunity to prepare for 
arraignment, the court shall read the charges to the accused, explain 
them (if necessary), and, after the reading or stating of each charge in 
court, ask the accused whether he pleads ``guilty'' or ``not guilty.'' 
The court shall enter in the record of the case the plea made to each 
charge.
    (d) The accused may plead ``guilty'' to any or all of the charges 
against him, except that the court may at its discretion refuse to 
accept a plea of guilty, and may not accept a plea without first 
determining that the plea is made voluntarily and with understanding of 
the nature of the charge.
    (e) The accused may plead ``not guilty'' to any or all of the 
charges against him. The court shall enter a plea of not guilty if the 
answer of the accused to any charge is such that it does not clearly 
amount to a plea of guilty or not guilty.
    (f) The accused may, at any stage of the trial, with the consent of 
the court, change a plea of not guilty to one of guilty. The court shall 
then proceed as if the accused had originally pleaded guilty.
    (g) Nothing contained in this subpart shall be construed to diminish 
any additional rights afforded military personnel under the Uniform Code 
of Military Justice.



Sec. 762.66  Trial.

    (a) If the accused pleads not guilty or if a plea of guilty is not 
accepted by the court and a consequent plea of not guilty entered, the 
accused is entitled to a trial on the charges in accordance with the 
procedures prescribed in the Rules of Criminal Procedure for the United 
States District Courts, 18 U.S.C., except as otherwise provided in this 
part. There is no trial by jury for petty offenses.
    (b) All persons shall give their testimony under oath or 
affirmation. The Senior Judge shall prescribe the oath and affirmation 
that may be administered by any judge or the Clerk of the Court.
    (c) Upon completion of the trial, the court shall enter a judgment 
consisting of a finding or findings and sentence or sentences, or 
discharge of the accused.



Sec. 762.68  Sentence.

    (a) If the court accepts a plea of guilty to any charge or charges, 
it shall make a finding of guilty on that charge.
    (b) After a finding of guilty is made, either by virtue of an 
accepted plea of

[[Page 465]]

guilty or as the verdict of the court after trial, the court:
    (1) May delay sentencing pending receipt of any presentencing report 
ordered by it;
    (2) Shall, before imposing sentence, hear such statements, whether 
written or oral, by the prosecution and defense, if any, in regards to 
mitigation, extenuation, previous good character of the accused, matters 
in aggravation, and permissible evidence of bad character of the 
accused. In this regard, the accused or his counsel may introduce any 
reasonable statement he wishes in mitigation or extenuation or any 
evidence of previous good character. The prosecution may introduce 
evidence in aggravation including prior federal, state, or Midway 
Islands convictions. The prosecution may introduce evidence of previous 
bad character only if the accused has introduced evidence of previous 
good character; and
    (3) Shall thereafter impose any lawful sentence, including, a 
suspended or partially suspended sentence; revocation or suspension of 
any Midway Islands automobile, truck, motorcycle, or other motor 
vehicle, or boat or other vessel permit in cases involving violations of 
Sec. 762 28; or placement of accused on probation.



Sec. 762.70  Subpoenas.

    (a) The Clerk of the Court shall issue subpoenas for the attendance 
of witnesses. The subpoena must include the name of the court and the 
title, if any, of the proceeding, and shall command each person to whom 
it is directed to attend and give testimony at the time and place 
specified therein. The clerk shall issue a subpoena to a party 
requesting it, setting forth the name of the witness subpoenaed.
    (b) The clerk may also issue a subpoena commanding the person to 
whom it is directed to produce the books, papers, documents, or other 
objects designated therein. The court may direct that books, papers, and 
documents designated in the subpoena be produced before the court at a 
time before the trial or before the time when they are to be offered in 
evidence. It may, upon their production, allow the books, papers, 
documents, or objects or portions thereof to be inspected by the parties 
and their representatives.
    (c) Any peace officer or any other person who is not a party and who 
is at least 18 years of age may serve a subpoena. Service of a subpoena 
shall be made by delivering a copy thereof to the person named.
    (d) This section shall in no way be construed to limit federal 
subpoena powers, laws, or rules.



Sec. 762.72  Appeals.

    (a) The defendant in any criminal case may appeal from any judgment 
of the Midway Islands Court to the Commander, U.S. Naval Base, Pearl 
Harbor, or such other command as may be designated by the Commander in 
Chief, U.S. Pacific Fleet, by filing a notice of appeal with the Senior 
Judge, and serving a copy on the attorney or judge advocate who 
represented the United States at trial.
    (b) The notice must be served and filed within 15 days after the 
judgment of the Midway Islands Court.
    (c) Upon receiving a notice of appeal, with proof of service on the 
attorney or judge advocate who represented the United States at trial, 
the Senior Judge shall forward the record of the case to the Commander, 
U.S. Naval Base, Pearl Harbor.
    (d) The appellant must serve and file a memorandum with the 
Commander, U.S. Naval Base, Pearl Harbor, within 10 days after filing 
notice of appeal setting forth the grounds for appeal. The attorney or 
judge advocate who represented the United States at trial may file a 
reply memorandum within 10 days thereafter.
    (e) The Commander, U.S. Naval Base, Pearl Harbor, may affirm, 
dismiss, or modify the order of the court, or exercise any of the other 
powers of the court. The judgment of the Commander, U.S. Naval Base, 
Pearl Harbor, is final.
    (f) Cases tried in the United States District Court for the District 
of Hawaii shall be subject to federal laws and rules applicable to 
appeals.



Sec. 762.74  New trial.

    A judge of the court may order a new trial as required in the 
interest of justice, or vacate any judgment and enter

[[Page 466]]

a new one, on motion made within a reasonable time after discovery by 
the moving party of matters constituting the grounds upon which the 
motion for a new trial or vacation of judgment is made.



            Subpart E--Warrants; Arrests; Special Procedures



Sec. 762.80  Warrants.

    (a) Arrest warrants. (1) Any judge of the Midway Islands Court may 
issue a warrant for arrest if, upon complaint, it appears that there is 
probable cause to believe an offense has been committed and that the 
person named in the warrant has committed it. Probable cause, as used 
herein, means that there exist facts which are sufficient to lead a 
reasonably prudent and cautious man to a natural conclusion that the 
person to be arrested committed the offense for which he is to be 
arrested. The issuing officer shall:
    (i) Place the name of the person charged with the offense in the 
warrant, or, if his name is not known, any name or description by which 
he can be identified with reasonable certainty;
    (ii) Sign the warrant;
    (iii) Describe in the warrant the offense charged;
    (iv) Issue the warrant to a security patrolman, shore patrolman, or 
other duly designated peace officer for execution; and
    (v) Place in the warrant a command that the person charged with the 
offense be arrested and brought before him.
    (2) Each person making an arrest on the Midway Islands shall take 
the arrested person, without unnecessary delay, before the Officer-in-
Charge, U.S. Naval Air Facility, Midway Island, or a judge of the Midway 
Islands Court, as appropriate.
    (3) The official before whom an arrested person is brought shall 
inform him of the complaint against him. The official shall also advise 
the arrested person that he has the right to remain silent and make no 
statement; that any statement made, whether oral or written, may be used 
against him, that he has the right to consult with a lawyer and to have 
a lawyer with him during questioning and to seek advice before answering 
any questions; that he may employ civilian counsel of his own choice and 
at his own expense; that if he cannot afford a lawyer, or is a service 
member, the court will appoint one for him if he so desires; and that, 
if he decides to answer questions, he has the right to stop answering at 
any time and terminate the interrogation. Before any security patrolman, 
shore patrolman, or other duly designated peace officer questions any 
person arrested, he must advise the arrested person of his rights, as 
set forth above, whether such questioning occurs before or after the 
arrested person is brought before the appropriate official as designated 
above in this section. No warnings need be given, however, prior to 
general on-the-scene questioning or identification inquiries.
    (b) Search warrants. (1) Any judge of the Midway Islands Court may 
issue a warrant for search and seizure, if, after dispassionate and 
impartial consideration of all evidence, information, and circumstances 
involved, probable cause is deemed to exist. Probable cause, as used 
herein, means reliable information that would lead a reasonably prudent 
and cautious man to a natural belief that:
    (i) An offense probably is about to be, is being, or has been 
committed;
    (ii) Specific fruits or instrumentalities of the crime, contraband, 
or evidence exist; and
    (iii) Such fruits, instrumentalities, contraband, or evidence are 
probably in a certain place.
    (2) If, after considering all information, the judge shall decide to 
issue a search warrant, such warrant shall specifically include the 
following information:
    (i) The time and date the warrant was requested;
    (ii) The name and capacity of the person, official, security 
patrolman, shore patrolman, or other duly designated peace officer 
requesting the warrant;
    (iii) The name and address of the person(s) suspected and the 
specific offense(s) of which he is suspected;
    (iv) The address, place, or structure which is to be searched;
    (v) The general nature of the items intended to be seized;

[[Page 467]]

    (vi) The information presented or reasons for suspecting the 
suspected person(s) in general; and
    (vii) An authorization to search the described place for the 
property specified and, if the property is found there, to seize it, 
followed by the date, time, capacity, and signature of the judge issuing 
such warrant.
    (3) A search warrant must be executed and returned to the issuing 
authority within five days after date of issuance. A search warrant 
executed within the five-day period shall be deemed to have been timely 
executed and no further showing of timeliness need be made.
    (4) Security patrolmen, shore patrolmen, and other duly designated 
peace officers or other designated personnel conducting searches shall 
do so in accordance with the issued warrant.
    (5) Any property seized as a result of a search or in connection 
with an alleged offense (unless property is highly perishable) is to be 
retained in a secure place pending trial in accordance with the orders 
of the court. All seized property shall be securely tagged with the 
following information:
    (i) Date seized;
    (ii) Property searched and location of seized article(s) when so 
seized;
    (iii) Person ordering search and warrant number;
    (iv) Signatures of person searching and witness; and
    (v) Place where property is now located and names and addresses of 
any persons who have had custody thereof prior to deposit in the secure 
place required by this paragraph. A complete chain of custody record is 
to be kept.
    (6) The property must be produced in court, if practicable. At the 
termination of the trial, the court shall restore the property or the 
funds resulting from the sale of the property to the owner, or make such 
other proper order as may be required and incorporate its order in the 
record of the case.
    (c) Sanitation and fire prevention inspection. (1) Any judge of the 
Midway Islands Court may issue a warrant to inspect property on the 
Midway Islands for purposes of maintaining sanitation and fire 
prevention.
    (2) Such warrant shall indicate:
    (i) The time and date the warrant was requested;
    (ii) The name and capacity of the person requesting the warrant;
    (iii) Property description or address of place or structure to be 
inspected;
    (iv) General purpose of inspection;
    (v) Date and time inspection intended to be made; and
    (vi) An authorization to inspect the described place for the purpose 
specified, followed by the date, time, capacity, and signature of judge 
issuing the warrant.
[41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986]



Sec. 762.82  Arrests.

    (a) Any person may make an arrest on the Midway Islands, without a 
warrant, for any crime (including a petty offense) that is committed in 
his presence.
    (b) Any security patrolman, shore patrolman, or other duly 
designated peace officer may, without a warrant, arrest any person on 
the Midway Islands who violates any provision of this part 762 or 
commits a crime that is a violation of the laws of the United States or 
the laws made applicable to the Midway Islands under the Act of June 15, 
1950 (chapter 253, 64 Stat. 217), in his presence, or that he has 
probable cause to believe that person to have committed.
    (c) In making an arrest, a security patrolman, shore patrolman, or 
other duly designated peace officer must display a warrant, if he has 
one, or otherwise clearly advise the person arrested of the violation 
alleged, and thereafter require him to submit and be taken before the 
appropriate official on the Midway Islands.
    (d) In making an arrest, a security patrolman, shore patrolman, or 
other duly designated peace officer may use only the degree of force 
needed to effect submission, and may remove any weapon in the possession 
of the person arrested.
    (e) A security patrolman, shore patrolman, or other duly designated 
peace officer may, whenever necessary to enter any building, vehicle, 
aircraft, or vessel to execute a warrant of arrest, force an entry after 
verbal warning.

[[Page 468]]

    (f) A security patrolman, shore patrolman, or other duly designated 
peace officer may force an entry into any building, vehicle, aircraft, 
or vessel whenever:
    (1) It appears necessary to prevent serious injury to persons or 
damage to property, and time does not permit the obtaining of a warrant;
    (2) To effect an arrest when in hot pursuit; or
    (3) To prevent the commission of a crime which he reasonably 
believes is being committed or is about to be committed.



Sec. 762.84  Citation in place of arrest.

    In any case in which a security patrolman, shore patrolman, or other 
duly designated peace officer may make an arrest without a warrant, he 
may, under such limitations as the Officer-in-Charge may impose, issue 
and serve a citation, or serve a citation issued by the Officer-in-
Charge, on a person in place of arresting him if the officer considers 
that the public interest does not require an arrest. The citation must 
briefly describe the offense charged and direct the accused to appear 
before the Midway Islands Court at a designated time and place.
[41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986]



Sec. 762.86  Abatement of nuisance.

    Whenever the Officer-in-Charge determines that, on any premises on 
the Midway Islands, a condition exists that is unsanitary or hazardous, 
that may be injurious to the public, or is otherwise a nuisance, he may 
order the condition abated. If the legal custodian of the premises 
concerned does not take action to abate the nuisance within 30 days 
after the order is issued, the Officer-in-Charge may enter on the 
premises and abate the nuisance for, and at the expense of, the 
custodian.
[41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986]



             Subpart F--Registration and Permit Regulations



Sec. 762.90  Registration of certain property.

    (a) Each person who has custody of any of the following on the 
Midway Islands shall register it with the Officer-in-Charge:
    (1) A privately owned motor vehicle;
    (2) A privately owned boat;
    (3) An animal;
    (4) Any device, weapon, or instrument designed for inflicting bodily 
injury, including a gun, pistol, or other firearm operated by air, gas, 
spring, or otherwise;
    (5) Any narcotic or dangerous drug not obtained on prescription, and 
all poisons other than commonly used household poisons or toxic 
substances; or
    (6) Any known explosive.
    (b) Each person who obtains custody of an article described in 
paragraphs (a)(4), (5), or (6) of this section shall register it 
immediately upon obtaining custody. Each person who obtains custody of 
any other article described in paragraph (a) of this section shall 
register it within 10 days after obtaining custody.
[41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986]



Sec. 762.92  Permits.

    Subject to reasonable restrictions and conditions that he considers 
appropriate, the Officer-in-Charge, U.S. Naval Air Facility, Midway 
Island, may require a Midway Islands permit for the following:
    (a) Any business, commercial, or recreational activity conducted for 
profit, including a trade, profession, calling, or occupation, or an 
establishment where food or beverage is prepared, offered, or sold for 
human consumption (except for personal or family use);
    (b) The practice of any medical profession, including dentistry, 
surgery, osteopathy, and chiropractic;

[[Page 469]]

    (c) The erection of any structure or sign, including a major 
alteration or enlargement of an existing structure;
    (d) The discharge of explosives or fireworks or of firearms, guns, 
or pistol operated by air, gas, spring, or otherwise, or any other 
weapon;
    (e) The burial of any human or animal remains, except that fish and 
bait scrap may be buried at beaches where fishing is permitted without 
obtaining a permit;
    (f) Keeping or maintaining any animal, including dogs;
    (g) All vehicles (including bicycles), and operators thereof, except 
aircraft. The operator of a vehicle shall display his permit or permit 
number on the vehicle in a place and manner prescribed by the Officer-
in-Charge;
    (h) Boats and boat operators. The operator of a boat or other vessel 
shall display his permit or permit number on or in the vessel in a place 
and manner prescribed by the Officer-in-Charge;
    (i) Food handlers;
    (j) Drugs and narcotics not obtained on prescription, and poisons 
other than commonly used household poisons or toxic substances; or
    (k) Building construction.
[41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986]



Sec. 762.94  Expiration of permits.

    (a) Each Midway Islands permit expires on the earliest of the 
following dates:
    (1) Two years after the date it is issued;
    (2) The date specified on the permit;
    (3) In the case of a motor vehicle, boat, or other vessel, or 
firearm, the date its custody is transferred to any person other than 
the holder of the permit therefor; or
    (4) The date it is revoked by the Officer-in-Charge.
    (b) Notwithstanding paragraph (a)(1) of this section, the Officer-
in-Charge may issue a permit for a period longer than two years to 
coincide with the terms of any agreement between the Department of the 
Navy and the permit holder, applicable to the Midway Islands.
[41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986]



Sec. 762.96  Revocation or suspension of permits.

    (a) The Officer-in-Charge may, after notifying the holder of a 
Midway Islands permit and giving him an opportunity to be heard, order 
the permit suspended or revoked for cause, including:
    (1) Lack of physical fitness required to hold the permit;
    (2) Lack of roadworthiness of a vehicle, or of seaworthiness of a 
boat or other vessel;
    (3) Lack of need for the permit;
    (4) Breach of any term or condition of the permit; or
    (5) Conviction for violation of any regulation of this part where 
the violation is related to activities conducted under the permit.
    (b) In any case in which he determines that an emergency exists 
requiring immediate action, the Officer-in-Charge may issue an order of 
suspension or revocation, effective immediately, without notice. 
However, the permit holder may, within 10 days after the suspension or 
revocation, request a hearing. If he so requests a hearing, he is 
entitled to it. The emergency order is not stayed pending hearing.
[41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986]



                    Subpart G--Civil Small Claims Law



Sec. 762.100  Applicable law and jurisdiction over small claims.

    (a) The Midway Islands Court shall have jurisdiction over civil 
cases for the recovery of money only where the amount claimed does not 
exceed $500 exclusive of the interest and costs except as provided by 
Sec. 762.108.
    (b) The court's jurisdiction is further limited in that no such 
claim cognizable under paragraph (a) of this section shall be within the 
court's jurisdiction unless:
    (1) The claim arises or has arisen on the Midway Islands;
    (2) All plaintiffs and all defendants reside, at the time of trial, 
on the Midway Islands; and
    (3) The claim does not fall within the special maritime jurisdiction 
under the Act of June 15, 1950 (Chapter 253, 64 Stat. 217).

[[Page 470]]

    (c) Actions shall be commenced and maintained in the Midway Islands 
Court under the procedures set out below and conducted in such a manner 
as to do substantial justice and equity between the parties. When acting 
on such actions, the court shall be termed the Small Claims Court.



Sec. 762.102  Small claims procedure; complaint and service.

    (a) Actions shall be commenced in the court by the filing of a 
statement of claim, in concise form and free of technicalities. All 
claims shall be verified by the claimant, whether as a party plaintiff 
or counterclaimant, or by his agent, by oath or affirmation in the form 
herein provided, or its equivalent. The Clerk of the Court shall, at the 
request of an individual, prepare the statement of claim and other 
papers required to be filed in an action in the court, but his services 
shall not be available to a corporation, partnership, or association, or 
to any individual proprietorship in the preparation of the statements or 
other papers. A copy of the statement of claim and verification shall be 
made a part of the notice to be served upon the defendant named therein. 
The mode of service shall be by personal service, by registered mail, or 
by certified mail with return receipt.
    (b) When notice is to be served by registered mail or by certified 
mail, the clerk shall enclose a copy of the statement of claim, 
verification, and notice in an envelope addressed to the defendant, 
prepay the postage with funds obtained from plaintiff, and mail the 
papers forthwith, noting on the records the day and hour of mailing. 
When the receipt is returned with the signature thereon of the party to 
whom addressed, the clerk shall attach it to the original statement of 
claim, and it shall constitute prima facie evidence of personal service 
upon the defendant.
    (c) When notice is served personally, the server shall make proof of 
service by affidavit sworn to before the Clerk of the Court or before 
any notary public, showing the time and place of the service.
    (d) The actual cost of service shall be taxable as costs.
    (e) The statement of claim, verification, and notice shall be in the 
following or equivalent form:

                In the Midway Islands Small Claims Court

 _______________________________________________________________________
                                                             (Plaintiff)
 _______________________________________________________________________
                                                               (Address)

                                   vs.

                                                    --------------------
 _______________________________________________________________________
                                                             (Defendant)

                           statement of claims

    (Here the claimant, whether as party plaintiff or counterclaimant, 
or at his request the clerk, will insert a concise statement of the 
plaintiff's claim, and the original, to be filed with the clerk, may, if 
action is on a contract, express or implied, be verified by the 
plaintiff or his agent, as follows:

                          the midway islands ss

---------------- being first duly sworn on oath says the foregoing is a 
just and true statement of the amount owing by defendant to claimant, 
whether as party plaintiff or counterclaimant, exclusive of all set-offs 
and just grounds of defense.)
 _______________________________________________________________________
                                                  [Plaintiff (or agent)]

    Subscribed and sworn to before me this ---- day of --------------, 
19----.

 _______________________________________________________________________
________________________________________________________________________
________________________________________________________________________
                                                Clerk (or notary public)

                                 notice

 To:____________________________________________________________________
                                                               Defendant
 _______________________________________________________________________
                                                            Home address
 _______________________________________________________________________
                                                        Business address
    You are hereby notified that -------- -------------------- has made 
a claim and is requesting judgment against you in the sum of ----------
-------------- dollars ($------), as shown by the foregoing statement. 
The court will hold a hearing upon this claim on -------------------- at 
------ m. in the Small Claims Court at --------------------.
 _______________________________________________________________________
                                                      (Address of court)
    You are required to be present at the hearing in order to avoid 
judgment by default.
    If you have witnesses, books, receipts, or other writings bearing on 
this claim, you should bring them with you at the time of the hearing.

[[Page 471]]

    If you wish to have witnesses summoned, see clerk at once for 
assistance.
    If you admit the claim, but desire additional time to pay, you must 
come to the hearing in person and state the circumstances to the court.
    You may come with or without an attorney.

(Seal)

________________________________________________________________________
                                                    Clerk of the Court  
                                                   Midway Islands Courts

    (f) The foregoing verification entitles the plaintiff to a judgment 
by default, without further proof, upon failure of defendant to appear, 
if the claim of the plaintiff is for a liquidated amount. If the amount 
is unliquidated, the plaintiff shall be required to present proof of his 
claim.
    (g) The clerk shall furnish the plaintiff with a notice of the day 
and hour set for the hearing. The hearing shall not be less than 15 days 
nor more than 30 days from the date of the filing of the action unless a 
continuance is granted by the judge for good cause shown. All actions 
filed in the court shall be made returnable therein.



Sec. 762.104  Time limitations.

    All claims must be commenced as set out in Sec. 762.102, within two 
years after the claim arises. A claim for money arises when it is due, 
owing, and unpaid.



Sec. 762.106  Costs and fees; waiver.

    The fee for issuing summons and copies, trial, judgment, and 
satisfaction in an action in the Small Claims Court shall be not more 
than $5. Other fees shall be as the court prescribes. The judge may 
waive the prepayment of costs or the payment of costs accruing during 
the action upon the sworn statement of the plaintiff or upon other 
satisfactory evidence of his inability to pay the costs. When costs are 
so waived the notation to be made on the records of the court shall be 
``Prepayment of costs waived'' or ``Costs waived.'' The terms ``pauper'' 
or ``in forma pauperis'' may not be employed in the court. If a party 
fails to pay accrued costs, though able to do so, the judge may deny him 
the right to file a new case in the court while the costs remain unpaid, 
and likewise deny him the right to proceed further in any case pending 
in the court.



Sec. 762.108  Set-off or counterclaim; pleading; retention of jurisdiction.

    If the defendant, in an action in the Small Claims Court, asserts a 
set-off or counterclaim, the judge may require a formal and concise plea 
of set-off to be filed, or may waive the requirement. If the plaintiff 
requires time to prepare his defense against the counterclaim or set-
off, the judge may continue the case for that purpose. When the set-off 
or counterclaim is for more than the jurisdictional limit of the Small 
Claims Court, as provided by Sec. 762.100, but is for less than $1000, 
the action shall remain in the Small Claims Court and be tried therein 
in its entirety. No set-off or counterclaim for an amount greater than 
$1000 may be asserted in the Small Claims Court.



Sec. 762.109  Jury trial; demand.

    In a case filed or pending in the Midway Islands Court under 
Sec. 762.100 in which a party entitled to a trial by jury under 
amendment VII, United States Constitution, files a demand therefor, the 
case shall be assigned to and tried in the United States District Court 
for the District of Hawaii under the procedure provided for jury trials 
in that court.



Sec. 762.110  Pre-trial settlement.

    On the return day specified by Sec. 762.102(g), or at such later 
time as the judge sets, the trial shall be had. Immediately prior to the 
trial of a case, the judge shall make an earnest effort to settle the 
controversy by conciliation. If no settlement is effected, the judge 
shall proceed with the hearing on the merits pursuant to Sec. 762.112.



Sec. 762.112  Trial.

    (a) The parties and witnesses shall be sworn. In any case in which 
the civil rights, powers, and duties of any person on the Midway Islands 
are not otherwise prescribed by the laws of the United States or the 
laws made applicable under the Act of June 1950 (chapter 253, 64 Stat. 
217), the judge shall conduct the trial in such manner as to

[[Page 472]]

do substantial justice between the parties according to the rules of 
substantive law, as contained in the ``Hawaii Revised Statutes,'' as 
they now appear or as they may be amended or recodified, and Hawaii case 
law. In this regard, the judge is not bound by statutory provisions or 
rules of practice, procedure, pleading, or evidence, except provisions 
related to privileged communications.
    (b) If the defendant fails to appear, judgment shall be entered for 
the plaintiff by default as provided by Sec. 762.102(f), or under rules 
of court, or on ex parte proof. If the plaintiff fails to appear, the 
action may be dismissed for want of prosecution, or a nonsuit may be 
ordered, or defendant may proceed to trial on the merits, or have 
default judgment entered in his favor on any counterclaim filed in the 
manner provided herein for a plaintiff, or the case may be continued or 
returned to the files for further proceedings on a later date, as the 
judge directs. If both parties fail to appear, the judge may return the 
case to the files, or order the action dismissed for want of prosecution 
or make any other disposition thereof as justice requires.
    (c) Notwithstanding any provision of law requiring the licensing of 
practitioners, any person may, with the approval of the court, appear on 
behalf of himself or another in the Small Claims Court. The services of 
an unlicensed person appearing under this paragraph shall be without 
compensation, either by way of direct fee, contingent fee, or otherwise.
    (d) The judge of the court who presides at any trial is responsible 
for the making of an appropriate record of the proceeding.



Sec. 762.114  Judgments.

    After trial, the judge may immediately render his decision and enter 
judgment or take the case under submission. In all cases, the judge 
should render a decision and enter appropriate judgment within 20 days 
after the close of the trial.



Sec. 762.116  Award of costs.

    In any action pursuant to this subpart the award of costs is in the 
discretion of the court, which may include therein the reasonable cost 
of bonds and undertakings, and other reasonable expenses incident to the 
action, incurred by either party. No attorneys' fees or commissions 
shall be allowed or awarded by any judgment of the Small Claims Court.



Sec. 762.118  No appeal.

    There shall be no appeal from a judgment of the court, but the court 
may alter or set aside any judgment upon application of either party 
after review of the record.



Sec. 762.120  Judgment creditors and remedies.

    (a) After any final judgment is rendered by the court, the judgment 
debtor concerned may deposit the sum adjudged owed with the court for 
payment of the claim, pay the judgment creditor directly, or make such 
other fair and reasonable agreement for payment or settlement of the 
claim with the judgment creditor. Payment, in full or by agreement or 
settlement between the parties after final judgment has been rendered, 
shall satisfy the judgment and extinguish the claim.
    (b) If voluntary payment is not made by the judgment debtor after 
final judgment is rendered, in an action pursuant to Secs. 762.100 
through 762.113, the judge shall, upon motion of the party obtaining 
judgment, order the appearance of the party against whom the judgment 
has been entered, but not more often than once each week for four 
consecutive weeks, for oral examination under oath as to his financial 
status and his ability to pay the judgment, and the judge shall make 
such supplementary orders as seems just and proper to effectuate the 
payment of the judgment upon reasonable terms.
    (c) Any final judgment of the Small Claims Court shall upon order of 
the court become a statutory lien upon any and all personal property 
owned by the judgment debtor concerned and located on the Midway 
Islands. Such lien may be enforced by attachment, levy, judicial sale, 
or as the court may otherwise direct.

[[Page 473]]



Sec. 762.126  Parties.

    Wherever the term party or parties appears herein, or any reference 
is made to individuals desiring to present a claim, then such term or 
terms of reference shall mean and include a party defendant having a 
counterclaim, offset, or crossclaim to present in the action.



Sec. 762.128  Forms and public information.

    The Midway Islands Court shall cause to be published an information 
booklet or sheet describing, in language readily understandable by a 
layman, the procedures of the Small Claims Court, the remedies available 
upon judgment in the Small Claims Court, and such other information as 
will facilitate the utilization of the small claims procedure; and shall 
also cause to be made and printed such standardized forms as may be 
utilized throughout the small claims procedure prior to, upon, and after 
judgment.



                        Subpart H--Savings Clause



Sec. 762.130  Severability of subparts, sections, paragraphs, or provisions.

    In the event that any subpart, section, paragraph, or provision of 
this part shall be declared unconstitutional or superseded by applicable 
federal legislation, the remainder shall nevertheless remain valid and 
shall be applied so as to be consistent with such constitutional 
provisions or overriding legislation.



PART 763--RULES GOVERNING PUBLIC ACCESS--Table of Contents




       Subpart A--Entry Regulations for Kaho'olawe Island, Hawaii

Sec.
763.1  Purpose.
763.2  Definition.
763.3  Background.
763.4  Entry restrictions.
763.5  Entry procedures.
763.6  Violations.

    Authority: 50 U.S.C. 797; DOD Dir. 5200.8 of August 20, 1954; 5 
U.S.C. 301; 10 U.S.C. 6011, 32 CFR 700.702; 32 CFR 700.714; E.O. No. 
10436, 3 CFR 1949-1953 Comp. p. 930, (1958).

    Source: 47 FR 27553, June 25, 1982, unless otherwise noted.



       Subpart A--Entry Regulations for Kaho'olawe Island, Hawaii



Sec. 763.1  Purpose.

    The purpose of this subpart is to promulgate regulations for entry 
to Kaho'olawe Island, Hawaii, and its adjacent waters.



Sec. 763.2  Definition.

    For the purpose of this subpart, Kaho'olawe Island includes that 
portion reserved for naval purposes by Executive Order No. 10436 of 
February 20, 1953.



Sec. 763.3  Background.

    (a) Kaho'olawe Island is used by the armed forces of the United 
States as a training area including bombing and gunnery training ranges 
under authority granted by Executive Order No. 10436. Training 
operations frequently involve the use of live ordnance, creating an 
obvious danger to persons on or near the island. Moreover, a large 
amount of unexploded ordnance is present on Kaho'olawe Island and in 
adjacent waters.
    (b) Individuals who enter the island of Kaho'olawe without authority 
expose themselves to extremely hazardous conditions. In addition, the 
presence of unauthorized persons on Kaho'olawe Island or in adjacent 
waters is likely to interfere with the use of the island for military 
training. Accordingly, it is necessary to prohibit entry to Kaho'olawe 
Island except under the controlled circumstances set forth in this 
subpart.



