DELIVERY OF PERSONNEL; SERVICE OF PROCESS AND SUBPOENAS; PRODUCTION OF OFFICIAL RECORDS

[Title 32 CFR 720]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle A - Department of Defense (Continued)]
[Chapter Vi - DEPARTMENT OF THE NAVY]
[Subchapter C - PERSONNEL]
[Part 720 - DELIVERY OF PERSONNEL; SERVICE OF PROCESS AND SUBPOENAS; PRODUCTION OF OFFICIAL RECORDS]
[From the U.S. Government Printing Office]

32NATIONAL DEFENSE52002-07-012002-07-01falseDELIVERY OF PERSONNEL; SERVICE OF PROCESS AND SUBPOENAS; PRODUCTION OF OFFICIAL RECORDS720PART 720NATIONAL DEFENSEDepartment of Defense (Continued)DEPARTMENT OF THE NAVYPERSONNEL
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 the 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 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

[[Page 207]]

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.
(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.

[[Page 208]]

(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 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

[[Page 209]]

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 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).
---------------------------------------------------------------------------

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

[[Page 210]]

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 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,

[[Page 211]]

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 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

[[Page 212]]

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.
(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

[[Page 213]]

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.
(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

[[Page 214]]

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 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

[[Page 215]]

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

\3\ See footnote 1 of Sec. 720.5(b).
---------------------------------------------------------------------------

(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 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.

[[Page 216]]

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.

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

[[Page 217]]

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 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

[[Page 218]]

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 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

[[Page 219]]

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 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

[[Page 220]]

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
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.

[[Page 221]]

(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, 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

[[Page 222]]

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 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

[[Page 223]]

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]