[Title 32 CFR I]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Chapter V - DEPARTMENT OF THE ARMY]
[Subchapter A - AID OF CIVIL AUTHORITIES AND PUBLIC RELATIONS]
[Part 516 - LITIGATION]
[Subpart I - Cooperation With the Office of Special Counsel]
[From the U.S. Government Printing Office]


32NATIONAL DEFENSE32002-07-012002-07-01falseISubpart INATIONAL DEFENSEDEPARTMENT OF THE ARMYAID OF CIVIL AUTHORITIES AND PUBLIC RELATIONSLITIGATION
        Subpart I--Cooperation With the Office of Special Counsel



Sec. 516.69  Introduction.

    This subpart prescribes procedures for cooperation with the Office 
of Special Counsel (OSC) when OSC is investigating alleged prohibited 
personnel practices or other allegations of improper or illegal conduct 
within DA activities.



Sec. 516.70  Policy.

    (a) DA policy follows:
    (1) Civilian personnel actions taken by management officials, 
civilian and military, will conform to laws and regulations implementing 
established merit system principles and will be free of any prohibited 
personnel practices.
    (2) Management officials will take vigorous corrective action when 
prohibited personnel practices occur. Disciplinary measures under AR 
690-700, Chapter 751, may be initiated after consultation and 
coordination with appropriate civilian personnel office and labor 
counselor.
    (b) DA activities will cooperate with OSC in the following ways:
    (1) Promoting merit system principles in civilian employment 
programs within DA.
    (2) Investigating and reporting allegations of improper or illegal 
conduct forwarded to the activity by HQDA.
    (3) Facilitating orderly investigations by the OSC of alleged 
prohibited personnel practices and other matters assigned for 
investigation to the OSC, such as violations of the Whistleblower 
Protection Act of 1989, the Freedom of Information Act, or the Hatch 
Act.

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Sec. 516.71  Duties.

    (a) DA General Counsel. The DA General Counsel is responsible for 
the following:
    (1) Provide overall guidance on all issues concerning cooperation 
with OSC, including the investigation of alleged prohibited personnel 
practices and allegations of improper or illegal conduct.
    (2) Review for adequacy and legal sufficiency each OSC report of 
investigation that must be personally reviewed by the Secretary of the 
Army.
    (3) Ensure compliance with the Civil Service Reform Act of 1978 by 
obtaining a suitable investigation of allegations of improper or illegal 
conduct received from OSC. This includes compliance with time limits for 
reporting results of the investigation and personal review of the report 
by the Secretary of the Army when required.
    (4) Forward to the DOD Inspector General (DODIG) copies of each 
allegation of improper or illegal conduct referred to DA by OSC.
    (5) Delegate to The Judge Advocate General the authority to act on 
behalf of the DA General Counsel in all OSC investigations of prohibited 
personnel practices.
    (6) Act upon requests for counsel from ``accused'' or ``suspected'' 
employees.
    (b) Chief, Labor and Employment Law Office. The Chief, Labor and 
Employment Law Office, OTJAG (DAJA-LE) is responsible for the following:
    (1) Act for TJAG as the Senior Management Official in cooperating 
with OSC. As Senior Management Official, the Chief, DAJA-LE, through 
TJAG, will be responsible to the DA General Counsel for administration 
of the policies and procedures contained in this chapter.
    (2) Promptly inform the DA General Counsel of any OSC investigation 
and consult with the DA General Counsel on any legal or policy issue 
arising from an OSC investigation.
    (3) Serve as the HQDA point of contact in providing assistance to 
OSC.
    (4) Act as DA attorney-of-record in administrative matters initiated 
by OSC before the MSPB which arise from an OSC investigation. As DA 
attorney-of-record, the Chief, DAJA-LE, will file necessary pleadings 
and make necessary appearances before the MSPB to represent DA 
interests.
    (5) Monitor ongoing OSC investigations within DA.
    (6) Ensure that appropriate DA personnel are fully apprised of their 
rights, duties and the nature and basis for an OSC investigation.
    (7) Review and prepare recommendations to the General Counsel 
concerning any OSC recommended corrective action referred to DA. Such 
review and recommendations will address whether disciplinary action 
should be taken against DA civilian employees or military members, and 
whether the information warrants referral to appropriate authorities for 
corrective and disciplinary action.
    (8) Seek OSC approval of DA proposed disciplinary action against an 
employee for an alleged prohibited personnel practice or other 
misconduct which is the subject of or related to any OSC investigation.
    (9) Review and prepare recommendations for DA General Counsel 
concerning requests for counsel, to include identifying available DA 
attorneys to act as individual representatives. Upon approval of DA 
General Counsel, appoint DA civilian and military attorneys, to include 
attorneys from the U.S. Army Materiel Command and the Corps of 
Engineers, to represent individual military members or employees.
    (10) Determine, to the extent practicable, whether an investigation 
is being or has been conducted which duplicates, in whole or in part, a 
proposed or incomplete OSC investigation, and convey that information to 
the OSC whenever it might avoid redundant investigative efforts.
    (11) Provide guidance and assistance to activity Labor Counselors in 
fulfilling their duties as Liaison Officers.
    (c) Activity Labor Counselor. The activity Labor Counselor will do 
the following:
    (1) Act as Liaison Officer for OSC investigations arising within the 
command, activity or installation serviced by the Labor Counselor's 
client Employment Office.
    (2) Promptly inform the MACOM labor counselor and the Chief, DAJA-

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LE, of any OSC inquiry or investigation.
    (3) Act as the legal representative of the command, activity, or 
installation.
    (4) Assist the OSC investigator with administrative matters related 
to the investigation, such as requests for witnesses and documents.
    (5) Process all OSC requests for documents.
    (6) Make appropriate arrangements for OSC requests to interview 
civilian employees and military members.
    (7) Ensure that personnel involved are advised of the nature and 
basis for an OSC investigation, the authority of the OSC, and their 
rights and duties.
    (8) Consult with the Chief, DAJA-LE, on policy and legal issues 
arising from the OSC investigation.
    (9) Keep the Chief, DAJA-LE, informed of the status of the OSC 
investigation.
    (l0) Act as agency representative before the MSPB in actions 
initiated by employees (individual right of action appeals).