Sec. 763.4  Entry restrictions.

    (a) Entry by any person upon Kaho'olawe Island for any purpose is 
prohibited without advance authorization from Commander Naval Base. This 
prohibition applies to all areas of Kaho'olawe Island reserved for naval 
purposes by Executive Order 10436.
    (b) Entry by any person into the restricted waters adjacent to 
Kaho'olawe Island for any purpose is prohibited without advance 
authorization from

[[Page 474]]

Commander Naval Base. This prohibition applies to all waters described 
in 33 CFR 204.223(4).
[47 FR 27553, June 25, 1982, as amended at 52 FR 20074, May 29, 1987]



Sec. 763.5  Entry procedures.

    (a) It is the policy of the Commander Naval Base to authorize, in 
accordance with the spirit of the American Indian Religious Freedom Act 
(1978), reasonable access to Kaho'olawe Island during periods when it is 
not used for military training. However, because there are bombs and 
other explosives on and under the surface and in the waters of the 
island, and because there are significant archaeological resources 
thereon (in 1981, the island was placed on the National Register of 
Historical Places as an Archaeological District), Navy representatives 
accompany each island visitation to safeguard both the vistitor(s) and 
the island's archaeological resources. In this regard, in order to 
ensure the safety of visitors to the island and its archaeological 
resources, persons and organizations wishing access to Kaho'olawe Island 
must comply with the following appropriate procedures: Civilians (except 
authorized U.S. and State representatives) must:
    (1) Request, in writing, access authorization from Commander Naval 
Base (Code 01K), Pearl Harbor, Hawaii 96860, at least 15 days prior to 
the access requested, providing therein confirmed access plans 
(including the exact number of visitors, time, and location of access, 
designation of person in charge, and any other pertinent information); 
and
    (2) Submit to Commander Naval Base (at the aforementioned address) 
properly endorsed Standard Liability Release Form (obtainable from 
Commander Naval Base), for each access participant, at least five (5) 
days prior to the requested access.
    (b) In evaluating each request, the factors just enumerated will be 
weighed against training commitments, safety requirements, specical 
projects, and the amount and cost of military supervision necessitated 
by a granting of the request. Requests for entry will be considered on 
an individual basis. If a request is granted, the permission to enter 
Kaho'olawe Island authorizes one visit only, and shall not be construed 
as authorization for more than one entry unless the authorization itself 
specifically states otherwise. Moreover, entry pursuant to advance 
consent, which is not in accordance with the terms and conditions 
permitted by Commander Naval Base, shall be deemed a violation of this 
subpart.
    (c) For safety reasons, it is not Commander Naval Base policy to 
permit children below the age of 15 access to Kaho'olawe Island.
    (d) The following safety regulations are applicable to visitors to 
Kaho'olawe Island:
    (1) All visitors to the island are required to execute and submit a 
waiver of government liability form to a designated Navy representative 
prior to arrival at the island.
    (2) Visitors to the island will be escorted by Navy designated 
Explosive Ordnance Disposal (EOD) technicians to ensure that they stay 
on cleared paths, avoid impact areas, and do not touch high explosives. 
For visitor safety, the directions of the military escorts must be 
followed.
    (3) No person will interfere with any EOD escort in the performance 
of his duties.
    (4) Any actual or suspected ordnance found by a visitor shall be 
reported to the Special Assistant for Kaho'olawe as soon as possible. If 
he is not in the vicinity, a description and location of the ordnance 
should be provided to the nearest EOD technician. Everyone, other than 
EOD personnel, shall remain clear of any ordnance found.
    (5) Only the qualified EOD technicians shall touch, examine, remove, 
attempt to remove, handle either directly or indirectly, or detonate any 
ordnance, whether found on the surface, beneath the surface or in the 
waters surrounding Kaho'olawe.
    (6) Any proposed hike and procession route shall be provided to the 
Special Assistant for Kaho'olawe (or his designated representative) for 
approval and escort coordination at least twenty-four hours in advance 
of the planned event. Deviation from approved routes will not be 
allowed. Proposed campsites for overnight hikes shall be similarly 
provided to, and approved by, the

[[Page 475]]

Special Assistant for Kaho'olawe or his designated representative.
    (7) No person shall move about the island after sunset unless a 
bonafide emergency situation arises. The senior Naval officer present 
shall be immediately notified in case of such emergency.
    (8) No person shall commit any offense proscribed by either Federal 
law or the State of Hawaii Penal Code, as incorporated under the Federal 
Assimilative Crimes Act, while on the island of Kaho'olawe. Any 
individual who violates any provisions of these penal codes may be 
prosecuted by the Federal Government and/or barred from any future 
access to Kaho'olawe.
    (9) No person shall deface, alter, remove, spoil, or destroy any 
archeological object, feature, or site on the island.
    (10) Children shall remain with their parents at all times while on 
the island.
    (11) Visitors are responsible for removing their own trash from the 
island.
    (12) Individuals failing to abide by these safety guidelines will be 
precluded from future visitations.
[47 FR 27553, June 25, 1982, as amended at 52 FR 20074, May 29, 1987; 52 
FR 45455, Nov. 30, 1987]



Sec. 763.6  Violations.

    (a) Any person who violates this subpart is subject to prosecution 
under 18 U.S.C. 1382, which provides in relevant part:

    Whoever * * * goes upon any * * * naval * * * reservation * * * for 
any purpose prohibited by law or lawful regulation * * * shall be fined 
not more than $500 or imprisoned not more than six months, or both.

    (b) Additionally, persons who violate this Subpart are subject to 
prosecution under the Internal Security Act of 1950 (50 U.S.C. 797), 
violations of which may result in a maximum penalty of imprisonment for 
one year, or a fine of $5,000 or both.

[[Page 476]]



                    SUBCHAPTER G--MISCELLANEOUS RULES





PART 765--RULES APPLICABLE TO THE PUBLIC--Table of Contents




Sec.
765.1-765.5  [Reserved]
765.6  Regulations for Pearl Harbor, Hawaii.
765.9-765.11  [Reserved]
765.12  Navy and Marine Corps absentees; rewards.
765.13  Insignia to be worn on uniform by persons not in the service.
765.14  Unofficial use of the seal, emblem, names, or initials of the 
          Marine Corps.

    Authority: Secs. 5031, 6011, 70A Stat. 278, 375, as amended, sec. 
133, 76 Stat. 517, sec. 301, 80 Stat. 379; 5 U.S.C. 301, 10 U.S.C. 133, 
5031, 6011, 7881.



Secs. 765.1-765.5  [Reserved]



Sec. 765.6  Regulations for Pearl Harbor, Hawaii.

    The Commander, U.S. Naval Base, Pearl Harbor, Hawaii, is responsible 
for prescribing and enforcing such rules and regulations as may be 
necessary for insuring security and for governing the navigation, 
movements, and anchorage of vessels in the waters of Pearl Harbor and in 
the entrance channel thereto.

(Sec. 1, 37 Stat. 341, 62 Stat. 799; 18 U.S.C. 2152, 33 U.S.C. 475; E.O. 
8143, 4 FR 2179, 3 CFR 1943 Cum. Supp. 504)

[31 FR 16620, Dec. 29, 1966]



Secs. 765.9-765.11  [Reserved]



Sec. 765.12  Navy and Marine Corps absentees; rewards.

    The following is set forth as it applies to Navy and Marine Corps 
absentees. The term ``absentee,'' as used in this section, refers to a 
service member who commits the offense of absence without leave. Cf. 
article 86 of the Uniform Code of Military Justice (10 U.S.C. 886).
    (a) Payment of rewards--(1) Authority. When authorized by military 
officials of the Armed Forces, any civil officer having authority to 
arrest offenders may apprehend an individual absent without leave from 
the military service of the United States and deliver him into custody 
of the military authorities. The receipt of Absentee Wanted by the Armed 
Forces (DD Form 553) or oral or written notification from military 
officials or Federal law enforcement officials that the person is absent 
and that his return to military control is desired is authority for 
apprehension and will be considered as an offer of a reward. When such a 
reward has been offered, persons or agency representatives (except 
salaried officers or employees of the Federal Government, or service 
members) apprehending or delivering absentees or deserters to military 
control will be entitled to a payment of
    (i) $50 for the apprehension and detention until military 
authorities assume control, or
    (ii) $75 for the apprehension and delivery to military control.

Payment of reward will be made to the person or agency representative 
actually making the arrest and the turnover or delivery to military 
control. If two or more persons or agencies join in performing these 
services, payment may be made jointly or severally but the total payment 
or payments will not exceed $50 or $75 as applicable. Payment of a 
reward is authorized whether the absentee or deserter voluntarily 
surrenders to civil authorities or is apprehended. Payment is not 
authorized for information merely leading to the apprehension of an 
absentee or deserter.
    (2) Payment procedure. The disbursing officer, special disbursing 
agent or agent officer of the military activity to which an absentee or 
deserter is first delivered will be responsible for payment of the 
reward. Payment of rewards will be made on NAVCOMPT Form 2277 supported 
by a copy of DD Form 553 or other form or notification that an 
individual is absent and that his return to military control is desired, 
and a statement signed by the claimant specifying that he apprehended 
(or accepted voluntary surrender) and detained the absentee or deserter 
until military authorities assumed control, or that he apprehended (or 
accepted voluntary surrender) and delivered the absentee or deserter to

[[Page 477]]

military control. If oral notification was made in lieu of written 
notification, the claimant will so certify and provide the date of 
notification and the name, rank or rate, title, and organization of the 
person who made the authorized notice of reward for apprehension of the 
absentee or deserter.
    (b) Reimbursement for actual expenses--(1) Authority. When a reward 
has not been offered or when conditions for payment of a reward 
otherwise cannot be met, reimbursement, not to exceed $75, may be made 
to any person or agency for actual expenses incurred in the apprehension 
and detention or delivery to military control of an absentee or 
deserter. If two or more persons or agencies join in performing these 
services, payment may be made jointly or severally, but the total 
payment or payments may not exceed $25. Reimbursement may not be made 
for the same apprehension and detention or delivery for which a reward 
has been paid. Actual expenses for which reimbursement may be made 
include:
    (i) Transportation costs, including mileage at the rate of 20.05 
cents per mile for travel by privately owned vehicle, for a round trip 
from either the place of apprehension or civil police headquarters to 
place of return to military control;
    (ii) Meals furnished the service member for which the cost was 
assumed by the apprehending person or agency representative;
    (iii) Telephone or telegraph communication costs;
    (iv) Damages to property of the apprehending person or agency if 
caused directly by the service member during the apprehension, 
detention, or delivery;
    (v) Such other reasonable and necessary expenses incurred in the 
actual apprehension, detention, or delivery as may be considered 
justifiable and reimbursable by the commanding officer. Reimbursement 
will not be made for:
    (a) Lodging at nonmilitary confinement facilities;
    (b) Transportation performed by the use of official Federal, State, 
county, or municipal vehicles;
    (c) Personal services of the apprehending, detaining, or delivering 
person or agency.
    (2) Payment procedure. The disbursing officer or special disbursing 
agent of the military activity to which an absentee or deserter is first 
delivered will be responsible for making reimbursement for actual 
expenses. Reimbursement will be effected on NAVCOMPT Form 2277 supported 
by an itemized statement in triplicate signed by the claimant and 
approved by the commanding officer.
    (c) Reimbursement for subsistence furnished--(1) Authority. Civil 
authorities may be reimbursed for the cost of subsistence furnished 
absentees or deserters placed in their custody for safekeeping at the 
request of military authorities. Such reimbursement will be in addition 
to rewards and reimbursement for actual expenses authorized in 
paragraphs (a) and (b) of this section.
    (2) Payment procedure. The disbursing officer or special disbursing 
agent of the military activity requesting the safekeeping confinement 
will be responsible for making reimbursement for subsistence furnished 
by civil authorities. Reimbursement will be effected on NAVCOMPT Form 
2277 supported by an itemized statement signed by the claimant and 
approved by the officer who requested the confinement.
    (d) Nothing said in this section shall be construed to restrict or 
exclude authority to apprehend an offender in accordance with law.

(Sec. 807, 70A Stat. 39; 10 U.S.C. 807. Interpret or apply secs. 808, 
7214, 70A Stat. 40, 445; 10 U.S.C. 808, 7214)

[25 FR 1075, Feb. 6, 1960, as amended at 51 FR 22283, June 19, 1986]



Sec. 765.13  Insignia to be worn on uniform by persons not in the service.

    (a) Under title 10 U.S.C., section 773, members of military 
societies composed of persons discharged honorably or under honorable 
conditions from the United States Army, Navy, Air Force or Marine Corps, 
regular or reserve, may, when authorized by regulations prescribed by 
the President, wear the uniform duly prescribed by such societies to be 
worn by the members thereof.

[[Page 478]]

    (b) The law cited in paragraph (a) of this section further provides 
that instructors and members of duly organized cadet corps at certain 
institutions of learning may wear the uniform duly prescribed by the 
authorities of such institutions.
    (c) The law cited in paragraph (a) of this section further provides 
that the uniform worn by members of the military societies or by members 
and instructors of the cadet corps referred to in paragraph (a) of this 
section shall include some distinctive mark or insignia prescribed by 
the Secretary of the military department concerned to distinguish such 
uniforms from the uniforms of the Army, Navy, Air Force, or Marine 
Corps.
    (d) Accordingly, except as otherwise provided in this paragraph, the 
following mark is hereby designated to be worn by all persons wearing 
the Navy or Marine Corps uniform as provided in paragraphs (a), (b), and 
(c) of this section: A diamond, 3\1/2\ inches long in the vertical axis, 
and 2 inches wide in the horizontal axis, of any cloth material, white 
on blue clothing, forestry green on khaki clothing, and blue on white 
clothing. The figure shall be worn on all outer clothing on the right 
sleeve, at the point of the shoulder, the upper tip of the diamond to be 
one-fourth inch below the shoulder seam. For persons who are 
participating in United States Marine Corps Junior ROTC programs, the 
following mark is designated to be worn: A round patch, three inches in 
diameter, which contains a gold Marine Corps emblem centered on a 
scarlet field. The scarlet field is surrounded with a blue border 
containing the words ``United States Marine Corps Junior ROTC'' in white 
lettering. Surrounding the blue field will be a gold border. Unless 
otherwise directed, the patch will be worn in the manner described above 
in connection with the ``diamond'' insignia.
    (e) Within the meaning of paragraph (a) of this section, the 
occasions when members of the military societies may wear the uniform of 
their respective society are official functions which such a member 
attends in his capacity as a war veteran or as a member of such military 
society.
    (f) Marine Corps Uniform Regulations may be examined and individual 
copies of pertinent provisions thereof may be purchased in accordance 
with Sec. 701.1 of this chapter.

(Sec. 773, 70A Stat. 35; 10 U.S.C. 773)

[13 FR 8971, Dec. 28, 1948, as amended at 26 FR 11794, Dec. 12, 1961; 37 
FR 6472, Mar. 30, 1972; 44 FR 37610, June 28, 1979]



Sec. 765.14  Unofficial use of the seal, emblem, names, or initials of the Marine Corps.

    (a) Purpose. To establish procedures to determine whether to grant 
permission to use or imitate the seal, emblem, names, or initials of the 
Marine Corps in connection with commercial and certain noncommercial 
activities pursuant to 10 U.S.C. 7881. The Secretary of the Navy, in 
Secretary of the Navy Instruction 5030.7, has provided the policy and 
delegated to the Commandant of the Marine Corps (CMC), power to 
subdelegate to certain subordinate officers in writing, the authority to 
grant permission required by section 7881(b) of 10 U.S.C. for such use 
or imitation.
    (b) Scope. The provisions of this Order requiring prior approval of 
the Secretary of the Navy, CMC, or the designee apply only to the use or 
imitation of the seal, emblem, names, or initials of the Marine Corps 
that suggest official approval, endorsement, or authorization is in 
connection with a promotion, goods, services, or commercial activity.
    (c) Standards--(1) No unofficial use or imitation of the Marine 
Corps seal. Reproduction and use of the Marine Corps seal, as designated 
in Executive Order No. 10538 of June 22, 1954, is restricted to 
materials emanating from Headquarters Marine Corps. Except for 
manufacture of official letterhead stationery and related items of 
official Marine Corps use, reproduction and use of the Marine Corps seal 
is prohibited.
    (2) Unofficial use or imitation of the Marine Corps emblem, names, 
or initials. Requests from civilian enterprises to use or imitate the 
Marine Corps emblem, names, or initials will ordinarily be approved 
where use or imitation merely provides a Marine Corps accent or flavor 
to otherwise fungible goods. Disapproval, however, usually may be

[[Page 479]]

expected where such use or imitation reasonably would:
    (i) Imply any official or unofficial connection between the Marine 
Corps and the user;
    (ii) Tend to create the impression that the Marine Corps or the 
United States is in any way responsible for any financial or legal 
obligation of the user;
    (iii) Give the impression that the Marine Corps selectively benefits 
the particular manufacturer, commercial entity, or other user, as in 
displaying the Marine Corps emblem, names, or initials on musical 
instruments, weapons, or the like, and in using the emblem, names, or 
initials in connection with advertising, naming, or describing products 
and services such as insurance, real estate, or financial services; or
    (iv) Tend to subject the Marine Corps to discredit or would be 
inimical to the health, safety, welfare, or morale of the members of the 
Marine Corps.
    (3) Acceptable use of imitation of the Marine Corps insignia. No 
request for permission is required when a use or imitation of the Marine 
Corps emblem, names, or initials includes prominent display of the 
disclaimer, ``Neither the United States Marine Corps nor any other 
component of the Department of Defense has approved, endorsed, or 
authorized this product (or promotion, or service, or activity)'' as an 
integral part of the use of imitation. A ``prominent display'' is one 
located on the same page as the first use of the insignia, prominent in 
that use, and printed in letters at least one half the size and density 
of the insignia.
    (d) Action--(1) When permission required. Commercial or 
noncommercial use or imitation of the Marine Corps emblem, names, or 
initials is prohibited unless permission is first obtained in writing 
from the CMC, except when such use does not suggest that the use or 
imitation is approved, endorsed, or authorized by the Marine Corps or 
any other component of the Department of Defense.
    (2) Redelegation of authority. The CMC hereby redelegates, pursuant 
to the authorization in paragraph 4 of the Secretary of the Navy 5030.7, 
authority to grant written permission to use the Marine Corps emblem, 
names, or initials to the Director of Headquarters Support (CMC (HQSP)). 
Prior to granting approval for commercial usage of the Marine Corps 
insignia, the CMC (HQSP) shall forward such requests to the Head, Marine 
Corps Exchange Service Branch, Facilities and Services Division, 
Installations and Logistics Department (CMC) (LFE)) and to the Counsel 
for the Commandant (CMC (CL)) for comment and concurrence. All other 
requests shall be routed to the Director, Judge Advocate Division (CMC 
(JAR)) for comment and concurrence.
    (3) Procedures for obtaining written permission. Requests for 
written permission to use or imitate the Marine Corps emblem, names, or 
initials shall be in writing and shall be directed to the CMC (HQSP). 
The request should, at a minimum, contain the following information:
    (i) Name and address of the requester.
    (ii) A description of the type of activity in which the requester is 
engaged or proposes to engage.
    (iii) A statement of whether the requester considers the proposed 
use or imitation to be commercial or noncommercial, and why.
    (iv) A brief description and illustration or sample of the proposed 
use or imitation, as well as a description of the product or service in 
connection with which it will be used. This description will provide 
sufficient detail to enable the Marine Corps to determine whether there 
is a reasonable tendency to suggest such use or imitation is approved, 
endorsed, or authorized by the Marine Corps or any other component of 
the Department of Defense.
    (v) In the case of a noncommercial use of imitation, a copy of the 
charter, constitution, bylaws, and similar organizational documents of 
the requester, together with a detailed description of its function or 
purpose. Insufficiently specific requests will be returned for 
additional information.
    (e) Reserve applicability. This Order is applicable to the Marine 
Corps Reserve.
[51 FR 45467, Dec. 19, 1986]

[[Page 480]]



PART 766--USE OF DEPARTMENT OF THE NAVY AVIATION FACILITIES BY CIVIL AIRCRAFT--Table of Contents




Sec.
766.1  Purpose.
766.2  Definition of terms.
766.3  Authority.
766.4  Policy.
766.5  Conditions governing use of aviation facilities by civil 
          aircraft.
766.6  Approving authority for landings at Navy/Marine Corps aviation 
          facilities.
766.7  How to request use of naval aviation facilities.
766.8  Procedure for review, approval, execution and distribution of 
          aviation facility licenses.
766.9  Insurance requirements.
766.10  Cancellation or suspension of the aviation facility license 
          (OPNAV Form 3770/1).
766.11  Fees for landing, parking and storage.
766.12  Unauthorized landings.
766.13  Sale of aviation fuel, oil, services and supplies.

    Authority: 49 U.S.C. 1507.

    Source: 35 FR 14451, Sept. 15, 1970, unless otherwise noted.

    Note: The provisions of this part 766 are SECNAV Instruction 3770.1B 
of 30 June 1970.



Sec. 766.1  Purpose.

    This part establishes the policy and procedures for the use of Navy 
and Marine Corps aviation facilities by aircraft other than U.S. 
Department of Defense aircraft.



Sec. 766.2  Definition of terms.

    For the purpose of this part certain terms are defined as follows:
    (a) Alternate use. Use of the aviation facility, specified in the 
flight plan, to which an aircraft may divert when a landing at the point 
of first intended landing becomes impractical because of weather. 
(Aircraft may not be dispatched, prior to takeoff from the airport of 
origin, to a facility licensed for alternate use.)
    (b) Civil aircraft. Domestic or foreign aircraft operated by private 
individuals or corporations, or foreign government-owned aircraft 
operated for commercial purposes. This includes:
    (1) Contract aircraft. Civil aircraft operated under charter or 
other contract to any U.S. Government department or agency.
    (2) Leased aircraft. U.S. Government-owned aircraft delivered by the 
Government to a lessee subject to terms prescribed in an agreement which 
does not limit the lessee's use of the aircraft to Government business.
    (c) Civil aviation. All flying activity by civil aircraft including:
    (1) Commercial aviation. Transportation by aircraft of passengers or 
cargo for hire and the ferrying of aircraft as a commercial venture.
    (2) General aviation. All types of civil aviation other than 
commercial aviation as defined above.
    (d) Facility. A separately located and officially defined area of 
real property in which the Navy exercises a real property interest and 
which has been designated as a Navy or Marine Corps aviation facility by 
cognizant authority; or where the Department of the Navy has 
jurisdiction over real property agreements, expressed or implied, with 
foreign governments, or by rights of occupation. (This definition does 
not include aircraft carriers nor any other type of naval vessel with a 
landing area for aircraft.)
    (e) Government aircraft. Aircraft owned or operated by any 
department or agency of either the United States or a foreign government 
(except a foreign government-owned aircraft operated for commercial 
purposes). Also aircraft owned by any department, agency, or political 
subdivision of a State, territory, or possession of the United States 
when such local government has sole responsibility for operating the 
aircraft. Government aircraft includes:
    (1) Military aircraft. Aircraft used in the military services of any 
government.
    (2) Bailed aircraft. U.S. Government-owned aircraft delivered by the 
Government to a Government contractor for a specific purpose directly 
related to a Government contract.
    (3) Loaned aircraft. U.S. Government-owned aircraft delivered 
gratuitously by any Department of Defense agency to another Government 
agency, to a U.S. Navy or Marine Corps Flying Club, or to a U.S. Army or 
Air Force Aero Club.

[[Page 481]]

    (f) Joint-use facility. A Navy or Marine Corps facility where a 
specific agreement between the Department of the Navy and a civilian 
community, or between the U.S. Government and a foreign government, 
provides for civil aircraft use of the runways and taxiways. Civil 
aircraft terminal, parking, and servicing facilities are established and 
controlled by civil authorities in an area separate from those of the 
Navy or Marine Corps.
    (g) Official business. Business, in the interest of the U.S. 
Government, which personnel aboard an aircraft must transact with U.S. 
Government organizations or personnel at or near the naval aviation 
facility concerned. Use of a facility to solicit U.S. Government 
business is not ``official business.''
    (h) Provisional use. Use of a naval aviation facility for the 
purpose of providing adequate service to a community where, because of 
repair, construction or the performance of other work, the regular civil 
airport servicing the community is not available for an extended period. 
(An aircraft may be dispatched prior to takeoff from the airport of 
origin to a naval aviation facility authorized for provisional use.)
    (i) Scheduled use. Use of a facility on a scheduled or regularly 
recurring basis by an air carrier certified by the Civil Aeronautics 
Board to provide passenger and cargo service to a community or area.
    (j) Services in connection with Government contracts. This type of 
operation, cited on the Aviation Facility License, indicates the use of 
a facility for transporting the contractor's supplies and personnel for 
the performance of work at the facility under the terms of a specific 
U.S. Government contract.
    (k) Technical stop. An en route landing for the purpose of obtaining 
fuel, oil, minor repairs, or crew rest. This does not include passenger 
accommodations nor passenger/cargo enplaning or deplaning privileges 
unless specifically authorized by the Chief of Naval Operations.
    (l) User. An individual, corporation, or company named in the 
Aviation Facility License and the Certificate of Insurance.



Sec. 766.3  Authority.

    Section 1107(a) of the Federal Aviation Act of 1958 (49 U.S.C. 1507, 
1508) states that ``Air navigation facilities owned or operated by the 
United States may be made available for public use under such conditions 
and to such extent as the head of the department or other agency having 
jurisdiction thereof deems advisable and may by regulation prescribe.'' 
(See Sec. 766.13 for restrictions imposed by the Federal Aviation Act of 
1958.)



Sec. 766.4  Policy.

    Navy and Marine Corps aviation facilities are established to support 
the operation of Navy and Marine Corps aircraft. Equipment, personnel 
and material are maintained only at a level necessitated by these 
requirements and shall not be used to support the operation or 
maintenance of civil aircraft or non U.S. Government aircraft, except as 
noted below. (Nothing in this part, however, should be interpreted to 
prohibit any aircraft from landing at any suitable Navy or Marine Corps 
aviation facility in case of a bona fide emergency.) (See 
Sec. 766.5(i).)
    (a) General. Subject to the procedures established elsewhere in this 
part, civil aircraft and government aircraft, other than those belonging 
to the U.S. Government may use Navy or Marine Corps facilities, if 
necessary, Provided, That:
    (1) They do not interfere with military requirements, and the 
security of military operations, facilities, or equipment is not 
compromised.
    (2) No adequate civil airport is available. (Exception to this 
provision may be made when the aircraft is operated in connection with 
official business as defined in this part.)
    (3) Pilots comply with regulations promulgated by the cognizant 
military agency and the commanding officer of the facility.
    (4) Civil aircraft users assume the risk in accordance with the 
provisions of the Aviation Facility License.
    (5) Each aircraft is equipped with two-way radio which provides a 
capability for voice communications with the control tower on standard 
Navy/Marine Corps frequencies.

[[Page 482]]

    (6) The user, or requesting government, has obtained permission 
through diplomatic channels from the host country wherein the facility 
of intended landing is located, if applicable.
    (b) Civil Aircraft owned and operated by--(1) Military personnel. 
Private aircraft owned and operated by active duty U.S. military 
personnel or by Navy/Marine Corps Reservists on inactive duty may be 
authorized to land at a facility, provided such aircraft is not engaging 
in air commerce, and such landing is for official business required by 
written orders. Under no conditions shall such aircraft be allowed to 
base or operate from a facility for personal convenience nor base at a 
facility under the guise of official business.
    (2) Civil employees of the U.S. Government. Private aircraft owned 
and operated by civil employees of the U.S. Government may be authorized 
to land at a facility, provided such aircraft is not engaging in air 
commerce, and such landing is for official business required by written 
orders. Such aircraft shall not be allowed to base or operate from a 
facility for personal convenience. (Employees of U.S. Government 
contractors are not considered civil employees of the U.S. Government.)
    (3) Non-U.S. Government personnel. An individual or corporation 
owned and/or operated aircraft may be authorized to land at a facility 
for:
    (i) Sales or service representation to authorized military agents 
(e.g. the exchange, commissary, or contracting officer).
    (ii) Services in connection with U.S. Government contracts. 
Contracting agency and contract number(s) must be cited in the 
application for an Aviation Facility License.
    (c) Department of defense charter or contract. Aircraft operating 
under a Military Traffic Management and Terminal Service (MTMTS), 
Military Airlift Command (MAC), or Navy charter or contract for the 
movement of DOD passengers or cargo may be authorized to use Navy or 
Marine Corps aviation facilities when required for loading, en route or 
terminal stops.
    (d) Test and experimental use. Aircraft being produced for a 
military agency under contract may use Navy/Marine Corps facilities for 
testing and experimental purposes, if the contract so provides, or if it 
is determined to be in the best interests of the U.S. Government to do 
so. Unless otherwise provided in the contract, an Aviation Facility 
License is required, and the user shall furnish a Certificate of 
Insurance as provided in this part.
    (e) Aircraft demonstrations. Manufacturers of aircraft or installed 
equipment may be authorized to use Navy/Marine Corps facilities in 
demonstrating and/or showing aircraft or installed equipment to 
officials of the U.S. Government when:
    (1) It is determined to be in the best interest of the U.S. 
Government.
    (2) The aircraft was produced in accordance with U.S. Government 
specifications either with or without the aid of Federal funds.
    (3) There is an expressed interest on the part of the U.S. 
Government officials responsible for procurement, approval, or 
certification of the aircraft.
    (f) Joint use. When a specific agreement is entered into by the 
Department of the Navy pertaining to joint civil/military use of a Navy 
or Marine Corps facility, the terms of that agreement shall take 
precedence over the provisions of this part.
    (g) Diplomatic agreements. For diplomatic agreements and clearances 
to use U.S. Navy and Marine Corps aviation facilities in foreign 
countries, the provisions of this part are subject to the provisions of 
status of forces agreements, treaties of mutual cooperation or other 
international agreements. This part shall be used as a guide in 
negotiating agreements at the local level with representatives of a 
foreign military service, the U.S. Embassy, and the host government 
concerning the use of naval facilities by other than U.S. military 
aircraft. Approval shall be obtained from the Chief of Naval Operations 
for proposed terms which are in conflict with this part.



Sec. 766.5  Conditions governing use of aviation facilities by civil aircraft.

