[Title 32 CFR C]
[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]
[From the U.S. Government Printing Office]
32NATIONAL DEFENSE52002-07-012002-07-01falsePERSONNELCSUBCHAPTER CNATIONAL DEFENSEDepartment of Defense (Continued)DEPARTMENT OF THE NAVY
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.
[[Page 185]]
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 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,
[[Page 186]]
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 (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
[[Page 187]]
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 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
[[Page 188]]
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 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
[[Page 189]]
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 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;
[[Page 190]]
(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.
(2) [Reserved]
[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 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,
[[Page 191]]
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 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
[[Page 192]]
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 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]
[[Page 193]]
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 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
[[Page 194]]
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:
(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.
[[Page 195]]
(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 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
[[Page 196]]
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 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
[[Page 197]]
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 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
[[Page 198]]
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 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
[[Page 199]]
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 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.
[[Page 200]]
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.
(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:
[[Page 201]]
(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.
(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
[[Page 202]]
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, 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.
[[Page 203]]
(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;
(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.);
[[Page 204]]
(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 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
[[Page 205]]
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 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]
[[Page 206]]
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.
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\1\ Copies may be obtained if needed, from the Commanding Officer,
Naval Publication and Forms Center, 5801 Tabor Avenue, Philadelphia, PA
19120.
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(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\
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\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
[[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\
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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 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]
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.
(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
[[Page 224]]
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 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
[[Page 225]]
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 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/
[[Page 226]]
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.
(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,
[[Page 227]]
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.
(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
[[Page 228]]
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.
(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.
[[Page 229]]
(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 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.
[[Page 230]]
724.110 Reason/basis for administrative discharge.
724.111 Punitive discharge.
724.112 Clemency discharge.
724.113 Application.
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, presumption 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.
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.
[[Page 231]]
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.
Appendix A to Part 724--Policy Statement by the Secretary of Defense--
Addressing Certain Categories of Discharges
Appendix B to Part 724--Oath or Affirmation to be Administered to
Discharge Review Board Members
Appendix C to Part 724--Samples of Formats Employed by the Naval
Discharge Review Board
Appendix D to Part 724--Veterans' Benefits
Authority: 5 U.S.C. 301; 10 U.S.C. 1553.
Source: 50 FR 10943, Mar. 19, 1985, unless otherwise noted.
Editorial Note: Nomenclature changes to part 724 appear at 65 FR
62616, Oct. 19, 2000.
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 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 Personnel Command, but
specifically excluding separation by sentence of a general court-
martial.
[65 FR 62616, Oct. 19, 2000]
[[Page 232]]
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. An Entry Level Separation for
a member of a Reserve component separated from the Delayed Entry Program
is under honorable conditions.
(b) [Reserved]
[50 FR 10943, Mar. 19, 1985, as amended at 51 FR 44909, Dec. 15, 1986;
65 FR 62616, Oct. 19, 2000]
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.
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
[[Page 233]]
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).
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
[[Page 234]]
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 5730.7 series, the Assistant Secretary of the Navy (Manpower
and Reserve Affairs) is authorized and directed to act for the Secretary
of the Navy within his/her assigned area of responsibility and exercises
oversight over the Naval Council of Personnel Boards. SECNAVINST
5420.135 series 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.
[50 FR 10943, Mar. 19, 1985, as amended at 65 FR 62616, Oct. 19, 2000]
Sec. 724.202 Statutory/Directive Authority.
The NDRB, in its conduct of discharge review, shall be guided by the
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
[[Page 235]]
under the jurisdiction of his/her department upon its own motion or upon
the request of the former member or, if he/she is dead, his/her
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
(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
[[Page 236]]
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 60 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]
[50 FR 10943, Mar. 19, 1985, as amended at 65 FR 62616, Oct. 19, 2000]
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.
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
[[Page 237]]
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) [Reserved]
(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 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.
[50 FR 10943, Mar. 19, 1985, as amended at 65 FR 62616, Oct. 19, 2000]
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
[[Page 238]]
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 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.
[[Page 239]]
(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 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,
[[Page 240]]
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.''
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\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.
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
[[Page 241]]
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--
(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).
[[Page 242]]
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.
(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.
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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 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.
[[Page 244]]
(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.
(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
[[Page 245]]
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 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).
[[Page 246]]
(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 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.
[[Page 247]]
(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.
(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
[[Page 248]]
(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 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
[[Page 249]]
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.
(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
[[Page 250]]
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 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
[[Page 251]]
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.
(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.
[[Page 252]]
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 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.
[[Page 253]]
(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 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
[[Page 254]]
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 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.
[[Page 255]]
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 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
[[Page 256]]
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.
(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
[[Page 257]]
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 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.
[[Page 258]]
(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 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:
[[Page 259]]
(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:
(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
[[Page 260]]
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/her 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
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).
------------------------------------------------------------------------
[[Page 261]]
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 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
[[Page 262]]
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
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
[[Page 263]]
(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.