Sec. 516.72  Procedures.

    (a) Witnesses and counsel for consultation.
    (1) DA military and civilian managers, supervisors, and employees 
who are requested by OSC for an interview will be made available in 
accordance with arrangements the Labor Counselor will establish. 
Requests for the testimony of IGs will be coordinated with the Inspector 
General Legal Office, SAIG-ZXL, DSN 227-9734 or Commercial (703) 697-
9734.
    (2) The Labor Counselor will ensure that witnesses are aware of 
their obligation to answer OSC questions, their potential to be 
considered ``suspects'' in OSC investigations, and their right to the 
assistance of counsel during interviews with OSC representatives. If the 
requested witness is not an ``accused'' or ``suspected'' individual and 
the witness asks for assistance of counsel, a DA attorney will be made 
available for the limited purpose of consultation regarding the witness' 
rights and obligations. An attorney-client relationship will not be 
established. (See appendix F to this part).
    (3) The Labor Counselor will arrange for individual counsel for 
consultation from local assets. If local assets are not sufficient, 
assistance may be requested from other DOD activities in the area or 
from HQDA, DAJA-LE. DA attorneys tasked to consult with one or more 
witnesses individually will not be tasked to represent the DA activity 
concerned.
    (4) The Labor Counselor, as the legal representative of the 
activity, is precluded from assisting or representing individual 
witnesses during OSC interviews.
    (b) ``Accused'' or ``suspected'' DA personnel and counsel for 
representation.
    (1) If the OSC identifies a DA civilian employee or a military 
member as an ``accused'' or ``suspected'' individual, or if the Labor 
Counselor concludes that an individual is a ``suspect,'' the Labor 
Counselor will inform the individual. The Labor Counselor also will 
advise the individual of the availability of counsel for representation 
upon approval by DA General Counsel. (See Glossary, Counsel for 
Representation).
    (2) If the ``suspected'' individual desires legal representation by 
DA, the individual must request counsel by submitting a written request 
through DAJA-LE to DA General Counsel. (See figure I-1, appendix G, to 
this part).
    (3) During the investigation but prior to DA General Counsel 
approval of the request for counsel, an ``accused'' or ``suspected'' 
individual will be provided the assistance of counsel for consultation 
in the same manner as any other OSC requested witness. ``Accused'' or 
``suspected'' individuals who do not request counsel for representation 
will be provided counsel for consultation in the same manner as any 
other OSC requested witness.
    (4) If the DA General Counsel approves the request for counsel, the 
Chief, DAJA-LE, will appoint a DA attorney to represent the individual. 
This appointment may be made telephonically but will be confirmed in 
writing. The Chief, DAJA-LE, will make appropriate coordination with 
MACOM SJAs and command counsel to confirm availability of the attorney.
    (5) An attorney appointed by DA may represent a civilian employee in 
any proceeding initiated by OSC before the MSPB. However, counsel 
provided by

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DA may not represent the employee in any proceeding initiated by DA, in 
any appeal from a final decision by the MSPB, or in any collateral 
proceeding before any forum other than the MSPB.
    (6) OSC may not bring a disciplinary action before the MSPB against 
a military member. Accordingly, DA counsel will not be required to 
represent the military member in any MSPB disciplinary proceeding. 
However, counsel may represent the member during the OSC investigation 
with the understanding that the evidence obtained by OSC may be referred 
to the member's command for possible disciplinary action under the UCMJ 
or appropriate regulations. If DA initiates action against the military 
member for misconduct disclosed in the OSC investigation, the member 
will obtain counsel as provided under the UCMJ or relevant regulations.
    (c) Records.
    (1) OSC requests for records must be in writing. The Labor Counselor 
will assist OSC representatives in identifying the custodian of specific 
records sought during the inquiry.
    (2) Generally, requested records should be furnished to OSC 
representatives if such records would be released under AR 25-55 or AR 
340-21 to other government agencies in the normal course of official 
business. Records constituting attorney work product should not be 
released without approval of the Chief, DAJA-LE. IG records will not be 
released without the approval of the Inspector General. (AR 20-1). The 
Labor Counselor should seek guidance from the Chief, DAJA-LE, if there 
is any doubt concerning the release of records.
    (3) If, after completion of the OSC investigation, the OSC files a 
complaint against DA or a DA employee, release of records and other 
information will be accomplished pursuant to MSPB rules of discovery (5 
CFR part 1201, subpart B).
    (d) Funding. The command, activity, or installation within which the 
allegations of misconduct arose will provide funding for travel, per 
diem and other necessary expenses related to the OSC investigation. 
These expenses may include appropriate funding for witnesses, counsel 
for consultation and DA General Counsel approved counsel for 
representation.



Sec. 516.73  Assistance from HQDA.

    Labor Counselors may seek guidance on questions arising from 
implementation of this chapter by calling the Chief, DAJA-LE, DSN 225-
9476/9481 or Commercial (703) 695-9476/9481.