    (a) Risk. The use of Navy or Marine Corps aviation facilities by 
civil aircraft shall be at the risk of the operator. Except as 
hereinafter provided for U.S. Government contractors, the Department of 
the Navy shall assume no

[[Page 483]]

liability or responsibility by reason of the condition of the landing 
area, taxiways, radio and navigational aids, or other equipment or for 
notification of such condition; or by the acts of its agents in 
connection with the granting of the right to use such naval facility. No 
responsibility is assumed for the security of or damage to aircraft 
while on property owned or controlled by the U.S. Government.
    (b) Military rules. Operators of civil aircraft utilizing a Navy or 
Marine Corps aviation facility shall be required to comply with the air 
and ground rules promulgated by the Department of the Navy and the 
commanding officer of the aviation facility. Such compliance shall 
pertain specifically to clearance authorization for the entry, 
departure, or movement of aircraft within the confines of the terminal 
area normally controlled by the commanding officer of the aviation 
facility.
    (c) Federal aviation regulations. Operators of civil aircraft shall 
be required to comply with all Federal Aviation Administration (FAA) 
rules and regulations including filing of flight plans. When such flight 
plans are required, they shall be filed with the commanding officer or 
his authorized representative prior to the departure of the aircraft. 
When such a flight plan is not required, a list of passengers and crew 
members, the airport of first intended landing, the alternate airport, 
and fuel supply in hours shall be placed on file prior to takeoff, with 
the commanding officer or with the local company representative as 
appropriate.
    (d) Hours of operation. The use of a Navy/Marine Corps aviation 
facility by civil aircraft shall be limited to the hours when the 
facility is normally in operation.
    (e) Weather minimums. Civil aircraft shall comply with weather 
minimums as follows:
    (1) Visual Flight Operations shall be conducted in accordance with 
Federal Aviation Regulations (FAR), Sec. 91.105 of this title. If more 
stringent visual flight rules minimums have been established for the 
point of departure or destination, as noted in the aerodrome remarks 
section of the Department of Defense Flight Information Publication (en 
Route) Instrument Flight Rules--Supplement, then the ceiling and 
visibility must be at or above these minimums in the applicable control 
zone.
    (2) Instrument flight operations shall be conducted in accordance 
with FAR, Sec. 91.116 of this title.
    (f) Inspection. The commanding officer may conduct such inspection 
of a transiting civil aircraft and its crew, passengers and cargo as he 
may consider appropriate or necessary to the carrying out of his duties 
and responsibilities.
    (g) Customs, immigration, agriculture, and public health inspection. 
(1) The civil aircraft commander shall be responsible for compliance 
with all applicable customs, immigration, agriculture, and public health 
laws and regulations. He shall also be responsible for paying fees, 
charges for overtime services, and for all other costs connected with 
the administration of such laws and regulations.
    (2) The commanding officer of the Navy/Marine Corps aviation 
facility will inform the appropriate public officials of the arrival of 
civil aircraft subject to such laws and regulations. He will not issue 
clearances for a civil aircraft to takeoff until such laws and 
regulations have been complied with. Procedures for insuring compliance 
with such laws and regulations shall be as mutually agreed to by the 
commanding officer of the aviation facility and the local public 
officials.
    (h) Weather alternate. If a Navy/Marine Corps aviation facility has 
been approved for use as an alternate airport, radio clearance must be 
obtained from such facility as soon as the decision is made en route for 
such use.
    (i) Emergency landings. Any aircraft may land at a Navy/Marine Corps 
aviation facility when necessary as a result of a bona fide emergency. 
However, whenever the nature of the emergency permits the pilot to 
select the time and place of landing, it is preferred that the pilot 
land his aircraft at a civil field.
    (1) The commanding officer of the aviation facility will require 
that the pilot of the aircraft pay all fees and charges and execute the 
Aviation Facility License. A statement explaining the circumstances of 
the emergency

[[Page 484]]

landing must be noted in Sec. 766.5 of the license application. If a 
narrative report from the pilot is available, it may be attached to the 
application.
    (2) Clearance of runway. The Department of the Navy reserves the 
right to use any method to clear a runway of aircraft or wreckage 
consistent with operational requirements. Care will be exercised to 
preclude unnecessary damage in removing wrecked aircraft; however, the 
Navy assumes no liability as a result of such removal.
    (3) Repairs. (i) Aircraft requiring major repairs may be stored 
temporarily in damaged condition. If repairs cannot be completed within 
a reasonable time, the aircraft must be removed from the facility by the 
owner or operator of the aircraft without delay.
    (ii) No aircraft will be given a major or minor overhaul.
    (iii) Engine or air frame minor components may be furnished, when 
not available through commercial sources, provided such supplies can be 
spared and are not known to be in short supply. The issuance of such 
supplies must be approved by the commanding officer.
    (iv) Minor components in short supply or major components for which 
there is a repeated demand can be furnished only on message authority 
obtained from the Aviation Supply Office, Philadelphia, PA (for 
continental facilities) or local fleet air command or major aviation 
supply depot (for extracontinental facilities). Complete engines, 
airplane wings, or other major items of equipment shall not be furnished 
under this authority.
    (v) If the commanding officer believes it is desirable to furnish 
requested material or services in excess of the restrictions stated 
herein, he shall request instructions from the Chief of Naval 
Operations, giving a brief description of the material or services 
requested together with his recommendations.
    (4) Reimbursement for costs. (i) The civil user making an emergency 
landing will be billed in accordance with paragraphs 032500-032503 of 
the NAVCOMPT Manual and paragraphs 25345-25363 of the NAVSUP Manual for 
payment of all costs incurred by the Government as a direct result of 
the emergency landing. Such costs will include those associated with 
labor, material, rental of equipment, vehicles or tools, etc., for:
    (a) Spreading foam on runway before the aircraft attempts emergency 
landing.
    (b) Fire and crash control and rescue.
    (c) Movement and storage of aircraft or wreckage.
    (d) Damage to runway, lights, navigation aids, etc.
    (ii) There will be no charge for naval meteorological services and 
naval communications facilities for the handling of arrival and 
departure reports, air traffic control messages, position reports and 
safety messages.
    (iii) The determination as to whether landing fees shall be charged 
pursuant to an emergency landing for maintenance or repair shall be the 
prerogative of the commanding officer of the facility.
[35 FR 14451, Sept. 15, 1970, as amended at 51 FR 22804, June 23, 1986]



Sec. 766.6  Approving authority for landings at Navy/Marine Corps aviation facilities.

    (a) Except as indicated in paragraphs (b) and (c) of this section, 
the commanding officer of an active Navy/Marine Corps aviation facility 
may approve or disapprove landings of civil aircraft at his facility 
when such landing is:
    (1) Directly connected with or in support of U.S. Government 
business (except those listed in paragraph (c) of this section).
    (2) In connection with U.S. Government or community interests on an 
infrequent basis when no adequate civil airport is reasonably available.
    (3) By aircraft owned and operated by Navy/Marine Corps Flying Clubs 
or U.S. Army or Air Force Aero Clubs which are operated as 
instrumentalities of the U.S. Government.
    (4) By aircraft owned and operated by U.S. Government personnel when 
such use is in accordance with Sec. 766.4(b) (1) and (2).
    (5) By civil aircraft either owned or personally chartered by:

[[Page 485]]

    (i) The President or Vice President of the United States or a past 
President of the United States.
    (ii) The head of any Federal department or agency.
    (iii) A Member of Congress.
    (6) By a bailed, leased, or loaned aircraft (as defined in 
Sec. 766.2) when operated in connection with official business only.
    (7) By aircraft owned and operated by States, counties, or 
municipalities of the United States when used for official business of 
the owner.
    (b) Except as limited by paragraph (c) of this section, the 
Commander in Chief, U.S. Naval Forces, Europe; Chief of Naval Material; 
Commander in Chief, U.S. Atlantic Fleet; Commander in Chief, U.S. 
Pacific Fleet; Chief of Naval Air Training; Commander, Pacific Missile 
Range; Commander, Marine Corps Air Bases, Eastern Area; Commander, 
Marine Corps Air Bases, Western Area; and Commanding General, Fleet 
Marine Force, Pacific may approve civil aircraft use of any active 
aviation facility under their control. (At overseas locations, aircraft 
landing authorizations must be in consonance with the provisions of 
applicable international agreements.)
    (c) The Chief of Naval Operations may approve any of the above 
requests, and is the only agency empowered to approve all other requests 
for use of naval facilities by civil and government aircraft, for 
example:
    (1) Applications for use of more than one facility when the 
facilities are not under the control of one major command.
    (2) Application for use of naval aviation facilities when 
participating in U.S. Government or Department of Defense single-manager 
contract and charter airlift operations; i.e., Military Airlift Command 
(MAC) or Military Traffic Management and Terminal Service (MTMTS).
    (3) Application for a facility to be used as a regular civil 
airfield for a community, by either commercial or general aviation.
    (4) Requests for use of a facility by foreign civil or government 
aircraft when:
    (i) Such use is not covered by an agreement between the U.S. 
Government and the government of the aircraft's registry, or
    (ii) The facility is located in a country other than that in which 
the foreign aircraft is registered.



Sec. 766.7  How to request use of naval aviation facilities.

    (a) Forms required. Each applicant desiring use of a Navy/Marine 
Corps aviation facility will be required to:
    (1) Execute an application for an Aviation Facility License (OPNAV 
Form 3770/1 (Rev. 7-70)).
    (2) Submit a Certificate of Insurance (NAVFAC 7-11011/36) showing 
coverage as provided by Sec. 766.9 of this part.
    (b) Exceptions. Exceptions to the foregoing requirements are:
    (1) Aircraft owned and operated by departments or agencies of the 
U.S. Government for official business.
    (2) Aircraft owned and operated or noncommercial purposes by 
agencies of a foreign government, except in cases where the foreign 
government charges fees for U.S. Government aircraft.
    (3) Aircraft owned and operated by States, possessions, and 
territories of the United States and political subdivisions, thereof, 
when used for official business of the owner.
    (4) Aircraft owned and operated by either Navy/Marine Corps Flying 
Clubs or Aero Clubs of other military services which are operated as 
instrumentalities of the U.S. Government.
    (5) Bailed aircraft, provided the bailment contract specifies that 
the U.S. Government is the insurer for liability.
    (c) Obtaining forms. The applicant may obtain the required forms 
listed in paragraph (a) of this section, from the commanding officer of 
any Navy or Marine Corps aviation facility or from the Chief of Naval 
Operations (OP-53C). Navy units may obtain the forms through regular 
supply channels as a Cog ``I'' item.
    (d) Preparation of forms. (1) The license application will be 
completed in quadruplicate by the applicant in accordance with detailed 
instructions set forth in Aviation Facility License (OPNAV Form 3770/1 
(REV. 7-70)).
    (2) The Certificate of Insurance will be completed by the insurer. 
Only the signed original certificate and one copy are required to be 
submitted.

[[Page 486]]

    (e) Submission of forms. (1) The forms executed by the applicant 
shall be submitted to the commanding officer of the aviation facility 
concerned, except that applications requiring approval by higher 
authority shall be submitted to the appropriate approving authority, as 
indicated in paragraph (b) or (c) of this section at least 30 days prior 
to the first intended landing.
    (2) Once the NAVFAC 7-11011/36, Certificate of Insurance, is on file 
with an executing authority, it is valid until insurance expiration date 
and may be used by that executing authority as a basis for his action on 
any subsequent OPNAV Forms 3770/1 submitted for approval.
    (f) Security deposit. All applications, other than those listed in 
Sec. 766.11(a) contemplating more than one landing per month, will be 
accompanied by a security deposit in the form of a certified check 
payable to the ``Treasurer of the United States'' in payment of the 
estimated costs of landing, hangar and outside parking fees, for 3 
months in advance, calculated as provided in Sec. 766.11 (c) and (d). 
Security deposits will be handled as set forth in paragraph 032102 of 
the NAVCOMPT Manual.
    (g) Nonexclusive use airports. When either the Chief of Naval 
Operations or Commandant of the U.S. Marine Corps does not have 
exclusive operational control over a landing area, the aircraft operator 
will obtain permission to land from the appropriate civil or military 
authority.



Sec. 766.8  Procedure for review, approval, execution and distribution of aviation facility licenses.

    (a) Review of application by the commanding officer. The commanding 
officer will review each application for Aviation Facility License and 
Certificate of Insurance received and determine whether such forms have 
been completed by the applicant in accordance with the instructions for 
their preparation as indicated in the Aviation Facility License (OPNAV 
Form 3770/1 (REV. 7-70)) and the Certificate of Insurance (NAVFAC 7-
11011/36(7-70)). As appropriate, the commanding officer will require 
each applicant to furnish a security deposit as stipulated in 
Sec. 766.7(f).
    (b) Processing application. The commanding officer will approve/
disapprove the application or forward it to higher authority for 
approval as required by Sec. 766.6(b) or (c). If the application is 
approved, the approving authority will then forward all copies of the 
license and Certificate of Insurance to the Commander, Naval Facilities 
Engineering Command or his designated representative for review and 
execution of the license.
    (c) Action by the Commander, Naval Facilities Engineering Command or 
his designated representative. (1) Upon receipt, the Commander, Naval 
Facilities Engineering Command, or his designated representative, will 
review the license and Certificate of Insurance. He shall determine 
whether the insurance coverage conforms to the requirements prescribed 
by Sec. 766.9 of this part or to such requirements as may be promulgated 
from time to time by the Chief of Naval Material.
    (2) Upon approval, he will then execute the license in triplicate, 
conform all additional copies, and make distribution as provided in 
paragraph (d) of this section. Applications which are not approved will 
be returned to the applicant with an explanation of deficiencies which 
must be corrected prior to execution.
    (d) Distribution. (1) After execution of a license, distribution 
will be made as follows:

    Original--To the licensee.
    Executed copy--To the commanding officer.
    Executed copy--To the Commander, Naval Facilities Engineering 
Command or his designated representative.
    Conformed copy--To the Chief of Naval Operations (OP-53).
    Conformed copy--To the cognizant commander under Sec. 766.6(b).
    Conformed copy--To the disbursing officer serving the performing 
activity in the case of local deposits, and to the Office of the Navy 
Comptroller (NAFC3) in the case of central deposits held at the 
Washington, DC level.
    Conformed copy--To the Military Airlift Command (MAC) for DOD 
contract or charter airlift operations.
    Conformed copy--To the Military Traffic Management and Terminal 
Service (MTMTS)

[[Page 487]]

for DOD contract or charter airlift operations.

    (2) Licenses issued under this authority are to be disposed of under 
provisions of paragraph 4280 of SECNAVINST 5212.5B, Disposal of Navy and 
Marine Corps Records. In accordance therewith, official executed copies 
of licenses are to be retained for a period of 6 years after completion 
or termination of the agreement. They may be transferred to the nearest 
Federal records center when superseded, revoked, canceled, or expired 
for retention by the center until expiration of the 6-year retention 
period.



Sec. 766.9  Insurance requirements.

    (a) Control of insurance. The Commander, Naval Facilities 
Engineering Command, or his designee, shall be responsible for requiring 
aircraft owners or operators to procure and maintain liability insurance 
conforming to the standards prescribed by the Chief of Naval Material. 
The insurance policy must be obtained at the expense of the civil 
aircraft owner or operator and with a company acceptable to the U.S. 
Navy.
    (b) Insurance coverage. Except for those aircraft exempted by 
paragraph (c) below, each civil aircraft is required to be covered by 
insurance of the types and minimum limits established by the Chief of 
Naval Material. The Certificate of Insurance, must state all coverages 
in U.S. dollars. Current minimums are:
    (1) Privately owned commercially-operated aircraft used for cargo 
carrying only and aircraft being flight-tested or ferried without 
passengers will be insured for:
    (i) Bodily injury liability. At least $100,000 for each person in 
any one accident with at least $1 million for each accident.
    (ii) Property damage liability. At least $1 million for each 
accident.
    (2) Privately owned commercially-operated aircraft used for 
passenger carrying and privately owned noncommercially-operated aircraft 
of 12,500 pounds or more certified maximum gross takeoff weight will be 
insured for:
    (i) Bodily injury liability (excluding passengers). At least 
$100,000 for each person in any one accident with at least $1 million 
for each accident.
    (ii) Property damage liability. At least $1 million for each 
accident.
    (iii) Passenger liability. At least $100,000 for each passenger, 
with a minimum for each accident determined as follows: multiply the 
minimum for each passenger, $100,000 by the next highest whole number 
resulting from taking 75 percent of the total number of passenger seats 
(exclusive of crew seats). For example: The minimum passenger coverage 
for each accident for an aircraft with 94 passenger seats is computed: 
94 x 0.75=70.5--next highest whole number resulting in 71. Therefore, 
71 x $100,000=$7,100,000.
    (3) Privately owned noncommercially-operated aircraft of less than 
12,500 pounds will be insured for:
    (i) Bodily injury liability (excluding passengers). At least 
$100,000 for each person in any one accident with at least $500,000 for 
each accident.
    (ii) Property damage liability. At least $500,000 for each accident.
    (iii) Passenger liability. At least $100,000 for each passenger, 
with a minimum for each accident determined by multiplying the minimum 
for each passenger, $100,000 by the total number of passenger seats 
(exclusive of crew seats).
    (4) Aircraft insured for a single limit of liability must have 
coverage equal to or greater than the combined required minimums for 
bodily injury, property damage, and passenger liability for the type of 
use requested and for the passenger capacity and gross takeoff weight of 
the aircraft being operated. For example: the minimum single limit of 
liability acceptable for an aircraft operating as described in paragraph 
(b)(2) of this section is $1,000,000 + $1,000,000 + $7,100,000 = 
$9,100,000.
    (5) Aircraft insured by a combination of primary and excess policies 
must have combined coverage equal to or greater than the required 
minimums for bodily injury, property damage, and passenger liability, 
for the type of use, and for the passenger capacity and gross takeoff 
weight of the aircraft.
    (6) Each policy must specifically provide that:
    (i) The insurer waives any right to subrogation the insurer may have

[[Page 488]]

against the United States by reason of any payment under the policy for 
damage or injury which might arise out of or in connection with the 
insured's use of any Navy installation or facility.
    (ii) The insurance afforded by the policy applies to the liability 
assumed by the insured under OPNAV Form 3770/1, Aviation Facility 
License.
    (iii) If the insurer cancels or reduces the amount of insurance 
afforded under the listed policy, the insurer shall send written notice 
of the cancellation or reduction to Commander, Naval Facilities 
Engineering Command, Department of the Navy, Washington, DC 20390 by 
registered mail at least 30 days in advance of the effective date of the 
cancellation; the policy must state that any cancellation or reduction 
will not be effective until at least 30 days after such notice is sent, 
regardless of the effective date specified therein.
    (iv) If the insured requests cancellation or reduction, the insurer 
shall notify the Commander, Naval Facilities Engineering Command, 
Department of the Navy, Washington, DC 20390 immediately upon receipt of 
such request.
    (c) Exemption. Government aircraft, as defined in Sec. 766.2(e) are 
exempt from the insurance requirements specified above. However, this 
exemption applies to bailed aircraft only if the contract under which 
the aircraft is bailed specifies that insurance is not required.



Sec. 766.10  Cancellation or suspension of the aviation facility license (OPNAV Form 3770/1).

    (a) Cancellation. (1) If the user fails to comply with the terms of 
the Aviation Facility License (OPNAV Form 3770/1) or of any applicable 
regulations, all current Aviation Facility Licenses for that user will 
be canceled. A canceled Aviation Facility License cannot be reinstated; 
a new application must be submitted for approval as explained in 
Sec. 766.7.
    (2) If the commanding officer of a naval aviation facility has 
reason to believe that the use of an Aviation Facility License is not in 
accordance with the terms of the license he should immediately notify 
the Chief of Naval Operations, giving the name of the user, the Aviation 
Facility License number, and citing the circumstances of the misuse.
    (b) Suspension. The approving authority, or the commanding officer 
of the facility, may suspend an approved Aviation Facility License when 
such licensed use would be inconsistent with Navy/Marine Corps or 
national defense interests. Whenever possible, the Department of the 
Navy will avoid suspension of licenses which have been issued for 
official business or scheduled air carrier use. In all cases, 
suspensions will be lifted as quickly as possible. A suspension will not 
have the effect of extending the expiration date of an approved Aviation 
Facility License.



Sec. 766.11  Fees for landing, parking and storage.

    (a) The commanding officer of a facility will collect landing, 
parking, and storage fees, as applicable, from all users required to 
have an Aviation Facility License by Sec. 766.7 except for the 
following:
    (1) Government aircraft (see definition Sec. 766.2(g)) except that 
foreign government aircraft will be charged fees if their government 
charges similar fees for U.S. Government aircraft.
    (2) Aircraft being produced under a contract of the U.S. Government.
    (3) Any contract aircraft (see definition Sec. 766.2(b)(1)) or other 
civil aircraft which is authorized to use the facility on official 
business.
    (4) Aircraft employed to train operators in the use of precision 
approach systems (GCA, ILS, et al.) provided full-stop or touch-and-go 
landings are not performed.
    (5) Aircraft owned and operated by either Navy/Marine Corps Flying 
Clubs or Aero Clubs or other military services which are operated as 
instrumentalities of the U.S. Government.
    (6) Aircraft owned and operated by military personnel on active duty 
(Regular and Reserve) or retired, provided the aircraft is not used for 
commercial purposes.
    (7) Landing fees incident to emergency landings for which the 
landing fee has been waived by the commanding officer in accordance with 
Sec. 766.5(i)(5)(i).
    (b) Fee for unauthorized landing. If an aircraft lands at a Navy/
Marine Corps

[[Page 489]]

aviation facility without obtaining prior permission (except for a bona 
fide emergency landing), a landing fee in excess of the normal landing 
fee will be charged to cover the additional expenses incurred due to 
special handling and processing. The fee for an unauthorized landing 
will be as follows:
    (1) For aircraft weighing less than 12,500 pounds: $100.
    (2) For aircraft weighing 12,500 pounds but less than 40,000 pounds: 
$250.
    (3) For aircraft weighing 40,000 pounds but less than 100,000 
pounds: $500.
    (4) For aircraft weighing above 100,000 pounds: $600.
    (c) Normal landing fee. The normal landing fee is based on the 
aircraft maximum authorized gross takeoff weight, to the nearest 1,000 
pounds. The maximum gross takeoff weight may be determined either from 
item 7F of OPNAV Form 3770/1 or from the ``Airplane Flight Manual'' 
carried aboard each aircraft. If the weight cannot be determined, it 
should be estimated.

                           Charge Per Landing

Inside CONUS--0.20/1,000 pounds or any portion thereof with a minimum of 
$5.
Outside CONUS--0.30/1,000 pounds or any portion thereof with a minimum 
of $7.50.

    (d) Parking and storage fees. Fixed and rotary wing aircraft parking 
and storage fees are based upon the gross takeoff weight of the aircraft 
as follows:
    (1) Outside a hangar. Charges begin 6 hours after the aircraft 
lands. The rate is 10 cents per thousand pounds for each 24-hour period 
or fraction thereof, with a minimum charge of $1.50 per aircraft.
    (2) Inside a hangar. Charges begin as soon as the aircraft is placed 
inside the hangar. The rate is 20 cents per 1,000 pounds for each 24-
hour period or fraction thereof, with a minimum charge of $5 per 
aircraft.
    (e) Reimbursement. Collections incident to direct (out of pocket) 
costs will be credited to local operating and maintenance funds. All 
other collections, such as for landing, parking, and storage fees will 
be credited to Navy General Fund Receipt Account 172426. Accumulation of 
costs and preparation of billing documents are prescribed in paragraphs 
032500-032503 of the NAVCOMPT Manual.



Sec. 766.12  Unauthorized landings.

    An aircraft that lands at a Navy/Marine Corps aviation facility 
without obtaining prior permission from an approving authority, except 
in a bona fide emergency, is in violation of this part. Civil aircraft 
landing in violation of this regulation will have to pay the fee 
prescribed in Sec. 766.11(b). In those cases where an unauthorized 
landing is made at a facility within a Naval Defense Area, proclaimed as 
such by Executive order of the President, civil aircraft may be 
impounded and the operator prosecuted as indicated in OPNAVINST 5500.11C 
of November 12, 1963. In any event, before the aircraft is authorized to 
depart, the commanding officer of the facility will:
    (a) Inform the aircraft operator of the provisions of this part and 
the OP NAVINST 5500.11C of November 12, 1963, if applicable.
    (b) Require the aircraft operator (or owner), before takeoff, to pay 
all fees and charges and to comply with the following procedure:
    (1) Execute OPNAV Form 3770/1, explaining in item 6 of that form the 
reason for the landing.
    (2) In lieu of submitting a Certificate of Insurance (NAVFAC 7-
11011/36), the insurer must furnish evidence of sufficient insurance to 
include waiver of any right of subrogation against the United States, 
and that such insurance applies to the liability assumed by the insured 
under OPNAV Form 3770/1.
    (3) When it appears that the violation may have been deliberate, or 
is a repeated violation, departure authorization must be obtained from 
the Chief of Naval Operations.
    (4) Waiver of the requirements in paragraphs (b)(1) and (2) of this 
section may be obtained from the Chief of Naval Operations to expedite 
removal of these aircraft when such waiver is considered appropriate.
[35 FR 14451, Sept. 15, 1970, as amended at 51 FR 22804, June 23, 1986]



Sec. 766.13  Sale of aviation fuel, oil, services and supplies.

    (a) General policy. In accordance with sections 1107 and 1108 of the 
Federal

[[Page 490]]

Aviation Act of 1958 (72 Stat. 798 as amended, 49 U.S.C. 1507, 1508), 
Navy/Marine Corps Aviation fuel, oil, services, and supplies are not 
sold to civil aircraft in competition with private enterprise. Sections 
1107 and 1108 of Federal Aviation Act of 1958 (72 Stat. 798 as amended, 
49 U.S.C. 1507, 1508), however, does authorize the sales of fuel, oil, 
equipment, supplies, mechanical service, and other assistance by reason 
of an emergency. Such sales will be made only where there is no 
commercial source and only in the amount necessary for the aircraft to 
continue on its course to the nearest airport operated by private 
enterprise.
    (b) Contract aircraft. The sale of aviation fuel, oil, supplies, 
etc. to aircraft under U.S. Government contract or charter is permitted 
at, and limited to, points where passengers or cargo are loaded into or 
discharged from the aircraft under terms of the contract or charter. 
Sales are not authorized at naval aviation facilities where commercial 
supplies and service are available.



PARTS 767-769  [RESERVED]






PART 770--RULES LIMITING PUBLIC ACCESS TO PARTICULAR INSTALLATIONS--Table of Contents




 Subpart A--Hunting and Fishing at Marine Corps Base, Quantico, Virginia

Sec.
770.1  Purpose.
770.2  Licenses.
770.3  Fishing regulations.
770.4  Hunting regulations.
770.5  Safety regulations.
770.6  Restrictions.
770.7  Violations.
770.8  Reports.
770.9  Miscellaneous.

  Subpart B--Base Entry Regulations for Naval Submarine Base, Bangor, 
                          Bremerton, Washington

770.15  Purpose.
770.16  Definition.
770.17  Background.
770.18  Entry restrictions.
770.19  Entry procedures.
770.20  Violations.

 Subpart C--Base Entry Regulations for Naval Installations in the State 
                                of Hawaii

770.25  Purpose.
770.26  Definitions.
770.27  Background.
770.28  Entry restrictions.
770.29  Entry procedures.
770.30  Violations.
770.31  List of major naval installations in the State of Hawaii and 
          cognizant commanders authorized to grant access under these 
          regulations.

  Subpart D--Entry Regulations for Naval Installations and Property in 
                               Puerto Rico

770.35  Purpose.
770.36  Definitions.
770.37  Background.
770.38  Entry restrictions.
770.39  Entry procedures.
770.40  Violations.

 Subpart E--Base Entry Regulations for Naval Submarine Base New London, 
                           Groton, Connecticut

770.41  Purpose.
770.42  Background.
770.43  Responsibility.
770.44  Entry restrictions.
770.45  Entry procedures.
770.46  Violations.

   Subpart F--Base Entry Regulations for Puget Sound Naval Shipyard, 
                          Bremerton, Washington

770.47  Purpose.
770.48  Definition.
770.49  Background.
770.50  Entry restrictions.
770.51  Entry procedures.
770.52  Violations.

Subpart G--Entry Regulations for Portsmouth Naval Shipyard, Portsmouth, 
                              New Hampshire

770.53  Purpose.
770.54  Background.
770.55  Responsibility.
770.56  Entry restrictions.
770.57  Entry procedures.
770.58  Violations.

    Authority: 5 U.S.C. 301; 10 U.S.C. 6011; 32 CFR 700.702; 32 CFR 
700.714, unless otherwise noted.

[[Page 491]]



 Subpart A--Hunting and Fishing at Marine Corps Base, Quantico, Virginia

    Source: 41 FR 22345, June 3, 1976, unless otherwise noted.



Sec. 770.1  Purpose.

    This subpart provides regulations and related information governing 
hunting and fishing on the Marine Corps Base Reservation, Quantico, VA.



Sec. 770.2  Licenses.

    (a) Every person who hunts or fishes on Marine Corps Base, Quantico, 
VA, must possess appropriate valid licenses in compliance with the Laws 
of the United States and the State of Virginia.
    (b) In addition, hunting and fishing privilege cards, issued by the 
authorities at Marine Corps Base, Quantico, VA, are required for all 
persons between the ages sixteen and sixty-four, inclusive.
    (1) The privilege card may be purchased from the Game Warden at the 
Natural Resources Management Division Headquarters, Building 5-9, Marine 
Corps Base, Quantico, VA.
    (2) The privilege cards are effective for the same period as the 
Virginia hunting and fishing licenses.
    (c) All hunters must obtain a Base hunting permit, and a parking 
permit, if applicable, from the Game Warden for each day of hunting. The 
hunting permit must be carried by the hunter and the parking permit must 
be displayed on the left dashboard of parked vehicles. The hunting and 
parking permits must be returned within one hour after either sunset or 
the hour hunting is secured on holidays or during special season.
    (d) Eligibility for a Base hunting permit is predicated on:
    (1) Possession of required Federal and State licenses for the game 
to be hunted including Marine Corps Base hunting privilege card;
    (2) Attendance at a safety lecture given daily except Sunday during 
the hunting season given at the Game Checking Station located at the 
intersection of Russell Road and MCB-1. The lectures commence an hour 
before sunrise, 0800, and 1200;
    (3) Understanding of Federal, State and Base hunting regulations;
    (4) And, if civilian, an executed release of U.S. Government 
responsibility in case of accident or injury.
[41 FR 22345, June 3, 1976, as amended at 48 FR 23205, May 24, 1983]



Sec. 770.3  Fishing regulations.

    (a) All persons possessing the proper state license and Base permit 
are permitted to fish in the areas designated by the Base Game Warden on 
Marine Corps Base, Quantico, VA, on any authorized fishing day. A Base 
Fishing Privilege Card is required for all persons aged 16 to 65.
    (b) Fishing is permitted on all waters within the boundaries of 
Marine Corps Base, Quantico, VA, unless otherwise posted, during the 
periods provided and under the conditions and restrictions, by the 
Marine Corps Base, Quantico, VA, Game Warden. Information regarding 
specific regulations for each fishing area must be procured from the 
Game Warden located in Natural Resources Management Division 
Headquarters Building 5-9 prior to utilization of Base fishing 
facilities.
    (c) In addition to the requirements of the Laws of Virginia, the 
following additional prohibitions and requirements are in effect at 
Marine Corps Base, Quantico, VA.
    (1) Live minnows will not be used as bait in any impounded waters on 
the Marine Corps Base, Quantico, VA;
    (2) No trot lines are permitted in Marine Corps Base waters;
    (3) No Large Mouth Bass will be taken, creeled or possessed under 
the size of twelve (12) inches in length. All Large Mouth Bass under 
this size will be immediately returned to the water;
    (4) No Striped Bass will be taken, creeled or possessed under the 
size of twenty (20) inches in length. All Striped Bass under this size 
will be immediately returned to the water;
    (5) All persons fishing in the waters of Marine Corps Base, 
Quantico, VA, will possess and utilize a creel card. The card may be 
obtained from the report boxes located in the vicinity of all fishing 
areas. The creel report must be completed at the conclusion of the

[[Page 492]]

day's fishing and returned to any fishing report box.
[41 FR 22345, June 3, 1976, as amended at 48 FR 23205, May 24, 1983]



Sec. 770.4  Hunting regulations.