(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
[[Page 264]]
[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 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
[[Page 265]]
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.
(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
[[Page 266]]
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 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
[[Page 267]]
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.
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\4\ See footnote 1 to Sec. 725.1.
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(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 be referred to
Associate General Counsel (Litigation), who may either respond or refer
the matter for action to another office.
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\5\ See footnote 1 to Sec. 725.1.
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(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
[[Page 268]]
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 Personnel Records Center will be
determined by the official provided in Sec. 725.8(b)(2)(iii).
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\6\ See footnote 1 to Sec. 725.1.
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(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
[[Page 269]]
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 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.
[[Page 270]]
(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 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
[[Page 271]]
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;
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\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 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
[[Page 272]]
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.
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(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.
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\10\ See footnote 1 to Sec. 725.1.
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(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.
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(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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(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.
[[Page 273]]
(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
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
[[Page 274]]
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 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
[[Page 275]]
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 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,
[[Page 276]]
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.
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.
[[Page 277]]
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.
(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
[[Page 278]]
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
(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.
[[Page 279]]
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]
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
[[Page 280]]
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. Legal assistance is intended primarily for the benefit of
active duty personnel during active service, including reservists (and
members of the National Guard) on active duty for 30 days or more. As
resources permit, legal assistance may be extended to retired military
personnel, their dependents, survivors of members of the Armed Forces
who would be eligible were the service member alive, reservists on
active duty for single periods of 29 days or less, 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, and other persons authorized by the Judge Advocate
General of the Navy.
[65 FR 26748, May 9, 2000]
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/her:
(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, as are appropriate.
(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 pertinent
Navy instructions.
(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 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. Legal assistance is authorized for
personal legal affairs only, as contrasted with military justice
problems, business ventures, or matters that are not of a personal
nature. Legal assistance duties are separate and apart from
responsibilities of trial counsel, defense counsel, or others involved
in processing courts-martial, nonjudicial punishments, administrative
boards or proceedings, and investigations. Only
[[Page 281]]
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 the Code of Professional Responsibility of
the American Bar Association.
[41 FR 26863, June 30, 1976, as amended at 47 FR 41561, Sept. 21, 1982;
65 FR 26748, May 9, 2000]
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
service member accused or suspected of an offense or conduct leading to
an administrative proceeding will request advice from the legal
assistance officer. In such a case, the service member 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 respondent, or counsel for a party.
(b) Domestic-relations cases. In domestic-relations cases, a legal
assistance officer may provide advice concerning the legal and practical
implications of divorce, legal separation, annulment, custody, and
paternity. Assistance and advice in domestic violence cases will be
consistent with the Department of the Navy family advocacy program. If
two or more eligible persons with conflicting interests seek legal
assistance from the same office on the same matter, the party first
establishing an attorney-client relationship will be provided
representation. Other parties shall be advised that they are also
eligible for assistance, but that it must be obtained from another
source, with the assistance of and referral by the first office.
(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.
(e) Telephone inquiries. In the absence of unusual or compelling
circumstances, legal advice should not be given over the telephone. This
does not prohibit appropriate follow-up telephone discussions between
the legal assistance attorney and the client.
[41 FR 26863, June 30, 1976, as amended at 65 FR 26749, May 9, 2000]
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
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
[[Page 282]]
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 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, as amended at 65 FR 26749, May 9, 2000]
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 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.
(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 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, or
[[Page 283]]
the Expanded Legal Assistance Program, or 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, the administrator of the applicable program, or the
Commander, Naval Legal Service Command, 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, as amended at 65 FR 26749, May 9, 2000]
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 Instructions.
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, as amended at 65 FR 26749, May 9, 2000]
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]
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.
[[Page 284]]
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.
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.
[[Page 285]]
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 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
[[Page 286]]
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, 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.
[[Page 287]]
(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 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
[[Page 288]]
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.
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.
----------------------------------------------------------------------------------------------------------------
[[Page 289]]
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.
(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
[[Page 290]]
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 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
[[Page 291]]
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. 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
[[Page 292]]
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
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.
[[Page 293]]
(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 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
[[Page 294]]
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 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.
[[Page 295]]
(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 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
[[Page 296]]
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 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,
[[Page 297]]
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 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
[[Page 298]]
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.
(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.
[[Page 299]]
(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.
(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.
[[Page 300]]
(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) 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.
[[Page 301]]
(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 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,
[[Page 302]]
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 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
[[Page 303]]
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 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
[[Page 304]]
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.
(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
[[Page 305]]
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. 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
[[Page 306]]
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 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.
[[Page 307]]
(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 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:
[[Page 308]]
(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 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
[[Page 309]]
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.
(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
[[Page 310]]
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 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
[[Page 311]]
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 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
[[Page 312]]
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, 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
[[Page 313]]
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 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
[[Page 314]]
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 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
[[Page 315]]
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
(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
[[Page 316]]
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 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
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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.
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:
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(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).
(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
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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 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
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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 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
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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.