    All persons possessing the proper State, Federal and Base licenses 
and permits are permitted to hunt in the areas designated daily by the 
Game Warden on Marine Corps Base, Quantico, VA, on any authorized 
hunting day. In addition, a minimum of ten percent of the daily hunting 
spaces will be reserved to civilians on a first come, first served basis 
until 0600 on each hunting day, at which time, the Game Warden may fill 
vacancies from any authorized persons waiting to hunt.



Sec. 770.5  Safety regulations.

    (a) Hunting is not permitted within 200 yards of the following: 
Ammunition dumps, built-up areas, rifle or pistol ranges, dwelling or 
other occupied structures, and areas designated by the Game Warden as 
recreation areas.
    (b) From the end of the special archery season until the end of the 
regular winter hunting season, except for duck hunters in approved 
blinds, hunters will wear an outer garment with at least one square foot 
of blaze orange visible both front and back above the waist and a blaze 
orange cap while hunting, or while in the woods for any reason, during 
the hours that hunting is authorized. Any person traveling on foot in or 
adjacent to an area open for hunting will comply with the above 
requirement.
    (c) Weapons will be unloaded while being transported in vehicles, 
and will be left in vehicles by personnel checking in or out at the Game 
Warden's Office. Weapons will not be discharged from vehicles, or within 
200 yards of hard surfaced roads.
    (d) Certain hunting areas contain numerous unexploded munitions 
(duds) which are dangerous and must not be removed or disturbed. Hunters 
should mark such duds with stakes or other means and report their 
location to the Game Warden.
    (e) Hunters must stay in their assigned areas when hunting.



Sec. 770.6  Restrictions.

    (a) There will be no hunting on Christmas Day; New Year's Day, or 
after 1200 on Thanksgiving Day and Christmas Eve.
    (b) Hunters under 16 years of age must be accompanied by an adult 
(18 years of age or older) while hunting or in a hunting area. The adult 
is limited to a maximum of two underage hunters, and must stay within 
sight and voice contact and no more than 100 yards away from the 
underage hunters.
    (c) The following practices or actions are expressly forbidden: Use 
of rifles, except muzzleloaders of .40 caliber or larger as specified 
below, revolvers or pistols; use of shotguns larger than 10 gauge or 
crossbows (this prohibition extends to carrying such weapons on the 
person or in a vehicle while hunting), use of buckshot to hunt any game; 
use of a light, attached to a vehicle or otherwise, for the purpose of 
spotting game; use of dogs for hunting or tracking deer; training deer 
dogs on the Reservation; training or running dogs in hunting areas 
between 1 March and 1 September; driving deer; baiting or salting traps 
or blinds; hunting on Sunday; molesting beaver or bald eagles. Those 
personnel who are authorized to hunt on Base, desiring to train or 
exercise dogs other than deer dogs between 2 September and 28 February, 
may do so by obtaining clearance to enter training areas at the Range 
Control Office. This clearance is not permission to hunt, and carrying 
weapons under these conditions is prohibited.
    (d) Hunting will not commence before one half hour before sunrise, 
and will end not later than sunset. The hours of sunrise and sunset are 
posted daily at the Game Checking Station.
    (e) Weapons will not be loaded outside of hunting hours.
[41 FR 22345, June 3, 1976, as amended at 48 FR 23205, May 24, 1983]



Sec. 770.7  Violations.

    Violations of hunting regulations, fishing regulations, safety 
regulations, or principles of good sportsmanship are subject to 
administrative restriction of hunting or fishing privileges and possible 
judicial proceedings in State or Federal courts.

[[Page 493]]

    (a) The Marine Corps Base Game Warden and Wildlife Manager are 
commissioned as Virginia and Federal game wardens and they can issue 
summons to appear in civil court for violations of Federal and State 
game laws.
    (b) Offenders in violation of a Federal or State hunting or fishing 
law will be referred to a civil court.
    (c) Offenders in violation of a Federal, State or Base hunting or 
fishing law or regulation will receive the following administrative 
actions.
    (1) The Base Game Warden or the Wildlife manager shall have the 
authority to temporarily suspend hunting and fishing privileges.
    (2) And for the first minor offense a letter of warning will be 
issued.
    (3) For the second minor offense hunting or fishing privileges will 
be revoked for one year.
    (4) For the first serious offense hunting or fishing privileges will 
be revoked for a minimum of one year.
    (5) For the second serious offense hunting or fishing privileges 
will be permanently revoked.
    (d) Civilians found in violation of a hunting or fishing regulation 
or law may be permanently restricted from entering the base.
    (e) Serious hunting and fishing offenses include, but are not 
limited to: spotlighting, false statement on a license, hunting under 
the influence, employment of a light in an area that deer frequent, and 
taking game or fish during closed seasons.



Sec. 770.8  Reports.

    Upon killing a deer or turkey, a hunter must attach the appropriate 
tab from his big game license to the carcass before moving the game from 
the place of kill. The game will then be taken to the Game Checking 
Station where the tab will be exchanged for an official game tag. All 
other game, not requiring a tag, killed on the Reservation will be 
reported to the Game Warden when checking out at the end of a hunt.
[41 FR 22345, June 3, 1976, as amended at 48 FR 23206, May 24, 1983]



Sec. 770.9  Miscellaneous.

    Hunters are encouraged to build and use tree blinds for hunting 
deer. Duck blinds may be placed on waters within the bounds of the 
Reservation when specifically authorized by the Wildlife Manager. 
Muzzleloading rifles .40 caliber and larger will be permitted for deer 
hunting during the established seasons in those numbered hunting areas 
located entirely in Fauquier and Stafford Counties within the boundaries 
of the Marine Corps Base. Deer will only be hunted with the bow and 
arrow, and shotguns loaded with slugs, with exception of the preceding 
sentence.
[41 FR 22345, June 3, 1976, as amended at 48 FR 23206, May 24, 1983]



  Subpart B--Base Entry Regulations for Naval Submarine Base, Bangor, 
                          Bremerton, Washington

    Authority: 50 U.S.C. 797; DoD Dir. 5200.8 of August 20, 1954; 5 
U.S.C. 301; 10 U.S.C. 6011, 32 CFR 700.702; 32 CFR 700.714.

    Source: 44 FR 32368, June 6, 1979, unless otherwise noted.



Sec. 770.15  Purpose.

    The purpose of this subpart is to promulgate regulations governing 
entry upon Naval Submarine Base (SUBASE), Bangor.



Sec. 770.16  Definition.

    For the purpose of this subpart, SUBASE Bangor shall include that 
area of land in Kitsap and Jefferson Counties, State of Washington which 
has been set aside for use of the Federal Government by an Act of the 
legislature of the State of Washington, approved March 15, 1939 (Session 
laws of 1939, chapter 126).



Sec. 770.17  Background.

    (a) SUBASE Bangor has been designated as the West Coast home port of 
the Trident Submarine. Facilities for the repair or overhaul of naval 
vessels are located at SUBASE Bangor. It is vital to national defense 
that the operation and use of SUBASE Bangor be continued without undue 
and unnecessary interruption. Many areas of SUBASE Bangor are of an 
industrial nature, including construction sites,

[[Page 494]]

where inherently dangerous conditions exist.
    (b) For prevention of the interruption of the stated use of the base 
by the presence of any unauthorized person within the boundaries of 
SUBASE Bangor, and prevention of injury to any such person as a 
consequence of the dangerous conditions which exist, as well as for 
other reasons, it is essential to restrict entry upon SUBASE Bangor to 
authorized persons only.



Sec. 770.18  Entry restrictions.

    Except for military personnel and civilian employees of the United 
States in the performance of their official duties, entry upon Naval 
Submarine Base, Bangor, or remaining thereon by any person whatsoever 
for any purpose without the advance consent of the Commanding Officer, 
SUBASE Bangor or his authorized representative is prohibited. See 18 
U.S.C. 1382; the Internal Security Act of 1950, Section 21 (50 U.S.C. 
797); Department of Defense Directive 5200.8 of 20 August 1954; Chief of 
Naval Operations Instruction 5510.45B of 19 April 1971; Chief of Naval 
Operations Instruction 5511.9A of 1 October 1954.



Sec. 770.19  Entry procedures.

    (a) Any person or group of persons desiring the advance consent of 
the Commanding Officer, SUBASE Bangor or his authorized representative 
shall, in writing, submit a request to the Commanding Officer, SUBASE 
Bangor, at the following address: Commanding Officer, Naval Submarine 
Base, Bangor, Bremerton, WA 98315.
    (b) Each request for entry will be considered on an individual basis 
weighing the operational, security, and safety requirements of SUBASE 
Bangor with the purpose, size of party, duration of visit, destination, 
and military resources which would be required by the granting of the 
request.



Sec. 770.20  Violations.

    (a) Any person entering or remaining on SUBASE Bangor, without the 
consent of the Commanding Officer, SUBASE Bangor or his authorized 
representative, shall be subject to the penalties prescribed by 18 
U.S.C. 1382, which provides in pertinent part:

    Whoever, within the jurisdiction of the United States, goes upon any 
military, naval * * * reservation, post, fort, arsenal, yard, station, 
or installation, for any purpose prohibited by law or lawful regulation 
* * * shall be fined not more than $500 or imprisoned not more than six 
months or both.

    (b) Moreover, any person who willfully violates this subpart is 
subject to a fine not to exceed $500 or imprisonment for not more than 
one (1) year or both as provided in 50 U.S.C. 797.



 Subpart C--Base Entry Regulations for Naval Installations in the State 
                                of Hawaii

    Authority: 50 U.S.C. 797; DoD Dir. 5200.8 of Aug. 20, 1954; 5 U.S.C 
301; 10 U.S.C. 6011; 32 CFR 700.702, 770.714.

    Source: 44 FR 76279, Dec. 26, 1979, unless otherwise noted.



Sec. 770.25  Purpose.

    The purpose of this subpart is to promulgate regulations governing 
entry to naval installations in the State of Hawaii.



Sec. 770.26  Definitions.

    For the purpose of this subpart the following definitions apply:
    (a) Naval installations. A naval installation is a shore activity 
and is any area of land, whether or not fenced or covered by water, that 
is administered by the Department of the Navy or by any subordinate 
naval command. The term ``naval installation'' applies to all such areas 
regardless of whether the areas are being used for purely military 
purposes, for housing, for support purposes, or for any other purpose by 
a naval command. Section 770.31 contains a list of the major naval 
installations in Hawaii. This list is not considered to be all inclusive 
and is included only as a representative guide. For the purposes of this 
subpart the area of water within Pearl Harbor is considered to be within 
a naval installation.
    (b) Outleased areas. Certain portions of naval installations in 
Hawaii which are not for the time needed for public use or for which a 
dual use is feasible have been outleased to private interests. Examples 
of such outleased areas are the Moanalua Shopping Center and lands such 
as Waipio Peninsula, which

[[Page 495]]

has been outleased for agricultural purposes. For the purpose of this 
Subpart, outleased areas which are not within fenced portions of naval 
installations are not considered to be a part of naval installations. 
Rules for entry onto the outleased areas are made by the lessees, except 
in the case of Waipio Peninsula where the lessee (Oahu Sugar Company) is 
not authorized to allow anyone to enter Waipio Peninsula for any purpose 
not connected with sugar cane production.



Sec. 770.27  Background.

    (a) Naval installations in Hawaii constitute a significant element 
of the national defense establishment. It is vital to the national 
defense that the use of such areas be at all times under the positive 
control of the Department of the Navy. Strict control must be exercised 
over access to naval installations in order to preclude damage 
accidental and intentional to Government property, injury to military 
personnel, and interference in the orderly accomplishment of the mission 
of command.
    (b) There are several industrial areas within naval installations in 
Hawaii wherein construction activities and the use of heavy machinery 
pose grave risk of danger to visitors.
    (c) Various types of flammable or incendiary materials and ordnance 
are stored at a number of locations within naval installations in 
Hawaii.
    (d) Classified documents and equipment requiring protection from 
unauthorized disclosure by Executive order 12065 for reasons of national 
security are located at various locations within naval installations in 
Hawaii.
    (e) In order to effect the positive control of the Navy over its 
installations in Hawaii, it is essential that entry onto those 
installations be restricted to authorized persons only.
    (f) These entry regulations are being promulgated under the 
authority of Commander, Naval Base, Pearl Harbor, who has been assigned 
as immediate area coordinator for all naval installations in the State 
of Hawaii by Commander-in-Chief, U.S. Pacific Fleet.



Sec. 770.28  Entry restrictions.

    Each commander is responsible for the security of his/her command. 
Therefore, entry onto a command or into part of a command may be 
controlled by the commander through the imposition of such restrictions 
as may be required by attendant circumstances. Within the State of 
Hawaii, entry into a naval installation is not permitted without the 
permission of the responsible commander.



Sec. 770.29  Entry procedures.

    (a) Operational, security, and safety considerations take priority 
over requests by individuals to visit a naval installation. Consistent 
with such considerations, visits by members of the general public may be 
authorized at the discretion of the commander. The commitment of 
resources which would be required to safeguard the persons and property 
of visitors as well as military property and personnel must of necessity 
preclude or severely restrict such visiting. The purpose and duration of 
the visit and the size of the party and areas to be visited are other 
considerations which may affect the commander's decision whether to 
permit visiting by members of the public.
    (b) Any person or group desiring to enter a particular naval 
installation or portion thereof, shall submit a written request to the 
commander of the installation well enough in advance to allow a 
reasonable time for reply by mail. Mailing addresses for commanders of 
major installations covered by this subpart are listed in Sec. 770.31. 
Full compliance with a naval installation's local visitor registration 
and entry control procedures shall be deemed the equivalent of obtaining 
the advance consent of the commander for entrance upon the installation 
for the purpose of this subpart. Authorization to enter one naval 
installation or a portion of one installation does not necessarily 
include the authorization to enter any other naval installation or all 
portions of an installation.



Sec. 770.30  Violations.

    (a) Any person entering or remaining on a naval installation in the 
State of Hawaii, without consent of the commander or his authorized 
representative, shall be subject to the penalties of

[[Page 496]]

a fine of not more than $500 or imprisonment for not more than six 
months, or both. See 18 U.S.C. 1382.
    (b) Moreover, any person who willfully violates this regulation is 
subject to a fine not to exceed $5,000 or imprisonment for one year, or 
both. See 50 U.S.C. 797.



Sec. 770.31  List of major naval installations in the State of Hawaii and cognizant commanders authorized to grant access under these regulations.

    (a) On Oahu. (1) Naval Base, Pearl Harbor (including the Naval 
Station, Naval Submarine Base, Naval Shipyard, Naval Supply Center, 
Naval Public Works Center, Marine Barracks, Ford Island, Bishop Point 
Dock Area, Commander-in-Chief Pacific Fleet and Commander Naval 
Logistics Command Headquarters Areas, Johnson Circle Navy Exchange/
Commissary Store Area, Navy-Marine Golf Course, miscellaneous other 
commands, and areas within the Naval Base, Pearl Harbor complex, and the 
waters of Pearl Harbor). Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (2) Naval Western Oceanography Center, Pearl Harbor. Contact:

Commanding Officer, Naval Western Oceanography Center, Box 113, Pearl 
Harbor, HI 96860.

    (3) Naval Air Station, Barbers Point. Contact:

Commanding Officer, Naval Air Station, Barbers Point, HI 96862.

    (4) Naval Communication Area Master Station, Eastern Pacific, 
Wahiawa. Contact:

Commanding Officer, Naval Communication Area Master Station, Eastern 
Pacific, Wahiawa, HI 96786.

    (5) Naval Magazine (Lualualei, Waikele, and West Loch). Contact:

Commanding Officer, Naval Magazine, Lualualei, HI 96792.

    (6) Naval Radio Transmitting Facility, Lualualei. Contact:

Commanding Officer, Naval Base, Pearl Harbor, HI 96860.

    (7) Naval and Marine Corps Reserve Training Center, Honolulu. 
Contact:

Commanding Officer, Naval and Marine Corps Reserve Training Center, 
Honolulu, 530 Peltier Avenue, Honolulu, HI 96818.

    (8) Military Sealift Command Office. Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (9) Mauna Kapu (Pacific Missile Range Facility). Contact:

Commanding Officer, Pacific Missile Range Facility, Hawaiian Area, 
Barking Sands, Kekaha, Kauai, HI 96752.

    (10) Kunia Facility; FORACS III Sites; Degaussing Station, Waipio 
Peninsula; Damon Tract (Remanant) Opana Communciations Site. Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (11) Outlying areas of the Naval Supply Center, Pearl Harbor 
(including the Ewa Junction Storage Area, Ewa Drum Storage Area, Manana 
Supply Area, Pearl City Supply Area, and the Red Hill Fuel Storage 
Area). Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (12) Pump Stations (Halawa, Waiawa, Red Hill, and Barbers Point). 
Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (13) Halawa Water Storage Area; Barbers Point, Independent Water 
Supply Reservoir Site; Sewage Treatment Plant; Fort Kam (tri-service); 
Utility Corridors, Lynch Park (Ohana Nui). Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (14) Navy housing areas (including Moanalua Terrace, Radford 
Terrace, Makalapa, Maloelap, Halsey Terrace, Catlin Park, Hale Moku, 
Pearl Harbor, Naval Shipyard, McGrew Point, Halawa, Hokulani, Manana, 
Pearl City Peninsula, Red Hill, Iroquois Point, Puuloa, and Camp 
Stover). Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (b) On Kauai.
    (1) Pacific Missile Range Facility, Barking Sands, Kekaha.


[[Page 497]]


Contact: Commanding Officer, Pacific Missile Range Facility, Hawaiian 
Area, Barking Sands, Kekaha, HI 96752.

    (c) Other areas.
    (1) Kaho'olawe Island. Contact:

Commander Naval Base, Pearl Harbor, HI 96860. Also see 32 CFR Part 763.

    (2) Kaula. Contact:

Commander Naval Base, Pearl Harbor, HI 96860.

[44 FR 76279, Dec. 26, 1979, as amended at 52 FR 20074, May 29, 1987]



  Subpart D--Entry Regulations for Naval Installations and Property in 
                               Puerto Rico

    Source: 46 FR 22756, Apr. 21, 1981, unless otherwise noted.



Sec. 770.35  Purpose.

    The purpose of this subpart is to promulgate standard regulations 
and procedures governing entry upon U.S. Naval installations and 
properties in Puerto Rico.



Sec. 770.36  Definitions.

    For purposes of these regulations, U.S. Naval installations and 
properties in Puerto Rico include, but are not limited to, the U.S. 
Naval Station, Roosevelt Roads (including the Vieques Island Eastern 
Annexes, consisting of Camp Garcia, the Eastern Maneuver Area, and the 
Inner Range); the Naval Ammunition Facility, Vieques Island; and the 
Naval Security Group Activity, Sabana Seca.



Sec. 770.37  Background.

    In accordance with 32 CFR 765.4, Naval installations and properties 
in Puerto Rico are not open to the general public, i.e., they are 
``closed'' military bases. Therefore admission to the general public is 
only by the permission of the respective Commanding Officers in 
accordance with their respective installation instructions.



Sec. 770.38  Entry restrictions.

    Except for duly authorized military personnel and civilian 
employees, including contract employees, of the United States in the 
performance of their official duties, entry upon any U.S. Navy 
installation or property in Puerto Rico at anytime, by any person for 
any purpose whatsoever without the advance consent of the Commanding 
Officer of the installation or property concerned, or an authorized 
representative of that Commanding Officer, is prohibited.



Sec. 770.39  Entry procedures.

    (a) Any person or group of persons desiring to obtain advance 
consent for entry upon any U.S. Naval installation or property in Puerto 
Rico from the Commanding Officer of the Naval installation or property, 
or an authorized representative of that Commanding Officer, shall 
present themselves at an authorized entry gate at the installation or 
property concerned or, in the alternative, submit a request in writing 
to the following respective addresses:
    (1) Commanding Officer, U.S. Naval Station, Roosevelt Roads, Box 
3001, Ceiba, PR 00635.
    (2) Officer in Charge, Naval Ammunition Facility, Box 3027, Ceiba, 
PR 00635.
    (3) Commanding Officer, U.S. Naval Security Group Activity, Sabana 
Seca, PR 00749.
    (b) The above Commanding Officers are authorized to provide advance 
consent only for installations and properties under their command. 
Requests for entry authorization to any other facility or property shall 
be addressed to the following:

Commander, U.S. Naval Forces, Caribbean, Box 3037, Ceiba, PR 00635.
    (c) Each request for entry will be considered on an individual basis 
and consent will be determined by applicable installation entry 
instructions. Factors that will be considered include the purpose of 
visit, the size of party, duration of visit, destination, security 
safeguards, safety aspects, and the military resources necessary if the 
request is granted.



Sec. 770.40  Violations.

    Any person entering or remaining on U.S. Naval installations and 
properties in Puerto Rico, without the advance consent of those 
officials hereinabove enumerated, or their authorized representatives, 
shall be considered to be in violation of these regulations and

[[Page 498]]

therefore subject to the penalties prescribed by 18 U.S.C. 1382, which 
provides in pertinent part: ``Whoever, within the jurisdiction of the 
United States, goes upon any military, naval * * * reservation, post, 
fort, arsenal, yard, station, or installation, for any purpose 
prohibited by law or lawful regulation * * * shall be fined not more 
than $500.00 or imprisoned not more than six months, or both,'' or any 
other applicable laws or regulations.



 Subpart E--Base Entry Regulations for Naval Submarine Base New London, 
                           Groton, Connecticut

    Authority: 50 U.S.C. 797; DoD Directive 5200.8 of July 29, 1980; 
SECNAVINST 5511.36 of December 20, 1980; OPNAVINST 5510.45 of April 19, 
1971; 5 U.S.C. 301; 10 U.S.C. 6011; 32 CFR 700.702; 32 CFR 700.714.

    Source: 48 FR 5555, Feb. 7, 1983, unless otherwise noted.



Sec. 770.41  Purpose.

    The purpose of this subpart is to promulgate regulations and 
procedures governing entry upon Naval Submarine Base New London, and to 
prevent the interruption of the stated functions and operations of Naval 
Submarine Base New London, by the presence of any unauthorized person 
within the boundaries of Naval Submarine Base New London.



Sec. 770.42  Background.

    Naval Submarine Base New London maintains and operates facilities to 
support training and experimental operations of the submarine force 
including providing support to submarines, submarine rescue vessels, and 
assigned service and small craft; within capabilities, to provide 
support to other activities of the Navy and other governmental 
activities in the area; and to perform such other functions as may be 
directed by competent authority.



Sec. 770.43  Responsibility.

    The responsibility for proper identification and control of 
personnel and vehicle movement on the Naval Submarine Base New London is 
vested with the Security Officer.



Sec. 770.44  Entry restrictions.

    Except for military personnel, their authorized dependents, or 
guests, and employees of the United States in the performance of their 
official duties, entry upon Naval Submarine Base New London, or 
remaining thereon by any person for any purpose without the advance 
consent of the Commanding Officer, Naval Submarine Base New London, or 
his authorized representative is prohibited. See 18 U.S.C. 1382j, the 
Internal Security Act of 1950 (50 U.S.C. 797); Chief of Naval Operations 
Instruction 5510.45B of April 19, 1971; and Secretary of the Navy 
Instruction 5511.36 of December 20, 1980.



Sec. 770.45  Entry procedures.

    (a) Any individual person or group of persons desiring the advance 
consent of the Commanding Officer, Naval Submarine Base New London, or 
his authorized representative shall, in writing, submit a request to the 
Commanding Officer, Naval Submarine Base New London, at the following 
address: Commanding Officer (Attn: Security Officer), Box 38, Naval 
Submarine Base New London, Groton, CT 06349.
    (b) Each request for entry will be considered on an individual basis 
weighing the operational, security, and safety requirements of Naval 
Submarine Base New London with the purpose, size of party, duration of 
visit, destination, and military resources which would be required by 
the granting of the request.



Sec. 770.46  Violations.

    (a) Any person entering or remaining on Naval Submarine Base New 
London, without the consent of the Commanding Officer, Naval Submarine 
Base New London or his authorized representative, shall be subject to 
the penalties prescribed in 18 U.S.C. 1382, which provides in pertinent 
part:

    Whoever, within the jurisdiction of the United States, goes upon any 
military, naval . . . reservation, post, fort, arsenal, yard, station, 
or installation, for any purpose prohibited by law or lawful regulation 
. . . shall be fined not more than $500 or imprisoned not more than six 
months or both.

    (b) Moreover, any person who willfully violates this subpart is 
subject to

[[Page 499]]

a fine not to exceed $5000 or imprisonment for not more than one (1) 
year or both as provided in 50 U.S.C. 797.



   Subpart F--Base Entry Regulations for Puget Sound Naval Shipyard, 
                          Bremerton, Washington

    Authority: 50 U.S.C. 797; DoD Directive 5200.8 of July 29, 1980; 
SECNAVINST 5511.36 of December 20, 1980; OPNAVINST 5510.45B of April 19, 
1971; 5 U.S.C. 301; 10 U.S.C. 6011; 32 CFR 700.702; 32 CFR 700.714.

    Source: 48 FR 9858, Mar. 9, 1983, unless otherwise noted.



Sec. 770.47  Purpose.

    The purpose of this subpart is to promulgate policy governing entry 
upon Puget Sound Naval Shipyard.



Sec. 770.48  Definition.

    For the purpose of this subpart, Puget Sound Naval Shipyard is 
defined as follows:
    (a) Beginning at a point, latitude 122 deg.39'37"W, longitude 
47 deg.33'05"N, a point on the MHHW line of Sinclair Inlet on an East-
West line approximately 100 yards clear off the Southerly end of the 
Naval Shipyard shoreline, piers or drydock facilities; thence 
Northeasterly to the South margin of Primary State Highway No. 21, 
thence Northeasterly on the Southeasterly margin of Primary State 
Highway No. 21 to the Easterly margin of Cambrian Avenue; thence 
Northerly to the Southerly margin of Farragut Street; thence Easterly to 
the line common to Sections 22 and 23, Township 24 North, Range 1 East, 
W.M. which is approximately 100 feet East of the East margin of 
Montgomery Street; thence Northerly to the corner common to Sections 14, 
15, 22, and 23, Township 24 North, Range 1 East, W.M., which is the 
South margin of First Street; thence Easterly on the line common to 
Sections 14 and 23 to the Easterly margin of Chester Avenue; thence 
Northerly approximately 335 feet on the Easterly margin of Chester 
Avenue to the Southerly margin of the East-West alley in Block 21, 
Original Town of Bremerton as recorded in Volume 2 of Plats, page 30, 
Records of Kitsap County, Washington; thence Easterly to the Easterly 
margin of Warren Avenue; thence Northerly to the Southerly margin of 
Burwell Avenue; thence Easterly approximately 1315 feet to a point 
approximately 90 feet West of the West margin of Pacific Avenue, to the 
line common to Lots 22 and 23, Block 13, said Original Town of 
Bremerton; thence Southerly to the Northerly margin of the East-West 
alley in said Block 13; thence Easterly to the Northerly extension of 
the Westerly margin of the North-South alley in Block 12, said Original 
Town of Bremerton; thence Southerly to the Southerly margin of First 
Street; thence Easterly to the Westerly margin of First Street; thence 
Easterly to the Westerly margin of the North-South alley in Block 10, 
said Original Town of Bremerton; thence Southerly to the Northwesterly 
margin of Washington Avenue; thence Southeasterly to the Northwesterly 
corner of Lot 9, Block 1, said Original Town of Bremerton; thence 
Southeasterly on the line common to Lots 8 and 9, Block 1, and its 
Southeasterly extension to a point near the Washington State Ferry 
Terminal at the MHHW line of Sinclair Inlet located at Latitude 
122 deg.37'27"W, longitude 47 deg.33'44"N.



Sec. 770.49  Background.

    (a) Puget Sound Naval Shipyard is a major naval ship repair 
facility, with operational requirements to complete repairs and overhaul 
of conventionally powered and nuclear powered naval vessels. It is vital 
to national defense that the operation and use of the shipyard be 
continued without undue or unnecessary interruptions. Additionally, most 
of Puget Sound Naval Shipyard is dedicated to heavy industrial activity 
where potentially hazardous conditions exist.
    (b) For prevention of the interruption of the stated use of Puget 
Sound Naval Shipyard by the presence of any unauthorized person within 
the boundaries of Puget Sound Naval Shipyard and prevention of injury to 
any such unsupervised person as a consequence to the hazardous 
conditions which exist, as well as for other reasons, it is essential to 
restrict entry upon Puget Sound Naval Shipyard to authorized persons 
only.

[[Page 500]]



Sec. 770.50  Entry restrictions.

    Except for military personnel and civilian employees of the United 
States in the performance of their official duties, entry upon Puget 
Sound Naval Shipyard, or remaining thereon by any person whoever for any 
purpose without the advance consent of the Commander, Puget Sound Naval 
Shipyard, or his authorized representative, is prohibited. See 18 U.S.C. 
1382; the Internal Security Act of 1950, section 21 (50 U.S.C. 797); 
Chief of Naval Operations Instruction 5510.45B of April 19, 1971; 
Secretary of the Navy Instruction 551.36 of December 20, 1980; and 
Department of Defense Directive 5200.8 of July 29, 1980.



Sec. 770.51  Entry procedures.

    (a) Any person or group of persons desiring the advance consent of 
the Commander, Puget Sound Naval Shipyard, or his authorized 
representative, shall, in writing, submit a request to the Commander, 
Puget Sound Naval Shipyard, at the following address: Commander, Puget 
Sound Naval Shipyard, Bremerton, WA 98314.
    (b) Each request for entry will be considered on an individual basis 
weighing the operational, security and safety requirements of Puget 
Sound Naval Shipyard with the purpose, size of party, duration of visit, 
destination, and military resources which would be required by the 
granting of this request.



Sec. 770.52  Violations.

    (a) Any person entering or remaining on Puget Sound Naval Shipyard, 
without the consent of the Commander, Puget Sound Naval Shipyard, or his 
authorized representative, shall be subject to the penalties prescribed 
by 18 U.S.C. 1382, which provides in pertinent part:

    Whoever, within the jurisdiction of the United States, goes upon any 
military, naval * * * reservation, post, fort, arsenal, yard, station or 
installation, for any purpose prohibited by law or lawful regulation * * 
* shall be fined not more than $500.00 or imprisoned not more than six 
months or both.

    (b) Moreover, any person who willfully violates this subpart is 
subject to a fine not to exceed $5000.00 or imprisonment for not more 
than one (1) year or both as provided in 50 U.S.C. 797.



Subpart G--Entry Regulations for Portsmouth Naval Shipyard, Portsmouth, 
                              New Hampshire

    Authority: 5 U.S.C. 301; 10 U.S.C. 6011, 18 U.S.C. 1382; 50 U.S.C. 
797; DOD Directive 5200.8 of July 29, 1980; 32 CFR 700.702; 32 CFR 
700.714; SECNAVINST 5511.36 of December 20, 1980; OPNAVINST 5530.14 of 
June 10, 1983; COMNAVSEASYSCOMINST 5510.2A of June 19, 1981.

    Source: 49 FR 34003, Aug. 28, 1984, unless otherwise noted.



Sec. 770.53  Purpose.

    To promulgate regulations and procedures governing entry upon 
Portsmouth Naval Shipyard, and to prevent the interruption of the 
functions and operations of Portsmouth Naval Shipyard by the presence of 
any unauthorized person within the boundaries of Portsmouth Naval 
Shipyard.



Sec. 770.54  Background.

    (a) Portsmouth Naval Shipyard maintains and operates facilities ``to 
provide logistic support for assigned ships and service craft; to 
perform authorized work in connection with construction, conversion, 
overhaul, repair, alteration, drydocking, and outfitting of ships and 
craft, as assigned; to perform manufacturing, research, development, and 
test work, as assigned; and to provide services and material to other 
activities and units, as directed by competent authority.''
    (b) Portsmouth Naval Shipyard is a major naval ship repair facility, 
with operational requirements to complete repairs and overhaul of 
conventionally powered and nuclear-powered naval vessels. It is vital to 
national defense that the operation and use of the shipyard be continued 
without undue or unnecessary interruptions. Additionally, most of 
Portsmouth Naval Shipyard is dedicated to heavy industrial activity 
where potentially hazardous conditions exist.
    (c) For prevention of interruption of the stated use of the base by 
the presence of any unauthorized person within the boundaries of 
Portsmouth Naval Shipyard, and prevention of injury to

[[Page 501]]

any such unsupervised person as a consequence of the dangerous 
conditions which exist, as well as for other reasons, it is essential to 
restrict entry upon Portsmouth Naval Shipyard to authorized persons 
only.



Sec. 770.55  Responsibility.

    The responsibility for proper identification and control of 
personnel and vehicle movement on the Portsmouth Naval Shipyard is 
vested with the Shipyard Security Manager (Code 830).



Sec. 770.56  Entry restrictions.

    Except for military personnel, their authorized dependents, or 
guests, and civilian employees of the United States in the performance 
of their official duties, entry upon Portsmouth Naval Shipyard, or 
remaining thereon by any person for any purpose without the advance 
consent of the Commander, Portsmouth Naval Shipyard, or his authorized 
representative, is prohibited. In many instances, Commander, Naval Sea 
Systems Command, approval is required.



Sec. 770.57  Entry procedures.

    (a) Any person or group desiring the advance consent of the 
Commander, Portsmouth Naval Shipyard, or his authorized representative, 
shall, in writing, submit a request to the Commander, Portsmouth Naval 
Shipyard, at the following address: Commander, Portsmouth Naval 
Shipyard, Portsmouth, NH 03801, Attention: Security Manager (Code 830). 
For groups, foreign citizens, and news media, the request must be 
forwarded to the Commander, Naval Sea Systems Command, for approval.
    (b) Each request for entry will be considered on an individual 
basis, weighing the operational, security, and safety requirements of 
Portsmouth Naval Shipyard, with the purpose, size of party, duration of 
visit, destination, and military resources which would be required by 
the granting of the request.



Sec. 770.58  Violations.

    (a) Any person entering or remaining on Portsmouth Naval Shipyard 
without the consent of the Commander, Portsmouth Naval Shipyard, or his 
authorized representative, shall be subject to the penalties prescribed 
in 18 U.S.C. 1382, which provides in pertinent part:

    Whoever, within the jurisdiction of the United States, goes upon any 
military, naval . . . reservation, post, fort, arsenal, yard, station, 
or installation, for any purpose prohibited by law or lawful regulation 
. . . Shall be fined not more than $500 or imprisoned not more than six 
months, or both.

    (b) Moreover, any person who willfully violates this instruction is 
subject to a fine not to exceed $5000 or imprisonment for not more than 
one (1) year, or both, as provided by 50 U.S.C. 797.



PARTS 771-774  [RESERVED]






PART 775--PROCEDURES FOR IMPLEMENTING THE NATIONAL ENVIRONMENTAL POLICY ACT--Table of Contents




Sec.
775.1  Purpose.
775.2  Scope.
775.3  Policy.
775.4  Responsibilities.
775.5  Classified actions.
775.6  Planning considerations.
775.7  Time limits for environmental documents.
775.8  Scoping.
775.9  Documentation and analysis.
775.10  Relations with state, local and regional agencies.
775.11  Public participation.
775.12  Action.

    Authority: 5 U.S.C. 301; 42 U.S.C. 4321-4361; 40 CFR parts 1500-
1508.

    Source: 55 FR 33899, Aug. 20, 1990, unless otherwise noted.



Sec. 775.1  Purpose.

    To supplement Department of Defense (DOD) regulations (32 CFR part 
214) by providing policy and assigning responsibilities to the Navy and 
Marine Corps for implementing the Council on Environmental Quality (CEQ) 
regulations (40 CFR parts 1500-1508) implementing procedural provisions 
of the National Environmental Policy Act (NEPA).



Sec. 775.2  Scope.

    The policies and responsibility assignments of this part apply to 
the Office of the Secretary of the Navy, the

[[Page 502]]

Department of the Navy (DON), and the Navy and Marine Corps operating 
forces and shore establishments. This part is limited to the actions of 
these elements with environmental effects in the United States, its 
territories, and possessions.



Sec. 775.3  Policy.

    (a) The Department of the Navy will act with care to ensure that, in 
conducting its mission of providing for the national defense, it does so 
in a manner consistent with national environmental policies. In so 
doing, the Navy recognizes that the NEPA process includes the systematic 
examination of the likely environmental consequences of implementing a 
proposed action. To be an effective decisionmaking tool this process 
will be integrated with other Navy-Marine Corps project planning at the 
earliest possible time. This ensures that planning and decisionmaking 
reflect environmental values, avoid delays, and avoid potential 
conflicts. Care will be taken to ensure that, consistent with other 
national policies and national security requirements, practical means 
and measures are used to protect, restore, and enhance the quality of 
the environment, to avoid or minimize adverse environmental 
consequences, and to attain the objectives of:
    (1) Achieving the widest range of beneficial uses of the environment 
without degradation, risk to health and safety, or other consequences 
that are undesirable and unintended;
    (2) Preserving important historic, cultural, and natural aspects of 
our national heritage, and maintaining, where possible, an environment 
that supports diversity and variety of individual choice;
    (3) Achieving a balance between resource use and development within 
the sustained carrying capacity of the ecosystem involved; and
    (4) Enhancing the quality of renewable resources and working toward 
the maximum attainable recycling of depletable resources.
    (b) The DON shall:
    (1) Assess environmental consequences of proposed actions that could 
affect the quality of the human environment in the United States, its 
territories, and possessions in accordance with DOD and CEQ regulations;
    (2) Use a systematic, interdisciplinary approach that will ensure 
the integrated use of the natural and social sciences and environmental 
considerations in planning and decisionmaking where there may be an 
impact on man's environment;
    (3) Ensure that presently unmeasured environmental amenities are 
considered in the decisionmaking process;
    (4) Consider the reasonable alternatives to recommended actions in 
any proposal that would involve unresolved conflicts concerning 
alternative uses of available resources;
    (5) Make available to states, counties, municipalities, 
institutions, and individuals advice and information useful in 
restoring, maintaining, and enhancing the quality of the environment; 
and
    (6) Use ecological information in planning and developing resource-
oriented projects.



Sec. 775.4  Responsibilities.

    (a) The Assistant Secretary of the Navy for Installations and 
Environment (ASN(I&E)) shall:
    (1) Advise the Secretary of the Navy on DON policy regarding NEPA 
compliance.
    (2) Be the principal point-of-contact with the CEQ, Environmental 
Protection Agency (EPA), the Deputy Assistant Secretary of Defense for 
Environment (DASD(E)), other DOD components and federal agencies 
concerned with NEPA matters, and with private environmental groups as 
applicable.
    (3) Direct and/or, upon recommendation, approve the preparation of 
Environmental Impact Statements (EIS); and, after preparation, approve 
and forward said statements to the EPA and DASD(E) for review and 
comment.
    (4) Approve and forward to the Navy Judge Advocate General (JAG) 
Findings of No Significant Impact (FONSI) for publication in the Federal 
Register for those actions of national concern that the Navy/Marine 
Corps has determined will not have a significant effect on the quality 
of the human environment and for which an EIS will not be prepared.

[[Page 503]]

    (5) Approve and forward to the Navy JAG, for publishing in the 
Federal Register, a Record of Decision (ROD) which will summarize for 
the public record the decision made by the Navy/Marine Corps among the 
alternatives presented in a Final EIS.
    (6) Maintain liaison with the Chief of Information who will 
coordinate with the Assistant Secretary of Defense (Public Affairs) 
those environmental matters which have significant public affairs 
implications.
    (7) Maintain liaison with the Office of Legislative Affairs who will 
coordinate with the Assistant Secretary of Defense (Legislative Affairs) 
and the Congress those environmental matters which have significant 
legislative implications.
    (b) The Chief of Naval Operations, or his designee(s), and the 
Commandant of the Marine Corps, or his designee(s), are responsible, 
within their respective services, for NEPA compliance, which includes:
    (1) Implementing DON policy regarding protection of the environment 
to include NEPA compliance.
    (2) Advising commands of the requirement for submitting 
environmental assessments or impact statements and identifying major 
decision points in the chain of command where environmental effects 
shall be considered.
    (3) Making decisions on environmental assessments as to whether a 
Finding of No Significant Impact is appropriate or preparation of an 
environmental impact statement is required.
    (4) Coordinating, as appropriate, with CEQ, EPA, DASD(E), ASN(I&E), 
other DOD components and federal agencies concerned with environmental 
matters.
    (5) Serving as the point of contact for DON environmental matters.
    (6) Coordinating, as appropriate, with the Chief of Information for 
the release to the public of environmental assessments, impact 
statements, Findings of No Significant Impact, and other environmental 
documents, according to the Freedom of Information Act and other 
applicable federal laws.
    (7) Providing assistance for actions initiated by private persons, 
state or local agencies and other non-DON/DOD entities for which DON 
involvement may be reasonably foreseen.
    (8) Ensuring that relevant environmental documentation accompanies 
all proposals for action through the appropriate review process so that 
such information is available to the decision maker.
    (c) The Chief of Naval Operations and the Commandant of the Marine 
Corps are to comply with these procedures by subsequently directing 
subordinates to:
    (1) Ensure all appropriate instructions, directives, and orders 
include the requirement for funding and planning for environmental 
documentation, as required.
    (2) Conduct analyses of the environmental effects of current and 
proposed actions in accordance with DOD regulations, CEQ regulations (40 
CFR parts 1500-1508), and other applicable regulations.
    (3) Encourage, to the extent practicable, citizen participation in 
environmental evaluations of projects or programs.
    (4) Evaluate environmental impacts at initial planning stages and at 
each following significant step or decision milestone in the development 
of a project or program, as warranted.



Sec. 775.5  Classified actions.

    (a) The fact that a proposed action is of a classified nature does 
not relieve the proponent of the action from complying with NEPA and the 
CEQ regulations. Therefore, environmental documents shall be prepared, 
safeguarded and disseminated in accordance with the requirements 
applicable to classified information. When feasible, these documents 
shall be organized in such a manner that classified portions are 
included as appendices so that unclassified portions can be made 
available to the public. Review of classified NEPA documentation will be 
coordinated with the Environmental Protection Agency (EPA) to fulfill 
requirements of section 309 of the Clean Air Act (42 U.S.C. 7609 et 
seq.).
    (b) It should be noted that a classified EA/EIS serves the same 
``informed decisionmaking'' purpose as does a published unclassified EA/
EIS. Even though the classified EA/EIS does not undergo general public 
review and

[[Page 504]]

comment, it must still be part of the information package to be 
considered by the decisionmaker for the proposed action. The content of 
a classified EA/EIS (or the classified portion of a public EA/EIS) will 
therefore meet the same content requirements applicable to a published 
unclassified EA/EIS.



Sec. 775.6  Planning considerations.

    (a) When integrating the NEPA process into early stages of proposed 
actions, action proponents will determine as early as possible the 
appropriate level of documentation required under NEPA, i.e., is the 
action a major federal action significantly affecting the human 
environment requiring an environmental impact statement (EIS), is the 
action one for which the impacts are not known or which may not be 
significant and, therefore, an environmental assessment (EA), is 
appropriate, or is the action one that has no potential for significant 
impacts and can be categorically excluded from further NEPA 
documentation. In addition, CEQ regulations (40 CFR 1501.5 and 1501.6) 
require early identification of lead and cooperative agencies for 
preparation of an EIS for which more than one agency is involved or has 
special expertise in environmental issues to be addressed in the EIS.
    (b) The command responsible for preparation of the appropriate 
documentation may prepare an EA on any action at any time in order to 
assist in planning and decisionmaking, including the decision whether or 
not to prepare an EIS. If a determination is made based on information 
presented in an environmental assessment that an EIS is not required, a 
Finding of No Significant Impact (FONSI) will be prepared and made 
available to the public in accordance with CEQ regulations (40 CFR 
1506.6).
    (c) CEQ regulations (40 CFR 1508.18(a)) define major federal actions 
subject to evaluation under NEPA to include, among other things, ``new 
and continuing activities''. The term new activities is intended to 
encompass future actions, i.e., those which are not ongoing at the time 
of the proposal. The term continuing activities which may necessitate 
the preparation of a NEPA document will be applied by the Department of 
Navy to include activities which are presently being carried out in 
fulfillment of the Navy mission and function, including existing 
training functions, where:
    (1) The currently occurring environmental effects of which have not 
been previously evaluated in a NEPA document, and there is a discovery 
that substantial environmental degradation is occurring, or is likely to 
occur, as a result of ongoing operations (e.g., a discovery that 
significant beach erosion is occurring as a result of continuing 
amphibious exercises, new designation of wetland habitat, or discovery 
of an endangered species residing in the area of the activity), or
    (2) There is a discovery that the environmental effects of an 
ongoing activity are significantly and qualitatively different or more 
severe than predicted in a NEPA document prepared in connection with the 
commencement of the activity.

A substantial change in a continuing activity (such as a substantial 
change in operational tempo, area of use, or in methodology/equipment) 
which has the potential for significant environmental impacts should be 
considered a proposal for a new action and be documented accordingly. 
Preparation of a NEPA document is not a necessary prerequisite, nor a 
substitute, for compliance with other environmental laws.
    (d) Where emergency circumstances require immediate action, for the 
protection of lives and for public health and safety, which could result 
in significant harm to the environment, the activity Commanding Officer 
or his designee shall report the emergency action to CNO (OP-44E)/CMC 
(LFL) who will facilitate the appropriate consultation with CEQ as soon 
as practicable.
    (e) CEQ regulations provide for the establishment of categorical 
exclusions (40 CFR 1508.4) for those actions which, after consideration 
by the Department of the Navy, have been found not to have a significant 
effect on the human environment, individually or cumulatively, under 
normal circumstances, and for which, therefore, neither an EA nor an EIS 
is required. Categorical exclusions are applicable to those kinds

[[Page 505]]

of Navy actions which do not significantly affect the quality of the 
human environment, which do not result in any significant change from 
existing conditions at the site of the proposed action, and whose effect 
is primarily economic or social. ``Normal circumstances'' means that the 
proposal, when analyzed with respect to context and intensity, can 
reasonably be expected to not cause significant impacts. Even though a 
proposal generally fits the description set out below for categorical 
exclusions, the categorical exclusion should not be used if the proposed 
action:
    (1) Would affect public health or safety;
    (2) Involves a site that includes wetlands, endangered or threatened 
species, historical or archaeological resources, or hazardous wastes;
    (3) Involves effects on the human environment that are highly 
uncertain, involve unique or unknown risks, or which are scientifically 
controversial;
    (4) Establishes precedents or makes decisions in principle for 
future actions with significant effects, or;
    (5) Threatens a violation of federal, state or local law or 
requirements imposed for protection of the environment.
    (f) A decision to forego preparation of an EA or EIS on the basis of 
one or more categorical exclusions shall be documented, including the 
exclusions found applicable, the facts supporting their use and specific 
consideration of whether the exceptions to the use of categorical 
exclusions, set out above, were applicable. The following are actions 
which, under normal conditions, are categorically excluded from further 
documentation requirements under NEPA:
    (1) Routine personnel, fiscal, and administrative activities 
involving military and civilian personnel, e.g., recruiting, processing, 
paying, and records keeping.
    (2) Reductions in force wherein impacts are limited to socioeconomic 
factors.
    (3) Routine movement of mobile assets, such as ships and aircraft, 
in home port reassignments (when no new support facilities are required) 
to perform as operational groups, and/or repair and overhaul.
    (4) Relocation of personnel into existing federally-owned or 
commercially-leased space which does not involve a substantial change in 
the supporting infrastructure (e.g., an increase in vehicular traffic 
beyond the capacity of the supporting road network to accommodate such 
an increase).
    (5) Studies, data and information-gathering that involve no physical 
change to the environment, e.g., topographic surveys, bird counts, 
wetland mapping, forest inventories, and timber cruising.
    (6) Routine repair and maintenance of facilities and equipment in 
order to maintain existing operations and activities, including 
maintenance of improved and semi-improved grounds such as landscaping, 
lawn care, and minor erosion control measures.
    (7) Alteration of and additions to existing structures to conform or 
provide conforming use specifically required by new or existing 
applicable legislation or regulations, e.g., hush houses for aircraft 
engines and scrubbers for air emissions.
    (8) Routine actions normally conducted to operate, protect, and 
maintain Navy-owned and/or controlled properties, e.g., maintaining law 
and order, physical plant protection by military police and security 
personnel, and localized pest management activities on improved and 
semi-improved lands conducted in accordance with applicable federal and 
state directives.
    (9) New construction that is consistent with existing land use and, 
when completed, the use or operation of which complies with existing 
regulatory requirements and constraints, e.g., a building on a parking 
lot with associated discharges/runoff within existing handling 
capacities, a bus stop along a roadway, and a foundation pad for 
portable buildings within a building complex.
    (10) Procurement activities that provide goods and support for 
routine operations.
    (11) Day-to-day manpower resource management and research activities 
that are in accordance with approved plans and inter-agency agreements 
and which are designed to improve and/or

[[Page 506]]

upgrade Navy ability to manage those resources.
    (12) Decisions to close facilities, decommission equipment, and/or 
temporarily discontinue use of facilities or equipment (where such 
equipment is not used to prevent/control environmental impacts). This 
paragraph (f)(12) does not apply to permanent closure of public roads.
    (13) Contracts for activities conducted at established laboratories 
and plants, to include contractor-operated laboratories and plants, 
within facilities where all airborne emissions, waterborne effluents, 
external radiation levels, outdoor noise, and solid and bulk waste 
disposal practices are in compliance with existing applicable federal, 
state, and local laws and regulations.
    (14) Routine movement, handling and distribution of materials, 
including hazardous materials/wastes that when moved, handled, or 
distributed are in accordance with applicable regulations.
    (15) Demolition, disposal, or improvements involving buildings or 
structures not on or eligible for listing on the National Register of 
Historic Places and when in accordance with applicable regulations, 
including those regulations applying to removal of asbestos, PCBs, and 
other hazardous materials.
    (16) Acquisition, installation, and operation of utility and 
communication systems, data processing cable, and similar electronic 
equipment which use existing rights of way, easements, distribution 
systems, and/or facilities.
    (17) Renewals and/or initial real estate ingrants and outgrants 
involving existing facilities and land wherein use does not change 
significantly. This includes, but is not limited to, existing federally-
owned or privately-owned housing, office, storage, warehouse, 
laboratory, and other special purpose space.
    (18) Grants of license, easement, or similar arrangements for the 
use of existing rights-of-way or incidental easements complementing the 
use of existing rights-of-way for use by vehicles (not to include 
significant increases in vehicle loading); electrical, telephone, and 
other transmission and communication lines; water, wastewater, 
stormwater, and irrigation pipelines, pumping stations, and facilities; 
and for similar utility and transportation uses.
    (19) Transfer of real property from the Navy to another military 
department or to another federal agency, and the granting of leases 
(including leases granted pursuant to the agricultural outleasing 
program where soil conservation plans are incorporated), permits and 
easements where there is no substantial change in land use or where 
subsequent land use would otherwise be categorically excluded.
    (20) Disposal of excess easement interests to the underlying fee 
owner.
    (21) Renewals and minor amendments of existing real estate grants 
for use of government-owned real property where no significant change in 
land use is anticipated.
    (22) Pre-lease exploration activities for oil, gas or geothermal 
reserves, e.g., geophysical surveys.
    (23) Return of public domain lands to the Department of the 
Interior.
    (24) Land withdrawal continuances or extensions which merely 
establish time periods and where there is no significant change in land 
use.
    (25) Temporary closure of public access to Navy property in order to 
protect human or animal life.
    (26) Engineering effort undertaken to define the elements of a 
proposal or alternatives sufficiently so that the environmental effects 
may be assessed.
    (27) Actions which require the concurrence or approval of another 
federal agency where the action is a categorical exclusion of the other 
federal agency.
    (28) Maintenance dredging and debris disposal where no new depths 
are required, applicable permits are secured, and disposal will be at an 
approved disposal site.
    (29) Installation of devices to protect human or animal life, e.g., 
raptor electrocution prevention devices, fencing to restrict wildlife 
movement onto airfields, and fencing and grating to prevent accidental 
entry to hazardous areas.
    (30) Natural resources management actions undertaken or permitted 
pursuant to agreement with or subject to

[[Page 507]]

regulation by federal, state, or local organizations having management 
responsibility and authority over the natural resources in question, 
including hunting or fishing during hunting or fishing seasons 
established by state authorities pursuant to their state fish and game 
management laws. With regard to natural resources regulated by another 
federal agency, the responsible command may cooperate in any 
environmental analysis that may be required by the other agency's 
regulations.
    (31) Approval of recreational activities which do not involve 
significant physical alteration of the environment or increase human 
disturbance in sensitive natural habitats and which do not occur in or 
adjacent to areas inhabited by endangered or threatened species.
    (32) Routine maintenance of timber stands, including issuance of 
down-wood firewood permits, hazardous tree removal, and sanitation 
salvage.
    (33) Reintroduction of endemic or native species (other than 
endangered or threatened species) into their historic habitat when no 
substantial site preparation is involved.
[55 FR 33899, Aug. 20, 1990, as amended at 55 FR 39960, Oct. 1, 1990]



Sec. 775.7  Time limits for environmental documents.

    (a) The timing of the preparation, circulation, submission and 
public availability of environmental documents is important in achieving 
the purposes of NEPA. Therefore, the NEPA process shall begin as early 
as possible in the decisionmaking process.
    (b) The EPA publishes a weekly notice in the Federal Register of 
environmental impact statements filed during the preceding week. The 
minimum time periods set forth below shall be calculated from the date 
of publication of notices in the Federal Register. No decision on the 
proposed action may take place until the later of the following dates:
    (1) Ninety days after publication of the notice of availability for 
a draft environmental impact statement (DEIS). Draft statements shall be 
available to the public for 15 days prior to any public hearing on the 
DEIS (40 CFR 1506.6(c)(2)).
    (2) Thirty days after publication of the notice of availability for 
a final environmental impact statement (FEIS). If the FEIS is available 
to the public within ninety days from the availability of the DEIS, the 
minimum thirty day period and the minimum nintey day period may run 
concurrently. However, not less than 45 days from publication of notice 
of filing shall be allowed for public comment on draft statements prior 
to filing of the FEIS (40 CFR 1506.10(c)).



Sec. 775.8  Scoping.

    As soon as practicable after the decision to prepare an EIS is made, 
an early and open process called ``scoping'' shall be used to determine 
the scope of issues to be addressed and to identify the significant 
issues to be analyzed in depth related to the proposed action (40 CFR 
1501.7). This process also serves to deemphasize insignificant issues, 
narrowing the scope of the EIS process accordingly (40 CFR 1500.4(g)). 
Scoping results in the identification by the proponent of the range of 
actions, alternatives, and impacts to be considered in the EIS (40 CFR 
1508.25). For any action, this scope may depend on the relationship of 
the proposed action to other existing environmental documentation.



Sec. 775.9  Documentation and analysis.

    (a) Environmental documentation and analyses required by this rule 
should be integrated as much as practicable with any environmental 
studies, surveys and impact analyses required by other environmental 
review laws and executive orders (40 CFR 1502.25). When a cost-benefit 
analysis has been prepared in conjunction with an action which also 
requires a NEPA analysis, the cost-benefit analysis shall be integrated 
into the environmental documentation.
    (b) CEQ regulations encourage the use of tiering whenever 
appropriate to eliminate repetitive discussions of the same issues and 
to focus on the actual issues ripe for discussion at each level of 
environmental review (40 CFR 1502.20). Tiering is accomplished

[[Page 508]]

through the preparation of a broad programmatic environmental impact 
statement discussing the impacts of a wide ranging or long term stepped 
program followed by narrower statements or environmental assessments 
concentrating solely on issues specific to the analysis subsequently 
prepared (40 CFR 1508.28).
    (1) Appropriate use of tiering: Tiering is appropriate when it helps 
the lead agency to focus on issues which are ripe for decision and 
exclude from consideration issues already decided or not yet ripe. (40 
CFR 1508.28(b).) The sequence of statements or analyses is:
    (i) From a broad program, plan, or policy environmental impact 
statement (not necessarily site specific) to a subordinate/smaller scope 
program, plan, or policy statement or analysis (usually site specific) 
(40 CFR 1508.28 (a)).
    (ii) From an environmental impact statement on a specific action at 
an early stage (such as need and site selection) to a supplement (which 
is preferred) or a subsequent statement or analysis at a later stage 
(such as environmental mitigation) (40 CFR 1508.28(b)).
    (iii) In addition to the discussion required by these regulations 
for inclusion in environmental impact statements, the programmatic 
environmental impact statement shall also discuss:
    (A) A description of the subsequent stages or sites that may 
ultimately be proposed in as much detail as presently possible;
    (B) All of the implementing factors of the program that can be 
ascertained at the time of impact statement preparation;
    (C) All of the environmental impacts that will result from 
establishment of the overall program itself that will be similar for 
subsequent stages or sites as further implementation plans are proposed; 
and
    (D) All of the appropriate mitigation measures that will be 
similarly proposed for subsequent stages or sites.
    (iv) The analytical document used for stage or site specific 
analysis subsequent to the programmatic environmental impact statement 
shall also be an environmental impact statement when the subsequent tier 
itself may have a significant impact on the quality of the human 
environment or when an impact statement is otherwise required. 
Otherwise, it is appropriate to document the tiered analysis with an 
environmental assessment to fully assess the need for further 
documentation or whether a FONSI would be appropriate.



Sec. 775.10  Relations with state, local and regional agencies.

    Close and harmonious planning relations with local and regional 
agencies and planning commissions of adjacent cities, counties, and 
states, for cooperation and resolution of mutual land use and 
environment-related problems should be established. Additional 
coordination may be obtained from state and area-wide planning and 
development ``clearinghouses''. These are agencies which have been 
established pursuant to Executive Order 12372 of July 14, 1982 (3 CFR, 
1982 Comp., p. 197). The clearinghouses serve a review and coordination 
function for Federal activities and the proponent may gain insights on 
other agencies' approaches to environmental assessments, surveys, and 
studies in relation to any current proposal. The clearinghouses would 
also be able to assist in identifying possible participants in scoping 
procedures for projects requiring an EIS.



Sec. 775.11  Public participation.

    The importance of public participation (40 CFR 1501.4(b)) in 
preparing environmental assessments is clearly recognized and it is 
recommended that commands proposing an action develop a plan to ensure 
appropriate communication with affected and interested parties. The 
command Public Affairs Office can provide assistance with developing and 
implementing this plan. In determining the extent to which public 
participation is practicable, the following are among the factors to be 
weighed by the command:
    (a) The magnitude of the environmental considerations associated 
with the proposed action;
    (b) The extent of anticipated public interest; and
    (c) Any relevant questions of national security and classification.

[[Page 509]]



Sec. 775.12  Action.

    The Chief of Naval Operations and the Commandant of the Marine Corps 
shall, each, as appropriate:

    (a) Provide guidelines and procedures for administrative direction 
and implementation of this part and CEQ regulations; and

    (b) Maintain a focal point for the coordination of the preparation 
of environmental assessments and impact statements.



PART 776--PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE SUPERVISION OF THE JUDGE ADVOCATE GENERAL--Table of Contents




                Subpart A--General, Preamble and Premises

Sec.
776.1  Purpose.
776.2  Applicability.
776.3  Policy.
776.4  Attorney-client relationships.
776.5  Judicial conduct.
776.6  Conflict.
776.7  Reporting requirements.
776.8  Professional Responsibility Committee.
776.9  Rules Counsel.
776.10  Informal ethics advice.
776.11  Outside part-time practice of law.
776.12  Maintenance of files.
776.13  Preamble.
776.14  Premises.

                            Subpart B--Rules

776.20  Competence.
776.21  Establishment and scope of representation.
776.22  Diligence.
776.23  Communication.
776.24  Fees.
776.25  Confidentiality of information.
776.26  Conflict of interests: General rule.
776.27  Conflict of interests: Prohibited transactions.
776.28  Conflict of interests: Former client.
776.29  Imputed disqualification: General rule.
776.30  Successive government and private employment.
776.31  Former judge or arbitrator.
776.32  Department of the Navy as client.
776.33  Client under a disability.
776.34  Safekeeping property.
776.35  Declining or terminating representation.
776.36  Advisor.
776.37  Mediation.
776.38  Evaluation for use by third persons.
776.39  Meritorious claims and contentions.
776.40  Expediting litigation.
776.41  Candor and obligations toward the tribunal.
776.42  Fairness to opposing party and counsel.
776.43  Impartiality and decorum of tribunal.
776.44  Extra-tribunal statements.
776.45  Judge advocate as witness.
776.46  Special responsibilities of a trial counsel.
776.47  Advocate in nonadjudicative proceedings.
776.48  Truthfulness in statements to others.
776.49  Communication with person represented by counsel.
776.50  Dealing with an unrepresented person.
776.51  Respect for rights of third persons.
776.52  Responsibilities of the judge advocate general and supervisory 
          judge advocates.
776.53  Responsibilities of a subordinate judge advocate.
776.54  Responsibilities regarding nonlawyer assistants.
776.55  Professional independence of a judge advocate.
776.56  Unauthorized practice of law.
776.57-776.65  [Reserved]
776.66  Bar admission and disciplinary matters.
776.67  Judicial and legal officials.
776.68  Reporting professional misconduct.
776.69  Misconduct.
776.70  Jurisdiction.
776.71-776.75  [Reserved]

               Subpart C--Complaint Processing Procedures

776.76  Policy.
776.77  Related investigations and actions.
776.78  Informal complaints.
776.79  The complaint.
776.80  Initial screening and Rules Counsel.
776.81  Charges.
776.82  Preliminary inquiry.
776.83  Ethics investigation.
776.84  Action by JAG.
776.85  Finality.
776.86  Report to bar.
776.87-776.89  [Reserved]

  Subpart D--Outside Part-Time Law Practice of Naval Service Attorneys

776.90  Background.
776.91  Definition.
776.92  Policy.
776.93  Action.
776.94  Revalidation.
776.95  Relations with non-DON civilian counsel.



[[Page 510]]


    Authority: 10 U.S.C. 826, 827; Manual for Courts-Martial, United 
States, 1984; Secretary of the Navy Instruction 5430.27A, Responsibility 
of the Judge Advocate General for Supervision of Certain Legal Services; 
U.S. Navy Regulations, 1990.

    Source: 59 FR 45214, Sept. 1, 1994, unless otherwise noted.



                Subpart A--General, Preamble and Premises



Sec. 776.1  Purpose.

    In furtherance of the authority citations [which, if not found in 
local libraries, are available from the Office of the Judge Advocate 
General (Administrative Law Division), 200 Stovall Street, Alexandria, 
VA 22332-2400], which require the Judge Advocate General (JAG) to 
supervise the performance of legal services under his cognizance 
throughout the Department of the Navy (DON), this part is promulgated--
    (a) To establish Rules of Professional Conduct for DON civilian and 
military attorneys practicing under the supervision of JAG;
    (b) To promulgate procedures for receiving, processing, and taking 
action on complaints of professional misconduct made against attorneys 
practicing under the supervision of JAG, or certified by JAG under 
articles 26(b) or 27(b) of the Uniform Code of Military Justice (UCMJ) 
(10 U.S.C. 826(b), 827(b)); and
    (c) To prescribe limitations on, and procedures for, processing 
requests to engage in the part-time outside practice of law by DON judge 
advocates or civilian attorneys under the supervision of JAG.



Sec. 776.2  Applicability.

    (a) This part defines the professional ethical obligations of, and 
applies to:
    (1) Attorneys:
    (i) Certified by JAG under the provisions of article 27(b), UCMJ, 10 
U.S.C. 827(b);
    (ii) Designated by JAG as legal assistance attorneys;
    (iii) Who practice within DON and who are certified under article 
27(b), UCMJ, 10 U.S.C. 827(b), or who are designated as a legal 
assistance attorney by the Judge Advocate General/Chief Counsel of 
another armed force, or both; and
    (2) Who are not certified in accordance with article 27(b), UCMJ, 10 
U.S.C. 827(b), or designated as a legal assistance attorney, but who 
practice under the supervision of JAG.
    (3) Military trial and appellate judges who practice or perform 
legal services under the cognizance of JAG.
    (4) Reserve judge advocates of the Navy or Marine Corps on active 
duty, extended active duty, active duty for training, inactive duty for 
training, or when performing duties subject to the supervision of JAG. 
Subpart D of this part, however, does not apply to Reserve judge 
advocates unless they serve on active duty for more than 30 consecutive 
days.
    (5) DON civilian counsel practicing under the supervision of JAG.
    (6) Civilian counsel representing individual members of the naval 
service in any matter for which JAG is charged with supervising the 
provision of legal services including, but not limited to, courts-
martial, administrative boards, and disability evaluation proceedings. 
Subpart D of this part, however, does not apply to such counsel.
    (b) Although subpart B of this part does not apply to nonlawyers, 
the rules in that subpart do define the type of ethical conduct that the 
public and the military community have a right to expect not only of 
lawyers but also of their nonlawyer employees and associates in all 
matters pertaining to professional conduct. Accordingly, subpart B shall 
serve as models of ethical conduct for the following personnel when 
involved with the delivery of legal services under the purview of JAG--
    (1) Navy legalmen and Marine Corps legal administrative officers and 
legal service specialists;
    (2) Limited duty officers (law);
    (3) Legal interns; and
    (4) Civilian support personnel including paralegals, legal 
secretaries, legal technicians, secretaries, court-reporters, and others 
holding similar positions. Attorneys who supervise nonlawyer employees 
are responsible for their ethical conduct to the extent provided for in 
Sec. 776.54.

[[Page 511]]



Sec. 776.3  Policy.

    (a) DON judge advocates and civilian attorneys to whom this part 
applies shall maintain the highest standards of professional ethical 
conduct. Loyalty and fidelity to the United States, to the law, to 
clients both institutional and individual, and to the rules and 
principles of professional ethical conduct set forth in subpart B of 
this part must come before private gain or personal interest.
    (b) Subpart B and related procedures set forth herein concern 
matters solely under the purview of JAG. Whether conduct or failure to 
act constitutes a violation of the duties imposed by this part is a 
matter within the sole discretion of JAG or officials authorized to act 
for JAG. The subpart B rules are not substitutes for, and do not take 
the place of, other rules and standards governing DON personnel such as 
the Government rules of ethical conduct, the Code of Conduct, the 
Uniform Code of Military Justice, and the general precepts of ethical 
conduct to which all officers of the Navy and Marine Corps are expected 
to adhere. Similarly, action taken pursuant to this part is not 
supplanted or barred by, and does not supplant or bar, the following 
action from being taken by authorized officials, even if the underlying 
misconduct is the same--
    (1) Punitive or disciplinary action under the UCMJ; or
    (2) Administrative action under the Manual For Courts-Martial or 
U.S. Navy Regulations, 1990, or under other applicable authority.



Sec. 776.4  Attorney-client relationships.

    (a) The executive agency to which assigned (DON in most cases) is 
the client served by each DON civilian attorney or judge advocate unless 
detailed to represent another client by competent authority. Specific 
guidelines are contained in Sec. 776.32.
    (b) DON judge advocates and civilian attorneys will not establish 
attorney-client relationships with any individual unless detailed, 
assigned, or otherwise authorized to do so by competent authority.
    (c) Employment of non-DON civilian counsel by an individual client 
does not alter the responsibilities of a DON judge advocate or civilian 
attorney to that client. Specific guidance is set forth in Sec. 776.95.



Sec. 776.5  Judicial conduct.

    To the extent that it does not conflict with statutes, subpart B of 
this part, or regulations of the sort mentioned in Sec. 776.3(b), the 
American Bar Association's Code of Judicial Conduct applies to all 
military and appellate judges and to all judge advocates and other 
attorneys performing judicial functions under JAG supervision within the 
Department of the Navy.



Sec. 776.6  Conflict.

    To the extent that a conflict exists between subpart B of this part 
and the rules of other jurisdictions that regulate the professional 
conduct of attorneys, subpart B of this part will govern the conduct of 
attorneys engaged in legal functions under JAG supervision.



Sec. 776.7  Reporting requirements.

    Individuals subject to this part shall promptly report to the Rules 
Counsel (see Sec. 776.9) discipline by another jurisdiction upon 
himself, herself, or another individual subject to this part.



Sec. 776.8  Professional Responsibility Committee.

    (a) Composition. This standing committee will consist of the 
Assistant Judge Advocate General (AJAG) for Military Justice; the 
Principal Deputy Assistant Judge Advocate General (PDAJAG) (Operations & 
Management); the Chief Judge, Navy-Marine Corps Trial Judiciary; and in 
cases involving Marine Corps judge advocates, the Deputy Director, Judge 
Advocate Division, HQMC; and such other personnel as JAG from time-to-
time may appoint. A majority of the members constitutes a quorum. The 
Chairman of the Committee shall be PDAJAG (Operations & Management). The 
Chairman may excuse members disqualified for cause, illness, or 
exigencies of military service, and may request JAG to appoint 
additional or alternative members on a temporary or permanent basis.
    (b) Purpose. (1) When requested by JAG or by the Rules Counsel, the 
Committee will provide formal advisory

[[Page 512]]

opinions to JAG regarding application of subpart B of this part to 
individual or hypothetical cases.
    (2) On its own motion, the Committee may also issue formal advisory 
opinions on ethical issues of importance to the DON legal community.
    (3) Upon written request, the Committee will also provide formal 
advisory opinions to individuals subject to this part about the 
propriety of proposed courses of action under subpart B of this part. If 
such requests are predicated upon full disclosure of all relevant facts, 
and if the Committee advises that the proposed course of conduct is not 
violative of subpart B of this part, then no adverse action under this 
part may be taken against an individual who acts consistent with the 
Committee's advice.
    (4) The Committee Chairman will forward copies of all opinions 
issued by the Committee to the Rules Counsel.



Sec. 776.9  Rules Counsel.

    Appointed by JAG to act as a special assistant for the 
administration of subpart B of this part, the Rules Counsel derives 
authority from JAG and, with respect to administrative matters under 
this part, has ``by direction'' authority. The Rules Counsel shall cause 
opinions issued by the Professional Responsibility Committee of general 
interest to the DON legal community to be published in summarized, non-
personal form in suitable publications. Unless another officer is 
appointed by JAG to act in individual cases, the following officers 
shall act as Rules Counsel--
    (a) In cases involving Marine Corps judge advocates, Director, Judge 
Advocate Division; and
    (b) In all other cases, Assistant Judge Advocate General (Civil 
Law).



Sec. 776.10  Informal ethics advice.

    (a) Advisors. Judge advocates may seek informal ethics advice either 
from the OJAG officers named below or from their supervisory judge 
advocates in the field. Within the Office of the JAG, the following 
officials are designated to respond to informal, oral inquiries 
concerning this part in the areas of practice indicated--
    (1) Head, Military Affairs/Personnel Law Branch, Administrative Law 
Division: administrative boards and related matters;
    (2) Deputy Director, Criminal Law Division: military justice 
matters;
    (3) Deputy Director, Legal Assistance Division: legal assistance 
matters; and
    (4) Head, Standards of Conduct/Government Ethics Branch, 
Administrative Law Division: all others.
    (b) Informal advice. Informal ethics advice will not be provided by 
OJAG advisors concerning matters currently in litigation.
    (c) Written advice. A request for informal advice does not relieve 
the requestor of the obligation to comply with subpart B of this part. 
Although DON judge advocates and civilian attorneys are encouraged to 
seek advice when in doubt as to their responsibilities, they remain 
personally responsible for their professional conduct. If, however, a 
subordinate judge advocate acts in accordance with a supervisory judge 
advocate's written and reasonable resolution of an arguable question, 
then no adverse action under this part may be taken against the 
subordinate judge advocate. JAG is not bound by unwritten advice or by 
advice provided by nonsupervisors.



Sec. 776.11  Outside part-time practice of law.

    A DON attorney's primary professional responsibility is to the 
executive agency to which assigned, and he or she is expected to devote 
the required amount of effort and time to satisfactorily accomplish 
assigned duties. The outside practice of law, therefore, must be 
carefully monitored. Attorneys to whom this section applies who wish to 
engage in the part-time, outside practice of law must first obtain 
permission from JAG. Details are contained in Subpart D of this part.



Sec. 776.12  Maintenance of files.

    Ethics complaint records and outside, part-time law practice request 
files shall be maintained by the Administrative Law Division, Office of 
the Judge Advocate General.
    (a) Files shall be labeled with the name of the individual against 
whom complaints are made, or who request

[[Page 513]]

permission to engage in the part-time outside practice of law, and will 
contain the request, complaint, reports of investigation, related 
correspondence, and allied papers.
    (b) Requests for access to such records should be referred to DAJAG 
(Administrative Law Division), Office of the Judge Advocate General, 200 
Stovall Street, Alexandria, Virginia 22332-2400.
    (c) Local command files regarding complaints will not be maintained. 
Commanding officers and other supervisory personnel may, however, 
maintain their own personal files but must not share their contents with 
others.



Sec. 776.13  Preamble.

    (a) Rules of Professional Conduct. (1) A judge advocate in the naval 
service is a representative of clients, an officer of the legal system, 
a commissioned officer, and a public citizen who has a special 
responsibility for the quality of justice and legal services provided to 
the Department of the Navy and to individual clients. The Rules of 
Professional Conduct set out in subpart B of this part govern the 
ethical conduct of naval judge advocates practicing under the Uniform 
Code of Military Justice, the Manual for Courts-Martial, 10 U.S.C. 1044 
(Legal Assistance), other laws of the United States, and regulations of 
the Department of the Navy.
    (2) The rules in subpart B of this part are specifically addressed 
to the conduct of judge advocates but apply to all other lawyers who 
practice under the supervision of the Judge Advocate General of the 
Navy. (Use of the term ``judge advocate'' in subpart B applies to all 
lawyers unless otherwise indicated.)
    (b) [Reserved]



Sec. 776.14  Premises.

    (a) The rules in subpart B of this part are based on the premises 
that follow. The interpretation of subpart B of this part should flow 
from their common meaning and the comments. To the extent that any 
ambiguity or conflict exists, subpart B of this part should be 
interpreted consistent with this hierarchy of premises.
    (1) Judge advocates must obey the law and military regulations, and 
counsel clients to do so.
    (2) Ethical rules must be followed.
    (3) Ethical rules should be consistent with law. If law and ethics 
conflict, the law prevails unless an ethical rule is constitutionally 
based.
    (4) A judge advocate must protect the legal rights and interests of 
clients, organizational and individual.
    (5) The military criminal justice system is a truth-finding process 
consistent with constitutional law.
    (6) A judge advocate must be honest and truthful in all dealings.
    (7) A judge advocate shall not derive personal gain, other than from 
the U.S. Government, from the performance of official duties.
    (8) A judge advocate shall maintain the integrity of the legal and 
military professions.
    (b) [Reserved]



                            Subpart B--Rules



Sec. 776.20  Competence.

    (a) Competence. A judge advocate shall provide competent, diligent, 
and prompt representation to a client. Competent representation requires 
the legal knowledge, skill, thoroughness, and expeditious preparation 
reasonably necessary for representation. Initial determinations as to 
competence of a judge advocate for a particular assignment shall be made 
by a supervising judge advocate before case or issue assignments; 
however, assigned judge advocates may consult with supervisors 
concerning competence in a particular case.
    (b) [Reserved]



Sec. 776.21  Establishment and scope of representation.

    (a) Establishment and scope of representation. (1) Formation of 
attorney-client relationships by judge advocates with, and 
representation of, clients is permissible only when the judge advocate 
is authorized to do so by competent authority.
    (2) The subject matter scope of a judge advocate's representation 
will be

[[Page 514]]

consistent with the terms of the assignment to perform specific 
representational or advisory duties. A judge advocate shall inform 
clients at the earliest opportunity of any limitations of representation 
and professional responsibilities of the judge advocate towards the 
client.
    (3) A judge advocate shall follow the client's well-informed and 
lawful decisions concerning case objectives, choice of counsel, forum, 
pleas, whether to testify, and settlements.
    (4) A judge advocate's representation of a client does not 
constitute an endorsement of the client's political, economic, social, 
or moral views or activities.
    (5) A judge advocate shall not counsel or assist a client to engage 
in conduct that the judge advocate knows is criminal or fraudulent, but 
a judge advocate may discuss the legal and moral consequences of any 
proposed course of conduct with a client, and may counsel or assist a 
client in making a good faith effort to determine the validity, scope, 
meaning, or application of the law.
    (b) [Reserved]



Sec. 776.22  Diligence.

    (a) Diligence. A judge advocate shall act with reasonable diligence 
and promptness in representing a client, and in every case shall consult 
with a client as soon as practicable and as often as necessary upon 
being assigned to the case or issue.
    (b) [Reserved]



Sec. 776.23  Communication.

    (a) Communication. (1) A judge advocate shall keep a client 
reasonably informed about the status of a matter and promptly comply 
with reasonable requests for information.
    (2) A judge advocate shall explain a matter to the extent reasonably 
necessary to permit the client to make informed decisions regarding the 
representation.
    (b) [Reserved]



Sec. 776.24  Fees.

    In this section, the term ``judge advocate'' refers only to judge 
advocates and other attorneys employed by the Department of the Navy. 
The term ``lawyer'' refers to all other lawyers subject to this subpart 
B.
    (a) Fees. (1) A judge advocate shall not accept any salary, fee, 
compensation, or other payments or benefits, directly or indirectly, 
other than government compensation, for services provided in the course 
of the judge advocate's government duties or employment.
    (2) A judge advocate shall not accept any salary or other payments 
as compensation for legal services rendered, by that judge advocate in a 
private capacity, to a client who is eligible for assistance under the 
Department of the Navy Legal Assistance Program, unless so authorized by 
the Judge Advocate General. This paragraph (a)(2) does not apply to 
Reserve judge advocates not serving on extended active duty.
    (3) A Reserve judge advocate, whether or not serving on extended 
active duty, who has initially represented or interviewed a client or 
prospective client concerning a matter as part of the judge advocate's 
official Navy or Marine Corps duties, shall not accept any salary or 
other payments as compensation for services rendered to that client in a 
private capacity concerning the same general matter for which the client 
was seen in an official capacity, unless authorized by the Judge 
Advocate General to do so.
    (4) A judge advocate shall not accept any payments or benefits, 
actual or constructive, directly or indirectly, for making a referral of 
a client.
    (5) Lawyers not employed by the Federal Government may charge fees. 
Fees shall be reasonable. Factors considered in determining the 
reasonableness of a fee include the following:
    (i) The time and labor required, the novelty and difficulty of the 
questions involved, and the skill requisite to perform the legal service 
properly;
    (ii) The likelihood, if apparent to the client, that the acceptance 
of the particular employment will preclude other employment by the 
lawyer;
    (iii) The fee customarily charged in the locality for similar legal 
services;
    (iv) The amount involved and the results obtained;
    (v) The time limitations imposed by the client or by the 
circumstances;

[[Page 515]]

    (vi) The nature and length of the professional relationship with the 
client;
    (vii) The experience, reputation, and ability of the lawyer or 
lawyers performing the services; and
    (viii) Whether the fee is fixed or contingent.
    (6) When the lawyer has not regularly represented the client, the 
basis or rate of the fee shall be communicated to the client, preferably 
in writing, before or within a reasonable time after commencing in 
representation.
    (7) A fee may be contingent on the outcome of the matter for which 
the service is rendered, except in a matter in which a contingent fee is 
prohibited by paragraph (a)(8) of this section or other law. A 
contingent fee agreement shall be in writing and shall state the method 
by which the fee is to be determined, including the percentage or 
percentages that shall accrue to the lawyer in the event of settlement, 
trial or appeal, litigation and other expenses to be deducted from the 
recovery, and whether such expenses are to be deducted before or after 
the contingent fee is calculated. Upon conclusion of a contingent fee 
matter, the lawyer shall provide the client with a written statement 
stating the outcome of the matter and, if there is a recovery, showing 
the remittance to the client and the method of its determination.
    (8) A lawyer shall not enter into an arrangement for, charge, or 
collect:
    (i) Any fee in a domestic relations matter, the payment or amount of 
which is contingent upon the securing of a divorce or upon the amount of 
alimony or support, or property settlement in lieu thereof, or
    (ii) A contingent fee for representing an accused in a criminal 
case.
    (9) A division of fee between lawyers who are not in the same firm 
may be made only if:
    (i) The division is in proportion to the services performed by each 
lawyer or, by written agreement with the client, each lawyer assumes 
joint responsibility for the representation;
    (ii) The client is advised of and does not object to the 
participation of all the lawyers involved; and
    (iii) The total fee is reasonable.
    (b) [Reserved]



Sec. 776.25  Confidentiality of information.

    (a) Confidentiality of information. (1) A judge advocate shall not 
reveal information relating to representation of a client unless the 
client consents after consultation, except for disclosures that are 
impliedly authorized in order to carry out the representation, and 
except as stated in paragraphs (a)(2) and (a)(3) of this section.
    (2) A judge advocate shall reveal such information to the extent the 
judge advocate reasonably believes necessary to prevent the client from 
committing a criminal act that the judge advocate believes is likely to 
result in imminent death or substantial bodily harm, or significant 
impairment of national security or the readiness or capability of a 
military unit, vessel, aircraft, or weapon system.
    (3) A judge advocate may reveal such information to the extent the 
judge advocate reasonably believes necessary to establish a claim or 
defense on behalf of the judge advocate in a controversy between the 
judge advocate and the client, to establish a defense to a criminal 
charge or civil claim against the judge advocate based upon conduct in 
which the client was involved, or to respond to allegations in any 
proceeding concerning the judge advocate's representation of the client.
    (b) [Reserved]



Sec. 776.26  Conflict of interests: General rule.

    (a) Conflict of Interests: General rule. (1) A judge advocate shall 
not represent a client if the representation of that client will be 
directly adverse to another client, unless:
    (i) The judge advocate reasonably believes the representation will 
not adversely affect the relationship with the other client; and
    (ii) Each client consents after consultation.
    (2) A judge advocate shall not represent a client if the 
representation of that client may be materially limited by the judge 
advocate's responsibilities to another client or to a third person, or 
by the judge advocate's own interests, unless:
    (i) The judge advocate reasonably believes the representation will 
not be adversely affected; and,

[[Page 516]]

    (ii) The client consents after consultation. When representation of 
multiple clients in a single matter is undertaken, the consultation 
shall include explanation of the implications of the common 
representation and the advantages and risks involved.
    (b) [Reserved]



Sec. 776.27  Conflict of interests: Prohibited transactions.

    (a) Conflict of interests: Prohibited transactions. (1) Judge 
advocates shall strictly adhere to current Department of the Navy 
Standards of Conduct Regulations and shall not:
    (i) Knowingly enter into any business transactions on behalf of, or 
adverse to, a client's interest which directly or indirectly relate to 
or result from the attorney-client relationship, or otherwise profit, 
directly or indirectly, through knowledge acquired during the course of 
the judge advocate's official duties;
    (ii) Accept compensation or gifts in any form from a client or other 
person or entity, other than the U.S. Government, for the performance of 
official duties;
    (iii) Provide any financial assistance to a client or otherwise 
serve in a financial or proprietorial fiduciary or bailment 
relationship, unless otherwise specifically authorized by competent 
authority;
    (iv) Negotiate any settlement on behalf of multiple clients in a 
single matter unless each client provides his or her fully informed 
consent;
    (v) Represent a client whose interests are materially adverse to the 
interests of a former client, unless the former client consents, or use 
information from the former representation to the disadvantage of that 
former client, except as permitted or required under Sec. 776.26 or when 
the information has become otherwise generally known;
    (vi) make any referrals of legal or other business to any non-
governmental lawyer or enterprise with whom the judge advocate has any 
present or expected direct or indirect personal interest; any referrals 
must be made strictly without regard to personal interests of the judge 
advocate, and special care shall be taken not to give preferential 
treatment to Reserve judge advocates or other government attorneys in 
their private capacities;
    (vii) Make or negotiate an agreement giving the judge advocate 
literary or media rights for a portrayal or account based in substantial 
part on information relating to representation of a client; or,
    (viii) Represent a client in a matter directly adverse to a person 
who the judge advocate knows is represented by another lawyer who is 
related as parent, child, sibling or spouse to the judge advocate, 
except upon consent by the client after consultation regarding the 
relationship.
    (2) [Reserved]
    (b) [Reserved]



Sec. 776.28  Conflict of interests: Former client.

    (a) Conflict of interests: Former client. (1) A judge advocate who 
has represented a client in a matter shall not thereafter:
    (i) Represent another person in the same or a substantially related 
matter in which the person's interests are materially adverse to the 
interests of the former client, unless the former client consents after 
consultation; or,
    (ii) Use information relating to the representation to the 
disadvantage of the former client or to the judge advocate's own 
advantage, except as Sec. 776.25 would permit with respect to a client 
or when the information has become generally known.
    (2) [Reserved]
    (b) [Reserved]



Sec. 776.29  Imputed disqualification: General rule.

    Judge advocates working in the same military law office are not 
automatically disqualified from representing a client because any of 
them practicing alone would be prohibited from doing so by Sec. 776.26, 
Sec. 776.27, 776.28, or Sec. 776.37.



Sec. 776.30  Successive government and private employment.

    (a) Successive government and private employment. (1) Except as the 
law or regulations may otherwise expressly permit, a former judge 
advocate shall not represent a private client in connection with a 
matter in which the judge advocate participated personally

[[Page 517]]

and substantially as a public officer or employee, unless the 
appropriate government agency consents after consultation. If a former 
judge advocate in a firm with which that judge advocate is associated 
knows that the firm or anyone associated with the firm is undertaking or 
continuing representation in such a matter:
    (i) The disqualified former judge advocate must ensure that he or 
she is screened from any participation in the matter and is apportioned 
no part of the fee or any other benefit therefrom; and,
    (ii) Must provide written notice promptly to the appropriate 
government agency to enable it to ascertain compliance with the 
provisions of this section.
    (2) Except as the law or regulations may otherwise expressly permit, 
a former judge advocate who has information known to be confidential 
government information about a person which was acquired when the former 
judge advocate was a public officer may not represent a private client 
whose interests are adverse to that person in a matter in which the 
information could be used to the material disadvantage of that person. 
The former judge advocate may continue association with the firm only if 
the disqualified judge advocate is screened from any participation in 
the matter and is apportioned no part of the fee or any other benefit 
therefrom.
    (3) Except as the law or regulations may otherwise expressly permit, 
a judge advocate shall not:
    (i) Participate in a matter in which the judge advocate participated 
personally and substantially while in private practice or 
nongovernmental employment, unless under applicable law no one is, or by 
lawful delegation may be, authorized to act in the judge advocate's 
stead in the matter; or,
    (ii) Negotiate for private employment with any person who is 
involved as a party or as attorney for a party in a matter in which the 
judge advocate is participating personally and substantially.
    (4) As used in this section, the term ``matter'' includes:
    (i) Any judicial or other proceeding, application, request for a 
ruling or other determination, contract, claim, controversy, 
investigation, charge, accusation, arrest or other particular matter 
involving a specific party or parties; and,
    (ii) Any other matter covered by the conflict of interest rules of 
the appropriate government agency.
    (5) As used in this section, the term ``confidential governmental 
information'' means information which has been obtained under 
governmental authority and which, at the time this section is applied, 
the government is prohibited by law or regulations from disclosing to 
the public or has a legal privilege not to disclose, and which is not 
otherwise available to the public.
    (b) [Reserved]



Sec. 776.31  Former judge or arbitrator.

    (a) Former judge or arbitrator. (1) Except as stated in paragraph 
(a)(3) of this section, a judge advocate shall not represent anyone in 
connection with a matter in which the judge advocate participated 
personally and substantially as a judge or other adjudicative officer, 
arbitrator, or law clerk to such a person, unless all parties to the 
proceeding consent after disclosure.
    (2) A judge advocate shall not negotiate for employment with any 
person who is involved as a party or as attorney for a party in a matter 
in which the judge advocate is participating personally and 
substantially as a judge or other adjudicative officer. A judge advocate 
serving as law clerk to a judge, other adjudicative officer, or 
arbitrator may negotiate for employment with a party or attorney 
involved in a matter in which the clerk is participating personally and 
substantially, but only after the judge advocate has notified the judge, 
other adjudicative officer, or arbitrator.
    (3) An arbitrator selected as a partisan of a party in a multi-
member arbitration panel is not prohibited from subsequently 
representing that party.
    (b) [Reserved]



Sec. 776.32  Department of the Navy as client.

    (a) Department of the Navy as client. (1) Except when representing 
an individual client pursuant to paragraph (a)(6) of this section, a 
judge advocate

[[Page 518]]

for the naval service represents the Department of the Navy (or the 
Executive agency to which assigned) acting through its authorized 
officials. These officials include the heads of organizational elements 
within the naval service, such as the commanders of fleets, divisions, 
ships and other heads of activities. When a judge advocate for the naval 
service is assigned to such an organizational element and designated to 
provide legal services to the head of the organization, a lawyer-client 
relationship exists between the judge advocate and the Department of the 
Navy as represented by the head of the organization as to matters within 
the scope of the official business of the organization. The head of the 
organization may not invoke the lawyer-client privilege or the rule of 
confidentiality for the head of the organization's own benefit but may 
invoke either for the benefit of the Department of the Navy. In invoking 
either the lawyer-client privilege or lawyer-client confidentiality on 
behalf of the Department of the Navy, the head of the organization is 
subject to being overruled by higher authority.
    (2) If a judge advocate knows that an officer, employee, or other 
member associated with the organizational client is engaged in action, 
intends to act or refuses to act in a matter related to the 
representation that is either adverse to the legal interests or 
obligations of the Department of the Navy or a violation of law which 
reasonably might be imputed to the Department, the judge advocate shall 
proceed as is reasonably necessary in the best interest of the naval 
service. In determining how to proceed, the judge advocate shall give 
due consideration to the seriousness of the violation and its 
consequences, the scope and nature of the judge advocate's 
representation, the responsibility in the naval service and the apparent 
motivation of the person involved, the policies of the naval service 
concerning such matters, and any other relevant considerations. Any 
measures taken shall be designed to minimize prejudice to the interests 
of the naval service and the risk of revealing information relating to 
the representation to persons outside the service. Such measures shall 
include among others:
    (i) Advising the head of the organization that his or her personal 
legal interests are at risk and that he or she should consult counsel as 
there may exist a conflict of interests for the judge advocate, and the 
judge advocate's responsibility is to the organization;
    (ii) Asking for reconsideration of the matter by the acting 
official;
    (iii) Advising that a separate legal opinion on the matter be sought 
for presentation to appropriate authority in the naval service; or,
    (iv) Referring the matter to, or seeking guidance from, higher 
authority in the technical chain-of-command including, if warranted by 
the seriousness of the matter, referral to the staff judge advocate 
assigned to the staff of the acting official's next superior in the 
technical chain-of-command.
    (3) If, despite the judge advocate's efforts pursuant to paragraph 
(a)(2) of this section, the highest authority that can act concerning 
the matter insists upon action or refuses to act, in clear violation of 
law, the judge advocate may terminate representation with respect to the 
matter in question. In no event shall the lawyer participate or assist 
in the illegal activity.
    (4) In dealing with the officers, employees, or members of the naval 
service a judge advocate shall explain the identity of the client when 
it is apparent that the naval service's interests are adverse to those 
of the officer's, employee's, or member's.
    (5) A judge advocate representing the naval service may also 
represent any of its officers, employees, or members, subject to the 
provisions of Sec. 776.26 and other applicable authority. If the 
Department of the Navy's consent to dual representation is required by 
Sec. 776.26, the consent shall be given by an appropriate official of 
the Department of the Navy other than the individual who is to be 
represented.
    (6) A judge advocate who has been duly assigned to represent an 
individual who is subject to disciplinary action or administrative 
proceedings, or to provide legal assistance to an individual, has, for 
those purposes, an attorney-client relationship with that individual.
    (b) [Reserved]

[[Page 519]]



Sec. 776.33  Client under a disability.

    (a) Client under a disability. (1) When a client's ability to make 
adequately considered decisions in connection with the representation is 
impaired, whether because of minority, mental disability, or for some 
other reason, the judge advocate shall, as far as reasonably possible, 
maintain a normal attorney-client relationship with the client.
    (2) A judge advocate may seek the appointment of a guardian or take 
other protective action with respect to a client only when the judge 
advocate reasonably believes that the client cannot adequately act in 
the client's own interest.
    (b) [Reserved]



Sec. 776.34  Safekeeping property.

    Judge advocates shall not normally hold or safeguard property of a 
client or third persons in connection with representational duties under 
Sec. 776.27(a)(1)(iii).



Sec. 776.35  Declining or terminating representation.

    (a) Declining or terminating representation. (1) Except as stated in 
paragraph (a)(3) of this section, a judge advocate shall not represent a 
client or, when representation has commenced, shall seek to withdraw 
from the representation of a client, if:
    (i) The representation will result in violation of this subpart B or 
other law or regulation;
    (ii) The judge advocate's physical or mental condition materially 
impairs his or her ability to represent the client; or
    (iii) The judge advocate is dismissed by the client.
    (2) Except as stated in paragraph (a)(3) of this section, a judge 
advocate may seek to withdraw from representing a client if withdrawal 
can be accomplished without material adverse effect on the interests of 
the client, or if:
    (i) The client persists in a course of action involving the judge 
advocate's services that the judge advocate reasonably believes is 
criminal or fraudulent;
    (ii) The client has used the judge advocate's services to perpetrate 
a crime or fraud;
    (iii) The client insists upon pursuing an objective that the judge 
advocate considers repugnant or imprudent; or,
    (iv) Other good cause for withdrawal exists.
    (3) When ordered to do so by a tribunal or other competent 
authority, a judge advocate shall continue representation 
notwithstanding good cause for terminating the representation.
    (4) Upon termination of representation, a judge advocate shall take 
steps to the extent reasonably practicable to protect a client's 
interests, such as giving reasonable notice to the client, allowing time 
for assignment or employment of other counsel and surrendering papers 
and property to which the client is entitled and, if a civilian lawyer 
is involved, refunding any advance payment of fee that has not been 
earned. The judge advocate may retain papers relating to the client to 
the extent permitted by law.
    (b) [Reserved]



Sec. 776.36  Advisor.

    In representing a client, a judge advocate shall exercise 
independent professional judgment and render candid advice. In rendering 
advice, a judge advocate should refer not only to law but to other 
considerations such as moral, economic, social, and political factors 
that may be relevant to the client's situation.



Sec. 776.37  Mediation.

    (a) Mediation. (1) A judge advocate may act as a mediator between 
individuals or clients if:
    (i) The judge advocate consults with each individual concerning the 
implications of the mediation, including the advantages and risks 
involved, and the effect on the attorney-client confidentiality, and 
obtains each individual's consent to the mediation;
    (ii) The judge advocate reasonably believes that the matter can be 
resolved on terms compatible with each individual's best interests, that 
each individual will be able to make adequately informed decisions in 
the matter, and that there is little risk of material prejudice to the 
interests of any

[[Page 520]]

of the individuals if the contemplated resolution is unsuccessful; and,
    (iii) The judge advocate reasonably believes that the mediation can 
be undertaken impartially and without improper effect on other 
responsibilities the judge advocate has to any of the individuals.
    (2) While acting as a mediator, the judge advocate shall consult 
with each individual concerning the decisions to be made and the 
considerations relevant in making them, so that each individual can make 
adequately informed decisions.
    (3) A judge advocate shall withdraw as a mediator if any of the 
individuals so requests, or if any of the conditions stated in paragraph 
(a) of this section is no longer satisfied. Upon withdrawal, the judge 
advocate shall not continue to mediate among any of the individuals in 
the matter that was the subject of the mediation unless each individual 
consents.
    (b) [Reserved]



Sec. 776.38  Evaluation for use by third persons.

    (a) Evaluation for use by third persons. (1) A judge advocate may 
undertake an evaluation of a matter affecting a client for the use of 
someone other than the client if:
    (i) The judge advocate reasonably believes that making the 
evaluation is compatible with other aspects of the judge advocate's 
relationship with the client; and
    (ii) The client consents after consultation.
    (2) Except as disclosure is required in connection with a report of 
an evaluation, information relating to the evaluation is otherwise 
protected by Sec. 776.25.
    (b) [Reserved]



Sec. 776.39  Meritorious claims and contentions.

    A judge advocate shall not bring or defend a proceeding, or assert 
or controvert an issue therein, unless there is a basis for doing so 
that is not frivolous, or which includes a good-faith argument for an 
extension, modification, or reversal of existing law. A judge advocate 
representing an accused in a criminal proceeding or the respondent in an 
administrative proceeding that could result in incarceration, discharge 
from the naval service, or other adverse personnel action, may 
nevertheless defend the client at the proceeding to ensure that every 
element of the case is established.



Sec. 776.40  Expediting litigation.

    A judge advocate shall make reasonable efforts to expedite 
litigation or other proceedings consistent with the interests of the 
client and the judge advocate's responsibilities to tribunals.



Sec. 776.41  Candor and obligations toward the tribunal.

    (a) Candor and obligations toward the tribunal. (1) A judge advocate 
shall not knowingly:
    (i) Make a false statement of material fact or law to a tribunal;
    (ii) Fail to disclose a material fact to a tribunal when disclosure 
is necessary to avoid assisting a criminal or fraudulent act by the 
client;
    (iii) Fail to disclose to the tribunal legal authority in the 
controlling jurisdiction known to the judge advocate to be directly 
adverse to the position of the client and not disclosed by opposing 
counsel;
    (iv) Offer evidence that the judge advocate knows to be false (if a 
judge advocate has offered material evidence and comes to know of its 
falsity, the judge advocate shall take reasonable remedial measures); or
    (v) Disobey an order imposed by a tribunal unless done openly before 
the tribunal in a good-faith assertion that no valid order should exist.
    (2) The duties stated in paragraph (a) of this section continue to 
the conclusion of the proceedings, and apply even if compliance requires 
disclosure of information otherwise protected by Sec. 776.25.
    (3) A judge advocate may refuse to offer evidence that the judge 
advocate reasonably believes is false.
    (4) In an ex parte proceeding, a judge advocate shall inform the 
tribunal of all material facts known to the judge advocate which are 
necessary to enable the tribunal to make an informed decision, whether 
or not the facts are adverse.
    (b) [Reserved]

[[Page 521]]



Sec. 776.42  Fairness to opposing party and counsel.

    (a) Fairness to opposing party and counsel. (1) A judge advocate 
shall not:
    (i) Unlawfully obstruct another party's access to evidence or 
unlawfully alter, destroy, or conceal a document or other material 
having potential evidentiary value; a judge advocate shall not counsel 
or assist another person to do any such act;
    (ii) Falsify evidence, counsel or assist a witness to testify 
falsely, or offer an inducement to a witness that is prohibited by law;
    (iii) In pretrial procedure, make a frivolous discovery request or 
fail to make reasonably diligent effort to comply with a legally proper 
discovery request by an opposing party;
    (iv) In trial, allude to any matter that the judge advocate does not 
reasonably believe is relevant or that will not be supported by 
admissible evidence, assert personal knowledge of facts in issue except 
when testifying as a witness, or state a personal opinion as to the 
justness of a cause, the credibility of a witness, the culpability of a 
civil litigant, or the guilt or innocence of an accused; or
    (v) Request a person other than a client to refrain from voluntarily 
giving relevant information to another party unless:
    (A) The person is a relative, an employee, or other agent of a 
client; and
    (B) The judge advocate reasonably believes that the person's 
interests will not be adversely affected by refraining from giving such 
information.
    (2) [Reserved]
    (b) [Reserved]



Sec. 776.43  Impartiality and decorum of the tribunal.

    (a) Impartiality and decorum the tribunal. (1) A judge advocate 
shall not:
    (i) Seek to influence a judge, court member, member of a tribunal, 
prospective court member or member of a tribunal, or other official by 
means prohibited by law or regulation;
    (ii) Communicate ex parte with such a person except as permitted by 
law or regulation; or
    (iii) Engage in conduct intended to disrupt a tribunal.
    (2) [Reserved]
    (b) [Reserved]



Sec. 776.44  Extra-tribunal statements.

    (a) Extra-tribunal statements. (1) A judge advocate shall not make 
an extrajudicial statement about any person or case pending 
investigation or adverse administrative or disciplinary proceedings that 
a reasonable person would expect to be disseminated by means of public 
communication if the judge advocate knows or reasonably should know that 
it will have a substantial likelihood of materially prejudicing an 
adjudicative proceeding or an official review process thereof.
    (2) A statement referred to in paragraph (a) of this section 
ordinarily is likely to have such an effect when it refers to a civil 
matter triable to a jury, a criminal matter or any other proceeding that 
could result in incarceration, discharge from the naval service, or 
other adverse personnel action, and the statement relates to:
    (i) The character, credibility, reputation, or criminal record of a 
party, suspect in a criminal investigation, or witness, or the identity 
of a witness, or the expected testimony of a party or witness;
    (ii) The possibility of a plea of guilty to the offense or the 
existence or contents of any confession, admission, or statement given 
by an accused or suspect or that person's refusal or failure to make a 
statement;
    (iii) The performance or results of any examination or test or the 
refusal or failure of a person to submit to an examination or test, or 
the identity or nature of physical evidence expected to be presented;
    (iv) Any opinion as to the guilt or innocence of an accused or 
suspect in a criminal case or other proceeding that could result in 
incarceration, discharge from the naval service, or other adverse 
personnel action;
    (v) Information the judge advocate knows or reasonably should know 
is likely to be inadmissible as evidence before a tribunal and would, if 
disclosed, create a substantial risk of materially prejudicing an 
impartial proceeding;
    (vi) The fact that an accused has been charged with a crime, unless 
there

[[Page 522]]

is included therein a statement explaining that the charge is merely an 
accusation and that the accused is presumed innocent until and unless 
proven guilty; or
    (vii) The credibility, reputation, motives, or character of civilian 
or military officials of the Department of Defense.
    (3) Notwithstanding paragraphs (a)(1) and (a)(2) (i) through (v) of 
this section, a judge advocate involved in the investigation or 
litigation of a matter may state without elaboration:
    (i) The general nature of the claim or defense;
    (ii) The information contained in a public record;
    (iii) That an investigation of the matter is in progress, including 
the general scope of the investigation, the offense or claim or defense 
involved and, except when prohibited by law, the identity of the persons 
involved;
    (iv) The scheduling or result of any step in litigation;
    (v) A request for assistance in obtaining evidence and information 
necessary thereto;
    (vi) A warning of danger concerning the behavior of the person 
involved, when there is reason to believe that there exists the 
likelihood of substantial harm to an individual or to the public 
interest; and
    (vii) In a criminal case:
    (A) The identity, duty station, occupation, and family status of the 
accused;
    (B) If the accused has not been apprehended, information necessary 
to aid in apprehension of that person;
    (C) The fact, time, and place of apprehension; and
    (D) The identity of investigating and apprehending officers or 
agencies and the length of the investigation.
    (4) The protection and release of information in matters pertaining 
to the Department of the Navy is governed by such statutes as the 
Freedom of Information Act and the Privacy Act, in addition to those 
governing protection of national defense information. In addition, other 
laws and regulations may further restrict the information that can be 
released or the source from which it is to be released.
    (b) [Reserved]



Sec. 776.45  Judge advocate as witness.

    (a) Judge advocate as witness. (1) A judge advocate shall not act as 
advocate at a trial in which the judge advocate is likely to be a 
necessary witness except when:
    (i) The testimony relates to an uncontested issue;
    (ii) The testimony relates to the nature and quality of legal 
services rendered in the case; or
    (iii) Disqualification of the judge advocate would work substantial 
hardship on the client.
    (2) A judge advocate may act as advocate in a trial in which another 
judge advocate or lawyer in the judge advocate's office is likely to be 
called as a witness, unless precluded from doing so by Sec. 776.26 or 
Sec. 776.28.
    (b) [Reserved]



Sec. 776.46  Special responsibilities of a trial counsel.

    (a) Special responsibilities of a trial counsel. (1) A trial counsel 
shall:
    (i) Recommend to the convening authority that any charge or 
specification not warranted by the evidence be withdrawn;
    (ii) Make reasonable efforts to assure that the accused has been 
advised of the right to, and the procedure for obtaining, counsel and 
has been given reasonable opportunity to obtain counsel;
    (iii) Not seek to obtain from an unrepresented accused a waiver of 
important pretrial rights;
    (iv) Make timely disclosure to the defense of all evidence or 
information known to the judge advocate that tends to negate the guilt 
of the accused or mitigates the offense, and, in connection with 
sentencing, disclose to the defense all unprivileged mitigating 
information known to the judge advocate, except when the judge advocate 
is relieved of this responsibility by a protective order or regulation; 
and
    (v) Exercise reasonable care to prevent investigators, law 
enforcement personnel, employees, or other persons assisting or 
associated with the judge advocate in a criminal case from making an 
extrajudicial statement that the trial counsel would be prohibited from 
making under Sec. 776.44.
    (2) [Reserved]

[[Page 523]]

    (b) [Reserved]



Sec. 776.47  Advocate in nonadjudicative proceedings.

    A judge advocate representing a client before a legislative or 
administrative tribunal in a nonadjudicative proceeding shall disclose 
that the appearance is in a representative capacity and shall conform to 
the provisions of Sec. 776.41, Sec. 776.42, and Sec. 776.43.



Sec. 776.48  Truthfulness in statements to others.

    (a) Truthfulness in statements to others. In the course of 
representing a client a judge advocate shall not knowingly:
    (1) Make a false statement of material fact or law to a third 
person; or
    (2) Fail to disclose a material fact to a third person when 
disclosure is necessary to avoid assisting a criminal or fraudulent act 
by a client, unless disclosure is prohibited by Sec. 776.25.
    (b) [Reserved]



Sec. 776.49  Communication with person represented by counsel.

    In representing a client, a judge advocate shall not communicate 
about the subject of the representation with a party the judge advocate 
knows to be represented by another judge advocate in the matter, unless 
the judge advocate has the consent of the other judge advocate or is 
authorized by law to do so.



Sec. 776.50  Dealing with an unrepresented person.

    When dealing on behalf of a client with a person who is not 
represented by counsel, a judge advocate shall not state or imply that 
the judge advocate is disinterested. When the judge advocate knows or 
reasonably should know that the unrepresented person misunderstands the 
judge advocate's role in the matter, the judge advocate shall make 
reasonable efforts to correct the misunderstanding.



Sec. 776.51  Respect for rights of third persons.

    In representing a client, a judge advocate shall not use means that 
have no substantial purpose other than to embarrass, delay, or burden a 
third person, or use methods of obtaining evidence that violate the 
legal rights of such a person.



Sec. 776.52  Responsibilities of the Judge Advocate General and supervisory judge advocates.

    (a) Responsibilities of the Judge Advocate General and supervisory 
judge advocates. (1) The Judge Advocate General and supervisory judge 
advocates shall make reasonable efforts to ensure that all judge 
advocates conform to this subpart.
    (2) A judge advocate having direct supervisory authority over 
another judge advocate shall make reasonable efforts to ensure that the 
other judge advocate conforms to this subpart.
    (3) A supervisory judge advocate shall be responsible for another 
subordinate judge advocate's violation of this subpart if:
    (i) The supervisory judge advocate orders or, with knowledge of the 
specific conduct, ratifies the conduct involved; or
    (ii) The supervisory judge advocate has direct supervisory authority 
over the other judge advocate and knows of the conduct at a time when 
its consequences can be avoided or mitigated but fails to take 
reasonable remedial action.
    (4) A supervisory judge advocate is responsible for ensuring that 
the subordinate judge advocate is properly trained and is competent to 
perform the duties to which the subordinate judge advocate is assigned.
    (b) [Reserved]



Sec. 776.53  Responsibilities of a subordinate judge advocate.

    (a) Responsibilities of a subordinate judge advocate. (1) A judge 
advocate is bound by this subpart notwithstanding that the judge 
advocate acted at the direction of another person.
    (2) In recognition of a judge advocate's unique dual role as a 
commissioned officer and lawyer, subordinate judge advocates shall obey 
lawful directives and regulations of supervisory judge advocates when 
not inconsistent with this subpart or the duty of a judge advocate to 
exercise independent professional judgment as to the best interest of an 
individual client.

[[Page 524]]

    (3) A subordinate judge advocate does not violate this subpart if 
that judge advocate acts in accordance with a supervisory judge 
advocate's written and reasonable resolution of an arguable question of 
professional duty.
    (b) [Reserved]



Sec. 776.54  Responsibilities regarding nonlawyer assistants.

    (a) Responsibilities regarding nonlawyer assistants
    (1) With respect to a nonlawyer under the authority, supervision, or 
direction of a judge advocate:
    (i) The senior supervisory judge advocate in an office shall make 
reasonable efforts to ensure that the person's conduct is compatible 
with the professional obligations of the judge advocate;
    (ii) A judge advocate having direct supervisory authority over the 
nonlawyer shall make reasonable efforts to ensure that the person's 
conduct is compatible with the professional obligations of the judge 
advocate; and
    (iii) A judge advocate shall be responsible for conduct of such a 
person that would be a violation of this subpart B if engaged in by a 
judge advocate if:
    (A) The judge advocate orders or, with the knowledge of the specific 
conduct, ratifies the conduct involved; or
    (B) The judge advocate has direct supervisory authority over the 
person, and knows of the conduct at a time when its consequences can be 
avoided or mitigated but fails to take reasonable remedial action.
    (2) [Reserved]
    (b) [Reserved]



Sec. 776.55  Professional independence of a judge advocate.

    (a) Professional independence of a judge advocate. (1) 
Notwithstanding a judge advocate's status as a commissioned officer 
subject, generally, to the authority of superiors, a judge advocate 
detailed or assigned to represent an individual member or employee of 
the Department of the Navy is expected to exercise unfettered loyalty 
and professional independence during the representation consistent with 
this subpart and remains ultimately responsible for acting in the best 
interest of the individual client.
    (2) The exercise of professional judgment in accordance with 
paragraph (a)(1) of this section shall not, standing alone, be a basis 
for an adverse evaluation or other prejudicial action.
    (b) [Reserved]



Sec. 776.56  Unauthorized practice of law.

    (a) Unauthorized practice of law. (1) A judge advocate shall not:
    (i) Except as authorized by an appropriate military department, 
practice law in a jurisdiction where doing so is prohibited by the 
regulations of the legal profession in that jurisdiction; or
    (ii) Assist a person who is not a member of the bar in the 
performance of activity that constitutes the unauthorized practice of 
law.
    (2) [Reserved]
    (b) [Reserved]



Secs. 776.57-776.65  [Reserved]



Sec. 776.66  Bar admission and disciplinary matters.

    (a) Bar admission and disciplinary matters. (1) A judge advocate in 
connection with a bar admission application, application for appointment 
or for active duty as a judge advocate, certification by the Judge 
Advocate General, or a disciplinary matter, shall not:
    (i) Knowingly make a false statement of fact; or
    (ii) Fail to disclose a fact necessary to correct a misapprehension 
known by the person to have arisen in the matter, or knowingly fail to 
respond to a lawful demand for information from an admissions or 
disciplinary authority, except that this section does not require 
disclosure of information otherwise protected by Sec. 776.25.
    (2) [Reserved]
    (b) [Reserved]



Sec. 776.67  Judicial and legal officials.

    A judge advocate shall not make a statement that the judge advocate 
knows to be false or with reckless disregard as to its truth or falsity 
concerning the qualifications or integrity of a judge, investigating 
officer, hearing officer, adjudicatory officer, or public legal officer, 
or of a candidate for election or appointment to judicial or legal 
office.

[[Page 525]]



Sec. 776.68  Reporting professional misconduct.

    (a) Reporting professional misconduct. (1) A judge advocate having 
knowledge that another judge advocate has committed a violation of this 
subpart that raises a substantial question as to that judge advocate's 
honesty, trustworthiness, or fitness as a judge advocate in other 
respects, shall report such a violation pursuant to regulations 
promulgated by the Judge Advocate General.
    (2) A judge advocate having knowledge that a judge has committed a 
violation of applicable rules of judicial conduct that raises a 
substantial question as to the judge's fitness for office shall report 
such a violation pursuant to regulations promulgated by the Judge 
Advocate General.
    (3) This section does not require disclosure of information 
otherwise protected by Sec. 776.25.
    (b) [Reserved]



Sec. 776.69  Misconduct.

    (a) Misconduct. (1) It is professional misconduct for a judge 
advocate to:
    (i) Violate or attempt to violate this subpart, knowingly assist or 
induce another to do so, or do so through the acts of another;
    (ii) Commit a criminal act that reflects adversely on the judge 
advocate's honesty, trustworthiness, or fitness as a judge advocate in 
other respects;
    (iii) Engage in conduct involving dishonesty, fraud, deceit, or 
misrepresentation;
    (iv) Engage in conduct that is prejudicial to the administration of 
justice;
    (v) State or imply an ability to influence improperly a government 
agency or official; or
    (vi) Knowingly assist a judge or judicial officer in conduct that is 
a violation of applicable rules of judicial conduct or other law.
    (2) [Reserved]
    (b) [Reserved]



Sec. 776.70  Jurisdiction.

    Judge advocates shall be governed by this part.



Secs. 776.71-776.75  [Reserved]



               Subpart C--Complaint Processing Procedures



Sec. 776.76  Policy.

    (a) It is JAG's policy to expeditiously and fairly investigate and 
resolve all allegations of professional impropriety lodged against 
attorneys under JAG supervision. (As used hereinafter, the term ``judge 
advocates'' refers to all attorneys under JAG supervision.)
    (b) JAG approval will be obtained through the Rules Counsel before 
conducting any formal investigation or preliminary inquiry into an 
alleged violation of subpart B or the Code of Judicial Conduct. The 
preliminary inquiry and subsequent investigation will be conducted 
according to the procedures set forth in this part.



Sec. 776.77  Related investigations and actions.

    Acts or omissions may constitute professional misconduct, criminal 
misconduct, or poor performance of duty. Care must be taken to 
distinguish among the different aspects of a judge advocate's conduct to 
determine who may take official action.
    (a) Legal ethics and questions involving the professional misconduct 
of judge advocates are within the exclusive province of JAG. Ethical or 
professional misconduct will not be attributed to any judge advocate in 
any official record without a final JAG determination, made under this 
part, that such misconduct has occurred.
    (b) Poor performance is properly addressed by the judge advocate's 
reporting senior through a variety of administrative actions, including 
fitness reports. Criminal misconduct is properly addressed by the judge 
advocate's commander through disciplinary action under the UCMJ or 
through referral to appropriate civil authority.
    (c) Prior JAG approval is not required to investigate allegations of 
criminal conduct or poor performance of duty involving judge advocates.
    (d) When, however, investigations into criminal conduct or poor 
performance reveal conduct that constitutes a violation of this part, or 
of the Code of Judicial Conduct in the case of judges,

[[Page 526]]

such conduct shall be reported to the Rules Counsel immediately.
    (e) Inquiries into professional misconduct allegations will normally 
be held in abeyance until related criminal investigations are completed.



Sec. 776.78  Informal complaints.

    Informal, anonymous, or ``hot line'' type complaints alleging 
professional misconduct must be referred to appropriate authority (such 
as the JAG Inspector General or the concerned commander) for appropriate 
inquiry. Such complaints are not, by themselves, cognizable under this 
part but may, if reasonably confirmed upon appropriate inquiry, be the 
basis of a formal complaint described in Sec. 776.79.



Sec. 776.79  The complaint.

    The complaint shall--
    (a) Be in writing and signed by the complainant;
    (b) State that the complainant has personal knowledge, or has 
otherwise received reliable information indicating, that:
    (1) The judge advocate concerned is, or has been, engaged in 
misconduct that demonstrates a lack of integrity or a failure to meet 
the ethical standards of the profession, or both; or
    (2) The judge advocate concerned is ethically, professionally, or 
morally unqualified to perform his or her duties; and
    (c) Contain a complete, factual statement of the acts or omissions 
constituting the substance of the complaint, as well as a description of 
any attempted resolution with the attorney concerned. Supporting 
statements, if any, should be attached to the complaint.



Sec. 776.80  Initial screening and Rules Counsel.

    (a) The complaint shall be forwarded to the Judge Advocate General 
(Administrative Law Division) with a copy to the judge advocate 
concerned. The complaint shall be logged and then forwarded to the Rules 
Counsel.
    (1) In cases involving Marine Corps judge advocates, the Director, 
Judge Advocate Division shall act as Rules Counsel.
    (2) In all other cases, the Assistant Judge Advocate General (Civil 
Law) shall act as Rules Counsel.
    (b) The Rules Counsel shall review the complaint to determine 
whether, if true,--
    (1) It alleges ineffective assistance of counsel, or other 
violations of subpart B of this part, as a matter of defense in a court-
martial, administrative board, or nonjudicial punishment proceeding and, 
if so, the Rules Counsel shall forward it to the proper appellate 
authority for appropriate action and return;
    (2) In other cases, it establishes probable cause to believe that a 
violation of subpart B of this part or of the Code of Judicial Conduct 
has occurred.
    (c) The Rules Counsel shall close the file without further action if 
the complaint does not establish probable cause to believe that a 
violation has occurred. The Rules Counsel shall notify the judge 
advocate concerned that the file has been closed.



Sec. 776.81  Charges.

    (a) If the Rules Counsel determines that probable cause is 
established, he or she shall draft charges alleging violations of 
subpart B of this part or of the Code of Judicial Conduct and forward 
the charges, together with the original complaint and any allied 
papers--
    (1) In cases involving Marine Corps judge advocates not serving as 
defense counsel or attached to Navy units, to the officer exercising 
general court-martial jurisdiction (OEGCMJ) over the concerned judge 
advocate, and request, on behalf of JAG, that the OEGCMJ appoint a judge 
advocate (normally the concerned officer's supervisor) to conduct a 
preliminary inquiry into the matter;
    (2) In all other cases, to the supervisory judge advocate in the 
charged judge advocate's chain of command (or such other officer as JAG 
may designate), and direct, on behalf of JAG, the supervisory judge 
advocate to conduct a preliminary inquiry into the matter.
    (b) The Rules Counsel shall provide a copy of the charges, 
complaint, and any allied papers to the judge advocate against whom the 
complaint is made

[[Page 527]]

and notify him or her that a preliminary inquiry will be conducted.
    (c) The Rules Counsel shall also provide a copy of the charges to 
the commanding officer, or equivalent, of the judge advocate concerned 
if the complaint involves a judge advocate on active duty and the 
commanding officer is not the officer appointed to conduct the 
preliminary inquiry.
    (d) The Rules Counsel shall also forward a copy of the charges:
    (1) In cases involving Navy or Marine Corps judge advocates serving 
in Naval Legal Service Command units, to Commander, Naval Legal Service 
Command (COMNAVLEGSVCCOM);
    (2) In cases involving Navy judge advocates serving in Marine Corps 
units, or involving Marine Corps judge advocates serving in Navy units 
to the Commandant of the Marine Corps (Attn: JA);
    (3) In cases involving members of the Navy-Marine Corps trial 
judiciary, to the Trial Judiciary Chief Judge; and
    (4) To the appropriate attorney discipline section if the complaint 
involves judge advocates certified by the Judge Advocates General/Chief 
Counsel of the other uniformed services.



Sec. 776.82  Preliminary inquiry.

    (a) The purpose of the preliminary inquiry is to determine whether 
questioned conduct may constitute a violation of subpart B of this part 
or the Code of Judicial Conduct. The preliminary inquiry is not an 
``ethical investigation'' that State licensing authorities might require 
lawyers to report.
    (b) Upon receipt of the complaint and charges, the officer appointed 
to conduct the preliminary inquiry (PIO) shall promptly investigate the 
charges following generally the procedures set forth in the Manual of 
the Judge Advocate General [available from Office of the Judge Advocate 
General, Administrative Law Division, 200 Stovall Street, Alexandria, VA 
22332-2400] for the conduct of fact-finding bodies not required to 
conduct a hearing. Reports of investigation by other authorities such as 
state bar associations may be used. The PIO should also--
    (1) Identify and obtain sworn affidavits or statements from all 
relevant and material witnesses to the extent practicable;
    (2) Identify, gather, and preserve all other relevant and material 
evidence;
    (3) Provide the judge advocate concerned an opportunity to review 
all evidence, affidavits, and statements collected and a reasonable 
period of time (normally not exceeding 7 days) to submit a written 
statement or any other written material that the judge advocate wishes 
considered.
    (c) The PIO may appoint and use such assistants as may be necessary 
to conduct the preliminary inquiry.
    (d) The PIO shall personally review the results of the preliminary 
inquiry to determine whether, by a preponderance of the evidence, a 
violation of subpart B of this part or of the Code of Judicial Conduct, 
has occurred, and shall take one of the following actions:
    (1) If the PIO determines that no violation has occurred or that the 
violation is minor or technical in nature and warrants only corrective 
counseling, then he or she shall forward (via the OEGCMJ in appropriate 
Marine Corps cases) the results of the preliminary inquiry to the Rules 
Counsel together with his or her recommendation that the file be closed, 
providing copies to all parties to whom the charges were previously 
sent.
    (2) If the PIO determines by a preponderance of the evidence that a 
violation did occur, and that corrective action other than counseling 
may be warranted, he or she shall forward (via the OEGCMJ in appropriate 
Marine Corps cases) the results of the preliminary inquiry to the Rules 
Counsel together with all related materials and his or her 
recommendations. The PIO will provide copies of the materials forwarded 
to all parties to whom the charges were sent.
    (e) The Rules Counsel shall review all reports of preliminary 
inquiries forwarded pursuant to paragraph (d) of this section.
    (1) If the Rules Counsel determines that no further action is 
warranted, he or she shall close the file and notify the judge advocate 
concerned, his or her commanding officer, and all officials previously 
provided copies of the complaint. This action does not prevent command 
authority from taking

[[Page 528]]

appropriate disciplinary or administrative action.
    (2) If the Rules Counsel determines that further action is 
warranted, he or she shall--
    (i) In cases involving Marine Corps judge advocates not serving as 
defense counsel or attached to Navy units, request, on behalf of JAG, 
that the OEGCMJ appoint a disinterested judge advocate (normally senior 
to the concerned judge advocate and not previously involved in the case) 
to initiate an ethics investigation into the matter;
    (ii) In all other cases, appoint, on behalf of JAG, a disinterested 
judge advocate (normally senior to the individual whose conduct is being 
investigated and not previously involved in the case) to initiate an 
ethics investigation; and
    (iii) Notify all interested command officials.



Sec. 776.83  Ethics investigation.

    (a) Whenever an ethics investigation is initiated, the concerned 
judge advocate will be so notified in writing by the Rules Counsel.
    (b) The concerned judge advocate will also be provided written 
notice of his or her right to request a hearing before the investigating 
officer; to inspect all evidence gathered; to present written or oral 
statements or materials for consideration; to call witnesses at his or 
her own expense (local military witnesses should be made available at no 
cost); to be assisted by counsel (paragraph (c) of this section); to 
challenge the investigating officer for cause (such challenges must be 
made in writing and sent to the Rules Counsel via the challenged 
officer); and to waive any or all of these rights.
    (c) The respondent may be represented by counsel at the hearing. 
Such counsel may be--
    (1) A civilian attorney retained at no expense to the government; 
or,
    (2) In the case of a military respondent, military counsel--
    (i) Detailed by the cognizant naval legal service office, law 
center, or legal service support section; or
    (ii) Requested by the respondent, if such counsel is attached to the 
cognizant naval legal service office, legal service support section, law 
center, or to a Navy or Marine Corps activity located within 100 miles 
of the hearing site at the time of the scheduled hearing, and if such 
counsel is reasonably available as determined by the requested counsel's 
reporting senior in his or her sole discretion. There is no right to 
detailed counsel if requested counsel is unavailable.
    (d) If a hearing is requested, the investigating officer will 
conduct it after reasonable notice to the judge advocate concerned. The 
hearing will not be unreasonably delayed. The hearing is not adversarial 
in nature and there is no right to subpoena witnesses. Rules of evidence 
do not apply. The concerned judge advocate or his or her counsel may 
question witnesses that may appear. The proceedings shall be recorded 
but no transcript of the hearing need be made. Evidence gathered during, 
or subsequent to, the preliminary inquiry and such additional evidence 
as may be offered by the concerned judge advocate shall be considered.
    (e) After completing the hearing, the investigating officer shall 
prepare a summary of the evidence and forward it together with his or 
her recommendations to the Rules Counsel via--
    (1) In cases involving Navy or Marine Corps judge advocates serving 
with Naval Legal Service Command units, Commander, Naval Legal Service 
Command;
    (2) In cases involving Navy judge advocates serving with Marine 
Corps units, the Commandant of the Marine Corps (Attn: JA);
    (3) In cases involving Navy or Marine Corps judge advocates serving 
in subordinate Navy fleet or staff billets, the fleet or staff judge 
advocate attached to the appropriate second-echelon commander;
    (4) In cases involving members of the Navy-Marine Corps Trial 
Judiciary, the Trial Judiciary Chief Judge;
    (5) In cases involving Marine Corps judge advocates serving in 
defense billets, via the Marine Corps defense service chain of command;
    (6) In cases involving Marine Corps judge advocates not serving in 
defense counsel billets or in Navy units, via the

[[Page 529]]

OEGCMJ over the concerned judge advocate; and
    (7) The appropriate attorney discipline section if the complaint 
involves judge advocates certified by the Judge Advocates General/Chief 
Counsel of the other uniformed services.
    (f) A copy of the report shall be provided to the concerned judge 
advocate and to all authorities previously provided copies of the 
charges who are not via addressees.
    (g) The Rules Counsel shall review the report and either forward it 
to JAG together with his or her recommendations or return it, via the 
appropriate chain, to the investigating officer for further inquiry into 
specified areas.



Sec. 776.84  Action by JAG.

    (a) JAG is not bound by the Rules Counsel's or investigating 
officer's recommendations, but will base his action on the record as a 
whole.
    (b) JAG may, but is not required to, refer any case to the 
Professional Responsibility Committee for an advisory opinion on 
interpretation of the rules in subpart B of this part or their 
application to the facts of a particular case.
    (c) Upon receipt of the investigation, and any requested advisory 
opinion, JAG will take such action, as JAG considers appropriate in 
JAG's sole discretion. JAG may, for example--
    (1) Return the report for further inquiry into specified areas;
    (2) If JAG considers the allegations to be unfounded, or that no 
further action is warranted, JAG will direct the Rules Counsel to make 
the appropriate file entries and to notify all interested parties 
accordingly;
    (3) If JAG considers the allegations to be supported by clear and 
convincing evidence, JAG may take appropriate corrective action 
including, but not limited to:
    (i) Limiting the concerned judge advocate to practice under direct 
supervision of a superior judge advocate;
    (ii) Limiting the concerned judge advocate to practicing in certain 
areas or forbidding him or her from practicing in certain areas;
    (iii) Suspending or revoking the concerned judge advocate's 
authority to provide legal assistance;
    (iv) If JAG finds that the misconduct so adversely affects the judge 
advocate's continuing ability to practice law in the naval service that 
certification under article 27(b), UCMJ, 10 U.S.C. 827(b), should be 
suspended, JAG may direct such certification to be suspended for a 
prescribed period;
    (v) If JAG finds that the misconduct so prejudices the reputation of 
the judge advocate community, the administration of military justice, 
the practice of law under the cognizance of JAG, or the armed services 
as a whole, that certification under article 27(b), UCMJ, 10 U.S.C. 
827(b), is no longer appropriate, JAG may direct such certification to 
be removed; or
    (vi) In the case of a judge, if JAG finds that the misconduct so 
prejudices the reputation of military trial and appellate judges that 
certification under article 26(b), UCMJ, 10 U.S.C. 826(b), is no longer 
appropriate, direct such certification to be removed; and
    (vii) Direct the Rules Counsel to contact appropriate authorities 
such as the Chief of Naval Personnel or the Commandant of the Marine 
Corps so that pertinent entries in appropriate DON records may be made; 
to make entries in and to close the file; to notify the individual 
concerned as well as any officials previously provided copies of the 
complaint; and notify appropriate tribunals and authorities of any 
action taken to suspend, decertify, or limit the practice of an attorney 
as counsel before courts-martial or the Navy-Marine Corps Court of 
Military Review, administrative boards, or as a legal assistance 
attorney.



Sec. 776.85  Finality.

    Any action taken by JAG is final subject to any remedies afforded by 
Navy Regulations to the concerned counsel.



Sec. 776.86  Report to bar.

    Upon determination by JAG that a violation of subpart B of this part 
or the Code of Judicial Conduct has occurred, JAG may cause the Rules 
Counsel to report that fact to the licensing authorities of the attorney 
concerned. If so reported, notice to the concerned attorney shall be 
provided by the Rules Counsel.

[[Page 530]]



Secs. 776.90  [Reserved]



  Subpart D--Outside Part-Time Law Practice of Naval Service Attorneys



Sec. 776.90  Background.

    (a) A DON attorney's primary professional responsibility is to DON, 
and he or she is expected to devote the required level of time and 
effort to satisfactorily accomplish assigned duties. In addition to the 
obligations of an attorney engaged in the outside practice of law to 
comply with local bar rules governing professional responsibility and 
conduct, DON attorneys remain bound by subpart B of this part.
    (b) Outside employment of DON personnel, both military and civilian, 
is limited by Executive Order 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 
306, and Secretary of the Navy Instruction 5370.2J, Standards of Conduct 
[available on request from the Office of the Judge Advocate General, 
Administrative Law Division, 200 Stovall Street, Alexandria, VA 22332-
2400]. Additionally, section 0710 of the Manual of the Judge Advocate 
General prohibits active duty judge advocates and civilian attorneys 
under the supervision of JAG from accepting or receiving, directly or 
indirectly, any fee or compensation of any nature for legal services 
rendered to those persons eligible for legal assistance under article 
0706 of the Manual of the Judge Advocate General, whether or not the 
service is rendered during duty hours, or is part of official duties.
    (c) Additionally, DON officers and employees are prohibited by 18 
U.S.C. 209 from receiving pay or allowances from any source other than 
the United States for the performance of any official service or duty 
unless specifically authorized by law. Furthermore, 18 U.S.C. 203 and 
205 prohibit Federal officers and employees from personally representing 
or receiving, directly or indirectly, compensation for representing any 
other person before any Federal agency or court on matters in which the 
United States is a party or has an interest.
    (d) These limitations are particularly significant when applied to 
DON attorneys who intend to engage concurrently in a civilian law 
practice. In such a situation, the potential is high for actual or 
apparent conflict arising from the mere opportunity to obtain clients 
through contacts in the course of official business. Unique conflicts or 
adverse appearances may also develop because of a DON attorney's special 
ethical responsibilities and loyalties.



Sec. 776.91  Definition.

    Outside part-time law practice is defined as any regular provision 
of legal advice, counsel, assistance or representation, with or without 
compensation, that is not performed pursuant or incident to duties as a 
naval service attorney. Occasional uncompensated assistance rendered to 
relatives or friends is excluded from this definition. Teaching a law 
course as part of a program of education or training offered by an 
institution of higher education is not practicing law for purposes of 
this part.



Sec. 776.92  Policy.

    (a) As a general rule, JAG will not approve requests to practice law 
part-time in association with lawyers or firms which represent clients 
with interests adverse to DON.
    (b) JAG's approval of a particular request does not constitute DON 
certification of the requesting attorney's qualifications to engage in 
the proposed practice or DON endorsement of activities undertaken after 
such practice begins. Furthermore, because any outside law practice is 
necessarily beyond the scope of a DON attorney's official duties, the 
requesting attorney should consider obtaining personal malpractice 
insurance coverage.



Sec. 776.93  Action.

    (a) DON attorneys to whom this enclosure applies who contemplate 
engaging in an outside part-time law practice must first obtain approval 
from JAG. Requests should be forwarded in the form provided in Judge 
Advocate General Instruction 5803.1A [the form is available on request 
from the Administrative Law Division] to the Administrative Law 
Division, via the attorney's chain of command. Marine Corps attorneys 
will also include Commandant of the Marine Corps (JAR) as a via 
addressee.

[[Page 531]]

    (b) The requesting attorney's commanding officer may--
    (1) Disapprove and return the request if he or she perceives actual 
or apparent conflicts of interests; or
    (2) Forward the request recommending approval and providing such 
other information as may be relevant.
    (c) JAG will review the request and advise applicants in writing of 
the decision, and of any conditions and limitations under which a 
particular practice may be undertaken. Until permission is granted, 
applicants will not commence any outside law practice.



Sec. 776.94  Revalidation.

    (a) Attorneys to whom permission is given to engage in the outside 
part-time practice of law will notify JAG in writing, via their chain of 
command, within 30 days of any material change in:
    (1) The nature or scope of the outside practice described in their 
requests, including termination; or
    (2) Their DON assignment or responsibilities.
    (b) Attorneys to whom permission is given to engage in the outside 
practice of law will annually resubmit an application to continue the 
practice with current information by 1 October each year.



Sec. 776.95  Relations with non-DON civilian counsel.

    Employment of non-DON civilian counsel by an individual client 
alters no responsibilities of a DON attorney to that client.
    (a) When civilian counsel is retained by an individual client, the 
DON attorney assigned to that client shall inform civilian counsel--
    (1) Of the contents of this part;
    (2) That subpart B of this part applies to civilian counsel 
practicing before military tribunals, courts, or boards as a condition 
of such practice; and
    (3) That subpart B of this part takes precedence over other rules of 
professional conduct that might otherwise apply.
    (b) If an individual client designates civilian counsel as chief 
counsel, the detailed DON attorney must defer to civilian counsel in any 
conflict over trial tactics. If, however, counsel have ``co-counsel'' 
status, then conflict in proposed trial tactics requires the client to 
be consulted to resolve the conflict.
    (c) If civilian counsel has, in the opinion of the DON attorney, 
acted contrary to the requirements of subpart B of this part, the matter 
should first be discussed with civilian counsel. If not resolved between 
counsel, the client must be informed of the matter by the DON attorney. 
If, after being apprised of possible misconduct, the client approves of 
the questioned conduct, the judge advocate shall attempt to withdraw 
from the case in accordance with Sec. 776.35. The client shall be 
informed of such intent to withdraw prior to action by the judge 
advocate.



PARTS 777-799  [RESERVED]



[[Page 533]]


                              FINDING AIDS






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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.
  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected



[[Page 535]]



                    Table of CFR Titles and Chapters




                      (Revised as of June 29, 1998)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                          Title 2--[Reserved]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)
        II  Federal Claims Collection Standards (General 
                Accounting Office--Department of Justice) (Parts 
                100--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Advisory Committee on Federal Pay (Parts 1400--1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
       VII  Advisory Commission on Intergovernmental Relations 
                (Parts 1700--1799)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)

[[Page 536]]

      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                          Title 6--[Reserved]

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture

[[Page 537]]

         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
      XIII  Northeast Dairy Compact Commission (Parts 1300--1399)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  [Reserved]

[[Page 538]]

    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Immigration and Naturalization Service, Department of 
                Justice (Parts 1--499)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Meat and Poultry 
                Inspection, Department of Agriculture (Parts 300--
                599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
        XI  United States Enrichment Corporation (Parts 1100--
                1199)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)

[[Page 539]]

       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Thrift Depositor Protection Oversight Board (Parts 
                1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700-1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Export Administration, Department of 
                Commerce (Parts 700--799)

[[Page 540]]

      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  United States Customs Service, Department of the 
                Treasury (Parts 1--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)

[[Page 541]]

        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development, International 
                Development Cooperation Agency (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Information Agency (Parts 500--599)
        VI  United States Arms Control and Disarmament Agency 
                (Parts 600--699)
       VII  Overseas Private Investment Corporation, International 
                Development Cooperation Agency (Parts 700--799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Board for International Broadcasting (Parts 1300--
                1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

[[Page 542]]

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--deral 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs and Section 202 Direct Loan Program) 
                (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--999)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)

[[Page 543]]

        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Part 1001)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--799)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Bureau of Alcohol, Tobacco and Firearms, Department of 
                the Treasury (Parts 1--299)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--199)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)

[[Page 544]]

      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Pension and Welfare Benefits Administration, 
                Department of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
        VI  Bureau of Mines, Department of the Interior (Parts 
                600--699)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense

[[Page 545]]

       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)
      XXIX  Presidential Commission on the Assignment of Women in 
                the Armed Forces (Part 2900)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799)
        XI  National Institute for Literacy (Parts 1100-1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

[[Page 546]]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
       XIV  Assassination Records Review Board (Parts 1400-1499)

             Title 37--Patents, Trademarks, and Copyrights

         I  Patent and Trademark Office, Department of Commerce 
                (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--799)
         V  Council on Environmental Quality (Parts 1500--1599)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans 
                Employment and Training, Department of Labor 
                (Parts 61-1--61-999)

[[Page 547]]

            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Parts 303-1--303-2)
       304  Payment from a Non-Federal Source for Travel Expenses 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Health Care Financing Administration, Department of 
                Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10005)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 548]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
      XXII  Christopher Columbus Quincentenary Jubilee Commission 
                (Parts 2200--2299)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Transportation (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

[[Page 549]]

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  United States Information Agency (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)

[[Page 550]]

        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Part 
                5452)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Highway Administration, Department of 
                Transportation (Parts 300--399)
        IV  Coast Guard, Department of Transportation (Parts 400--
                499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)

[[Page 551]]

        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 553]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of June 29, 1998)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Commission on Intergovernmental          5, VII
     Relations
Advisory Committee on Federal Pay                 5, IV
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Alcohol, Tobacco and Firearms, Bureau of          27, I
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
   Compliance Board
[[Page 554]]

Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Arms Control and Disarmament Agency, United       22, VI
     States
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Assassination Records Review Board                36, XIV
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Board for International Broadcasting              22, XIII
Census Bureau                                     15, I
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee        45, XXII
     Commission
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I`
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Export Administration, Bureau of                15, VII
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office                     37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII

[[Page 555]]

  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Enrichment Corporation, United States             10, XI
Environmental Protection Agency                   5, LIV; 40, I
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                25, III, LXXVII; 48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export Administration, Bureau of                  15, VII
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII

[[Page 556]]

Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               4, II
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II; 49, III
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Pay, Advisory Committee on                5, IV
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Property Management Regulations System    41, Subtitle C
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I, II
General Services Administration                   5, LVII
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Property Management Regulations System  41, 101, 105
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
     of Certain Employees
[[Page 557]]

  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes Pilotage                              46, III
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Health Care Financing Administration            42, IV
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Health Care Financing Administration              42, IV
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Human Development Services, Office of             45, XIII
Immigration and Naturalization Service            8, I
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Information Agency, United States                 22, V
  Federal Acquisition Regulation                  48, 19
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Intergovernmental Relations, Advisory Commission  5, VII
     on
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II

[[Page 558]]

  Mines, Bureau of                                30, VI
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
  International Development, United States        22, II; 48, 7
       Agency for
  Overseas Private Investment Corporation         5, XXXIII; 22, VII
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             4, II
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration and Naturalization Service          8, I
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Pension and Welfare Benefits Administration     29, XXV
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training, Office of    41, 61; 20, IX
       the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Management and Budget, Office of                  5, III, LXXVII; 48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II

[[Page 559]]

Mines, Bureau of                                  30, VI
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National and Community Service, Corporation for   45, XII, XXV
National Council on Disability                    34, XII
National Credit Union Administration              12, VII
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Dairy Compact Commission                7, XIII
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office                       37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension and Welfare Benefits Administration       29, XXV
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
     Acquisition Regulation
[[Page 560]]

  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Commission on the Assignment of      32, XXIX
     Women in the Armed Forces
Presidential Documents                            3
Prisons, Bureau of                                28, V
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Depositor Protection Oversight Board       12, XV
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II; 49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A

[[Page 561]]

  Surface Transportation Board                    49, X
Transportation, Office of                         7, XXXIII
Temporary Duty (TDY) Travel Allowances            41, 301
Treasury Department                               5, XXI; 17, IV
  Alcohol, Tobacco and Firearms, Bureau of        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs Service, United States                  19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S., Scholarship Foundation          45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
United States Enrichment Corporation              10, XI
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training, Office of the  41, 61; 20, IX
     Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 563]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations which were 
made by documents published in the Federal Register since January 1, 
1986, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 1986, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985'', published in seven separate 
volumes.

                                  1986

32 CFR
                                                                   51 FR
                                                                    Page
Chapter VI
701.31--701.32 (Subpart C)  Added..................................42836
701.117  (n) added.................................................11019
706  Authority citation revised.......................................24
706.2  Table One amended..........................................24-25,
            5518, 28935, 28937, 28938, 29465, 29467, 30214, 32313, 35634
    Table Two amended................................29468, 33745, 41478
    Table Three amended............................................5518,
                                                                   35634
    Table Four amended............................................24-25,
                                              17183, 28938, 28940, 32314
    Table Five amended.........................................24, 3952,
   9652, 11304, 11305, 12143, 12144, 12516, 12850, 12851, 13217, 13218, 
    16175, 16680-16682, 17182, 17183, 27536, 28934-28937, 28939, 28940, 
   28941, 29465, 29466, 29468, 30493, 30494, 31103-31112, 32314, 32315, 
                                              32316, 33746, 36401, 41478
724.109  (a)(4) revised............................................44909
728  Revised.......................................................23972
732  Revised.......................................................18779
735  Added.........................................................15321
737  Removed.......................................................22282
742  Removed........................................................7013
754  Removed.......................................................19830
762  Authority citation revised....................................22283
762.4  (b) amended.................................................22283
762.6  Amended.....................................................22283
762.8  Amended.....................................................22283
762.10  Amended....................................................22283
762.34  (b) amended................................................22283
762.50  (a) amended................................................22283
762.58  (b) amended................................................22283
762.80  (a)(2) amended.............................................22283
762.84  Amended....................................................22283
762.86  Amended....................................................22283
762.90  (a) amended................................................22283
762.92  Introductory text, (g), and (h) amended....................22283
762.94  (a)(4) and (b) amended.....................................22283
762.96  (a) and (b) amended........................................22283
765  Authority citation revised...................................22283,
                                                                   45467
765.3  Removed.....................................................22936
765.4  Removed.....................................................22804
765.5  Removed.....................................................22804
765.12  Nomenclature change, (a)(1)(i), (ii), and flush text, and 
        (b)(1)(i) amended..........................................22283
765.14  Added......................................................45467
766  Authority citation revised....................................22804
766.5  (i)(1) removed; (i) (2) through (5) redesignated as (i) (1) 
        through (4)................................................22804
766.12  (b)(4) removed; (b)(5) redesignated as (b)(4)..............22804

                                  1987

32 CFR
                                                                   52 FR
                                                                    Page
Chapter VI
701.100--701.116 (Subpart F)  Revised..............................11052
701.116  (j) correctly added.......................................17295

[[Page 564]]

701.117--701.120 (Subpart G)  Revised..............................11068
701.117  (o) added..................................................5535
701.119  (g)(2) correctly added....................................17295
706.1  (a) and (b) revised..........................................4770
706.2  Table One amended.....................................4771, 5102,
                     5104, 6547, 7136, 21001, 21681, 35237, 42103, 47923
    Table Two amended...............................................4770
    Table Three amended............................................5282,
                                10748, 10749, 21002, 21681, 42104, 47923
    Table Four amended.............................................5282,
                                                      6547, 10748, 10749
    Table Five amended.............................................4287,
4288, 4771, 5103, 5765, 8584, 10375, 13238, 13665, 21002, 21680, 21681, 
           23174, 23545, 23546, 35237, 38755, 42102, 42103, 46080, 47922
706.3  Table One amended.....................................4771, 35237
728  Revised.......................................................33718
732  Revised.......................................................32297
750  Authority citation revised; footnotes removed.................25595
750.3  (d) redesignated as (e); new (d) added......................25595
750.4  (c) heading revised.........................................25596
750.7  (a) (5) through (16) and (b) revised; (a) (17) and (18) 
        added......................................................25596
750.8  (a) and (b) amended.........................................25596
750.9  Revised.....................................................25597
750.12  (b) amended................................................25597
750.13  (b) and (c) redesignated as (c) and (d); new (b) added; 
        (c)(2) amended.............................................25597
750.16  (c)(2) amended; (e) revised................................25597
750.21  (a) through (c) amended....................................25598
750.23  Revised....................................................25598
750.24  (b) (2) and (3) revised....................................25598
750.32  (e)(2) amended.............................................25598
750.52  (b) revised................................................25598
750.53  (c) amended................................................25598
751  Authority citation revised; footnotes removed.................25598
751.2  Revised.....................................................25598
751.3  (i)(3)(iii) amended.........................................25599
751.4  (u) added...................................................25599
751.21  (f)(1)(ii) amended.........................................25599
751.22  (b) and (d) amended........................................25599
751.23  Introductory text amended..................................25599
751.24  (a)(1) introductory text, (v), (vi), (2), (3)(i), (5) and 
        (6), (b) and (d) revised; (e) amended......................25599
751.25  (b) revised................................................25600
751.28  Revised....................................................25600
751.30  (a) through (d) and (e)(4) revised; (e) introductory text 
        amended....................................................25600
757  Authority citation revised....................................25600
    Footnotes removed..............................................25601
757.2  (b)(2) and (c) revised......................................25601
757.3  (a) amended; (b), (c), (d), and (f)(3) revised..............25601
757.8  Amended.....................................................25601
757.13  Introductory text and (d) revised; (f) removed.............25601
757.15  (a) (1) through (4) revised................................25601
757.16  (c) amended; (d) added.....................................25601
763.4  (a) and (b) amended.........................................20074
763.5  (a) introductory text, (1), and (2), (b), and (c) amended 
                                                                   20074
    (d) added......................................................45455
770.31  (c) (1) and (2) amended....................................20074

                                  1988

32 CFR
                                                                   53 FR
                                                                    Page
Chapter VI
701  Authority citation revised....................................52139
701.1--701.11 (Subpart A)  Revised.................................52139
701.21--701.24 (Subpart B)  Revised................................52149
701.31--701.32 (Subpart C)  Revised................................52152
701.40--701.48 (Subpart D)  Revised................................52154
706.2  Table One amended...........................................12515
    Table Two amended..............................................49319
    Table Three amended....................................12515, 25488,
                                                            49319, 51098
    Table Four amended......................................12516, 51098
    Table Five amended......................................12516, 16874
                                       25488, 30427, 40880, 45270, 49320
706.3  Table One amended...........................................12516

[[Page 565]]

                                  1989

32 CFR
                                                                   54 FR
                                                                    Page
Chapter VI
701.119  (b)(7) added...............................................8322
706.2  Table One amended.....................................1167, 12444
    Table One and Table Three amended..............................7190,
                                                            13682, 37325
    Table Two amended..............................................37324
    Table Two and Table Five amended...............................30207
    Table Three amended............................................12444
    Table Four amended..............................................1168
    Table Four and Table Five amended..............................31826
    Table Five amended.............................................18652
                                                     30375, 34977, 37325
725  Added; interim................................................26189
    Revised........................................................48861

                                  1990

32 CFR
                                                                   55 FR
                                                                    Page
Chapter VI
701.9  (e) revised; interim........................................12638
701.119  (a) removed; (m) heading revised..........................35140
706.2  Table One amended...........................................1418,
                                                            27817, 29199
    Table Two amended.......................................27817, 27819
    Table Three amended.............................................153,
                                                             1418, 27817
    Table Four amended..............................................153,
                                                      1418, 27817, 38687
    Table Five amended.............................................1418,
            6392, 14416, 27817, 27818, 27819, 29200, 35314, 38687, 48596
706.3  Table One amended............................................1419
    Table One revised..............................................27818
720.40--720.47 (Subpart D)  Added..................................47876
752  Authority citation revised....................................12173
    Note removed...................................................12173
752.2  (a) and (b) revised.........................................12173
752.3  (a) and (c) revised.........................................12173
752.4  (a) and (c) revised.........................................12174
752.5  (b) revised.................................................12174
775  Revised.......................................................33899
775.6  (c) correctly revised.......................................39960

                                  1991

32 CFR
                                                                   56 FR
                                                                    Page
Chapter VI
701.1--701.11 (Subpart A)  Revised.................................66574
701.21--701.31 (Subpart B)  Revised................................66586
701.31--701.32 (Subpart C)  Revised................................66590
701.40--701.53 (Subpart D)  Revised................................66592
701.117--701.120 (Subpart G)  Authority citation revised...........59217
701.119  (k)(2) added...............................................6986
    Heading and (b) heading revised; (b)(2) removed................59217
706.2  Table One amended...........................................7566,
                                                                   23021
    Table Three amended............................................7566,
                                                            23021, 37285
    Table Four amended.............................................37285
    Table Five amended............................................12847,
                                                            47152, 47153
719  Authority citation revised....................................57803
719.112  Revised...................................................57803
726  Revised.......................................................55088
755  Revised.......................................................42232

                                  1992

32 CFR
                                                                   57 FR
                                                                    Page
Chapter VI
701.119  (b)(5) removed.............................................2682
    (i) introductory text revised; (i)(1) amended..................37100
    (b)(4) and (5) removed; (b)(6) and (7) redesignated as (b)(4) 
and (5); (e)(2) added..............................................40609
    (h)(1) amended.................................................57962
706.2  Table One amended...........................................4855,
                                        4938, 11266, 59924, 59926, 59927
    Table Two amended........................................4854, 14356
    Table Three amended............................................4855,
             4938, 5857, 11266, 14357, 23062, 24548, 59925, 59926, 59927
    Table Four amended.............................................5858,
                                       14357, 23062, 24548, 31451, 31452
    Table Five amended.............................................4855,
            5857, 14356, 28463, 31452, 35464, 35465, 41698, 46299, 59925
720.1--720.13 (Subpart A)  Revised..................................5228
720.20--720.25 (Subpart B)  Revised.................................5232

[[Page 566]]

725  Revised; interim...............................................2463
750  Revised........................................................4722
751  Revised........................................................5055
756  Revised........................................................4736
757  Revised........................................................5072

                                  1993

32 CFR
                                                                   58 FR
                                                                    Page
Chapter VI
706.2  Table One amended..........................................25945,
                                                     44133, 61808, 61810
    Table Two amended...............................................4335
    Table Three amended............................................8694,
                  25945, 44133, 44134, 44456, 60383, 60384, 61808, 61810
    Table Four amended.............................................4334,
                                        8695, 25946, 50259, 50260, 51241
    Table Five amended.............................................4334,
   4335, 11192, 25946, 28503, 28504, 36868, 50260, 51241, 58102, 58103, 
                                                            61809, 64678
725  Regulation at 57 FR 2463 confirmed............................53883

                                  1994

32 CFR
                                                                   59 FR
                                                                    Page
Chapter VI
701  Nomenclature change...........................................29721
701.3  (i) removed.................................................29721
701.5  (b), (e)(2)(i) and (iii)(B) amended.........................29721
701.8  (k) removed; (l) through (p) redesignated as (k) through 
        (o); (b) and new (k) revised...............................29721
701.9  (j)(2) amended..............................................29722
701.10  (c)(1), (2)(ii)(H) and (d)(2) amended; (c)(2)(ii)(I) added
                                                                   29722
701.25  (b) through (j) revised; (k) through (s) added.............29722
701.31  (d)(2), (f), (h)(1), (i)(5), (j)(1), (k)(1), (2) and (3) 
        amended; (g)(1), (3) and (m)(5) revised....................29722
    (k)(4), (l), (m)(1), (3), (4), (n) and (q) amended.............29723
701.51  (b) and (c) amended........................................29723
701.61--701.67 (Subpart E)  Revised................................46760
701.100--701.115 (Subpart F)  Revised..............................55348
701.116--701.119 (Subpart G)  Revised..............................55363
701.119  (f) introductory text revised..............................9928
706.2  Tables Four and Five amended....7217, 35033, 35850, 52910, 59162, 
                                                                   59163
    Table Three amended.....................................22756, 27240
    Table Five amended...............................27239, 32334, 32335
    Tables Two and Five amended....................................38366
    Table Two amended.......................................52909, 59162
    Tables One and Three amended...................................52911
    Tables Three and Four amended..................................53098
776  Added.........................................................45214

                                  1995

32 CFR
                                                                   60 FR
                                                                    Page
Chapter VI
706.2  Tables Four and Five amended....3346, 22509, 22511, 27027, 50101, 
                                                            57933, 58236
    Tables One and Two amended.....................................22505
    Tables Two, Three, Four and Five amended.......................22506
    Table Four amended...22507, 22508, 27025, 54198, 56121, 57932, 65569
    Tables Two and Five amended......................22510, 27026, 52860
    Tables One and Three amended............................22512, 53273
    Table Four corrected...........................................31351
    Table Three and Four amended...................................50102
    Table Five amended.................54199, 56237, 57934, 65570, 67059
706.3  Table One amended...........................................22506

                                  1996

32 CFR
                                                                   61 FR
                                                                    Page
Chapter VI
701.113  (d) and (g)(1) amended.....................................2917
701.117  Amended....................................................2917
701.118  (a), (m) and (p) amended...................................2917
701.119  (b) amended................................................2917
706.2  Tables One and Three amended...........................9105, 9106
    Table Two amended........................................9107, 52880

[[Page 567]]

    Table Four amended...........9108, 14966, 36292, 48070, 52882, 60027
    Table Five amended................................9905, 14969, 67727
    Tables One and Five amended....................................14967
    Tables Three and Five amended..................................14968
    Tables Four and Five amended.....................14970, 46378, 58009
    Table Three amended............................................35959
    Table Five corrected...........................................36497

                                  1997

32 CFR
                                                                   62 FR
                                                                    Page
Chapter VI
701.118  (h) removed; (i), (n) heading and introductory text 
        revised....................................................15615
    (r) introductory text revised..................................61914
706.2  Table Five amended......11325, 19673, 19935, 26743, 26744, 33359, 
                                                            37719, 40450
    Tables Two and Five amended....................................11326
    Tables One, Four and Five amended..............................18273
    Tables Four and Five amended............................18274, 47945
    Table Four amended.............................................23659
723  Revised........................................................8166

                                  1998

   (Regulations published from January 1, 1998, through July 1, 1998)

32 CFR
                                                                   63 FR
                                                                    Page
Chapter VI
701.118  (m) heading revised.......................................25773
706.2  Tables Two and Five amended...........................9743, 31357
    Tables One and Four amended.....................................9744
    Table Five amended................................9745, 19656, 29613
    Tables Four and Five amended............................13341, 24748
    Table Four amended.............................................24747
    Table Two amended..............................................34811
721  Removed........................................................3860
    Technical correction............................................4694
722  Removed........................................................3860
    Technical correction............................................4694